Chapter X

ADR UNDER MUSLIM FAMILY LAW

Introduction:
Both the Muslim Family Laws Ordinance, 1961 and the Family Courts
Ordinance, 1985 provide for avenues for reconciliation or alternative dispute
resolution. The Muslim Family Laws ordinance, 1961 provides mechanism for
reconciliation through the Arbitration Council and this type of reconciliation is not a
part of judicial ADR; it is administrative in nature. On the other hand, the Family
Courts Ordinance, 1985 provides for mechanism for reconciliation through judges
as a necessary part of judicial proceeding (court annexed ADR).

ADR under the Muslim Family Laws Ordinance,1961 :

Under this law provision for reconciliation or alternative dispute resolution
through arbitration council has been provided for in three circumstances:
(i) in case, of polygamy under section 6;
(ii) in case of giving talaq and making it effective under section 7; and
(iii) in case of failure of the husband to provide maintenance of his wife under
section 9.

Arbitration Council:
Section 2(a) of the Muslim Family Laws Ordinance, 1961 defines that arbitration
council means a body consisting of the Chairman and a representative of each of the
parties to a matter dealt with in this Ordinance. Arbitration Council is thus a resolution
body that functions both in urban and rural Bangladesh, However, this council is not
any independent functions of the arbitration council by such local elected bodies in
addition to their usual functions.

Reconciliation in Case of Polygamy:

Section 6 of the Ordinance makes a mandatory provision of obtaining

permission of the arbitration council in case of polygamy by any person
and if someone enters into second marriage without permission of the

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arbitration council, he commits an offence which is punishable up to one
year imprisonment and fine up to taka ten thousand. The detailed
provisions under section 6 are as follows:
(i) A man is not permitted, during the subsistence of an
existing marriage, to enter into another marriage without
previous permission in writing from the arbitration
council.

(ii) An application for such permission shall be submitted to

the Chairman, together with the prescribed fee, and shall
state the reasons for the proposed marriage, and

(v) where the Union Parishad, Paurashava or City Corporation is superseded, the
person discharging the functions of such Parishad, Paurashava or
Corporation or, as the case may be, appointed by the Government to
discharge the functions of Chairman under this Ordinance:

Provided that where the Chairman of the Union Parishad or

Paurashava or the Mayor of the City Corporation is a Non-Muslim, or
he himself wishes to make an application to the Arbitration Council or
is, owing to illness or any other reason, unable to discharge the
function of Chairman, the Union Parishad, Paurashava or City
Corporation shall elect one of its Muslim members or Commissioners
as Chairman for the purposes of this Ordinance;

whether the consent of the existing wife or wives has been obtained thereto.

(iii) On receipt of such application, the Chairman shall ask the applicant
and his existing wife or wives each to nominate a representative,
and the Arbitration Council so constituted may, if satisfied that the
proposed marriage is necessary and just, grant, subject to such
conditions, if any, as may be deemed fit, the permission applied for.

(iv) In deciding the application, the Arbitration Council shall

record its reasons for the decision, and any party may,
within the prescribed period, and on payment of the

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 prescribed fee, prefer an application for revision to the
Assistant Judge concerned and his decision shall be final
and shall not be called in question in any court.

Reconciliation in case of Maintenance:

Section 9 of the Ordinance provides for the following provisions with regard to
the role of the Arbitration Council in case husband fails to provide maintenance
to his wife:

(i) 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 apply to the Chairman

(ii) On receiving such application the Chairman shall constitute an

Arbitration Council to determine the matter, and the Arbitration
Council may issue certificate specifying the amount which shall
be paid as maintenance by the husband.

(iii) A husband or wife may prefer an application for revision of the

certificate, to the Assistant Judge concerned and his decision shall
be final and shall not be called in question in any court.

Reconciliation in case of executing a Talaq:

One of the purposes of the Muslim Family Laws Ordinance 1961 was to provide
for reconciliation to resolve marital dispute without the intervention of the court. It
sponsored the idea of reconciliation in the case of divorce by either spouse in
accordance with the spirit of the Quran and Sunnah. The provisions are equally
applicable to both husband and wife exercising their right to divorce. The
Arbitration Council is empowered to effect the procedure of reconciliation before
the disputants after its process is initiated by service of notice of talaq. The purpose
of notice of talaq to be served upon the Chairman of Union Parishad and the wife is

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 to prevent hasty dissolution of marriage or offer a second chance to the disputants,
which is beneficial to both the parties in the event reconciliation is effected.

Section 7 of the Muslim Family Laws Ordinance, 1961 introduced a single

method of dissolving marriages and considered all talaq by the husband as single
revocable talaq.

Section 8 provides that in case of talaq by the wife and also in the case of judicial
separation the provisions of section 7 shall apply, In other words, in case of any type
of talaq by either husband or wife and also in case of judicial separation, the
arbitration council has to be activated for the purpose of reconciliation because the
parties as well as for effecting separation or talaq.

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 Resolution in
Steps of Reconciliation:

section 7 provides the following steps for reconciliation:

(i) Any man who wishes to divorce his wife shall send a copy of the
notice of talaq to the Chairman and also a copy to the wife.

(ii) A talaq, unless revoked earlier, expressly or otherwise, shall not be

effective until the expiration of ninety days from the day on which
notice is delivered to the Chairman.

(iii) Within thirty days of the receipt of notice of talaq, the Chairman
shall constitute an Arbitration Council for the purpose of bringing
about a reconciliation between the parties, and the Arbitration
Council shall take all steps necessary to bring about such
reconciliation.

(iv) If the wife be pregnant at the time talaq is pronounced, talaq shall not
be effective until the period of 90 days or the pregnancy, whichever be
later, ends.

(v) With a view to reconciliation between the husband and wife the
Arbitration Council shall send letters to both husband and wife and fix
a date for reconciliation.

(vi) If both the parties appear and reconciliation takes place, talaq will not
be effective and the marital tie between the husband and wife will
continue.

(vii) If one of the parties does not appear or none of appear, or if the
reconciliation process fails, the will be effective on expiry of 90 days,
And only the expiry of this 90 days each party may get
certificate/certified copy of divorce from a Kati
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 Role of the Arbitration Council in case of Talaq:

Sub-section (4) of section 7 of the Muslim Family Laws Ordinance,

1961 provides for provision for reconciliation within a period of 30 days
from the receipt of the notice by the arbitration council. The purpose of
reconciliation is that before making a hasty decision the husband and wife
get an opportunity to reconsider. Here lies the role of the arbitration
council to undertake pro-active proceedings with a view to reconciliation
between the parties.

The role of the arbitration council in holding a reconciliation

proceeding is very important in view of the fact that one of the object of the
Ordinance is to give effect to the sanction of the Quaranic verse. This
sanction is reinforced by the fact that 'during the long period of iddat, much
of the intensity of the disputes providing the grounds for divorce dies down'.
However, there are shortcoming both in the law and procedure with regard to
its inactiveness.

Judicial Separation and the Role of the Council:

As mentioned above the provision of arbitration council and its

conciliation proceeding applies to all types talaq including judicial separation.
When a judicial dissolution is effected under the Family Court Ordinance, 1985
the concerned family court has duty imposed by section 23 to send the certified
copy of the decree of dissolution of marriage to the chairman within 7 days
after passing of the decree

After receipt of such a certified copy of the procedure of section 7 of the Muslim
Family Laws -e be set in motion and the decree will not be effective expiry of
ninety days from the receipt of the notice by the On receipt of the decree the
Chairman shall consider the notice of divorce and he will issue notice to both the
parties reonciliation. A question may arise in view of section 23 of the
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 Resolution in
Family Courts Ordinance, 1985 and sections 7 and 8 of the Muslim Laws
Ordinance, 1961 as to the time when the dissolution will be effective- is it after
the expiry of ninety days the receipt of the notice from the wife when she initiates
the suit for dissolution or is it after the expiry of ninety days from the receipt of
the certified copy from the court? The Lahore High Court held in a case after the
decree for dissolution has been made by the family court, that court must send a
copy of the decree to the Chairman. At the same time it is necessary for the wife,
in whose favour the decree is passed, to independently inform the Chairman
about the decree, and also to send a notice thereof to the husband. An issue raised
before the court was the effectiveness of the decree of the dissolution of the
marriage after a successful reconciliation. The court held that in an instance of
total success of the
Reconciliation, the decree shall be deemed to have been abandoned the wife.
The conciliation will have the effect of compromise d thus avoidance of the
decree. In other words, the decree shall have no effect if within the specified
period the reconciliation has effected between the parties in accordance with
the provisions of the Muslim Family Laws Ordinance and rules made
thereunder

Drawbacks of the ADR Mechanism by Arbitration Council:

(i) The Chairman of Union Parishad and the Arbitration Council are expected to
play the role of a conciliator or mediator in real terms in the marital disputes.
However this object of the law is, to some extent, frustrated because of the
Chairman's lack of initiative to arrange for reconciliation or the parties
reluctance to reconcile.

(ii) No statistics or data is kept or available with regard to the activities of the
arbitration council. As no statistics are available, it is not possible to
evaluate the role of the council objectively- whether it is discharging its role
in line with legislative objective or not.

(iii) The Muslim Family Laws Ordinance does not provide any consequence if
the Chairman of Union Parishad or the arbitration council does not arrange
conciliation between the parties. In practice the Chairman either does it
 mechanically without commitment or it is forgotten totally in the absence of
any initiations by the disputant parties.

iv) The action of the arbitration council is largely reactive and not pro-active at all.
When any notice of talaq is receive by the council, it just discharges its
function by issuing letters of invitation for reconciliation without undertaking
any pro-active activities by way of counseling and reconciliation between the
parties. This lacunae is frustrating the pious purpose of the law.

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 Resolution in
(iv) The arbitration council should be given proper training
and instruction with regard to its appropriate role and duties for
reconciliation. A researcher suggested that there are some
inherent defects in the mechanism of arbitration council. First,
the Muslim Family Laws Ordinance, 1961 does not provide any
definition of conciliation and guidelines on how to effectuate a
conciliation. Second, although the Council is composed of the
Chairman and representatives of the parties, the parties have not
been given adequate autonomy to make decision. Third, the
Council is judgmental and apt to impose their preferred decision
on the parties. Fourth, the Chairman of the Council is not given
any training on counseling and conciliation. If adequately trained
in Muslim personal laws and equipped with the skills of
counseling and conciliation, the Arbitration Council could
conciliate marital disputes rather efficaciously and positively.
(v) There is no enforcement and oversight mechanism under
the law for arbitration council. One author comments that it is
quite noticeable that though the systems encourage decision
making in an informal atmosphere, the legal provisions as to
enforcement of the decision of the Village Courts are adequately
formal. However, for both the Village Courts and the Arbitration
Councils, there are no explicit legal provisions as to oversight
mechanisms.

Oversight Mechanism and Revision to the Assistant Judge:

There is no specific body to monitor the functions of Arbitration Council except

judicial supervision by way revision etc. Sub-rule (2) of rule 4 specifies that if
any party the proceedings before an Arbitration Council considers the Chairman
to be interested in favour of the other party, he may apply to the Assistant Judge
for the appointment of a different chairman. Such an application must record
the reasons in writing. If the Assistant Judge, after perusing such an application,
thinks fit, he may appoint any other members of the Union Parishad as

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Chairman of the Council. The Assistant Judge shall stay the proceedings before
the Arbitration Council until he has disposed of such application.

In areas of enforcement and oversight, it is quite noticeable that though

the systems encourage decision making in an informal atmosphere, the
legal provisions as to enforcement of the decision of the Village Courts
are adequately formal. However, for both the Village Courts and the
Arbitration Councils, there are no explicit legal provisions as to oversight
Mechanisms.

ADR under the Family Courts Ordinance, 1985:

Apart from the Muslim Family Laws Ordinance, 1961, the Family Courts
Ordinance, 1985 went a step further in resolving marital disputes through
conciliation during the progress of the family suit. The Family Courts
Ordinance, 1985 has built-in conciliation mechanism enabling disputant
parties to resolve the outstanding issue informally, discreetly and with a sense
of accommodation in which The Family Courts play the role of a well-wisher
and friends rather than adjudicator. The role of the Family Court Judges is of
vital importance for attempting such reconciliation between the parties. In
fact the enactment of the Family Court system was rooted in a social welfare
philosophy to establish a link between the legal and social sciences. But these
provisions have not been properly understood and practiced so far.

Provisions of Reconciliation:

Two type of reconciliation proceedings are envisaged in the Ordinance:

(i) Pre-trial reconciliation proceeding under section 10; and
(ii) Post-trial reconciliation proceeding under section 13.

Both these modes of reconciliation proceedings are court annexed ADR.

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 Resolution in
Pre-trial Reconciliation:
Section 10 the Ordinance provides for reconciliation. According to
section 10 after the written statement is filed, the Family Court shall fix a
date not more than 30 days later for a pre-trial heating of the suit. In that
pre-trial hearing, the Family Court will attempt to effect a compromise or
reconciliation between the parties after examining the plaint, statement,
summary evidence and documents under section 10(3).

Post-trial Reconciliation:

On conclusion of the trial, another attempt is made to effect compromise or

reconciliation between the parties before the pronouncement of the judgment
(section 13). Thus the actual intention of the legislature seems to be that the
Family should act as conciliators and mediators for the reconciliation between the
parties so that the couple may have a happy conjugal life.

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