The Muslim Family Laws Ordinance of 1961
Sections 1–4 & 6(5)–
In the absence of documentation of permission obtained by the accused–respondent from Arbitration Council the inevitable conclusion is that the accusedrespondent entered contract for second marriage without previous permission of Arbitration Council and offence under section 6(5) of The Ordinance 1961 had been committed and he may be fastened with guilt and complainant–appellant could successfully bring home charge against accused–respondent to the hilt. Dilruba Aktar vs AHM Mohsin 55 DLR 568.
Section 4—
When the proviso to section 4 gave unlimited power to the Government to extend, curtail or alter the limits of any area, the sub-rule 1 of rule 10 cannot be said to be mandatory. This is merely directory. Nur Mohammad Fakir vs Bangladesh 50 DLR 71.
Section 4–
Succession–The date of death of the daughter of the propositus, whether it was before or after the coming into force of the Ordinance, is immaterial. It is the date of opening of succession which is of material importance. Sheikh Ibrahim vs Nazma Begum44 DLR (AD) 276.
Section 5(e)—
Guardianship and Custody of Children—Admittedly since 5-4-2009, children are in custody to the plaintiff and there is no allegation against their welfare. It is true that in Muslim Law father if alive is the natural guardian of the persons and property of his minor child. He does not require an order of the Court to support his right to act as guardian in any matter, but when the Court is satisfied that it is for welfare of children that an order should be made for their custody the Court may make an order accordingly. In such view of facts, the parties were directed to maintain status quo in respect of custody of children. Abdul Quddus vs Syed Moinul Ahsan Sajjad 16 BLC 166.
Section 5, 9
Ordinance of 1985 is only a procedural
law and that the law of limitation does not apply at all to such kinds of law
were neither mooted nor decided. Jamila Khatun vs Rustom Ali (Mustafa Kamal J)
(Civil) 3ADC 560
Under section 5 of Ordinance of 1985 the wife can claim past maintenance for the child if she has been supporting the child in the same household without any contribution from the father. But if she does not claim separate maintenance for the child, the court will consider the overall needs, keeping in view the fact that she has been supporting a child in the same household. In either case, the claim is subject to Article 120 of the Limitation Act. Jamila Khatoon Vs. Rastom Ali 4BLT (AD)-97
Sections 5 & 7–
Muslim Marriage is a social contract and not a sacrament between a man and woman followed by recitations from the Holy Quran. The relationship between the spouses is based on the concepts of social justice and adjustments. Khodeja Begum & others vs Md Sadeq Sarkar 50 DLR 181.
মুসলিম আইন অনুযায়ী দেনমোহর হলো স্বামীর উপর একটা বাধ্যবাধকতা যা স্ত্রীর প্রতি সম্মানসুচক হিসেবে প্রদান করা হয়।
Under the Muslim law dower is an obligation upon the husband as a mark of respect to the wife.
Fatema Bibi Vs. Lal Din, 37 A.L 345, 171, I. C 421.
যদি দেনমোহরের দাবির বিষয়টি কোন চুক্তি বা নিকাহনামায় থাকে, তাহলে আইনে বিপরীত কিছু না থাকলে আদালতের উচিত চুক্তিতে বর্ণিত দেনমোহরের সমুদয় টাকার ডিক্রি দেয়া।
Where claim for dower is made under contract or in the Nikahnama, the court should, unless otherwise provided by any legislative enactment, award the entire sum provided in the contract.
Where claim for dower is made under contract or in the Nikahnama, the court should, unless otherwise provided by any legislative enactment, award the entire sum provided in the contract.
Bani Begum Vs. Mir Aun Ali, 9 Bom L.R 188 & Basir Ali Vs. Hafiz,13 C.W.N 153.4 I.C 462.
দেনমোহর অতিরিক্ত হয়েছে বা পরিশোধ করতে স্বামীর অসমর্থতা স্ত্রীর দাবির বিরুদ্ধে কোন অজুহাত হতে পারে না।
The mere fact that the amount stipulated is excessive or beyond the means of the husband is no defence against the claim of the wife.
Mohammad Sultan Begum Vs. Sirajuddin Ahmed. 161 I.C 329.
যদি দেনমোহর হিসেবে স্বামী একটা মাঠ তার স্ত্রীকে হস্তান্তর করে তাহলে স্ত্রী তার স্বামীর বিরুদ্ধে দখলের ডিক্রি পেতে হকদার। যদি অন্য কোন অংশীদার থেকে থাকে তাহলে তারা মামলার প্রয়োজনীয় পক্ষ নয় কারন ডিক্রি তাদের কোন অধিকারকে প্রভাবিত করে না।
If the husband transfers a field to his wife as dower she is entitled as against her husband to a decree for possession. If there are other sharers they are not necessary parties to her suit as the decree does not affect their rights therein.
Gulbano Vs. Akbar Khalid, 164 I.C 329.
দেনমোহর বিয়ের পূর্বে বা বিয়ের সময় বা বিয়ের পরে ধার্য্য করা যায় এবং বিয়ের পরে বাড়ানোও যায়।
Dower may be fixed either before or at the time of marriage or after marriage and may also be increased after marriage.
Kamarunnessa Vs. Hussain Bibi, 3 All 266 (FB). Bashir Ahmed Vs. Zubaida, 92 I.C 265. Jahuran Bibi Vs. Soleman Khan 58 Cal LJ 251.
কোন নাবালক পুত্রের পক্ষে তার বাবা যদি দেনমোহরের কোন চুক্তি করে তাহলে সেই চুক্তি নাবালক পুত্রের উপর বাধ্যকর হবে৷ পিতা ব্যক্তিগতভাবে দেনমোহরের ঋণের জন্য দায়ী নন।
A contract of dower made by father on behalf of minor son is binding on the son. The father is not liable personally for the dower debt.
Basir Ali Vs. Hafiz, 13 C.W.N 153.4 I.C 462.
Mohammad Siddiq Vs. Shahabuddin, 49 All 557, 100 I.C 363.
স্বামীর সাথে বসবাস করতে অস্বীকৃতি স্ত্রীর আশু দেনমোহরের অধিকারকে খর্ব করে না৷
The refusal of the wife to live with the husband cannot defeat the right of the wife to prompt dower.
Most. Mohammadi Vs. Jamiluddin, P.L.D 1960 (Karachi), 663.
মৃত ব্যক্তির উত্তারাধীকারীরা দেনমোহরের ঋণের জন্য ব্যক্তিগতভাবে দায়ী নন। কিন্তু দেনমোহরের দাবির জন্য যদি বিধবা তার স্বামীর সম্পত্তির দখলে থাকে, তাহলে তার স্বামীর অন্যান্য উত্তরাধীকারীরা আনুপাতিকহারে দেনমোহরের টাকা পরিশোধ করে তাদের স্ব স্ব অংশ পুনরুদ্ধার করতে পারে৷
The heirs of the deceased are not personally liable for the dower debt. But where the widow is in possession of her husband's property under the claim of her dower, the other heirs of her husband are severally entitled to recover their respective shares upon payment of part of the amount of dower debt proportionate to their shares.
Hamira Bibi Vs. Zubaida Bibi, 38 All, 581, 36, I.C 87.
শান্তিপূর্ণ এবং আইনসঙ্গতভাবে একবার সম্পত্তির দখল অর্জন করলে, দেনমোহরের টাকা পরিশোধ না হওয়া পর্যন্ত ঐ সম্পত্তি দখলে রাখার অধিকার মুসলিম আইন বিধবা স্ত্রীকে প্রদান করেছে ।
The possession of the property being once peacefully and lawfully acquired, the right of the widow to retain it till her dower debt is paid, is conferred upon her by the Mohammedan law.
Maina Bibi Vs. Chaudhri Vakil Ahmad, 47, All 250, 86, I.C 578.
দখলে রাখার অধিকার বিধবা স্ত্রীকে সম্পত্তিতে কোন স্বত্ব দেয় না ।
The right to hold possession does not give the widow any title to the property.
Abdul Wahab Vs. Mustaq Ahmed, All (1944) 68. 211 I.C 475.
স্বামীর মৃত্যুতে অথবা তালাকের মাধ্যমে বিবাহ বিচ্ছেদ হলে সম্পত্তি ধারণের অধিকার উদ্ভূত হয়৷
Right of retention arises either on the death of the husband or on the dissolution of marriage by divorce.
Asia Khatun Vs. Amerendra Nath, 44, C.W.N 586, 191, I.C 783.
যদি দেনমোহর হিসেবে স্বামী একটা মাঠ তার স্ত্রীকে হস্তান্তর করে তাহলে স্ত্রী তার স্বামীর বিরুদ্ধে দখলের ডিক্রি পেতে হকদার। যদি অন্য কোন অংশীদার থেকে থাকে তাহলে তারা মামলার প্রয়োজনীয় পক্ষ নয় কারন ডিক্রি তাদের কোন অধিকারকে প্রভাবিত করে না।
If the husband transfers a field to his wife as dower she is entitled as against her husband to a decree for possession. If there are other sharers they are not necessary parties to her suit as the decree does not affect their rights therein.
Gulbano Vs. Akbar Khalid, 164 I.C 329.
দেনমোহর বিয়ের পূর্বে বা বিয়ের সময় বা বিয়ের পরে ধার্য্য করা যায় এবং বিয়ের পরে বাড়ানোও যায়।
Dower may be fixed either before or at the time of marriage or after marriage and may also be increased after marriage.
Kamarunnessa Vs. Hussain Bibi, 3 All 266 (FB). Bashir Ahmed Vs. Zubaida, 92 I.C 265. Jahuran Bibi Vs. Soleman Khan 58 Cal LJ 251.
কোন নাবালক পুত্রের পক্ষে তার বাবা যদি দেনমোহরের কোন চুক্তি করে তাহলে সেই চুক্তি নাবালক পুত্রের উপর বাধ্যকর হবে৷ পিতা ব্যক্তিগতভাবে দেনমোহরের ঋণের জন্য দায়ী নন।
A contract of dower made by father on behalf of minor son is binding on the son. The father is not liable personally for the dower debt.
Basir Ali Vs. Hafiz, 13 C.W.N 153.4 I.C 462.
Mohammad Siddiq Vs. Shahabuddin, 49 All 557, 100 I.C 363.
স্বামীর সাথে বসবাস করতে অস্বীকৃতি স্ত্রীর আশু দেনমোহরের অধিকারকে খর্ব করে না৷
The refusal of the wife to live with the husband cannot defeat the right of the wife to prompt dower.
Most. Mohammadi Vs. Jamiluddin, P.L.D 1960 (Karachi), 663.
মৃত ব্যক্তির উত্তারাধীকারীরা দেনমোহরের ঋণের জন্য ব্যক্তিগতভাবে দায়ী নন। কিন্তু দেনমোহরের দাবির জন্য যদি বিধবা তার স্বামীর সম্পত্তির দখলে থাকে, তাহলে তার স্বামীর অন্যান্য উত্তরাধীকারীরা আনুপাতিকহারে দেনমোহরের টাকা পরিশোধ করে তাদের স্ব স্ব অংশ পুনরুদ্ধার করতে পারে৷
The heirs of the deceased are not personally liable for the dower debt. But where the widow is in possession of her husband's property under the claim of her dower, the other heirs of her husband are severally entitled to recover their respective shares upon payment of part of the amount of dower debt proportionate to their shares.
Hamira Bibi Vs. Zubaida Bibi, 38 All, 581, 36, I.C 87.
শান্তিপূর্ণ এবং আইনসঙ্গতভাবে একবার সম্পত্তির দখল অর্জন করলে, দেনমোহরের টাকা পরিশোধ না হওয়া পর্যন্ত ঐ সম্পত্তি দখলে রাখার অধিকার মুসলিম আইন বিধবা স্ত্রীকে প্রদান করেছে ।
The possession of the property being once peacefully and lawfully acquired, the right of the widow to retain it till her dower debt is paid, is conferred upon her by the Mohammedan law.
Maina Bibi Vs. Chaudhri Vakil Ahmad, 47, All 250, 86, I.C 578.
দখলে রাখার অধিকার বিধবা স্ত্রীকে সম্পত্তিতে কোন স্বত্ব দেয় না ।
The right to hold possession does not give the widow any title to the property.
Abdul Wahab Vs. Mustaq Ahmed, All (1944) 68. 211 I.C 475.
স্বামীর মৃত্যুতে অথবা তালাকের মাধ্যমে বিবাহ বিচ্ছেদ হলে সম্পত্তি ধারণের অধিকার উদ্ভূত হয়৷
Right of retention arises either on the death of the husband or on the dissolution of marriage by divorce.
Asia Khatun Vs. Amerendra Nath, 44, C.W.N 586, 191, I.C 783.
Section 5— Liability of the husband to pay the dower and maintenance to his wife on the dissolution of marriage—
Family Court Ordinance, 1985
Section 5
Family Court Ordinance, 1985
Section 5
When the marriage is admittedly dissolved by talak at the instance of the husband, the wife is legally entitled to realize the dower money as stipulated in the kabinnama and also maintenance during the period of her iddat. The husband having failed to prove the payment of dower by any cogent evidence the Family Court decreed the suit which has been upheld consistently upto the apex court by concurrent findings.
(স্বামীর দ্বারা তালাকের মাধ্যমে বিবাহ বিচ্ছেদ হয়ে গেলে, স্ত্রী কাবিননামায় নির্ধারিত দেনমোহরের অর্থ এবং তার ইদ্দতের সময়কালীন ভরণপোষণের জন্য অর্থ আদায় করতে আইনত অধিকারী। কোনও শক্ত প্রমাণের দ্বারা স্বামী দেনমোহর পরিশোধ এর বিষয়টি প্রমাণ করতে ব্যর্থ হওয়ায় পারিবারিক আদালত মামলাটিতে ডিক্রি প্রদান করেন যাহা শীর্ষ আদালত পর্যন্ত ধারাবাহিকভাবে বহাল থাকে।)
SHAHID HAMID VS. NILUFAR MOMTAZ, 14 MLR (AD) (2009) 33
Sections—5 and 7
Registration of marriage and Talaq
The Muslim Marriage is a social contract and not a sacrament between a man and woman followed by recitations from the Holy Quran. The relationship between the spouses is based on the concepts of social justice and adjustments. But if due to any reason love is lost between the parties, the husband is at liberty to divorce his wife by exercising his right of talaq. But such a right is not available to the wife unless she is given the delegated power of divorce by way of talaq-e-tawfiz. A wife thus cannot dissolve the marriage even through the intervention of the Court. Khodeja Begum and others Vs. Md. Sadeq Sarkar, 18 BLD (HCD) 31.
Section—6
Polygamy
The discussion on polygamy in Islam and recommendation thereon as accorded in the impugned judgment should be taken to be deleted lest it may create confusion in the mind of the subordinate Courts and the people at large.
It was totally unnecessary for the learned Judges to indulge in the discussion on polygamy in Islam which was neither an issue in the suit nor required to be decided in the context of the pleadings of the parties. The exercise undertaken by the learned Judges was not only gratuitous but wholly illegal being not within their jurisdiction under the Code of Civil Procedure. Md. Elias Vs Jesmin Sultana, 19 BLD (AD)122.
Ref: 17BLD( 1997)04—Cited.
Section—6
Polygamy
Section 6 of the Ordinance prohibits contracting or performing second marriage during the subsistence of the existing one, except with the previous permission of the Arbitration Council. This section does not declare a second marriage, without such permission, void or illegal.
Muslim Jurists and Scholars are almost unanimous in taking the view that in the context of modern society it is virtually impossible to be able to ‘deal with the wives justly’ and as such the Quranic sanction for taking a second wife under specified conditions virtually amounts to a prohibition in taking a second wife during the subsistence of an existing marriage. Viewed in this context, the High Court Division held that section 6 of the Muslim Family Laws Ordinance is against the principle of Islamic Law and if should be repealed. Jesmin Sultana Vs Mohammad Elias, 17 BLD (HCD) 4.
Ref: (1996) 16 BLD 396;—Cited.
Section—6
Payment of dower being obligatory as per Nikahnama the wife is entitled to the same on talaq.
Md. Serajul Islam Vs Most. Helana Begum and others, 19 BLD (AD) 150.
Sections 6 & 7–
Talaq in any form shall not stand effective and Talaq shall be not Talaq in the eye of law unless provision contained in section 7(1) is sternly complied with and in the event of subsistence of existing marriage no man can enter into second marriage and if he enters he shall contribute himself to be punished under section 6(5) of The Ordinance.
Dilruba Aktar vs AHM Mohsin 55 DLR 568.
Section 6(5)–
Procedure which must be already followed when a husband having a wife, wants to contract a fresh marriage.
Makbul Ali vs Manwara Begum 39 DLR 181.
Section 6(5)–
The woman who is married by the husband without permission, during the existence of other wife not liable for any offence. Makbul Ali vs Manwara Begum 39 DLR 181.
Section 6(5)
The High Court Division misdirected it- self in interpreting Section 7(1) of the Ordinance, 1961 in that the provision of notice to the Chairman of the Union Council as stipulated in the said section is applicable when any man who wishes to divorce his wife unilaterally does so and when divorce is effected by mutual understanding and bilateral action of the parties or at the instance of the wife, such requirement of notice to the Chair- man of the Union Council is dispensed with since the objection of a notice to the Chairman and to serve a copy to the wife as required by Section 7(1) of the Ordinance, 1961, is to bring to the no- tice of divorce to the wife as initiated by the husband and to 'prevent hasty disso- lution of marriage' and when the wife herself is a party to the 'Talaqnama' there is no need to serve a notice to the Chairman of the Union Council since the wife is already aware of the divorce and is a consenting party to the divorce and as such, the judgment and order of the High Court Division is liable to be set aside. Abul Hasnat Mohammad Mohsin vs. Dilruba Aktar (Mohammad Fazlul Karim J) (Civil) 8 ADC 314
Section 6(5)–
The plea of the husband taken at revisional stage that there was no Union Parishad or Chairman to seek permission for second marriage at the relevant time cannot be sustained in the absence of any evidence.
Mizanur Rahman vs Surma Khatun 50 DLR 559.
Section 6(5)–
The offence under section 6(5) of the Ordinance compoundable, though not the appellant and the respondent having arrived at a compromise, dismissal of the appeal upon reduction of the sentence to the extent of the period already served merits consideration.
Khandaker Abdul Hannan vs Sayara Begum 56 DLR (AD) 141.
Section 6(5)(b)–
Administrators of Union Panchayet, Shahar Committees and Pourashavas took over the functions of the Muslim Family Laws Ordinance from 20–11–72. Ayesha Sultana vs Shahajahan Ali 38 DLR 140.
Section 6(5)(b)–
Marrying a 2nd wife without permission of an arbitration council, violates law and punishable. Ayesha Sultana vs Shahajahan Ali 38 DLR 140.
Section 6(5)(6)–
When a wife is present: resort to polygamy by taking a 2nd wife can only be bad, when permission thereof is given in writing by the Arbitration Council. Abul Bashar vs Nurun Nabi 39 DLR 333.
Section 6(5)—
The plea of the husband taken at revisional stage that there was no Union Parishad or Chairman to seek permission for second marriage at the relevant time cannot be sustained in the absence of any evidence. Mizanur Rahman vs Surma Khatun 50 DLR 559
Section 7—
The provision of section 7(1) of the Ordinance of 1961 only provides for giving a notice of Talaq to the Chairman and a copy thereof to the wife and sub-section 2 of section 7 makes the position further clear by providing a punishment for contravention of provisions of sub-section (1) of section 7. The only implement to immediate effectiveness of the divorce is information to the Chairman and the forming of the Conciliation Council. From the alone provision of law it is clear that the mere absence of communication of divorce notice to the Chairman under section 7(1) of the Ordinance, 1961 does not make the divorce invalid. Nurul Islam vs Nur Ayesha Begum 16 BLC 10.
Section 7—
Consistent view of the superior court is that non-compliance of provision of section 7 will render divorce ineffective. Unless there was compliance of section 7, which is a mandatory provision of law, no divorce can be effective as per section 7 of the Muslim Family Laws Ordinance. Nur Nabi vs Salima Akhter Doly 13 BLC 327.
Section 7, 25(1)
Admittedly appellant No.1 Abdul Jalil
of Civil Appeal Nos. 56, 57 and 58 of 1995 and appellant Mrs. Sharon Laily
Begum Jalil of Civil Appeal No. 1 59 of 1995 were man and wife and the latter
having been divorced by the former in the month of May, 1995 following at
breakdown of marital relations, the question of custody of their four minor
childern, namely, Mohammad Nurul Alam Jalil (born on 23.4.1985), Jasmin Akhter
Jalil (born on 8.9.1988), Sharlean Akhter.
It is now settled that the term 'welfare' must be read in the largest possible sense as meaning that every circum- stance must be taken into consideration and the Court must do what under the circumstances a wise parent acting for the true interests of the child would do or ought to do. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can ties of affection be disregarded vide queen vs. Gyngall (1893) 2 QBD 232: Walter vs. Walter 55 Cal 730; Saraswathi Vs. Dhanakoti 48 Mad 299. Abdul Jalil and others vs. Mrs. Sharon Laily Begum Jalil(A.T.M. Afzal CJ) (Civil) 4 ADC 8
S. 7—A Nikah Registrar is a public servant— The mere fact that the Nikah registrar is remunerated by fees to be received from the parlies docs not prevent his becoming a public servant if he is otherwise discharging a public duty Compulsory registration of marriages provided for by the Ordinance is clearly a public duty undertaken by the Government. A Nikah registrar is also a person charged with the duty of making and authenticating documents and registers necessary for the ascertainment of the rights of people within the meaning of the tenth clause of section 21 of the P.P. Code. So, the Nikah Registrar under the Muslim Family Laws Ordinance is a public servant within the meaning of the said clause. Muhammad Arif Vs. Md. Kawshar Ali, (1969) 21 DLR (SC) 330.
Section 7–
Divorce–Non–service of notice to the Chairman of the Union Parishad under the provision of this section cannot render ineffective divorce disclosed in an affidavit. Sirajul Islam vs Helana Begum and others 48 DLR 48.
Section 7(1)–
Talaq pronounced by the wife must be communicated to the husband. When the communication is over and the husband admits to have received the same, the requirement of section 7(1) of the Ordinance 1961 was complied and the talaq–e–tawfiz became effective. Sherin Akther and another vs Md Ismail 51DLR512.
Whether pronounced talaq by swearing an Affidavit is a valid talaq in the eye of law as no notice to the Chairman of the Union Council was served
Section 7 (1) of the Ordinance provides for giving of notice of talaq to the Chairman and a copy thereof to the wife and provides for punishment for contravention and this law overrides any other provision of any other law. But there being clear intention to divorce by the Affidavit on the part of the petitioner and the same having been disclosed and produced before the lower appellate court by the petitioner himself. The petitioner cannot take advantage of his own wrong and cannot claim the benefit of non-service of notice by him to the Chairman. He is bound by his admission. Payment of dower being obligatory as per Nikahnama the wife is entitied to the same on talaq. [Para-8] Md. Serajul Islam Vs. Most. Helena Begurn & Ors 7BLT (AD)-137
Section-7
Validity of the Divorce - Mere non-service of notice upon the chairman of the union council under section 7 of the Muslim Family Law Ordinance cannot render the divorce ineffective if the conduct of the husband appears to be so. [Para-12] Md. Sirajul Islam Vs Mosammet Helena Begum & Ors 3BLT (HCD)-40
Marriage within 90 days-effect
A marriage with another man followed by a divorce by the husband, if takes place in violation of provisions of section 7 of Ordinance which enacts that the marriage between the divorced woman and her former husband shall subsist for a period of 90 days, will not be a valid and lawful marriage.
Sayed Ali Newaz Gardezi vs Lt. Col. Md. Yusuf 15 DLR (SC) 9= PLD (1963) SC 51.
Divorce and marriage within 90 days-void
The position that emerges, therefore, is that the respondent was guilty of enticing or taking away Christa Renate, when she was still the lawful-wedded wife of the complainant, from the latter`s house and he, therefore, committed an offense which falls within the purview of section 498, PPC. The circumstances point to the inference that he knew her to be the wife the appellant at the relevant time. The intention to "marry" her, had no genuine basis as he must have known that there was no legal separation between her and her first husband and no marriage ceremony, even if gone through, could wipe out that fact from his consciousness. The subsequent marriage, in the circumstances, must be regarded merely as a disingenuous device to put up a facade of respectability over an illegal union.
Sayed Ali Newaz Gardezi vs Lt. Col. Md. Yusuf 15 DLR (SC) 9= PLD (1963) SC 51.
Section-7
Ninety days` reconciliation period is to start from the date of the receipt of the notice by the Chairman, and not from the date when it was written.
Shafiqul Islam & others vs State 46 DLR 700.
Section-7
A divorce under the Ordinance is not a unilateral act, rather it involves a public authority in the matter. It precludes a divorce or talaq from being effective for a period of ninety days` from the date of the receipt of the notice by the Chairman. Consequently, the marital status of the parties will not in any way change during that period. The parties in law will continue to remain husband and wife till the divorce is confirmed.
Shafiqul Islam & others vs State 46 DLR 700.
Section 7- Talaq
Function of the Arbitration Councils and their scope under the Ordinance-
It will appear that while a party has to `apply` to the Chairman for matter dealt with in sections 6 and 9 of the Muslim Family Laws Ordinance, section 7 requires only a notice of a talaq to be given to the Chairman. It will further appear that section 7 requires the Arbitration Council neither to decide nor to determine anything upon such notice, though section 6 requires the Arbitration Council to 'decide' a husband's application for permission to contract another marriage during the subsistence of an existing marriage and record reasons for its 'decision' and section 9 requires the Arbitration Council to determine the matter upon an application by a wife for maintenance. It will also appear that although sub-section (4) of section 7 provides that within thirty days of the receipt of written notice of pronouncement of a talaq the Chairman is required to constitute an Arbitration Council which is to take all steps necessary for reconciliation, nothing has been said in the section or anywhere else in the Act providing as to what will happen if upon receipt of such a written notice of the talaq the Chairman does not constitute an arbitration council and does not take any steps to bring about reconciliation between the parties. Failure of the Chairman to constitute an arbitration council or that of a duly constituted arbitration council to take necessary steps to bring about reconciliation is thus inconsequential.
It will appear that while a party has to `apply` to the Chairman for matter dealt with in sections 6 and 9 of the Muslim Family Laws Ordinance, section 7 requires only a notice of a talaq to be given to the Chairman. It will further appear that section 7 requires the Arbitration Council neither to decide nor to determine anything upon such notice, though section 6 requires the Arbitration Council to 'decide' a husband's application for permission to contract another marriage during the subsistence of an existing marriage and record reasons for its 'decision' and section 9 requires the Arbitration Council to determine the matter upon an application by a wife for maintenance. It will also appear that although sub-section (4) of section 7 provides that within thirty days of the receipt of written notice of pronouncement of a talaq the Chairman is required to constitute an Arbitration Council which is to take all steps necessary for reconciliation, nothing has been said in the section or anywhere else in the Act providing as to what will happen if upon receipt of such a written notice of the talaq the Chairman does not constitute an arbitration council and does not take any steps to bring about reconciliation between the parties. Failure of the Chairman to constitute an arbitration council or that of a duly constituted arbitration council to take necessary steps to bring about reconciliation is thus inconsequential.
Abdus Sobhan Sarkar vs Md Abdul Ghani, 25 DLR 227.
Section 7—Divorce—
Non-service of notice to the Chairman of the Union Parishad under the provision of this section cannot render ineffective divorce disclosed in an affidavit.
Sirajul Islam vs Helana Begum and others 48 DLR 48.
Section 7—
Dissolution of marriage by uttering the word 'talaq' once or twice at the same time is against the injunction of the Quran and the Hadith as well as invalid in law under section 7 of the Muslim Family Laws Ordinance and such type of talaq is rightly called as talaq-ul-biddat or heretical divorce and hence the marriage between Saiful and Sahida was not dissolved and that if it is taken for the sake of argument that the marriage was dissolved, even then there was no legal bar for Sahida to remarry Saiful without an intervening marriage with a third person and, as such, the fatwa in question is wrong.
Daily Banglabazar Patrika and two others vs District Magistrate 6 BLC 1.
Divorce without notice to the Chairman-
When divorce is clearly established by the conduct of the husband, mere non-service of notice upon the Chairman as enjoined by section 7 of the Ordinance does not render the divorce ineffective.
Md Sirajul Islam vs Mosammat Helena Begum 1996 BLD 477.
Sections 7 & 5-
Sections 7 & 5-
Muslim Marriage is a social contract and not a sacrament between a man and woman followed by recitations from the Holy Quran. The relationship between the spouses is based on the concepts of social justice and adjustments.
Khodeja Begum & others vs Md Sadec Sarkar 50 DLR 181.
Sections 7 & 6-
Talaq in any form shall not stand effective and Talaq shall be not Talak in the eye of law unless provision contained in section 7(1) is sternly complied with and in the event of subsistence of existing marriage no man can enter into second marriage and if he enters he shall contribute himself to be punished under section 6(5) of the Ordinance.
Dilruba Aktar vs AHM Mohsin 55 DLR 568.
Sections 7 & 8-
Dissolution of marriage, suit for-
Ordinance does not oust the jurisdiction of Civil Court to adjudicate on such matter. The wife filed a suit in the Civil Court for dissolution of her marriage on the ground that she has exercised her option of puberty. It was contended that the suit was not triable by the Civil Court in view of the provisions of section 8 read with section 7 of the Muslim Family Laws Ordinance.
Held-There is nothing in the Muslim Family Laws Ordinance which could be construed as amounting to ouster of jurisdiction of the Civil Court. The ordinary Civil Courts have jurisdiction to try suits for dissolution of marriage. A suit based on a ground of Khair-ul-Baloogh (exercise of the option of puberty) is essentially a suit for dissolution of marriage and it cannot be contended that such a declaratory suit for dissolution of marriage on the ground of option of puberty (under section 2, clause (vii) of the Dissolution of Muslim Marriage Act) is not triable by the Civil Court. The suit was filed for dissolution of marriage on two grounds, i.e. on the ground of 'Khula' as also on the grounds of exercise of option of puberty. It was found that so far as the claim for dissolution of the marriage on the ground of khula was concerned it was not triable by the Civil Court and it was thereupon contended that the suit as a whole must fail.
Held-Since the suit is maintainable on the other ground, namely, exercise of the option of puberty, it cannot be thrown out as incompetent on one of the several grounds.
Md Amin vs Mst Surraya Begum, 21 DLR (WP) 253.
Section 7(1)-
Talaq pronounced by the wife must be communicated to the husband. When the communication is over and the husband admits to have received the same, the requirement of section 7(1) of the Ordinance, 1961 was complied and the talaq-e-tawfiz became effective.
Sherin Akther and another vs Md Ismail 51 DLR 512.
Section 7(1)(3)-Divorce-
To effect a legal divorce, section 7(1)(3) must be complied with-
The question arose whether the deed of divorce, even if held to be genuine, would operate as a valid divorce under the Shia Law and further in view of the fact that the alleged divorce having taken place on 16-11-61, whether the marriage of the divorced woman alleged to have been held on 2-12- 62 was valid under provisions of section 7 of the Ordinance.
Held-Talaq bidaat is not recognized as valid by Shia Law. According to Shia doctors, a talaq amongst the Shias for the purpose of bringing about a dissolution of marriage, must be orally pronounced by the husband, in the presence of two witnesses and the wife, in a set form of Arabic words. A written divorce amongst the Shias is not recognized, except in certain circumstances.
Sayed Ali Newaz Gardezi vs Lt. Col. Md Yusuf 15 DLR (SC) 9.
No notice under section 7(1)— No talaq-
Unless the provisions of section 7(1), Muslim Family Laws Ordinance are complied with regarding service of notice to the Chairman of Union Council a talaq would fail to operate. Therefore the talaq being dated 16-11-61 cannot free a woman to marry a man on 21-12-62, the provisions of section 7(1) standing on the way.
Sayed Ali Newaz Gardezi vs Lt. Col. Md Yusuf 15 DLR (SC) 9.
Provisions of section 7 are applicable even where one of the parties to the marriage is a non-citizen of Pakistan. It was contended that the Ordinance would be applicable only where both the parties to a marriage are Muslim citizens of Pakistan.
Held—It is impossible to read a limitation of section 7 of the Ordinance that the marriages contemplated by the Ordinance should necessarily be between two Pakistani Muslims. A marriage entered into by Pakistani Muslim with, say, an Indian Muslim woman, would fall within the provisions of this section 7, if it is performed within Pakistan.
Sayed Ali Newaz Gardezi vs Lt. Col. Md Yusuf 15 DLR (SC) 9.
Marriage celebrated in England entered into by Muslim Polygamous marriage-
Marriage celebrated in England before a Registrar of Marriage in England does not necessarily make it a monogamous marriage and if the husband is of a country which allows polygamy, the marriage though performed in monogamous England, the implication is, it is polygamous in character.
Mrs Marina Jatoi vs Nuruddin K Jatoi 20 DLR (SC) 27.
Marriage in England in form (.e., in accordance with the Marriage Act, 1949) which is recognised as valid under Muslim Law, such marriage can be terminated by a talaq.
Mrs Marina Jatoi vs Nuruddin K. Jatoi 20 DLR (SC) 27.
Muslim husband marrying a Christian woman-Muslim husband marrying a Christian woman in England) -
Such marriage can be terminated in Pakistan under the Muslim Family Laws Ordinance, the lex loci of the husband.
Mrs Marina Jatoi vs Nuruddin K Jatoi 20 DLR (SC) 27.
Marriage between a Pakistani Muslim and Christian in England cannot be dissolved under section 7—
Md Yakub Ali J (dissenting from the majority): Marriage between a Pakistani Muslim and Christian woman in England under the British Marriage Act, 1949 cannot be dissolved by talaq under section 7 of the Muslim Family Laws Ordinance-This can only be done by the divorce of a Court-Such a union being for life cannot be dissolved by pronouncement of talag but only by a Court's decree. Marriage between a Muslim male and Christian female can only be dissolved under the Divorce Act.
Mrs Marina Jatoi vs Nuruddin K Jatoi 20 DLR (SC) 27.
Section 7(1)-
No talaq without service of notice—
Non-compliance with the provisions of section 7(1) (regarding delivery of notice to the Chairman) makes talaq legally ineffective.
Abdul Aziz vs Rezia Khatoon, 21 DLR 733.
Section 7(1)-
Talaq becomes effective after the scheduled period-
Arbitration Council's function limited-
Once written notice of the pronouncement of a talaq in terms of sub-section (1) of section 7 is delivered to the Chairman, the talaq is otherwise valid, will be effective after the expiry of ninety days of the delivery of such notice or if the wife be pregnant at the time of the pronouncement of a talaq, till the pregnancy ends. Thus, so far as talaqs are concerned the Arbitration Council has no function except to take steps to bring about reconciliation between the parties; beyond this the Arbitration Council has nothing to do in this matter. Non-compliance with provisions of sub-section (1) of section 7 of the Ordinance makes talaq legally ineffective. The petitioner in the present case failed to prove compliance with the provisions of sub-section (1) of section 7 of the Ordinance, with the consequence that the alleged talaq, if it was pronounced by him, was not effective in law, so that in the eye of law the marriage between him and the opposite party subsists.
Abdul Aziz vs Rezia Khatoon, 21 DLR 733.
Section 7 (1)-
Per Mustafa Kamal J: Dissolution of marriage-
When a divorce proceeds from the husband, it is called talaq, when effected by mutual consent, it is called Khula or Mubara'at, according as the terms are. The Muslim Family Laws Ordinance, 1961 has given statutory recognition to a wife's right of divorce (Talaq-i-taufiz) in exercise of her delegated power to divorce, as also to dissolution of marriage otherwise than by talaq. There are different modes of talaq according as the pronouncement of talaq is by the husband. In the case of Talaq Ahsan (most proper), a single pronouncement is made during a tuhr (period between menstruations) followed by abstinence from sexual intercourse upto three following menstruations, at the end of which talaq becomes absolute. In the case of Talaq Hasan (proper), three pronouncements are made during successive tuhrs, there being no sexual intercourse during any of the following three tuhrs. In the case of Talak-ul-bidaat or Talak-i-badai (which is popularly called Bain talaq in Bangladesh) either three pronouncements are made during a single tuhr in one sentence or three separate sentences or a single pronouncement is made during a tuhr clearly indicating an intention to dissolve the marriage irrevocably. This form of talaq is not recognised by the Shafi and Shia Schools of thought, but the Muslim Family Laws Ordinance, 1961 recognises "pronouncement of talaq in any form whatsoever”, section 7(1).
Hefzur Rahman (Md) vs Shamsun Nahar Begum and another 4 BLC (AD) 14.
Section 7(1)(3)—
As the notice of talaq was given on 2-3-89 to the Administrator, Dhaka City Corporation and also to the petitioner talaq has, on the expiry of 90 days from the date of receipt of notice by the Administrator, taken effect as provided in sub-section (3) of section 7 of the Ordinance.
Ataul Hoque (Md) vs Anwar A Karim 4 BLC (AD) 190.
Section 7(1)(3)(5)—
Per Mustafa Kamal J : The Muslim Family Laws Ordinance, 1961 when interpreted in the light of Articles 8 and 8(IA) of the Constitution presumes iddat as laid down in the Holy Quran.
Hefzur Rahman (Md) vs Shamsun Nahar Begum and another 4 BLC (AD) 14.
Section 7(4)—
Divorce effective without constitution of council-
Divorce legally effective even in the absence of proof of constitution of Arbitration Council.
Abdul Aziz vs Rezia Khatoon, 21 DLR 733.
To effect a legal divorce, section 7(1)(3) must be complied with-
The question arose whether the deed of divorce, even if held to be genuine, would operate as a valid divorce under the Shia Law and further in view of the fact that the alleged divorce having taken place on 16-11-61, whether the marriage of the divorced woman alleged to have been held on 2-12- 62 was valid under provisions of section 7 of the Ordinance.
Held-Talaq bidaat is not recognized as valid by Shia Law. According to Shia doctors, a talaq amongst the Shias for the purpose of bringing about a dissolution of marriage, must be orally pronounced by the husband, in the presence of two witnesses and the wife, in a set form of Arabic words. A written divorce amongst the Shias is not recognized, except in certain circumstances.
Sayed Ali Newaz Gardezi vs Lt. Col. Md Yusuf 15 DLR (SC) 9.
No notice under section 7(1)— No talaq-
Unless the provisions of section 7(1), Muslim Family Laws Ordinance are complied with regarding service of notice to the Chairman of Union Council a talaq would fail to operate. Therefore the talaq being dated 16-11-61 cannot free a woman to marry a man on 21-12-62, the provisions of section 7(1) standing on the way.
Sayed Ali Newaz Gardezi vs Lt. Col. Md Yusuf 15 DLR (SC) 9.
Provisions of section 7 are applicable even where one of the parties to the marriage is a non-citizen of Pakistan. It was contended that the Ordinance would be applicable only where both the parties to a marriage are Muslim citizens of Pakistan.
Held—It is impossible to read a limitation of section 7 of the Ordinance that the marriages contemplated by the Ordinance should necessarily be between two Pakistani Muslims. A marriage entered into by Pakistani Muslim with, say, an Indian Muslim woman, would fall within the provisions of this section 7, if it is performed within Pakistan.
Sayed Ali Newaz Gardezi vs Lt. Col. Md Yusuf 15 DLR (SC) 9.
Marriage celebrated in England entered into by Muslim Polygamous marriage-
Marriage celebrated in England before a Registrar of Marriage in England does not necessarily make it a monogamous marriage and if the husband is of a country which allows polygamy, the marriage though performed in monogamous England, the implication is, it is polygamous in character.
Mrs Marina Jatoi vs Nuruddin K Jatoi 20 DLR (SC) 27.
Marriage in England in form (.e., in accordance with the Marriage Act, 1949) which is recognised as valid under Muslim Law, such marriage can be terminated by a talaq.
Mrs Marina Jatoi vs Nuruddin K. Jatoi 20 DLR (SC) 27.
Muslim husband marrying a Christian woman-Muslim husband marrying a Christian woman in England) -
Such marriage can be terminated in Pakistan under the Muslim Family Laws Ordinance, the lex loci of the husband.
Mrs Marina Jatoi vs Nuruddin K Jatoi 20 DLR (SC) 27.
Marriage between a Pakistani Muslim and Christian in England cannot be dissolved under section 7—
Md Yakub Ali J (dissenting from the majority): Marriage between a Pakistani Muslim and Christian woman in England under the British Marriage Act, 1949 cannot be dissolved by talaq under section 7 of the Muslim Family Laws Ordinance-This can only be done by the divorce of a Court-Such a union being for life cannot be dissolved by pronouncement of talag but only by a Court's decree. Marriage between a Muslim male and Christian female can only be dissolved under the Divorce Act.
Mrs Marina Jatoi vs Nuruddin K Jatoi 20 DLR (SC) 27.
Section 7(1)-
No talaq without service of notice—
Non-compliance with the provisions of section 7(1) (regarding delivery of notice to the Chairman) makes talaq legally ineffective.
Abdul Aziz vs Rezia Khatoon, 21 DLR 733.
Section 7(1)-
Talaq becomes effective after the scheduled period-
Arbitration Council's function limited-
Once written notice of the pronouncement of a talaq in terms of sub-section (1) of section 7 is delivered to the Chairman, the talaq is otherwise valid, will be effective after the expiry of ninety days of the delivery of such notice or if the wife be pregnant at the time of the pronouncement of a talaq, till the pregnancy ends. Thus, so far as talaqs are concerned the Arbitration Council has no function except to take steps to bring about reconciliation between the parties; beyond this the Arbitration Council has nothing to do in this matter. Non-compliance with provisions of sub-section (1) of section 7 of the Ordinance makes talaq legally ineffective. The petitioner in the present case failed to prove compliance with the provisions of sub-section (1) of section 7 of the Ordinance, with the consequence that the alleged talaq, if it was pronounced by him, was not effective in law, so that in the eye of law the marriage between him and the opposite party subsists.
Abdul Aziz vs Rezia Khatoon, 21 DLR 733.
Section 7 (1)-
Per Mustafa Kamal J: Dissolution of marriage-
When a divorce proceeds from the husband, it is called talaq, when effected by mutual consent, it is called Khula or Mubara'at, according as the terms are. The Muslim Family Laws Ordinance, 1961 has given statutory recognition to a wife's right of divorce (Talaq-i-taufiz) in exercise of her delegated power to divorce, as also to dissolution of marriage otherwise than by talaq. There are different modes of talaq according as the pronouncement of talaq is by the husband. In the case of Talaq Ahsan (most proper), a single pronouncement is made during a tuhr (period between menstruations) followed by abstinence from sexual intercourse upto three following menstruations, at the end of which talaq becomes absolute. In the case of Talaq Hasan (proper), three pronouncements are made during successive tuhrs, there being no sexual intercourse during any of the following three tuhrs. In the case of Talak-ul-bidaat or Talak-i-badai (which is popularly called Bain talaq in Bangladesh) either three pronouncements are made during a single tuhr in one sentence or three separate sentences or a single pronouncement is made during a tuhr clearly indicating an intention to dissolve the marriage irrevocably. This form of talaq is not recognised by the Shafi and Shia Schools of thought, but the Muslim Family Laws Ordinance, 1961 recognises "pronouncement of talaq in any form whatsoever”, section 7(1).
Hefzur Rahman (Md) vs Shamsun Nahar Begum and another 4 BLC (AD) 14.
Section 7(1)(3)—
As the notice of talaq was given on 2-3-89 to the Administrator, Dhaka City Corporation and also to the petitioner talaq has, on the expiry of 90 days from the date of receipt of notice by the Administrator, taken effect as provided in sub-section (3) of section 7 of the Ordinance.
Ataul Hoque (Md) vs Anwar A Karim 4 BLC (AD) 190.
Section 7(1)(3)(5)—
Per Mustafa Kamal J : The Muslim Family Laws Ordinance, 1961 when interpreted in the light of Articles 8 and 8(IA) of the Constitution presumes iddat as laid down in the Holy Quran.
Hefzur Rahman (Md) vs Shamsun Nahar Begum and another 4 BLC (AD) 14.
Section 7(4)—
Divorce effective without constitution of council-
Divorce legally effective even in the absence of proof of constitution of Arbitration Council.
Abdul Aziz vs Rezia Khatoon, 21 DLR 733.
Section 7—
A divorce under the Ordinance is not a unilateral act, rather it involves a public authority in the matter. It precludes a divorce or talaq from being effective for a period of ninety days from the date of the receipt of the notice by the Chairman. Consequently, the marital status of the parties will not in any way change during that period. The parties in law will continue to remain husband and wife till the divorce is confirmed. Safiqul Islam and others vs State 46 DLR 700.
Section 7—
Ninety days' reconciliation period is to start from the date of the receipt of the notice by the Chairman and not from the date when it was written. Safiqul Islam and others vs State 46 DLR, 700.
Section 7, 25(1)
Admittedly appellant No.l Abdul Jalil of Civil Appeal Nos. 56, 57 and 58 of 1995 and appellant Mrs. Sharon Laily Begum Jalil of Civil Appeal No.l 59 of 1995 were man and wife and the latter having been divorced by the former in the month of May, 1995 following a breakdown of marital relations, the question of custody of their four minor childern, namely, Mohammad Nurul Alam Jalil (born on 23.4.1985), Jasmin Akhter Jalil (born on 8.9.1988), Sharlean Akhter.
It is now settled that the term 'welfare' must be read in the largest possible sense as meaning that every circumstance must be taken into consideration and the Court must do what under the circumstances a wise parent acting for the true interests of the child would do or ought to do. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can ties of affection be disregarded vide queen vs. Gyngall (1893) 2 QBD 232; Walter vs. Walter 55 Cal 730; Saraswathi Vs. Dhanakoti 48 Mad 299. Abdul Jalil and others vs. Mrs. Sharon Laily Begum Jalil(A.T.M. Afzal CJ) (Civil) 4 ADC 8
Muslim Family Laws Ordinance, 1961, is applicable only to the Muslims professing Islam as their faith and it does not apply to followers of other religions. Application of the Muslim Family Laws Ordinance has been overridden by Section 3 of the Family Courts Ordinance, 1985, in clear language providing that this Ordinance shall have effect notwithstanding anything contained in any other law. Nirmal Kanti Das Vs. Sreemati Biva Rani, 14 BLD(HCD)413
Section—7
Validity of a divorce without notice to the Chairman
Mere non-service of notice upon the Chairman of the Union Council as required under Section 7 of the Ordinance does not render the divorce necessarily ineffective if divorce is established by the conduct of the husband. Md.Sirajul islam Vs. Mosammat Helana Begum, 16 BLD (HCD) 477 .
Section—7(1)
Section 7(1) of the Ordinance provides for giving of notice of talaq to the Chairman and a copy thereof to the wife and provides for punishment for contravention and this law overrides any other provision of any other law But there being clear intention to divorce by the affidavit on the part of the petitioner and the same having been disclosed and produced before the lower appellate Court by the petitioner himself, the petitioner cannot take advantage of his own wrong and cannot claim the benefit of non-service of notice by him to the Chairman, he is bound by his admission. Md. Serajul Islam Vs Most. Helana Begum and others, 19 BLD (AD) 150.
Ref: Muslim Marriages and Divorces (Registration) Act, 1974 (LII of 1974)
Section—7(1)
Talaq pronounced by the wife must be communicated to the husband. When the communication is over and the husband admits to have received the same, the requirement of sub-section (1) of section 7 of the Ordinance has been duly complied with and the talaq-e-tawfiz became effective. Mrs. Sherin Akhter and another Vs Al. Haj Md. Ismail, 20 BLD (HCD) 159.
Ref: 15 DLR(SC)9; 16 BLD(HCD)477: 48 DLR 48; PLD 1984 Lahore 124—Cited.
Maintenance minor sons, who have been living with the mother in the house of the maternal grandfather
Under the Muslim Law the father is a natural guardian for the minor sons above age of seven years and, in a case where the father, during the life time of the children’s mother, is in the habit of taking wife after wife, this situation may change when the question of option of the minor sons comes into play and the paramount consideration is welfare of the minor. Even if the children prefer to live with the mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children. If the father objects to the custody of the children and want to assert his own legal right, the proper course for the father would be to apply for his custody, but so long as the custody of the children remains with the mother, he cannot on any plea refuse to pay maintenance for the children. Bazlur Rahman Sikder Vs. Mrs. Tahera Begum Shamima 6BLT (HCD)-191
Section 6 & 7
A close reading of section 6 and 7 of The Ordinance 1961 manifestly demonstrates that a Talaq in any form shall not stand effective and Talaq shall be no Talak in the eye of law unless provision contained in section 7(1) is sternly compiled with and marriage between husband and wife shall subsist and in the event of subsistence of existing marriage no man can enter into second marriage with a woman and if he enters second marriage he shall contribute himself to be punished under section 6(5) of The Ordinance. Dilruba Aktar Vs. A H Mohammad Mohsin. 11 BLT (HCD)-447
Subsection 5(b) of Section 6 read with Penal Code, 1860
Section-64
In subsection 5(b) of Section 6 of The Ordinance of 1961 provision of fine had been provided hut no consequence has been supplied in the event of default of payment of fine. In the absence of any consequence following nonpayment of fine, the imposition of fine becomes superfluous. This legal flaw perhaps went unnoticed by Lawmakers at the time of giving effect to certain recommendations of the commission of Marriage and Family Laws. The Ordinance of 1961 though is a special law, Laws engrafted The Penal Code can be pressed in aid of the flaw cropped up in subsection 5(b) of The Ordinance of 1961. Section 64 of The Penal Code can be pressed into service in the matter. Dilruba Aktar Vs. A H Mohammad Mohsin 11 BLT (HCD)-447
Section—7
Legal value of hearsay evidence
The High Court Division held that some respectable persons including Chairman were present at the time of the divorce and the same was taken place with the agreement of both the parties accepting the divorce and that Ismail Shaikh again married one Abiron of village Radhaballav and started to live there until his death and accordingly discharged the rule holding that the plaintiffs son of Ismail Shaikh is not entitled. to get .081/4 acre of land left by Kanchan Bewa due to earlier divorced by Ismail Shaikh. Md. Rabia Shaikh Vs. Md. Abdus Shobahan and Ors. 13 BLT (AD)164
Section-7
Validity of the Divorce
Mere non-service of notice upon the chairman of the union council under section 7 of the Muslim Family Law Ordinance cannot render the divorce ineffective if the conduct of the husband appears to be so. Md. Sirajul Islam Vs Mosammet Helena Begum & Ors. 3BLT (HCD)-40
Section-7(1)
In this case, as the notice of talak was given on 02.03.1989 to the Administrator, Dhaka City Corporation and also to the petitioner talak has on expiry of 90 days from the date of receipt of notice by the Administrator has taken effect as provided in sub-section (3) of Section-7 of the Ordinance. Md. Ataul Hoque Vs. Anwar A. Karim 8 BLT (AD)-30
Section-7(1)
Talak was pronounced on 08.09.1999 whereas the notice served on 14.01.1999 to the complainant but notice is to be served upon the chairman of the Arbitration Council concerned—there was not legal divorce on 14.11.999. Md. Giasuddin Khan Vs. Miss Beauty Begum & Ors. 8BLT (FICD)-328
Section 9–
Post maintenance–the court has the jurisdiction to pass decree for post maintenance in an appropriate case. Sirajul Islam vs Helana Begum and others 48 DLR 48.
Muslim Family Laws Ordinance, 1961— Accused contracted a second marriage on 17 .8. 75 during the subsistence of an existing marriage — After the dissolution of Local Bodies by P.O.7 of 1972 no amendment in the definition of "Arbitration Council", "Chairman" and "Union Council" having been made and no person having been appointed to discharge the function of the Chairman under the Ordinance, Sections 6 and 7 of the Ordinance have been rendered nugatory — There was no competent authority from whom the accused was required to take permission for the second marriage and as such he cannot be convicted of an offence U/S 6( 5) of the Ordinance — The Muslim Family Laws Ordinance (VIII of 1961) Ss. 2, 6 and 7 - The Bangladesh Local Councils and Municipal Committees (Dissolution and Administration) Order (P.0.7 of 1972), Arts .3 and 6 Farooque Mia Vs. Tahera liegum I BLD (HCD) 163.
Punishment for polygamy — When to be awarded — For awarding punishment for polygamy a finding as to the absence of the previous permission of the Arbitration Council is necessary — Muslim Family Laws Ordinance 1961, (VIII of 1961) S 6 Abul Basher Vs Nurul Nabi others 8 BLD (HCD) 189 Ref. ll)83 BCR (HCD) 239.
Maintenance of minor sons, who have been living with the mother in the house of the maternal grandfather -
Under the Muslim Law the father is a natural guardian for the minor sons above age of seven years and, in a case where the father, during the life time of the children’s mother, is in the habit of talcing wife after wife, this situation may change when the question of option of the minor sons comes into play and the paramount consideration is welfare of the minor. Even if the children prefer to live with the mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children. If the father objects to the custody of the children and want to assert his own legal right, the proper course for the father would be to apply for his custody, but so long as the custody of the children remains with the mother, he cannot on any plea refuse to pay maintenance for the children. (Para-6) Bazlur Rahman Sikder Vs. Mrs. Tahera Begum Shamima 6 BLT (HCD)-191
Section-9
Regarding the past maintenance
There is no provision for past maintenance in the Ordinance of 1961 and 1985. But in the instant case, it appears that for not fault of the opposite party (wife) the petitioner was neglecting and refusing to maintain her since 2 years before the institution of the suit— the court has the jurisdiction to pass a decree for past maintenance in an appropriate case like the instant one. Md. Sirajul Islam Vs Mosammet Helena Begum & Ors. 3BLT (HCD)-40
Whether a Muslim women could have claimed maintenance beyond the period of iddat.
Quran directs a woman who is divorced to undergo a period of iddat elsewhere and herein Quran directs a man to give maintenance in case he divorces his wife — a person after divorcing his wife, is bound to maintain her on a reasonable scale beyond the period of iddat, till she loses the status of a divorce by remarrying another person. Hefzur Rahman Vs. S. Nahar & Ors. 3BLT (HCD)-49
Whether pronounced talaq by swearing an Affidavit is a valid talaq in the eye of law as no notice to the Chairman of the Union Council was served
Section 7 (1) of the Ordinance provides for giving of notice of talaq to the Chairman and a copy thereof to the wife and provides for punishment for contravention and this law overrides any other provision of any other law. But there being clear intention to divorce by the Affidavit on the part of the petitioner and the same having been disclosed and produced before the lower appellate court by the petitioner himself. The petitioner cannot take advantage of his own wrong and cannot claim the benefit of non-service of notice by him to the Chairman. He is bound by his admission. Payment of dower being obligatory as per Nikahnama the wife is entitled to the same on talaq. Md. Serajul Islam Vs. Most Helena Begum & Ors. 7BLT(AD)-137
Maintenance—Muslim Women—in the light of the Holy Quran Per ATM Afzal, CJ: Relying on Sura At-Talaq, verse 6(65:6); and opening verse of Sura At-Talaq (65:1)
Held : There is a clear direction in respect of a pregnant woman who has been divorced and the direction is to bear her expenses till she has delivered. In the previous verse it has been stated that in the case of a pregnant woman her period of Iddat will be till delivery. It is therefore apparent that the maintenance has been related to the period of Iddat. The interpretation given by the learned Judges is thus apparently in conflict of the aforesaid verse—from the above, it is clear that the interpretation given by the learned Judges is not and cannot be acceptable because it brings conflict and even on the general criterion of interpretation as they also would not deny that a document should be read as a whole, the interpretation of the learned Judges must be rejected. M. Hefzur Rahman Vs. Shamsun Nahar Begum & Ors. 7BLT (AD)-33
Per Mustafa Kamal, J : The relevant Suras and Ayats of the Holy Quran on iddat, reconciliation, maintenance and mata a after pronouncement of talaq are to be found in Sura Al-Baqarah 12:228, 237, 241], Sura At Talaq [65 : 1-61, Sura-Al-Ahzab 33:49 and Sura Al-Nissa [4:35]. The Holy Quran divides divorced women into 6 categories— Separate provisions have been made in the Holy Quran for no or separate periods of iddats and maintenance for each of the above categories of divorced women. M. Hefzur Rahman Vs. Shamsun Nahar Begum & Ors. 7BLT (AD)-33
Per Latifur Rahman, J: In the Holy Quran there is no clear direction for payment of maintenance to a divorced woman. Verse 228 of Surah Baqarah translated in Bengali reads as follows:
“এবং তালাক প্রাপ্তগণ নিজেদের জন্য তিন ঋতু পর্যন্ত অপেক্ষা করবে।”
This is a direction of Allah as contained in the Holy Quran. Iddat is a period of waiting, After divorce the marriage tie between the husband and wife is dissolved and after the dissolution of marriage there remains no obligation between the parties outside the contract of marriage, but due to the period of iddat outside the contract of marriage an obligation for payment of maintenance has been created according to Muslim Law.... There being no direction of payment of maintenance during the period of “Iddat” in the Holy Quran, one is bound to follow the other sources of Islamic law for a guidance on the question of granting of maintenance to a divorced woman. M. Hefzur Rahman Vs Shamsun Nahar Begum & Ors. 7BLT (AD)-33
Section-9
Regarding the past maintenance - There is no provision for past maintenance in the Ordinance of 1961 and 1985, But in the instant case, it appears that for not fault of the opposite party (wife) the petitioner was neglecting and refusing to maintain her since 2 years before the institution of the suit—the court has the jurisdiction to pass a decree for past maintenance in an appropriate case like the instant one. [Paras-16 & 17] Md. Sirajul Islam Vs Mosammet Helena Begum & Ors 3 BLT (HCD)-40
Whether Muslim women could have claimed maintenance beyond the period of iddat -
Qur-an directs a woman who is divorced to undergo a period of iddat elsewhere and herein Qur-an directs a man to give maintenance in case he divorces his wife — a person after divorcing his wife is bound to maintain her on a reasonable scale beyond the period of iddat, till she loses the status of a divorce by remarrying another person. [Paras - 18 & 19] Hefzur Rahman Vs. S. Nahar & Ors 3 BLT (HCD)-49
Maintenance—Muslim Women—in the light of the Holy Quran
Per ATM Afzal, CJ : Relying on Sura At-Talaq, verse 6(65:6); and opening verse of Sura AtTalaq (65:1)
Held : There is a clear direction in respect of a pregnant woman who has been divorced and the direction is to bear her expenses till she has delivered. In the previous verse it has been stated that in the case of a pregnant woman her period of Iddat will be till delivery. It is therefore apparent that the maintenance has been related to the period of Iddat. The interpretation given by the learned Judges is thus apparently in conflict of the aforesaid verse—from the above, it is clear that the interpretation given by the learned Judges is not and cannot be acceptable because it brings conflict and even on the general criterion of interpretation as they also would not deny that a document should be read as a whole, the interpretation of the learned Judges must be rejected. [Paras-39 & 40]
Per Mustafa Kamal, J : The relevant Suras and Ayats of the Holy Quran on iddat, reconciliation, maintenance and mata’ a after pronouncement of talaq are to be found in Sura Al-Baqarah 12:228, 237, 241J, Sura At-Talaq [65: 1-6], SuraAl-Ahzab 33:49 and Sura Al-Nissa 14:351. The Holy Quran divides divorced women into 6 categories— Separate provisions have been made in the Holy Quran for no or separate periods of iddats and maintenance for each of the above categories of divorced women [Paras-10l & 102]
Per Latifur Rahman, J: In the Holy Quran there is no clear direction for payment of maintenance to a divorced woman. Verse 228 of Surah Baqarah translated in Bengali reads as follows:
“EBOND TALAK PRAPYOGON NIJEDER TIN RITU PORJONTO OPEKKHA KORBE” - This is a direction of Allah as contained in the Holy Quran. Iddat is a period of waiting. After divorce the marriage tie between the husband and wife is dissolved and after the dissolution of marriage there remains no obligation between the parties outside the contract of marriage, but due to the period of iddat outside the contract of marriage an obligation for payment of maintenance has been created according to Muslim Law .... There being no direction of payment of maintenance during the period of “Iddat” in the Holy Quran, one is bound to follow the other sources of Islamic law for a guidance on the question of granting of maintenance to a divorced woman, [Paras- 1 50& 155]
M. Hefzur Rahman Vs. Shamsun Nahar Begum & Ors. 7 BLT (AD)-33.
Section-9, Read with The Code of Criminal Procedure, 1898 Section-488
Past maintenance — A wife can claim past maintenance for herself and for her children for only 6 years prior to the filing of the suit.
From a reading of the entire ordinance of 1985 it appears that the provisions thereof are intended to provide for the establishment of Family Courts and for matters connected therewith and are not intended to make provisions for modification or amendment of Mohammedan law or any other substantive law. The Ordinance is indeed procedural in nature. Jamila Khatoon Vs. Rastom Ali 4BLT(AD)-97
Family Court Ordinance (XVIII of 1988)
Section 17
Code of Civil Procedure, 1908
Section 107 Order XLI rule 33
The mere fact of first plaintiffs not having preferred an appeal or a cross-appeal or cross-objection would not by itself be sufficient to justify refusal to exercise the power contained in rule 33 of Order 41 of the Code.
(প্রথম বাদীপক্ষের আপিল বা ক্রস-আপিল বা পাল্টা-আপত্তি না করার বিষয়টি কেবল দেওয়ানী কার্যবিধির আদেশ ৪১ এর ৩৩ নং বিধিতে থাকা ক্ষমতা প্রয়োগ করতে অস্বীকারকে ন্যায্য বলা যথেষ্ট নয়।)
HASIBUR RAHMAN (MD) VS. SHAKILA BEGUM AND ANOTHER, 53 DLR (2001) 152
Section 17— Appeal against the judgment and decree of the Family Court-Muslim Family Laws Ordinance, 1961—
Section 10— When mode of payment of dower is not specifically mentioned in the Kabinnama, the entire dower is presumed to be payable on demand—
Marriage between the plaintiff and the defendant is admitted. The wife though not taken to the house of the husband, claims to have their marriage consummated which is supported by consistent evidence. There is presumption to the effect that the marriage was consummated and the wife is entitled to the entire dower.
Marriage between the plaintiff and the defendant is admitted. The wife though not taken to the house of the husband, claims to have their marriage consummated which is supported by consistent evidence. There is presumption to the effect that the marriage was consummated and the wife is entitled to the entire dower.
(বাদী ও বিবাদীর মধ্যে বিয়ের বিষয়টি স্বীকৃত। যদিও স্ত্রীকে স্বামীর বাড়িতে নিয়ে যাওয়া হয়নি কিন্তু তাদের মধ্যে শারীরিক সম্পর্কের বিষয়টি স্বাক্ষ্য দ্বারা সমর্থিত। শারীরিক সম্পর্ক স্থাপিত হয়েছিল বিধায় স্ত্রী সমুদয় দেনমোহরের টাকা পেতে হকদার।
Wahcd AH (Md.) Vs. Moshma Khatun 14 MLR (2009) (HC) 427.
My considered view is that in view of the provision of section 16(3B) of the said ordinance, a fresh and separate cause of action will arise for failure to pay money of each and every instalment for the purpose of sending the judgment debtor to imprisonment for his failure to pay the money under each instalment.
The result, of my meticulous consideration of the provision of section 16(3B) of the Family Courts ordinance, 1985 which is a special law enacted for the purpose the judgment debtor cannot avoid payment of the money of the remaining instalments of the balance amount of the decretal money and if he fails to pay one instalment accordingly for each month, for each subsequent instalment he shall have to suffer imprisonment separately, if the decree holder so desires. [BLR 1999 ( HD) 297, DLR 51 ( HD) 554, BLD 19 ( HD) 466, MLR 5 ( HD) 276 ]
Section-20
The affidavit of divorce is a public document and it requires no formal proof the Appellate Court having the power of the original Court has rightly admitted the said instrument of divorce and legally marked the same as Ext. A. Sirajul Islam Vs. Helena Begum & Ors. 3BLT (HCD)-40
Section-21
Attorney in the instant case the defendant petitioner—the defendant petitioner is the husband of the plaintiff-opposite-party and he is male and not a pardahnashin lady and he cannot be represented by an authorised agent, here his brother in whose favour the Power of Attorney has been made by him (defendant). Md. Atiqur Rahaman Vs. Ainunnahar 7BLT (HCD)-241.
Changed this position the children of a predeceased son or daughter inherit the share- According to Muslim Law of inheritance, predeceased son's or daughter's children could not inherit any share of the property of their grand father/mother. The Muslim Family Laws Ordinance, 1961 has changed this position. According to Muslim Family Laws Ordinance, 1961 the children of a predeceased son or daughter inherit the share which they (the predeceased son or daughter) would have inherited if alive from the property of their parents...... Mohosin(Md) VS Mst. Angura Khatun, [5 LM (AD) 100]