Bangladesh: Ordinance on Marriage with Foreign Nationals

(May. 02, 2008) The Bangladesh Council of Advisers approved the u!lic "ervant (Marriage #ith $oreign %ationals) A&end&ent of 2008 on May '', 2008. The ne# la# a&ends the u!lic "ervant (Marriage #ith $oreign %ationals) (rdinance of ')*+ to allo# Bangladesh $oreign "ervice (fficers to &arry foreign nationals #ith the per&ission of the resident of Bangladesh. The ')*+ ordinance per&itted Bangladesh govern&ent e&ployees other than e&ployees of the Ministry of $oreign Affairs to &arry foreign nationals. ,nder the ne# la#, all e&ployees of the Bangladesh -overn&ent #ill en.oy the sa&e privilege. ,nder the for&er la#, a Bangladesh foreign diplo&at lost his .o! after &arrying a a/istani #o&an, !ut under the ne# la#, Bangladesh0s per&anent representative to ,nited %ations, #ho has e1pressed her desire to &arry a 2utch national, &ay !e allo#ed to do so. (Ismat Jahan Allowed to Marry Foreigner , T34 %45 %AT6(%, May '7, 2008, Marriage Age8 2' for &ales and '8 for fe&ales, lunar calendar9 penal sanctions for contracting under:age &arriages, though such unions are not considered invalid Notable Features: ;see also8 Notable Features, Republic of India and Notable Features, Islamic Republic of Pakistan< As else#here in "outh Asia, &uch of the Musli& personal la# is unlegislated, the !asis for the la# !eing classical 3anafi fiqh e1cept #here this has !een a&ended !y legislation. The Musli& ersonal =a# (Shariat) Application Act ')7* continues to govern the application of Musli& fa&ily la# in Bangladesh. (The pre:independence legislation that replaced this Act in ')+2 only applied to 5est a/istan.) According to the Act, Bangladeshis are su!.ect to local custo& and usage in &atters relating to #ills, legacies or adoption, unless a person declares his or her e1press preference for !eing governed !y 6sla&ic la#. Thus, estates &ay validly devolve in proportions favouring #o&en under custo&ary la#. The Child Marriage >estraint Act ')2) has !een a&ended !y (rdinance in ')8? so that the &ini&u& ages of &arriage are 2' for &en and '8 for #o&en. The legislation provides penal sanctions for those #ho /no#ingly participate in the contracting of an under:age &arriage, !ut does not invalidate such &arriages. Marriage Registration The Musli& Marriages and 2ivorces (>egistration) Act ')*? enacted to strengthen the induce&ents for civil registration states that @every &arriage sole&nised under Musli& la# shall !e registered in accordance #ith the provisions of this Act@ and esta!lishes the

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licensing of Nikah >egistrars. The punish&ent for not registering a &arriage is a prison sentence andAor a fine. $ailure to register does not invalidate the &arriage. 6t should also !e noted that, although there is no legislation to this effect, there is a custo&ary trend in Bangladesh to#ards encouraging the insertion of stipulations relating to delegated divorce in the &arriage contract. Pol gam introduction of ne# regulations on polyga&y !y M$=( ')+'9 constraints placed on polyga&y !y reBuire&ent of application to the local ,nion Council for per&ission and notification of e1isting #ifeA#ives9 penal sanctions for contracting a polyga&ous &arriage #ithout prior per&ission, though there are no sanctions for failing to o!tain e1isting #ifes per&ission and su!seBuent &arriage is not invalidated for lac/ of registration or failure to o!tain official per&ission9 the hus!ands contracting a polyga&ous &arriage in contravention of legal procedures is sufficient grounds for first #ife to o!tain decree of dissolution Obedience!Maintenance The issues of &aintenance and o!edience #ithin &arriage continue to !e governed !y classical la# for the &ost part. Much legal develop&ent has occurred through case la#. 6n Nelly Zaman v. Giasuddin han (7? 2=> (')82) 22'), the Court ruled that, #ith the passage of ti&e, the hus!ands suing for forci!le restitution of con.ugal rights against an un#illing #ife is !oth out&oded and untena!le if considered #ith relation to the principle of eBuality of &en and #o&en enshrined in Articles 2* and 7' of the Constitution. @6n the hus!ands unilateral plea for forci!le restitution of con.ugal rights as against a #ife un#illing to live #ith her hus!and, there is no &utuality and reciprocity !et#een the respective rights of the hus!and and the #ife, since such plea for restitution of con.ugal rights is not availa!le to a #ife as against her hus!and apart fro& clai&ing &aintenance and ali&ony. A reference to Article 28(2) of the Constitution of Bangladesh guaranteeing eBual rights of #o&en and &en in all spheres of the state and pu!lic life #ould clearly indicate that any unilateral plea of a hus!and for forci!le restitution of con.ugal rights as against a #ife un#illing to live #ith her hus!and is violative of the accepted "tate and u!lic rinciple and olicy@ (7? 2=> (')82) 22', at p. 222). 5ith respect to arrears of &aintenance, in !ustom Ali v. Jamila hatun (?7 2=> ('))') 70'), the Court ruled (in accordance #ith classical 3anafi la#) that a #ife is not entitled to arrears of &aintenance. Maintenance #ill only !e allo#ed her fro& the date the suit is !rought !efore the $a&ily Court until three &onths fro& the decree of dissolution of &arriage. The for&er #ife or the child &ay not clai& past &aintenance unless the parties have a previously esta!lished agree&ent. 6n Muhammad "ef#ur !ahman v. Shamsun Nahar $egum ('C B=2 ('))C) 7?) relating to the &aintenance of divorces, the Court ruled that a Musli& hus!ands responsi!ility to &aintain his divorced #ife does not cease #ith the e1piry of the idda. The Court stated that the for&er hus!and is !ound to provide his divorced #ife #ith &aintenance on a reasona!le scale for an indefinite period, until her status as a divorce changes, that is, if she re&arries. The ruling #as !ased on an interpretation of a Duranic verse relating to provisions for divorced #ives

(282?'). The "upre&e Court overturned the 3igh Courts .udge&ent on 7 2ece&!er '))8, leaving the classical 3anafi interpretation intact for the &o&ent. Pakistan Marriage Age: '8 for &ales and '+ for fe&ales9 penal sanctions for contracting under: age &arriages, though such unions re&ain valid. he 5est a/istan Musli& ersonal =a# (Shariat) Application Act ')+2 repealed the ')7* Musli& ersonal =a# (Shariat) Application Act as #ell as provincial legislation on the application of Musli& personal la#. The ne# Act directs the application of Musli& personal la#, not#ithstanding any custo& or usage, to all Buestions of personal status and succession #here the parties are Musli&s. (ne particular provision of the ne# legislation states that, @;t<he li&ited estates in respect of i&&ova!le property held !y Musli& fe&ales under the custo&ary la# are here!y ter&inated@9 this constitutes the opposite stance to custo&ary land la# to the ')7* enact&ent, and so the ne# Act provides that it #ill not apply retrospectively. Marriage Registration8 penal sanctions for those in violation of &andatory registration reBuire&ents for &arriage9 failure to register does not invalidate the &arriage Pol gam 8 constraints placed on polyga&y !y reBuire&ent of application to the local ,nion Council for per&ission and notification of e1isting #ifeA#ives, !ac/ed up !y penal sanctions for contracting a polyga&ous &arriage #ithout prior per&ission9 hus!ands contracting polyga&ous &arriage in contravention of legal procedures is sufficient grounds for first #ife to o!tain decree of dissolution "he #hild Marriage Restraint Act $%&% The Child Marriage >estraint Act ')2) introduced penal sanctions for contracting child &arriages. The &ini&u& &arriage age as the Act currently stands is '8 for &ales and '+ for fe&ales. 2espite the provision of penalties for contracting under:age &arriages, such unions are not rendered invalid. The issue of &arriage guardianship is governed !y classical la#9 according to the 3anafi school, an adult #o&an &ay contract her &arriage #ithout a wali, !ut the influence of custo& is strong, as sho#n !y the events surrounding the "ai&a 5aheed case. 6n A%dul &aheed v. Asma Jehangir ( =2 '))* =ah 77'), the Buestion put !efore the Court #as #hether or not an adult 3anafi Musli& #o&an &ay contract herself in &arriage #ithout the consent of her wali. 6n this particular case, the #o&an #as an adult 3anafi Musli& of 22 years of age #ho contracted a &arriage #ith a college lecturer #ithout the /no#ledge of her parents. 3er father disapproved of her choice and atte&pted to file a suit under the Zina (rdinance ')*). The &a.ority .udge&ent of the =ahore 3igh Court held that the !asic essential reBuire&ent for the validity of the contract #as the #o&ans consent to the &arriage, and not that of the wali. 3o#ever, the tone of the discussion, including the recognition of the custo&ary role of the wali, the endorse&ent of 'urdah (i.e., separation of &en and #o&en in pu!lic life),

the focus on &oral decline, the setting of the .udge&ent (largely in ter&s of sharia la#, #ith little reference to the Constitution) and the call for legislation on the &atter, all indicate that the classical 3anafi position and custo&ary dictates are not in full accordance. As #ell, the decisions of the $ederal Sharia Court on &atters relative to fa&ily la# #ere held to !e !inding on the 3igh Courts, #hile the Constitution had e1pressly !arred the $ederal Sharia Court fro& interfering #ith Musli& personal la#. "o&e co&&entators predict this &ay lead to a @gradual erosion of the protective features of the M$=( ')+'@. pol gamous marriage The M$=( introduced &arriage registration and provides for penalties of fines or i&prison&ent for failure to register. 3o#ever, a Musli& &arriage is still legal if it is contracted only according to the religious reBuisites. The M$=( also instituted so&e li&ited refor&s in the la# relating to polyga&y, #ith the introduction of the reBuire&ent that the hus!and &ust su!&it an application and pay a fee to the local ,nion Council in order to o!tain prior #ritten per&ission for contracting a polyga&ous &arriage. The application &ust state the reasons for the proposed &arriage and indicate #hether the applicant has o!tained the consent of the e1isting #ife or #ives. The chair&an of the ,nion Council for&s an Ar!itration Council #ith representatives of the e1isting #ife or #ives and the applicant in order to deter&ine the necessity of the proposed &arriage. The penalty for contracting a polyga&ous &arriage #ithout prior per&ission is that the hus!and &ust i&&ediately pay the entire do#er to the e1isting #ife or #ives as #ell as !eing su!.ect to a fine andAor i&prison&ent9 any polyga&ous &arriage contracted #ithout the ,nion Councils approval cannot !e registered under the M$=(. %evertheless, if a &an does not see/ the per&ission of his e1isting #ife or the ,nion Council, his su!seBuent &arriage re&ains valid. $urther&ore, the difficulty in enforcing resort to the application process to the ,nion Council, co&!ined #ith the .udiciarys reluctance to apply the penalties contained in the M$=( (as indicated !y the case la#), tend to restrict the efficacy of the refor& provisions. This has led so&e o!servers to descri!e the provisions reBuiring the per&ission of the Ar!itration Council as a &ere for&ality. Maldi'es( Marriage Age8 According to custo&, the &ini&u& age for &arriage is 'C9 the =a# on the rotection of the >ights of the Child discourages &arriage !efore the age of '+. #hild #ustod and )uardianship 6n the case of divorce, children under * years #ill, pri&arily, re&ain #ith their &other9 if this is not dee&ed appropriate (if, for e1a&ple, the &other is to re&arry and have other children), custody #ill !e offered to the &aternal grand&other, the paternal grand&other or the father, in descending order of priority. Children over the age of * years can choose in #hose custody they #ish to re&ain.