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:
I am amazed to read reply of "Readers Query"; in Law &
Our Right page, published on 14th February! It was related to reply
to Mr. Abdul Quader's question. The point, which streaked my conscious
conscience is- "a man, in sound mind can divorce his wife without
assigning any cause"! Is it rational? What is the rule of almighty
Allah? What so many women welfare organisations are doing? Please reply
me a few questions:
1 Can a woman be
divorced, following a serious injury to her body, with inability to
take care of her husband? Of course the answer were "yes";
then what fate would be of their children? Who can own the children?
How the law considers maternal love, in this country!
2. Can a woman divorce
her husband, who has gone abroad recently, for 2 or 3 years? Can the
divorce be legal without the consent of chairman or attributed committee?
Can she marry another man? Obviously, the lady had long love affair
with the other man!
3. Who would deserve
her children? Her earlier husband or the new one?
Dr. Ainun Nahar, Dhaka.
Your
Advocate: You have possibly taken the law in its literal meaning.
Taken literally a particular legal phraseology may look harsh or confusing.
It must be construed in its context and background to get into the true
import and intendment. Talak in Islam is looked upon with strong disapproval.
And Islam has in express words recognised the rights of women and ensured
protection against exploitation and discriminations. Therefore, there
is no reason of the law being devoid of rationale. The phrase-"without
assigning any cause" does not mean arbitrary and capricious decision
taken by the husband. There is no talak given without assigning causes.
Well, the causes may be misconceived, misjudged or product of sudden
outburst because it is strictly personal. The religious pundits are
the people to look into and arbitrate the matter. After the Muslim Family
Laws Ordinance, 1961 came into being personal decision of talak was
again brought under control and adjudication of Arbitration Council.
In our personal law wife is also given power to divorce herself from
her husband subject to delegation of such power by her husband. Moreover
she can also obtain divorce by judicial decree. A kind of balance is
struck between the parties. Laws have just kept the exits open for the
parties to walk out of the bondage in cases of painful necessities.
Now let us turn
to the questions you have set out for replies. Bodily injury or inability
to take care of the husband cannot be valid grounds for divorce. Physical
disability of the wife may at best be a reason for the husband to seek
permission to take a second wife. The question of custody of the minor
children are not dependant upon the question of divorce. Irrespective
of divorce mother remains to be the primary custodian of her minor children
if not otherwise disqualified. In case of female child mother is entitled
to her custody until she attains puberty and in case of male child until
he attains the age of seven years. Maternal love and affection in this
regard is taken by law with utmost importance. But maternal or paternal
love or affection is subjected to the overriding considerations of the
wellbeing of the child. Law will be certainly slow in giving importance
to maternal love of the kind of lady you have indicated in your second
and third questions taken together.
Your second and
third questions read together suggests existence of a problem underlying
the academic questions. So far as the academic interest is concerned
the reply lies in the foregoing paragraphs. And going or living abroad
has nothing to do with divorce. If a husband's whereabouts are not known
for a period of four years or more it may be a ground for the wife to
go for a suit for dissolution of marriage. In cases coming within the
sweep of the Muslim Family Laws Ordinance the notice of divorce must
be addressed to the Chairman ( Mayor, in cases of cities) with a copy
to the party sought to be divorced. And unless the requirement of law
is fulfilled the divorce is not valid. Therefore, it is needless to
say that marrying another man without divorce being legally effective
is no marriage in the eye f law.
Lawyers always tend
to look into problems and devise redresses. The underlying problem that
transpires is- a lady long in love with a gentleman was somehow married
to another man. Now she wants to divorce her husband and marry her paramour.
You want to know the way out provided by law. Well, if the power of
divorce is delegated to her by her husband she may divorce herself from
her husband by a notice addressed to the local Chairman with a copy
of the notice served upon her husband. And the talak may be effected
by operation of law upon observations of certain legal formalities.
Moreover, the option for filing a suit for dissolution of marriage is
there if it can be shown that there is one or more of the grounds for
the same required in Section 2 of the Dissolution of Muslim Marriage
Act, 1939.
As for deserving
the children both by the husband and the paramour-turned- husband I
am sure you have not solicited any answer. So I restrain.
Corresponding
Law Desk
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