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No notice, no talaq: A conundrum

Published : Thursday, 10 October, 2019 at 12:00 AM  Count : 169
Mohammad Hasan

No notice, no talaq: A conundrum

No notice, no talaq: A conundrum

Marriage is, in Islamic law, a sacrosanct civil contract aiming at the implementation of right of enjoyment, procreation and legalizing of children through proposal and acceptance. The jurisperitus Shawkat Mahmood defined marriage as a legal, social and religious institution. It is considered to be a job of sanctitude Mohammedans. At the same time, marriage is not given the status of indissolubility. The parties (husband or wife) may get separated from each other with the observance of legal provisions.

The question of divorce arises when a marital bond gets bereft of mutual reverence, trust and solacement. A person should not be obligated to inhabit with another against his or her will, interest or enjoyment. The Islamic law is a damn sight reasoned and scientific in allowing divorcing though it is the worst valid deed in the Shariah. A wedlock may be dissolved by two ways:-  (a) by act of parties such as ila, zihar, khula, mubarat,talaq-i-tafweez, talaq-i-ahasan or hasan or talaq-ul-biddat, khyar-ul-bulag ( option of puberty) and (b) on the demise of either party. A woman is not generally competent to divorce unless she is not vested with power. This power of divorcing is called talaq-i- tafweez.

Whether a woman is provided with talaq-i-tafweez may be understood from perusing the column no 18 of the kabinnama. If such power is once delegated, it can't be restrained by the husband. She is competent to exercise this power even after a suit for restitution of conjugal rights is instituted by husband.

Besides, a woman married off under Muslim law is entitled to obtain a decree for dissolution of marriage on any one of the grounds enunciated in section 2 of the Dissolution of Muslim Marriages Act, 1939. If any person wishes to divorce, he or she is to serve a copy of notice imprimis. What the absence of notice results in is the destination of this writing. Section 7 of the Muslim Family Laws Ordinance,1961 puts a man under compulsion to serve a copy of notice in any form after the pronouncement or wish of talaq to the concerned chairman and wife. The same obligation of serving notice is applied in the case of divorce by wife as per section 8 of the mentioned Ordinance 1961. After the receipt of notice, the chairman shall form an Arbitration Council for the purpose of bringing about reconciliation between the parties.
A talaq shall be effective after the termination of 90 days from the date of serving notice to the chairman unless the talaq is revoked earlier or reconciliation is successful. If the wife is pregnant, talaq shall not be effective until the period of 90 days or the pregnancy 'whichever be later' ends. If any party contravenes the mandatory provision of 'service of notice', he or she shall be punished with simple incarceration for a term which may extend to one year or with fine upto 10,000 (ten thousand) taka or with both.The provision requires to be complied with sternly.

 Section 7 of the Ordinance is based on a Qurani verse-" if a couple fears separation, you shall appoint an arbitrator from her family; if they decide to reconcile, Allah will help them get together.Allah is Omniscient, Cognisant , 4:35 " The word 'shall' implies mandatoriness to serve notice. This obligation is also in consonance with the Latin aphorism " Audialterampartem - hear both sides".There are conflicting decisions regarding the question: whether absence of serving notice invalidates a talaq.

In the cases reported in 13 BLC (HCD) 327, 55 DLR (HCD) 568, 46 DLR (HCD) 700, 25 DLR (HCD) 227, 21 DLR (HCD) 733, 15 DLR (SC) 09, the honorable High Court Division decides for the principle, " no notice, no talaq".  In the case of NurNabi (Md) vsSalimaAkterDoly (13 BLC HCD p. 327), it has been held that unless there is stern compliance of the mandatory provision of serving notice , no divorce can be lawful as per the section 7 of the MFLO , 1961.But in the case of Sirajul Islam vs Helena Begum (48 DLR (HCD) 1996 P.48),it's decided that non-service of notice to the chairman of the union parishad under the provision of this section cannot render divorce (disclosed in an affidavit) ineffective.

The decision cited in the 48 DLR 48 was animadverted and declared judgment per incuriam in the case reported in the mentioned NurNabi case. The decision of the case of Sirajul Islam was followed by a Single Bench in the latest case noted in 16 BLC (HCD) 10.This decision gives forth misgivings and confusions to the minds of judges, advocates and lexical learners about the compliance of the service of notice. In the mentioned two cases, talaq was expressed through Affidavit. The wives were not informed of affidavits until they were divulged in the court.

Affidavit of talaq has come to light in the Appellate Court in the Nurul Islam's case. No notice was served to the wife and chairman. In the case reported in 13 BLC (HCD) 327, the decision of the non-comliance of serving notice reported in 48 DLR (HCD) 48 was declared per incuriam by a Division Bench. A precedent overruled is definitely and formally deprived of all authority. It becomes null and void like a repealed statute and a new principle is authoritatively substituted for the old (Salmond's Jurisprudence, 10th ed. p.189). When an old decided case has made the law on a particular subject, the court of appeal ought not to interfere with it because people have considered it as establishing the law and have acted upon it (Smith& Keal 1882(9) QBD 340, 352).

By following the decision of Sirajul Islam case, a Single Bench in the Nurul Islam case {16 BLC (HCD) 10}approved the view that without service of notice under sec 7 of the MFLO, 1961, talaq is effective. That no service of notice makes a divorce ineffective and unenforceable has been decided by a Division Bench in the case cited in 13 BLC (HCD) 327.

Where there are two conflicting decisions, decision of a larger Bench is to be followed {MathuLal vs RadheLal, 1974 UJ (SC) 348}.Likewise a Full Bench ruling has to be followed and respected by a Division Bench. I am inclined to opine that to prevent the frustration of the purpose of the Legislature behind enacting the lex and perpetuation of non-compliance of mandatory service of notice, the provision of serving notice must be sternly complied with. No notice, no talaq- is an established principle now.

The writer is a Judicial Magistrate, Bangladesh Judicial Service

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