Notice of Divorce: Judiciary in Dilemma?
Section 7 of the Muslim Family Law Ordinance-1961 (FLO) requires any person who wishes to divorce his wife shall as soon as after pronouncement of talaq in any form give the Chairman of a union council/city corporation a notice in writing of his having done so, and shall supply a copy thereof to the wife.
There are three objectives of this provision:
(a) to restrict whimsical exercise of the unilateral authority to divorce by the husband,
(b) to communicate the matter of divorce with society and
(c) to have a legal document of divorce for future use.
The question –
whether failure to send a notice to the Chairman of the union council/city corporation on the part of the husband will make a talaq invalid – gives rise to a new judicial debate.
Under the Pakistani jurisdiction in Maqbul Zan’s case[1] the court observed that failure to send a notice to the Chairman of the union council/city corporation will make a talaq ineffective but it will not be invalid if it is valid under the personal law of the party.
Section 7 of the Muslim Family Law Ordinance-1961 is a mere restriction on the effectiveness of a talaq rather than making a talaq invalid.
The court observed:
If the talaq is otherwise valid; if it is valid under the personal law of the party it is valid.
The only clog thereon is that the effectiveness would be postponed for 90 days under sub-section 3 of section 7 of the MFLO, 1961.
The position of Bangladeshi courts on the issue is unclear.
There are numerous cases where the principle of the Lahore case has been followed by the courts.
For example, in Abdus Sobhan’s case[2] the court categorically, while explaining the objective of the arbitration council, has said that non-service of notice to the Chairman of union council/city corporation will not make a talaq invalid rather it will make talaq ineffective.
In the same year the High Court Division in Kutubuddin’s case[3] has observed that “sending notice to the chairman and the opposite party is a pre requisite to legal validity of a divorce.”
However, much later in Sirajul Islam’s case[4] the court indirectly revealed that-
There are two conditions to be fulfilled to make a divorce effective, i.e.
(a) it must be valid according to the personal law of the parties, and
(b) it must be communicated.
Communication, on the other hand, does not include a notice to the Chairman of the union council/city corporation alone.
An affidavit sworn before the court and sending a copy thereof to the marriage registrar under section 6 of the Marriage and Divorce (Registration) Act, 1974 is sufficient to constitute a divorce.[5]
The court said that mere non-service of notice to the Chairman of a union council/city corporation under the Ordinance of 1961 will not render the talaq ineffective if it is otherwise communicated.
The court emphasized, in Sirajul Islam’s case, on the intention of the parties rather than on the procedure of law.
It also observed that if the intention of the party is to repudiate marital relationship, non-service of the notice cannot render it invalid.
Therefore, the position of the Bangladeshi courts is very much confusing. It appears that the standing of the judiciary tends to favor the traditional approach of Muslim law.
Pearl and Menski think that it as a compromise between the traditional and modern legislated Muslim law.[6]
[1] Maqbul Zan v Arshad Hassan, PLD (1975), Lah., p. 147. Cited in Pearl & Menski, supra no. 26, p. 379.
[2] Abdus Sobhan Sarker v Md. Abdul Ghani, 25 DLR, HCD, p. 227.
[3] Md. Kutubuddin Jaigirdar v Noorjahan Begum, supra no. 50.
[4] Sirajul Islam v Helana Begum, 48 DLR, HCD, p. 48.
[5] Section 9 of the Act of 1976 provides that on completion of registration of any divorce, the Nikah Registrar shall deliver to the parties concerned an attested copy of the entry in the register. The court might recognize it as the second option to communicate the intention of divorce.
[6] Pearl and Menski, supra no. 26, p. 382.
In a seminar on ‘What is Law: How do we study, teach law”, held in the Stamford University, Bangladesh, Dhaka, on 15 March 2008 Menski said while answering a question of this writer that the word ‘shall’ used in section 7 of the MFLO does not mean ‘must’. He unequivocally states that ‘nowhere in the world the word ‘shall’ means ‘must’. It is wrongly interpreted by the judiciary in Bangladesh.
