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Your Advocate
Q. My elder brother is now serving in a non-govt organisation. He married one of his colleagues six years back. Unfortunately the mamage did not work out and my brother divorced his wife by registering the divorce in accordance with law. The copy of registered divorce was sent to his wife. Later after almost a year my said brother took a second wife and was happify leading his conjugal life. Soon after his second mamage a notice from a magistrate's court was served upon my brother to appear before the court to answer the charge of taking second wife without permission of the first wife. We were astonished to team how a divorced wife may be the first wife and why one should take her permission. We have engaged a local lawyer. He has obtained bail for my brother but seems to be not hopeful about the result of the case. I came to know by a reading of the complaint that the talak gives was not tegal and the charge ts punishable up to one year n Musbm Fam4y Law. If it so happens this will bnng about a disaster m our fam4y. We are now living in Dhaka. Some knowledgeable people here told us that the drvorce ts to be given through the Mayor and the registered talak was to be given to the chairman supported by affidavit sworn before a notary public. My questions are a) a Muslim can divorce hts wife by pronouncing the word ’talak* thrice without assigning any cause and after the period of xldat he can marry again. Moreover here it is registered. Can it be made illegal by any law? b) how legal talak ts given? c) what would be the fate of the second marriage? d) how my brother can get nd of the case filed by his ex-wife? Your answer may help to save ourfamfly.
Ashik Aftab Bhuyan
Mymensmgh.
Your Advocate: It seems that everything on your side has happened on a vague impression of law. This law should be wen publicized so that lay people do not take avoidable suffenngs. Answer to your first question is-Muslim personal law permits tatak by pronouncement as you have understood but the Mushm Family Laws Ordmace.1961. has made a mandatory provision requiring - any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talak in any form, give the chairman notice m writing of hts having done so. and shall supply a copy thereof to the wife. Violation of this law is made punishable with imprisonment for a period not exceeding one year and also liable to fine not exceeding ten thousand taka. By legislative enactment the procedure of Tatak is laid down to be followed by every Mushm. This is a special law made for the purpose and will prevafl over the general law. that Is. our personal law. And its violation is made punishable. Therefore, we as subjects of the slate are bound to follow the prevaAng law of the land or to take the consequences. Since the talak was not given in accordance with law the mamage tie legally subsisted and your brother's fist wife took the opportunity of violation of law in this regard. If there is a subsisting wife permission of the Arbitration Council must be taken for taking a second wife.
With regard to your second question it should be remembered that tatak in any form must be effected through the local UP-Chairman and in case of Paurashabha and City Corporation the Paurashabha Chairman and the Mayor respectively. The affidavit sworn before any authority and prior registration of talak by the Marriage registrar are not mandatory. Those are mere extra-legal formalities developed by practices. They by themselves do not vaiidiy dissolve a mamage unless the matter do not brought to the notice of the Charman or the Mayor as the case may be. Once the notice of talk is given to the chairman with a copy of the same to the wife it takes effect after expiry of 90 days from the date of its receipt by the chairman and in case of pregnancy of the wife after pregnancy ends provided the steps towards reconciliation by the Chairman fail. The reply to your third question is the second marriage would not be void by reason merely of contracting it in volition of law nor the child, if born, would be illegitimate. But such violation is punishable as provided under law. Finally the way out for your brother. It is— difficult at this stage and without having access to the records of the case to pass any opinion about its ment. Ptease take care that a good lawyer is engaged.
Your Aihocsle M Mamzam Husain is a lawyer of Ihe Supreme Court of Ban^adsh. He professional rrierests include civi law, criminal law and constitutiorul law.