Authored By: MD. IFTEKHAR ALAM TALUKDER
Bangladesh University of Professionals (BUP)
Abstract:
The codification of Muslim Personal Law in Bangladesh is mandatorily essential in today’s modern society, as it addresses modern societal issues that existing laws may not adequately cover. This research examines specific areas of concern regarding marriage, child marriage, divorce, succession, and registration of marriages and divorces. It notes that while marriage is viewed as an ibadat (religious act), there are contradictory statutory provisions regarding the marriageable age, resulting in legal anomalies. The Child Marriage Registration Act 2017 stipulates different ages for males and females, causing inconsistencies and potential punitive measures against valid child marriages. The Muslim Family Law Ordinance 1961 raises questions about the iddah (waiting period) post-talaq (divorce), and the doctrine of representation under the Ordinance may deprive sharers of inheritance rights. The paper compares Bangladesh’s personal law with other countries such as Morocco, Turkey, and Egypt that have made notable reforms to align statutory laws with Sharia, ensuring equality and justice. Finally, this article concludes with some suggestions to bring significant reforms to align statutory laws with Sharia, ensuring equality and justice.
Key Words:
- Ahsan,
- Dissolution,
- Family Law,
- Hadith, Iddah,
- Ila, Khula,
- Muslim Marriage,
- Registration,
- Puberty,
- Talaq,
- Sharia,
- Bangladesh,
- Egypt,
- India,
- Jordan,
- Moroccan,
- Pakistan,
- Turkey,
- UAE
Introduction
In the context of Islamic law, it is divine established on the basis of two main source Quran and Hadith the practice of prophet Mohammad (sm) (P.B.H). Islamic law is called complete code of life. On the basis of these two sources and not changing the fundamental principles for utilizing the scope and enforceability through civil procedure the statutory laws been codified. It is found that the nature of Muslim family law is a substantive part of Islamic law1. In order to cope up with modern world development sometimes many issues do not cover by the existing law. Considering that situations the juristic analogy on the basis of problems and their creative effort on the basis of Quran and sunnah systematically conclude that issue which called ijtihad. Although there is different opinion exist by four imams. The school of thoughts helps in codification of Muslim Personal law where it can say that Sharia is an ocean and schools of thoughts just a little interpretative part of it in different imams’ different thoughts or view. It is a common phenomenon that Family law’s flexibility created the scope for contextual interpretation where the subjective issue of problems be solved. In the Muslim Personal Law (Shariat) Application Act, 1937 stated under section 2 that the Muslim personal laws govern matters as follows: “Notwithstanding any contrary custom or usage, in all matters (excluding those pertaining to agricultural land) concerning intestate succession and the special property of females, including personal property acquired through inheritance, contract, gift, or any other provision of Personal Law.” The dissolution of marriage, encompassing talaq, ila, zihar, lian, khula, and mubaraat, along with maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (excluding charities, charitable institutions, and religious endowments), shall be governed by Muslim Personal Law (Shariat) in cases involving Muslim parties.2
The utility of codification of Muslim family in Bangladesh express to the scope and limitations of such codification where such nexus point stand for interpretations. As Islamic law derived from divine sources unchangeable nature but through interpretation such ambiguity arises in different situations be resolved.
This paper will try to utilize the sprit and intention of codification of Muslim family law in Bangladesh in reference form many families law issues regarding marriage, child marriage validity and punishment, divorce, doctrine of representation, registration of marriage and divorce etc. In reference with comparative study with different modern countries, finally it will express brief observations and opinion with concluding remark.
Utility of codification of Personal law Analysis
The policy of the Muslim Personal Law is to give appropriate solution respecting Sharia through statutory judicial process as it will help to build rule of law and justice to all. In debate there is sharia in Islamic law but considering the utter application is better to codify and create binding force for all. Here the utility of codifications in different issues and based on statutory provisions such conflicting or problems given below:
Marriage
Marriage under Muslim Family Law is an “ibadat” mean to join together to established the legalized sexual rights for the purpose legalized the generation3in order to guard themselves from foulness or unchastity. It is established by different case judgement that marriage is a nature of civil contract in reference case, Abdul Kadir vs Salima4, Khurshid Bibi v Muhammad Amin5, and Anwar Hossain vs. Momtaz Begum6. The statutory provision provided that there are some conditions and elements for marriage such as gender must man and women, sound mind, condition of prohibited degree, religious faith where law is sets bridegroom must be Muslim in flexibility respect of bride may be ahl-al-kitab (People of the book) and the condition regarding attainment of majority7. The statutory law codified the age limit as regard in Islamic law majority is not a matter of age it is a matter of naturally attainment of puberty. It means to capable of attainment of natural physical event to achieve sexual power as such for the boy when starts “Night pollution” for girls when she begins her menstruate8.
The marriageable age under statutory laws is creating paradox in the ground of not stating the same marriageable age in contrasting act under different legal definition the legality of marriageable age stand I question. In reference under section 2 the Child Marriage Registration Act, 2017 creates confusion about adult in case of marriage where it defines that who has completed age 21 as male and who has completed age 18 as consider female, in case of marriage who has violated this binding laws- under section 7,8, 9 grant punishment which make mandatory by imposing the word “Shall” be punished with imprisonment for 6 month to 2 years or with fine which may extend to 50 (fifty) thousand Taka, or with both in different circumstances different punishment even marriage by guardian which permitted under sharia also got punishable in case of child marriage. In case marriage of a muslim minor, the sharia set guardian to contract their marriage until they attain the “option of puberty” which called “Khiyar al bulugh” there is many Hadith that allows option of puberty to all child marriages contracting by any guardian. Thus, The Dissolution of Muslim Marriages Act, 1939, under section 2(vii), defines the grounds for the marriage dissolution, specifically addressing marriages conducted by a guardian “when she attained the age of 18 and before attaining the age of 19 ca repudiated the marriage on the condition that marriage has not been consummated.
But in the Majority Act,1875 the definition of adult is for male or female who attains at the age of 18 years. So, in the context two law creating anomaly about the child and adult. In the question of validity of child marriage law is silent, as per sharia the marriage is valid but modern statutory provisions given in good faith setting age otherwise punishment. But about this issue different modern country use the equally marriageable age for both male and female.
All this law does not question in respect of validity of such child marriage but substantively given punishment on the ground of failure to fulfill the requirements of marriageable age. The comparison with sharia the statutory provisions creating anomaly because of such paradoxical situations the codification is remain questionable and the age stand debatable.
Divorce
under section 7 of the Muslim Family Law Ordinance, 1961 in case of talaq so effective when the notice in writing be served to the chairman and a copy to the wife in addition under sub section 3 set the term for such talaq shall be effective after 90 days from the date of notice served to the chairman. If failed to served notice the talaq will not effective according to this section. The question raised about in the case of the determination of iddah period, where the sharia requirement is after talaq the wife have to pass her iddah for remarry, the period is her three menstrual courses9. As the statutory requirement have to serve notice for such effective of talaq, raises question about this iddah, whether the women have not pass three menstrual course withing 90 days, whether she pass that course after 90 days, where talaq al ahsan10 in the revocable form of talaq in the iddah before the talaq so effective if they consummated the talaq remain terminated. But by creating such ambiguity the statutory codification and anomalous, such codification of the Muslim Personal Law in Bangladesh be found but modern country already resolved these issues.
Succession
Under section 4 of the Muslim Family Law Ordinance, 1961 stated about the doctrine of representation that codification is not complementary with sharia in comparison it is found that some time the sharer got deprived from inheritance rights, only because of these statutory provisions as doctrine of representation. This is the defect of long term not development or non reformation of personal issues.
Registration
In Marriage registration under the section 5(2) of The Muslim Marriage and Divorces (Registration) Act, 1974 where a marriage between Muslim man and women being solemnized the duty to the bridegroom to registrar within 30 days of such solemnization. If the bride failed to registered the marriage be punished imprisonment for two year or three thousand taka fine or with both. Where under the section 6 of this same act stated about divorce registration which stating any party has authorization by production of due document may register of the divorce for the effectiveness. For non-registration of divorce there is no punishment according to this act. It can be considered that registration of marriage is important because of ijtihad as it is not questing the validity of that marriage in this case the law remain silent. But the section is merely bias to the male by making mandatory to the bridegroom and keeping punishment for him not giving the scop for bride it is discriminatory under the principle of right to equality. Though the marriage is not mandatory to registrar under the Sharia but the statutory law for the name of complementing instead making discrimination. So, such codification is need to be reform for the sake of remove discrimination.
It is worth mentioning here that in the case of Abdur rakib (Md) (Shahin) vs. shertaj Khatun and another11Appellate Division of the Supreme Court of Bangladesh considered that an unregistered marriage is valid affirming the High Court Division given decision that registration is not required for the validity of marriage.
Muslim Personal Law in Different country’s
In case of marriageable age Moroccan family law Mudawana2004 fixes same age for both male and female for marriage. In respect of registration in the in Pakistan under section 5 of the Muslim Family law Ordinance, 1961 introduce the requirement for a marriage registration thus is not also raising the ground of validity of the marriage, in India treated registration od marriage as a conclusive proof, in Egyptian court declared that court will not adjudicate unregistered matrimonial matter.
It is found in many modern countries statutory law that development come trough interpretation of traditional Islamic law Moroccan Family Law Moudawana 2004 where they introduce equality within the sharia framework in conflicting cases where they also try to honour women status and ensuring justice12. Also, the UAE reform their family law in case of rights and duties of husband and wife13.
In case of talaq the Turkey equally treating husband and wife, where Egypt is the first country to reform husband power of talaq through interpretation by jurists as followed the Jordanian Law of Family Rights,1951, the Syrian Law of Personal Status, 1958, and the most significant Moroccan Family Law MOUDAWANA 2004 are considered as most developed family law at a glance14.
Criticism of statutory law and Opinion
It is clearly making sense that the personal law is complementing the sharia not reforming with considering new application of sharia. By the codification of Muslim Personal law as sharia is in question of fact that bring positive or negative impact in Bangladesh. Considering Bangladeshi Muslim laws dealing with different part of sharia by different law. It is said that Statutory provisions are complementary with the Sharia Law. Bangladeshi applicable Muslim Personal Law (sharia) has been operating for a long time since 1937 till now, where there is not any significant reformation or any development found by any juristic or scholarly application in Bangladesh be seen. Sometimes by creating such anomaly or ambiguity in statute in respect of sensitive sharia application also found closely contrastingly silent or sometimes interpretative formation needed to clarify such ambiguity arose. There should be effective and modern liberal positive effort to justified those issues under sharia and statutory law. Under the Section 5 of the Muslim Marriages and Divorces (registration) Act, 1974 such requirement for registration of marriage is not violating the sharia requirement of validity of marriage but complementing the sharia by upholding the “Shahada” to keep proof of a marriage which makes the marriage is strongest valuable and in contrary punishable. In addition, and divorce registration to be done in good faith. Any statutory provision remains silent the operative law shall be the Muslim Personal Law (shariat) Application Act,1937. Laws need to reform with maintenance of sharia through the version of Affirmation
Recommendations:
- Revise and Standardize Age-Related Provisions in Matrimonial Legislation • Issues and Gap:
As the Marriage Restraint Act 2017, the Majority Act 1875, and Muslim Family Law, creating inconsistencies and legal ambiguity regarding the legitimacy and penalties associated with child marriages.
- Suggestion:
The Government of Bangladesh should reform and align all statutory provisions as legal stipulations on the marriageable age for both male and female, assuring conformity with Sharia principles and international human rights norms. This can be modeled on the Moroccan Mudawana (2004), which standardized the marriage age to enhance gender equality and legal clarity.
- Modern Reformation and elucidate the codification of divorce and iddah.
- Issues and Gap:
From discussions it is very clear that the 90-day notice period for talaq under Section 7 of the Muslim Family Law Ordinance 1961, creates ambiguity with the Sharia-based iddah (waiting period) regulations.
- Suggestion:
It is recommended that codified law be amended to synchronize the statutory waiting period with the Sharia-based iddah, so safeguarding women’s rights and religious duties while eliminating ambiguity. Bangladesh may draw upon Egyptian and Jordanian Family Law, which have modernized divorce procedures while maintaining Sharia principles through court supervision.
- Reformation of the Marriage and Divorce Registration System to Ensure Equality.
- Issues and Gap:
It is expressly indicated that Section 5(2) of the Muslim Marriage and Divorce (Registration) Act 1974 imposes fines exclusively on the groom, resulting in gender discrimination and inequity.
- Suggestion:
It is recommended that the law should be reformed to establish joint duty for registration among both spouses and to provide equal accountability for non-registration as the penalties must be equitable and equal. This change would advance female equality and retain the constitutional idea of equal rights, while also preserving Sharia’s focus on documentation and good faith (Shahada).
Conclusion
The area of Muslim Personal law is vast in practice and application. whereby it will concisely be discussed above and critically analysis the utility of codification of Muslim Personal Law applicable in Bangladesh, such reformation on the grounds of anomalous law or contradicting or conflicting, through wide interpretation of traditional text modernized within the sharia framework the Muslim Personal Law, 1929 will be the new era of Bangladesh.
Reference(S):
1 Haque, Dr. Muhammad Ekramul, Muslim Family Law Sharia and Modern World, 2015, 1st ed, Dhaka, 2015
2 Section 2, The Muslim Personal Law (Shariat) Application Act, 1937
3Supra n 1, page 47.
4Indian Law Report, (1886) 8 Allahabad, 149
5 PLD 1967 Supreme Court 97
6 51 DLR (HCD) (1999) 444
7Supra n 1 , page 54
8Ibid
9Supra n 1, page 235
10 Ibid
11 2008, 37 CLC (AD) [2749]
12 Article 51, THE MOROCCAN FAMILY CODE (MOUDAWANA) 2004
13 Supra n 1, page 105.
14 Ibid , page 279
