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your Legal Advisor

Published : Thursday, 25 October, 2018 at 12:00 AM Count : 756

Dear readers, this week Your legal advisor is Ishrat Hasan, Advocate, The Supreme Court of Bangladesh. She is  Managing partner of the renowned law firm namely, 'The Law Consultant', Eastern Mansion, 67/9 Pioneer Road, Kakrail, Dhaka, which professionally deals mainly with corporate law, cyber Law, commercial law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies. She can be reached at - cell: 01521515654 e-mail: ishrat.lawyer@gmail.com


Query

My elder brother is now serving in a non-government organisation. He married one of his colleagues six years back. Unfortunately, the marriage did not work out and my brother divorced his wife by registering the divorce in accordance with law. The copy of registered divorce was sent to his wife. Later, after almost a year, my said brother tied the knot with another woman and was happily leading his conjugal life. Soon after his second marriage, a notice from a magistrate's court was served upon my brother to appear before the court to answer the charge of taking the second wife without permission of the first wife and arbitration council. We were astonished to learn how a divorced wife may be the first wife and why one should take her permission and from the arbitration council.

We have engaged a local lawyer. He has obtained bail for my brother but seems to be not hopeful about the result of the case. I came to know by a reading the complaint that the Talaq was not legal and the charge is punishable up to one year under the Muslim Family Law. I am really worried about the whole incident. I am seeking your advice in this regard.

Shamim Afran
Dhanmondi, Dhaka



Opinion

Thank you for your query. Ignorance of the law is not a defence. Thus the government should make sure that law should be well publicized so that lay people can avoid sufferings. Muslim personal law permits Talaq by pronouncement as you have understood but the Muslim Family Laws Ordinance, 1961, has made a mandatory provision requiring - any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of Talaq in any form, give the chairman notice in writing of his having done so, and shall supply a copy thereof to the wife. Violation of this law is made punishable with imprisonment for a period no| exceeding one year and also liable to fine not exceeding ten thousand taka. By legislative enactment, the procedure of Talaq is laid down to be followed by every Muslim. This is a special law made for the purpose and will prevail over the personal law. And its violation is made punishable. Therefore, we as subjects of the state are bound to follow the prevailing law of the land or to take the consequences. As the Talaq was not given in accordance with law, the marriage tie legally subsisted and your brother's first wife took the opportunity of violation of the law in this regard.

Talaq in any form must be effected through the local UP-Chairman and in case of Paurashabha and City Corporation the Paurashabha Chairman and the Mayor respectively. The affidavit and prior registration of Talaq by the Marriage registrar are optional. Those are mere extra-legal formalities developed by court practices. They by themselves do not validly dissolve a marriage unless the matter is not brought to the notice of the Chairman or the Mayor. Once the notice of Talaq is given to the chairman with a copy of the same to the wife it takes effect after the expiry of 90 days from the date of its receipt by the chairman and in case of pregnancy of the wife after pregnancy. The second marriage would not be void by reason merely of contracting it in violation of law nor would the child born be illegitimate. But such violation is punishable as provided under law. Engaging a good lawyer would be a better option in this regard. I hope the above opinion meets your query.



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