04/10/2023
📕 Dicussion: 4
📘Women’s Capacity of Marriage: National and International Perspective
✒️Imam Abu Hanifa in his famous book titled ‘Kanz-Al-Daqaiq’ stated that an adult virgin girl has the full right to get marry without the consent of her guardian. On the other hand according to schools of Shafi, Maliki, and Hanbali consent of the guardian is the essential condition to form a marriage so that an adult girl can not marry without the consent of her guardian but they liberal for a non-virgin girl where a non-virgin girl doesn’t require to take permission for her marriage. Now the present position of Shafi, Maliki and Hanbali sclars has been changed in different modern world regarding the virgin adult girl. In UAE if any contradiction is arisen between the girl and the guardian she may go to the court of law as early as at age of 15. According to Moroccan Family Code,2004 girls acquired equal capacity like the boys at the age of 18 years, the present Moroccan law recognized the guardian’ consent and role as a right of the bridegroom. Article 24 says’ Marital Tutelage is the woman’s right, which she exercises upon reaching majority according to her choice and interests and she may delegate its power to her father or one of her relatives. Along with this Algeria, Iraq, Jordan and many of the modern worlds favored to the girl regarding the consent of the marriage by way of Ijtihad. But in Bangladesh in ‘Shariat Application Act-1937’ doesn’t recognized any particular madhab so that we adopted the view of Hanafi law which is firmly established in the case of ‘Jamila Khatun vs. Rustam Ali’ that the court may adopt any of the view among different schools for the best interest of the society and that will not be the violation of the sharia law. Dr. Shipra Chaudhury and another vs. Gov. of Bangladesh and others in this case High Court of Bangladesh hold that forcibly marriage and dissolution is unlawful and it is right of a woman to get marriage and this right can not be taken away. Men and women of full age, without any limitation due to race, nationality, or religion, have the right to marry anyone to found a family. They are entitled to equal rights as to marriage, during marriage and its dissolution as stated in Convention on Consent of Marriage. We may claim that we are in the best position regarding the consent of a women inmarriage and we are complied with the concern of international and sharia law.
📖References:
1.The Moroccan Family Code (Moudawna), 2004.
2. Jamila Khatun vs. Rustam Ali, 48 DLR (AD) (1996)
3. Dr. Shipra Chaudhury and another vs. Gov. of Bangladesh and others,2009,38 CLC (HCD).
4.Convention on Consent of Marriage,Minimum Age for Marriage and Registratioj of Marriages,1962, Artcle 1, Entry into force:9 december 1964
5. Ekramul Haque, Muhammad Prof., Muslim Family Law, Sharia and Modern World, London College of legal Studies (south), Dhaka , June 2015,
Author
Md. Tanjimul Bari
Advocate, Judge Court, Dhaka.
