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June 6, 2004 

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Your Advocate

This week your advocate is M. Moazzam Husain of the Supreme Court of Bangladesh. His professional interests include civil law, criminal law and constitutional law.

Q: Almost a year and a half ago, we secretly got married. I was still a teenager, but legally eligible to be married; he was much older and more matured than me. Then, I went to my parent's house and he went to his. There were no reasons for us to take the drastic step because there were no immediate pressures from our families. But, unfortunately, we took the step and now we are bound. We never shared a conjugal life, all there was between us was a signed document but that is enough to turn life hell. I still don't feel married, but legally, I am. As days went by, we realised our mistake. The only thing to do now is rectify it legally. Our families now know, but they have left the decision on our hands, they are not trying to pressurise us in any way. We both want a legal remedy that does not involve too much chaos, legal representation or explicitness. In one word we want absolute discretion. Can you please help us in this regard? As witness, only one of my female friend was present from my side and another male friend was the 'ukil baap'. None of the other witnesses were from my side. Will that make the marriage illegal? If it will, what procedures need to be followed to have it legally declared as illegal? Alternatively, what are procedures to be followed for a mutual divorce? I don't have any claims on the 'kaabin', all I want is a discrete closure. I would also like to know if the bride can ask for a divorce, in case the groom for some ulterior motive refuse to easily come to a mutual divorce agreement? How can she do that? Please help us and please try to answer as soon as possible.
Rabeya, Dhaka.

Your Advocate: Your sudden secret marriage, on mutually living apart from the start, never to live like husband and wife, absence of negative pressure from the respective families and finally calling it a mistake and taking decision to walk out of the wedlock do not conform the ordinary course of conduct. This is, however, a matter of somebody's inner cry and disquiets not something to be guessed or speculated from outside. Be that as it may, you want to clear yourself off from matrimonial bondage as quickly and easily as possible without taking much of trouble and run-around. You have at the same time doubted the validity of your marriage as there was some technical omission in the Nikahnama. Mere absence of one of the two witnesses required to sign the document does not invalidate the marriage, which is otherwise valid. As to the question of divorce you have indicated that your husband is agreeable to mutual separation. You do not also claim the dower money and the whole concern is to get rid of the bondage.

Yes, there is provision for dissolution of Muslim marriage by mutual consent without intervention of court. This is called Mubara'at. But in view of the Muslim Family Laws Ordinance, 1961, intervention by an Arbitration Council to be constituted by the local Chairman, UP/Paurasabha or Mayor, City corporation as the case may be, is mandatory. Since you both are agreeable to a mutual separation it is more advisable in your case to ask your husband to exercise his right of divorce as per Section 7 of the aforesaid Ordinance. He is required under law to give notice to the Chairman/Mayor with a copy to you, i.e., his wife informing that he has divorced his wife. The Chairman or Mayor as the case may be will then constitute an Arbitration Council and go through the formalities of law towards bringing about a reconciliation between the parties. As this is in fact a case of mutual separation reconciliation will virtually fail and divorce will take effect on the expiry of 90 days from the date of notice received by the office of the Chairman/Mayor. And you will be free once for all from the day on. Remember that you will have to take this much trouble of taking recourse to the Chairman/Mayor as it is the mandatory requirement of law. Any attempt at making short-cut would leave scope for future complications.

Now to the second limb of your question. A Muslim woman can divorce herself from her husband if she has such power delegated to her by her husband. Nowadays it has become customary with the bridegroom to delegate such power to his wife. Non-delegation is an exception. Please check through column No.18 of your Nikahnama. This is the column that contains the stipulation about delegation of such power. If there is delegation of power mentioned in your Nikahnama you can also exercise the power in accordance with the provisions of Section 8 of the same Ordinance by giving notice to the local Chairman/Mayor in the similar way with some changes in technical language. In any case you should take advice of lawyers. Should all the devices fail you will have no choice but to go to court for dissolution of marriage. And this will unavoidably entail some trouble and fussing you wanted so anxiously to avoid.


Corresponding Law Desk
Please send your mails, queries, and opinions to: Law Desk, The Daily Star 19 Karwan Bazar, Dhaka-1215; telephone 8124944, 8124955, 8124966; fax 8125155, 8126154; email <[email protected]>










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