Bangladesh: Procedure and time involved in obtaining a divorce via the Muslim Marriage Registrar, a registrar and a "qadi" [qazi, kadi, kazi, Islamic judge] in Dhaka; the meaning of a divorce certificate compared to a divorce notice
|Publisher||Immigration and Refugee Board of Canada|
|Author||Research Directorate, Immigration and Refugee Board, Canada|
|Publication Date||25 November 1999|
|Citation / Document Symbol||BGD33257.E|
|Cite as||Immigration and Refugee Board of Canada, Bangladesh: Procedure and time involved in obtaining a divorce via the Muslim Marriage Registrar, a registrar and a "qadi" [qazi, kadi, kazi, Islamic judge] in Dhaka; the meaning of a divorce certificate compared to a divorce notice, 25 November 1999, BGD33257.E, available at: http://www.refworld.org/docid/3ae6ad4120.html [accessed 20 May 2013]|
(who is also a practising lawyer at the Supreme Court of Bangladesh and an Associate at the Chambers of Dr. Kamal Hossain and Associates) of Ain-O-Salish Kendra (
the divorce notice is the initial notice from one party (the divorcing spouse) intimating the Chairman of his/her intention to divorce. A copy of this notice is given to the other party (spouse). Once all the procedures of Sections 7 and 8 have been fulfilled and the divorce is effectuated, the City Corporation grants a divorce certificate which is then provided to the Registrar to be registered (28 Nov. 1999).
The Coordinator of the Dhaka-based women's development organization, Naripokkho, added that
A divorce certificate is a certificate of divorce. A notice is given when either party wishes to divorce. If there are no interventions for reconciliation, the divorce will be effective after the iddat periodwhich is from the date of the notice or the date the notice was received (iddat is usually 3 menstrual cycles) (25 Nov. 1999).
The Coordinator of Naripokkho stated that the procedure and time involved to obtain a divorce
depends on who is seeking the divorce. Men can do it fairly easily by issuing a notice and three month "iddat" period is required during which time reconciliation efforts maybe undertaken by the family or qadi or if in municipal area, by municipal corporation - in rural area - by the Union Chairman. During the "iddat period" husband is liable for maintenance.
Women can divorce similarly if they were given the power of divorce at the time of marriage. If she does not have that, then it becomes fairly long and complex--If the marriage is not registered, this becomes complex - one has to get a certificate that they were married, who the witnesses were and the amount of mahr fixed (25 Nov. 1999).
The Advocacy Coordinator of ASK provided the following detailed information on divorce procedures:
First of all, the law of divorce (talaq) of Muslim marriages in Bangladesh is governed by the Muslim Family Laws Ordinance 1961 (MFLO). The execution of the divorce proceedings is governed by the Family Courts Ordinance 1985.
There are different forms of dissolution of Muslim marriages (such as by the husband, or the wife or through mutual consent, or through Court decree). Section 7 of the MFLO states:
(1)Any man who wishes to divorce his wife shall, as soon as may be after
the pronouncement of talaq in any form whatsoever, give the chairman notice in writing of his done so and shall supply a copy thereof to the wife.
(2) Whoever contravenes the provisions of the sub-section (1), shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to ten thousand taka or both.
(3) Save as provided in sub-section (5), a talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration ninety days from the day on which the notice under sub-section (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of the notice under sub-section (1), the Chairman shall constitute an Arbitration Council for the purposes of bringing about a reconciliation between the parties, and the arbitration Council shall take all steps necessary to bring about such reconciliation.
(5) If the wife [is] pregnant at the time the talaq is pronounced , the talaq shall not be effective until the period mentioned in sub-section (3), or the pregnancy, whichever is later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section, from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.
Section 8 of the MFLO states: 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.
Please note that it is not for the Qadi to bring about the divorce. All the Qadi (who is a licenced registrar of marriages and divorces, empowered by the Muslim Marriages and Divorces Registration Act, 1974) does is maintain registers of marriages and divorces and provides an attested copy of the entry to the parties.
Thus, in regular circumstances, the time frame in which a dissolution of a Muslim marriage would take place is 90 days. The Chairman mentioned in the Sections above is the Chairman of the Dhaka City Corporation. Usually, due to social prejudice, when the divorce proceeding is brought by the wife, the authorities are very reluctant to expedite the case. Women are usually harrassed during the proceedings, which result in unduly long delays in getting the divorce; a loss of face in society due to social stigma attached to divorced women, and economic hardship as well. Sometimes this amounts to also physical threats. Cases where a woman initiates divorce proceedings frequently result in her having to give up her right to her dower, the custody of her children, and a forfeiture of her claims to marital property ( a concept yet evolving here). In classical Muslim law, the right to divorce lies exclusively with the husband. A woman has a limited right to divorce in that she has to be delegated this right at the time of the marriage by the husband. This limited scope can be limited further if the husband at the time of delegation stipulates the conditions upon which the wife would be able to exercise her right to divorce (for example, if he remarries without her consent, or physically assaults her, or fails to pay her maintenance) (28 Nov. 1999).
According to Section 7(1) of the Muslim Family Law Ordinance 1961, a husband must send to his local (Union Parishad) chairman a written notice soon after the divorce (or pronouncement of talaq, in whatever form) and must also give a copy of this notice to his wife (News Network n.d.; The Independent 10 Sept. 1999; The Daily Star 30 Aug. 1998). Within 30 days of receiving the notice, the chairman forms an arbitration committee with representatives from the husband and the wife in an attempt to reconcile the couple (ibid.; News Network n.d.). If within 90 days the committee is unable to reconcile the couple and the husband does not withdraw the divorce notice, then the divorce takes effect (ibid.; The Daily Star 30 Aug. 1998) and the chairman issues both parties a divorce certificate, according to the law (ibid.). During these 90 days the husband and wife are still considered married (ibid.).
A woman can initiate divorce proceedings if her husband delegated her that power at the time they got married (The Daily Star 30 Aug. 1998). This form of divorce, called talaq-i-tafweez (ibid.), "enables married women to dissolve their marriage without the consent of the husband or the intervention of the court or another external agency" (Mahmood 1995, 256), and is contained in clause 18 of the nikah namah (marriage contract) (The Daily Star 30 Aug. 1998; The Independent 10 Sept. 1999). If the woman exercises this right, the same provisions of divorce apply, and she must also send a written notice of divorce to the local chairman as well as to her husband (The Daily Star 30 Aug. 1998).
The Independent article states that several forms of divorce are valid without the intervention of the court, including the talaq, ila or zihar by the husband, talaq-i-tafwid/tafweez (must be written in the marriage contract) by the wife, and khul' (available under the law and need not be included in the marriage contract) or mubar'arat ("mutual freeing, divorce by mutual consent) by muturla agreement between both parties (10 Sept. 1999).
However, The Daily Star article states that the right to claim divorce in the khul' and muba'arat forms of divorce is available through the courts (10 Sept. 1999). In these two forms of divorce, as well as the talaq-i-tafwid form, the divorce must be registered within 90 days of the divorce notice. The article adds that "the Nikah registrar enters the registration on the basis of applications for such registration within his own specified jurisdiction" (ibid.).
According to one source, "laws provide some protection for women against arbitrary divorce , but the protections generally apply only to registered marriages. Marriages in the countryside are often not registered because of ignorance of the law" (US Mission 23 Sept. 1997).
The following section of a 30 August 1998 article from the Dhaka daily newspaper, The Daily Star, entitled "When Women Seek Divorce" by advocate Ila Chanda illustrates the problems faced by one woman as she attempted to obtain a divorce:
Ranu was given the right to initiate divorce proceedings as per Clause 18 of her nikahnama [marriage contract]. On her having extreme difficulty in living with her husband, she sent a divorce notice to the Chairman with a copy to her husband, as per the law (The Muslim Family Laws Ordinance, 1961; The Family Courts Ordinance, 1985). On receiving notice from the Chairman of the Arbitration Council, Ranu went to the Chairman's office and personally informed him that it is impossible for her to live with her husband and that she needs to have a divorce. Upon completion of ninety days after serving the divorce notice, Ranu did not receive a certificate informing her of the divorce taking effect, as is the provision under the law. When she sought this certificate from the Chairman, he informed her that the divorce did not take effect as the husband did not receive any notice of divorce and that both parties had not met for reconciliation. He claimed that Ranu and her husband had always come to him individually rather than together. He stated that he would reissue a notice to both sides to attend a reconciliation session. When Ranu again requested him to provide her a certificate, the Chairman stated that it would take a long time to do so.
In this way the matter had been pending for nearly five months, beyond the ninety-day period. She was informed that her divorce notice was not made in a "proper" manner. According to the Chairman, the "proper" way is to complete the notice according to the format provided by the Kazi [Qadi, Islamic judge] Office, after which ninety days are to lapse before the divorce becomes effective. This means that seven or eight months would lapse before Ranu can get a divorce.
The general situation is such that even when women receive their divorce certificates after ninety days of the notice, the Kazis refuse to register the divorce on the ground that the divorce notice had not been sent through them (the Kazis). In situations like this, women have to start the procedure all over again and wait uncertainly for their divorce to come through. In other words, women are denied divorce on certain grounds which are absolutely made up on the whim of the Chairmen and the Kazis. Some of these false grounds include, insisting that the women have the divorce notice written out in the format provided by the Kazi's office, and insisting that there are witnesses present at the time of issuing the notice.
As just stated, none of these grounds [are] sanctioned by law. In other words, the law does not require a woman seeking divorce to have the notice sent by the Kazi or in the notice format of the Kazi office. These grounds are simply the vagaries of the Chairmen of the Arbitration Council and the Kazis. To make matters worse, women fall victim to bribery within the Dhaka City Corporation to secure their divorce certificates. The government has set a fee of Tk 100 for registering divorces. However, until today none of our clients have been able to register their divorces under Tk. 400.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.
Ain-O-Salish Kendra (ASK), Dhaka. 28 November 1999. Correspondence from Advocacy Coordinator. NGO and human rights organization in Bangladesh specialising in legal aid and mediation services through ten core units (legal aid, training, advocacy, media, popular theatre, field support and liaison, research, child rights unit).
The Daily Star [Dhaka]. 30 August 1998. Ila Chanda. "When Women Seek Divorce." Translated from Bangla by Faustina Pereira. < http://www.dailystarnews.com/ 199808/30/n8083009.htm#BODY2> [Accessed 24 Nov. 99]
The Independent [Dhaka]. 10 September 1999. K. Rahman. "Divorce in Our Society."
Mahmood, Tahir. 1995. 2nd revised edition. Statutes of Personal Law in Islamic CountriesHistory, Texts and Analysis. New Delhi: India and Islam Research Council.
Naripokkho, Dhaka. 25 November 1999. Correspondence from the Coordinator. (Information on Naripokkho can be obtained in BGD23825.E of 6 May 1996).
News Network. n.d. Sajedul Islam Fatemi. "Law Does Not Permit Hilla Nikah or Interim Marriage. But It Also Has Failed to Eliminate the Practice."
US Mission, Dhaka. 23 September 1997. Bangladesh.
Additional Sources Consulted
Women Living Under Muslim Law (WLUML). 1996. Talaq-i-Tafwid: The Muslim Woman's Contractual Access to Divorce: An Information Kit. Edited by Lucy Carroll and Harsh Kapoor. Grabels: WLUML.
Electronic sources: various Internet sites, IRB Databases, REFWORLD.
Unsuccessful attempts to contact:
- Associate professor of law, Dhaka University.
- Lawyer and human rights activist, Dhaka.