An order has been issued by the Ministry of Law Justice and Parliamentary Affairs of the Government of Bangladesh vide memo no. R-6/7N-8/2015-175, dated 29/04/2015 under the signature of Md. Nurul Alam Siddique, Senior Assistant Secretary, directing the Notaries to refrain from taking any affidavit of solemnisation of marriage or pronouncement of divorce and registration of the same from any person, identifying such act as not recognised by law. The order stipulated that it was issued to implement the decisions taken by the Governance Innovation Unit of the Office of the Prime Minister in its meeting dated 19/11/2014 regarding the role of the Kazis in restraining child marriage.
The order also sought to justify such proscription by advancing arguments that (a) solemnisation of Muslim marriages requires exchange of proposal of marriage and acceptance of the same by and between the parties and fixing of dower in the presence of 2 (two) witnesses and a failure to comply with any of the requirements would render the marriage invalid; and (b) Section 3 of the Muslim Marriage and Divorce (Registration) Act 1974 requires mandatory registration of all Muslim marriages and the Act only empowers the Nikah Registrars to register Muslim marriages.
The above order raises a number of important legal questions –
1. Although the order categorically stipulated that it was aimed at facilitating restraining of child marriages, it clearly failed to mention why taking affidavit for pronouncement of divorces have also been proscribed by it.
2. The Ministry of Law, Justice and Parliamentary Affairs found it prudent to justify promulgation of the order by referring to purported difficulties concerning Muslim marriages, while being oblivious that the order might adversely affect marriages outside Muslim marriages.
3. While Muslim marriages require mandatory registration, registration of Hindu marriages and Muslim divorces are optional. Section 3 of the Muslim Marriage and Divorce (Registration) Act 1974 requires every Muslim marriage to be mandatorily registered. Section 5(1) requires a marriage to be registered at once, when it is solemnised by a Nikah Registrar. When it is solemnised by a person other than the Nikah Registrar, section 5(2) requires the bridegroom to report the same to the concerned Nikah Regsitrar within 30 (thirty) days from the date of the marriage. A failure to comply with any of the requirements by any person would be an offence punishable by imprisonment or fine or both (Section 5(4)). Section 6(1) of the Act provides that a Nikah Registrar may register a divorce effected under Muslim Law within his jurisdiction.
4. It is therefore clear that neither a Muslim marriage nor a Muslim divorce is effected by registration. Registration merely acts as proof of marriage or divorce, being a process allowing entry of information of marriage or divorce in a system of public record keeping. Hence, a Muslim marriage or divorce may be perfectly valid, without being registered. In a case where a Muslim marriage or divorce is not registered, the validity of such marriage or divorce, once disputed, may well be required to be proved by other forms of evidence.
5. Under Section 35 of the Evidence Act 1872, an entry in any public or other official book, register or record, and made by a public servant in discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country, in which such book, registered or record is kept, is admissible as evidence. Essentially therefore, if an affidavit is sworn or affirmed before a Notary Public of a marriage or divorce, in absence of registration of the same, such an affidavit shall be admissible evidence in a court of law for proving existence of the same. The High Court Division in Serajul Islam v Helena Begum and Others [48 DLR 1996 HCD 48] held that a divorce was valid where the husband failed to comply with the requirement to serve notice upon the Chairman of the Union Parishad under Section 7 of the Muslim Family Law Ordinance 1961, since the act of divorce was clearly manifested in an affidavit sworn by him.
6. Most importantly, the Notaries Ordinance 1961 has empowered the Notaries to take affidavit from any person (Section 8(1)(e)), without affording any limitations. Although Section 15 has empowered the Government to make rules to carry out the purposes of the Ordinance, nothing in the Ordinance appears to have authorised the Government to fetter the power of the Notaries, conferred upon them by the Ordinance. The only rules made by the Government under the Ordinance were the Notaries Rules 1964. No provision of the Notaries Rules 1964 has attempted to restrict any of the powers conferred upon the Notaries by the Ordinance.
7. It is, at the very least, a matter of grave concern as to whether the above order has been issued with lawful authority.
Written by Asif Bin Anwar, Partner at Vertex Chambers
† Disclaimer: The opinions and comments expressed in this Blawg are not to be regarded or construed as legal advice by and from Vertex Chambers or any of its members. It is highly advisable that any person should seek independent legal advice before relying on any of the contents of this Blawg.