Selasa, 21 Mei 2013

kes Bangladesh: Hefzur Rahman - Siri 4

Keputusan Mahkamah Agung Bangladesh: makna dan maksud Mut’ah.

Dari laman sesawang terdapat suatu artikal bertajuk JUDICIAL ACTIVISM AND FAMILY LAW IN BANGLADESH. Dalam tajuk kecilnya  Maintenance of Wives terdapat ulasan berkaitan dengan kes Hefzur Rahman (Md) v Shamsun Nahar Begum and another 51 DLR (AD) (1999) 172.  

Kes Mahkamah Rayuan India Mohd. Ahmed Khan v. Shah Bano Begum  AIR 1985 SC 945 yang di rujuk oleh artikal  [JUDICIAL ACTIVISM AND FAMILY LAW IN BANGLADESH] ini insyaallah akan di muatkan didalam blog ini beserta sedikit ulasan ilmiah kelak.

Sementara itu berikut ialah petikan ulasan artikal [JUDICIAL ACTIVISM AND FAMILY LAW IN BANGLADESH] diatas mengenai kes Hefzur tersebut [setakat yang berkaitan dengan persoalan mut’ah].

Selamat membaca.
The Supreme Court
… …

Under Muslim personal law maintenance of the wife is an obligatory duty of the husband. If he neglects or refuses to maintain her without any lawful cause, she can sue him in a civil court claiming maintenance. But a serious shortcoming of the Hanafi law of maintenance which causes great financial hardship to a needy wife, expelled from the matrimonial home without sufficient cause or living apart from her husband for valid reasons, is the rule that a court decree awarding maintenance to her is enforceable only from the date of the decree and not from the day the cause of action arose. The courts have held that under Muslim personal law maintenance of the wife is an obligatory duty of the husband and where, for no fault of the wife, the husband has neglected or refused to maintain her, she is entitled to maintenance from the time the husband neglected or refused to maintain her. [42] The mere fact that she has been hesitant in promptly coming to the court or has been pursuing remedies out of court, e.g., reconciliation with her husband, shalish or informal settlement by village elders, cannot be construed to deprive her of her right.

The classical law holds that following divorce maintenance is payable to the wife only for the iddat period of three months. This rule causes great hardship to divorced women without jobs or other means of support. The Commission on Marriage and Family Laws appointed by the Pakistan government proposed as early as 1956 that courts should be vested with power to grant maintenance to an unjustly divorced wife for life or until her remarriage. [43] The proposal has not made its way into the statute book of Pakistan or Bangladesh until now.

India solved the problem of destitute, divorced wives by enacting the Muslim Women (Protection of Rights on Divorce) Act, 1986 and by activist interpretation of its provisions by the Supreme Court. [44]

Recently, a valiant effort was made by a Division Bench of the High Court Division of the Supreme Court of Bangladesh in Hefzur Rahman v. Shamsun Nahar Begum 47 DLR (1995) 74, to provide financial security to divorced women in impecunious circumstances by making their former husbands liable for their maintenance until their remarriage. In a suit by a wife for her iddat maintenance, the Court took up suo moto the legal query whether the divorced wife could have claimed maintenance beyond the iddat period.

The Court held that a civil court has the jurisdiction to follow the law as contained in the Qur’an, disregarding any other law on the subject which is contrary to it, even though laid down by the jurists and commentators of great antiquity and authority and followed for a very long time. The Qur’anic Verse, which was applicable to their query, was II: 241, translated by Abdullah Yusuf Ali, the celebrated modern commentator of the Qur’an, as “For divorced women maintenance (should be provided) on a reasonable (scale).” The Court accepted this as the correct translation of the Verse and observed:

Considering all the aspects we finally hold that a person after divorcing his wife is bound to maintain her on a reasonable scale beyond the period of iddat for an indefinite period, that is to say, till she loses the status of a divorcee by remarrying another person.

The Court did not refer, perhaps deliberately, to Mohd. Ahmed Khan v. Shah Bano Begum  AIR 1985 SC 945. The judgment has been hailed by liberal forces of Bangladesh as courageous and enlightened – a major breakthrough in Islamic jurisprudence. The leading British scholars of Muslim family law have maintained that the decision confirms the recently established Indian law that there is actually no real conflict between the Qur’anic foundations on the husband’s obligations towards a divorced wife and the modern welfare statutes obligating husbands to look after the future welfare of their divorced wives. [45]

As was to be expected, the decision was greeted with widespread protest and condemnation by the fanatical elements and, perhaps for avoiding a Shah Bano situation, the Appellate Division of the Supreme Court overruled it. The apex Court held that the word mataa in the Qur’anic Verse II: 241 has never been understood as maintenance or provision in the sense of legal, formal and regular supply of necessaries of life and livelihood to the wife. It is a “consolatory offering” or parting gift to a divorced woman as comfort and solace for the trauma she suffers from divorce. Being a gift, it has never been judicially enforceable. But the Court was also of the opinion that statutory provisions may be made, binding the husband to maintain an unjustly treated and destitute divorced wife, as has been done in several Muslim countries. Such beneficial legislation, the Court held, will not be against Muslim personal law. On the contrary, it will be in consonance with the ideas of justice, tolerance and compassion that the Qur’an enjoins upon all righteous Muslims. [46]

42.   Jamila Khatun v. Rustam Ali, 48 DLR (AD) (1996) 110 is the leading case on the subject.
43.   Report of the Commission on Marriage and Family Laws (The Gazette of Pakistan, Extraordinary, Karachi, 20 June 1956), 1215.
44.   Daniel Latifee v Union of India, AIR 2001 SC 3958.
45.   David Pearl and Werner Menski, Muslim Family Law (Lahore, 1998) 205.
46.   Hefzur Rahman v. Shamsun Nahar Begum, 4 MLR (AD) (1999) 41 at 87-88.

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