Bangladesh is one of the countries in the world where family ties and happiness are utmost important. Under Muslim law, marriage is a civil contract, the newly married couple takes an oath to have a beautiful family. But despite of family ties and values, divorces in Bangladesh became very common now-a-days. In fact, divorce in Bangladesh has now taken a deadly form and the number of divorces is increasing day by day.
The number of divorces Dhaka, Bangladesh is about 65- 70 thousand in past 10 years, and 50 to 60 divorce applications are submitted daily. In the last five months of last year, 5970 divorces have been taken place in Dhaka.
These are numerous reasons for divorce in Bangladesh such as extramarital affairs, substance abuse, physical abuse, dowry-related problems, abandonment, interference from in-laws, polygamy, personality problems, criminal activity, and unemployment of husbands.
Divorce in Bangladesh under Muslim law
Divorce law in Bangladesh & its procedure:
There are three main methods of divorce law in Bangladesh that are recognized under sharia law:
- Talaq
- Mubarat
- Khula
Talaq:
This is where the husband pronounces three times “I divorce thee” in front of two or more witnesses. Traditionally, this would have been sufficient for divorce. However the Muslim Family Law Ordinance, 1961 means there are now formal requirements for the recognition of full Talaq divorces in all parts of Divorce law in Bangladesh.
To give divorce following steps will be fulfilled:
- Husband needs to give notice of divorce to the opposite party i.e his wife and concerned City Corporation or Chairman.
- Husband needs to sign and put his thumb impression on the notice and book of the marriage register.
- Two male witnesses will sign the notices of the book of the marriage register.
- The notice will be sent through registered post.
- After receiving the notice, the officer of the concerned City Corporation will issue 3(three) notices consecutively in 3(three) months to the husband and wife.
- The City Corporation will form an arbitration council to resolve the dispute between husband and wife.
- If no party appears or not possible to resolve City Corporation will issue an order sheet thereof.
- Thereafter the marriage register will issue a divorce certificate.
Note: A wife does not have any power of her own to dissolve a marriage. She can dissolve a marriage by herself only if the husband had delegated the power to her before the head. In that case, the wife can also give notice to her husband and the above procedure has to complete to get a divorce certificate. The divorce will come into effect at the end of 90 days but the wife’s pregnancy may affect this time.
Mubarat:
Where both husband and wife mutually agree to a divorce. To complete a mutual divorce, in practice, both the husband and wife take their decision of giving divorce. Husband and wife and 2 (two) witnesses sign in the book of the marriage register. Usually, before coming to the decision of divorce, both the parties sign an agreement on their decided terms and conditions.
Parties mostly decided about the dower money, maintenance of wife and child (If any). A mutual divorce can be completed as soon as both the parties sign the book of the marriage register.
Khula:
Khula is a divorce petition by the wife, provided that she agreed to forego her financial rights (Mahr).
Grounds on which a wife may seek khula include:
- The husband deserted for more than 4 years.
- Husband’s failure to provide maintenance for more than two years.
- Cruelty by husband
- Husband’s imprisonment for more than 7 years
- Husband’s failure to fulfill the marital obligation for more than 3 years.
- Husband’s polygamy without wife’s consent. Additionally, if a wife was married while under 15 years of age, the marriage was not consummated and she chooses to end the marriage before she reaches 18 years of age the marriage can be dissolved.
These are some of the laws regarding divorce:
- Dissolution of Muslim Marriage Act 1939.
- Muslim Family Law Ordinance 1961.
- The Family Courts Ordinance, 1985
- The Muslim Marriages and Divorces (Registration) Act, 1974
Required documents for giving Talak:
- Photocopy of Kabinnama
- Copy of NID (National Identification Number) of husband and wife.
- Copy of NID (National Identification Number) of two male witnesses.
- 1(one) photo if an affidavit is prepared by a lawyer.
Dissolution of Hindu Marriage:
Marriage is a holy thing in the Hindu religion and cannot be dissolved, but separation is possible and takes place. Under the provisions of the Hindu Married Women’s Right to Separate Residence and Maintenance Act 1946; a Hindu married woman can seek separation from him depending upon fulfilling some criteria which are:
- If he is suffering from any loathsome disease not contracted from her.
- If he is guilty of such cruelty towards her as renders it unsafe or undesirable for her to live with him.
- If he is guilty of desertion that is to say of abandoning her without her consent or against her wish.
- If he marries again
- If the ceases to be a Hindu by conversion to another religion.
- If he keeps a concubine in the house or habitually resides with a concubine
- For any other justifiable cause
But the point to be noted is that Hindu married women shall only be permitted to entertain this right if she is virtuous and has not changed her religion or attains the right with sufficient cause to comply with a decree of a competent court for the restitution of conjugal rights.
Dissolution of Christian Marriage:
Under the provisions of the Divorce Act 1869 it is mention that-
- Any husband may present a petition to the District Court or to the High Court Division praying that his marriage may be dissolved on the ground that his wife has be dissolved on the ground that his wife has since the solemnization thereof been guilty of adultery.
- Any wife may present a petition to the District Court or to the High Court Division to dissolve her marriage if –
Her husband has exchanged his possession of Christianity for the profession of some other religion and gone through a form of marriage with another woman.
Or, has been guilty of incestuous adultery,
Or, of bigamy with adultery,
Or, of marriage with another woman with adultery,
Or, of rape sodomy or bestiality,
Or, of adultery couple with such cruelty as without adultery would have entitled her to divorce means act toro
Or, of adultery couple with desertion without reasonable excuse for two years or upwards.
Dissolution of Buddhist Marriage:
The Buddhist view of marriage considers marriage to be a secular affair and does not consider it to be a sacrament. In Buddhism, there are no restrictions on divorce, unlike Hinduism. Buddhists believed that if a marriage causes suffering it is better to get a divorce or dissolution. Buddhist is required to obey the personal laws laid down by their respective government.
In Bangladesh, there is no existence of \Buddhist personal law and therefore no particular divorce law is followed by the Buddhists living in the country.
However, the family Ordinance 1985 applies to everyone irrespective of their religion. This Ordinance mentions dissolving the marriage by instituting a suit at the family court. Moreover, there exists a law on marriage and divorce known as the Special Marriage Act 1872. This Act is applicable for persons who profess the Hindu, Buddhist, Sikh or Jaira religion.
Divorce is a simple get very complicated thing. There are many things that will come as a consequence of divorce such as custody, dower of maintenance.
Child Custody & Dower and Maintenance
Although divorce is not desirable in any family if that happens then there are many other things connected to divorce. Many other issues will come along with divorce such as child custody and dower of maintenance.
In Bangladesh, custody and guardianship of children-related cases are dealt with in the light of Family Court Ordinance, 1985 and Guardians and Wards Act, 1890. Guardianship and custody are two separate matters. Even when the custody of the minor children rests with their mother, the father is a natural guardian. Generally, both parents have the right to the child’s custody.
Possession of a child physically means custody (Hizanat). Under the Majority Act, 1875 a father is the legal and natural guardian of the children until they attain the age of majority.
Although a mother is not a natural guardian under Muslim law, she has a right of custody of her child up to the age of seven years in the situation of a male child and up to the age of puberty in the situation of a female child. The higher courts of Bangladesh developed various precedents in this connection with their decisions.
The power of the family court to determine the entitlement of a party to the custody of a child is not limited to the mere observation of the age rule. The supreme consideration is to be the concept of welfare and the best interest of the minor child. This is the main essence of such decisions.
Thus where the child’s welfare is concerned, deviation from the literal application of the age rule is permissible. Accordingly to Muslim Law, the wife is entitled to unpaid dower and maintenance till the iddat period on the occasion of divorce. But if the husband declines to pay the unpaid dower and maintenance, anyone can go to court to enforce her right.
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