Legal complexities in remarrying without divorce
"Divorce" the most unexpected word for most of the married couple in our society. Most of the married couple doesn't want to take this decision unless there is an extreme condition. In the words of Prophet Mohammad, "Of all the lawful things, divorce is the most hated by Allah."
According to a newspaper report dated 22 December 2020, in just five months from June to October 2020, the rate of divorce has increased largely in Bangladesh. During this time there were 39 divorces every day, which means one divorce happened in every 37 minutes. Divorce rates are highest among working husbands and wives. In the five months of this year 5970 divorces have been taken place in Dhaka. There is an average of 1194 divorces per month. Last year there was an average of 920 divorces per month. Divorce has increased by 29.78 per cent in the first 5 months of this year.
As a student of law during my juniorship period I have witnessed from many of the clients that their counterparts did not notify them and got married to other person. This incident is increasing day by day. Many people ask me, is there any legal remedy available in such cases where the wife is involved?
From the methodical perspective, we can classify divorce into three different categories:
The first and foremost condition of starting a procedure of divorce is to giving notice to other party. According to section 7(1) of Muslim Family Law Ordinance Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.
And if anyone does not comply with section 7(1) the offence will be punishable with simple imprisonment which may extend to one year or with fine which may extend o ten thousands taka or with both under section 7(2) of Muslim Family Law ordinance.
Divorce will be effective after expiry of 90 days which will be counted after the day on which the notice was served to the chairman, if reconciliation fails or, in other words, divorce has not been revoked during the period of 90 days. If the wife is pregnant at the time of pronouncement of the divorce, divorce will be effective either at the expiry of 90 days or the discharge of pregnancy, whichever ends later.
Section 7(5) of the Muslim Family Law Ordinance says that if the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy, whichever be later, ends. If the wife gets married to another person during the lifetime of her husband, without divorce, or by concealing the previous marriage to the present husband it will also be treated as an offence under Bangladesh Penal Code 1860.
According to Muslim Family Law Ordinance if a woman marries to another man during the continuance of conjugal life with the present husband than the later marriage will be void. If wife wishes to get married then she has to take divorce from her present husband and she has to serve notice which will take 90 days to make the divorce effective. She also has to maintain 'iddat' period.
If she does not take divorce from her previous husband than it will be punishable under section 494 of Bangladesh Penal Code 1860 with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
In another fact, if she conceals her previous marriage to another person and gets married to that subsequent person than she will get punishment under section 495 of Bangladesh Penal Code 1860 with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
In another scenario, whoever has sexual intercourse with a woman who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape. In such cases the person is guilty of the offence of adultery, and shall be punished under section 497 of Bangladesh Penal Code 1860 with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punished as an abettor.
Lastly, I would likely conclude by saying that if there is any problem in the marriage then the husband and wife should give them chance to restore their conjugal life and if there is no way left to them rather than separation only then they should go according to the laws of Bangladesh which will certainly help them from any kind of hassle in future.
The writer is a graduate student of Law, North South University