Your advocate
This week your advocate is Barrister Omar Khan Joy of the Supreme Court of Bangladesh and Head of 'The Legal Counsel'. His professional interests include commercial law, corporate law, family law, land law, constitutional law, banking law, arbitration and intellectual property laws. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.
Reader's query
I am married and have no children. I am 23 years old. Please help me get a divorce from my husband. I want to know the procedure regarding this issue. Please let me know whether I can divorce my husband. Will I get the 'mohor' if I divorce him? Does he need to know about my step? Will he have to sign papers or my sign's enough? Should I have to include any reason in the papers or anywhere else?
Girl 23
Response
Thank you for your query. From the given queries, it appears that you have some strong reasons to divorce your husband. It is noteworthy that in Bangladesh family matters are governed by the personal law of each community to which the individual belongs to. Accordingly, the issues like Marriage and Divorce of Muslims are dealt with by the Muslim Law along with pertinent statutory laws of the land.
As far as your first query is concerned, right to give divorce is an inherent right of the husband. However, this right may be delegated by the husband to the wife or any other person. In recent times, it is a common phenomenon that husband delegates the right of divorce to divorce to the wife. You may find the delegation of such right in Clause 18 of your Kabinnama/ Nikahnama. Thus, exercising the said right you can divorce your husband. This is the simplest one and most frequently used one.
Alternatively, you can also divorce your husband under the provisions contained in the Dissolution of Muslim Marriage Act 1939 by resorting to the Court. A woman under the 1939 Act is entitled to obtain for the dissolution of a marriage on any one or more of the following grounds:
1. Where the whereabouts of the husband has not been known for a period of four years.
2. The husband has neglected or has failed to provide for her for maintenance for period of two years.
3. The husband has taken an additional wife in contravention of the provisions of the Muslim Family Law Ordinance 1961.
4. The husband has been sentenced to imprisonment for a period of seven years or upwards.
5. The husband has failed to perform without reasonable cause, his marital obligations for a period of three years.
6. The husband was impotent at the time of the marriage and continues to be an impotent.
7. The husband has been insane for a period of two years or is suffering from leprosy for a virulent venereal disease.
8. The wife, having been given in marriage by her father or other guardian before attaining the age of 18 years, repudiated the marriage before attaining the age of 19 years, provided that the marriage has not been consummated.
9. The husband treats the wife with cruelty that is to say for example habitual assault, living a notorious life by the husband, forces the wife to do immoral acts, disposes of wife's property, restraining her from religious practices etc. Any Divorce has to be registered under the Muslim Marriages and Divorces (Registration) Act 1974.
In relation to your second query, you are certainly entitled to dower i.e. mohor. According to the Muslim Law, the right to get the dower is related with marriage and not with divorce. The amount of the dower is mentioned in the Nikahnama. The husband should not delay in paying the dower after marriage. Unfortunately, however, a malpractice has developed in our country that the husbands defer the payment of dowers and in many cases it remains unpaid. Consequently, in these cases the question of dower arises at the time of divorce. Dower has nothing to do with divorce and you have accrued such right at the time of your marriage. Nevertheless, you may at your complete discretion decide to waive the right to dower (whether not paid fully or partly) as a consideration for a unilateral divorce initiated by you.
Consent of your husband is not required when the divorce process is initiated unilaterally, i.e. by you alone. You don't even have to give him any prior notification if you don't want to. The divorce notice will be served to our husband and hence the matter will be communicated to him through the said notice. However, in case of a mutual divorce, the consent of both of you will automatically be there. In unilateral divorce, only the signature of the party initiating the same is needed. On the other hand, in mutual divorce, signatures of both the parties are required.
So far as your last question is concerned, please be informed that you have to state reason(s) while divorcing your husband. The reasons may or may not be mentioned in the Nikahnama or they may fall within the list mentioned above for the purpose of the 1939 Act. Nowadays, one of the common reasons provided by the parties is the lack of understanding between the husband and wife. This is suggested that unless you are in a real conflicting situation, you also mention this reason, as this will suffice.
I hope that the above shall adequately clarify your concerns. In case of a mutual divorce, you may simply consult with a Kazi. In case where the divorce is one sided and the husband is not willing to cooperate, you should consult with a lawyer in addition to the Kazi. If you have finalized your decision of divorce then it should not be a real challenge for you so far as the legality is concerned. Yet, I always advise the couple to think twice with a positive mindset to resolve the matrimonial problems amicably so that the need for divorce can wither away. But, even after giving proper thoughts and reasonable efforts, the things do not change or the causes for divorce remain, you should go for the divorce without wasting some more precious time of your life. We look forward to have happy and prosperous family lives for all.
For detailed query contact omar@legalcounselbd.com
