BiyeGhar.com

[An Ordinance to give effect to certain recommendations of the Commission on Marriage and Family Laws] WHEREAS it is expedient to give effect to certain recommendations of the Commission on Marriage and Family Laws; NOW, THEREFORE, In pursuance of the Proclamation of the seventh day of October. 1958, and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance:- 1. (1) Short title, application and commencement—This Ordinance may be called the Muslim Family Laws Ordinance, 1961. (2) It extends to the whole of Bangladesh (1) and applies to all Muslim citizens of Bangladesh wherever they may be. (3) It shall come into force on such date as the Government (2) may, by notification in the official Gazette, appoint in this behalf (3). 2. "Definitions" (4) In this Ordinance, unless there is anything repugnant in the subject or context.— (a) "Arbitration Council" means a body consisting of the Chairman and a representative of each of the parties to a matter dealt with in this Ordinance; Provided that where any party fails to nominate a representative within the prescribed time, the body formed without such representative shall be the Arbitration Council; (b) "Chairman" means- (i) the Chairman of the Union Parishad; (ii) the Chairman of the Paurashava; (iii) the Mayor or Administrator of the City Corporation; (vi) the person appointed by the Government in the Cantonmrn; areas to discharge the functions of Chairman under this Ordinance; (v) where the Union Parishad. Paurashava or City Corporation is superseded, the person discharging the functions of such Parishad, Paurashava or Corporation or, as the case may be appointed by the Government to discharge the functions of Chairman under this Ordinance: Provided that where the Chairman of the Union Parishad or Paurashava "or the Mayor of the City Corporation" is a Non-Muslim, or he himself wishes to make an application to the Arbitration Council, or is owing to illness or any other reason, unable to discharge the function of Chairman, the Union Parishad, Paurashava or City Corporation shall elect one of its Muslim members or Commissioners as Chairman for the purposes of this Ordinance; (c) "City Corporation" means the City Corporation constituted under the Chittagong City Corporation Ordinance, 1982 (XXXV of 1982), or the Dhaka City Corporation Ordinance, 1983 (XL of 1983), or the Khulna City Corporation Ordinance, 1984 (LXXII of 1984), the Rajshahi City Corporation Ordinance, 1987 (XXXVIII of 1987) and having in the matter jurisdiction as prescribed; (d) "Paurashava" means the Paurashava constituted under the Paurashava Ordinance, 1977 (XXVI of 1977), and having in the matter jurisdiction as prescribed. (e) "Prescribed" means prescribed by rules made under section 11; (f) "Union Parishad" means the Union Parishad constituted under the Local Government (Union Parishads Ordinance, 1983 (LI of 1983), and having in the matter jurisdiction as prescribed. (5)" *COMMENTS: Section 2 defines only Chairman as the Chairman of the Union Parishad or Paurashava but the Ordinance does not invest the Chairman with the Junctions to perform under the Muslim Family Laws and the powers therefore (6). 3. Ordinance to override other Laws, etc.—(1) The provisions of this Ordinance shall have effect notwithstanding any law, custom or usage....... [omitted] (7). (2) For the removal of doubt, it is hereby declared that the provisions of the Arbitration Act, 1940 (x of 1940), the Code of Civil Procedure. 1908 (Act v of 1908) and any other law regulating the procedure of courts shall not apply to any Arbitration Council. 4. Succession—In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive. COMMENTS: The date of the death of propositus, whether it was before or after coming into force of the Ordinance is immaterial. It is the date of opening of the succession which is of material importance (8). 5. (1) to (6) * * * * * * * * * * (9) 6. Polygamy.—(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.] (9b) (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 (10) 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 re-coverable 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] (11) or with both. *COMMENTS: When punishable—When a husband having a wife wants to contract another marriage, observance of the procedures laid down in this section is mandatory for him, in default of which the husband would be criminally liable and not the wife whom he marries* (12). Resort to polygamy can only be had when permission thereof is given in writing by the Arbitration Council (13). There is no provision in Ordinance VIII of 1961, whereby, a person can be convicted for abetting an offence referred to in section 6 (5) of the Ordinance (14). Compromises of the case in revision accepted by the High Court (14A). Union Panchayet and Paurashava took over functions of Muslim Family Laws Ordinance from 20.11.1972. Marrying a second wife without permission of an Arbitration council, violates section 6(5)(b) and is punishable as such (15). Trial not within the Magistrate's territorial Jurisdiction, trial illegal (I5A). Violation of the provisions of section. The contract of the second marriage during the subsistence of the first marriage, person marrying liable to prosecution under the section 6(5) of the Ordinance (15B). Non-registration of the marriage causes a doubt on the solemnization of the marriage itself (15C). A Christian adopted Islam and married for the 2nd time after conversion. 2nd marriage not unlawful (15D). 7. Talaq.—(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 a term which may extend to one year or with fine which may extend to ten thousand taka (16) 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 subsection (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. 8. Dissolution of marriage otherwise than by talaq—Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by talaq, the provisions of section 7 shall, mutatis mutandis and so far as applicable, apply. *COMMENTS: SECTIONS 7 & 8: The object of the section 7 is to prevent hasty dissolution of marriage by talak. Unless the provisions of section 7 (1) of the Ordinance regarding service of notice to the Chairman are complied with, a Talak would fail to operate (17). A wife can exercise her right to divorce for her husband's nonpayment of prompt dower, if the same is stipulated in the Kabinnama* (18). Marriage between a Pakistani Muslim male and a Christian lady in England can be dissolved, in Pakistan on principle of lex loci of the husband under section 7 of the Ordinance (19). Non-compliance of the provisions of notice as in section 7 (1), Talak ineffective (20). Provisions of sections 7(1), (8) mandatory (21). Talak, becomes effective after the scheduled period. Failure of the Chairman to constitute. Arbitration Council, inconsequential (22). Suit under Sec. 2 of the Dissolution of Muslim Marriages Act, not barred by reason of sections 7 and 8 of the Family Laws Ordinance, 1961. Suit filed on two grounds, Khula and option of puberty, ground of Khula found not triable by Civil Courts, held, suit maintainable on the other ground, option of puberty (23). Husband falsely charging wife of adultery, wife entitled to dissolution of marriage. Through court also, Khula divorce can be obtained (24). Talaknama may only be the record of the fact of an oral talak (25); or it may be the deed by which the divorce is effected. The deed may be executed in the presence of the Kazi (26) or of the wife's father (27) or of other witness (28). A divorce under the Ordinance is not a unilateral act, but involves a public authority (28a). 9. Maintenance—(1) If any husband fails to maintain his wife adequately, or where there are more wives than one, fails to maintain them equitably, the wife, or all or any of the wives, may in addition to seeking, any other legal remedy available, apply to the Chairman who shall constitute an Arbitration Council to determine the matter, and the Arbitration Council may issue certificate specifying the amount which shall be paid as maintenance by the husband. (2) A husband or wife may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision of the certificate to the Assistant Judge (29) concerned and his decision shall be final and shall not be called in question in any court. (3) Any amount payable under Sub-Section (1) or (2) if not paid in due time, shall be recoverable as arrears of land revenue. *COMMENTS: Fails to maintain adequately includes cases of total neglect or refusal. There is no provision for maintenance of children (30). Unless previously fixed, past maintenance not allowed* (31). The view that maintenance being a Family Court matter. Family Courts have exclusive jurisdiction to deal with it and the jurisdiction of Magistrates has been ousted (32) has been reversed and held, that Magistrates can still pass orders for maintenance under section 488 of the Cr.P.C. (32A). After divorce a wife is entitled to maintenance upto iddat period (33), which extends to three months (34). The expression "fails to maintain adequately" include the case of total neglect or refusal (35). Failure to maintain, wife’s to exercising Talak-e-tawfiz (36) valid. Contumacious wife not entitled to maintenance (37). Wife’s right to maintenance is not absolute (38). When it is found from evidence that is the wife who is to blame, she has no right to effect the divorce and claim maintenance (39). Husband neglecting for six years to take wife to his house, dissolution ordered (40). Maintenance may be claimed from the date of cause of action (41). Past maintenance can be given from the date of cause of action of the suit. 10. Dower- Where no details about the mode of payment of dower are specified in the Nikahnama, or the marriage contract, the entire amount of the dower shall be prescribed to be payable on demand. *COMMENTS:* Dower is not a gratuity but a right (42). Relinquishment of dower not out of free will, husband to bound to pay it (43). Wife may refuse to live with the husband if prompt dower is not paid (44). Dower cannot be fixed less than ten dirhams or equivalent thereof (45). High dower may be fixed to prevent the husband from divorcing the wife capriciously (46). In case of contract of dower, court should award the entire sum provided in the contract (47). Real dower fixed privately and inflated dower fixed publicly to enhance the prestige, husband bound to pay the dower fixed privately and not that fixed publicly (48). The amount of dower may be fixed either before or at the time of marriage (49) and can be increased after marriage (50) and can be entered into by father (51). Status is to be considered infixing dower where dower was not fixed at the time of marriage (52). In case where divorce proceeds from the husband, the wife's suit for dower shall lie in a court where the wife resides (53). If the divorce proceeds from the wife, she would still be entitled to her dower if the dower has been perfected (54). Husband failed to pay prompt dower on demand, wife can validly exercise her power of divorce (55). 11. Powers to make rules— [(1) The Government may make rules to carry into effect the purposes of this Ordinance] (56). (2) In making rules under this section, (the Government) may provide that a breach of any of the rules shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to (five hundred taka) or with both (57). (3) Rules made under this section shall be published in the official Gazette and shall thereupon have effect as if enacted in this Ordinance. 11A. Place of Trial— Notwithstanding anything contained in any other law for the time being in force, an offence under this Ordinance shall be tried by a court within the local limits of whose jurisdiction— a) the offence was committed: or b) the complainant or the accused resides or last resided. (58). 12. Amendment of Child Marriage Restraint Act, 1929 (XIX of 1929)— In the Child Marriage Restraint Act, 1929 (1) in section 2:— a) Child means a person who, if a male, is under 21 years of age, and if a female, is under eighteen years of age (59). b) in clause (c), the word 'and' shall be omitted; and c) in clause (d), for the full stop at the end, a comma shall be substituted and thereafter the following new clause be added namely; e) "City Corporation" means the City Corporation constituted under the Chittagong City Corporation Ordinance, 1982 (XXXV of 1982), or the Dhaka City Corporation Ordinance, 1983 (XL of 1983), or the Khulna City Corporation Ordinance, 1984 (LXXII of 1984). The Rajshahi City Corporation Ordinance (XXXVIII of 1987) within whose jurisdiction a child marriage is or is about to be solemnized; f)"Paurashava" means the paurashava constituted under tht Paurashava Ordinance, 1977 (XXVI of 1977), within whose jurisdiction a child marriage is or is about to be solemnized; and g) "Union Parishad" means the Union Parishad constituted under the local Government (Union Parishad) Ordinance, 1983 (LI of 1983), within whose jurisdiction a child marriage is or is about to be solemnized. 2) Section 3 shall be omitted (60) 3) "4. Punishment for male adult above twenty one years of age or female adult above eighteen years of age marrying a child −Whoever being a male above twenty one years of age, or being a female above eighteen years of age, contracts a child marriage, shall be punishable with simple imprisonment which may extend to on month, or with fine which may extend to one thousand taka, or with both (61). 4) in section 9, after the words "under this Act" the word "except on a complaint made by the Union Parishad or, if there is no Union Parishad or Paurashava or City Corporation (62) in the area, by such authority as the Government may in this behalf prescribe and such cognizance shall in no case be taken" shall be inserted; and 5). Section 11 shall be omitted. 13. Amendment of the Dissolution of Muslim Marriages Act, 1939 (VIII of 1939)— in the Dissolution of Muslim Marriages Act, 1939 (VIII of 1939) in section 2— a) after clause (ii) the following new clause (ii a) shall be inserted namely— "(iia) that the husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961", and b) in clause (vii) for the words "Sixteen years and eighteen years" the words "eighteen years" and "nineteen years" shall respectively be substituted (63)
(1)	Substituted by Ordinance 21 of 1982.
(2)	Substituted by Ordinance 21 of 1982.
(3)	This Ordinance was made effective from the 15th July 1961 (Pak Gazette 1961 Extra. 1128a).
(4)	Substituted by Ordinance XIV of 1985 w.e.f 12.3.1985.
(5)	See Ord. XIV of 1985 wef 12.3.1985.
(6)	Tahera Begum-vs-Farukh Miah, 35 DLR AD 170=1983 BCR AD 202.
(7)	The words” and the registration of Muslim marriages shall take place only accordance with those provisions “omitted by section 15 (a) of the act No. 52 of 1974, w.e.f. 24th July 1974.
(8)	Sheikh Ibrahim -vs- Nazma Begum, 44 DLR, AD, 276.
(9)	In Section 5(1) – 5(6) of the Muslim Family Laws Ordinance, 1961, where detailed procedures were held down as to how every marriage solemnized under the Muslim law shall be registered by Nikha Registrars and also provided the provisions for penalty in default of reporting thereof, registers to be maintained by Nikha Registrars and certified copies of Nikhanama to be supplied to any person on payment of prescribed fees, has been omitted by section 15(b) of Act. 1974, w.e.f 24th July 1974, providing for further detailed procedures in the later enactment.
(9b)	Substituted by Act. LII of 1974 w.e.f 24.7.1974.
(10)	Amended by Act. No. XXX of 1989, w.e.f. 20.6.1989.
(11)	Substituted by Ordinance XXI of 1982, for “five thousand rupees” w.e.f 31.7.1982.
(12)	Maqbul Ali & other’s – Manwara Begum and other’s 39 DLR 181=7 BCR 281.
(13)	Abul Bashar -vs- Nurun Nabi 39 DLR 333=8 BLD 189=7 BCR 215.
(14)	Abdul Hamid Pattadar -vs- M. Rahmat Ali, 33 DLR=I BLD 377. Farook Mia –vs- tahera Begum, 1981 BLD 165.
(15)	Mst. Aysha Sultana -vs- md. Shajahan Ali, 38 DLR 140; 19 DLR wp 97.
(15A)	Abu Sufian -vs- Nurjahan Begum, 18 DLR 230.
(15B)	Ahmed Mia Saha -vs- kazi Abdul Motaleb, 23 DLR 118.
(15C)	Abdullah -vs- Rokeya khatun, 21 DLR 213.
(15D)	Mrs. C.M. Samad -vs- Mr. C.M. Samad 19 DLR SC 428.
(16)	Subs. For “five thousand rupees” by Ordinance 21 o w.e.f 21.7.82
(17)	Syed All Newaj Gardezi-vs- Lt. Col. Md. Yusuf, 15 DLR SC. 9= PLD (1963) SC. 51.
(18)	Abdul Sukur-vs- Machuma Khatoon, 7 DLR 451.
(19)	Mrs. Marina Jatoi-vs- Nuruddin K. Jatoi, 20 DLR SC. 27.
(20)	Abdul Aziz-vs- Rezia Khatoon. 21 DLR 733 [Contra PLD 1984 Lah 234.]
(21)	Hafizur Rahman -vs- The State 1982 BCR 23, 21 DLR 733 & 25 DLR 227 relied upon.
(22)	Abdus Sobhan Sarker-vs- Md. A. Gani, 25 DLR 227.
(23)	Md. Amin -vs- Mstt Suraya Begum, 21 DLR W.P. 253; 21 PLD (Lah) 512.
(24)	Hasina Ahmed -vs- Syed Abul Fazal, 32 DLR 294.
(25)	Rashid Ahmed -vs- Anisa Khatun (1932) 59 I.A 21; 54 A1146; (32) A.P.C 25.
(27)	Waj Bibi -vs- Azmut All (1982) 8 WR 23.
(28)	Rajasahev In re: (1920) 44 Bom. 44; 54 I.C. 573; (1932) 59 Cal 883. (28a) Safiqul Islam and others -vs- The State, 46 DLR 700.
(29)	Amended by Ord. XIV of 1985 w.e.f 12. 3. 1985 and then by Act No. 30 of 1989 w.e.f 20. 6. 89 and also by Act 14 of 1987.
(30)	Rustom Ali-Vs- Jamila Khatun, 43 DLR 301 = 90 BLD 434 = 10 BCR 294. [Contra 19 DLR w.p. 50].
(31)	Rustom Ali-Vs- Jamila Khatun, 43 DLR 301 = 90 BLD 434 = 10 BCR 294. [Contra 19 DLR w.p. 50].
(32)	A. Khaleque-Vs- Selina Begum, 42 DLR 450 = 1990 BCR 310.
(32A)	Meher Niger-vs- Mojibur Rahman, 47 DLR 18 = 14 BLD 467 = 1994 BLT 203.
(33)	Shah A. Mullah-Vs- Imtiaz Begum, 11 DLR wp 74,
(34)	Safura Khatun-Vs- Osman Gani, 9 DLR 455; Nuruddin Ahmed-Vs-Masuda Khatun, 9 DLR 8; 1955 PLR (Lah) 224.
(35)	Sarder Mohamad -Vs- Mst. Nasima Bibi, 19 DLR (wp) 50.
(36)	Safura Khatun -Vs- O. Gani, 9 DLR 455.
(37)	Mitha Khan-Vs- Hidayat Bibi. 11 DLR wp 17; PLD 1961 Pesh 66; 14 DLR 465; 19 DLR wp 50.
(38)	Ainuddin Karikar-Vs- Salatunnissa Bibi, PLD 1953 Dac 216.
(39)	Masuda Khatun Bibi-Vs- P. Mohammed. 14 DLR 465: 4 DLR 613 = PLR 1951 Dac 793 = PLD 1952 Dac 385.
(40)	Md. Ibrahim Hossain-Vs- S. Solemannessa. 19 DLR 751.
(41)	Sarder Mohammad -Vs- Mst. Nasima Bibi, 19 DLR wp 50.
(41a)	Md. Serajul Islam -vs- Mstt. Helena Begum, 1995 BLT 40.
(42)	Sarder Muhammad-vs- Nasima Bibi, 19 DLR (wp) 50; 9 DLR 8; 8 DLR (wp) 133.
(43)	Shah Banu Begum-vs- Iftikhar Mahmud Khan, 8 DLR (wp) 133.
(44)	Mahmuda Khatun - vs- Abu Sayeed, 21 DLR 838.
(45)	Venkata Raman -vs- Rajya Laxmi, (60) A. P. 511; 32 All 167; 5 I.C. 411.
(46)	Zakeri Begum :vs- Sakina Begum, (1892) 19 1A 157; 19 Cal 689; PLD 1967 Lah391.
(47)	Sugra Bibi-vs-Masuma Bibi, (1877) 2 All 573: (1907) 9 Bomb LR 188.
(48)	Nasim Ahmed Khan - vs- Mst. Ismat Jahan, 21 DLR (SC) 145.
(49)	Kamrunnessa-vs-Hussaine Bibi (1880) 3 All 266; (1926) 1 Luck 83; 92 I.C. 265.
(50)	Jahurun Bibi-vs-Soleman khan, (1933) 58 Cal LJ 251; 149 1C 115O; 160 1C. 805.
(51)	Bashir Ali-vs-Hafiz, (1909) 13 CWN 153; 4 1C 462.
(52)	Marina Jatoi-vs- Nuruddin K. Jatoi, 20 DLR SC. 27.
(53)	Muzahidul Islam-vs-Rowshan Jan Begum, 22 DLR 677.
(54)	Baillie's Mahomedan Law, P. 101. Md. Ibrahim -vs- Ma Ma, AIR 1939 Rang 28; 19 I.C. 47.
(55)	Abdul Sukur-vs- Mst. Machuma khatun. 7 DLR 451.
(56)	Substituted by Ordinance, 21 of 1982 w.e.f 31. 7. 1982.
(57)	Substituted by Ordinance, 21 of 1982 w.e.f 31. 7. 1982.
(58)	New Section added by Ordinance 24 of 1986 w.e.f 30. 3. 1986.
(59)	Amended by Ordinance 38 of 1984 w.e.f 2.6.1984.
(60)	Section 3 of Child Marriage Restraint Act. 1929 omitted by Ord. 38 of 1984 w.e.f 2. 6. 1984.
(61)	Substituted by Ord. 38 of 1984 w.e.f 2. 6. 1984.
(62)	Amended by Ord. 14 of 1985 w.e.f 12. 3. 1985.
(63)	Amended by Ord. 25 of 1986 w.e.f 2. 4. 1986.

Advertisement Request Form