LAWS OF DIVORCE PROCEDURE IN BANGLADESH

LAWS OF DIVORCE PROCEDURE IN BANGLADESH

The laws relating to the Marriage and Divorce in Bangladesh are laws enacted by the parliament supported by Mohammedan (Muslim) laws (for the Muslims in Bangladesh, I shall not include laws relating to Marriage and Divorce of other religious group in this affidavit).

A person living in Bangladesh can chose Bangladesh as his/her domicile; and if a child is brought to Bangladesh by it’s parents and the parents wish to make Bangladesh it’s (the child’s) domicile; then the child shall be domiciled in Bangladesh

The religious solemnization of a Muslim marriage means a Muslim scholar shall offer to a bride that the bride groom wishes to marry her for an amount of dower (meher money) and whether she has consent to the offer once the bride consents in front of witnesses; the Muslim scholar then again comes to the bride groom and the bride groom confirms his offer and accepts again in front of witnesses and thus the solemnization completes. Apart from this solemnization there are requirement of registration of marriage in accordance with section 3 of The Muslim Marriages and Divorce (Registration) Act 1974, according to this section every marriage solemnized in accordance with Muslim laws shall be registered in accordance with the provision of this Act. Section 5 of the abovementioned Act provides:-

“5. Solemnisation of a marriage to be reported and registered- (1) where a marriage is solemnized by the Nikah Registrar himself, he shall register the marriage at once.

(2) Where a marriage is solemnized by a person other than the Nikah Registrar, the bridegroom of the Marriage shall report it to the concerned Nikah Registrar within thirty days from the date of such solemnization.

(3) Where solemnization of a marriage is reported to a Nikah Registrar under sub section (2), he shall register the marriage at once.”

The High Court Division of the Supreme Court of Bangladesh in it’s Judgment in the case Abdullah vs Rokeya Khatoon 21 DLR 213 held that:-

“Section 5 of the Muslim Family Law Ordinance makes it absolutely necessary that the marriage solemnized under the Muslim law shall be registered. The solemnization of marriage if validly affected might not be affected for non-registration of the marriage.”

Even in the later judgments of the Supreme Court of Bangladesh it was even more firmly established that mere non-registration of the marriage duly solemnized shall not affect the legality of the marriage.

The law regarding capacity to marriage is governed by Islamic laws and according to Islamic law a male can enter into polygamous marriage but women cannot. The law in Bangladesh makes entering into second marriage (by a male) without first wife’s permission a crime but the second marriage does not become invalid or null. However if an woman enters into a polygamous marriage that marriage will be null and void.

A ‘Nikahmana’ is a valid marriage certificate for Muslims in Bangladesh. In absence of a ‘Nikahnama’ a marriage can be proved by way oral evidence from witnesses present in the marriage celebration describing the marriage rituals beings observed as per Islamic laws. The Document named Undertaking in respect of marriage dated 9th December 1995 AD provided by the querist is not a ‘Nikahnama’ or a marriage certificate under the laws stated above however it seems that the marriage between Abdul Sukkur and Almas Khatun was duly solemnized in accordance with Islamic shariat law. Therefore the marriage between Abdul Sukkur and Almas Khatun through not registered cannot be termed as invalid and rather it is a valid marriage..

The law relating to Divorce in Bangladesh also covers both Muslim sharia Divorce i.e. Pronouncing of words talaq and registration of Talaq with a Muslim Marriage and Talaq Registrar or Kazi. Section 7 of the Muslim Family Law Ordinance 1961 provides that:-

“ Talaq: (1) Any man who wishes to divorce his wife shall, as soon as possible after the pronouncement of talaq in any from whatsoever, give the chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.

(2) whoever contravenes the provisions of sub-sec(1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to{ten thousand taka} or with both.

(3) save as provided in sub-sec(5),a talaq, unless revoked earlier, expressly or otherwise ,shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the chairman.

(4) Within thirty days of the receipt of notice under sub-section (1),the chairman shall constitute an arbitration council for the purposes of bringing about a reconciliation between the parties, and the arbitration council shall take all steps necessary to bring about such reconciliation.

(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy , whichever be letter ends.

(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from re-marrying the same husband, without an intervening marriage with a third person , unless such termination is for the third time so effective.”

Again section 6 of the Marriages and Divorces (Registration) Act 1974 provides that:-

“REGISTRATION OF DIVORCES–(1) A Nikah registrar may register may register divorce effected under Muslim law within his jurisdiction on application being made to him for such registration.

(2) An application for registration of a divorce shall be made orally by the person or persons who has or have effected the divorce. Provided that if the women be a pardanshin, such application may be made by her duly authorized Vakil.

(3) The Nikah registrar shall not register a divorce of the kind known as talaq-i-tafweez except on the production of document registered under the registration act,1908, by which the husband delegated the power of divorce to the wife or of an attested copy of any entry in the register of marriages showing that such delegation has been made.

(4) Where the Nikah Register refuses to register a divorce, the person or persons who applied for such registration may, within thirty days of such refusal, prefer an appeal to the Registrar and the order passed by the register on such appeal shall be final.”

The Supreme Court of Bangladesh held that “Talaq in any form shall not stand effective and talaq shall not be talaq in the eye of law unless provision contained in section 7 (1) of the Muslim Family Laws Ordinance 1961 is sternly complied with…”

If a Notice was served and Talaq was registered in accordance with law stated above a legal Divorce or Talaq will be executed. Please note Muslim Divorce in Bangladesh does not require any court proceedings.

 

Md Sanwar Hossain
Advocate in Bangladesh
LLB (Hons) Barrister at law
Advocate, Supreme Court of Bangladesh