Your Advocate
This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, 'Legal Counsel', which has expertise mainly in commercial law, corporate law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.
Query
One of my distant relative , an working lady, now find herself in an irreconcilable position out of her marriage after attempting on her life a few months back. Survived by luck, due to timely hospitalisation by her own relative (not by husband), she is considering options for a divorce. Situation update is :
1.Husband had sent one or two formal ( ? ) notice by a social cum semi-legal organization of some repute for a SHALISHI
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2. The wife, is still in a trauma, mentally and not yet consented to a Divorce petition .BUT Husband has not also submitted a formal notice.3. My relative is afraid of the social stigma attached during the post divorce period and also is apprehending a back lash from the husband, if she applies for divorce.4. Husband never approached her or her family for a new settlement. Her family is not interested for any settlement except for Divorce.
5. The husband is now sending mails to her colleagues, indicating that he has registered a GD, excepting that she can initiate a criminal case. The intention as I presume is continuation of harassments.
The question my relative wants to know:
a. Will there be any repercussion if she files for divorce?
b. Can she claim any benefit if she files divorce petition?
c. Is there any term called Separation in Muslim Family law?
d. Where she should file for an legally tenable divorce?
The major reason for asking a divorce continuous psychological torture, prompted by husband and his family.
Anonymous
Response
Thank you very much for your query. I have understood your situation and query and our opinion is as follows.
Firstly, there is no term called Separation in Muslim Family Law and accordingly there is no legal provision in relation to separation or being separated from spouse without divorce in Islam.
Secondly, I understand that your relative's husband (hereinafter referred to as the “Husband”) purports to have filed a General Diary (GD) against your relative (hereinafter referred to as the “Wife”), is torturous and threatening, and is sending mails to her colleagues with an intention to harass the Wife. I understand that the Husband had sent two notices, but it is not clear precisely what the notices were. When a spouse sends divorce notice, a copy of it is sent to the City Corporation as well, and the same sends “Shalishi” or arbitration notices, thereby calling the couple to settle the dispute. If the husband had sent divorce notice and the Shalishi notices were from the City Corporation, and 90 days have passed thereafter, then by now the divorce should have been registered and the couple can be said to be legally divorced. The City Corporation might have by now registered the divorce, so it is advisable that the Wife checks with the City Corporation first and have the divorce registered, if not already done.
However, if the notice were not divorce notices, then if it is possible, the Wife and her family should talk to the Husband and his family with an open mind and try to settle the issues relating to GD, torture and harassment, thereby trying to negotiate a mutual divorce. A common friend or a mutually trusted person can be invited to facilitate the discussion. If their best interest lies in divorce, then each partner should try to help the other in completing the process. However, if amicable resolution fails, which is likely be the case then the Wife can go for a unilateral divorce.
From your query I perceive that the couple is Muslim. Under the Muslim law, the husband has the automatic right to divorce. But the same can 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 to divorce to the wife. Such delegation can be found at clause 18 of the Wife's Nikahnama. Exercising the said right, the Wife can unilaterally divorce and initiate the process by serving a notice to the Husband through the Quazi and/or a lawyer. Once the process is started it will take around hundred days to complete the total process and get the divorce registered as per law.
Note, however, that independent of the right to divorce conferred to a wife in the Nikahnama, the wife can also divorce the husband under the provisions contained in the Dissolution of Muslim Marriage Act 1939. A suit can be filed for such dissolution on many grounds including, but not limited to, where a 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 and on any other grounds which is recognized as valid for the dissolution of marriages under Muslim Law, for example, incompatibility of temperament.
The benefit of filing the divorce petition is that, the grounds for filing so are very wide and the Wife's situation is a good ground to attain a divorce. As per section 5 of the Dissolution of Muslim Marriage Act 1939, her right to her dower or any part thereof shall not be affected on the dissolution of marriage, because dower is unrelated to divorce, and related only to marriage and consummation. No matter how a divorce is initiated the Wife is always entitled to three months' maintenance. The Wife may, however, at her complete discretion, decide to waive the right to dower (whether or not paid fully partly) and maintenance since she feels that there is a likelihood of trouble in relation to money matters.
Note that, any divorce has to be registered under the Muslim Marriages and Divorces (Registration) Act-1974. For the safety of the Wife, it is advisable that she contacts a lawyer and sends a Legal Notice to the Husband to stop him from further harassing the Wife at the workplace and to stop threatening of all kinds. If things do not improve then a General Diary (GD) may be filed. It is good to know that there are provisions for punishing a person involved in character assassination, harassment and defamation to women under the Penal Code 1860 and there are many redress and protections under the Anti-Women and Children Oppression Act. We wish all happiness in their family lives.
For detailed query contact: omar@legalcounselbd.com.
