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Octobber 24, 2004

Your Advocate

Q. Honorable lawyer, I desperately want answer of my small question! Kindly let me know, if a married woman; mother of two adolescent children marry her lover; sending divorce letter to her husband, on any back ground- "can she keep her children of ex- husband with her lover, at her lover husband's cost"? I am disabled following a road traffic accident. My husband is the mentioned lover! Kindly respond me explaining briefly. Thanking you.
Anonymous, On E-mail.

Your Advocate: You have not made any secret of the fact that your husband is the paramour of the lady you have indicated. This is unfortunate but law has hardly anything to do about it. Nonetheless for a Muslim lady it may not be as easy as it is usually thought to be. Because Muslim law has put some checks and balances on divorce particularly for woman. Firstly, the foremost precondition for marrying for the second time (in case of person other than the husband) by a Muslim woman is the dissolution of the subsisting marriage by divorce or by decree of a competent court. Death of any of the parties, of course, automatically dissolve the marriage. It is, therefore, needless to say that she will have to take divorce from her husband in either of the way before she proceeds to contract second marriage.

Secondly, in Islam a woman does not have the right to divorce her husband. She can take divorce from her husband if her husband delegates his power of divorce to his wife. That means, she can divorce herself from her husband if she possesses delegated power. This is usually mentioned in the Nikahnama at the time of marriage. Mere sending a divorce notice to her husband will not bring about valid divorce. For a valid divorce she will have to send a notice in writing to the local UP Chairman (to Mayor, City Corporation or to Chairman, Paurashbha according as the place of residence of the wife suggests) in accordance with the provisions of Muslim Family Laws Ordinance, 1961, informing him that she has delegated power of divorce and has divorced herself from her husband in exercise of the power. Pursuant to the notice the Chairman shall constitute an Arbitration Council for reconciliation between the parties. Due notices would be served upon the parties requiring them to nominate their respective representatives to represent them before the 'Council. And a brief reconciliatory session will be held for reconciliation. If the efforts fail for any reason talak will automatically take effect on the expiry of 90 days from the date of receipt of the notice by the Chairman. In case of pregnancy of the wife talak takes effect on the expiry of 90 days as mentioned or at the time the pregnancy ends, whichever is later.
Thirdly, if she does not have delegated power she can, of course, file a suit for dissolution of marriage on some or other grounds specified in Section 2 of the Dissolution Muslim Marriages Act, 1939. For dissolution through court she will have to prove any one or more of the ten grounds enumerated therein which would be difficult for her to do. I mention here some of those thought to be most relevant in your case. The grounds are: a) husband neglects her or failed to provide maintenance b) he has taken additional wife c) he has been insane for a period of two years or suffering from virulent venereal diseases d) her life is made miserable by habitual assault or cruelty of conduct e) he associates with women of evil repute f) forces her to lead immoral life and g) obstructs in her religious practices.

Fourthly, your husband cannot also take second wife without your consent ventilated through Arbitration Council constituted as per the provisions of aforesaid Ordinance. Because taking second wife without the permission of the Arbitration Council is punishable with imprisonment for one year and also with fine. As for the children you have virtually raised the complicated questions of their custody. Custody of minor children is essentially a matter related to their well being, a controversial issue to be judged by the court. That is, court will see where best of welfare of the minor is ensured. Ordinarily, in case of a boy mother is entitled to his custody until he attains the age of 7 years and for a girl until she attains puberty i.e., an age between 14-15 years in our country. A girl may attain puberty at an earlier age also according to the climatic and other conditions incidental to her. Here again the lady suffers legal infirmities. Because law says, amongst others, - mother loses the right of custody of her minor children if she leads an immoral life and marries a person who is not related to the child within the prohibited degree.

These are all legal hurdles she will have to get over for materialization of her dream. For her it seems to be a long way to go. If she at all succeeds there would be no point in bothering for who is being raised at whose cost.

Your Advocate M. Moazzam Husain is a lawyer of the Supreme Court of Bangladesh. His professional interests include civil law, criminal law and constitutional law.

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