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2017 | OriginalPaper | Chapter

Cross-Border Divorce Regime in Bangladesh

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Author: Sanwar Hossain

Publisher: Springer Singapore

Published in: Private International Law

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Abstract

About 40 Million Bangladeshi citizens live in foreign countries; many of whom were married in Bangladesh under Bangladeshi laws and when they decide to divorce they face a dilemma in choosing the legal regime for their divorce procedure. This chapter focuses on divorce procedures for Bangladeshi citizens married under the laws of Bangladesh who are now living abroad. The current domicile or citizenship of these people are varied as they have either become foreign national or have attained dual citizen or still holding Bangladeshi citizenship. The chapter describes the available divorce procedure for them and the procedure to resolve related matters in Muslim marriage, child custody, child support, distribution of marital property etc. The primary legislation of divorce registration in Bangladesh; The Muslim Family Laws Ordinance 1961 is to a large extent silent regarding cross border divorce procedures. However the simple procedure for Muslim Divorce in Bangladesh attracts the concerned population to choose Bangladeshi regime. The acceptability of divorce under Bangladeshi laws in the countries like USA, UK, Australia, Canada and EU countries have also been discussed as well as Bangladesh’s association with Hague Conference on Private International Law in family matters convention. The author of the chapter from his experience in representing the non-resident Bangladeshi clients shares the practical legal obstacles and ambiguities.

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The Muslim Family Laws Ordinance 1961 is the only legislation that incorporates the Muslim divorce procedure.

The Divorce Act 1869 codified the Christian Divorce system in Bangladesh. Section 10 of the Act provides grounds upon which parties to a Christian marriage may repudiate dissolution of marriage.

Bangladesh enacted the Hindu Marriage Registration Act in 2012. The Government of Bangladesh is also considering a Hindu Divorce Registration Act. The move is being debated within and beyond the Hindu community. One of the apprehensions of the opponents of the move is that the enactment of such a law may give rise to divorce numbers among the Hindu community.

The concept of legal separation is different in the context of Hindu family laws in Bangladesh. In no situation can a person belonging to Hindu religion file a suit for marriage dissolution. However, under the Hindu Women’s Right to Separate Residence and Maintenance Act, 1946 a Hindu woman has the right to obtain limited remedy in respect of separate residence and maintenance. In such case, the woman claiming the rights has to prove the grounds.

The Family Courts were established due to the failure of the traditional civil court in Bangladesh to deal successfully all the family matters. The objective of this 1985 law was to provide quick, effective and amicable disposal of some specific family matters.

Section 17 (1) of the 1985 Ordinance reads: Subject to the provisions of sub-section (2), an appeal shall lie from a judgment, decree or order of a Family Court to the Court of District Judge.

Krishnapada Talukder v Geetasree Talukder (1994) HCD, 14 BLD 415, see also Zahidul Islam Biswas, ‘The Confusions And Uncertainties Thwarting Family Courts In Bangladesh’ (2006) 10 Bangladesh Journal of Law 97.

Section 5 of the Family Courts Ordinance 1985 provides that:-

Jurisdiction of Family Courts—Subject to the provisions of the Muslim Family Law Ordinance, 1961, a Family Court shall have exclusive jurisdiction to 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 and guardianship.

Nirmal Kanti das v Sreemati Biva Rani, (1994) HCD 14 BLD 413.

Pochon Rikkssi Dasv KhukuRani Dasu and Others (1998) AD 50 DLR 47.

The Divorce Act, 1869 s 10: Any husband may present a petition to the District Court or to the High Court Division, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery. Any wife may present a petition to the District Court or to the High Court Division, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman; or has been guilty of incestuous adultery, or of bigamy with adultery, or of marriage with another woman with adultery, or of rape, sodomy or bestiality, or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce mensa et toro, or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.

Surah An- Nisa, Ayat (verse) 130, Holy Quran.

Hefzur Rahman v Shamsun Nahar and another [1999] AD, 4 BLC 14 (AD).

Shafi’iyyah was the third school of Islamic jurisprudence, and was named after Muhammad ibn Idris al- Shafi’i (767–819). The sources of legal authority are the Qur’an and the Sunnah. Ijma’ and Ijithihad (community customs and thought of scholars) are of lesser authority. The scholar must interpret the ambiguous passages of the Qur’an according to the consensus of the Muslims, and if there is no consensus, according to qiyas. http://www.philtar.ac.uk/encyclopedia/islam/sunni/shaf.html, accessed 01 August 2016.

(n 13).

The Act intended to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie.

Karin Carmit Yefet, The Constitution and Female-Initiated Divorce in Pakistan: Western Liberalism In Islamic Garb, (2011) 34 Harvard Journal of Law & Gender 553, 578, See Muslim Family Laws Ordinance 1961.

Elisa Giunchi, Adjudicating Family Law in Muslim Courts, (Routledge, 2013) 71.

Ibid., Also see, Martin Lau, The Role of Islam in the Legal System of Pakistan (Brill 2006).

Muslim Family Laws Ordinance 1961 introduced important changes in the Anglo- Muhammedan law of the Indian sub continent, in the geographical areas of present Pakistan and Bangladesh. See generally Lucy Carroll, ‘The reception of the Muslim Family Laws Ordinance, 1961, in a Bangladeshi village: a critique of Jean Ellickson, ‘Islamic institutions: perception and practice in a village in Bangladesh’ (1978) 12(2) Contributions to Ind. Soc. 279. Munir Muhammad, ‘Talaq and the Muslim Family Law Ordinance, 1961 In Pakistan: An Analysis’ (2011) 1 Spectrum of Int’l L 16. http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=1925704, accessed 10 June 2016.

Family Courts Ordinance 1985, The Act intended to establish Family Courts, prescribe jurisdiction and procedure for the same.

The Muslim Marriages and Divorces (Registration) Act 1974, section 6 prescribes the conditions for registration of divorce, section 6. (1) states A Nikah Registrar may register a divorce effected under Muslim Law within his jurisdiction on application being made to him for such registration. (2) An application for registration of a divorce shall be made orally by the person or persons who has or have effected the divorce.

Munir Muhammad (n 20) 17.

(n 13).

According to section 8 of the Muslim Family Laws Ordinance, 1961, “Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by talaq, the provisions of section 7 shall, mutatis mutandis (?), and so far as applicable, apply.”

Muslim Family Laws Ordinance 1961, (n 17) S. 8.

Ibid., S. 2(b).

Munir Mohammed, (n 20) 17.

(n 17) Muslim Family Laws Ordinance, 1961, section 2(a) provides the composition of Arbitration Council. According to this section an arbitration council consists of the Chairman and a representative of each of the parties to a matter dealt with in this Ordinance and where any party fails to nominate a representative within the prescribed time, the body formed without such representative shall be the Arbitration Council.

Ibid., Sub section (4) of the section 7 of Muslim Family Laws Ordinance 1961 stated that within thirty days of the receipt of written notice of pronouncement of talaq the Chairman will constitute an Arbitration council with a view to reconciliation among the parties.

Muslim Family Laws Rules 1961, Rule 5.

Ibid. S. 7(1), (4); see, Yefet (n 17) 579.

Rule 6 of the Muslim Family Laws Rules, 1961 provides that the chairman shall, by order in writing, call upon each such party shall, within seven days of receiving the order, nominate in writing a representative and deliver the nomination to the chairman or send it to him by registered post.

Abdus Sobhan Sarkar v Md Abdul Ghani [1973] HCD, 25 DLR (HCD).

Muslim Family Laws Ordinance 1961, S. 7(3).

Shafiqul Islam and others v State [1994] 46 DLR 700.

Notaries Ordinance 1961, S. 8(1) (a) and (g).

This is a practice undertaken by Dhaka City Corporation and other local Government organizations having power to act as the Arbitration Council as per the Muslim Family Laws Ordinance 1961 but there is no codified provision to support that.

Muslim Marriage and Divorce (Registration) Rules 2009, The Muslim Marriage and Divorces (Registration) Rules, 2009 are framed to determine the qualifications for appointment of a Marriage Registrar, fees payable to a Marriage Registrar and any other matter ancillary thereto.

Attila Ambrus, Erica Field and Maximo Torero, ‘Muslim Family Law, Prenuptial Agreements and the Emergence of Dowry in Bangladesh’ (2010) 125(3) The Quarterly Journal of Economics 1349.

The period of 90 days will start from the day on which notice is delivered to the chairman and not from the day on which the divorce ( Talaq) is pronounced. Therefore, if husband takes 10 days time to serve notice under sub section (1) of the 1961 Ordinance then it will be 100 days. However, it was held in Sayed Ali Nawaz Gardezi v Lt Col Md Yusuf [1963] SC, 15 DLR (SC) case that sub section (1) of the 1961 Ordinance requires the husband to give a notice of having pronounced talaq.

Muslim Marriages and Divorces (Registration) Act 1974, establishes Nikah registrar for the purpose of registration of Marriage and Divorce.

Muslim Marriages and Divorce Registration Act 1974, S. 9. It is a certificate issued under Muslim Marriage and Divorce (Registration) Rules 2009.

Talaqnama is the Divorce paper, see generally, T Hashmi, Women and Islam In Bangladesh (Springer 2000) 10.

(n 17) Muslim Family Laws Ordinance 1961 S. 7(1).

Ibid. section 7(1) of the MFLO only requires the husband to give notice “as soon as may be after the pronouncement of talaq.” It seems that husbands could simply circumvent the law by not registering their divorces, as the law remains silent on the consequences of non-compliance (other than threatening such husbands with relatively insignificant punishments); See Yefet (n 17) 579.

Abdul Aziz v Razia Khatun (1969) 21 DLR; Sayed Ali Nawaz Gardezi v Lt Col Md Yusuf [1963] SC, 15 DLR (SC); Ataul Hoque (Md) v Anwar A Karim [1999] AD, 4 BLC (AD) See Hossain, Kamrul “In Search of Equality: Marriage Related Laws for Muslim Women in Bangladesh”. (2003) 5(1) Journal of International Women’s Studies, 96–113. http://vc.bridgew.edu/jiws/vol5/iss1/6, accessed 3 June 2016.

(n 36).

Ibid.

[2004] 55 DLR 568.

Ibid.

According to section 6 of the Family Court Ordinance 1985 any person who wants to contract another marriage during the subsistence of an existing marriage shall have to obtain first permission his existing wife permission from the arbitration council. Without which the subsequent marriage will be illegal and liable to punishment.

(n 17) Muslim Family Laws Ordinance 1961, s 6(5).

Ibid. Under section 4 of the Act The government give licenses to such number of persons to be called Nikha Registrars to perform the registration of marriage and divorce performed under Muslim Law.

Ibid., section 7(3) of the Muslim Family laws Ordinance 1961 requires a mandatory 90 days notice. The ordinance does not make an exception in favour of Khula Talaq.

These are the cases where author was involved as Counsel.

(n 17) Muslim Family Laws Ordinance 1961, S. 2(b).

Power of Attorney Act 2012 and Power of Attorney Rules 2015. https://resource.ogrlegal.com/power-of-attorney-rules-2015-published/, accessed 4 June 2016.

[1918] 45 Ind. Cas 519.

[1967] PLD SC 580.

Muslim Family Laws Ordinance 1961, S. 7.

(n 60).

Ibid.

Civil Procedure Code 1908.

Ibid., S. 44A.

Ibid., S. 44A(1).

Ibid., S. 44A(2).

Id, S. 44A(3).

Ibid., section 14 of the Civil Procedure Code stipulates that “The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.”

Mahmudul Islam, Neogi Probir, The Law of Civil Procedure, Vol 1, Commentary on the Code of Civil Procedure and the Civil Courts, (Dhaka’ Mullick Brothers 2012).

Ibid., S. 13.

Mahmudul Islam, (n 70) 120–121.

Ibid., 126.

Ibid.

1975 AIR 105.

1991 SCR (2) 821.

Kondaiah Jonnalagadha, ‘Jurisdictional Issues in Enforcement of Foreign Divorce Decrees in India; An Analysis’ in Bimal P Patel (ed) India and International Law: Introduction (Martinus Nijhoff Publishers, 2008) 469–486, 475.

Abdul Jalil and others v. Mrs. Sharon Laily Begum Jalil (APPELLATE DIVISION) Civil Appeal Nos. 56–59 of 1995, see Faizunnessa Taru ‘Is joint custody compatible with the Islamic law? A discussion on child custody in Bangladesh as well as different contemporary countries of the world, (2016) 21 (3) IOSR-JHSS 61–69, 66.

Convention on the Recognition of Divorces and Legal Separations (adopted 1 June 1970, entered into force 24 August 1975); Convention on Celebration and Recognition of the Validity of Marriages (adopted 14 March 1978, entered into force 1 May 1991); Convention on the Law Applicable to Matrimonial Property Regimes (adopted 14 March 1978, entered into force 1 September 1992); Convention on the Law Applicable to Maintenance Obligations (adopted 2 October 1973, entered into force 1 October 1977).

Julie Macfarlane, Islamic Divorce in North America: A Shari’a Path in a Secular Society (Oxford University Press 2012) see generally. Prakash Shah, Distorting Minority laws, Religious and European Minority legal Systems, in Prakash Shah, Marie-Claire Foblets (eds) Family, Religion and Law: Cultural Encounters in Europe, (Routledge, 2015), 25. John, R.Bowen, ‘How Could English Courts Recognise Sharia’ (2010) 7(3) University of St Thomas Law journal, 411–435.

Macfarlane, ibid.

Fariha Ashfaq v Mohammed Ashfaq No. 01-14-00329-CV, Court of Appeal, Texas, April 28, 2015, 11.

Robert Epstein, ‘Recent Texas Cases Involving the Recognition of Foreign Divorce’. http://www.texasdivorceattorneyblog.com/2015/05/03/recent-texas-cases-involving-the-validity-of-foreign-divorce/, accessed 4 July 2016.

Family Law Act (United Kingdom) 1986. http://www.legislation.gov.uk/ukpga/1986/55/pdfs/ukpga_19860055_en.pdf, accessed 4 July 2016, See David Paul, 1995 Noel Coulson Memorial Lecture, The application of Islamic law in the English Courts. https://www.library.cornell.edu/colldev/mideast/isllaw.htm, accessed on 4 August 2016.

Ibid., S 46(1).

Ibid., s 46(2).

Id, s 46(2)(c).

Haque, Abu Saeed Mohammad Zahurul v Suraiya Begum Haque Appeal No. 12177, 1993.

Id.

Lucy Carroll, ‘Muslim Women and ‘Islamic Divorce’ In England’ ( WLUML, 1998). http://www.wluml.org/node/304, accessed 4 July 2016.

Md Hefzur Rahman v Shamsun Nagar begum [1999] AD, 51 DLR (AD); Sharmin Aktar, ‘Protecting Divorced Muslim Women’s Rights through Maintenance: A Comparative Analysis Based on the Present Legislative Reforms among the Muslim Community’ (2012) 3 Northern University Journal of Law.

Matrimonial property, or ‘matrimonial assets,’ is property acquired by either or both married spouses during their marriage, and includes the matrimonial home(s).

Dr. Faustina Pereira, ‘Post Divorce Maintenance for Muslim Women and the Islamist Discourse’ ( WLUML, 2000). http://www.wluml.org/node/334, accessed 4 July 2016.

Ibid.

Matrimonial and Family Proceedings Act 1984.

Section 15, part III of the Matrimonial and Family Proceedings Act 1984 provides that-the court shall have jurisdiction to entertain an application for an order for financial relief

(a)

either of the parties to the marriage was domiciled in England and Wales on the date of the application or was so domiciled on the date on which the divorce, annulment or legal separation obtained in the overseas country took effect in that country; or

(b)

either of the parties to the marriage was habitually resident in England and Wales throughout the period of one year immediately before the application or

(c)

parties to the marriage has beneficial interest in possession in a dwelling-house situated in England or Wales which was at some time during the marriage a matrimonial home of the parties to the marriage.

Private International Law, Muslim laws and Gender Equality, The Adjudication of Mahr in Scandinavian, English and French Courts, 92. https://www.duo.uio.no/bitstream/handle/10852/21802/86632.pdf?sequence=1, accessed on 3 August 2016, the author cites the example of Pakistan to prove the point.

Code of Criminal Procedure 1973.

100

AIR 1979 SC 362.

101

Lucy Carroll, ‘Pakistani and Indian Talaqs in English Courts’ (1981) 23(4) J Ind. L Inst. 589.

Title

Cross-Border Divorce Regime in Bangladesh

Book

Private International Law

Print ISBN: 978-981-10-3457-2

Electronic ISBN: 978-981-10-3458-9

https://doi.org/10.1007/978-981-10-3458-9