Bangladesh Family Law – Divorce Procedure in Bangladesh

Everything you need to know about divorce in Bangladesh

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Tahmidur Rahman, Senior Associate and Director

5 Aug 2019

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How to file a divorce in Bangladesh? Taking a divorce in Bangladesh could have an effect on both partners if the correct procedures are not followed.The following post & Infographics will give you a thorough overview of divorce procedure in Bangladesh.

The Legal Process of Obtaining a divorce in Bangladesh

Marriages and Divorces (Registration) Act, 1974 oversees the procedure of divorce in Bangladesh. Divorce is the only valid way to end a relationship other than an act of God. The divorce process is very straightforward in Bangladesh. The simple three steps are:

i) Giving written notice,

ii) Meeting the Arbitration Tribunal,

iii) After the expiry of 90 days, taking the Registrar’s registration certificate.

Here in the following paragraphs we will explain the procedure of divorces amongst all communities and faith in Bangladesh.  

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Divorce Procedure if you are a Muslim:

 

Divorce is the legal dissolution of the material bond between the parties complying with the requirements of the law. Nevertheless, Islamic law means a distinction between the breakup of the marital relationship by the party filing for divorce. In general, Muslim law provides for two forms of divorce that include:


(i) Extra-judicial divorce and

(ii) Judicial divorce.

Extrajudicial divorce consists of three types,

(i) divorce by the spouse (talaaq, ila, zihar),

ii) by the wife (talaaq-e-tawfeez, lian) and

iii) through mutual consent (khula, muba’rat).

Here the talaq classification in details:

 

 1: Talaq from the Husband 

 

Simply ‘Talaaq’ is a divorce by the husband. If the husband pronounces talaaq once during a tuhr that leads to abstinence from sexual intercourse in order to complete the iddat duration, the talaaq will become successful. The tuhr period is the interval between menstruations.

        2: Talaaq-e-Tawfeez by Wife

Talaaq-e-Tawfeez is a divorce procedure in which the wife may, on her own behalf, renounce her marriage in accordance with the delegation provided by her husband. Now, this is a bit complicated, as the provision of this talaaq has to be drawn up in the niqahnama under section 18 with the permission of the husband.

 

        3: Talaaq through mutual agreement

 

Here both husband and wife through their mutual perticiaption aims for a seperation. It’s also termed as Mubarat. Mubarat is also one kind of dissolution of marriage where both of the parties want mutual separation and the aversion is mutual.

 

“Under traditional Islamic law a bare talaq divorce is deemed to have taken place when the husband pronounces three times “I divorce thee”. This pronouncement dissolves the marriage instantly.”

Divorce in Hindu Marriage:

 

Steps towards dissolution of Hindu marriage:

 

➤ Petition to file for divorce –

First of all, a joint petition for dissolution of marriage for a decree of divorce is to be presented to the family court by both husband and wife on the ground stating that they have not been able to live together and have mutually agreed to dissolve the marriage or they have been living separately for a period of one year or more.

This petition will, then, be signed by both the parties.

 

➤ Appearing before Court and inspection of the petition-

 

After that, both the parties will have to stand before the family court after the filing of the petition. The parties would present their respective counsels/lawyers

The court would gradually observe the petition along with all the documents presented in the court by the counsels of both parties individually.

The court may even attempt to bring reconciliation between husband and wife; however, if this is not possible, the matter proceeds for further follow-ups.

 

➤ Passing orders for a recording of statements on oath-

Eventually, the petition is examined by the court and it satisfies, court may order the party’s statements to be recorded on oath.

 

 ➤The first motion:

 

The first motion shall be passed and a period of 6 months shall be given before the second motion Then, once the declarations have been made, a decision on the first motion shall be given by the court. After that, all parties will be granted a six-month period of divorce before they can file a second petition. The maximum time period for filing a second request is 18 months from the date of submission of the divorce application to the Family Court.

➤The second motion :

 

Second motion and final hearing of the petition Once the parties have decided to proceed further with the proceedings and to appear on the second motion, they can proceed with the final hearing. It includes the presentation of the parties and the recording of the comments before the Family Court.Recently, the Supreme Court has held that the 6 months period given to the parties can be waived off at the decision of the court.

Therefore, the parties who have genuinely settled their differences including alimony, custody of the child or any other pending issues between the parties, this six months it can be waived off. Even if the court is of the opinion that the waiting period will only extend their sufferings, the six months can be waived off in this case also.

 

➤ Decree of Divorce

 

In the case of a joint divorce, the two parties must have given their consent and there must be no discrepancies in the issues relating to the estate, custody of the child, care, property, etc. There must therefore be a complete agreement between the parties on the final decision on the dissolution of the union.
If, after hearing the parties, the court is satisfied that the claims in the petition are valid and that there can be no hope of reconciliation and cohabitation, it may pass a divorce decree ordering the marriage to be dissolved.

The divorce comes to an end once the divorce order has been signed by the judge.

 

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Divorce in Christian Marriage:

 

Divorce in Christian marriage can not be induced by a declaration of divorce by either side or by mutual agreement, except by a court order. The provisions for the dissolution of Christian marriage by order of the court was included in the Divorce Act of 1869. Under the provisions of this Act, any husband may make a petition to the District Judge’s court or to the Supreme Court of Bangladesh for the dissolution of his marriage on the ground that his wife is guilty of adultery. Likewise, any woman can make such a petition to either court for the dissolution of her marriage on any of the following grounds:

(i)I that the husband, after marriage, has converted to any religion other than Christianity and has married another woman;

(ii) that the husband is guilty of incestuous adultery;

(iii) that the husband is guilty of adultery with bigamy;

(iv) that the husband is guilty of marriage with another woman and adultery;

(v) that the husband is guilty of rape, sodomy or bestiality;

(vi) that the husband is guilty of adultery;

(vii) that the husband was guilty of adultery combined with desertion for two years or more without a reasonable excuse.

 

If the court is satisfied on the basis of evidence of the alleged ground and is satisfied that the complaint is not collusive or that there is no connivance or condonation of the alleged act of adultery, an order for dissolution of the marriage is issued.

A district judge can, subject to approval by the High Court Division, issue a decree for the dissolution of marriage nisi. The Board of Three Judges of the High Court Division may, by majority opinion, approve such a decision after hearing or further examination or taking further evidence.

 

Following the dismissal by the district judge of the petition for dissolution of the marriage, the petitioner may submit a similar petition to the High Court Division. The three judges of the High Court Division may also, by majority opinion, issue an order for the dissolution of marriage on a petition filed before the High Court Division. Either of the above two courts may also issue an order for the nullity of marriage on any of the following grounds:

(i) that one of the parties was powerless;

(ii) that the parties are within the forbidden degree of consanguinity or affinity;

(iii) that either party is insane at the time of marriage;

(iv) that the former husband or wife of either party existed at the time of marriage, and that marriage was then in effect.

Once, the husband or wife can, without a reasonable excuse, seek a judicial separation order from either court on the grounds of adultery, abuse or desertion for two years or more. Such an order for judicial separation may be overturned by the court on the basis that it was imposed in its absence and that there was a reasonable excuse for the suspected desertion. The court may also issue an order to protect the estate of a deserted woman.

Likewise, an order for the restoration of conjugal rights may also be issued if either the husband or the wife has withdrawn from the other’s business without a reasonable excuse.

Frequently Asked Questions about Divorce in Bangladesh –  Clients also ask these questions about Divorce

In regards to obtaining divorce in Bangladesh, people also ask these questions frequently, hence this FAQ content block is dedicated to answering your questions.

 

How can I divorce my wife in Bangladesh?

As the Muslim Family Laws Ordinance governs the procedure for seeking a divorce, the husband can seek divorce under this regulation by pronouncing talaq and giving written notice to the parish chairman of the union or other designated official and by sending a copy of the notice to his wife. The chairman is then obligated to set up an arbitration committee responsible for the purpose of attempting mediation between the parties.

If such attempts fail, after iddat, divorce is normally effective-a three-month period that must pass before the divorce becomes effective-or, at the end of her pregnancy, whatever happens afterwards, if the wife is pregnant at the time of talaq.

How Shia and Sunni divorce works?

Witnesses are not needed by Sunni Muslims. With a waiting period of three months, the husband must express his wish for a divorce on three different occasions. Two witnesses are needed by Shi’ah Muslims, followed by a waiting period before a marriage can end. It is referred to as khula if a woman initiates a divorce.

Is divorce is always the best option?

Couples with extreme issues such as intense conflict, violence, mental health problems, misuse of alcohol and narcotics, or financial mismanagement frequently find a good alternative to divorce. For individuals who have “fallen out of love” or encounter difficulties with marriages, though, divorce is also not the answer that many people believe it would be.

How can we mutually divorce each other in Bangladesh?

Mutual divorce is simply an arrangement between all parties about divorce and the consequences of divorce. For instance, agreement is reached on child custody, maintenance, dowry, etc.

Notice is not needed in the event of a joint divorce, since both parties are aware of the divorce. After mutual divorce, neither party would have any right over one another. Certificates of joint divorce are typically given within 3 to 5 working days.

How can I divorce my husband in bangladesh?

Bangladesh’s divorce process is very straightforward. The husband and the concerned city corporation will be issued a notice of divorce by registered post. Upon receipt of the notice, City Corporation will issue 3 notices for fair settlement between the parties within a span of 3 months. And the wife will preserve the time of Iddah during this 3 month period.

A woman can’t remarry during the Iddah era. City Corporation will release an order sheet concerning divorce after 3 months of obtaining the notice. The divorce certificate will then be issued by the Marriage and Divorce registrar.

Can I get my dower money if I divorce my husband?

Divorce has nothing to do with getting the dower from your husband which you rightfully deserve . Women are still entitled to get the money from the dower regardless of who gives the divorce as the women’s right is from the dower.

If consummation between husband and wife has not taken place, however, then the wife is entitled to half the dower settled. Nevertheless, it is very difficult to claim that between husband and wife there was no consummation.

What if I don't receive the divorce notice from my spouse?

The notice is considered to be exchanged as soon as the notice is sent to the last known address of the other party. It does not matter if the notice of divorce is not obtained by anyone from the party. It follows the conventional postal address rule.

What happens if either party does not receive notice of divorce in Bangladesh?

The notice is considered communicated as soon as it is sent to the other party’s last known address. It makes no difference if one of the parties does not get the divorce notice.

What action can I take if my Husband marry someone without divorcing me or taking my consent?

If a husband, while being married, procures a marriage of himself, it will be an offence under section 494 or 495 of the penal code and the second marriage will be void.

Can someone take any action after the completion of divorce?

The question sometimes asked is whether, after having a divorce, some action can be taken against the other party. The reply is no.

But what is sometimes done by parties after divorce is to file a false case under Nari o shishu Nirjaton Damon Ain (Act xviii of 1995) or Dower’s non-payment under The Dowry Prohibition Act 1980.

Who gets child custody after divorce? Father or mother?

Under Islamic law, the legal guardian of a child is always the father. Custody, however is distinct from legal guardianship. Custodial guardianship determines who will have the child’s physical custody.
A mother usually gets a girl’s child’s custody until the girl hits puberty, and a mother gets custody until she reaches 7 years for a boy’s child.

However, child custody does not transfer to the father immediately after this time limit.
Having custody of a child often depends on different facts, such as the child’s age, financial status, family members of each group, whether there are more individuals in the family to take care of the child, etc.

What are the rules on wife maintenance fee after divorce?

The wife is entitled during the iddah time i.e. 3 months after divorce, to obtain maintenance. The husband is not obligated to provide the wife with care after the Iddah time is over.

Will I get child maintenance fee from my husband after divorce in Bangladesh?

And if the child is in the mother’s care, depending on the child’s spending, the father has to provide child maintenance and support, such as school fees, travel expenses, and other different expenses.

Can I get my divorce while residing in a foreign country?

The legal authority in this matter is silent or provides no clear answer. However, for divorce, two notices are to be issued, one to the husband and the other to the appropriate City Corporation, as per section 7 of the Muslim Family Laws Ordinance, 1961. It is possible to do this from outside Bangladesh.

Furthermore to keep it on record, the divorce needs to be registered with the Qazi. This can be achieved only in the presence of the divorce-giving party. This is because it includes the party’s signature and finger print. Therefore outside Bangladesh, divorce can be partly carried out.

How to get legally married in Bangladesh?

Under Bangladeshi civil law, all marriages in Bangladesh are required to be registered with the local marriage registrar. The applicant should contact the Kazi office or the registrar who registered the marriage to obtain the marriage certificate and the Nikah Nama (Bengali and English versions) for Muslim marriages.

What if I get sexually abused by my Bangladeshi spouse? How can one file a complaint?

Under Nari-O-Shishu Nirjaton Daman Ain 2000, a case may be filed for sexual assault or crime. In terms of sexual assault, this law is very stringent in Bangladesh and gives the utmost punishment. Non-bailable are all offences under this act.
Complaints may be filed in two forms under this act.

One way is to fill a FIR which will be submitted to the magistrate court and finally to the Nari-O-Shishu Nirjaton tribunal in the appropriate police station.
Another way to lodge a complaint under this act is to lodge a petition at the Nari-O-Shishu Nirjaton court. Typically, this is achieved when the appropriate police department refuses to consider the complaint.

Is there any legal action available for adultery in Bangladesh?

In Bangladesh, adultery is treated as a criminal offence dealt with in the Penal Code 1860, Chapter XX (Offenses related to marriage). In addition to listing the penalties that one might face for committing adultery, Section 497 of the Penal Code 1860 defines the elements needed to be proven to punish anyone for adultery. It says that if a person has sexual intercourse with a person who is and who he knows or has reason to believe is another man’s wife, he will be guilty of adultery without that man’s permission or connivance.

If however, a man has sexual intercourse with a woman who knows and/or believes that she is another man’s wife and does so without the woman’s consent, that will amount to rape, and that person is tried in relation to rape under the laws of Bangladesh. But that is an entirely different situation.

How to prove or establish adultery of my spouse in Bangladesh?

The basic and definitive criterion that needs to be proven to determine that a person has committed adultery is that the person had sexual intercourse with a married woman without the permission or connivance of that woman’s husband.

In one case, the Bangladeshi Court ruled that adultery could not be committed against single women, widows or prostitutes.
Therefore if one’s husband has an additional marital relationship with a single wife, then he has not committed adultery. In addition, with that woman, the husband needs to have sexual intercourse, otherwise his acts would not be considered adultery.

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