Prohibiting the bane of so-called 'Fatwa'
Wednesday, 19 November 2008
Barrister M.A. Muid Khan
IF we compare the facts of fatwa based dissolution of marriage as mentioned earlier in the lights of the provisions of this Ordinance, it would be clear to us that, those fatwa could not dissolve any marriage at all. Those fatwas are clearly a violation of the Ordinance.
In the case of Fazlu Mia, who contacted the local union parishad chairman for reconciliation immediately after the pronouncement of talaq, is consistent with section- 7(1) of this Ordinance. In addition, reconciliation within 90 days is valid from the date of the pronouncement of talaq. So, Fazlu Mia's endeavour to bring reconciliation was also valid under the same ordinance. As such, the declaration of fatwa against such reconciliation by the rural mullahs, is clearly a violation of the existing law of the land.
In the case of Shahida, the illiterate or half-literate fatwabaz cannot force her to contact an intervening marriage (Hilla marriage). The MFLO in section 7(6) clearly discourages Hilla marriage. Dissolution of marriage simply by uttering the word 'talaq' once or thrice at the same time is against the dictates of the Quran and the Hadith as well as invalid in law under section 7 of the MFLO. Moreover, the simple pronouncement of talaq by Saiful, did not dissolve the marriage either under the Islamic Jurisprudence or under the provisions of MFLO 1961. Moreover, if the marriage was so dissolved, the illiterate fatwabaz cannot force Shahida to contact an intervening marriage (hilla marriage) with a third person before remarrying the same husband. Such a fatwa is inconsistent with the provisions of section 7(6) of the MFLO 1961.
So-called 'Fatwa' - its conflict with religion: The so-called fatwas declared by the rural illiterate mullahs against reconciliation are also inconsistent with basic principles of Islamic Law regarding reconciliation of marriage. Section 7 of the Ordinance, mentioned earlier, is based upon the Quranic verse in Sura An-Nisa, Ayat 35, which runs as follows: "If you fear a breach between the two (i.e. between the husband and the wife), then appoint a judge from his people and a judge from her people, if they both desire agreement, God will effect harmony between them."
The above-mentioned verse of the Quran, contemplates an exploratory process for bringing about reconciliation between the husband and wife when differences and disputes have separated them from each other. Before there is an actual separation by the pronouncement of talaq, the Quranic ayat seems to suggest the attempt at reconciliation should be made. It is submitted that, the Ordinance 1961, has kept the Quranic ayat immune from any confusion to which the section under reference has landed itself.
Again, sub-section 3 of section 7 of the same Ordinance provides that, "… a talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from day on which notice under sub-section (1) is delivered to the chairman."
If we compare the facts of the so-called fatwas, we would be able to see that the rural illiterate mullahs did not allow any 90 days time to either Fazlu Mia or Ambia Bibi. Therefore, the talaq pronounced by him was not legal and valid neither under the Quranic ayat and nor the provisions of the Ordinance. Effect of sub-section 3 is that, the talaq would never become effective before the expiration of 90 days from the date of the notice served to the chairman. As a result, the parties would continue to live as husband and wife. Unfortunately, so-called 'fatwa' did not allow Ambia Bibi to continue her marital tie with Fazlu Mia.
Even so, those so-called fatwas gave no opportunities for reconciliation between the husband and wife, before there was an actual separation between them. Even though the steps taken by Fazlu Mia for the purpose of reconciliation with his wife was totally Islamic, yet surprisingly, due to lack of proper knowledge regarding Islamic laws, such reconciliation was declared "un-Islamic" by the rural illiterate 'mullahs'.
So-called fatwa and remarriage: According to Islamic Law (Sharia), remarriage with the divorced wife after the third pronouncement in the case of talaq-ul-hasan is not possible. This form of talaq is the most approved form of divorce in Islamic law. Under this form, the husband would pronounce three talaqs in three separate sessions. After pronouncing the first talaq, he would wait for her iddat period (30 days). After the expiration of that period, he would pronounce second talaq and wait for the next iddat period (another 30 days). Finally, after the expiration of this period, he would pronounce talaq for the third time and wait for the iddat period (another 30 days). The talaq would only become effective only after successful expiration of three-iddat periods (90 days). However, the husband could revoke his talaq at any time before the expiry of that period. If his wife becomes pregnant within that period, the talaq would not be effective.
When a marriage is dissolved in this way (under the Sharia law), only then a Muslim wife cannot re-marry the same husband, without having an intervening marriage with a third person. In that case, the third person (second new husband) should give her three talaqs and she has to wait 90 days to be expired, before she can re-marry her first husband. This stringent condition is kept immune in the Shariah to let the followers of Islam know that divorce is not a very easy game. The Muslims have to be very conscious before breaking marital tie. A Muslim man would think twice about the consequence of the divorce, before declaring actual talaq. According to sayings of the Prophet Muhammad (Sm), "Talaq is the most detestable of all permitted things on the earth." He has discouraged the Muslims to use the institution of talaq by his practice.
Unfortunately, owing to lack of education and proper knowledge regarding the Islamic jurisprudence, the rural illiterate mullahs issued 'so-called fatwas' claiming that after the pronouncement of talaq, the husband cannot re-marry the same wife immediately. Even the perpetrators of those 'so-called fatwas' did not allow 90 days iddat period to expire in order to validate the talaq. As mentioned earlier, a talaq-ul-hasan remains invalid before the expiration of 90 days from the date of the pronouncement, though it becomes effective in the case of Talaq-I Bain. The MFLO in section 7(6) clearly discourages Talaq-I-Bain. Dissolution of marriage simply by uttering the word 'talaq' once or thrice at the same time is against the dictates of the Quran and the Hadith as well as invalid in law under section 7 of the MFLO.
However, in accordance with the provisions of Muslim Family Law Ordinance 1961, a Muslim wife is entitled to remarry the same husband without having any intervening marriage with a third person. Sub-section 6 of section 7 of MFLO 1961 declares that, "Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective." Therefore, my beloved friend's sister can remarry her former husband without having any interval marriage as under the above section she is entitled to remarry the same husband without having any interval marriage with a third person.
In the case of Ambia Bibi, her husband brought reconciliation with the help of local union parishad chairman, after the pronouncement talaq. Hearing the incident, the local illiterate mullahs pronounced 'fatwa' (?) declaring such reconciliation as "un-Islamic (!)". How could they pronounce such sort of fatwa when Islamic jurisprudence always encourages reconciliation? Even then, the Fatwa also insisted that Fazlu Mia to give talaq to Ambia, then arrange a marriage for his wife for a stipulated time, and only after his wife is having been divorced from that husband, could remarry her.
Such a condition is totally inconsistent with sub-section 6 of section 7 of the Ordinance 1961, under which Ambia Bibi could easily re-marry Fazlu Mia, without remarrying a third person. The legislation is there for the protection of the Muslim women's rights, yet due to lack of knowledge and awareness about the legislation and their fundamental rights, these unfortunate women are being victimised by the rural illiterate mullahs.
The writer is a Barrister of the Honourable Society of Lincoln's Inn, a Legal Consultant at Carr-Gomm and Appeal Consultant at a London Law firm and an advocate of the Supreme Court of Bangladesh. He can be contacted at barristermuid@yahoo.co.uk
IF we compare the facts of fatwa based dissolution of marriage as mentioned earlier in the lights of the provisions of this Ordinance, it would be clear to us that, those fatwa could not dissolve any marriage at all. Those fatwas are clearly a violation of the Ordinance.
In the case of Fazlu Mia, who contacted the local union parishad chairman for reconciliation immediately after the pronouncement of talaq, is consistent with section- 7(1) of this Ordinance. In addition, reconciliation within 90 days is valid from the date of the pronouncement of talaq. So, Fazlu Mia's endeavour to bring reconciliation was also valid under the same ordinance. As such, the declaration of fatwa against such reconciliation by the rural mullahs, is clearly a violation of the existing law of the land.
In the case of Shahida, the illiterate or half-literate fatwabaz cannot force her to contact an intervening marriage (Hilla marriage). The MFLO in section 7(6) clearly discourages Hilla marriage. Dissolution of marriage simply by uttering the word 'talaq' once or thrice at the same time is against the dictates of the Quran and the Hadith as well as invalid in law under section 7 of the MFLO. Moreover, the simple pronouncement of talaq by Saiful, did not dissolve the marriage either under the Islamic Jurisprudence or under the provisions of MFLO 1961. Moreover, if the marriage was so dissolved, the illiterate fatwabaz cannot force Shahida to contact an intervening marriage (hilla marriage) with a third person before remarrying the same husband. Such a fatwa is inconsistent with the provisions of section 7(6) of the MFLO 1961.
So-called 'Fatwa' - its conflict with religion: The so-called fatwas declared by the rural illiterate mullahs against reconciliation are also inconsistent with basic principles of Islamic Law regarding reconciliation of marriage. Section 7 of the Ordinance, mentioned earlier, is based upon the Quranic verse in Sura An-Nisa, Ayat 35, which runs as follows: "If you fear a breach between the two (i.e. between the husband and the wife), then appoint a judge from his people and a judge from her people, if they both desire agreement, God will effect harmony between them."
The above-mentioned verse of the Quran, contemplates an exploratory process for bringing about reconciliation between the husband and wife when differences and disputes have separated them from each other. Before there is an actual separation by the pronouncement of talaq, the Quranic ayat seems to suggest the attempt at reconciliation should be made. It is submitted that, the Ordinance 1961, has kept the Quranic ayat immune from any confusion to which the section under reference has landed itself.
Again, sub-section 3 of section 7 of the same Ordinance provides that, "… a talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from day on which notice under sub-section (1) is delivered to the chairman."
If we compare the facts of the so-called fatwas, we would be able to see that the rural illiterate mullahs did not allow any 90 days time to either Fazlu Mia or Ambia Bibi. Therefore, the talaq pronounced by him was not legal and valid neither under the Quranic ayat and nor the provisions of the Ordinance. Effect of sub-section 3 is that, the talaq would never become effective before the expiration of 90 days from the date of the notice served to the chairman. As a result, the parties would continue to live as husband and wife. Unfortunately, so-called 'fatwa' did not allow Ambia Bibi to continue her marital tie with Fazlu Mia.
Even so, those so-called fatwas gave no opportunities for reconciliation between the husband and wife, before there was an actual separation between them. Even though the steps taken by Fazlu Mia for the purpose of reconciliation with his wife was totally Islamic, yet surprisingly, due to lack of proper knowledge regarding Islamic laws, such reconciliation was declared "un-Islamic" by the rural illiterate 'mullahs'.
So-called fatwa and remarriage: According to Islamic Law (Sharia), remarriage with the divorced wife after the third pronouncement in the case of talaq-ul-hasan is not possible. This form of talaq is the most approved form of divorce in Islamic law. Under this form, the husband would pronounce three talaqs in three separate sessions. After pronouncing the first talaq, he would wait for her iddat period (30 days). After the expiration of that period, he would pronounce second talaq and wait for the next iddat period (another 30 days). Finally, after the expiration of this period, he would pronounce talaq for the third time and wait for the iddat period (another 30 days). The talaq would only become effective only after successful expiration of three-iddat periods (90 days). However, the husband could revoke his talaq at any time before the expiry of that period. If his wife becomes pregnant within that period, the talaq would not be effective.
When a marriage is dissolved in this way (under the Sharia law), only then a Muslim wife cannot re-marry the same husband, without having an intervening marriage with a third person. In that case, the third person (second new husband) should give her three talaqs and she has to wait 90 days to be expired, before she can re-marry her first husband. This stringent condition is kept immune in the Shariah to let the followers of Islam know that divorce is not a very easy game. The Muslims have to be very conscious before breaking marital tie. A Muslim man would think twice about the consequence of the divorce, before declaring actual talaq. According to sayings of the Prophet Muhammad (Sm), "Talaq is the most detestable of all permitted things on the earth." He has discouraged the Muslims to use the institution of talaq by his practice.
Unfortunately, owing to lack of education and proper knowledge regarding the Islamic jurisprudence, the rural illiterate mullahs issued 'so-called fatwas' claiming that after the pronouncement of talaq, the husband cannot re-marry the same wife immediately. Even the perpetrators of those 'so-called fatwas' did not allow 90 days iddat period to expire in order to validate the talaq. As mentioned earlier, a talaq-ul-hasan remains invalid before the expiration of 90 days from the date of the pronouncement, though it becomes effective in the case of Talaq-I Bain. The MFLO in section 7(6) clearly discourages Talaq-I-Bain. Dissolution of marriage simply by uttering the word 'talaq' once or thrice at the same time is against the dictates of the Quran and the Hadith as well as invalid in law under section 7 of the MFLO.
However, in accordance with the provisions of Muslim Family Law Ordinance 1961, a Muslim wife is entitled to remarry the same husband without having any intervening marriage with a third person. Sub-section 6 of section 7 of MFLO 1961 declares that, "Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective." Therefore, my beloved friend's sister can remarry her former husband without having any interval marriage as under the above section she is entitled to remarry the same husband without having any interval marriage with a third person.
In the case of Ambia Bibi, her husband brought reconciliation with the help of local union parishad chairman, after the pronouncement talaq. Hearing the incident, the local illiterate mullahs pronounced 'fatwa' (?) declaring such reconciliation as "un-Islamic (!)". How could they pronounce such sort of fatwa when Islamic jurisprudence always encourages reconciliation? Even then, the Fatwa also insisted that Fazlu Mia to give talaq to Ambia, then arrange a marriage for his wife for a stipulated time, and only after his wife is having been divorced from that husband, could remarry her.
Such a condition is totally inconsistent with sub-section 6 of section 7 of the Ordinance 1961, under which Ambia Bibi could easily re-marry Fazlu Mia, without remarrying a third person. The legislation is there for the protection of the Muslim women's rights, yet due to lack of knowledge and awareness about the legislation and their fundamental rights, these unfortunate women are being victimised by the rural illiterate mullahs.
The writer is a Barrister of the Honourable Society of Lincoln's Inn, a Legal Consultant at Carr-Gomm and Appeal Consultant at a London Law firm and an advocate of the Supreme Court of Bangladesh. He can be contacted at barristermuid@yahoo.co.uk