In Bangladesh, divorce between a Muslim couple is governed by Islamic personal law and supplemented by two legislations such as Muslim Family Laws Ordinance, 1961 and the Dissolution of Muslim Marriages Act, 1939. Though divorce is presumed to be a male dominated right but in Bangladesh, women do also have legal remedies to avail divorce under certain conditions. In this writing, the legal avenues of a Muslim woman in dissolving the marriage will be enunciated.
Forms of Divorce Available to Muslim Women
According to Sharia and statutory provisions of Bangladesh, there are three forms available to a Muslim woman in dissolving her marriage.
- Khula (Mutual Divorce or Court Order): Khula is a right for a Muslim woman to initiate the divorce process, where she has to return the entire dower money (Mahr) or part of it to her husband upon a mutual agreement in exchange of his consent. If the husband agrees, this divorce is completed mutually outside court. However, if the husband refuses, the wife may apply to the Family Court.Here, the Family Court gets a discretionary power in granting the divorce if it believes that the marriage has been broken down irreparably.
- Talak-e-Tafweez (Delegated Divorce): This is quite a easy form of divorce for a Muslim woman, as this process does not require the wife to go the Court. In Talak-E-Tafweez, the husband may delegate the power of giving divorce to her wife via a clause in the Nikah Nama (Marriage Contract). This delegation is contained in Clause No.18 in the Nikah Nama which empowers the women to give divorce unilaterally to her husband upon following certain procedures.
- Faskh or Judicial Divorce: Faskh or Judicial Divorce is governed by the Dissolution of Muslim Marriages Act, 1939, where a Muslim woman can seek for divorce in the Family Court on specific grounds. Section 2 of the said Act provides the grounds and those are;
- The husband has denied or failed to provide maintenance for two years.
- He has been missing for four years or more.
- He has been convicted and sentenced to imprisonment for at least seven years or more.
- He has denied (without any reasonable cause) or failed to fulfill marital obligations for three years.
- The husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961.
- He has been impotent at the time of marriage and continues to be so.
- He treats his wife with cruelty, either physically or mentally.
- The wife was married before the age of 18 and wants to repudiate it before 19.
- The husband has become insane or suffers from a serious disease.
- Any other ground which is valid under Muslim Law in dissolving a marriage.
Rights of a Muslim Woman after Divorce
- The wife can seek for the unpaid dower (mahr).
- She can claim for the maintenance for the Iddat period (three menstrual cycles or about three months).
- She can claim the custody and maintenance for her children.
- She can initiate separate proceedings for recovery of dowry or domestic violence if applicable.
Conclusion
Though Sharia and Statutory provisions of Bangladesh allow women to give divorce under certain circumstances, still women face social stigma in availing this right especially in rural areas. Legal awareness and social support may reduce the burden of a women in ensuring and realizing these rights.
LL.B (Hon’s), LL.M
Advocate, Dhaka Judge Court.
Associate, AinPal.
