No. 653 Judl 1V/1A-2/61—10th July 1961(1)— In exercise of the powers conferred by section 11 of the Muslim Family Laws Ordinance, 1961 (VIII of 1961), the Governor is pleased to make the following rules, namely:—
|
PRELIMINARY
|
1.
2.
|
These rules may be called the Bangladesh Muslim Family Laws Rules, 1961.
In these rules, unless there is anything repugnant in the subject or context:—
|
|
|
(a) |
"Form" means a form appended to these rules; |
|
|
(b) |
"Local area" means the area under the jurisdiction of a Union Council; |
|
|
(c) |
"Ordinance" means the Muslim Family Laws Ordinance, 1961 (VIIIof 1961)
|
|
|
(d) |
"Section" means a section of the Ordinance; and |
|
|
(e) |
"Union Council" has the same meaning as defined in the Ordinance. |
|
|
|
3. |
"The Union Council which shall have jurisdiction in the matter for the purpose of clause (d) for section 2, shall be as follows, namely:—
|
|
|
(a) |
in the case of an application under sub-section (2) of section 6, it shall be the Union Council of the Union or Town in which the existing wife, or where there are more wives than one, the wife whom the applicant was married last, is residing at the time of his making the application;
|
|
|
(b) |
in the case of a notice of Talaq under sub-section (1) of section 7, it shall be the Union Council of the Union or Town in which the wife in relation to whom Talaq was pronounced was residing at the time of the pronouncement of Talaq; and |
|
|
(c) |
in the case of an application under section 9, it shall be the Union Council of the Union or Town in which the wife is residing at the. time of her making the application, and where application under that section is made by more than one wife, it shall be the Union Council of the Union or Town in which the wife who makes the application first is residing at the time of her making the application. |
|
|
|
|
|
|
|
|
|
COMMENTS: In the case of divorce by the husband the wife's suit for dower shall lie in a court where the wife resides (2).The provisions of the Family Courts Ordinance, 1985, has specifically created the forum for the wife's suit to be the place where she resides(3)
|
|
|
|
|
|
|
4.
|
(1) |
Where a non-Muslim has been elected as Chairman of a Union Council, the Council
shall, as soon as may be, elect one of its Muslim Members as Chairman for the purpose
of the Ordinance. |
|
|
(2) |
Any party to the proceedings before an Arbitration Council,
who considers the Chairman to be interested in favour of the other party, may with
reasons to be recorded in writing, apply for the appointment of a different Chairman,
to the Assistant Judge (4)
who, on
behalf of the(5) Government
may, if he thinks fit appoint any other member of that Council as Chairman for the
purposes of the Ordinance. The Assistant Judge shall stay the proceedings before
the Arbitration Council until he has disposed of such application. |
|
|
|
|
|
ARBITRATION COUNCIL |
|
|
|
|
|
5. |
(1) |
The Chairman shall conduct the proceedings of an Arbitration Council as expeditiously
as possible.
|
|
|
(2) |
Such proceedings shall not be vitiated by reasons of a vacancy
in the Arbitration Council, whether on account of failure of any person to nominate
a representative or otherwise. |
|
|
(3) |
Where a vacancy arises otherwise than through failure to
make a nomination, "the Chairman shall require a fresh nomination." |
|
|
(4) |
No party to proceedings before an Arbitration Council shall
be a member of Arbitration Council. |
|
|
(5) |
All decisions of the Arbitration Council shall be taken
by majority, and where no decision can be so taken, the decision of the Chairman
shall be the decision of the Arbitration Council. |
|
|
|
|
|
|
|
|
|
COMMENTS: Decision
of Arbitration Council creating impression that the order was passed not by the
Council but by the Chairman in his personal capacity, order held, not illegal
(6). |
|
|
|
|
|
|
|
ARBITRATION COUNCIL-PROCEDURES |
|
|
|
|
|
6. |
(1)
|
Within seven days of receiving an application under subsection (2) of section
6 or under sub-section (1) of section 9, or a notice under sub-section (1) of section
7, the Chairman shall, by order in writing, call upon each of the parties to nominate
his or her, representative and each such party shall, within seven days of receiving
the order, nominate in writing a representative and deliver the nomination to the
Chairman or send it to him by registered post.
|
|
|
(2) |
Where a representative nominated by a party dies, or is,
by reason of illness or otherwise, unable to -attend the meeting of the Arbitration
Council, or willfully absents himself from such meeting; or has, lost the confidence
of the party, the party may, with the previous permission in writing of the Chairman,
revoke the nomination and make, within such time as the Chairman may allow, a fresh
nomination. |
|
|
(3) |
Where a fresh nomination is made under sub-rule (2), it
shall not be necessary to commence the proceedings before the Arbitration Council
de novo unless the Chairman, for reasons to be recorded in writing directs otherwise. |
|
|
|
|
|
GRANTING OF LICENCE
TO A N1KAH REGISTRARS |
|
|
|
|
|
7. |
(1) |
Any person, who is not below 25 years of age and who possesses sufficient acquaintance
with the Arabic language and the Muslim Laws of Marriage and Divorce and who is
of good character, may apply in writing to the Union Council for the grant of a
license to act as Nikah Registrar under
section 5. Every such application shall be accompanied by two certificates that
he possesses sufficient acquaintance with the Arabic language and the Muslim Laws
of Marriage and Divorce, signed by the Muslim gentlemen of respectability and position,
and two certificates of good character from persons of respectability, and position,
and shall contain the following particulars: |
|
|
(a) |
Name and usual signature of the applicant, date of application
and address in full
|
|
|
(b) |
Age of applicant— |
|
|
(c) |
Profession or present employment of the applicant with present
salary or pension, if any— |
|
|
(d) |
Father's name, profession and address— |
|
|
(e) |
Present family residence of the applicant— |
|
|
(f) |
Whether the applicant has a masonry house for Office— |
|
|
(g) |
If previously employed under Government, details of past
service of the applicant, and if ever dismissed from any post, particulars of the
fact— |
|
|
(h) |
Names and addresses of the persons from whom Certificates
are obtained and attached to the application— |
|
|
(i) |
Whether the applicant is acquainted with Arabic, Persian,
Urdu, Bengali or English—
And
Whether the applicant is acquainted with Muslim Law and
hold any certificate from |
|
|
(j) |
any Government or private Madrassah (stating its name)— |
|
|
|
|
|
|
(2) |
Every such application shall be considered at a meeting
of the Union Council and if the Union Council, after making such enquiries as it
may consider necessary, is satisfied that the applicant is a fit and proper person
for the grant of a license, it may grant a license to him in From 1, subject to the conditions specified therein. In granting
a license, the Union Council shall give preference to applicants having Alim, Fazil or Title Certificates from a recognized Madrassah.
Provided that, in the case of a person
who at the time of the commencement of Ordinance was already exercising the powers
of Muhammadan Registrar under the Bengal Muhammadan Marriage and Divorces Registration
Act, 1876, the Chairman of all such Union Councils over which such Muhammadan Registrar
was exercising such jurisdiction, may grant him license to perform the duties of
the Nikah
Registrar under the ordinance
within their respective Unions, if he so applies.
|
|
|
(3) |
A Nikah Registrar
shall pursue his avocation, as such, from a fixed place within his jurisdiction
easily accessible to the residents of the local area. |
|
|
(4) |
Leave may be granted to the Nikah Registrars by the Chairman of the Union Council who may issue
a temporary license to a person having the requisite qualifications under sub-rule
(1), only for the period of the absence on leave of the permanent incumbent:
Provided
that, in the case of a Nikah Registrar
who has been granted license to act as Nikah
Registrar by more than one Union Councils, leave may be granted
to such
Nikah Registrar by the Assistant Judge (7) concerned, or in his
absence by the Circle Officer. |
|
|
(5) |
A license granted under this rule
shall be permanent and revocable only when the
Nikah Registrar contravenes any of the conditions of the license granted
under this rule, or is found to be guilty of a breach of any of the provisions of
the rules, or of any misconduct. The Union Council shall have the powers to revoke
the license only after regular proceedings in this behalf. Any Nikah Registrar aggrieved by any such order of revocation may prefer an
appeal to the Provincial Government within 30 days from the date of the order of
revocation. |
|
|
(6) |
If any Nikah
Registrar to whom a license has been granted contravenes any of the conditions of
such license: he shall be punishable with simple imprisonment for a term which may
extend to one month, or with fine which may extend to two hundred Taka or with both.
Provided that no prosecution under the
sub rule shall be initiated except upon a complaint from the Chairman of the Union
Council concerned. |
|
|
|
|
|
COMMENTS:
It may be noted
here the procedures for granting of license to a Nikah registrar has been detailed
in this rule and this rule is to be read with the provisions the Muslim Marriages
and Divorce (Registration) Act, 1974.
(8). License granted to another Nikah Registrar
during
the subsistence
of license of the petitioner, held, illegal(9) Reduction of
areas
of Nikah Registrars
Jurisdiction cannot be the area of less than 5 unions
(10). A Nikah Registrar
is a public servant (11), but his service is not
govt.
service (12)
when more than one Nikah Registrar is appointed in one
Union
, their work should be divided ward-wise
(13). |
|
|
|
|
8.
|
(1) |
The Union Council shall, on payment of such cost as may be determined by the
(14) government,
supply to every Nikah Registrar a bound
register of Nikahnamah, in
From (II), and a seal bearing
the inscription "The seal of the
Nikah
Registrar of Ward.., (x) (15) in ......
(y)......
(16)...
"
|
|
|
(2) |
Each register shall contain fifty leaves, consecutively
numbered, each leave having a Nikahnamahs,
in quadruplicate, and the number of leaves shall be certified by the Chairman. |
|
|
(3) |
Notwithstanding the payment of cost under sub-rule (1),
the register and the seal shall remain the property of the Union Council. |
|
|
|
|
9.
|
(1) |
For the registration of a marriage registered under section 5, the
Nikah Registrar shall be paid by the bridegroom or his representative a
registration fee of two Taka, or when the dower exceeds two thousand Taka, a fee
calculated at the rate of one Taka for every thousand or part of thousand Taka of
such dower, subject to maximum fee of twenty Taka.
|
|
|
(2) |
Of the fees received under sub-rule (1), the
Nikah Registrar shall retain for himself eighty percent and shall pay
the remaining twenty percent to the Union Council. |
|
|
(3) |
Where dower consists of property other than money, or partly
of such property and partly of money, the valuation of the property shall, for purposes
of fees under sub-rule (1), be the valuation as settled between the parties to the
marriage. |
|
|
(4) |
An extra commission fee of TK. 4 shall be payable to a
Nikah Registrar, for himself for visiting any place other than his office
for the registration of a marriage, in addition to a traveling allowance at the
rate of 50 Paisa per mile for the distance actually traveled. |
|
|
|
|
10.
|
(1) |
The Nikah Registrar shall, in the case
of a marriage solemnized by him, fill in Form II, in quadruplicate, in the
register, the persons whose signatures are required in the Form shall then sign,
and the Nikah
Registrar shall then affix his signature and seal thereto, and keep the original
intact in the register.
text-align: justify;"
Provided that in the case of an illiterate
person his thumb-impression, and not any other marks, shall be taken, and his name
shall be recorded at length by a person who shall also sign his name in attestation
that the thumb-impression was affixed in his presence. |
|
|
(2) |
The duplicate and triplicate of the Nikahnamahs
filled in as aforesaid, shall be supplied to the bride and
bridegroom respectively, on payment of fifty paisa each, and the quadruplicate shall
be forwarded to the Union Council. |
|
|
(3) |
If any person required by this rule to sign the register refuses so to sign, he
shall be punishable with simple imprisonment for a term which may extend to one
month, or with fine which may extend to two hundred Taka, or with both. |
|
|
|
|
|
11. |
(1) |
Where a marriage is solemnized in Bangladesh by a person other than the
Nikah Registrar, such person
shall fill in Form (II), to be had loose on payment of such price as may be determined
by the Government, the persons whose signatures are required in the Form shall then
sign, and the person solemnizing the marriage shall then affix his signature to
the Form and ensure delivery, as expeditiously as possible, of the same together
with the registration fee to the
Nikah
Registrar of the Ward where the marriage is solemnized.
|
|
|
(2) |
If any person required by this rule to sign the register
refuses so to sign, he shall be punishable with simple imprisonment for a term which
may extend to one month, or with fine which may extend to two hundred taka, or with
both.
|
|
|
|
|
|
12. |
(1) |
In the case of a marriage solemnized outside Bangladesh by a person who is a citizen
of Bangladesh such person shall ensure delivery of Form II, filled in accordance
with the provisions of Rule
10 to the Consular Officer
of Bangladesh in or for the country in which the marriage is solemnized, for onward
transmission together with the registration fee to the
Nikah Registrar of the Ward of which the bride is a permanent resident,
and in case the bride is not a citizen of Bangladesh the Nikah Registrar of the Ward of which the bridegroom is such resident. |
|
|
(2) |
In the case of a marriage solemnized outside Bangladesh
by a person who is not a citizen of Bangladesh the bridegroom, and where only the
bride is such citizen, the bride, shall for purposes of filling in as far as may
be Form II, be deemed to be the person who has solemnized the marriage under sub-rule
(1). |
|
|
|
|
|
13. |
On receipt of Form II under
Rule 11 or Rule 12, the
Nikah Registrar
shall proceed in the manner provided in Rule 10 as if the marriage had been solemnized
by him:
Provided
that, except where the marriage has been solemnized within his jurisdiction, it
shall not be necessary for the Nikah
Registrar to obtain the signatures
of the necessary persons.
|
|
|
|
|
|
POLYGAMY |
|
|
|
|
14.
|
In considering whether another proposed marriage, is just and
necessary during the continuance of an existing marriage, the Arbitration Council
may, without prejudice to its general powers to consider what is just and necessary,
have regard to such circumstances, as the following amongst others:
Sterility, physical infirmity, physical
unfitness for the conjugal relation, willful avoidance of a decree for restitution
of conjugal rights, or insanity, on the part of an existing wife.
|
|
15. |
An application under sub-section (1) of section 6 for permission
to contract another marriage during the subsistence of an existing marriage shall
be in writing, shall state whether the consent of the existing wife or wives has
been obtained thereto, shall contain a brief statement of the grounds on which the
new marriage is alleged to be just and necessary, shall bear the signature of the
applicant, and shall be accompanied by a fee of twenty-five taka. |
|
|
|
|
|
TIME FOR REVISION |
|
|
|
|
|
16. |
(1)
|
An application for the revision of decision of an Arbitration Council, under sub-section
(4) of section 6, or of a certificate under sub-section
(2) of section 9 shall be preferred within thirty days of the decision or of the
issue of the certificate as the case may be, and shall be accompanied by a fee of
two Taka.
|
|
|
(2) |
The application shall be in writing, set out the ground
on which the applicant seeks to have the decision or the certificate revised, and
shall bear the signature of the applicant. |
|
|
|
|
|
PROCEEDINGS IN
CAMERA |
|
|
|
|
| 17. |
All proceedings before an Arbitration Council shall be held in
camera unless the Chairman otherwise directs. |
|
|
|
|
|
INSPECTION OF RECORDS,
ETC |
|
|
|
|
|
18. |
(1) |
The quadruplicate Nikahnamah forwarded
by the Nikah Registrar under sub-rule
(2) of Rule 10 shall be preserved in the office of the Union Council until such
time as the register containing the originals is, on being completed, deposited
by the Nikah Registrar in such office. |
|
|
(2) |
The completed, register so received shall be preserved permanently. |
|
|
(3) |
In the office of the Union Council there shall be prepared
and maintained an index of the contents of every register, and every entry in such
index shall be made, so far as practicable, immediately after the
Nikah Registrar has made an entry in the register. |
|
|
(4) |
The aforesaid index shall contain the name, place of residence
and father's name of each party, to every marriage, and the dates of the marriage
and registration. |
|
|
(5) |
The Assistant Judge (17) or Circle Officer-in-charge of the local area shall inspect and audit the
records and accounts of the
Nikah Registrar
from time to time in course of their visits. |
|
|
|
|
|
19. |
(1) |
Subject to the previous payment of the fees prescribed In sub-rules (2) and (3),
the index and the register shall at all reasonable times, be open to inspection
at the Office of the Union Council by any person applying to inspect the same and
copies of entries in the index and the register duly signed and seal by the Chairman,
shall be given to all persons applying for such copies.
|
|
|
(2) |
The fee for the inspection of an index or register shall
be Fifty Paisa. |
|
|
(3) |
The fee for a certified copy of all or any of the entries
relating to a marriage shall be—
|
|
|
|
(a) for those in an index 50
Paisa.
|
|
|
|
(b)
for those in a register Two Taka. |
|
|
(4) |
Fees payable under these rules shall be credited to the
Union Council. |
|
|
|
|
|
20. |
All fees payable under these rules, except under Rule 16, shall
be paid in cash on obtaining proper receipt.
|
|
(1) |
Published in the Dhaka Gazette on the 11th July 1961. |
|
(2) |
Mazahedul Islam-vs- Rowshan Jan Begum, 22 DLR 677. |
|
(3) |
Section 6(1) (b) of the Family Courts Ordinance, 1985. |
|
(4) |
The words "Sub Divisional Officer" was substituted by Munsif and then by "Assistant Judge" by the Ord. No. 14 of 1985 and then by Act No. 30 of '89 and also by Act 14 of 1987.
|
|
(5) |
The words "Provincial" deleted by Ord. 21 of 1982. |
|
(6) |
Sarder Mohammed -vs- Mstt. Nasima Bibi, 19 DLR (wp) 5O.
|
|
(7) |
Substituted by 'Munsif and then by "Assistant Judge" by Ord. 14 of 1985 read with Act 30 of 1989 and Act 14 of 1987.
|
|
(8) |
Section 4 of the Act No. LII of 1974.
|
|
(9) |
Syed Shariatullah -vs- Secretary. Deptt. of Law 1983 BCR 324.
|
|
(10) |
Kazi Akbar Hussain. -vs- Shamsuddin Ahmed. 31 DLR 430.
|
|
(11) |
Md. Arif -vs- Kawshar All, 21 DLR SC 330 [Contra, 19 DLR 862].
|
|
(12) |
Vide Rule 16 of the Muslim Marriages and Divorces (Registration) Rules, 1975. |
|
(13) |
Md. Shamsul Alam-vs- Prov. East Pak. 22 DLR 513; 19 DLR 802. |
|
(14) |
The word "Provincial" deleted by Ord. 21 of 1982. |
|
(15) |
Insert the name and number of the ward. |
|
(16) |
Insert the name and number of the Union. |
|
(17) |
The words sub Divisional Officer was substituted by the word "Munsif by the Ordinance XIV of 1985 and subsequently it has been substituted by the words "Assistant Judge" by the Act No. 30 of 1989, w.e.f. 20. 6. 1989 and also by the Act No. 14 of 1987. |