SIRI KEEMPAT
Keputusan
Mahkamah Agung Bangladesh: makna dan maksud Mut’ah.
Dari laman sesawang http://www.asiaticsociety.org.bd/
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]
43. Report
of the Commission on Marriage and Family Laws (The Gazette of
Pakistan, Extraordinary, Karachi, 20 June 1956), 1215.
Tiada ulasan:
Catat Ulasan