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This research aims to find out the problems faced by parties to a divorce especially by women under existing personal laws. It will also concentrate to the lacuna of laws, nature of problems and mode of solutions. There are different religions in Bangladesh with different faith, culture and different sources of personal laws. So whether a Uniform Family Laws can be made for all religion, the researcher will try to analyze it.
After the breaking up of marriage tie some urgent task confront everyone in the Family, husband, wife, children and kinfolk . Especially the wife becomes worst sufferer if the divorce is unexpected to her. Again if she is bound to dissolve the marriage, most of times she has to face some critical procedure so these situations must be examined to render them proper justice.
Besides only the Muslim women and Christian women in a very little scope to get justice can exercise right to divorce. But the major minority who constitute about 15% of total population has no right to divorce. Hindu women can not divorce her husband even if her life is spoilt by him. So this research will seek the solution to get rid of such helpless situation and will try to show the way to reform existing lacuna of laws which would be effective for all communities.
1.2 Problem in a Wider Context
Marriage is a very foundation of civil society and no part of the laws and institutions of a state can be more important to its subjects than these which regulate the manner and
conditions of forming and if necessary of dissolving the marriage contract. [Lord Westbury‟s speech (1868) L.R., 3H.L, 55] in show V Gould
In Our country marriage, dissolution of marriage and other related issues are disposed of by personal laws along with some other related statutory laws. But how much these laws are sufficient to provide equitable solution to the parties is under question. Islamic law first recognizes the necessity of divorce. It is sometimes suggested that the greatest defect of the Islamic system is the absolute power given to the husband to divorce his wife without cause. Dower to some extent restricts the use of this power. But experience shows that greater suffering comes from irresponsible exercise of this right. Besides the comment of some other scholar regarding the issue is Islamic law as interpreted and practiced by the Hanafi school has become one side engine of oppression in the hands of the husband.[Syed Ameer Ali, Mohammedan Low, Vol-II, page 409-10]
Though Muslim women are given right to divorce by Khula and Talaq-e- tafwiz but in main form of talaq men are given absolute right.
In Hindu personal law, under their spirituo-rational sentiment, Hindu society was always opposed to the idea of divorce. A marriage from the Hindu point of view creates an indissoluble relation between the husband and wife. Neither party to a marriage could divorce the other unless it was allowed by custom. [Kudomee v Jotecram,
(1878) 3,c,305] [Sankaralingam v Subban (1894) 17, M 479] Manu, the Hindu law giver laid down, „Neither by sale nor desertion can a wife be released from her husband. Let mutual fidelity till Death.‟[Manu(X 49.101)]. Where the marital life is full of sufferings, which force to dissolve marriage but law does not permit. This is so oppressive.
Similarly Christian personal law does not permit Divorce. Jesus says and “Whoever divorces his wife and marries another, commits adultery against her and if a woman divorces her husband and marries another, she commits adultery. [mark 10: 11-12] Section 10 of the Divorce Act, 1869 states the provision of dissolution of Christian marriage. But it also can not provide absolute equality.
Such situation encourages me to study about the matter. So that an equitable and highly expectable solution can be found out.
When the problems between husband and wife reach towards a devastating situation, the divorce happens. Then after the breaking up of marriage some urgent tasks confront everyone in the family- husband, wife, children and kinfolk. They must adjust to the new unexpected situation and try to make the future life easy. But most of the cases women comparatively have to face serious difficulty. So I will try to find out the reasons of problems and expectable solution, the lacuna of laws and the process, how it can be fulfilled to ensure equitability and equality among parties.
This research monograph will be conducted mostly by qualitative method. Because the researcher will go through different laws including personal law of different communities, statutory laws, writing of scholars, commentaries by an analytical way. Besides books relating to divorce and its effect, journals, articles etc will be studied. Then to a great extent this work will depend on Case Study and legal decision given by
eminent judges. For better solution comparison among development of different personal laws of different countries will be made. To furnish solution of the problem the researcher will analyze recommendations made by different study groups and also by law commission.
1.5 Chapter Framework
The objective of the present research is to find out solution against injustice practiced, especially towards women under existing law relating to divorce. Therefore first chapter of the study deals with central focus, problem in a wider context, methodology and chapter framing for the whole study. Chapter 2 focused on rudimentary discussion over divorce, its effect, provision regarding divorce under different personal law contained in the concerned holy religious book. Chapter 3 discuss about legal development in case of religious system of divorce, its effect and lacuna. Chapter 5 will conduct with critical analysis regarding the actual situation comparing with practice that is how much equality and equitability is ensured. Lastly findings of the whole study will be inserted and then researcher will go for conclusion.
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