Divorce Laws in Bangladesh: An Inequality Within the Constitutional Regime

By Quazi Irtiza Anjum

Divorce Laws in Bangladesh: An Inequality Within the Constitutional Regime

Even if it was considered a ‘taboo’ for the past few decades, divorce has now become a bitter reality of modern society. While the Republic’s Constitution upholds essential freedoms like the right to equality before the law, the prohibition on discrimination based on religion, the protection of the law, and the freedom to speech, when it comes to the right to divorce, a stark disparity emerges based on religious affiliation. Bangladesh’s divorce laws vary significantly depending on the religion one follows, leading to potential discrimination against certain communities. This article delves into the discriminatory nature of divorce laws in Bangladesh, discussing the different divorce procedures for various religions and their implications for the principles of equality enshrined in the constitution.

Divorce Laws for Muslims in Bangladesh:

In Bangladesh, Muslim personal law governs the laws related to marriage and divorce for Muslims. Islamic jurists recognise various forms of divorce, known as Talaq, providing both husbands and wives with certain rights and procedures. Talaq is the Islamic term for divorce, and it plays a significant role in Muslim personal law. Mohammedan jurists have identified six kinds of Talaq, each with its own unique procedures and implications. These include:

  1. Talaq Ahsan: A husband pronounces one revocable Talaq during a period of unconsummated purity. If not revoked during the iddah (waiting) period, the Talaq becomes effective.
  2. Talaq Hasan: This form consists of three single, revocable pronouncements made at different periods of unconsummated purity. The Talaq becomes effective after the third pronouncement, which cannot be revoked.
  3. Talaq-ul-bidaat: Known as triple Talaq, the husband pronounces Talaq three times in one sitting. This form is contentious and often debated for its legality and implications.
  4. Talaq-i-Tawhid: This refers to a wife’s power to divorce, but she can only exercise it if the husband delegates the authority to her through a contract.
  5. Khula: This is a form of mutual divorce where both husband and wife seek separation by mutual consent.
  6. Mubara’at: Another form of mutual divorce, initiated by either party expressing the desire to separate. Apart from these, talaq can also be obtained in Islam through Ila, Zihar, and Lian.

According to Islamic law, the husband has the absolute right to divorce, which gives him the upper hand over the woman. He may use this authority without consulting anyone else and without having to give a justification. The wife does not naturally possess the right to end a marriage, in contrast to the husband. She can, however, get the right to divorce if the spouse grants it to her via a Talaq-i-Tawhid or delegated Talaq agreement. The contract between the husband and wife determines whether the wife has the right to end the marriage. If the terms of the marriage contract provide for the delegation of such authority, the wife may use it without consulting the husband or a judge.

In Bangladesh, Muslim divorces are governed by a combination of religious principles and legal provisions. Talaq, being a critical aspect of Islamic personal law, grants the husband the right to divorce unilaterally. However, a wife may obtain the power of divorce through delegation if specified in the marriage contract. The Muslim Family Laws Ordinance, 1961, and the Dissolution of Muslim Marriages Act, 1939, provide the legal framework for divorce procedures, while the Muslim Marriages and Divorces (Registration) Act, 1974, deals with the registration of divorces. Understanding the following key provisions of these laws is essential for safeguarding the rights of both parties and ensuring a fair and just process for Muslim divorces in Bangladesh.

  1. Muslim Family Law Ordinance, 1961:
  • The Muslim Family Laws Ordinance, 1961, lays down the procedure for Talaq by the husband, enabling him to divorce his wife. Section 7 of the Ordinance prescribes the step-by-step divorce procedure that a husband must follow.
  • Section 8 of the Muslim Family Laws Ordinance, 1961, allows a wife to exercise her right to divorce if she has been delegated this authority by her husband. In such cases, she may use the same procedure as the husband, as specified in Section 7 of the Ordinance.
  1. Dissolution of Muslim Marriage Act, 1939:
  • Under the Dissolution of Muslim Marriages Act, 1939, a wife is entitled to obtain a decree for the dissolution of her marriage under Section 2 of the Act. The Act outlines various grounds on which a wife can seek a decree for divorce, including cruelty, desertion, and impotency, among others.
  1. The Family Courts Ordinance, 1985:
  • Section 5 of the ordinance talks about the jurisdiction of the family court, and Section 6 describes how a suit can be instituted under this ordinance in the family court.
  1. The Muslim Marriages and Divorces (Registration) Act, 1974:
  • The Muslim Marriages and Divorces (Registration) Act, 1974, deals with the registration of Muslim marriages and divorces. A divorce under Muslim law must be registered with a registrar, as per Section 6 of the Act. If a wife has been delegated the power to divorce, proof of such delegation must be presented to the registrar for registration.

Islamic divorce laws in Bangladesh predominantly favour men, allowing husbands to unilaterally divorce their wives through Talaq. On the other hand, wives face more stringent requirements and often require approval from religious authorities to obtain a divorce. While Islam allows divorce under specific circumstances, the inherent inequality in the process raises concerns about gender discrimination, which contradicts the constitutional principle of equality before the law. Despite Article 27 of the Constitution, which guarantees equal rights, Islamic divorce laws perpetuate gender disparities in marriage dissolution.

Divorce Laws for  Hindu(s) in Bangladesh:

Hindu marriage is seen as a divine relationship and a sacrament; hence, divorce and marriage dissolution are not allowed in Hindu personal law. Because of this, Hinduism views marriage as a holy union that cannot be dissolved through husband-and-wife divorce. As a result, Hinduism places a great value on marriage, and breakups or divorces are not tolerated.

Thus, alternative methods have been developed to circumvent the legal requirement:

  1. Application for separate residence and maintenance:

In Bangladesh, there is no separate law on Hindu Marriage and Divorce. However, there is an Act named The Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946. Under this Act, A Hindu married woman can ask for separation and maintenance from her husband upon satisfying the grounds that are mentioned in Section 2 of the Act.

  1. Dissolution of Marriage:

Instead of Divorce, a Hindu couple can file a petition at the Family Court to obtain Dissolution of Marriage under Section 6 of the Family Courts Ordinance of 1985.

  1. Application to the court for declaration of dissolution of marital relationship:

A Hindu couple can make an application to the court for any declaration relating to their marital relationship under Section 42 of the Specific Relief Act of 1877.

  1. Mutual Separation/Dissolution Agreement:

This process lacks adequate legal validity and is extremely informal in nature. However, parties, when in mutual agreement as to the dissolution of the marriage, often tend to prefer this method of separation. Parties under this agreement waive their marital and other related rights and declare the dissolution of marriage.

While this provides some recourse for Hindu women facing difficulties in their marriages, the absence of a comprehensive divorce law can be seen as discriminatory. The lack of a clear legal framework may lead to ambiguity and potentially hinder access to justice for Hindu women seeking divorce. The Hindu community in Bangladesh faces unique challenges when seeking divorce. While the Constitution guarantees equality before the law and prohibits discrimination on the basis of religion, there is still no specific law governing Hindu marriage and divorce.

Divorce Laws for Christians in Bangladesh

Marriage is regarded as an eternal and lifelong connection in Christianity; hence, there is no mention of divorce or dissolution of marriage. Divorce is likewise prohibited in Christian personal law. However, Christian divorce is possible under certain conditions. The Divorce Act of 1869 in Bangladesh included provisions for the divorce or dissolution of Christian marriages by a decree of the court.

The Husband and Wife can file a petition for dissolution of the marriage under sections 3 and 10 of the Act, respectively.According to Section 12 of the Act, an order for dissolution of the marriage shall be issued if the court is satisfied based on the facts of the alleged ground and is confident that the allegation is not collusive or that there is no condonation of the alleged ground of filing a divorce.

A similar petition could thereafter be brought at the High Court Division if the court dismisses the petition for lack of satisfaction. If the divorce is legitimate, the District Court will issue a decree for the dissolution of the marriage. The High Court Division may review the decree, as stated in Section 17 of the Act, and it will not be confirmed until six months have passed since the decree was issued.

Furthermore, the parties can also file a petition for an order for the nullity of marriage under Section 19 of the Act. However, to nullify the marriage, the court must be satisfied that the consent of either party was not obtained by force or fraud.

Alternatively, the Parties can also opt for judicial separation under Sections 22 and 23 of the Divorce Act, 1869, on the grounds of Adultery, Cruelty, and desertion for two years or more without any reasonable ground.

Thus, the Christian community faces its own challenges when seeking divorce in Bangladesh. The Divorce Act of 1869 provides grounds for divorce for both husbands and wives, but the grounds vary, potentially leading to unequal treatment. Moreover, while the Constitution guarantees protection of the law, Christian divorce laws may present obstacles for individuals seeking dissolution, impacting their access to justice and protection.

Divorce Laws for Buddhists in Bangladesh

The Buddhist perspective on marriage views it as an informal relationship rather than an act of sacrament. Hence, Divorce is not prohibited in Buddhism. As there is no Buddhist personal law in Bangladesh, the country’s Buddhist residents do not adhere to any specific divorce laws.

However, The Family Law Ordinance, 1985, applies to everyone, irrespective of their religion. This ordinance mentions dissolving the marriage by instituting a suit at the family court. Instead of Divorce, a Buddhist couple can file a petition at the Family Court to obtain Dissolution of Marriage under Section 6 of the Family Courts Ordinance of 1985. Additionally, A Buddhist couple can also make an application to the court for any declaration relating to their marital relationship under Section 42 of the Specific Relief Act of 1877.

Alternatively, the couple can also opt for mutual separation. This process lacks adequate legal validity and is extremely informal in nature. However, parties, when in mutual agreement as to the dissolution of the marriage, often tend to prefer this method of separation. Parties under this agreement waive their marital and other related rights and declare the dissolution of marriage.

Buddhists, like Hindus, lack a specific divorce law tailored to their religious practises. Instead, the Special Marriage Act of 1872 applies to Buddhists in some limited circumstances. While this Act allows for divorce on certain grounds, it does not cater to the specific cultural and religious context of Buddhist marriages. This lack of a dedicated divorce law may create difficulties for Buddhist couples seeking divorce, potentially affecting their right to equality before the law.

Divorce Laws for Atheists in Bangladesh:

A person who does not claim any particular faith may get married under the Special Marriage Act, Section 2, if they meet certain requirements.

Additionally, Section 17 of this Act states that the Divorce Act of 1869 shall be applicable to people who enter into marriages under this Act. It specifies that a marriage may be deemed null or dissolved in accordance with the Divorce Act’s guidelines. Therefore, in accordance with The Special Marriage Act of 1872 and The Divorce Act of 1869, an Atheist living in Bangladesh may submit a divorce petition.

Atheists, as individuals who do not adhere to any religion, face unique challenges when navigating the legal system for divorce. While the Special Marriage Act of 1872 applies to atheists, it may not adequately address their needs and concerns. The absence of a specific law tailored to atheist marriages may lead to potential discrimination, hindering their right to equality and protection under the constitution.

The discriminatory nature of divorce laws in Bangladesh raises significant concerns regarding the constitution’s commitment to equality before the law. Article 28 explicitly prohibits discrimination based on religion, among other factors. However, the existence of distinct divorce laws based on religious affiliation inherently discriminates against individuals from certain religious communities, undermining the constitutional principles of equality and protection of the law. Moreover, the right to divorce is intertwined with the rights to personal autonomy, privacy, and freedom of choice, all of which are protected under the constitution. By perpetuating unequal divorce laws, the state potentially interferes with individuals’ rights to make personal decisions about their marriages and family lives.

The divorce laws in Bangladesh exhibit inherent disparities based on religious affiliation, leading to potential discrimination and challenges to constitutional principles. The lack of dedicated divorce laws for certain religious communities may hinder access to justice and perpetuate gender inequality within marriage dissolution procedures. In order to uphold the principles of equality and protect citizens’ fundamental rights, there is a pressing need to review and reform the divorce laws to ensure equal treatment and access to justice for all individuals, irrespective of their religious beliefs. By adopting more inclusive and equitable divorce laws, Bangladesh can take significant strides towards upholding the constitutional rights of all its citizens and fostering a more just and harmonious society.