Navigating Divorce Laws and the Procedures of Divorce in Bangladesh

Introduction?

Divorce, a sensitive and complex issue, holds significant implications for individuals and society alike. In Bangladesh, where cultural norms, legal frameworks, and socio-economic factors intersect, divorce takes on multifaceted dimensions. This article delves into the landscape of divorce in Bangladesh, examining its historical context, legal procedures in various religions, societal attitudes, and impacts on various stakeholders.??

Historical Context?

The history of divorce in Bangladesh is deeply rooted in its societal and legal evolution. Traditionally, divorce was rare and stigmatized, with religious and cultural norms emphasizing the sanctity of marriage. However, over time, societal changes, including urbanization, educations, and economic empowerment, have influenced attitudes towards divorce.??

Causes of Divorce?

Several factors contribute to the rising rates of divorce in Bangladesh. Economic pressures, incompatible marriages, domestic violence, extramarital affairs, and dowry-related disputes are among the primary causes. Additionally, cultural expectations regarding gender roles and familial obligations often exacerbate marital conflicts.??

Legal Framework?

Bangladesh's legal system provides avenues for divorce through both religious and secular laws. Islamic law governs divorce for Muslims, while the Special Marriage Act and the Family Courts Act apply to interfaith and civil marriages, respectively. Despite legal provisions, the divorce process can be arduous, particularly for women, due to societal norms and bureaucratic hurdles.??

Divorce in various laws?

Muslim law ?

Followings are the relevantAct, Provision and Laws in matter to divorces for Muslims in Bangladesh-?

• Muslim Family Law Ordinance, 1961.?
• Dissolution of Muslim Marriage Act, 1939?
• The Family Courts Ordinance, 1985?
• The Muslim Marriages and Divorces (Registration) Act, 1974?

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Section 6 of the Marriages and Divorces (Registration) Act, 1974 provides that a Nikah registrar may register divorce affected under Muslim law within his jurisdiction on application being made to him for such registration. If a notice was served and Talaq was registered in accordance with law stated according to the process a legal Divorce or Talaq will be executed.?

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Hindu law??

In Hindu personal law there is no mention of divorce or dissolution of marriage as Hindu marriage is considered a divine bond and a sacrament. In Hinduism marriage is, therefore, a sacred bond that cannot be broken by divorce by husband and wife. Thus, Hinduism puts high importance on marriage and does not approve of dissolution or divorce.?

Relevant Laws and Provisions related to Hindu Divorces in Bangladesh-?

• The Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946?
• Hindu Marriage Registration 2012?
• Hindu Marriage Registration Rules, 2013?
• The Family Courts Ordinance- 1985?

In Bangladesh, there exists no separate law on Hindu Marriage and Divorce. However, there is an Act named The?Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946. Under this Act, A Hindu married woman can ask for separation and maintenance from her husband upon satisfying the grounds that are mentioned in section 2 of the Act.?

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Others law?

There exists another law of divorce in Bangladesh which is called the Special Marriage Act, 1872.? It also covers some marriages. Section 17 of this Act has mentioned that the Divorce Act, 1869 shall apply to all marriages contracted under this Act, and any such marriage may be declared null or dissolved in the manner therein provided, and for the causes therein mentioned, or on the ground that it contravenes some one or more of the conditions prescribed in clauses (1), (2), (3) or (4) of section 2 of this Act.? ? The Divorce Act, 1869 contains the dissolution of marriage, nullity of marriage and judicial separation. These laws are applicable for all citizens of Bangladesh.?

Divorce Procedure in Terms of Muslim?

The process of Muslim divorce in Bangladesh just in three steps to divorce for both Husband and Wife wanting separation:??

1. Giving Notice in written?

1. ?Facing the Arbitration Board?

1. After expiry of 90 days, taking a registration certificate from Registrar.? ?

The above three steps are also applicable in case of wife. The wife can file a suit under the Muslim Family Law Ordinance 1961 for dower money and maintenance for herself and the children living with her in a family court which is called Civil suit. Section 7 of the Ordinance provides the grounds relating to divorce.?

Divorce is the legal dissolution of the material bond between the parties complying with the requirements of the law. Nevertheless, Islamic law means a distinction between the breakup of the marital relationship by the party filing for divorce. In general, Muslim law provides for two forms of divorce that include-?

• (i) Extra-judicial divorce and??
• (ii) Judicial divorce.??

Extra-judicial divorce consists of three types-??

• Divorce by the husband (talaaq, ila, zihar),?
• Divorce by the wife (talaaq-e-tawfeez, lian) and?
• Divorce by mutual consent (khula, muba’rat).?

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Here the Talaq classification in details:?

1: Talaq by the Husband??

Simply ‘Talaaq’ is a divorce by the husband. If the husband pronounces Talaaq once during a Tuhr that leads to abstinence from sexual intercourse to complete the Iddat duration, the Talaaq will become successful. The Tuhr period is the interval between menstruations.?

2:?Talaaq-e-Tawfeez by Wife?

Talaaq-e-Tawfeez is a divorce procedure in which the wife may, on her own behalf, renounce her marriage in accordance with the delegation provided by her husband. Now, this is a bit complicated, as the provision of this Talaaqhas to be drawn up in the Niqahnama under Section 18 with the permission of the husband.?

?3:?Talaaqby mutual agreement?

Here both husband and wife through their mutual participation aims for a separation. It’s also termed as Mubarat.?Mubarat is also one kind of dissolution of marriage where both of the parties want mutual separation and the aversion is mutual.?

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Divorce Procedure by Husband:?

Men may seek divorce by-?

• Pronouncing Talaq and then?
• Giving written notice to the chairman of the union parishad or other appointed official and?
• A copy of papers sends to his wife.?
• The chairman is then bound to constitute an arbitration council charged with the task of attempting reconciliation between the parties.?
• If such efforts fail, divorce is generally effective after ‘Iddat’?– a three-month period that must pass before the divorce becomes effective – or, if the wife is pregnant at the time of talaq, at the end of her pregnancy, whichever occurs later.?

Divorce Procedure by Wife:?

According to section 8 of the?Muslim Family Laws Ordinance, 1961, if the wife gets right to divorce by delegation, she may exercise such right in the same manner as the husband (provided in section 7) so far applicable.?

Moreover, Under the?Dissolution of Muslim Marriages Act, 1939?a wife shall be entitled to obtain a decree for dissolution of her marriage under Section 2 of the Act. The grounds for a decree for dissolution of marriage under this section are as follows:??

1. If the husband has been missing or not found for four years?

1. If for 2 years the husband has failed to provide his wife maintenance.?

1. If the husband has been sentenced to or imprisoned for 7 years or more?

1. If the husband has failed to perform a marital obligation for 3 years or more?

1. If the husband was impotent or continue to be so.?

1. If the husband has failed to fulfill marital responsibility for 3 years or more?

1. If for period of 2 years the husband has been insane and suffering from any other critical diseases??

1. If the wife has been married off before the age of 18 years and she repudiates the marriage before attaining 19 years of age.?

1. If the wife is being treated with cruelty by her husband which includes:?

• Habitual assault or physical torture?
• leading an immoral life?
• forces the wife to lead an immoral life?
• disposes of wife from her property?
• obstructing her in performing religious activities?
• does not treat his wife equally like the other wives (If the husband has several wives)??
• Or any other ground as provided in Muslim Law.?

Moreover, the?Muslim Marriages and Divorces (Registration) Act, 1974?mentions about registrations of Muslim marriage and divorce. As per section 6 of the Act, A registrar may register a divorce under Muslim Law on the application being made to him for registration.??

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Divorce in Hindu Marriage:?

A Hindu married woman can ask for separation and maintenance from her husband upon satisfying the grounds that are mentioned in section 2 of the “The?Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946”. As per this section, a?Hindu married woman?shall be entitled to a separate residence and maintenance from her husband on either of the following grounds:?

1. If the husband is suffering from a disease which is not contracted from his wife?

1. If the husband behaves cruelly with his wife?

1. If the husband abandoned his wife without her consent or desire?

1. If he Re-Marries?

1. If the husband converts to another religion other from Hinduism?

1. If he keeps a mistress or lives with her?

1. For other justiciable reason?

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However, a?Hindu wife?shall not be entitled to a separate residence or maintenance if she converts to any other religion or fails to comply with the order of the competent court for the restitution of conjugal rights.?

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Dissolution of Marriage?

Instead of Divorce, a Hindu couple can file a petition at the Family Court to obtain Dissolution of Marriage under section 6 The Family Courts Ordinance- 1985.?

The steps for obtaining dissolutions of marriage are described below-??

1. File a Case?

Firstly, A husband or wife can institute a suit under the ordinance by presenting a plaint at the family court for dissolving the marriage. The plaint shall disclose material facts related to the dispute between the husband and wife.?

1. Contesting the Written Statement?

At a fixed date the parties shall be present at the Family Court. The defendant shall present his written statement along with supporting documents.?

1. Examination of the Petitions?

Within 30 days of submission of a written statement, the court shall fix a date for pre-trial proceeding. In the pre-trial hearing examine the petition along with other documents and attempt for reconciliation if possible.?

1. Framing of the Issues?

After that, if the court fails to reconcile between the parties then issues shall be framed and a date shall be fixed within 30 days.?

1. Witness Examination?

On the fixed date the court shall examine the witness and record the evidence.?

1. Discussion of Negotiations between the Parties?

After the recording of evidence of the parties and the witnesses, the court shall once again try to reconcile between the parties to the suit.?

1. Decree for Dissolution of Marriage?

After that, if the court is satisfied that the parties shall be granted dissolution the court shall do so by enforcing a decree for dissolution of the marriage between the parties.?

An aggrieved party may appeal against the decree passed by the Family Court.?

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Registration of Divorce?

Hindu Marriage Registration Act, 2012 and Hindu Marriage Registration Rules, 2013 was introduced to validate the registration of marriage between Hindu couples. Registration of marriages under Hindu law was not possible in Bangladesh until the adoption of the Hindu Marriage Registration Act. Under this Act, the rules were laid down in the Hindu Marriage Registration Rules, 2013.?

There was no mention of registration of marriage in the Hindu system of marriage. Without registration, a marriage could not be proved, and as a result dissolution of marriage was not possible. Section 3 of the Act suggests that such registration is discretionary, and the marriage will be considered as valid even if it has been not registered. Section 6 of the act provides about the procedure of marriage registration. The registration shall be completed as soon as the marriage has been solemnized and either party may apply for the Registration. Previously, there was no marriage registration for Hindu couples, making it impossible to confirm the relationship from a legal perspective.??

Divorce in Others Marriage:?

?Divorce in Christian, Buddhist and other Marriages cannot be induced by a declaration of divorce by either side or by mutual agreement, except by a court order. The provisions for the dissolution of these marriages by order of the court were included in the Divorce Act of 1869. Under the provisions of this Act, any husband may make a petition to the District Judge’s court or to the Supreme Court of Bangladesh for the dissolution of his marriage on the ground that his wife is guilty of adultery. Likewise, any woman can make such a petition to either court for the dissolution of her marriage on any of the following grounds:?

• that the husband, after marriage, has converted to any religion and has married another woman?
• ?that the husband is guilty of incestuous adultery?
• that the husband is guilty of adultery with polygamy?
• that the husband is guilty of marriage with another woman and adultery?
• that the husband is guilty of rape, sodomy or bestiality?

• that the husband is guilty of adultery?
• that the husband was guilty of adultery combined with desertion for two years or more without a reasonable excuse.?

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If the court is satisfied based on evidence of the alleged ground and is satisfied that the complaint is not collusive or that there is no connivance or condonation of the alleged act of adultery, an order for dissolution of the marriage is issued.?

A district judge can, subject to approval by the High Court Division, issue a decree for the dissolution of marriage. The Board of Three Judges of the High Court Division may, by majority opinion, approve such a decision after hearing or further examination or taking further evidence.?

?Following the dismissal by the district judge of the petition for dissolution of the marriage, the petitioner may submit a similar petition to the High Court Division. The three judges of the High Court Division may also, by majority opinion, issue an order for the dissolution of marriage on a petition filed before the High Court Division. Either of the above two courts may also issue an order for the nullity of marriage on any of the following grounds-?

• that one of the parties was powerless?
• that the parties are within the forbidden degree of consanguinity or affinity?
• that either party is insane at the time of marriage?
• that the former husband or wife of either party existed at the time of marriage, and that marriage was then in effect.?

Once, the husband or wife can, without a reasonable excuse, seek a judicial separation order from either court on the grounds of adultery, abuse or desertion for two years or more. Such an order for judicial separation may be overturned by the court on the basis that it was imposed in its absence and that there was a reasonable excuse for the suspected desertion. The court may also issue an order to protect the estate of a deserted woman.?

Likewise, an order for the restoration of conjugal rights may also be issued if either the husband or the wife has withdrawn from the other’s business without a reasonable excuse.?

Public Attitudes?

Attitudes towards divorce in Bangladesh reflect a complex interplay of cultural, religious, and socio-economic factors. While traditional beliefs may still stigmatize divorcees, modernization and exposure to global influences have led to greater acceptance, especially in urban areas. However, societal pressures, family honor concerns, and the fear of social ostracism continue to influence individuals' decisions regarding divorce.??

Impacts on Stakeholder?

?Divorce affects various stakeholders, including spouses, children, extended families, and communities. Divorcing couples often grapple with emotional distress, financial hardships, and legal battles. Children may experience psychological trauma and adjustment difficulties, while extended families may face social stigma and disrupted relationships. Moreover, divorce can have broader societal implications, including changes in family structures and gender dynamics.??

Challenges and Solutions?

Addressing the challenges surrounding divorce in Bangladesh requires a multifaceted approach. Efforts to promote gender equality, enhance legal protections, provide counseling and mediation services, and raise awareness about marital rights and responsibilities are essential. Moreover, fostering a supportive societal environment that respects individual choices and promotes empathy and understanding can help mitigate the stigma associated with divorce.?

Conclusion?

Divorce in Bangladesh is a complex phenomenon shaped by historical, cultural, legal, and socio-economic factors. While traditional norms and societal pressures continue to influence attitudes towards divorce, evolving dynamics underscore the need for comprehensive reforms and support mechanisms. By addressing the root causes of marital conflicts, promoting legal empowerment, and fostering societal acceptance, Bangladesh can navigate the challenges of divorce while fostering greater resilience and inclusivity within its communities.?