Muslim Family Law Ordinance, 1961

Muslim Family Law Ordinance, 1961 personal laws relating to Muslim inheritance, marriage registration, polygamy, divorce, dowry and maintenance of the wives and children. With an object of enacting the law a declaration for amendment of Muslim family law was made on 7 October 1958, and accordingly the President of Pakistan promulgated the Ordinance in 1961, which is better known as Ordinance No. VIII of 1961.

This ordinance suggested formation of a 'Salish council' to resolve disputes and crises within the family. The council comprises three members with chairman of local union council as chairman and two adult members having one from each of the parties. Pourasabha (municipal) chairman in the pourasabha area and mayor or administrator in the municipal corporation area would be the chairman of the salish council.

This law shall come into force on all rules, laws, customs and practices prevailing in the country for resolving disputes within the purview of the ordinance. Section 4 of the ordinance has initiated a drastic change in the law of inheritance by the annulment of la-warish (non-inheritance) system. The earlier law was that the death of any son or daughter of a person before the opening of succession should deprive the children of such a son or daughter from inheritance. The ordinance has repealed this provision, and has incorporated that the children of the deceased in total will receive a share equivalent to the share which such son or daughter, as the case may be, would have received, if alive.

Section 5 of the ordinance imposes a ban on polygamy. This section enforces that a man, without the previous permission of the salish council in writing shall not contract another marriage having already a wife or wives living, and such marriage contacted without such permission shall not be registered under this ordinance. An application for such permission shall be submitted to the chairman of the arbitration council in the prescribed manner, together with the prescribed fee, and shall state the reasons and urgency for the proposed marriage, and whether the consent of the existing wife or wives has been obtained thereto.

On receipt of the application, the chairman shall ask the applicant and his existing wife/wives each to nominate a representative, and the arbitration council so constituted may, if satisfied that the proposed marriage is necessary, and just grant the permission applied for. In deciding the application the arbitration council shall record its reasons for the decision. Any party not satisfied with the judgment may, in the prescribed manner within the prescribed time period and on payment of prescribed fee, prefer an application for revision to the Sub-Divisional Officer and his decision shall be final, and shall not be put in question in any court.

In case a man contracts another marriage without the permission stated above shall (a) pay immediately the entire amount of dower due to the wife or wives. If the person concerned fails to pay, the amount in question shall be recoverable as arrears of land revenue; and (b) the allegation having been proved beyond doubt the accused shall be punishable with simple imprisonment, which may extend to one year, or with fine, which may extend to five thousand taka, or with both.

Registration of marriage The law has made the registration of marriage mandatory. This ordinance empowers the local councils (union council, municipality, municipal corporation) to issue licenses for marriage registration to one or more persons, and the persons so licensed are known as 'Nikah Registrar'. However, the number of those registrars must not exceed one in each ward. Persons contravene the provisions shall be punishable with simple imprisonment for a period not exceeding three months or with fine which may extend to one thousand taka, or with both. Government shall fix the registration fees from time to time.

Talaq Persons willing to divorce his wife shall immediate after pronouncement of talaq (divorce) in any form inform the chairman in writing for his having done so, and shall supply a copy of the notice to the wife. A talaq unless revoked earlier shall not be effective until the expiration of ninety days from the day on which notice is delivered to the chairman. On receipt of the notice, chairman shall constitute an arbitration council for the purpose of bringing about reconciliation between the parties, and shall take all steps necessary to bring about such reconciliation. If the wife is pregnant at the time of pronouncement of talaq, talaq shall not be effective until the expiration of 90 days or the end of the pregnancy period, whichever is later. This ordinance shall not debar a wife whose marriage has been terminated by talaq effective under this section from remarrying the same husband without an intervening marriage with a third person unless termination is for the third time so effective. In other words, this ordinance repeals the bindings to marry another male before marrying the same husband. Whoever contravenes the provisions shall be punishable with simple imprisonment for a period not exceeding one year or with fine which may extend to five thousand taka, or with both.

Dissolution of marriage otherwise than talaq Where the right to divorce has been duly delegated to wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by talaq, the provisions of talaq shall with necessary changes be applicable.

Maintenance If any husband fails to maintain his wife adequately, or where there are more wives than one, fails to maintain them equitably, the wife, or all or any of the wives, may in addition to seeking any other legal remedy available, apply to the chairman. The chairman shall constitute arbitration council to determine the matter, and the arbitration council may issue a certificate specifying the amount, which shall be paid as maintenance by the husband. Person aggrieved may, in prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision of the certificate to the Sub-Divisional Officer concerned, and his decision shall be final and shall not be called in question in any court.

Dower This ordinance provides the decision that where the amount of dower is not paid, shall be payable on demand. This ordinance was promulgated in Pakistan and was in force in the then East Pakistan. It is now applicable in Bangladesh. [Shahida Begum]