Published By The Daily Star on August 18, 2015 (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.
My husband and I got married in 2003. Both of us are Muslims and we got married as per the Islamic procedure. The marriage took place at our village in the presence of the Quazi and our family members. Later a small ceremony was held to celebrate the occasion at a community centre. Since then, we have been blessed with 2 kids.
Recently we have decided to apply for Immigration to Canada. While making the application, the Embassy informed us that we have to provide the Kabinnanma of our marriage along with the other documents. After searching for several days and speaking to the rest of the family members, we realised that no Kabinnama was prepared following our marriage. Now I have the following questions:
* Is our marriage invalid as there is no Kabinnama? Do we have to get married again?
* Can we make a new Kabinnama for our marriage that took place in 2003?
* I will be very grateful if you can help us with a reply since my husband and I are now very worried about the validity of our marriage and the fate of our children!
Married and confused.
I understand your exasperation at realising after all these years that a Nikahnama for your marriage back in 2003 had not been executed. To relieve you of the confusion, allow me to clarify at the outset that the failure to execute the Nikahnama, after your marriage had been solemnised by the Quazi at your village, does not make your marriage invalid. I shall first explain the procedure for a valid Muslim marriage, and then move on to explain which steps had not been fulfilled in relation to your marriage in 2003. I shall also focus on the appropriate steps that you and your husband can now take in the given scenario.
In Bangladesh, ‘Marriage’ is considered to be the social and legal union between a man and a woman in order to live together. Since law is personal in Bangladesh, the provisions of Muslim law regarding marriage are applied to the Bangladeshi Muslims in relation to the procedures of marriage, and the registration of marriages is governed by the Muslim Marriages and Divorces (Registration) Act-1974. Registration of a Muslim marriage has been made mandatory by S3 of the Act. Non-registration of the marriage causes a doubt on the solemnisation of the marriage itself, but does not make it automatically invalid. S5 of the Act further provides that once solemnized, a marriage shall be registered either immediately, or within 30 days if the marriage is solemnized by someone other than the Quazi.
Fortunately, the only effect of failing to register a marriage is that it amounts to an offence on the part of the person responsible for effecting registration, making him liable to imprisonment of a maximum of 2 years or fine of maximum BDT 3000, or both. There is no other effect stipulated in the Act, and therefore, the way forward for you and your husband shall now be to get your marriage duly registered. The procedure for registration is as follows:
* For the registration to be valid, the Nikah Registrar (i.e the Quazi) who undertakes such registration shall be in possession of a valid license granted by the Government. You shall, therefore, ensure that the Quazi who had solemnised your marriage and who will now register it, has a valid licence.
* The Nikah Registrar shall then fill up the columns of the Register of Marriage and obtain the requisite signatures.
* The place of registration shall be within the jurisdiction of the particular Nikah Registrar who undertakes the registration. As such, you shall ensure that your marriage is registered in the same jurisdiction where it was solemnised.
* On completion of registration of your marriage, the Quazi shall deliver to you and your husband an attested copy of the entry in the register, which shall serve as your Nikahnama.