Family Law: Interest of Women and Tangible to Intangible Legal Reform! (Part 2) | 2017-10-25 |

Family Law: Interest of Women and Tangible to Intangible Legal Reform! (Part 2)

Shaikh Md Mujahid Ul Islam

    24th October, 2017 11:57:47 printer

In this first part of my article published in 12th October I have tried to present some substantial weakness of family laws in Bangladesh, which prevents women in Bangladesh to get justice through judicial system. In this part, I will try to present other substantial weaknesses of family laws.
Wife has restricted power to divorce

I think that the restricted power of Muslim wife to dissolve the marriage is the basic weakness of our substantive family law. We know that a Muslim wife can divorce her husband if the husband delegates this power to the wife (Talak E Taufij), divorce through mutual consent and through judicial divorce. So the first two options of giving divorce is in the hand of the husband and for exercising the 3rd option of divorce she will have to go to the court and have to file a divorce case before family court seeking divorce and she will have to show the grounds stated in section 2 of Dissolution of Muslim Marriages Act 1939. So if the husband does to allow Talak E Tahfij and mutual divorce the Muslim wife will have to go to the family court seeking relief for divorce. Now the question is why she has the restricted power to divorce whereas the husband has the absolute power. Why the Muslim woman will have to pass time in the court room years after years for divorce whereas the declaration of divorce by husband is in the hand of husband?

If we give a practical example the weakness will be more clarified. A Muslim wife wants to divorce her husband because of the illicit relation of her husband. Husband did not allow Talak E tahfij and Mutual divorce. So the only way to get divorce is judicial divorce. Subsequently the wife files a family case for seeking divorce in 2010. In the mean time the husband got his second marriage (without kabinnama) though he denies it. In 2012 court declared its judgment and the wife got divorce. Subsequently the husband files appeal against that judgment in 2013 and subsequently in 2014 the appeal was disallowed and the divorce was confirmed. Subsequently the husband files revision against that order and due to the pressure of the cases revision was disallowed two years later. So in one hand for the divorce the wife had to wait long time and husband leads happy conjugal life with his 2nd wife.

Easy divorce procedure for husband

This is another weakness in our divorce law in family laws of Bangladesh. We already discussed that husband has absolute power to divorce. In the process of divorce the husband in order to register divorce must have to send notice to the Salish board (union Council). If he does not send notice to the council this is punishable with one-year simple imprisonment. But this does not mean that the divorce process is very difficult. If the husband wants to divorce wife he can easily follow the procedure. For divorce he will only send notice to the Salish board. Subsequently the Salish board will fix three dates in three months and if there is no mutual, the Salish board executes divorce. In the process of divorce there is no place for the board to find out the justification of divorce. Because of easy process in divorce the divorce rate is very high which really threatens the life of future generation. Section 7 of Muslim Family Laws Ordinance 1961 sanctions punishment for not serving notice, the divorce will not be invalid for not serving notice. There is a long champaign all over the world to establish equality of male and female and this is also our constitutional commitment to establish equality of male and female. But such easy divorce process is tying us to reach in that cherished goal.
Father natural and legal guardian

This power of father as natural guardian is considered as dejure or the legal guardian of a child. In the absence of a father Muslim family law gives priority to be a legal and natural guardian. In the absence of father the priority should be given to the executor of father and in his absence the paternal guardianship and in their absence the executor of paternal-grandfather. So under Muslim law the father and in his absence the previously described persons are considered to be the natural and legal guardian of a child. No one can ask a question in the chronology of Muslim law where is the place of a mother to be a guardian of child? Actually under any school of Muslim law there is no place for the mother to be guardian of a child and even in the absence of a father, there is no place for the mother to be the natural and legal guardian. But this conclusion is drawn through Fiqah based Muslim law. In many places of the Holy Qur’an the place of mother to a child is highly respected. But why the mother will be ignored in the question of determination of guardianship of a child.

If we analyse some practical problems the weakness of this one-eyed approach will be clearer.

Mr. X got married with his long time girlfriend Ms Y on 14h February 2000. He was a university teacher. Few days after their marriage in a University picnic, he fell in love with another very beautiful girl who was in fact his student. In the mean time his wife became pregnant. But Mr. X wants to dissolve the marriage, as he wants to get marry with Mrs. Z. Accordingly he pronounced divorce to his first wife and got 2nd marriage to that beautiful Mrs. Z. Then the first wife went back in the house of her father. Few days’ back a beautiful male child was born in 2002. On the other hand Mr. X leads a very happy conjugal life with Mrs. Z. On the other hand Mrs. Y invests her full time with her child and the child is growing up. Her relatives want to give her marriage. But she does not want to get married because of the child. Long 12 years she maintained the child. During these 12 years Mrs. X did not have communication with his child. But subsequently he felt that as the male child is his child, so need to communicate with him and as he is the sole natural guardian (those did not carry any responsibility) started to exercise his supervision on the child in the school and creates pressure on the wife to leave the child as the father is the guardian. In such a pathetic scenario where is the space of a mother who spent her whole life for his only son?

We can give thousands of examples in Bangladesh where only mother maintains the child and fathers are busy with her second wife. There are many examples in Bangladesh where husband does not carry at all their family responsibility and the wife alone maintains their children.
So in one hand law gives ample power to the husband to give divorce and the absolute power of guardianship to husband and one the other hand law gives restricted power to dissolve marriage to the wife and no authority of guardianship to the mother. One orthodox viewer can argue that Muslim law does not impose power only. Muslim law imposes power and authority as well as responsibly. I do agree with this view. But this is a very justifiable and valid question that if the responsibly of the father is not carried out by him, what will be the consequences. The answer is if the husband and father don’t carry their responsibility to their child, the legal mechanism will force him to discharge his responsibility. But if they don’t carry the responsibility, this does not affect the power and authority of a father and husband.

If the husband does not give dower money to the wife, the wife can enforce her right through court and in the same way if the father does not maintain the child, the court can enforce these rights. But there is no legal mechanism that if the husband does not maintain their child, the power and authority of a father as a natural guardian can be extinguished. So it seems to me such legal provision can be treated as one of the weakness of the Substantive Muslim guardianship law.

The writer obtained LL.M from University of Dhaka and Post-graduation in International Commercial Law from University of Glasgow, UK