Family Law of Bangladesh: ConsequenceBy: Jhuma Halder, Bangladesh, Email: hjhuma1977@gmail.com, Phone: 01827060836

Abstract: Everybody will recognize that the family law, especially marriage issues (pre and post),

is the most important aspect of social life, which require peaceful and lawful solutions

through family court. The purposes of disposal of family matters include advantages and

disadvantages of legal provisions on particular issues that contain the subject of different

statutory laws. The dealings with marriage and post marriage problems affect the family

and relationship between husband and wife covering the wide range of subject of family

matters. The complex social life and socio-economic condition becomes more critical

and more complex due to growing adverse situation of familial problems and condition of

family life. To quick disposal of Family Courts Cases include case laws along with

exhaustive commentaries on reach section keeping in particular view the intent of the

Laws. The provisions of The Family Courts Ordinance – 1985 applies to all citizens

irrespective of religion within the territory of Bangladesh. Section – 4 of this Ordinance

has not taken away any personal right of any litigant of any faithi.

Key words: Family Court, Cases, Subjects of Family Matter, Legal Provision,

Advantage and disadvantage, Socio-economic condition

IntroductionEstablishment of Family Courts was on the one hand an expression of our sophisticated

legal thought, on the other hand, an acknowledgement that our traditional civil courts

had failed to successfully deal with the suits relating to family affairs. Family Courts were

established by the Family Courts Ordinance 19851 to serve the purpose of quick,

effective and amicable disposal of some of the family matters. This purpose, though not

perceptible from the preamble of the Ordinance, is evident in different places of the body

of the Ordinance. The anxiety of the framers of the Ordinance for the said speedy

disposal of the family cases is palpable in fixing only thirty days for the appearance of

the defendant2, in providing that if, after service of summons, neither party appears when

1 XVII of 1985, The ordinance was made by the President of the Peoples Republic of Bangladesh on 28.3.1985 and was published in the Bangladesh Gazette, Extra on 30.3.19852Section 7(a)

the suit is called on for hearing the court may dismiss the suit3. The purpose is again

manifest in providing a procedure for trial of cases in camera if required for maintaining

secrecy, confidentiality and for effective disposal of some complicated and sophisticated

matters which may not be possible under normal law of the land. Once more, the Code

of Civil Procedure 1908 except sections 10 and 11 and the Evidence Act 1872 have not

been made applicable in the proceedings under the Family Courts which is another sign

that indicates the concern of the lawmakers to dispose of the family matters in congenial

atmosphere of the Family Court, which was proven to be absent in the lengthy

procedure of civil courts.

Although more than two decades have been passed after the courts’ coming into

operation, the noble aim of Family Court has not been achieved. There are many and

diverse type of reasons behind such let down. Given the socio-economic grounds, the

procedural as well as substantive loopholes in the ordinance and related laws are not

negligible. Responding to these loopholes a drastic amendment was made to the

Ordinance in 19894. Yet, the law is not flawless, resulting in giving rise to some

confusions and uncertainties. Besides, there are some misconceptions.

Purpose of the study:The purpose of the study is to identify and focus on the ongoing problems in family court

settling the dispute.

Objectives To obtain recognition legal consequence issues of family maters

Peaceful exercise the rights as personal lives.

MethodologyThe work “Family law of Bangladesh: Consequences” the observational and analytical

methodology and only secondary sources have been used.

Limitations

3 Section 9(1) 4 Though there are contradictory opinions on this; see below note 36

2

The main challenges of this research are patriarchal social structures and religious

barrier enter into the judicial activism that make survival inequalities among the justice

seekers.

Family Court:A court deals with family matters which jurisdiction subject to the provisions of Muslim

Family Laws Ordinance, 1961ii. Family Court means a Family Court established under

the Family Court Ordinance, 1985.

Case:Case is a civil and criminal proceedings, action, suit or controversy at law or in equity. A

lawsuit bears to essential an important legal principle of rights. Such as: frequently bears

by the parties’ mutual consent on agreed facts – when the fact is termed amicable action

or amicable suit the suit is supported by amicable action, proceedings and concerning

matters to disposed off to the parties.

Subjects of Family Matter:A Family Court shall have exclusive jurisdiction of entertain, try and dispose of any suit

relating to or arising out of all or any of the following matters, namely:

dissolution of marriage

restitution of conjugal rights

dower

maintenance

guardianship and custody of children.

Legal Provision: The legal provision is an act that is not condemned as illegal. It is also an action or

undertakings that creates a legally recognized obligation or the act that binds a person in

some way.

Advantage and disadvantage relation with Family Court:To minimize the problems the legislature has framed a new set of statutory laws to

create to the needs of affected families in order to maintain good family relationship

between the husband and the wife and the citizens should keep abreast of them so as to

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materialize the intent and purpose of Family laws. The purpose of framing such laws are,

among other things, to have quick disposal of the Family Court cases.

When the court is dissatisfied by the parties for their non-cooperation and the

proceedings affect its status and it continue till the completion of disposal, the

proceedings fevor the litigant and the opponent both due to delay or/and capacity of the

purpose or characteristics of matter of litigations.

At the time of litigation the social institutions support to the litigants for their rights to

claim and the political independence sets the theory of principles and rule of law.

Socio-economic condition:Socio-economic condition refers social matters that deal with production, distribution and

consumption of goods and services. It supports economic interests that comply powers,

moral interest and domestic development.

Understanding masculinity in family law and judicial activism:The majority population of Bangladesh is Muslims. Hindus are the most important and

significant number of minority community in Bangladesh. There is much confusion arises

on the subject of interfaith and inter religious marriage in Christian community in

Bangladesh. The reality of multicultural and multi religious social co-existence means

that ways to deal with this reality must be found, rather than denying the fact that is the

reality. Priests, Pastors and Ministers raised genuine questions as to how deal with the

various dimensions of marriage. (Pereira, Faustina, P – 11). The questions of

inheritance and division of property appeared to drive many of the concerns surrounding

mixed marriages. In general all participants felt very blatant colonial racial bias in the

language of law5.

Family court works mainly based on the Muslim Family Laws Ordinance (VIII of 1961),

Muslim Family Laws Rules, 1961, Muslim Marriages and Divorced (Registration) Act (LII

of 1974), Muslim Marriage and Divorces (Registration) Rules, 1975, Dissolution of

Muslim Marriage Act (viii of 1939), Muslim Personal Law (Shariat) Application Act (XXVI

of 1937), the Guardians and Wards Act of 1890. Here is the link with religious 5Pereira, Faustina, the South Asian Institute of Advanced Legal and Human Rights Studies, 2011, Civil Laws Governing Christians in Bangladesh – A proposal for reform.

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masculinity. In general sense masculinity refers body embodiment, but in respect of

family court the general masculinity refers sense of communalism, referring Muslim

Family Laws. When the occurrence happens within other religious family except Muslim,

Hindus, Buddhists and Christians claim justice to family court through the permission of

the district court under civil procedural law or personal law. It is a great tragedy that time

consumption of religious minority needs double than the Muslim.

The classical Shari‘a law on family relations is based on patriarchal family organization

and male privileges, leading to legal and social discrimination against women and

reducing them to an inferior status which is incompatible with present-day notions of

gender equality and social justice. The discrimination against Muslim women is

especially pronounced in such vital matters as marriage, divorce, maintenance and

inheritance and yet, these are the institutions which form the bedrock of security and

stability in family life.

Relevant Examples:The judges dealing with the cases regarding women will have to think how to give relief

to the victims.”6 Referring to the unbridled, arbitrary and unilateral power of Muslim

husbands to divorce their wives and lamenting the miserable lot of the wives, in

Mohammed Haneefa v. Pathummal Beevi, 1972 KLT 512 at 514, V. Khalid, J., of Kerala High Court asks: “Should Muslim wives suffer this tyranny for all times? Should

their personal law remain so cruel towards these unfortunate wives? Can it not be

amended suitably to alleviate their sufferings?

The observations of judges quoted here show that if gender discrimination in Muslim

family law is to be removed and genuine equality of rights between the sexes achieved,

the courts must take a pro-active role in deciding questions involving women’s rights.

The modernists, generally the upper and middle classes, bureaucrats and professional

people advocate a creative reinterpretation of the Qur’an and Sunnah to bring about

social reforms and address the needs of the modern Muslim society. As the classical

Shari‘a law on family relations is heavily weighted in favour of men and against women,

6 Star, The Daily, 3 November 2008, Page – 3

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the modernists insist on doing away with the disabilities and discriminations suffered by

women and establishing equality of rights between the sexes.

The judges make conscious efforts to justify their decisions in the light of the ethos and

sources of Islamic law including the Qur’an and Sunnah. The necessity of enquiry has

been confined to select areas – i.e., restitution of conjugal rights, polygamy, khula

divorce, fatwa relating to talaq, maintenance of wives, custody of children, registration of

marriage and protection of pardanashin women – which have direct bearing on the

social status of women and where judicial creativity has been pronounced.

Restitution of Conjugal Rights A Muslim marriage is a civil contract and, in principle, a suit for restitution of conjugal

rights is nothing more than an enforcement of the right to consortium under the contract.

The court issues an order compelling the recalcitrant spouse to return to cohabitation

with the complainant. An analysis of case-law on the subject in Bangladesh shows that

in most cases it is the husband who seeks the remedy against his wife and he does it

not out of a genuine desire for restitution of his conjugal rights and reconciliation but to

defeat the claim of the neglected, deserted or aggrieved wife to maintenance against

him.

In Hosne Ara Begum v. Rezaul Karim, 43 DLR (1991) 543, being compelled by her

husband’s conduct to leave the matrimonial home with her children, the wife filed a

petition in the Family Court claiming her prompt dower and maintenance for herself and

the three children. As a counterblast, the husband brought a suit against her for

restitution of conjugal rights. The remedy of restitution of conjugal rights is available to

both the spouses. Most textbooks on Muslim law treat it as if the remedy is available to

the husband alone and not to the wife7.

Contrary to the tradition of the husband suing for restitution of conjugal rights, in Chan Mia v. Rupnahar, 51 DLR (1999) 292, the wife filed a suit against the husband for:

(i) restitution of conjugal rights,

(ii) realization of dower and

(iii) maintenance.

7 Hossain, Aftab – Status of Women in Islam (Lahor – 1987), P - 53

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In Nelly Zaman v. Ghiasuddin Khan, 34 DLR (1982) 221, Husain, J., had found the

right to restitution of conjugal rights unacceptable for three reasons.

- First, by lapse of time and social development the very concept of forcible

restitution of conjugal rights against a wife unwilling to live with her husband has

become outmoded.

- Secondly, there is no mutuality and reciprocity between rights of the husband

and the wife, since it “is not available to a wife as against her husband apart from

claiming maintenance and alimony.”

- Thirdly, it violates the fundamental rights recognized under Articles 27 (equality

of all citizens before law), 28 (2) (equal rights of men and women in all spheres of

the state and of public life) and 31 (right to enjoy the protection of the law and to

be treated in accordance with law, only in accordance with law).

Pearl and Menski considered – and quite rightly – the judgment to be an enlightened

statement of modern marriage law with special reference to restitution of conjugal rights,

“reflecting a modern, secular understanding of marital relationships without explicit

reference to Muslim law.”8

When the matter finally comes up before the Appellate Division of the Supreme Court for

decision in Hosna Jahan v. Md. Shahjahan, 4 BLC (AD) (1999) 117, the Full Bench

refrained from giving any opinion on the constitutional validity of the law of restitution of

conjugal rights. They preferred to base their decision on Section 5B of the Family Courts

Ordinance, 1985 which specifically mentions restitution of conjugal rights as a subject

matter for trial and disposal by a Family Court. They held that the conscious policy of the

legislature would prevail over the decided cases. The result of the decision is that like

India, though not for the same reasons, restitution of conjugal rights is a valid law.

Polygamy The Muslim law of polygamy in Bangladesh is regulated by Section 6 of the Muslim

Family Laws Ordinance, 1961, which provides: “No man, during the subsistence of an

existing marriage, shall except with the previous permission in writing of the Arbitration

8 Ibid., at p. 53

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Council, contract another marriage, nor shall any such marriage contracted without such

permission be registered under the Muslim Marriages and Divorces (Registration) Act,

1974.”

The husband’s application for such permission must state the reasons for the proposed

marriage and whether the consent of the existing wife or wives to this marriage has been

obtained. If the Arbitration Council is satisfied that the proposed marriage is necessary

and just, it may grant the permission requested for. The law is essentially a compromise

between traditionalist and modernist views. It does not prohibit polygamous marriages; it

merely imposes some procedural restrictions on its unbridled exercise and punishment

of the polygamous husband with imprisonment or fine for violation of the restrictions.

A Division Bench of the High Court Division of the Supreme Court has challenged the

very concept of polygamy in a sweeping and bold judgment in the case of Jesmin Sultana v. Mohammad Elias, 17 BLD (1997) 4. Though the suit concerned a wife’s

claim for dower and maintenance and polygamy was not an issue, the Court examined

the question whether Islam truly approved polygamy, and section 6 of the Ordinance

was valid. The Court was of the opinion that “to be able to deal justly” between more

than one wife, as ordained in the Polygamy Verse9 of the Qur’an: IV:3, is a condition

precedent to marry more than one wife.

According to some commentators, the Court held, this expression implies equality in love

and affection between the wives and as such equality is impossible, the Verse virtually

prohibits polygamous marriages.

According to others, the expression only means equality in maintenance and lodging.

Having regard to the hadith narrated in the Sahih Al-Bukhari, that the Prophet did not

allow his son-in-law Ali to take a second wife because it would hurt his daughter Fatima

– which the Court interprets as meaning that Ali “shall not be able to deal justly” with two

women – the latter view cannot be accepted.

9 Supra note 24, at p. 49-50

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Secondly, after the revelation of Verse 10 XXXIII: 52 in the seventh year of the Hijra, the

Prophet did not marry again.

Thirdly, polygamy is prohibited in Tunisia under its Law of Personal Status, 1957 on the

ground that “to be able to deal justly” is a legally enforceable injunction and that, under

modern social and economic milieu, this condition is not capable of fulfillment.

Therefore, the Court held, Section 6 of the Muslim Family Laws Ordinance, which

instead of prohibiting polygamy allows it subject to the previous permission of an

Arbitration Council, “is against the principle of Islamic law”, and legislation should be

enacted prohibiting polygamy altogether. The Court referred the judgment to the Ministry

of Law for taking necessary action.

The observations of the Full Bench of the Appellate Division of the Supreme Court is an

anti-climax of an otherwise promising court decision of far-reaching social

consequences. The Full Bench observed that polygamy was neither an issue in the suit

nor required to be decided in the context of the pleadings of the parties and, therefore,

the observations and recommendations of the High Court Division should be taken as

deleted.11 Irrespective of the observations of the Appellate Division, the fact remains that

the judgment of the High Court is not well-researched, well-documented and well-

thought out. Compare this judgment with that delivered by Dhawan, J., of the Allahabad

High Court in Itwari v. Asghari, AIR 1960 All. 684, and its weakness will be obvious.

Incidentally, while the feminist lobby welcomed the decision with jubilation, the reaction

of the traditionalists was circumspect12.

Khula Divorce The revolutionary decision of the West Pakistan High Court in Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi, PLD 1959 (W.P.) Lah, 566, held that the courts can allow a

wife judicial khula on the ground that the marriage has irretrievably broken down and in

such cases husband’s consent is not necessary. Mst. Amena Khatun v. Serajuddin Sardar, 17 DLR (1965) 687, is the first case in Bangladesh, then East Pakistan, where

10 Ibid., at p. 5011 Act No. XIX of 1946.12 So far, the aggrieved party under this Act had to take recourse to time consuming civil court. It is decided the Pochon Rikssi case that Family Courts Ordinance has provided a forum for speedy and effective disposal of issues in the Act.

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the Court took notice of the above decision. In this suit, instituted by the wife for

dissolution of her marriage, it was established that the husband had failed to maintain

her for more than two years, contrary to the specific stipulation in the marriage contract,

that he failed to perform his marital obligations for more than three years; that he was

unable to offer equal treatment to her in relation to the first wife, that he had used

physical violence against her, and “that the marriage between the parties was

shipwrecked at an early stage and since then there had been a perpetual state of

hostility and antagonism between the parties.”

The Court held: There are various other considerations upon which the aforesaid marriage can be

disposed of. For instance, the relationship between the parties as made out by them,

brings it within the ratio of the decision of a Full Bench of the West Pakistan High Court

in the case of Mst. Balquis Fatima vs. Najm-ul-Ikram Qureshi …. The plain fact is that

on a total assessment of the relationship between the parties it would amount to cruelty

to the plaintiff to continue the marital tie. Another important factor in this case is that if

the marital tie is not dissolved it would be impossible for the wife to live within the limits

of the Shariat. Islam does not ignore the propensities of human nature.13

This was a good case of khula. The Court preferred to dissolve the marriage on the

ground that the husband had failed to provide for the wife’s maintenance for a period of

two years in breach of the terms of the kabinnama Hasina Ahmed v. Syed Abul Fazl, 32 DLR (1980) 294, gives a clear exposition of the law of khula in Bangladesh. In this

case the husband had consistently alleged that his wife had illicit relation with her

cousin. She instituted a suit for dissolution of marriage and expressed her willingness to

part with the dower. Husain, J., well-known for his liberal and activist stance, found that,

on the facts, she was entitled to dissolution of the marriage on the principle of li’an for

the husband’s false charge of adultery against her and also on the ground of cruelty

under the Dissolution of Muslim Marriages Act, 1939. He preferred to base his decision

on the principle of khula. He held that a wife could obtain divorce by way of khula from

the court, even if the husband did not agree and as authority for his decision referred to 13 Section 6 (1) of the Ordinance provides as follows: “Every suit under this Ordinance shall be instituted by the presentation of a plaint to the Family Court within the local limits of whose jurisdiction (a) the cause of action has wholly or partly arisen; or(b) the parties reside or last resided together:Provided that the suits for dissolution of marriage, dower or maintenance, the Court within the local limits of whose jurisdiction the wife ordinarily resides shall also have jurisdiction.

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the Full Bench decision of the Supreme Court of Pakistan in Mst. Khurshid Bibi v. Muhammad Amin, PLD 1967 SC 97. His admiration for it was unbounded: “This

judgment of the Supreme Court is a classic and monumental example where the

principle of Muslim law on divorce by consent by way of ‘khula’ has by analogy been

made a rule of the Court, so that an unwilling wife is not forced to live with her husband

against her expressed will.” He further held that while adjudicating on family disputes the

courts should take into account not only the factual and legal positions but also the

changing social milieu.14

In Sheerin Alam v. Captain Shamsul Alam, 48 DLR (1996) 79, the wife prayed for a

khula divorce alleging cruelty and ill-treatment by her husband and agreeing to surrender

the dower money in consideration of khula. The husband filed a counter suit for

restitution of conjugal rights. The two lower courts found that the couple could not live

together as husband and wife “within the limits of Allah” and they had been living

separately following an attempted assault by the husband. They held that as no such

cruelty had been proved as was required for dissolution of marriage under the

Dissolution of Muslim Marriages Act, 1939, she was not entitled to divorce and issued a

decree for restitution of conjugal rights. The High Court held that, for dissolution of

marriage through khula, the question whether the husband treated his wife with cruelty

was not of prime importance.

The most important consideration was whether the parties could live together in peace

and amity. Following Mst. Khurshid Bibi’s case, the Court held that if the wife satisfied

the court that there was no possibility of their living together consistently with their

conjugal duties and obligations, the court would have the right to dissolve the marriage.

Accordingly, the Court dissolved the marriage.

In khula cases the courts have established the principle that the consent of the husband

is not required bringing about a divorce. This gives women freedom from oppressive

marriage bondage but often deprives them of their entitlement to dower15. It may also

happen that a man wants to get rid of his wife but does not want to pay her dower, which

14 23 October 1993, The issue was brought by some lawyers from the district Bars of Bogra, Comilla, Jessore, Patuakhali, and Mymensingh; as referred to in the BLAST report, at p. 8.15 1(1996) BLC (AD) 24; judgment delivered i Pochon Rikkssi Das vs. Khulu Rikkssi Dasi and others 50 DLR 47ii Section 5 of the Family Courts Ordinance, 1985

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a talaq would entail. He may put pressure upon her by cruel conduct or other means to

seek a khula divorce and release him of dower and other financial obligations. However,

the Pakistan judiciary has established the rule that where the fault of the husband is

proved, the wife does not have to restore the benefits received or waive her claim to

dower.

Fatwa Relating to Talaq:One striking phenomenon of the socio-legal scenario of Bangladesh that will attract

attention of any conscious citizen is the fierce resistance of the traditional religious

leaders of the rural areas to the implementation of the divorce provisions of the Muslim

Family Laws Ordinance, 1961.

Editor, The Banglabazar Patrika v. District Magistrate and Deputy Commissioner, Naogaon16 deals with the serious social problem of pronouncement of fatwa on divorce

matters by people, not properly qualified and having no legal, religious or moral authority

to issue fatwas. Fatwas are specialist opinions of competent jurisconsults on any legal or

religious matter where the rules of law are not clear, or because the issue or situation is

novel the existing rules do not provide an answer.

The person who gives a fatwa is a mufti who must be of an unimpeachable character,

have deep insight into Islamic theology, be well-versed in the original sources of law, has

mastery over the languages of the original works and competence to form an informed,

independent judgment17. Fatwas are of advisory and not binding character. As the rules

of talaq and their effects are governed by Section 7 of the Muslim Family Laws

Ordinance, 1961, which codified the Islamic law on the subject, there is no scope for

pronouncement of fatwas in divorce matters. Section 7 virtually makes the revocable

ahsan form of talaq obligatory on any husband who intends to divorce his wife and

unequivocally abolishes the arbitrary and instantaneous talaq-i-bid‘at or triple talaq of the

wife and allows remarriage between the couple after such a talaq without an intervening

marriage with a third person, unless this is the third talaq pronouncement18. If there is

any ambiguity in any statute, it is the court of law which alone has power, competence

16 47(1995) DLR (HCD) 235; judgment delivered on 23 January 1994; however, it could not be learnt whether the HC Bench was aware of the Appellate Division decision in In Azad Alam Vs Jainab Khatun and others17 Ibid., at p. 23618 Ibid., at p. 237

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and jurisdiction to decide the matter. The court can seek expert to advice on the matter

in arriving at its decision, but it is not bound by such advice. The Court interpretation has

removed whatever ambiguity had existed in the provisions of Section 7 of the Ordinance.

In blatant disregard of this law a class of people has taken it upon themselves:

(i) to issue fatwas declaring section 7 of the Ordinance as un-Islamic, talaq-i-

bid‘at as dissolving a marriage irrevocably and hilah19 marriages as

absolutely necessary for legalizing remarriage with the first husband,

(ii) to enforce these utterly unlawful acts, and

(iii) to inflict corporal punishment for non-compliance with their directives.

These fatwas20 are mostly issued by semi-literate village maulvis, and the victims are

almost invariably the poor and illiterate village folk. In the present case the husband

pronounced a talaq on his wife in anger and thereafter continued married life with her for

about a year. Then one Haji Azizul Islam issued a fatwa that the marriage had been

dissolved and forced the wife to go through a hilah marriage21. Exercising suo motu

jurisdiction a Division Bench of the High Court heard the case and found that talaq-i-

bid‘at is against the injunctions of the Qur’an and the hadith as well as invalid in law

under section 7 of the Muslim Family Laws Ordinance, 1961. The Court also cited an

instance to show that the Prophet strongly disapproved the capricious and irregular

exercise of the power of divorce. The Court held that the fatwa was wrong; the marriage

was not dissolved; and assuming that it was, there was no legal bar for remarriage of the

couple without an intervening marriage. The Court further held that fatwa means legal

opinion of a lawful person or authority. The legal system of Bangladesh empowers only

the courts to decide on all legal questions. Therefore, fatwas including the instant one

are unauthorized and illegal. The Court recommended that giving a fatwa by

unauthorized persons be made a punishable offence by the Parliament.

Maintenance of Wives Under Muslim personal law maintenance of the wife is an obligatory duty of the husband.

If he neglects or refuses to maintain her without any lawful cause, she can sue him in a

civil court claiming maintenance. A serious shortcoming of the Hanafi law of

maintenance which causes great financial hardship to a needy wife, expelled from the

19 Ibid., at pp. 236 - 23720 bid., at p. 23721 Kannan vs Chiruda, AIR 1960 Ker. 93; as referred to in 47(1995) DLR (HCD) 235, at p. 237

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matrimonial home without sufficient cause or living apart from her husband for valid

reasons, is the rule that a court decree awarding maintenance to her is enforceable only

from the date of the decree and not from the day the cause of action arose.

The mere fact that she has been hesitant in promptly coming to the court or has been

pursuing remedies out of court, e. g., reconciliation with her husband, shalish or informal

settlement by village elders, cannot be construed to deprive her of her right. The

classical law holds that following divorce maintenance is payable to the wife only for the

iddat period of three months. This rule causes great hardship to divorced women without

jobs or other means of support.

The Commission on Marriage and Family Laws appointed by the Pakistan government

proposed as early as 1956 that courts should be vested with power to grant

maintenance to an unjustly divorced wife for life or until her remarriage22. The proposal

has not made its way into the statute book of Pakistan or Bangladesh until now. India

solved the problem of destitute, divorced wives by enacting the Muslim Women

(Protection of Rights on Divorce) Act, 1986 and by activist interpretation of its provisions

by the Supreme Court23.

A valiant effort was made by a Division Bench of the High Court Division of the Supreme

Court of Bangladesh in Hefzur Rahman v. Shamsun Nahar Begum, 47 DLR (1995) 74, to provide financial security to divorced women in impecunious circumstances by

making their former husbands liable for their maintenance until their remarriage. In a suit

by a wife for her iddat maintenance, the Court took up suo moto the legal query whether

the divorced wife could have claimed maintenance beyond the iddat period. The Court

held that a civil court has the jurisdiction to follow the law as contained in the Qur’an,

disregarding any other law on the subject which is contrary to it, even though laid down

by the jurists and commentators of great antiquity and authority and followed for a very

long time.

22 Question regarding camera trial was raised by some lawyers from Jessore, Rajshahi, Chittagong, Pabna Bar, as reffered to in BLAST report, at p.8.23 The issue is raised by some lawyers from Jessore, Tangail and Rajshahi Distrct Bar Association; as referred to in BLAST report at p. 9

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The Qur’anic Verse, which was applicable to their query, was II: 241, translated by

Abdullah Yusuf Ali, the celebrated modern commentator of the Qur’an, as “For divorced

women maintenance (should be provided) on a reasonable (scale).” The Court accepted

this as the correct translation of the Verse and observed:

Considering all the aspects we finally hold that a person after divorcing his wife is bound

to maintain her on a reasonable scale beyond the period of iddat for an indefinite period,

that is to say, till she loses the status of a divorcee by remarrying another person.

The Court did not refer, perhaps deliberately, to Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945. The judgment has been hailed by liberal forces of

Bangladesh as courageous and enlightened – a major breakthrough in Islamic

jurisprudence. The leading British scholars of Muslim family law have maintained that

the decision confirms the recently established Indian law that there is actually no real

conflict between the Qur’anic foundations on the husband’s obligations towards a

divorced wife and the modern welfare statutes obligating husbands to look after the

future welfare of their divorced wives24.

As was to be expected, the decision was greeted with widespread protest and

condemnation by the fanatical elements and, perhaps for avoiding a Shah Bano

situation, the Appellate Division of the Supreme Court overruled it. The apex Court held

that the word mataa in the Qur’anic Verse II: 241 have never been understood as

maintenance or provision in the sense of legal, formal and regular supply of necessaries

of life and livelihood to the wife. It is a “consolatory offering” or parting gift to a divorced

woman as comfort and solace for the trauma she suffers from divorce.

Being a gift, it has never been judicially enforceable. But the Court was also of the

opinion that statutory provisions may be made, binding the husband to maintain an

unjustly treated and destitute divorced wife, as has been done in several Muslim

countries. Such beneficial legislation, the Court held, will not be against Muslim personal

law. On the contrary, it will be in consonance with the ideas of justice, tolerance and

compassion that the Qur’an enjoins upon all righteous Muslims25.

24 42 (1990) DLR (HCD) 45025 14(1994) BLD (HCD) 467

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Custody of Children Custody of minor children is a very delicate and sensitive issue and it usually arises

when the spouses are living separately or the marriage has broken down and the parties

are divorced. Like India and Pakistan, the hizana or custody law of minor children is

governed in Bangladesh by a combination of statute laws, i.e., The Guardian and Wards

Act, 1890, Muslim personal law, case-law, and court’s concern for children’s well-being.

Irrespective of what the statute law or Shari‛a law provides, the paramount consideration

is the welfare of the child and it is the court which decides what is in the best interest of

the child. This was emphatically asserted by a Division Bench of the High Court Division

of the Supreme Court of Bangladesh in Ayesha Khanum v. Major Shabbir Ahmed, 46 DLR (1994) 399. In delivering the judgment of the Court, Hasan J., held that the

provisions of personal law of the parties, even those of statute law, are subject to the

“paramount need of the welfare of the child.” In support of this view he cited Smt. Surinder Kaur Sandhu v. Harbux Singh Sandhu, AIR 1984 SC 1224, where the

Supreme Court of India said: “Section 6 of the Hindu Minority and Guardianship Act

1956 constitutes the father as the natural guardian of a minor son. But that provision

cannot supersede the paramount consideration as to what is conducive to the welfare of

the minor.

In Md. Abu Baker Siddique v. S.M.A. Bakar, 38 DLR (AD) (1986) 106, the Appellate

Division of the Supreme Court of Bangladesh had to deal with the custody of an eight

years old boy. His father divorced his mother and claimed his custody. The boy was

suffering from a serious disease and it was established that the mother, a doctor, would

be able to look after him better. Under Hanafi law the father was entitled to the custody

of a son above seven. The Court considered a large number of earlier cases and found

that these decisions, while recognizing the rules of Islamic law as to who is entitled to

the custody of a minor child with reference to his or her age and sex, simultaneously

took into consideration the welfare of the minor in determining the question.

As to the binding nature of Islamic law regarding custody of a minor child, pleaded by the

father’s counsel, the Court held that “there is absolutely no reason to differ from this

position as long as the particular rule of law to be applied is found either in the Quran or

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Sunnah, nor is there any reason to differ from a clear interpretation of any rule of the

Quran or formulation of principle based on Quranic text represented by the dominant

opinion of a particular school of law, such as Hanafi, one of the four major schools of law

governing Sunnis in Bangladesh.”26 But the custody rules are only juristic views and are

not based on the Qur’an or Sunnah. No consensus having been established among the

jurists, these rules differ from school to school. The Court cited with approval the rule

laid down in Mst. Zohra Begum v. Sh. Latif Ahmed Munawwar, PLD 1965 (W. P.) Lah. 695, that, as there is no Qur’anic or hadith texts on the point, it would be

permissible for the present day courts to differ from the rules of hizana stated in text

books like the Hedaya. Accordingly, the Court decided that the welfare of the child

required that his custody should be given to the mother. The raison d’etre of the decision

leads a scholar to comment:

This assumption that an absence of direct Quranic provisions entitles one to discard

norms of Islamic Law can ultimately undermine the authority of a whole range of rules

and norms. Apparently such ramifications were not central to the Court’s concerns in this

particular case. Rather, this assumption ostensibly emboldened the Court to advance

and fortify the “primacy of welfare” as the determining criterion. Such an understanding

of hizanat had already been accepted in Pakistan, and the Bangladesh Supreme Court

used and reaffirmed this position in Siddique v. Baker27.

Is a mother bound by a voluntary agreement surrendering her right of custody of her

minor children to their father? This was the primary issue in Nargis Sultana v. Amirul Bor Chowdhury, 50 DLR (1998) 532. The mother, a government servant, divorced her

husband by exercising power of divorce delegated to her and, to avoid unpleasantness

of litigation, voluntarily agreed to hand over the custody of the twin sons to their father on

condition that she would have access to them whenever she desired. She filed a custody

suit on the grounds that the father denied her access to them, did not properly look after

them and their health was suffering. The Court held that in custody cases the welfare of

the minor was the dominant consideration, not what the parents had agreed upon. An

agreement between the parents cannot exclude the court’s jurisdiction to decide what

26 14(1994) BLD (HCD) 46727 Supra note 24.

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will serve the interest and welfare of the children best. The Court directed the father to

hand over the two sons to their mother.

There is a fundamental distinction between custody and guardianship. Pearl and Menski

aptly explained it: “Custody has more to do with practical matters, such as care and

control of the child and therefore the rights and obligations of mothers and persons who

might take their place while, guardianship centers’ on the legal rights and obligations of

the child’s father and his representatives.”28 In the judgment of the Privy Council in

Imambandi v. Mutsaddi, (1918) 45 I. A. 73, delivered by Syed Ameer Ali, J., it was said

that “the mother is entitled only to the custody of the person of her minor child up to a

certain age according to the sex of the child. But she is not the natural guardian; the

father alone, or, if he be dead his executor (under the Sunni law), is the legal

guardian.”29 If there is no father‘s executor, the grandfather of the children and, if he is

dead, his executor is their legal guardian. In the absence of any legal guardian, it is the

duty of the judge to appoint one. Rehanuddin v. Azizun Nahar, 32 DLR (1981) 139, is

a unique and welcome decision relating to guardianship of a minor in the sense that in

the presence of the grandfather the Court appointed the child’s mother as its guardian.

In this case the grandfather was the natural guardian of the child under Muslim law. The

District Judge found that the mother of the child had not been well treated in the father-

in-law’s house and perhaps apprehended from this that the minor boy might not also get

a better treatment. Accordingly, he held that although the grandfather was the natural

guardian of the minor under Muslim law, “the mother in facts and circumstances of the

case was entitled to be appointed as the guardian.” The High Court agreed with the

decision. The Commission on Marriage and Family Laws, appointed by the Pakistan

Government for reform of Muslim personal law in 1955, had suggested that in the

absence of the father it should be open to the court to appoint any person as guardian of

the property of the minor including the mother, if it was in the best interest of the minor.

“To give such discretion to the court”, said the Commission “does not run counter to any

injunction of the Holy Qur’an. In modern times there are a number of mothers who would

be in a position adequately to manage the property of their minor children.”30 Needless to

28 Ibid., at p.5429 Id.

30 PLD 1969 (SC) 187; 21 DLR (SC) 123

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say, their suggestion was not accepted. In Rehanuddin v. Azizun Nahar, the Bangladesh

court has exactly done what the Commission had suggested in 1956.

The above decision is a good example of judicial activism in Bangladesh. In fact, the

cases discussed above show that in custody matters the higher courts lean in favor of

mothers. It is more so in the lower courts. A study of unreported custody cases of the

Family Courts of Dhaka city has shown this healthy trend31. As the study finds, the

favorable attitude of these courts has encouraged mothers to put forward claims for

custody of children above the age limit, laid down by the classical jurists of the Hanafi

school, and rely on the welfare doctrine of custody. We have discussed the custody

cases of Bangladesh in detail for two reasons. First, custody cases often evoke

primordial emotions and lead to bitterness and litigations the victims of which are the

children. Second, in the unequal fight for custody between the sexes, it is often the

women who lose because of their social disabilities and financial constraints. Favorable

court attitude is not enough; affirmative action is necessary for unhindered access of

women to the courts for justice.

Protection of Pardanashin Women The role of the Bangladesh courts in giving liberal interpretation, wherever possible, to

the rules of Muslim family law and extending legal protection to women has been

discussed above. One class of women needing special protection of the courts are the

pardanashin women who are excluded from social intercourse and communication

except with very near relations, that too within the four walls of their residence. In suits

where they were parties, special rule of onus was devised by the Privy Council to give

them protection. The rule was subsequently extended to the protection of ignorant and

illiterate, though not pardanashin, women. In Siddique Ahmed v. Gani Ahmed, 33 DLR (AD) (1981) 1, the Appellate Division of the Supreme Court reiterated the Privy Council

rule that in case of any dispute regarding the validity of a transfer of property by the

pardanashin lady, the onus is always on the donee or transferee to satisfy the court that

she substantially understood the disposition and executed it with full understanding of

what she was doing and of the nature and effect of the transaction. Proof of independent

advice is not essential unless there are special circumstances, e.g., where the donee or

transferee stands in a position of confidence or fiduciary relationship, in which case he

31 as referred to in 40 (1988) DLR (HCD) 305

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will have to prove that the lady had independent advice from disinterested advisers. In

Rokeya Khatun v. Alijan, 34 DLR (AD) (1982) 266, the son obtained his 90 years old

mother’s thumb impressions on some stamp papers, telling her that he required it for

proper management of her property. He used the documents to transfer her entire

property to him and subsequently transferred it to Alijan, the respondent, depriving his

sister Rokeya, the appellant, of her share of inheritance. The Appellate Division of the

Supreme Court held that, as the son was in a footing of fiduciary relationship with his old

mother, the burden of proof that she had full knowledge and comprehension of the terms

of the transaction was upon those who wanted to uphold the disposition. It must be

proved that the disposition was her mental act as its execution was her physical act. As

the subsequent bonafide transferee of the property, the respondent steps into the shoes

of the son and the onus of proof regarding the validity of the transaction is on him. In the

earlier case of Siddique Ahmed v. Gani Ahmed the Appellate Division had held that the

special rule of protection given to the pardanashin lady is confined to her only and is not

available to a person upon whom her property might have devolved in the absence of

the impugned disposition. They revised this view and now held that the person upon

whom the property of the pardanashin lady would devolve by operation of law and who

in the facts represents her can challenge the legality of the disposition32. In other words,

the protection available to the pardanashin lady, on her death may be extended to her

daughter who was deprived of her rightful share of her mother’s property.

Existing family court and problems:Generally, substantive and procedural custodial issues continue to be governed by the

Family Courts Ordinance of 1985 and The Guardians and Wards Act of 189033.  Family

law courts have jurisdiction for matters related to guardianship and custody of children34. 

Bangladeshi family law courts are directed to consider several factors when considering

the appointment of a guardian of a minor, including: the best welfare of the minor, "the

age, sex, and religion of the minor, the character and capacity of the proposed guardian

and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any

32 Civil Revision No. 273 of 1986; Moqbul Ahmed vs Sufia Khatun and others, 40 (1988) DLR (HCD) 305; Judgment delivered on January 11, 198833

34 14(1994) BLD (HCD) 467

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existing or previous relations of the proposed guardian with the minor or his

property."35  Further, courts also may consider the minor's preference if the minor is "old

enough to form an intelligent preference."36 In accordance with this legal framework,

judges generally follow the personal or religious law of the minor when making

guardianship and custodial decisions.

According to Muslim law, the father is the natural and legal guardian of the person and

property of his minor children37.  Although, under Shari'a law and the classical Hanafi

position, a mother has a right to physical, not legal, custody of her child until age seven

for males and puberty for females38.  However, a mother may lose custody of her

children if she remarries a non-relative or someone not barred to the children by the rule

of consanguinity39.

It is noteworthy that these religious rules do not appear to be absolute.  A mother may

always apply for custody of her child because courts have occasionally diverted from the

traditional religious child custodial rules based the best interests of the minor as provided

in the Guardians and Wards Act40.

35 The Guardians and Wards Act (1890), Section 17 (2), available at: http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=6436 The Guardians and Wards Act (1890), Section 17 (3), available at: http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=64.37 Kamal, Sultana, Law for Muslim Women in Bangladesh, available at: http://unstats.un.org/unsd/vitalstatkb/Attachment390.aspx.; Kristine Uhlman, Overview of Shari'a and Prevalent Customs in Islamic Countries, available at: http://www.lawmoose.com/Documents/UmHaniarticle.pdf.

38 Sultana Kamal, Law for Muslim Women in Bangladesh, http://unstats.un.org/unsd/vitalstatkb/Attachment390.aspx39 Id. at Section 4.40 Id.

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Recommendations Family court’s Act – 1985 should be amended.

Government should amend religious personal laws, such as: Hindu law of

Bangladesh. Hindu Marriage Registration Act - 2010

Government should amend customary hereditary laws which accommodate

women’s property inheritance in personal law.

Community people should be united to fight against psycho-social mal-practice.

Since the matter is bargaining power to, power over and power of the people, so

voice should be raised with more argumentative.

People should sit together and discuss the dispute and decide not to discriminate

women.

Parents should give their daughters a share along with the sons.

Government should formulate national laws to become strong women

community.

Assess needs to measure for access to justice at all level and aware about

holistic behavior approach.

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