Law In-depth
Divorce under Muslim law
Prompt action of judiciary can ensure justice
Arpeeta Shams Mizan
The other day, while listening to my friend discussing the predicament of a man seeking legal advice, I was introduced to a scintillating loophole in our Muslim family law which hitherto had gone unnoticed by many.
The man's problem was not uncommon on the face of it. He had been divorced by his wife, and was seeking to get the guardianship of his fifteen year old son. While this might create illusion of yet another instance of exercising women rights and women empowerment to the effect that women are nowadays increasingly becoming brave enough to come out of incompatible bonds, nonetheless, this particular case is not one that the women rights activists could be happy about. As a matter of fact, this incident is an example of misusing the law, and of how the justice delivery system in our country is plagued by negligence, often at the cost of other's happiness and stability.
The main legislation guiding the procedure of dissolution of Muslim marriage in Bangladesh is the Muslim family laws ordinance 1961. The law in Section 7 clearly stipulates that, any man who wishes to divorce his wife shall send a notice to the Chairman as soon as possible after the pronouncement of talaq that he has done so. Moreover, he must supply a copy of that notice to his wife.
The talaq shall be effective only after ninety days have passed after delivering this notice to the chairman. The chairman, on the other hand, within thirty days of receiving the notice shall arrange for reconciliation between the parties.
In case of wife divorcing her husband, Section 8 provides that the provisions of Section 7 will apply mutadis mutandis.
On a simple reading, the law seems quite clear and the procedure quite easy to follow. It is not cumbersome to send a written notice to the local UP chairman or the Ward commissioner that a person has pronounced talaq to one's spouse, and when such notice is once given, supplying a copy to the spouse is neither an elephant task. That is, this is what I used to think until now. For you see, that man had shown me an example of twisting the law to serve one's purpose in a crooked manner. Although his wife did send a notice to the chairman, she did not bother to send a proper copy to her husband. Also, the notice was served through beneath the door in a plain paper in a manner that it failed to catch the attention of the husband until a substantial period from the ninety days had already elapsed. Thus even though the wife could claim that she did comply with the legal provisions, a crucial question arises: what is to be the proper form of notifying and what is the legal consequence of non delivery of notice.
It is important to consider that The MFLO 1961 has two aspects of notification: one to the chairman and one to the spouse, albeit the same piece of notice. A reasonable apprehension against this provision is what is to happen if one fails by any reason whatsoever to deliver such notice. The case laws and court precedents are quite abundant when it involves notice to the chairman, although not identical.
The courts in this regard hold two views. The majority court decisions show that, the talaq shall be effective only when the prerequisite of notifying the chairman is obliged with. Thus, if the person is dormant and feels like sending the notice after 2 months of having pronounced the talaq, then one has to wait for 5 months in total for the talaq to be effective if reconciliation is not possible.
However, the courts show two types of inclination in this regard. While in the earlier days, courts held the view that non delivery of notice prevented the talaq from operating, the recent court decisions show that non delivery of notice is not a vital omission of from the behavior and treatment of the person with the spouse makes the talaq established.( 1996 BLD 477)
This recent notion carries with it the understanding, that if a person has clear knowledge of the fact of divorce from the spouse's behavior or treatment, then one might lose the standing to challenge such talaq if steps for reconciliation are not taken within 90 days. Dear readers, let us stop here, and ask a question. In Bangladesh, where wives are often not treated at par with the husbands, where the wives are silenced by the in laws and the husband even in mundane matters such as which discipline should the child choose to study, and where the mobility of women is so limited, how plausible it is for a wife facing the prospects of talaq to find an arbitrator for reconciliation? Let's get out of the legal context and look at the societal picture. The in laws in most of the cases shall support the husband, as for the males it is Shaat Khun Maaf (utmost guilt shall be condoned), and her own family will advise her to make peace with the husband at terms put forward by him. Often there is none in her own family to defend her interest, to place her terms, for even these days in a city like Dhaka talaq is a taboo. Thus, our judiciary should consider the vulnerability of women while judging the validity of talaq in absence of notice.
But, horrifyingly, the more disturbing picture is unveiled when one ponders about the notice given to spouse. Given that it is not at all uncommon for our busy chairmen to fail to find some time for arranging reconciliation, cases like the one stated above are not seldom where the divorced spouse has no idea that the marriage has come to end , more likely when they are in separate residence. Often, the person pronouncing talaq takes the advantage of this moot point of legislation. They argue that since the chairman failed to reconciliate despite receiving notice, they are not liable. Their mala fide omission is suppressed under the strict interpretation of the provisions. This is a major loophole in our law, for there is no clear guideline in this regard, and our common people, not well aware of the maxims of law and equity, silently admit that they have no choice but to accept the divorce, for their 'dear' spouse did respect the law. It is the naughty chairman who is guilt, but dear me! Who could possibly challenge the mighty chairman, who is rare to find in the vicinity?
The judiciary should set out proper rules on what is to be the proper form of delivering notice, what would be the legal consequence of negligence in serving notice to spouse inhibiting the exercise of rights under the law, and what would be the implication under Islamic Law of defrauding the spouse by misrepresenting the law.
Marriage forms the first basis of society. If we want to establish rule of law, we must ensure marriage receives proper protection of abuse of justice.
The writer is student of Law, University of Dhaka.
