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Muslim Family Laws

Divorce notice can be stayed by the parties' joint prayer within 90 days

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05th-Oct-2019       
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(From previous issue)
8. Mrs Rabeya Bhuiyan, the learned Senior Counsel appearing along with the learned Advocate Mr Mahmood Morshed, and, Mr. Shaleh Akrarn for the opposite parties, submits that the divorce notice dated 20-3-2016 was served by the present-opposite party No.1 as the husband upon the present-petitioner, wife and also to the concerned authorities including Dhaka South City Corporation as per the provision of the Muslim Family Law Ordinance, 1961, accordingly, the Arbitration Case No. 124 of 2016 was initiated and concluded by the Executive Arbitration Council Officer and Local Executive Officer, Anchal-1, Dhaka  South City Corporation on 2-5-2017, therefore, any ad-interim order, of stay cannot be passed for staying the arbitration proceeding, as such, the Rule should be discharged.
9. The learned Advocate further submits that Section 3 of the Ordinance, 1961 is an overriding provision of law which overrides even the Sharia Law, Customs and Uses under the Muslim Family Law, therefore, a divorce notice by a husband to the wife under Section 7(1) of the said Ordinance, 1961 cannot be stayed unless and until the parties jointly revoke or withdrawn the arbitration proceeding by joint prayer within the period of 90 days, thus, the Arbitration Council has no other alternative but to declaration divorce final but the present-petitioner obtained the present Rule by misleading this court which is liable to be discharged.
10. Considering the above submissions made by the learned Advocates appearing for the respective parties and also considering the revisional application filed under Section 115(1) of the Code of Civil Procedure along with the Annexures therein and also considering the Supplementary-affidavit and Counter-affidavit filed by the respective parties, it appears to me that the present-petitioner and the opposite party No.1 married on 10.9.1999 and there are three children in their family. The present-petitioner (wife) noticed some unusual conducts or acts of her husband in the year of 2916, including, engaging into some illicit relations with others at the instigation from his family members. The admitted position between the parties is that they were married and they have three, children. However, there are some disputes as to the effectiveness of a divorce proceeding initiated by the present-opposite party No. 1 (husband) by serving a divorce talaknama notice through the Kazi Office under section, ,7(1) of the Ordinance, 1961. The present-petitioner served the said notice on 20-3  2016 and the Dhaka South City Corporation initiated the proceeding on 13-4-2016. Before conclusion of the said steps of the divorce proceeding the present petitioner filed the suit on 5-6-2016 for declaring the divorce proceeding illegal and not binding upon her.
11. In the above given factual as facts in this case, this Court has to take a decision whether the courts below committed any error of law by passing the concurrent decision rejecting the prayer to stay the divorce proceeding continuing in the Arbitration Case No 124 of 2016 before the Arbitration Council under the City Corporation. In order to take a decision upon the said matter, I have carefully examined the impugned judgment and order passed by the courts below along with other relevant documents submitted by the respective parties. I have also considered the Family Courts Ordinance, 1985 and also the Muslim Family Laws Ordinance; 1961. The above Ordinances deal with a divorce proceeding as well as the proceeding for the divorce purpose. Section 7 of the Ordinance, 1961 reads as follows;
7. Talaq--(l) 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.
12. As per the above provision of law, the present-opposite party No. 1 served a divorce notice, on 20-3-2016 and follows all the steps as per the above law. However, the present-petitioner filed the suit challenging the legality of the said divorce notice on the ground that there was a break of notice within 90 days period for conclusion of the divorce proceeding by way of having a sexual relationship between them on 17- 6-2016. In this regard I consider that such kind of physical contact was simply an emotional conduct in ignorance of a legal procedures which a court of law cannot take into consideration because a statutory stipulated period of time and manner.
13. In this regard Section 7(3) and (5) of the Ordinance describes any lawful revocation of any divorce proceeding which reads as follows:-
"(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 sub-section (1) is delivered to the Chairman.
(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in subsection 2[(3)] or the pregnancy, whichever be later, ends."
14. In view of the above provision of law, a divorce proceeding can only be interrupted or even revoked by the order of the Arbitration Council on the joint prayer of both the husband and wife on consent or by the divorce notice serving party to withdraw the proceeding after reconciliation between the parties. In the instant case, the present- opposite party No.1 served the divorce notice and there is no evidence before this Court that he withdraw the divorce proceeding in order to reconciliation. Therefore,. the suit filed by the present-petitioner, the learned trial court would take a final conclusion of the suit on merit after hearing the parties. Regarding this ad-interim order of stay of a proceeding is not a permissible by any party other then the parties concerned through the arbitration proceeding in the Arbitration Council. As such, 90 days period of the reconciliation is a final period of revocation of any divorce notice. In view of the above. I do not consider that the learned appellate court committed any error of law by concurrently finding against the present-petitioner as the applicant for staying proceeding of the divorce notice by any ad- interim order of stay. However, the learned trial court would dispose of the Family Suit No. 326 of 2016, which was renumbered as Family Suit No. 486 of 2016 on merit after giving the sufficient opportunities to both the parties for producing relevant evidence.
15. I am of the view that the statutory provision of section 7 under the Ordinance: 1961 overrides any other Provision of law or even Customs or Uses or Practice, therefore, any such relation between the parties would be considered by the learned trial court after examining evidence adduced and produced by the parties in the trial court, but, any ad-interim order of stay would not be granted which could delay the disposal of the Family Suit No. 486 of 2016 pending in the court of learned Additional Assistant Judge and Family Court No.2, Dhaka.
16. In view of the above, I have considered the findings of the learned appellate court who concurrently lawfully dismissed the appeal preferred by the present-petitioner on the basis of the following finding:-
প্রকৃতপক্ষে সালিশী পরিষদের কার্যক্রমের উপর ¯'গিতাদেশ কার্যকর না থাকলে এতদিন তালাক কার্যকর হয়ে যেত। যদিও চেয়ারম্যান নোটিশ প্রাপ্ত হওয়ার ৯০ দিন অতিবাহিত হয়েছে এবং সেমতে বাদী ও বিবাদীর মধ্যে তালাক কার্যকর হয়েছে মর্মে প্রতীয়মান। কাজেই আপীলকারীপক্ষের বিজ্ঞ কৌসুলীর উপরে উল্লেখিত দাবী যুক্তিযুক্ত ও আইনানুগ নয়।
17. On the basis of the above discussions and after perusal of the impugned judgment and order I consider that the learned appellate court committed no error of law by dismissing the appeal concurrently. I am, therefore, not inclined to interfere into the judgment and order passed by the learned appellate court.
18. Accordingly, I do not find merit in the Rule.
19. In the result, the Rule is discharged with the following direction.
20. The learned Additional Assistant Judge, 2nd Court, Dhaka and Family Court, Dhaka is
hereby directed to conclude the Family Suit No. 486 of 2016 previously the Family Suit No. 326 of 2016 within 2 (two) months from the date of receipt of this judgment and order of this Court without allowing any unnecessary adjournment on the prayer of the either of the parties.
21. The ad-interim order of stay granted at the time of issuance of the Rule is hereby recalled and vacated.
The office is directed to communicate the judgment and order to the concern court immediately.
(Concluded)

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