This Response to Information Request provides information on the role of the Kazi (Kadi, Qadi, Qazi; Islamic judge) in Muslim marriage in Bangladesh. Most of the information in this Response was provided by the following specialists:

A New Orleans-based Senior Research scientist who is a member of the editorial board of News from Bangladesh, an Internet-based daily published in Dhaka (18 Mar. 2000). An article authored by the research scientist, "Tying the Knot Without any Dowry and Without a Kazi," was published in the 8 February 2000 issue of the Dhaka-based Daily Star;

The Coordinator of the Dhaka-based women's human rights and development organization, Naripokkho (29 Mar. 2000). Additional information on Naripokkho can be found in BGD23835.E of 6 May 1996;

A Dhaka-based human rights lawyer who specializes in women's and children's rights (11 Apr. 2000). The lawyer, also a member of Naripokkho, coordinates the group's "Monitoring Intervention to Coordinate Violence Against Women" project. She is also a member of several national and regional human rights organizations and networks;

A professor in the Department of Law, Brussels Catholic University (12 Apr. 2000). The professor did his undergraduate law degree in Bangladesh, where he also worked as a lawyer at the Dhaka Court. In Belgium he studied International and Comparative Law, including European Union law, and teaches a course in non-European legal culture to students studying for the Master of Legal Theory (LL M). He writes on human rights issues for the Dhaka-based Daily Star and Holiday, and has published articles in international journals.

1. What is the Kazi legally empowered to do both under Muslim marriage law and civil family law?

The Dhaka-based human rights lawyer stated that there are two types of marriage in Bangladesh: religious marriage, which takes place under religious laws specific to each religious community (Hindu, Muslim and Christian), and civil marriage, which is sanctioned by the Civil Marriage Act, 1872. The research scientist clarified that Kazis are not permitted to become involved in civil family law, and that people who require an interpretation of civil law must go through the civil court system.

The human rights lawyer stated that Kazis are legally empowered to register Muslim marriages and divorces. The professor of law agreed, but offered a more detailed explanation of the legal powers of Kazis with regard to Muslim marriage and divorce:

Kazi is not a word in law in Bangladesh. Legally speaking they are the "Nikah Registrar", appointed by the government under the Muslim Marriages and Divorces (Registration) Act, 1974, and rules framed there under, the Muslim Marriages and Divorces (Rules), 1975. Each Kazi is appointed to a defined locality where their job is registration of Muslim marriages and divorces within the given area. According to a recent High Court decision, Nikah Registrars are "public" servants (Kazi Obaidul Haque vs. State 55 DLR (1999) 25).

Although they have a religious basis, marriages in Bangladesh are essentially contracts and are regulated by legislation, especially registration of marriages and divorces, that are not a necessary ingredient of Islamic law. So as public servants, the Kazis merely register marriages and divorces.

2. Can the Kazi perform a marriage ceremony, and if so, would the marriage be recognized as a legal marriage by the state?

The professor of law provided the following information on the Muslim marriage ceremony and the role of the Kazi:

In Muslim marriages, no ceremonies are needed to effect a legal marriage except proposal of marriage and acceptance thereof to take place at the same time and preferably dower amount is determined.

A Kazi thus doesn't perform marriage in this sense. His job merely is to register it; however, he has to be satisfied that all necessary elements of a valid marriage exist before registration.

The aspect of a Muslim marriage having religious significance is usually conducted by the family or local Mullah or even by the Kazi himself.

The human rights lawyer, the research scientist, and the Naripokkho coordinator all agreed, however, that Kazis do perform marriage ceremonies in Bangladesh. The human rights lawyer stated that Kazi-performed marriages are not just legal but the norm in Bangladesh. According to the research scientist, marriages performed by Kazis are "universally recognized in Bangladesh."

3. Can the Kazi perform a marriage ceremony in a private residence or only in his office? Is he restricted in any way? Can he perform a marriage anywhere?

All of the specialists agree that there are no restrictions on where a marriage may take place, and thus a Kazi may perform a marriage ceremony in his office, a private residence, or anywhere else. The human rights lawyer stated that the bride and groom generally determine where the ceremony will take place, but according to the research scientist most marriage ceremonies are still performed by Kazis at the bride's residence. He clarified that while in urban areas the bride's parents normally will rent a location for the purpose of the wedding ceremony, in semi-urban or rural areas the Kazi generally still comes to the bride's residence.

The professor of law offered additional information on the role and responsibilities of the Kazi:

... a Kazi can perform a marriage anywhere including in a private residence, or for that matter at any other place, as long as he carries his register book to register it. If he is requested by the parties to lead the religious part, he also could do so.

Thus he is not restrained in any way, nor is the registration required to take place at his office. However, he is obliged to maintain an office and preserve the records.

4. At what point in the marriage process do the bride and groom discuss column 18 of the marriage contract (Nikahnama), which pertains to delegation to the wife of the power of divorce?

The professor of law stated that the vast majority of marriages in Bangladesh are arranged by the families of the bride and groom. Even with love marriages, i.e. where the bride and groom courted beforehand, in most cases the marriage is organized by the families.

All of the specialists agreed that column 18 of the marriage contract is normally discussed before the marriage ceremony. The professor of law stated that all of the terms and conditions of the marriage contract, not just column 18, are usually discussed before the marriage by the elder members of both families. According to the coordinator at Naripokkho, column 18 should be raised when the families are discussing the amount of mahr [property or money bestowed upon the bride for her personal use, in particular to ensure her immediate financial welfare in the event of divorce] to be exchanged, and even before approaching the Kazi. All of the specialists stated that the issue is raised again when the Kazi reaches column 18 of the marriage contract, before final solemnization of the marriage. The research scientist stated that the Kazi twice will loudly announce all of the terms and conditions of the marriage-once in the presence of the groom and the guests, and a second time in the female quarter where the bride is located. The professor of law stated that sometimes heated arguments about the conditions of the Nikahnama will break out between the families.

According to an article published in the 9 April 2000 issue of The Daily Star, in the past women were not allowed to divorce their husbands unless the power was expressly delegated in the marriage contract. However, even if the power to divorce was not delegated to the bride, a woman could still sue for dissolution of marriage under the Family Court Ordinance, 1985 (ibid.). The article further states that the current practice is to give women the power to divorce, regardless of whether it is specifically delegated in the marriage contract. The coordinator of Naripokkho, who recently was married, stated that unless the families object, Kazis are informally instructed to put it in the affirmative. In other words the default mode for column 18, which asks "Has the groom delegated his wife the power to divorce," is "yes."

5. Does the Kazi give a copy of the marriage contract to the bride as well as to the husband? If so, when?

The professor of law, the research scientist and the human rights lawyer stated that a copy of the marriage contract is available after it has been registered by the Kazi and a small registration fee paid. The research scientist stated that a copy of the marriage contract is usually picked up from the Kazi's office one or two weeks after the marriage ceremony. The coordinator of Naripokkho stated that the copy must be picked up from the Kazi's office within one month. The human rights lawyer and coordinator of Naripokkho stated that the Kazi is obligated to provide the couple with only one certified copy of the marriage contract, but the professor of law stated that both the bride and groom could get copies if they wished, since they are provided upon payment of a fee.

6. When is the marriage registered, and by whom and with whom? Is it registered with the mosque or with a central religious or government body? What happens to the original copy of the marriage contract?

According to Human Rights in Bangladesh 1998, the annual report published by the Bangladeshi human rights NGO Ain-O-Salish Kendro (ASK), despite the Muslim Marriages and Divorces (Registration) Act requirement that all Muslim marriages be registered, an estimated 40 per cent of all such marriages remain unregistered (1999, 142).

All of the specialists agreed that as the government-appointed Nikah Registrar, the Kazi has the authority to register marriages in Bangladesh. The human rights lawyer and the professor of law stated that under Muslim marriage law, only Kazis are empowered to register marriages in Bangladesh. If someone other than a Kazi, such as a religious figure, performs a marriage ceremony, he must inform the local Kazi within a specified period of time.

The professor of law stated that a marriage should be registered at the time it is solemnized, but sometimes the Kazi collects only the most necessary information to post in the register book. He also indicated that although both bride and groom must sign the register, in many instances the bride's signature is either not taken or ignored. The research scientist stated that the record in the Kazi's register is the primary evidence of marriage in Bangladesh, and that it is unlikely one could challenge its validity.

The coordinator of Naripokkho, the professor of law, and the research scientist all stated that the original copy of the marriage contract is maintained at the Kazi's office. According to the coordinator of Naripokkho, there is no central government body that maintains marriage records.

7. Can a parent or friend obtain a copy of the marriage contract on behalf of the wife or husband for the purpose of sending it abroad? If so, what if any documentation is required?

All of the specialists agreed that parents, close family friends and other authorized people can obtain official copies of the marriage contract from the Kazi's office. The research scientist stated that a copy of a marriage contract can only be obtained from the particular Kazi's office where the marriage was registered, and the person requesting the copy need only indicate the date and time the marriage was solemnized. The professor of law indicated that the Kazi should ascertain the identity and relationship to the wife or husband of the person requesting the copy.

According to the human rights lawyer,

A friend or relative who wishes to obtain a certified copy of a Nikahnama is not required to produce any specific document, only pay the fee. However, it is necessary to have some proof of the relationship between the wife/husband and the person who wants the copy of the Nikahnama. The Kazi usually ask for it, but there is no specific rule. The person only needs to show that s/he is genuine.

8. Who has the power to marry a couple? Can someone other than a Kazi, such as an Imam, perform a religious marriage?

All of the specialists agree that a Muslim religious figure such as an Imam can perform a religious marriage. According to the human rights lawyer, any adult male Bangladeshi can perform a marriage ceremony. The research scientist stated that while a Kazi-performed marriage is preferred, in rural areas any Muslim cleric can perform the ceremony. He noted as well that some magistrates can legally perform marriages. These are known as "court marriages." The research scientist also stated that while an Imam can perform a marriage ceremony, the marriage must be properly recorded in the ledger of the Kazi in whose district the bride's parents reside. The professor of law agreed that although Imams can and often do perform religious marriages, and although such marriages are not illegal under Bangladeshi law, legal consequences could follow if the marriage is not registered.

On 8 February 2000 The Daily Star reported that en masse community weddings, in which dozens of couples are married without a Kazi being present, are becoming increasingly popular in Bangladesh.

9. What if any role does the Kazi play in divorce proceedings?

The Naripokkho coordinator and the research scientist were uncertain about the Kazi's role in divorce proceedings. The coordinator speculated that he would have little more to do than to confirm the mahr amount and that the marriage actually took place, but added that this would be unnecessary when a marriage contract is available.

However, both the professor of law and the human rights lawyer stated that Kazis are responsible for registering divorces and maintaining the relevant documentation. The professor of law stated that a Kazi may register a divorce "only after it has reached finality by exhausting the procedures laid down by law. The Kazi has merely to ascertain, before registration, that the legal procedures have been observed."

According to the human rights lawyer, the Kazi must also supply a copy of the divorce registration when required, such as in a remarriage.

10. Would any of the foregoing be dependent on rural or urban location?

All of the specialists agreed that the laws regarding registration of marriage and divorce are applicable to both cities and villages. However, three of the specialists indicated that there may be significant variance in practice between urban and rural areas. According to the professor of law, "in real life, in the villages and even on occasions in deprived urban communities, marriages still are performed and not registered, and other procedures flouted." The research scientist agreed, stating that "in urban settings most marriages are recorded in the Kazi's ledger, but in rural settings it depends. In the hinterlands or obscure places, it is doubtful that anyone bothers to go to the Kazi's office." The Naripokkho coordinator explained that in rural areas "there are many fewer Kazis, ... [so] the chances of being married by a Kazi ... are not as great. Kazis who go to urban homes to perform marriage ceremonies are less keen to do so in rural areas. As well, they may not write 'yes' for #18 [of the marriage contract]."

Additional information on marriage in Bangladesh can be found in BGD28420.EX of 29 January 1998. Additional information on the role of the Kazi in divorce proceedings can be found in BGD33257.E of 25 November 1999.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.

References

Ain-O-Salish Kendro (ASK). 1999. Human Rights in Bangladesh 1998. Dhaka: The University Press.

Coordinator, Naripokkho. 29 March 2000. Correspondence.

The Daily Star [Dhaka]. 9 April 2000. Amina Rahman Chowdhury. "Women Initiating Talaq: Tearing Away the Uneasy Bond." http://www.dailystarnews.com/ 200004/09/n0040909.htm#BODY1 [Accessed 10 Apr. 2000]

_____. 8 February 2000. A.H. Jaffor Ullah. "Tying the Knot Without Any Dowry and Without a Kazi." http://www.dailystarnews.com/200002/08/n0020802.htm [Accessed 10 Apr. 2000]

Human Rights Lawyer, Dhaka. 11 April 2000. Correspondence.

Professor, Department of Law, Brussels Catholic University. 12 April 2000. Correspondence.

Senior Research Scientist, New Orleans. 18 March 2000. Correspondence.

Additional Sources Consulted

Encyclopaedia of Islam. 1990.

Encyclopedia of Religion. 1987.

IRB databases.

Fatwas Against Women in Bangladesh. 1996.

The Laws of Marriage in Islam. 1995.

LEXIS-NEXIS.

The Marriage Contract in Islamic Law. 1992.

Marriage on Trial: A Study of Islamic Family Law. 1993.

Muslim Family Law.

Talaq-i-Tafwid: The Muslim Woman's Contractual Access to Divorce. 1996.

Women in Muslim Family Law. 1982.

Women Living Under Muslim Laws (WLUML).

Internet sites including:

Coordinating Council for Human Rights in Bangladesh (CCHRB).

Derechos Human Rights.

Holiday [Dhaka].

The Independent [Dhaka].

The Islam Page.

The Nation [Dhaka].

The New Nation [Dhaka].

News from Bangladesh [Dhaka]

South Asian Women's Network (SAWNET).