Kanoon Janun1_Public Nuisance

Q. What does public nuisance mean?

A public nuisance is an act or an illegal omission (unlawful refraining from doing an act)—


•which causes to the public or persons living in the vicinity or occupying the property in the vicinity — any common injury, danger or nuisance; or
•Which necessarily causes injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.

A person who does any of the above acts shall be guilty of public nuisance, as a public nuisance is a punishable offence.

Q. What are the punishable offences of public nuisance?

• Making any obscene noise, gesture or remark or exhibiting any object intended to dishonour, insult or disturb the modesty of a woman or trespassing in the privacy of that woman.[Punishment with imprisonment for 1 year or with fine, or with both.]

•Committing any obscene act in any public place or causing public annoyance by singing, reciting or uttering any obscene. [Punishment 3 months imprisonment or fine]

•Willingly or unlawfully or negligently or knowingly doing any act which is dangerous to the life of any person or which may spread the infection of any
disease. [May be punished with imprisonment up to 6 months or with a fine, or with both.]

• Causing bodily harm or unpleasant noise or noise to the public in carrying on lawful business.

• Urinating in places used by the public/ building houses on road sections/ slaughtering animals on roads/ turning houses into dens of gamblers.
[Punishment 6 months imprisonment or fine]

•Behaving indecently or disorderly in society. (Punishment with imprisonment for 3 months or fine of Tk. 500 or both)

• Behaving indecently with neighbours or harassing them. [Can jail up to 2 years if the charge is proved.]

•Littering or spitting in the house which lands on the neighbour or causes difficulty in movement. [A minimum fine of 100 to 3000 Tk., and
imprisonment may also be imposed.]

•Washing and bathing on the street or in any public place. [Can be fined from a minimum of 100 to 3000 Tk., and can also be jailed.]

• Misbehaving or harassing neighbours. [If the charge is proven, can be imprisoned for up to 2 years.]

• Entering Neighbors’ houses from time to time without permission. [A minimum fine of 100 to 3000 Tk., and imprisonment may also be imposed.]

•Leaving any domestic animal on the road or placing any poster or advertisement on the building of a Neighbour’s house. [The fine can range from a minimum of 100 to 3000 Tk., and may also be imprisoned.]

Q. If you are a victim of public nuisance, what should you do?

Depending on the type of public nuisance you are/have been subjected to, you can seek remedies as follows—

• In case of vehicular public nuisance: If a person drives any vehicle in such a manner that human life is endangered or there is a possibility of causing damage or injury to any person, then the Metropolitan Magistrate/Magistrate can file a case against that person in the Court of Magistrate.

•In case of public nuisance due to the environment: If any person does any work which harms the environment and public health, a complaint can be lodged
with the police station/magistrate.

• In case of public nuisance caused by noise pollution: If any person causes a public nuisance by noise pollution, report against that person to the nearest police as every police officer must prevent such public nuisance as per section 15(c) of Dhaka Metropolitan Police Ordinance 1976.

• In case of public nuisance caused by inflammable or explosive substance: Any person negligently uses any inflammable or explosive substance in such a way as to endanger human life or cause injury/harm, then a complaint can be lodged with the police station/magistrate against such person.

Kanoon Janun2_Muslim Family Law

Kanoon Janun2.1_ Muslim Marriage & Marriage Stipulation​

Q. What are the basic elements of a Muslim marriage?

  • Offer;
  • Acceptance; &
  • Presence of witnesses.

Q. How an offer and acceptance can be made in a Muslim marriage?

The proposal and acceptance of a Muslim marriage should be made clearly and in this case, the independent consent of both parties is essential. It should be remembered that without independent consent, Muslim marriage is not valid.

Q. Why is it necessary to have witnesses in a Muslim marriage?

It is an essential condition for the validity of a marriage. Secret marriages without witnesses are unconditionally forbidden in Islam because they are like adultery.

 Narrated by Abu;z-Zubayr al-Makki that a case was brought to Umar about a marriage which had only been witnessed by one man and one woman. He said: “This is a secret marriage and I do not permit it” [Muwatta Malik, Book no 28, Hadith 1120]

Q. What are the statutory requirements for marriage in Bangladesh?

  • Consent: Both parties must have clear consent;
  • Competence: Both parties must be of sound mind and must be capable to marry according to Muslim family law;
  • Age of marriage: 21 years for men and 18 years for women. [Section, 2(3), Child Marriage Restraint Act, 2017]
  • Marriage registration: Marriage solemnized under Muslim law shall be registered. [Section 3, Muslim Marriages and Divorces (Registration) Act 1974]

Q. What are the legal effects of a valid Muslim marriage?

  • Mutual Rights and Obligations
  • Rights of the Husband and Duties of the Wife
  • Rights of the Wife and Duties of the Husband

Q. What are the legal effects of mutual rights and obligations of husband and wife?

The mutual rights and obligations that result from a valid Muslim marriage are:

  • Sexual rights;
  • The legitimacy of children;
  • Marital fidelity and trustworthiness;
  • Right to inheritance;
  • No merge of personality;
  • Other matrimonial conditions.

Q. What are the legal rights of the husband and the duties of the wife that arise in consequence of a Muslim marriage?

The legal rights of the husband are:

  • To control the wife’s movement;
  • To seek the restitution of conjugal rights;
  • The duties of the wife are;
  • To be obedient to husband;
  • To live and stay with husband;
  • To accompany the husband on travel {However, the wife may refuse to accompany him on legal and reasonable grounds}.

The legal rights of the wife are:

  • To visit her parents;
  • To receive dower and maintenance;
  • To seek the restitution of conjugal rights;

The duties of the husband are:

  • To provide adequate housing within affordable means;
  • To fulfil the financial obligations {This includes food, water, clothing and
    other basic needs}

Q. What are the mutual rights and obligations of husband and wife?

  • Sexual Rights: Sexual right is not a unilateral right of the husband; rather a mutual right.
  • The legitimacy of Children: Any child born during a valid marriage is a legitimate child. This is an important issue in Muslim Family Law.
  • Marital fidelity and trustworthiness: Both husband and wife must maintain marital fidelity, and they both should not do anything that goes
    against marital trustworthiness.
  • Right to inheritance: During the continuance of marriage, if either the husband or wife dies, then the other acquires the right to get property by
    inheritance.
  • No merge of personality: In Muslim law, both husband and wife maintain an individual full legal personality even after the marriage.
  • Other matrimonial conditions: The terms inserted in the marriage deed by the party at the time of marriage will be binding on them. (e.g., If it is inserted in the contract of marriage that the husband would allow the wife to pursue her higher studies after the marriage, then the husband cannot bind the wife to do the contrary.)

Q. What are the rights of the husband and the duties of the wife?

  • Obedience of the wife: The wife must be obedient to the husband. On the point of the degree of obedience, classical and modern jurists have different

    opinions.

  • Living with the husband: It is a legal obligation of a wife to live with her husband. The wife may only deny residing with her husband if he has not paid a prompt dower on her demand.

  •  Power to control wife’s movement: The husband has the right to control his wife’s movements. Therefore, the wife has to get permission from her husband to go outside.

  • Wife’s responsibilities regarding household chores: A wife does not have any legal obligation to do household activities. However, the work distribution in a family is a matter of mutual understanding between husband and wife.

  • Financial obligation: The husband is obliged to bear all the financial responsibilities of the marriage unilaterally. The husband is responsible for
    providing his wife with the dower, maintenance, food, shelter and other relevant assistance.

  • Visiting the wife’s parents: The husband is bound to allow his wife to visit her parents at reasonable intervals. A wife can go to her parents even if it disregards the husband’s restriction to go there.

Q. Can parents compel their children to marry?

NO!
Parents cannot force their son/daughter to marry someone whom they do not want to marry, as the Prophet Muhammad (PBUH) said: “A woman who has been married before should not be given in marriage except after consulting her, and a virgin should not be given in marriage except after her
permission.” [Sahih al-Bukhari 5136]

Q. Who is responsible for registering a Muslim marriage?

  • The marriage registrar will register the marriage at once, where he performs the marriage formalities himself.
  • In other cases, the bridegroom shall report it to the concerned Nikah Registrar within thirty days from the date of the Marriage, and the Nikah Registrar shall register the marriage at once.

Q. What is the punishment for not registering a Muslim marriage?

Non-registration of a Muslim marriage is a punishable offence. In this case, the person responsible will be sentenced to two years of general imprisonment
or a fine of up to 3000 Tk. or both. [The Muslim Marriages and Divorces (Registration) Act, 1974, section 5]

Q. Does non-registration invalidate a Muslim marriage?

No! Muslim marriage registration is a statutory obligation, a violation of which is a punishable offence.

Q. What is meant by stipulation in a Muslim Marriage?

Muslim marriage is considered a contract whereas parties can insert stipulations according to sharia, in order to run the marriage successfully. It is
called marriage stipulation.

Q. What is the purpose of inserting stipulations in a Marriage Deed?

The purpose of insertion of stipulation in marriage is to bring a balance to marriage by determining the rights, duties and responsibilities of the spouses.

Q. Where can the stipulation be inserted in the Marriage Deed?

Clause17 of the Kabinnama (Marriage Deed) states “If there are special conditions”, under this clause 17, conditions can be inserted.

Q. Can both parties add stipulations in marriage?

Yes, both parties of marriage have the right to add any stipulation in the marriage contract through negotiation.

Q. can anything be inserted as a stipulation in the marriage contract?

yes, anything can be inserted as a stipulation unless that is contrary to sharia and law.

Q. What is the common stipulation accepted by all madhabs?

A stipulation delegating the power of talaq to the wife is the generally accepted stipulation of marriage by all madhabs.

Q. Depending on the content, how many types of marriage terms are there?

As per the content, they may be of two types of stipulations/terms. Such as—

  • Stipulations that reinforce the normal incidents of marriage and
  • Stipulation varies from the normal incidents of marriage.

Q. What are the types of marriage terms based on legal validity?

Based on the legal validity, they are three types of stipulations such as valid, void and invalidating stipulation.

Q. what is the meaning of valid stipulation?

Valid stipulations are those which reinforce sharia obligations or not violating sharia and laws. Fixing the date of payment of the dower may be a valid stipulation of marriage.

Q. What will be considered a void stipulation?

Terms of marriage which are contrary to Shariah are considered void conditions. For example, the condition of non-payment of mohrana will be considered as a void condition.

Q. What effect does an invalid condition have on a marriage?

An invalid condition has a negative effect on the marriage because it is itself an invalid condition that has the power to end the marriage. For example, the terms relating to the duration of the marriage will be considered void, and the marriage contract will be annulled as a result.

Q. How can a wife insert a stipulation regarding the dower?

A wife can insert a stipulation regarding the dower in kabinnama by including the mode of payment of the dower and the time for payment of the deferred dower.

Q. Can parties of marriage put stipulations regarding the matrimonial property regime?

Parties of marriage can put stipulations regarding ‘property regime’ by mentioning the controlling power and distribution of such matrimonial
property regime.

Q. What is meant by marital property regime?

Married couples can choose the way they will own their assets together. This applies to assets owned at the time of marriage and those acquired at a later date. This is known as a matrimonial property regime and will impact the way the property will be dealt with upon the death of one of the spouses or the following divorce.

Q. Can a wife insert a stipulation regarding the polygamy of the husband?

Yes, the wife may insert a stipulation which may restrict the power of polygamy of the husband.

Q. What examples of terms can be inserted in a marriage contract?

The stipulation regarding rights and obligations of parties of the marriage, stipulation regarding work, stipulation regarding the study, stipulation regarding divorce, stipulation regarding compensation on divorce, stipulation regarding non-abusive treatment, etc.

Kanoon Janun2.2_Mahr/Dower

Q. What is Dower?

It is a strict financial obligation prescribed by Shariah, for which the husband is obliged to pay a dower to his wife as a result of marriage.

Q. Nature of Dower

Dower is the personal right of the wife. She is the sole owner of the property/money given as dower, over which No one else has any legal right
over it.

“And give to the women (whom you marry) their mahr as a gift with a good
heart…” [al-Nisaa’ 4:4]

Q. When the wife’s right to claim the dower is established?

The wife’s right to claim the dower is fully established just after the completion of the marriage.

Q. Is dower payable even if no mention of dower is made in the deed of marriage?

The dower is payable even if the dower is not mentioned in the deed of marriage. As the dower is a shariah obligation upon the husband that arises in consequence of marriage, and such rights and obligations are not solely determined by the agreement of the parties.

Q. Is the dower payable even if the parties to the marriage did not orally agree at the time of marriage?

If there is no mention of payment of dower in the agreement at the time of marriage, then the dower amount that has to be paid and shall be considered as proper dower.

Q. Can a wife’s right to have a dower be barred by lapse of time?

Dower is an imprescriptible right of the wife, which cannot be barred by the mere lapse of time alone.

Q. Types of dowers?

Dower may be of two types:

Fixed – when the dower amount is fixed by the parties of the marriage. Proper – when the amount of the dower is not fixed, then the amount that is to be
paid is term as proper dower which is settled by taking into consideration the following factors:

  • Personal qualifications of the wife. Like her age, beauty, virtue, fortune, etc.,
  • Social position of her father’s family,
  • Dower gave to her female paternal relations,
  •  Economic conditions of husband &
  • Circumstances of time.

In every dower, there may be two portions, in terms of the time of the payment. It is not mandatory that the dower has to have these portions, but usually, it is presumed to have these two portions. The whole dower even may be mentioned as a prompt or deferred dower only by the mutual consent of the parties to the marriage.

  • prompt dower: Prompt dower is payable at once after the marriage solemnization of marriage on the demand of the wife,
  • deferred dower: Deferred dower is payable either on the dissolution of marriage, by death or by divorce.

Q. Is it mandatory to give dower money at once?

According to the holy Qur’an, the entire amount of dower has to pay before the consummation of marriage [Sura: An-Nisa, Verse: 4].

Q. When is the wife entitled to a full dower?

Full dower, fixed or proper, as the case may be, is payable –

  • On Consummation of marriage
  • If true seclusion takes place
  • The death of either spouse after a valid marriage, whether consummated or not
  • Staying one year in the house of the husband
  • Divorce is said on one’s deathbed, before consummation of the marriage, to keep the wife away from inheriting.
  • Physically enjoying one’s wife in a manner less than physical intercourse, not in complete privacy.

Q. When is the wife entitled to half dower?

If the dower was fixed and then divorce takes place before consummation/true seclusion. However, if the dower amount was not fixed, then no dower is payable in the case of divorce taking place before consummation/true seclusion. Here fixation of the dower has great significance.

Q. When is the wife entitled to no dower?

  • In the case of regular marriage, if the dower was not fixed and divorce takes place. True seclusion.
  • If the marriage is dissolved by Khul’ divorce (where the wife deliberately waives her dower as compensation to her husband).

Q. Can dower be waived?

It can be waived. But it must be ensured that it has been remitted voluntarily and spontaneously without being under coercion, fraud, undue influence or anything like this. For instance, on the account of the death of the husband remission made by the wife is not valid, if the wife remitted her dower
thinking that that was the only way to win/retain the affection of the husband, then such remission is invalid.

Q. Can a wife, after waiving the dower money, later demand it back?

Umar, the second caliph of Islam, decreed that if a wife remits the whole or part of her dower and later on demands it, the husband shall be compelled to pay it because the very fact that she demands it is clear proof that she did not remit it of her free will.

Q. Consequence of non-payment of dower: Rights of the wife

  • The wife may refuse to reside with her husband
  • The wife may refuse consummation, and the husband can’t compel her.
  • The wife is entitled to receive maintenance if she resides separately on the ground of non-payment of the dower.
  •  the wife can recover the dower by instituting a suit against the husband.

Q. Consequence of non-payment of dower: Rights of the wife

Dower is considered a debt. In the case of the husband dies keeping the dower unpaid, then the widow —

  • Is entitled to have it satisfied along with other creditors, out of his estate, and can enforce her claim for the dower debt by filing a suit against the husband’s
    heirs.
  • The dower has the right to retain possession of her husband’s property in lieu of unpaid dower until the amount of her dower is satisfied.

Note: Mahr/Dower is given to ensure the security of the economic rights of the wife. This is an obligation imposed on the husband by the Sharia and the law of Bangladesh. Registration of Marriage Deeds (Kabinnama) has been made compulsory in Bangladesh (Muslim Family Act of 1961). It mentions the right of married women to dower so that the issue of dower is clearly defined. There is no specific amount of dower. It can be fixed during the marriage or even after marriage. But it is better to fix the amount of dower before marriage.

Kanoon Janun2.3_Maintenance

Q. What is maintenance in a Muslim marriage under Muslim Family Laws?

It is the husband’s responsibility to provide maintenance to the wife after marriage, which is her right; the duty of a husband towards his wife.

Q. Maintenance includes:

  • Food
  • Clothing
  • Accommodation/shelter
  • Medical / Health care
  • And all other basic needs and necessities that are essential for a person to live a reasonable standard of living.

Q. What is the obligation of the husband to provide maintenance to the wife under Muslim Family Law?

Under Muslim family law, a husband is legally obliged to provide for his wife. This obligation (of husband) / right (of wife) has nothing to do with the financial well-being of the husband. Even if the husband is poor, the wife’s right to maintenance cannot be denied.

Q. Does the husband have any obligation to provide a separate residence for the wife?

Yes. But, if the husband is unable to provide a separate residence for the wife, and she has to reside in a portion of the house instead of a separate house, then that portion must have an independent/separate entrance and exit.

Q. When is the wife deprived of maintenance?

To enjoy the right to maintenance, the wife has to obey her husband. 
According to the law, in some cases, the wives will not be entitled to maintenance by the husband. For instance:

  • If the wife refuses to live with the husband,
  • If the wife is not loyal to the husband,
  • If the wife is an adulteress, Or
  • If the first wife opts to live separately because the husband chooses to take a 2nd, 3rd or 4th wife, or
  • If the husband dies, then the ‘iddah’ period follows his death.

Q. Is the husband obliged to provide for the wife who lives apart from him?

Wives who live apart from their husbands without a valid reason are not usually entitled to maintenance.

Q. How does one determine the amount of maintenance?

The amount of maintenance can be determined based on the husband’s economic condition and the wife’s social condition while also maintaining an ‘equitable
standard’.

Q. If the husband and wife inserted a stipulation in the marriage contract (Kabinnama) which exempts the husband from paying maintenance to the wife, what is the effect of such a condition?

Such a stipulation will be considered to be legally void.

Q. what is the relationship between the wife’s financial well-being and the husband’s obligation to provide maintenance?

No matter how rich or financially well-off a wife may be; even if the wife has
the ability to meet her own needs, the husband is obliged to provide for her.

Q. In what cases can a wife get maintenance from her husband even if she lives separately?

In the following cases, even if the wife lives separately from the husband, she can get maintenance

  • If the wife is forced to leave the house and live elsewhere due to the cruelty or oppression of the husband;
  • The husband neglects the wife and refuses to take her home;
  • If the husband unethically keeps the illegitimate lover/mistress at home;
  • If the husband stays away from the wife for a long time;
  • If the husband does not pay the prompt dower;
  • If the wife is due to exercise her legal rights;
  • If there is an agreement between the husband and wife that they disagree,
    they will live separately.
  • if the husband is married more than once, then at the time of the second marriage, if he entered into an agreement with the 1st wife to the effect that if the 1st wife did not get along with the 2nd wife, the 1st wife will live separately; in which case the husband is obliged to provide maintenance to the 1st wife. (Even in the case of 2nd, 3rd, and 4th marriages, if the above term is agreed upon, the husband shall be obliged to pay maintenance even if each wife lives separately)

Q. When is the husband obliged to pay maintenance to his wife?

During the continuation of the marriage, a husband is obliged to provide for his wife.

Q. Can the wife ask for divorce on the grounds of non-payment of maintenance?

In Bangladesh, the wife can ask for a divorce if the husband fails to provide maintenance for her for two years.

Q. Is the wife entitled to any kind of maintenance after divorce, and if so for how long?

The husband is bound to pay maintenance during the ‘iddah period’ (3 menstrual cycles) the following divorce.

Q. If a pregnant woman is divorced, for how long is she entitled to maintenance beyond the iddah period?

The duration of Iddah on divorce in the case of pregnant women is till the delivery of the child. The former husband’s liability extends only up to the
period of iddah, not beyond that.

Q. Can a wife claim maintenance for the past?

The wife can also recover any unpaid maintenance from the husband as past
maintenance.

According to the case, Jamila Khatun vs Rustom Ali, the High Court held that they have the jurisdiction to grant such (past) maintenance subject to
considerations of time of limitation and the relevant circumstances of each case.

Q. Wife’s legal right to maintenance

There are 2 Processes:

1. Judicial Process:
If a husband has not paid maintenance to his wife without a valid reason, the wife has the right to file a suit under the Family Court Ordinance
1985, which is a civil remedy.

2. Administrative process:

The wife can apply to the local Chairman for her maintenance under Rule-9 of the Muslim Family Law Ordinance, 1961. The Chairman will then form an arbitral tribunal for this purpose and issue a certificate determining the amount of money to be paid by the husband.

The spouse may apply for revision of the issued certificate in the prescribed manner, by depositing the prescribed fee within the prescribed time and in
In this case, the decision of the concerned Assistant Judge will be considered to be final and its validity cannot be questioned in any Court.

Q. What are the father’s obligations to provide maintenance for the children?

The father is legally obliged to provide for the children until the sons become adults and the girls are married off. And if the son of major age is sick or
incapacitated, then the father is obliged to provide for him still.

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