Question # 503: Assalamualaikum. This is _______ from Bangladesh. i have married on 1st February,2019.after marry I have face huge problem in my business so with my wife relation wasn’t as expected. and her mother influenced her to divorce me. and then finally August,2020 she issued divorce notice. and after 90 days govt authority told me that divorce was impose.as per knowledge Islam didn’t give the right to women to divorce. but in Bangladesh marriage register tick the article where stated husband gave the right to his wife for divorce.in Bangladesh almost 100% marriage registry happened like this way. wallahualam i dint give her right to divorce.so my question is now that my divorce was activated or not. Maassalam.
bismi-llahi r-raḥmani r-raḥīm,
Assalamu ‘laikum warahmatullahi wabarakatuh,
All praise and thanks are due to Allah (سبحانه و تعالى), and peace and blessings be upon His Messenger (صلى الله عليه و سلم).
First of all, we implore Allah (سبحانه و تعالى) to help us serve His cause and render our work for His sake.
Shorter Answer: Based on the provision and laws relating to divorces for Muslims in Bangladesh and in accordance with Shari’ah, the wife can dissolve her marriage under the following circumstances:
- Talaaq-e-Tafweed: If the husband has delegated the right of divorce to the wife as part of the marriage contract, she may choose to exercise such a right.
- Khula’: It is a right of divorce purchased by the wife from her husband in which she gives or agrees to give a consideration to the husband for her release from the marriage tie.
- Faskh (Annulment): The qaadi (judge) has the authority to separate husband and wife and thus end the marriage if he finds evidence that it is impossible for them to maintain a stable marriage and if the wife is being harmed by her husband’s neglect, whether it be sexual, economic or social. The husband’s absence has no effect on the validity of the annulment.
Generally speaking, in the case of faskh, the basic principle is that a Muslim judge in a Shari’ah court, or the substitute thereof, should not pass any judgment before hearing what all the parties have to say. Consequently, the husband should refer to the court and try to convince the judge to change his mind, or he can ask for an official fatwa to be issued by the appropriate body in his country to declare it null and void, which he may then present to the court.
Long Answer: The provision and laws in the matter to divorces for Muslims in Bangladesh are as follows:
- Muslim Family Law Ordinance, 1961,
- Dissolution of Muslim Marriage Act, 1939,
- The Family Courts Ordinance, 1985, and
- The Muslim Marriages and Divorces (Registration) Act, 1974.
These laws provide for two forms of divorce that include: (i) Extra-judicial divorce and (ii) Judicial divorce. Extrajudicial divorce consists of three types:
- divorce by the husband (talaaq, ila, zihar),
- by the wife (talaaq-e-tafweed, lian) and
- through mutual consent (khula’, muba’rat).
The pertinent ones to be discussed as it relates to the given question are talaaq-e-tafweed, khula’, and Judicial Divorce law.
Talaaq-e-Tafweed: According to section 8 of the Muslim Family Laws Ordinance, 1961, if the wife gets the right to divorce by delegation, she may exercise such right in the same manner as the husband (The Muslim Family Laws Ordinance, 1961 Under section 7) so far applicable. In fact, under traditional Shari’ah Law, a Muslim woman cannot dissolve her marriage without the consent of the husband; however, the Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently. A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favor of the person to whom the power is delegated, and the purpose of delegation must be clearly stated. It should be noted that even in the event of a contingency, whether or not the power is to be exercised, depend upon the wife she may choose to exercise it or she may not. The happening of the event of contingency does not result in automatic divorce. Nevertheless, the process is a bit complicated, as the provision of this talaaq is applicable when the husband has delegated her that power at the time they got married in the niqahnama (under clause 18 of the Bangladesh Form No: 1601). This form of divorce enables married women to dissolve their marriage without the consent of the husband or the intervention of the court or another external agency. If the woman exercises this right, the same provisions of divorce apply, and she must also send a written notice of divorce to the local chairman as well as to her husband.
Khula’: A divorce by khula’ is a divorce with the consent and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. It signifies an arrangement entered into for the purpose of dissolving a connubial connection in lieu of compensation paid by the wife to her husband out of her property. Khula’ in fact is thus a right of divorce purchased by the wife from her husband.
As for the Judicial Divorce law, under the Dissolution of Muslim Marriages Act, 1939 a wife shall be entitled to obtain a decree for dissolution of her marriage under Section 2 of the Act. The grounds for a decree for dissolution of marriage under this section are as follows:
- If the husband has been missing or not found for four years,
- If for 2 years the husband has failed to provide his wife maintenance,
- If the husband has been sentenced to or jailed for 7 years or more,
- If the husband has failed to perform a marital obligation for 3 years or more,
- If the husband was powerless or continue to be so,
- If the husband has failed to fulfill married responsibility for 3 years or more,
- If for period of 2 years the husband has been insane and suffering from any other critical diseases,
- If the wife was been married off before the age of 18 years and she refuses the marriage before achieving 19 years of age, or
- If the wife is being treated with nastiness by her husband which includes: habitual assault or physical torture, b. leading an immoral life, c. forces the wife to lead an immoral life; d. disposes of wife from her property, e. obstructing her in performing religious activities, f. does not treat his wife equally like the other wives (If the husband has several wives) Or any other ground as provided in Muslim Law.
(The above answer is based on the various legal websites relating to divorce laws in Bangladesh)
Now, let’s understand the above in the light of Shari’ah:
According to Shari’ah, the husband has the independent right to issue a divorce. However, in certain situations, the husband may hand over his autonomy of divorce to the wife. This in Shariah is called Tafweed at-Talaaq.
There are three possible scenarios for handing over the right of divorce to the women: a) Before the contract of Nikah; b) At the time of Nikah; and c) After the performance of Nikah.
In view of the above, if the right of divorce is handed over to the women before the nikah it would be done in the following manner: if I marry a certain woman and I happen to violate certain conditions (put by the wife), I handover my autonomy of divorce to her. If the right of divorce was handed over to the wife at the time of nikah it would be done in the following manner: I accept so and so, in my marriage on this condition that if I happen to violate certain conditions (set by the prospective wife) I hand over my right of issuing divorce to my wife. Lastly, if the right of divorce was handed over after the nikah it could be done in the following manner: if I violate certain conditions I hand over my right of issuing divorce to my wife. (islamqa.org) (See also the issue of Tafweed al-Talaaq (delegating divorce) in al-Mawsoo’ah al-Fiqhiyyah and al-Sharh al-Mumti’)
[Next,] khula‘ is granted in return for financial compensation, such as if the wife returns the mahr to the husband, or she gives up the deferred portion of the mahr. The basic principle is that khula‘ should be granted by the husband, but the judge may force the husband to issue a talaaq (divorce) or khula‘, if he finds evidence that calls for that, such as if the wife is being harmed, in which case khula‘ or talaaq may be granted through the court, in which case the husband has no recourse but to refer to the court and try to convince the judge to change his mind, or he can ask for an official fatwa to be issued by the appropriate body in his country to declare the khula‘ null and void, which he may then present to the court. [Therefore,] it is permissible for the judge, in the event that it is proven that the wife is being harmed and the husband is absent, to separate them formally.
[Furthermore,] marriage can be dissolved/ annulled (faskh) in Islamic Law by the judge at the instance of the wife under the following circumstances:
- When the marriage is “unequal”
- When the husband has some defect
- When the husband is missing – presumed dead
- Husband not maintaining the wife (Maliki, Shafi’i, Hanbali)
- Husband ill-treats the wife (Maliki, Shafi’i, Hanbali)
- Husband fails to perform the marital obligations
- Husband commits inequality between two or more wives
(‘Fiqh of Family, Marriage, and Divorce’ by Jamal Zarabozo)
[Hence,] the qaadi (judge) has the authority to separate husband and wife and thus end the marriage if it is impossible for them to maintain a stable marriage and if the wife is being harmed by her husband’s neglect, whether it be sexual, economic or social. The qaadi should study each case on its own merits and look into the circumstances surrounding each case. The husband’s absence has no effect on the validity of the annulment. (Islamqa.info)
Allahu A’lam (Allah (سبحانه و تعالى) knows best) and all Perfections belong to Allah, and all mistakes belong to me alone. May Allah (سبحانه و تعالى) forgive me, Ameen.