Divorce notice in Bangladesh: judiciary in dilemma?
A divorce notice in Bangladesh is governed by the Muslim Family Laws Ordinance, 1961. 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]
Divorce notice in Bangladesh: the practical procedure
The debate above matters in court. In practice, I advise every client to follow section 7 step by step. A properly served divorce notice in Bangladesh closes the door to later disputes over dower, maintenance and remarriage.
- Prepare the written talaq notice. A proper talaq notice format states the names and addresses of both parties, the date of marriage, the Kabinnama registration details and the date of pronouncement.
- Send the divorce notice to the Chairman of the Union Parishad, or the Mayor of the City Corporation or Paurashava, of the area where the wife lives. Use registered post with acknowledgment due.
- Send a copy of the same notice to the wife, also by registered post.
- Within 30 days, the Chairman forms an Arbitration Council to attempt reconciliation.
- If reconciliation fails, the talaq takes effect 90 days after the Chairman receives the notice. If the wife is pregnant, it takes effect after 90 days or the end of the pregnancy, whichever is later.
- Register the divorce with the Nikah Registrar (Kazi) under the Muslim Marriages and Divorces (Registration) Act, 1974.
Can a wife send a divorce notice in Bangladesh?
Yes. If the Kabinnama gives her the delegated right of divorce (talaq-e-tafweez), she can exercise it. She must follow the same notice procedure under section 8 of the Ordinance. Without the delegated right, she can apply to the Family Court for dissolution of marriage.
What if the husband does not send the divorce notice?
Failure to send a divorce notice in Bangladesh is a punishable offence under section 7(2) of the Ordinance. As the cases above show, the courts are divided on whether the talaq itself becomes invalid. To avoid that risk, serve the notice and keep the postal receipts safe.
Can an NRB send a divorce notice in Bangladesh from abroad?
Yes. An NRB can sign the notice abroad and have it served through a lawyer in Bangladesh. If other steps need a representative on the ground, a properly attested foreign power of attorney is the safer route.
If you need a divorce notice in Bangladesh drafted or served, contact our chamber for a consultation.
[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.
