Statistics of Supreme Court shows that disposal of cases related to the matrimonial issues by different courts are less than the filing of cases and if this trend is allowed to continue, the burden of cases can never be reduced. (Statistics of case disposal by Supreme Court - 2014).
There is hardly any comprehensive research on why those cases are filed before different courts and how those cases are resolved more quickly by both substantive and procedural law reform. In this research paper through my empirical knowledge I will try to find out the actual matter of disputes in the matrimonial cases and ways to overcome it. In this writing, I want to focus on the cases filed in Family Courts, Nari-Shishu Courts and magistrate courts regarding those issues. In most of the discussion this is often alleged that we have less number of judges and weak infrastructures for quick disposal of cases. But in my belief, only overcoming those tangible weaknesses cannot give fruit to the mass women. We must have to take steps for substantive and procedural law reform. For this reform, no financial matter of the government is involved. For identifying this reform, we will have to look into the issues why a woman goes to court.
Analysing the cases of family courts, Nari-Shishu courts and cases under Dowry Prohibition Act 1980 in magistrate courts it is not difficult to find the reasons of the arrival of women in Bangladesh to the court arena and those are described below-
a. Apparently most of the women in Bangladesh go to the magistrate courts where the husband demands dowry. But in most of the cases it is easily found that where the husband does not want to continue the marital relation with wife, they file the cases of such nature to create pressure on husband and his family.
b. Sometimes women go to court after dissolution of marriage and file any of those cases to pressure their husband to reconsider their decision of divorce because of social pressure.
c. In order to pressurise their husbands to leave the extra marital relationship sometimes wives go to courts.
d. Another reason for going to Nari-Shishu Court by wife is to put pressure on the family of husband to resolve other family disputes.
e. Sometimes women in Bangladesh go to family court demanding maintenance and dower money and in most of the cases women go to court after dissolution of marriage without mutual consent.
So it can be said that the apparent interest showed in the case documents is totally different from their real interest. As a result cases are resolved, but disputes are not. That’s why I am making this effort to find the weakness of our substantive and procedural law to speed up the dispute resolution system. This is not possible to discuss these pure technical issues within a short writing. That’s why I am trying to discuss these issues in five parts.
Weakness of substantive laws
The weakness of the substantive family laws has been presented below:
1. Unilateral power of husband to divorce wife
The primary weakness in our substantive family laws of Bangladesh is the unparallel absolute, abnormal power, unique power of husband to dissolve the marriage without any reason and without asking any question to the wife. About a hundred years ago, prominent Muslim jurist, Syed Ameer Ali in his book Muhammedan Law considers divorce by husband, must be backed by reasons. Muslim family laws in this subcontinent still allow the absolute power of husband to declare divorce to their wife. So according to Muslim law of Bangladesh the divorce of the family depends on the wish of the husbands.
Now, the readers may ask why I want to consider this absolute power as the weakness of our substantive family law. The reason is that the absolute power of husband is the genesis of most of the family cases. In the society of Bangladesh divorce is considered as a social stigma and curse for the wife. In our society if husbands pronounce talak to their wives, the wives are blamed that they did not maintain conjugal life. So the liability of divorce is heaved on the wives; but absolute power of divorce is in the hands of the husbands. When a husband divorces his wife under his own whim, why will the wife take the social responsibility? So such absolute power is really unrealistic and abnormal.
I know one person who decides to divorce his wife only for his illicit relation with another woman. Subsequently when he pronounces divorce, the wife was pregnant. Then the gentle man, husband creates pressure to the wife to kill the unborn child. But the family of the wife does not want that as the unborn child is going to be the only child in their family. After pronouncing divorce the family of the husband made the wife bound to leave husband’s house. After few days the child was born. In the mean time that husband got second marriage with that girl with whom he had illicit relation and stared to live happy conjugal life. On the other hand, the wife started to live her life with her child in the house of her father. But her father is not that much well off. This became very difficult to maintain the child and the wife. The wife is not that much educated to get a job. The people who came to their house asked various question regarding the father of the child. Sometimes wife wanted to take decision of suicide. But for the child she could not do that. God knows what will be her future. Now question is why the wife will get punishment socially, economically for the divorce of husband.
I consider this absolute power of husband as weakness of substantive family law as this brings more cases. In many cases where the husband declares divorce, wife tries to exert pressure on the husband to change the decision. In order to do that the wife starts to file different family cases against the husband. In such a situation, a wife files a case under Nari-Shishu Tribunal claiming for torture for dowry. In order to create pressure to the husband she also files a criminal case under Dowry prohibition Act 1980 against the husband and other family members of husband. In order to create more pressure on the husband she also files a case for dower demand and maintenance expense. In most of the cases this pressure game is present and wife tries to take these cases as a shield to protect her family. So it can be said that unilateral pronouncement of divorce by husbands gives birth to a number of cases.
So why will law allow such absolute power of pronouncing divorce by husband which leads to more cases before courts? That’s why I want to consider the absolute power of husband as the fundamental weakness of substantive family laws of Bangladesh.
The writer obtained LL.M from University of Dhaka and Post-graduation in International Commercial Law from University of Glasgow, UK.