Reference : 6 MLR (HD)01(2001)
In Editor Banglabazar Partica vs District Magistrate & Deputy Commissioner, Naogaon an woman named Sahida, wife of Saiful of village Atitha within Kirtipur Union Parishad under Sadar Upazilla of Naogaon, was forced to marry her husband’s paternal cousin Samshul on so-called fatwa by Hazi Azizul Huq that her marriage has dissolved consequent to an incident of about 1 year ago when her husband out of anger uttered the word “talaq”, but thereafter continued their married life.
On behalf of the intervener of the Ain-O-Salish Kendra, Dr. Kamal Hossain submitted that the tragedy of Sahida is not an isolated event and is happening often and everywhere in the country and the number is alarming as well. He also submitted that those fatwas were the open challenges to fundamental rights guaranteed under Articles 27, 28, 31 & 35 of the Bangladesh constitution, yet the State failed to enforce those fundamental rights.
Again, fatwa means legal opinion which, therefore, further means legal opinion of a lawful person or authority. Legal system of Bangladesh empowers only the courts to decide all questions relating to legal opinion on the muslim and other laws as in force. Therefore, any fatwa including the instant one are all unauthorised and illegal.
Ms. Tania Amir submits that – the instant fatwa is a punishable offence under sec.508 of the Penal Code, 1860 and there are also other sections in the Code to punish the persons involved in the execution of the fatwa.
In Bangladesh laws relating to the dissolution of a muslim marriage at the instance of the husband and the remarriage after the dissolution becomes effective are codified in sec.7 of the Muslim Family Laws Ordinance,1961 and its sec.3 states that the provisions of this Ordinance shall have effect notwithstanding any law, custom and usage.
Any man who wishes to divorce his wife after pronouncement of talaq shall give a written notice to the chairman and his wife as well, sec.7(1) of the MFLO,1961. Within 30 days of the receipt of notice the chairman shall constitute an arbitration council for the purpose of bringing about reconciliation between the parties.sec.7(4). A talaq unless revoked, shall not be effective until the expiration of 90 days from the date of delivering notice to chairman.sec.7(3). Or if the wife is pregnant at the time of pronouncing talaq, then till the pregnancy continues whichever be later.sec.7(5). And without an intervening marriage with a third person, a wife can remarry her husband. Nothing shall debar her, unless termination by talaq is for the third time so effective.sec.7(6).
The Quran suspends the effect of repudiation of marriage until the expiry of waiting period (iddat) which is to last until the wife completes 3 menstrual cycles or if pregnant, until delivery of child, to provide an opportunity for reconciliation.
So, dissolution of marriage by uttering the word “talaq” once or thrice at the same time is against the injunction of the Quran & Hadith as well as invalid in law under sec.7 of the MFLO,1961.
In view of the aforesaid factual and legal position, the court holds that the marriage between Saiful and Sahida was not dissolved and that for the sake of argument if it is taken that the marriage was dissolved, even then there was no legal bar for Sahida to remarry Saiful without any intervening marriage with a third person. So the fatwa in question is wrong.
The court further holds that the respondent District Magistrate should have immediately taken cognizance of the said offence under sec.190 of the Code of Criminal Procedure,1898 and hopes that – this will be the once for all warning to the other District Magistrates, the Magistrates and the Police Officers.
So, the Rule was made absolute without any order as to costs.
Umme Wahida Akhtar
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