Gender equality and Muslim women right to divorce in Bangladesh update v.docx
Gender Equality and Muslim Women’s right to Divorce in Bangladesh
The holy Prophet has said:
"The most detestable thing before Allah is divorce".
Muslim marriage is purely a civil contract and it can, like other civil contract, be annulled by
following specified procedures and restrictions. A civil contract entitles its contracting parties to
equal authority to terminate the contract. However, neither sharia law nor Bangladeshi statute laws
apply this principle of equality to women in the instance of judicial separation.
In Bangladesh, both sharia law and the statutory laws govern the entire process of the dissolution
of marriage. Sharia law provides husbands with the authority of issuing divorce or talaq to their
wives known as Talaq-e-Tawfiz (popularly known as tawfiz) in the Kabinnama (the contract of
marriage). Women's power to exercise the tawfiz, however, depends solely on the will of their
husbands. Although Muslim women are capable of repudiating their marriages by the process of
khula or mubarat, these are only executable under the free consent of their husbands. Also, the
statutory laws of Bangladesh address Muslim women's right to the dissolution of marriage by the
intervention of the court, only under several grounds. The traditional interpretation of sharia law
and the statutory laws of the country are both unwilling to establish Muslim women's absolute
right to renounce marriage as with their male counterparts. Current research reveals that this
violation of gender equality and women's rights generates female subordination in society and
gives birth to numerous socio-legal complications.
From a marital aspect, Islamic regulations recognize and cherish a woman's honor and dignity.
The husband and wife are both seen as partners in the Quran, and neither enjoys superiority over
the other in marital life.
Since marriage is a marital contract, a woman can put down any clause in marriage which is not
prohibited in the Quran. For example, if a woman wants to add a clause in the Nikahnama that she
does not want her husband to take the second wife as long as she is alive, that will be valid. Because
marrying more than one wife is nor compulsory in Islam. If the man does not agree to such
condition, there will be no contract and no marriage. Similarly, she can put a clause that she too
wants to give divorce unilaterally. It implies that equal rights in marriage are implied in the
Nikahnama, the contract of marriage, where the right to divorce is provided for.
Though a Muslim woman is not barred from giving divorce unilaterally, however, under normal
circumstances the man has been given the unilateral authority to bring a marriage to an end, and
certain restrictions are imposed on the woman based on traditional interpretations of Sharia law
when she seeks for a divorce.1
Al Quran 4:1, 7:189 and 42:11 (http://www.islamswomen.com/articles/do_muslim_women_have_rights.php)
Despite the fact that the Dissolution of Muslim Marriages Act, 1939 was passed to provide women
the capacity to divorce through the intervention of the court2
it still does not give Muslim women
complete control over the delegation of the divorce power. In both statute legislation and sharia
law, women are only allowed to end their marriage under specific conditions. This seems to be
inconsistent with the principles of gender equality enshrined in the international treaties.
Bangladesh has ratified a number of international agreements that promote gender equality, such
as the Universal Declaration of Human Rights (UDHR) and the Convention of Elimination of All
Forms of Discrimination Against Women (CEDAW) but with reservations to Articles 2 and
16.1(c) on the ground of inconsistency with the sharia law based on the Holy Quran and Sunnah3
Article 27 of the constitution of Bangladesh provides that all citizens are equal before the law and
women shall have equal rights with men in all spheres of the State and of public life as per Article
28(2) of the constitution.
Though laws of Bangladesh are secular in name, the private sphere remains governed by respective
personal laws based on religion and traditional customs, which affect family and personal matters,
i.e., divorce. Thus, this itself is incompatible with a fundamental part of the constitution
guaranteeing gender equality.
This disparity, which is commonly witnessed throughout the country, is also contrary to
Bangladesh's constitutional and statutory regulations4
. The Constitution is Bangladesh's ultimate
law, and any statute that is inconsistent with the Constitution is void to the degree of the
inconsistency as per Article 26 of the constitution. 5
Yet, when it comes to gender disparity,
particularly when it comes to women's rights in private life, the supremacy of the Constitution
does not hold and is, to some extent, undermined by the conventional interpretation of Sharia law.
Sharia law can be negotiated, but it is uncommon in areas like as commercial law, contract law,
and criminal law.
Act of 1939 allows women to divorce under certain grounds specified in section 2 of the Act through the Family
Court established under section 4 of the Family Courts Ordinance, 1985
Convention on the Elimination of All Forms of Discrimination against Women, 1979 (CEDAW); Universal
Declaration of Human Rights, 1948,
Muslim Marriages and Divorces (Registration) Act, 1974; The Family Court Ordinance, 1985
Article 7 of the Constitution of Bangladesh
The contract of marriage under Muslim law may be dissolved in any of the following ways: 6
(1) by the husband at his will, without intervention of the court;
(2) by mutual consent of both, husband and wife,
(3) by Wife- Talaq-i-tafweez
(4) by a judicial decree at the suit of the husband/wife. Surprisingly, law entrusted an arbitrary
power to a male:7
Ground of Discriminations
A Muslim husband can divorce his wife whenever he desires, without assigning any
reason/cause whatsoever, but on the contrary, a female may be accorded with judicial
sanction to divorce her husband through intervention of court.8
On strength of provisions laid down in Section 8 of the Muslim Family Laws Ordinance,
1961, a Muslim wife can divorce her husband provided such right has been conferred upon
the wife by her husband either conditionally or unconditional in nature, such delegation of
powers inter alia to divorce has been termed as the Talaq-e-Taufiz.9
As divorce once pronounced splits the marital tie of the couple, to re-unite the marriage,
woman was to marry a third person, after accomplishment of divorce proceedings with the
later husband, marriage in between the aforesaid couple could take place.
But now, according to Section 7(6) of the Muslim Family Laws Ordinance, 1961 the divorced
parties can remarry without performing any such intermediary arrangement; i.e. ‘Hilla’. It’s
Existing methods provided for the dissolution of marriage by Muslim women
Methods available under sharia law
Methods available under the statutory laws of Bangladesh
Chowdhury, Alimuzzaman, Thoughts on Mulla’s Principles of Mohamedan Law, 1983.
Section 2 of The Dissolution of Muslim Marriages Act, 1939
Section 4 of the Muslim Marriages and Divorces (Registration) Act, 1974(Act No. LII of 1974).
Section 8 and Section 7(6) of the Muslim Family Laws Ordinance, 1961,
Dissolution of marriage for Muslim women under sharia law:
A. Talaq -e –Tawfiz:
This type of delegated separation is undoubtedly the most likely weapon of a Muslim wife to obtain
her divorce without the intervention of the court10
. When a Muslim woman exercises the authority
of tawfiz duly given by her husband, she is granting divorce. Without the husband's voluntary
assent, the choice is not possible. Nonetheless, in the context of a dominant male society like
Bangladesh, it is understandable that a husband might refuse to delegate the right of tawfiz to his
wife. Even if a woman is empowered with tawfiz and desires to divorce her husband, she must
prove that her husband delegated such power to her. Otherwise, the Nikah (Marriage) Registrar
shall not register such divorce in light of section 6(3) of the Muslim Marriages and Divorces
(Registration) Act, 1974.
Sharia law, on the other hand, only allows the husband to exert such power at any stage of the
. In its current form, Tawfiz, as a delegated right conferred solely by a husband to his
wife, fails to ensure equal rights of Muslim women to repudiate marital tie unilaterally like their
male counterpart. It is worthy to note that practically all divorces initiated by Muslim women now
take place through the use of this delegated right12
. In reality, the Nikah Registrars fill out column
18 of Form D of the Muslim Marriages and Divorces (Registration) Regulations, 2009 to empower
the brides with the right of tawfiz without the prior approval of their grooms which may raise
substantial jurisprudential issues as to the legitimacy of such delegation.
According to the Act of 1961, the wife's right to tawfizis only applicable with the husband's due
and it is also permissible for a man to set conditions and demarcate the grounds under
which his spouse might initiate divorce procedures. If the husband wishes to challenge the divorce
initiated by Muslim woman through tawfiz, he may do so on the grounds that the right to tawfiz
was not devolved and that the required condition under which their wives can exercise tawfiz was
not met. In the case of Nelly Zaman vs. Giasuddin14
, the defendant Nelly Zaman filed for divorce
from her husband using tawfiz but on the grounds that the delegated power was not properly
performed by her; the divorce was disputed by the husband.
A. A.A. Fyzee, Outlines of Muhammadan Law, 4th ed. (Delhi: Oxford University Press, 2007), 159.
Syed Khalid Rashid, Muslim Law, edited by V.P. Bharatiya, 5th ed. (Lucknow: Eastern Book Company, 2006)
Column 18 of the Form D specifically deals with the issue whether the husband wish to delegate the power of
tawfiz to his wife or not.
Section 8 of the Muslim Family Laws Ordinance, 1961
34 DLR (1982) 221
B. By mutual consent:
If both husband and wife agree, they can consent to end their marriage. It is an unusual
characteristic of Islamic law, and it occurs in two ways: talaq-e-khula and talaq-e-mubarat.
A woman can pursue khula divorce from her husband by renouncing any legal rights she is entitled
to get from her husband, such as, dower, property, or any other monetary consideration.
Nevertheless, the breakage of marital union in khula is only possible with the mutual consent of
both husband and wife. Lack of conjoint assent renders a khula divorce null and void, failing the
dissolution of marriage. Rashid, a notable Islamic jurist in the Indian subcontinent, said that “it
entirely depends upon the husband to accept the consideration of dower and to grant the divorce”.
This alternative does not guarantee the unilateral ability of the wife to end the marriage on her own
initiative; rather, the success of the entire proceeding is solely dependent on the mutual consent of
the husband and wife. In the matter of Khurshid Bibi vs. Baboo Muhammad Amin15
Despite the husband's refusal to release her from the marriage tie, the wife's claim to the right of
khula, based on the proper rationale that under no circumstances can they continue on their union
by complying with the marital obligations, was pronounced in favor of the woman by the court.
Yet, such judicial precedent in favor of women does not necessarily endow Muslim women with
the absolute right to divorce their husband, as their counterparts do have.
Mubarat is another term for the mutual agreement dissolution of a marriage. Unlike in Khula,
where the wife requests to be freed and the husband agrees for stipulated consideration, the
suggestion to split up in mubarat can come from either side. The fundamental aspect of such a
divorce is the willingness of both spouses to get rid of each other; so, who takes the start is
irrelevant. This permanent separation through mubaratis, like khula, is only brought about by the
mutual permission of husband and wife. As a result, this solution has the same limitations as tawfiz
C. Khyar-ul-bulugh or option of puberty:
If the marriage of a minor is entered into on his or her behalf by any guardian other than her father
or paternal grandfather, once puberty is reached, the minor acquires a legal option to disapprove
the union. This is known as Khyar-ul-bulugh or ‘option of puberty.
To be precise, it can be said that the options open for women under sharia law cannot equip them
with the absolute right of divorce considering the following:
419 DLR (1967) 59
The choice of puberty is only available if a woman is bestowed before the age of 18,
additionally there is a time limit set for implementing this right;
Tawfiz can only be used if the husband willingly delegated his divorce power to his wife;
Both khula and mubarat require both husband and wife's mutual consent. Furthermore, in the
case of khula, the wife is frequently required to pay the dowry or any other sum of money
agreed upon and forfeit any rights to her husband
Therefore, the above discussions suggest that sharia law does not permit Muslim women with the
liberty of ending their marriage at their desire like their male counterpart.
Dissolution of marriage for Muslim women under statutory laws of Bangladesh:
1. The Dissolution of Muslim Marriages Act, 1939 (Act of 1939)
2. The Family Court Ordinance, 1985 (Act of 1985), and
3. The Muslim Family Laws Ordinance, 1961 (Act of 1961)
Statutory laws of Bangladesh do not offer any provision except for the process of the renouncement
of marriage as per sharia law, except divorce by the intervention of the court. Moreover, Muslim
women are tied with the option of divorce via the interference of court only under limited ground.
From the analysis of the statutory laws governing Muslim divorce, it appears that Muslim family
laws in Bangladesh operate to explore the husband's unrestricted use of the talaq by establishing
various "rules and regulations" rather than empowering women by guaranteeing their absolute
right to divorce (by eliminating the implications of grounds for divorce or the formalities of the
process). In Bangladesh, the governments are frequently seen to ignore the continuous demands
from various right groups for the equal rights of women regarding divorce in guise of leveling the
issues as religiously sensitive.
Analysis of the dissolution of marriage by the intervention of the court:
A Muslim woman may file a complaint in the Family Court to end her marriage by providing
justification (as stated in section 2 of Act of 1939). After the woman successfully proves her case
in court during the trial, the judge grants the divorce subject to the compliance of the relevant
provisions of the Muslim Marriages and Divorces (Registration) Act, 1974.The divorce decree
will not be granted to a woman who cannot manage to go to the court and convince the judge of
her case. That means, to some extents, the women are deprived of fundamental right to repudiate
Sharia law and Muslim women’s absolute right to dissolve their marriage: Possibility of a
harmonious interpretation (In my opinion)
Traditionalists argue that giving Muslim women the unrestricted freedom to divorce will
undermine Sharia law. But the Almighty Allah does not intend to compel Muslim women to
remain in unfavorable marriages that bring emotional misery, pain, and suffering.
The Holy Quran clearly declares that men and women have the same spirit, and there is no spiritual
superiority between men and women. Sharia law recognizes Muslim women's right to dissolve
their marriage and Tawfiz allows women to dissolve their marriages. As a result, no woman should
suffer for the rest of her life simply because her spouse did not give her the right to do so. and the
inclusion of such compulsory delegation of tawfiz in the Kabinnamais is neither illegal nor
contradictory to Sharia law.
Islam does not force couples to continue their marriage against their desire, and it should not be
forgotten that Allah sees men and women as spiritual equals. That is why Sharia law recognizes
Muslim women's right to divorce. under Sharia law, a Muslim husband has the right to divorce his
wife immediately and without any formality. However, the statutory regulations of Bangladesh
have made it essential to deliver a divorce notice to the arbitration council established in this
respect, renders talaq legally invalid.
Marriage registration and Divorce registration are not required under Sharia law but under section
3 of the Muslim Marriages and Divorces (Registration) Act, 1974 is compulsory.
The policymakers crafted many remarkable restructurings in sharia law for the greater good. Thus,
there is no valid point to oppose gender equality in terms of divorce on the ground that it is under
the exclusive dominion of sharia law.