27 January 2019
“The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt for reconciliation and if it succeeds, then revocation – are the Quranic essential steps before talaq attains finality. In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariah. ….. What is held to be bad in the Holy Quran cannot be good in Shariah and, in that sense, what is bad in theology is bad in law as well.”
– Justice Kurian Josephin ShayaraBano v. Union of India and others Writ Petition (Civil) No. 118 of 2016 (decided on 22 August 2017) (paras. 10 and 26).
In 2017, the Supreme Court of India declared the pre-Islamic custom of instantaneous triple talaq (talaq-e-bidaat)[i] as unconstitutional for the reason that the practice was found to be arbitrary and against fundamental rights guaranteed under the Constitution of India.[ii] Known as the most widely practised, but unapproved type of divorce,[iii] the custom of triple talaq was previously found invalid by various High Courts of India.[iv] Unlike in Bangladesh and Pakistan, the practice of triple talaq in India found its validity from the traditional interpretation of Muslim personal law and principles. The legal context is, however, different in Pakistan and Bangladesh. Prior to the introduction of Muslim Family Laws Ordinance 1961(MFLO), when Bangladesh was yet to emerge as a country independent from Pakistan, the Muslim men had unfettered authority to end the matrimonial relation by unilaterally uttering the word ‘talaq’ three times at one sitting, whether the wife is in a state of tuhr (purity period) or not. But with the promulgation of this Ordinance during the Pakistan regime in 1961, some strict procedural regulations under section 7 had been introduced to regulate this unfettered power of husband to pronounce triple talaq.[v] This legislation has been continuing as an effective law in Bangladesh since its independence from Pakistan in 1971.[vi] Whereas India as such, had no statutory law regulating triple talaq and the practice had been banned by the Indian Supreme Court as being unconstitutional.[vii]
However, since its promulgation, the MFLO had been subjected to several challenges in Pakistan with regard to its repugnancy with Islamic law principles and the question is still under judicial consideration in the Supreme Court of Pakistan. On the contrary, in Bangladesh, section 7 of the MFLO regulating triple talaq, thankfully had never faced such challenges as to its legality or incompatibility with Shariah laws.[viii] In most of the cases, the Supreme Court of Bangladesh had dealt with the procedural question of whether the service of notice of talaq by husband as required under section 7 of the MFLO was mandatory or not in order to effectuate a valid divorce. However, in so deciding, the apex court in fact impliedly addressed the question of whether the MFLO had prohibited completely the practice of irrevocable and instantaneous triple talaq through the requirement of notice under section 7 or whether it is a mere procedural requirement without having effect on the validity of the talaq.
In this background, this paper aims to understand the position of triple talaq in the legal framework of Bangladesh with reference to the decisions of the Supreme Court of Bangladesh. In doing so, a number of judgments of the Supreme Court will be analyzed with regard to section 7’s mandate to serve notice of talaq by husband. In the course of the discussion, the position of the Pakistani judiciary on the same question would also be addressed to draw a comparative view on the subject.
2. Judicial Position on Triple Talaq in Bangladesh
With the introduction of the MFLO in 1961, the practice of triple talaq became practically ineffective in Bangladesh as per section 7 of the Ordinance. However, the judicial history of triple talaq in the Indian subcontinent prior to MFLO suggests that it was widely recognized and approved by the courts in British India.[ix] In Rashid Ahmed v. Anisa Khatun,[x] the Privy Council held that triple talaq becomes final and irrevocable at the very moment it is pronounced, consequently severing the matrimonial tie between husband and wife. Facts in this case show that one Muslim husband on uttering talaq for three times executed a document keeping evidence that he divorced his wife in “abominable form”. Nevertheless, they continued to live together for fifteen years under one roof and had several children out of the relation. After his death, question arose as to the validity of the matrimonial tie between wife and her deceased husband. The Privy Council decided that the wife was not deceased’s lawful companion and as such the children born to them were also illegitimate. The Privy Council did not want to interfere with the traditional Shariah law interpretations and then accepted the practice of triple talaq as a valid form of divorce. It observed that:
[We] are of opinion that the pronouncement of the triple talaq […] constituted an immediately effective divorce, and […] the validity and effectiveness of the divorce would not be affected by [husband’s] mental intention that it should not be a genuine divorce[.] A talaq actually pronounced under compulsion or in jest is valid and effective.[xi]
Against this judicial construction, the Supreme Court of India recently felt the necessity to revisit the decision held in Rashid Ahmed case above and went on to say that “the opinion expressed by the Privy Council with reference to triple talaq in Rashid Ahmed case was rendered on an incorrect understanding of the Muslim personal law.”[xii] While observing this, the Supreme Court relied on Justice Krishna Iyer who had (in A. Yusuf Rawther v. Sowramma (1971) AIR Ker. 261) criticized “the view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce”.[xiii] According to him, it is a popular fallacy that a Muslim male enjoys, under the Quaranic law, unbridled authority to liquidate the marriage which does not accord with Islamic injunctions.[xiv]
In Pakistan (and subsequently in Bangladesh), such practice of instantaneous triple talaq had undergone substantive reform after the MFLO came into force. Although some argue that with the passage of this Ordinance, the practice of triple talaq has been abolished;[xv] in reality, what the MFLO did was to regulate the process of divorce instead of completely banning triple talaq.[xvi] By virtue of section 7, the Ordinance in fact intended to benefit the Muslim married women by preventing hasty dissolution of marriage by pronouncement of triple talaq. However, although this piece of legislation aims to secure the rights of the Muslim women in certain family matters (including the regulation of divorce), it is criticised for reflecting a ‘compromise’ between the interests of traditionalists and those of modernists in the area of Muslim personal law reforms.[xvii]
The Ordinance in section 7 outlines the procedure a Muslim husband is required to follow once he pronounces talaq to his wife. Section 7(1) clearly covers all types of divorce by the words “talaq in any form whatsoever” which includes triple talaq or talaq-e-bidaat. According to Rashida Patel, “[i]t is obligatory for the husband to give notice of the pronouncement of talaq to the Chairman, and a copy thereof to the wife, and the talaq does not become effective before the expiry of ninety days from the day notice of pronouncement of talaq is received by the Chairman [of the Local Council].”[xviii] Sir Abdur Rahim commented that “[t]he waiting period serves two purposes: to allow time to determine if the wife is pregnant, and to allow an Arbitration Council to be set up and bring about a reconciliation between the parties. If the couple reconciles, the husband must revoke the notice.”[xix] Nadya Haider holds that mere pronouncement of talaq without notice to the Chairman does not make the divorce effective in the eyes of law, though it is effective under classical Hanafi school of law.[xx]
Certainly, the pronouncement and validity of triple talaq on a single occasion is not the Islamic way of pronouncing divorce, but it is still a popular means of divorce for many Muslims.[xxi] Traditional religious experts tend to give fatwa (religious opinion or dictum)[xxii] in favour of this practice.[xxiii] These fatwas in turn often subject the wife to arbitrary and inhuman punishments. The Supreme Court of Bangladesh in a recent landmark decision (Bangladesh Legal Aid and Services Trust [BLAST] v. Bangladesh[xxiv]) had declared the imposition of extra-judicial punishment, in the name of fatwa as unconstitutional and illegal. The case came before a High Court Division (HCD) Bench of the Supreme Court in the form of a Public Interest Litigation (PIL) when several news concerning violence against women through fatwa were regularly appearing in the national media. The news drew the attention of the Court which called upon the responsible state agencies to address the concern.
In this landmark judgment, the Court observed that women from villages were mainly the victims of extra-judicial punishment and torture in the name of fatwa, and many of them were also victims of triple talaq. As the question of legality of fatwa was at that time pending before the Appellate Division (AD), the HCD in BLAST case (2011) refrained from deciding on the validity of fatwa.[xxv] The Court confined itself only to assess the constitutionality of imposing extra-judicial punishment and torture in the name of fatwa. In course of the observations, the Court examined section 7 of the MFLO and declared that there is no legal requirement for hilla/halala (an intervening marriage) for a divorced wife in order to marry her former husband unless such divorce happened for the third time consecutively.
The following section discusses a number of judgments of the Supreme Court of Bangladesh with regard to the mandate of section 7 to serve notice of talaq by husbands.
2.1 Judicial Decisions on Service of Notice under Section 7
Although constitutionality of triple talaq has never been questioned in Bangladesh, the judicial discourse on section 7 had mainly centred around the question of whether the service of notice as required by section 7 is mandatory or not. One view that the service of notice under section 7(1) was an essential precondition of a valid divorce was reflected in the case of Abdul Aziz v. Razia Khatoon,[xxvi] which was later relied upon by the then Lahore High Court in Maqbool Jan v. Arshad Hassan.[xxvii] In this case, the court mainly indicated that service of notice is to be treated as an essential condition for the statutory enforcement of talaq and failure to give notice of talaq within stipulated time frame amounts to its revocation. In other words, talaq will be effective after ninety days when the notice is well-served.[xxviii]
Abdus Sobhan Sarkar v. Md. Abdul Ghani[xxix]
In this case, the husband made a complaint that his wife had married another man during the continuance of his marriage. The wife, on the other hand, claimed that she had divorced him by exercising her right to talaq-e-tawfeez (wife’s right to a delegated divorce) and she had sent notice to the Arbitration Council, which confirmed her divorce. In this case though the requirement of service of notice was not challenged, the Court unequivocally held that a wife having the right to divorce could dissolve the marriage by serving notice in the same manner as a husband could.
Sirajul Islam v. Helena Begum[xxx]
The wife filed a suit claiming for her dower money and maintenance contending that her husband had divorced her and had driven her out of the matrimonial house along with her two minor daughters. The husband denied all the allegations and claimed that their marriage was still subsisting. Part of his argument was that he had given talaq by an affidavit before the Magistrate on 11 April 1990 and had served a copy of the affidavit upon the Nikah Registrar under section 6 of the Muslim Marriage and Divorce Registration Act 1974. But he did not give any notice to the Chairman of the concerned Union Council or to his wife as required by section 7 of the MFLO. The husband argued that he was not required to make the payment of the deferred dower to the wife as his divorce was not a valid divorce due to non-service of notice under section 7. The wife on the other hand claimed the payment arguing that divorce was effective. The court found in favour of the wife and observed that mere non-service of notice under section 7 of the MFLO did not render the divorce ineffective. According to the court,
[I]t was never the intention of the legislature that a husband exercising his independent act of pronouncing talaq cannot be given effect to until and unless such notice is given to the Chairman, and it means if a husband divorces his wife but does not give notice purposely to the Chairman then the divorce will not be effective till eternity.[xxxi]
Thus, the court here was mainly driven by the need to protect rights of divorced women and had interpreted the requirement of notice under section 7 in a way that could ensure justice to the estranged wife.
Dilruba Aktar v. A.H.M. Mohsin[xxxii]
The wife filed a complaint petition against her husband on the charge of polygamy under section 6(5) of the MFLO[xxxiii] before the Chief Metropolitan Magistrate, Dhaka alleging that they were married in 1987 and lived together as husband and wife for 3 to 4 months. While the marriage subsisted her husband remarried without taking permission of the Arbitration Council as required by section 6 of the MFLO. The husband contended that he had divorced his wife before his remarriage and produced witness in support of his claim. The Magistrate Court acquitted him of the charge. Against this order, the wife appealed before the HCD. The Court held that a notice under section 7(1) is mandatory and nothing can substitute the requirement of notice. In other words, the provision of section 7 must be “sternly complied with” and as there was no evidence that after pronouncement of talaq, the accused served any notice in writing to the Chairman or to the wife; the Court held that the first marriage was subsisting at the time of his remarriage.
Kazi Rashed Akhter Shahid (Prince) v. Most. Rokshana Choudhury (Sanda)[xxxiv]
In this case, the service of notice to the Chairman was disputed and the Court found that the husband failed to prove that the notice of talaq was sent to the Chairman of the Arbitration Council and a copy thereof to his wife. The HCD held that a talaq will not be effective even after the expiry of ninety days if any of the conditions of effectiveness of talaq, i.e. pronouncement as per Muslim law, service of notice upon Chairman and a copy thereof to wife, are not complied with. The court further held that if the husband abstains himself from issuing such notice to the Chairman as required by section 7, it would be deemed that the husband has revoked the talaq and the marital status of the parties has not changed.
Though the judicial decision held in Sirajul Islam (1999) had a policy consideration of not allowing the husband to deny maintenance to the wife on the excuse of notice not being served; it does create ambiguities about the effectiveness of notice under section 7 of the 1961’s Ordinance. Until this decision, previous cases established that notice was essential for divorce under section 7. Even in a number of cases decided afterwards, the SC emphasized on the service of notice as an essential requirement under section 7.
3. Section 7 of the MFLO under Judicial Scrutiny in Pakistan
As mentioned earlier, since its promulgation in 1961, the MFLO had been subjected to challenge on the grounds of repugnancy to Islamic laws. The Federal Shariah Court (FSC) initially interpreted article 203-B of the 1985 Constitution as excluding Muslim Personal Law,[xxxv] and thereby the 1961’s Ordinance, from the purview of its review powers.[xxxvi] However, in Allah Rakha v Federation of Pakistan,[xxxvii] the FSC opined otherwise and exercised its review power to hold that the provision of notice under section 7 of the 1961’s Ordinance was not essential for effectuating talaq. The appeal against the FSC’s decision is still pending before the Shariah Appellate Bench of the Supreme Court since 2000.[xxxviii]
In 1979, the Lahore High Court held that the procedure under section 7 is essential and that divorce by mutual consent (either khula or mubaraat) becomes effective after the expiration of ninety days from the date of the receipt of notice by the Chairman of the Union Council, but the husband cannot unilaterally revoke such a divorce (because such divorces are by mutual consent and different from unilateral divorce).[xxxix] Later decisions were divided in terms of whether the requirement of notice in section 7 was mandatory or not. In a set of decisions, the Pakistan Supreme Court observed that the requirement of notice was not essential when both husband and wife agreed to the dissolution of marriage.[xl] On the other hand there had been a series of decisions from the same Supreme Court supporting the position that divorce would not be valid without service of notice under section 7.[xli]
Even in 2010, the Lahore High Court unequivocally reiterated that, “It has now been settled law that talaq is not effective without notice under section 7(1) of the Muslim Family Laws Ordinance, 1961”.[xlii] At the same time, as mentioned earlier, Pakistani judiciary have on numbers of occasions recognized triple talaq as a valid and binding method of divorce, which becomes effective and irrevocable from the moment it is pronounced.[xliii]
Notably, a judicial trend favoring women’s rights in marriage can also be discerned from a number of decisions of the Pakistan Supreme Court concerning section 7. For example, the Supreme Court of Pakistan in Javed Ali v. Abdul Kadir[xliv] held that an abstention of husband to give notice to the local council is equivalent to the revocation of the pronouncement of talaq.
In another case titled Lal Din v. Zeenat Bibi,[xlv] the deceased’s third wife’s children were trying to show that their father had divorced the first wife so that they can secure their inheritance. The court found that the first wife was entitled to a share of the inheritance as the divorce was not adequately proven due to lack of proof of oral or written notice. The court further held that mere entry of a divorce into a divorce register is not enough to prove talaq, and instead it needs corroboration by witnesses of the oral pronouncement or by a written document of talaq. On this Nadya Haider notes,
Perhaps the real motivating factor in Lal Din was that the question needing determination whether a man had divorced his first of three wives prompted the court both to sympathize with the first wife’s situation and to indirectly condemn the deceased’s polygamist tendencies.[xlvi]
Another instance of a pro-women judicial approach is Mushtaq Ahmed v. Mst. Sat Bharai.[xlvii] In this case, the Supreme Court of Pakistan observed that when a husband dies before the expiration of ninety-days waiting period, the wife can inherit from her diseased husband’s property. The decision was based on the argument that the purpose of that ninety-day period was to give the husband time to reconsider his decision with regard to the divorce. Since the husband died before the expiration of ninety days, it can be said that there was ample time for him to change his mind. The court observed as follows,
During this period, if he would have been alive, he would have had the option to revoke the divorce pronounced by him. There is a procedure [in] law under which reconciliation proceedings are initiated and it is only on expiry of ninety days of service of notice that the talaq becomes effective. On the date [husband] died, talaq had not become effective in terms of section 7 of the Ordinance. Therefore, the respondent continued to be his wife.[xlviii]
As appears from the discussion above, judicial decisions in Pakistan on the legality and effectiveness of talaq given without notice under section 7 have not followed any consistent pattern. Sahar Bandial thus remarks that such an inconsistent judicial stance and interpretation renders nugatory the entire protective scheme of notice and reconciliation of the Ordinance.[xlix] However, since the MFLO was brought to give better protection to Muslim women from being discriminated through the traditional interpretation of the personal law, the efforts of the Pakistani judiciary in interpreting the laws in order to uphold rights of women is undoubtedly a progressive trend.
Muslim husband’s unilateral power to pronounce the arbitrary triple talaq had been causing much hardship for
Muslim women in South Asia. In India, the practice has been nullified by the
Supreme Court’s pronouncement post a prolonged national debate on its
constitutionality. Whereas, in Bangladesh, as in Pakistan, it is through a statutory
reform that instantaneous triple talaq has been made ineffective and
hence has the practical effect of being ‘abolished’[l]. However,
despite the law reform and the progressive stance of the Bangladeshi higher
judiciary to nullify any extra judicial interpretation of section 7, an
overwhelming majority of the rural people still believe that the provisions of
the MFLO regarding talaq-e-bidaat and
hilla are un-Islamic and should be
For Bangladesh, it is thus important to focus on policy changes so that the
progressive reform brought by the MFLO can have a greater impact on abolishing altogether
the arbitrary practice of triple talaq.
* Assistant Professor, Department of Law, University of Dhaka; email: firstname.lastname@example.org.
**Lecturer, Department of Law, Bangladesh University of Professionals (BUP); email: email@example.com.
[i] According to Syed Khalid Rashid, the idea of triple talaq was practiced before the advent of Islam during jahilliyah period (times of ignorance). The usual practice then was to pronounce the word ‘talaq’ two times and withhold the third pronouncement, making the wife live thus in constant fear of the third utterance. The practice of triple talaq was not allowed during the Prophet’s lifetime, during the first Caliph Abu Bakr’s reign and also for more than two years during the second Caliph Umar’s life. See for details, V.P. Bharatiya (ed.), Syed Khalid Rashid’s Muslim Law (Eastern Book Company, 2004), p. 131.
[ii]Shayara Bano v. Union of India and others Writ Petition (Civil) No. 118 of 2016 (decided on 22 August 2017). See the full judgment at: https://www.thehindubusinessline.com/multimedia/archive/03194/Supreme_Court_judg_3194881a.pdf (accessed 20 May 2018). For further commentary on this case, see Tahir Mahmud, ‘Anatomy of Supreme Court’s Judgment in Triple Talaq Case’, Amity Law Watch, Issue No. 32 (January 2018); available at: http://www.amity.edu/aials/pdf/E-JOURNAL-Issue%20No.%2032.pdf (accessed 28 May 018), pp. 3-4.
[iii] That the idea of triple talaq was not advocated by the Prophet himself is evident in the following tradition: “Messenger of Allah was once informed about a man who gave three divorces at a time to his wife. Then he got up enraged and said: ‘Are you playing with the Book of Allah who is great and glorious while I am still amongst you?’ So much so that a man got up and said: ‘Shall I not kill him?’”. From this tradition, it is easily understood that triple talaq was not a part of the core Islamic institution; rather this practice was condemned by the Prophet himself. See for further details, Al Maulana Fazlul Karim, Mishkat-ul-Masabih: An English Translation and Commentary (Islamic Book Service), p. 693 cited in: Akil Ahmed, Text Book of Mohammedan Law (Central Law Agency, 2004), p. 173. See also Justice H.N. Tilhari’s observation delivered in Rahmat Ullah v. State of U.P. and others (1994) (12) LCD 463: “Talaq–e-Bidaat, that is, giving an irrevocable divorce at once or at one sitting or by pronouncement it in a tuhr (purity period) once in an irrevocable manner without allowing the period of waiting for reconciliation or without allowing the will of Allah to bring about reunion, by removing differences or cause, of differences and helping the two in solving the differences, runs counter to the mandate of holy Quran and had been regarded as, by all under Islam and Sunnah, to be sinful.”
[iv]Marium v. Md. Shamsi Alam(1979) 72 AIR All 257; Fuzlunbi v. K. Khader Vali (1980) 4 SCC 125; Jiauddin Ahmed v. Anwara Begum (1981) 1 GLR 358; Mst. Rukia Khatun v. Abdul Khaliq Lasker (1981) 1 GLR 375; Zeenat Fatema Rashid v. Md. Iqbal Anwar (1995) AIHC 416; Sairo Bono v. Mohd. Aslam (1999) (3) Mh LJ 718; Dagdu Chotu Pathan v. Rahimbi Dagdu Pathan (2002) (3) Mh LJ 602; Najmunbee v. Sk. Sikander (2003) (2) Mh LJ 958; and Nazeer @ Oyoor Nazeer v. Shemeema(2017) (1) KLT 300. See details of some of the cases in Tahir Mahmud, ‘A Revolutionary Judgment on Divorce: Comments on a Recent Delhi High Court Decision’, Amity Law Watch, Issue No. 12(November 2007), pp. 9-10.
[v] Section 7 of the MFLO provides that:
“(1) 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.
(2) Whoever contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for term which may extend to one year or with fine which may extend to ten 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 the 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 a 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 talaq is pronounced, talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy, whichever be later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from re-marrying the same husband, without an intervening marriage with a third-person, unless such termination is for the third time so effective.”
[vi] The MFLO 1961 was adopted in Bangladesh through the Laws Continuance Enforcement Order made on 10th April 1971. The Constitution of the People’s Republic of Bangladesh 1972 in its article 149 provides that all existing laws of the Pakistan period shall continue to have effect subject to the provisions of the Constitution. Because of this constitutional provision, the Muslim Family Laws Ordinance 1961 is still effective in Bangladesh.
[vii] In December 2017, the Indian government had even introduced a Bill criminalizing triple talaq which had been passed by the Lok Sabha at the time of writing the paper. See for details, http://www.thehindu.com/news/national/lok-sabha-passes-the-triple-talaq-bill/article22319663.ece (accessed 20 May 2018).
[viii] According to Alamgir Muhammad Serajuddin, section 7 of the 1961’s Ordinance has never been repealed or modified in Bangladesh like in Pakistan. See Alamgir Muhammad Serajuddin, Shari’a Law and Society: Tradition and Change in the Indian Subcontinent (Asiatic Society Bangladesh, 1999).
[ix] Rabia Bhuiyan, Gender and Tradition in Marriage and Divorce: An Analysis of Personal Laws of Muslim and Hindu Women in Bangladesh (UNESCO, 2010), p. 188.
[x] (1931) LR 59 IA 21.
[xi] Ibid, at paras. 13 and 15.
[xii] Supra note 2 (Shayara Bano) (per Chief Justice Jagadish Singh Khehar), at para. 120.
[xiii] Ibid, at para. 117.
[xv] See for example, supra note 9 (Rabia Bhuiyan).
[xvi] Nadya Haider, ‘Islamic Legal Reform: The Case of Pakistan and Family Law’, Yale Journal of Law & Feminism, Vol. 12, No. 2 (2000), p. 308.
[xvii] Rubya Mehdi, The Islamization of the Law in Pakistan (Routledge, 1994), p. 154.
[xviii] Rashida Patel, Socio-economic Political Status and Women and Law in Pakistan (Karachi: Faiza Publishers, 1991).
[xix] Khawar Mumtaz and Farida Shaheed, ‘Women in Pakistan’ cited in: Sir Abdur Rahim, Principles of Muhammadan Jurisprudence (Luzac and Company, 1982), p. 37.
[xx] Supra note 16 (Nadya Haider), at p. 319.
[xxi] Sabiha Hussain, ‘Shariat Courts and Question of Women’s Rights in India’, Pakistan Journal of Women’s Studies, Vol. 14, No. 2 (2007), p. 86.
[xxii] According to Justice Syed Mahmud Hossain (now the Chief Justice of Bangladesh), fatwa in Islamic jurisprudence is considered to be a religious opinion concerning Islamic laws and principles issued by an Islamic scholar interpreting particular legal aspect in a given situation. The word ‘fatwa’ is itself derived from the root ‘fata’, or ‘fatah’, which means clarification, explanation, youth or newness. As fatwa is a religious opinion usually on an important point of law, it is generally given when an individual fails to get any solution to his/her problem from the available Shariah law, based on Qur’an, Hadith, Ijma and Qiyas. The person who can give fatwa is called Mufti (a highly qualified jurist or expert in religious law). Additionally, Md. Khalid Mashud et al illustrate the idea of fatwa in the following words: “A fatwa is an opinion; only an expert can give it. A fatwa even if by an expert is not a decree; it is not binding on the Court or the State. A Mufti had no authority to punish or impose punishment cannot be imposed privately without lawful authority. The State can ban fatwa that leads to violence and ‘fitna’.” See Md. Khalid Mashud, Brinkly Messick and David S. Powers (eds.), Islamic Legal Interpretation, Muftis and their Fatwas (Harvard University Press, 1961) cited in: Mohammad Tayeeb and Others v. Government of the People’s Republic of Bangladesh (2015) 67 DLR (AD) 57.
[xxiii] Supra note 9 (Rabia Bhuiyan), at p. 189.
[xxiv] (2011) 63 DLR (HCD) 1.
[xxv] The legality of fatwa was first questioned before the HCD in another case titled Editor, The Daily Banglabazar Patrika v. District Magistrate and Deputy Commissioner, Naogaon (2001) 21 BLD (HCD) 45. The HCD in this case declared fatwa delivered by any unauthorized person to be illegal. Subsequently, this decision was challenged in the AD in the case of Mohammad Tayeeb and Others v. Government of the People’s Republic of Bangladesh (2015) 67 DLR (AD) 57. The AD upheld the decision of the HCD with a further opinion that only properly educated persons may give fatwa which, however, cannot be imposed on any person. Not to be confused, the fatwa or Islamic religious edict was declared legal in “religious matters”, but fatwa violating human rights and facilitating torture/punishment was declared illegal and a punishable offence. In the BLAST case (2011), the HCD’s decision was based on two particular points. Firstly, the court believed that the imposition of punishment on any person is an exclusive legislative authority of the judicial forum. No other entity or institution can impose punishment on a person unless he or she is proved guilty by a competent court or tribunal. Since Salish in villages are not recognized judicial forums under any law, the imposition of punishment is not legal as well. Secondly, the court found that imposition of extra-judicial punishment by way of inflicting torture was against Bangladesh’s obligations towards the international human rights treatise and conventions prohibiting torture and degrading, inhuman treatment.
[xxvi] (1969) DLC 586.
[xxvii] (1975) PLD Lah. 147. Justice Afzal Zullah sitting in the Lahore High Court observed that (at pp. 151-2): “I am also in respectful agreement with the specific observation in the Dacca [High Court] case of Abdul Aziz that if talaq is otherwise valid (i.e., under the personal law of the parties the talaq is valid) it would become effective under that law; but the only clog therein is that its effectiveness would be postponed for ninety days under subsection (3) of section 7 of the Ordinance.”
[xxviii] In this case it was found that Abdul Aziz failed to establish the service of notice in compliance with section 7(1) of the Ordinance. Consequently, the Court said that the alleged talaq, even if it was pronounced by Abdul Aziz, was not effective in law and hence the marriage between him and Rezia Khatoon subsists in the eyes of law.
[xxix] (1973) 25 DLR 227.
[xxx] (1999) 19 BLD (AD) 150.
[xxxi] Ibid, at p. 51.
[xxxii] (2003) 55 DLR (HCD) 568.
[xxxiii] Section 6 o the MFLO provides that:
“(1) No man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under the Muslim Marriages and Divorces (Registration) Act, 1974 (LII of 1974).
(2) An application for permission under sub-section (1) shall be submitted to the Chairman in the prescribed manner, together with the prescribed fee, and shall state the reasons for the proposed marriage, and whether the consent of the existing wife or wives has been obtained thereto.
(3) On receipt of the application under sub-section (2), the Chairman shall ask the applicant and his existing wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if satisfied that the proposed marriage is necessary and just, grant, subject to such conditions, if any, as may be deemed fit, the permission applied for.
(4) In deciding the application the Arbitration Council shall record its reasons for the decision, and any party may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision to the Assistant Judge concerned and his decision shall be final and shall not be called in question in any Court.
(5) Any man who contracts another marriage without the permission of the Arbitration Council shall-
(a) pay immediately the entire amount of the dower, whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue; and
(b) on conviction upon complaint be punishable with simple imprisonment which may extend to one year, or with fine which may extend to ten thousand taka, or with both.”
[xxxiv] (2006) 26 BLD (HCD) 613.
[xxxv] Supra note 8 (Alamgir Muhammad Serajuddin), at pp. 234-246; and Abdullahi A An-Na’im (ed.), Islamic Family Law in a Changing World: A Global Resource Book (Zed Books Ltd., 2002), pp. 230-31.
[xxxvi] Justice Tanzilur Rahman in Mirza Qamar Reza v. Tahira Begum (1988) PLD Kar. 169, stood up against this legal position and pronounced that review of the 1961 Ordinance is permissible in accordance with article 2A of the 1985 Constitution, on the ground of repugnancy to Islam. Eventually, he declared several provisions of the Ordinance to be repugnant to Islam. But the decision was later set aside by the Supreme Court. See for details supra note 8 (Alamgir Muhammad Serajuddin), at p. 214.
[xxxvii] (2000) PLD FSC 1.
[xxxviii] Muhammad Munir, ‘Reforms in triple talaq in the personal laws of Muslim states and the Pakistani legal system: Continuity versus change’, International Review of Law (2013), Vol. 2, p. 5.
[xxxix] Princess Yasmien Abbasi v. Maqbul Hussain Qureshi (1979) PLD Lah. 241, at pp, 245-246.
[xl]Mst. Golam Fatima v. Abdul Qayyum (1981) PLD Lah. 241.
[xli] Ali Newaz Gardezi v. Muhammad Yusuf Gardezi (1963) PLD SC 51, State v. Mst. Tauqir Fatima (1964) PLD (WP) Kar. 306, Abdul Mannan v. Sofrun Nessa (1970) SCMR 845, Noor Khan v. Haq Nawaz (1982) PLD 265, Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqui (1984) SCMR 583, and Junaid Ali v. Abdul Qadir (1987) SCMR 518.
[xlii] (2010) PLD Lah. 681.
[xliii] (1994) PLD Lah. 236, (2014) YLR 2315, (2016) CLC 180.
[xliv] (1987) SCMR 518 (Pak.).
[xlv] (1987) CLC 587, 588 (Pak.).
[xlvi] Supra note 16 (Nadya Haider), at p. 320.
[xlvii] (1994) SCMR 1720 (Pak.).
[xlviii] Ibid, at p. 1722.
[xlix] Sahar Bandial, ‘An issue no one’s discussing’, The Express Tribune, 14 November 2016; available at: https://tribune.com.pk/story/1231097/issue-no-ones-discussing/ (accessed on 21 May 2018).
[l] Supra note 8 (Alamgir Muhammad Serajuddin), at p. 248.
[li] Ibid; and S. A. Qadir, Modernization of an Agrarian Society: A Sociological Study of the Operation of the Muslim Family Laws Ordinance and the Conciliation Courts Ordinance in East Pakistan (East Pakistan Agricultural University, 1968).