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 interval 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, 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 village religious leaders. 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 revealed that Moulana 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 barbarian inhuman actions being 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 abetment of 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 in which 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 village illiterate/half literate mullahs 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 having been divorced from that husband, could remarry her. Fazlu Mia was threatened to 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 16 November 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 the 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 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 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."
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 re-conciliation by the rural mullahs, is clearly a violation of the existing law of the land.
In the case of Shahida, the illiterate/half-literate fatwabaz cannot force Shahida 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 Quoran 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 Quoranic 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 Quoran, 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 Quoranic ayat seems to suggest the attempt at reconciliation should be made. It is submitted that, the Ordinance 1961, has kept the Quoranic 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 ninety days time to either Fazlu Mia or Ambia bib. Therefore, the talaq pronounced by him was not legal and valid both under the Quoranic ayat and 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, 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 (Shariat), 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 period (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 Muhammed (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 Quoran 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, 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.
Protection under the Penal Code 1860
The Penal Code provides stringent punishment against any person who causes hurt or grievous bodily pain, disease or infirmity to any person (Section - 319). Section 3 of the same Code says that the following kinds of hurt only are designated as grievous: (1) emasculation; (2) permanent privation of the eye sight of either eye; (3) permanent privation of the hearing of either ear; (4) privation of any member or joint; (5) destruction or permanent impairing of the powers of a member or joint; (6) permanent disfiguration of the head or face; (7) fracture or dislocation of bone or tooth; (8) any hurt which endangers life or which causes the sufferer to be during the space twenty days in severe bodily pain or unable to follow his pursuits.
In the case of Nurjahan and thousands of women like her, in the past, we have observed, they suffered grievous bodily harm due to the conditions imposed by the local illiterate mullahs in the name of fatwa. It can never be known what those victims felt before accepting such punishment at the nasty hands of rural illiterate mullahs. But what we know is that these illiterate mullahs were never punished for the commission of such inhuman offences through their so-called fatwas.
Section 325 of the Code provides seven years imprisonment to the offender for causing grievous hurt voluntarily. The offender is also liable to give fine for his offence. Section 326 provides punishment with imprisonment for life or with imprisonment for a term of 10 years and also with fine, for causing grievous hurt by dangerous weapon. When Nurjahan was sentenced to 50 lashes by the local illiterate mullahs, definitely, she suffered from grievous bodily harm. However, she survived the stoning, but committed suicide in humiliation. No one has any right to pronounce unjustified and inhuman fatwa in the name of religion to cause grievous bodily harm to women, for whatever cause there may be.
Unfortunately, the Penal Code has failed to deter these offenders from repeating the same offence by punishing them. Even though the victims of so-called fatwas were guaranteed right to enjoy the protection of law under Article 31 of the Bangladesh Constitution, yet they got no protection from the law. Where lays the constitutional guarantee for the protection of the rights of these victims? This guarantee lies in theory and within the pages of written Bangladeshi Constitution but not in practice. Law enforcing agencies did not arrest those offenders to push. As a result, no fatwabaz was given any exemplary punishment under the Penal Code.
Fatwa and Act of 1995
Under the public pressure, the Bangladesh National Assembly unanimously adopted the control of oppression on women and children (Special Provision) Act 1995, with a view to provide exemplary punishment for causing grievous hurt to women and children. Section - 5 of the said Act deals with the penalty causing grievous hurt by erosive, poisonous or corrosive substance and runs as follows:
"Where a person causes such grievous hurt to a child or woman by erosive, poisonous or corrosive substance as a result of which (a) the eye sight is lost; (b) the head or the face is decomposed; (c) the audible power is lost; (d) any limb or knot of the body is lost, or (e) any other part of the body so deformed in that case, the person (i) shall be punishable with imprisonment for a term not exceeding 14 years, but not less than seven years, and shall also be liable for a fine for any hurt where the child or the woman has lost the eye sight permanently; (ii) shall be punishable with death or imprisonment for life and shall also be liable to a fine where the child or the woman has lost eye sights of both the eyes permanently; (iii) shall be punishable with imprisonment for a term not exceeding 14 years, but not less than seven years, and shall also be liable for a fine, where the head or face is decomposed permanently."
This Act, like the other earlier Acts, also failed to act as a deterrent against so-called fatwabaz. No case is brought in the court against illegal fatwabazi, under this Act. This indicates its limitation to punish the so-called fatwabazs. As a result, no fatwabaz was punished under this Act for causing grievous hurt to women through their illegal, immoral and irrational fatwas.
In Bangladesh, women constitute almost 50% of the population. Development of the country largely depends on the progress of this section of the population. Government, NGOs, international agencies initiated lots of programmes for the advancement of women. These efforts would be successful if effective steps are taken to educate these women about their basic legal rights and protect them from the nasty hands of rural illiterate or half-literate religious leaders. That is only possible by empowering women - through education, equitable access to resources and social justice system. In my opinion, beside educating women about their legal rights, the enactment of stringent laws against illegal fatwabazi and its proper implementation are also required to protect woman from the nasty hands of rural illiterate religious leaders. Without proper implementation, such laws cannot safeguard women to fight against so-called inhuman fatwas.
(The writer is a Barrister of the Honourable Society of Lincoln's Inn and an advocate of the Supreme Court of Bangladesh) |