Prohibiting the bane of so-called ‘Fatwa’
Tuesday, 18 November 2008
Barrister M. A. Muid Khan
THE other day, my best friend asked me to write an article on how a Muslim woman could remarry the same husband without having any intervening marriage. She feels that due to the strict application of Sharia Law regarding remarriage, a Muslim woman cannot remarry the same husband without having an intervening marriage. Despite being well educated and working at a prestigious city bank, my friend is totally unaware about the basic rights granted by the Sub-section 6 of section 7 of Muslim Family Law Ordinance (MFLO) 1961 to a Muslim woman whose marriage has been terminated by 'talaq' (divorce), to remarry the same husband, without an intervening marriage with a third person.
In my opinion, lack of knowledge about their very basic legal rights, among the educated and un-educated Muslim women of our country, gives opportunity to the rural illiterate or half-literate religious leaders to issue Fatwa with a view to oppress the women. Over the last couple of years, the rural illiterate or half-literate religious leaders have tortured women for various "alleged offences(?)" through illegal and extra judicial procedures (so-called fatwas). Their misleading fatwas are creating confusion among the educated Muslim women as well.
Therefore, in this article an attempt would be made to establish the legal rights of Muslim women to remarry the same husband without having any interval marriage together with their other rights granted by the laws of the land in the light of three leading fatwa-related cases.
My first case would start with the untold story of Nurjahan, who was forced to commit suicide by the so-called fatwa pronounced by a section of illiterate religious leaders of a village. She was a woman of 21 in Chatakchara of Sylhet district. She was divorced by the first husband almost one year before she had contacted the second marriage. Her parents arranged this second marriage. The local 'Salish' led by Moulana Mannan, issued a fatwa declaring the second marriage illegal and found her guilty. The media reports said that Maulana Mannan was a self-appointed religious leader, who had no knowledge of the basic principles of Islamic Jurisprudence. The 'Salish' sentenced her and her second husband to death by public stoning. Her parents were also held responsible for this 'un-Islamic' act and were sentenced to 50 lashes each. Nurjahan survived the stoning, but committed suicide in humiliation. However, none of the villagers protested against such barbaric and inhuman actions carried out by Mannan. Pressurised by some of the women's and human rights organisations, the local police filed a case against the Moulana and his followers on charges of abatement in the suicide and arrested each of them.
Could anyone imagine burying a woman in the ground up to her chest to be stoned publicly for having a second marriage whose first marriage was terminated almost one year ago? It is very unthinkable in the civilised society where we are living now. Her second marriage was perfectly legal as she was divorced by her former husband before the second marriage. Such a marriage is also valid under the Islamic Jurisprudence.
In another case, Fazlu Mia and Ambia, a couple married for 20 years with half a dozen children, lived in Bhatipara village in Kurigram district. One day, Mr Mia came back home in the evening after working hard in the paddy field all day. He found his unmarried sister and wife quarrelling. An exhausted and infuriated Fazlu Mia, in a fit of uncontrollable anger, pronounced 'talaq' thrice. However, immediately after, he came back to his senses and contacted the local union parishad Chairman for reconciliation, which was done promptly. The matter ended there.
Soon, the illiterate/half literate mullahs of the village were informed of the incident. They in a Salish pronounced a fatwa that the conjugal life of Fazlu Mia and Ambia was "un-Islamic (?)". The Fatwa also insisted that Fazlu Mia, in accordance with the Islamic principles, would have to give 'talaq' to Ambia, and then arrange a marriage for his wife for a stipulated time, and only after his wife is divorced by that husband, could remarry her. Fazlu Mia was threatened with eviction from his home if he did not comply with the fatwa. Under such circumstances, he agreed, but the divorce was stalled as Ambia's parents demanded payments of 'denmohar' (marriage contract money) and return of the dowry. Fazlu failed to meet the demands of his father-in-law. Therefore, the mullahs declared that as long as Fazlu Mia failed to meet the demands, he could allow his ex-wife to live in his home, but should not even be on speaking terms with him.
In Shahida's case (Writ Petition No.5897 of 2000), a Division Bench of the High Court Division of the Supreme Court of Bangladesh , gave a landmark judgement declaring such 'fatwa' as illegal. The Judgment also declared any 'fatwa' issued from an unauthorised source as illegal and ruled that giving a 'fatwa' by unauthorised persons(s) must be made a punishable offence by Parliament immediately.
The fact of the case is consistent with the previous cases. In this case, Saiful of Naogaon, out of anger, uttered the word 'talaq', to his wife Shahida; but thereafter continued their married life. On November 16, 2000, while Saiful was visiting his sister in another village, Hazi Azizul Huq, a neighbour who claimed to have heard the pronouncement of 'talaq', himself issued a fatwa that the marriage between Shahida and Saiful has been dissolved with the pronouncement of 'Talaq'.
Therefore, she must contract a 'hilla' marriage with a third person, before she can remarry Saiful. In accordance with Mr Huq's illegal fatwa, she was forced to marry her husband's paternal cousin Samshul. Later, Saiful refused to accept Shahida as his wife and sent her back to her father's house. She had to face a miserable condition in society. When the case came to the attention of the media, the Ain-o-Salish Kendra (ASK) issued a writ, against the illiterate 'fatwabaz' Hazi Azizul Huq.
These are only the few cases that we have come to know; many more have actually failed to reach the media. Self-appointed dispensers of justice illegally carried them out. According to the laws of the land, all criminal proceedings are to be regulated by the provisions of the Code of Criminal Procedure or specific acts passed by the parliament. To take part in a criminal trial by a 'salish' therefore violates national law and all norms of fundamental rights accredited by the constitution.
"So-called Fatwa" and Muslim Family Law: It is very surprising to mention that neither Muslim Law nor any other legislation affecting the personal life of the Muslims in Bangladesh permits the above 'fatwa' given for breaking marital ties or punishing women. The Muslim Family Laws Ordinance 1961, which deals with the system of talaq (divorce), does not recognise the above 'fatwa' based divorce. Section - 7(1) of 1961 Ordinance runs as follows:
"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 a notice in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever, contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year or up to five years, or with fine which may extend to five thousand taka, or with both.
(3) Save as provided in sub-section (5), 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.
(4) Within thirty days of the receipt of notice under Sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time when talaq is pronounced, talaq shall not be effective until the period mentioned in Sub-section (3) or the pregnancy, whichever later, ends.
(6) 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."
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
THE other day, my best friend asked me to write an article on how a Muslim woman could remarry the same husband without having any intervening marriage. She feels that due to the strict application of Sharia Law regarding remarriage, a Muslim woman cannot remarry the same husband without having an intervening marriage. Despite being well educated and working at a prestigious city bank, my friend is totally unaware about the basic rights granted by the Sub-section 6 of section 7 of Muslim Family Law Ordinance (MFLO) 1961 to a Muslim woman whose marriage has been terminated by 'talaq' (divorce), to remarry the same husband, without an intervening marriage with a third person.
In my opinion, lack of knowledge about their very basic legal rights, among the educated and un-educated Muslim women of our country, gives opportunity to the rural illiterate or half-literate religious leaders to issue Fatwa with a view to oppress the women. Over the last couple of years, the rural illiterate or half-literate religious leaders have tortured women for various "alleged offences(?)" through illegal and extra judicial procedures (so-called fatwas). Their misleading fatwas are creating confusion among the educated Muslim women as well.
Therefore, in this article an attempt would be made to establish the legal rights of Muslim women to remarry the same husband without having any interval marriage together with their other rights granted by the laws of the land in the light of three leading fatwa-related cases.
My first case would start with the untold story of Nurjahan, who was forced to commit suicide by the so-called fatwa pronounced by a section of illiterate religious leaders of a village. She was a woman of 21 in Chatakchara of Sylhet district. She was divorced by the first husband almost one year before she had contacted the second marriage. Her parents arranged this second marriage. The local 'Salish' led by Moulana Mannan, issued a fatwa declaring the second marriage illegal and found her guilty. The media reports said that Maulana Mannan was a self-appointed religious leader, who had no knowledge of the basic principles of Islamic Jurisprudence. The 'Salish' sentenced her and her second husband to death by public stoning. Her parents were also held responsible for this 'un-Islamic' act and were sentenced to 50 lashes each. Nurjahan survived the stoning, but committed suicide in humiliation. However, none of the villagers protested against such barbaric and inhuman actions carried out by Mannan. Pressurised by some of the women's and human rights organisations, the local police filed a case against the Moulana and his followers on charges of abatement in the suicide and arrested each of them.
Could anyone imagine burying a woman in the ground up to her chest to be stoned publicly for having a second marriage whose first marriage was terminated almost one year ago? It is very unthinkable in the civilised society where we are living now. Her second marriage was perfectly legal as she was divorced by her former husband before the second marriage. Such a marriage is also valid under the Islamic Jurisprudence.
In another case, Fazlu Mia and Ambia, a couple married for 20 years with half a dozen children, lived in Bhatipara village in Kurigram district. One day, Mr Mia came back home in the evening after working hard in the paddy field all day. He found his unmarried sister and wife quarrelling. An exhausted and infuriated Fazlu Mia, in a fit of uncontrollable anger, pronounced 'talaq' thrice. However, immediately after, he came back to his senses and contacted the local union parishad Chairman for reconciliation, which was done promptly. The matter ended there.
Soon, the illiterate/half literate mullahs of the village were informed of the incident. They in a Salish pronounced a fatwa that the conjugal life of Fazlu Mia and Ambia was "un-Islamic (?)". The Fatwa also insisted that Fazlu Mia, in accordance with the Islamic principles, would have to give 'talaq' to Ambia, and then arrange a marriage for his wife for a stipulated time, and only after his wife is divorced by that husband, could remarry her. Fazlu Mia was threatened with eviction from his home if he did not comply with the fatwa. Under such circumstances, he agreed, but the divorce was stalled as Ambia's parents demanded payments of 'denmohar' (marriage contract money) and return of the dowry. Fazlu failed to meet the demands of his father-in-law. Therefore, the mullahs declared that as long as Fazlu Mia failed to meet the demands, he could allow his ex-wife to live in his home, but should not even be on speaking terms with him.
In Shahida's case (Writ Petition No.5897 of 2000), a Division Bench of the High Court Division of the Supreme Court of Bangladesh , gave a landmark judgement declaring such 'fatwa' as illegal. The Judgment also declared any 'fatwa' issued from an unauthorised source as illegal and ruled that giving a 'fatwa' by unauthorised persons(s) must be made a punishable offence by Parliament immediately.
The fact of the case is consistent with the previous cases. In this case, Saiful of Naogaon, out of anger, uttered the word 'talaq', to his wife Shahida; but thereafter continued their married life. On November 16, 2000, while Saiful was visiting his sister in another village, Hazi Azizul Huq, a neighbour who claimed to have heard the pronouncement of 'talaq', himself issued a fatwa that the marriage between Shahida and Saiful has been dissolved with the pronouncement of 'Talaq'.
Therefore, she must contract a 'hilla' marriage with a third person, before she can remarry Saiful. In accordance with Mr Huq's illegal fatwa, she was forced to marry her husband's paternal cousin Samshul. Later, Saiful refused to accept Shahida as his wife and sent her back to her father's house. She had to face a miserable condition in society. When the case came to the attention of the media, the Ain-o-Salish Kendra (ASK) issued a writ, against the illiterate 'fatwabaz' Hazi Azizul Huq.
These are only the few cases that we have come to know; many more have actually failed to reach the media. Self-appointed dispensers of justice illegally carried them out. According to the laws of the land, all criminal proceedings are to be regulated by the provisions of the Code of Criminal Procedure or specific acts passed by the parliament. To take part in a criminal trial by a 'salish' therefore violates national law and all norms of fundamental rights accredited by the constitution.
"So-called Fatwa" and Muslim Family Law: It is very surprising to mention that neither Muslim Law nor any other legislation affecting the personal life of the Muslims in Bangladesh permits the above 'fatwa' given for breaking marital ties or punishing women. The Muslim Family Laws Ordinance 1961, which deals with the system of talaq (divorce), does not recognise the above 'fatwa' based divorce. Section - 7(1) of 1961 Ordinance runs as follows:
"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 a notice in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever, contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year or up to five years, or with fine which may extend to five thousand taka, or with both.
(3) Save as provided in sub-section (5), 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.
(4) Within thirty days of the receipt of notice under Sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time when talaq is pronounced, talaq shall not be effective until the period mentioned in Sub-section (3) or the pregnancy, whichever later, ends.
(6) 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."
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