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Islamic Family Law

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    Islamic Family Law

     

    Legal System/History

     

     

    Islamic Family Law

    The legal system is based in part on English common law. Bangladesh seceded from Pakistan in December 1971. The British-era legislation applied in Pakistan after 1947 and post-partition legislation enacted in Pakistan continued to form the basis of Bangladeshi personal status laws, but legal developments since 1972 have been distinct.

    School(s) of Fiqh

    Hanafi majority; Hindu and Christian religious minorities

    Constitutional Status of Islam(ic) Law 

     

    Constitution adopted 4 November 1972. Amended in 1977 to remove principle of secularism included in Part II entitled Fundamental Principles of State Policy. Amended again in 1988 to insert Article 2(a) declaring Islam official state religion, while reiterating that other religions may be practised in peace and harmony.

    Court System

     

     

     

     

     

    Islamic family law is applied through the regular court system. The judiciary is organised at two levels, with subordinate courts and a Supreme Court with Appellate and High Court Divisions. The Family Courts are the courts of first instance for personal status cases of all religious communities, although different religious communities are governed by their own personal status laws. The jurisdiction and functions of these courts are governed by the Family Courts Act 1985. Jurisdiction is limited to civil suits, and any criminal offences that arise in the context of civil cases come under the jurisdiction of Criminal or Magistrates Courts.

    Relevant Legislation

     

     

     

     

     

     

     

     

    Guardians and Wards Act 1890Child Marriage Restraint Act 1929

    Muslim Personal Law (Shari�at) Application Act 1937

    Dissolution of Muslim Marriages Act 1939

    Muslim Family Law Ordinance 1961

    Muslim Marriages and Divorces Act 1974

    Family Courts Act 1985

    also:

    Dowry Prohibition Act 1980

    Cruelty to Women (Deterrent Punishment) Ordinance 1983

    Repression against Women and Children Act 2000

    Notable Features

    Marriage Age: 21 for males and 18 for females, lunar calendar; penal sanctions for contracting under-age marriages, though such unions are not considered invalid Marriage Guardianship: governed by classical Hanafi law

    Marriage Registration: penal sanctions for those in violation of mandatory registration requirements for marriage; failure to register does not invalidate the marriage

    Polygamy: introduction of new regulations on polygamy by MFLO 1961; constraints placed on polygamy by requirement of application to the local Union Council for permission and notification of existing wife/wives; penal sanctions for contracting a polygamous marriage without prior permission, though there are no sanctions for failing to obtain existing wife�s permission and subsequent marriage is not invalidated for lack of registration or failure to obtain official permission; the husband�s contracting a polygamous marriage in contravention of legal procedures is sufficient grounds for first wife to obtain decree of dissolution

    Obedience/Maintenance: governed by classical law; in Nelly Zaman v. Giasuddin Khan (34 DLR (1982) 221) husband�s suit for forcible restitution of conjugal rights considered outmoded and untenable when considered with relation to principle of gender equality enshrined in the Constitution

     

    Talaq: introduction of new regulations on talaq by MFLO 1961; every talaq uttered in any form whatsoever (except third of three) has effect of being single and revocable; formalisation of reconciliation and notification procedures, and procedures for recovery of mahr; penalties for non-compliance

     

    Judicial Divorce: grounds on which women may seek divorce include: desertion for four years; failure to maintain for two years or husband�s contracting of a polygamous marriage in contravention of established legal procedures; husband�s imprisonment for seven years; husband�s failure to perform marital obligations for three years; husband�s continued impotence from the time of the marriage; husband�s insanity for two years or his serious illness; wife�s exercise of her option of puberty if she was contracted into marriage by any guardian before age of 18 and repudiates the marriage before the age of 19 (as long as marriage was not consummated); husband�s cruelty (including physical or other mistreatment, unequal treatment of co-wives); any other ground recognised as valid for dissolution of marriage under Muslim law; judicial khul� may also be granted without husband�s consent if wife is willing to forgo her financial rights; in Hasina Ahmed v. Syed Abul Fazal (32 DLR (1980) 294) woman was granted khul� by judicial decision in spite of husband�s refusal

     

    Post-Divorce Maintenance/Financial Arrangements: generally governed by classical law; judgements deviating from classical law often refer to social welfare arguments as well as reinterpretation of original sources of Islamic law; in Rustom Ali v. Jamila Khatun (34 DLR (1991) 301) wife not entitled to arrears of maintenance and maintenance only ruled payable from date the suit is brought before the Family Court until three months from decree of dissolution of marriage; in Md. Hefzur Rahman v. Shamsun Nahar Begum (15 BLD (1995) 34) divorcing husband�s responsibility to maintain his divorced wife considered to continue beyond expiry of �idda period, husband bound to provide maintenance on a reasonable scale for an indefinite period (judgement was quashed and classical law reaffirmed upon appeal in 1998)

    Child Custody: general rules is that divorc�e is entitled to custody until age of 7 for males (classical Hanafi position) and puberty for females, subject to classical conditions, though there is some flexibility as ward�s best interests are considered paramount under terms of Guardians and Wards Act 1890; in Md. Abu Baker Siddique v. S.M.A. Bakar & oths (38 DLR (AD) 1986) classical Hanafi rules ending mother�s rights over custody of male children at the age of 7 were deviated from in best interests of the child; mother�s name must be included with father�s name in child�s documents

    Succession: governed by classical law although customary law may predominate under certain circumstances; at times customary law favours women; concept of obligatory bequest in favour of orphaned grandchildren introduced by MFLO 1961 allows for heirs through sons and daughters to inherit the shares their fathers/mothers would have been entitled to had they not predeceased the grandparents

    Law/Case Reporting System

    Bangladesh Legal Decisions, Dhaka Law Cases, Dhaka Law Reports

    International Conventions (with Relevant Reservations) & Reports to Treaty Governing Bodies

     

    CEDAW � signature 1984 with reservations to Arts. 2 & 16(1)(c) (3rd periodic report 8 Apr. 1993; 3rd and 4th periodic reports 1 Apr 1997) CRC � signature & ratification 1990 with reservations to Arts. 14(1) & 21

    ICESCR � accession 1998 with declarations regarding Arts. 1, 2 & 3

    Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages � accession 1998 with reservations to Arts. 1 & 2

     

    NB:

    The writing has been copied from Mr. Abdullahi A. An-Na'im thesis published in online.

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