DIVORCE – UNDER HINDU LAW

Published by The Daily Star on 18th November, 2014 (Link Above)

This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, ‘Legal Counsel’, which has expertise mainly in commercial law, corporate law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies.

Query
I am a 31 year old Hindu woman and a citizen of Bangladesh. I have been married to my husband (who is also a Hindu) since the last 5 years. Our marriage has recently suffered a massive breakdown owing to several personal issues and family disputes. As a result of such recent events, I have decided to seek divorce from him. I now wish to know the steps that I can take to act upon this decision. I also wish to be informed about any rights that I might have following the divorce. We do not have any child.

Response
Thank you for your query. In Bangladesh family laws are mostly personal, which means that marriage and divorce related issues are governed by the respective religious laws of the persons involved. Accordingly, the marriage and divorce of Hindus shall be governed by the religious laws of the Hindus. In Bangladesh, Hindu matrimonial issues have not been intervened by any statute. Although there have been recent legal advances in relation to registration of a Hindu marriage, there is still no legal framework governing the Hindu divorces.

Therefore, in the absence of statutory laws in this area, technically the option of divorce is unavailable to a Bangladeshi Hindu woman/man. This is because marriage from Hindu religious point of view is Sacrament. Divorce is not recognised in Hindu law unless it is proved as an established custom. It may be mentioned here that in India, for example, Hindu couple can divorce as the religious law has been modified by statutory intervention by the Indian Parliament.

In the absence of any legal way of divorce, it has been found in Bangladesh that the person desirous of affecting divorce execute an attested affidavit declaring their wish to be divorced from their respective partner. In most of the cases it is done mutually. However, it must be remembered that such mechanism while is in practice, is not legally permissible.

Breakdown of your marriage may entitle you to certain alternative rights under the Hindu Married Women’s Right to Separate Residence and Maintenance Act – 1946 whereby a Hindu ‘married woman’ can seek separate residence on any of the following grounds:

  •     The husband  is suffering from a loathsome disease not contracted from her;
  •     The husband treats her with such cruelty that it becomes unsafe or undesirable to live with him;
  •     The husband  abandons her without her consent or against her wish;
  •     The husband  marries again;
  •     The husband ceases to be a Hindu by conversion to another religion;
  •     The husband  keeps a concubine (i.e. a mistress) or habitually resides with a concubine; or
  •     If there is some other justifiable cause.

Maintenance under the 1946 Act is however, not an absolute entitlement. Moreover, you shall lose your entitlement to separate residence and maintenance from your husband if you are unchaste, convert to another religion etc. And even if such rights are granted, the 1946 Act provides that the Court shall determine the amount to be paid by the husband and in doing so, shall have regard to the social standing of the parties and the extent of the husband’s means.

It can, therefore, be concluded that technically there is still no law in Bangladesh that grants a Hindu person a right to affect a divorce against their partner. Alternatively, a Hindu married woman may seek entitlement to separate residence and maintenance pursuant to the grounds laid down in the 1946 Act.
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For detailed query contact: omar@legalcounselbd.com