"The right of a Muslim husband to dissolve a marriage by merely pronouncing a talaq died in 1971 and It was given piecefull burial when the law of marriage act came into operation." Substantiate this statement

The right of a Muslim husband to dissolve a marriage by merely pronouncing a talaq died in 1971 and It was given piecefull burial when the law of marriage act came into operation." Substantiate this statement.

PRELIMINARY

Instant Talaq or "Triple Talaq" or "Talaq-e-Biddat" is an Islamic practice that allows men to divorce their wives immediately by uttering the word "talaq" (divorce) three times. The pronouncement can be by words of mouth or written, or as in recent times, delivered by electronic means - telephone, SMS, email or social media to those countries which allows talaq.  Tanzania is not a country which abide to religious laws but it allow civilians to profess any religion of their choice. Muslims and Christians have their own ways of dealing with marriage and divorce but their actions are limited/restricted by The Law of Marriage Act .

Before colonial period in mainland Tanzania, Islamic law, which governed Muslim marriages and divorces, was practiced alongside customary law. Alternatively, during most of the colonial period Islamic law was considered to be functionally synonymous with customary law. After it gained independence, Tanzania once again distinguished between customary law and Islamic law in judicial application of laws, rather than grouping them together as “native law” as was done during colonization. However, Islamic law scholar Robert Makaramba argues that this legislative distinction has become somewhat superficial in its application.

A statement that “"The right of a Muslim husband to dissolve a marriage by merely pronouncing a talaq died in 1971 and It was given peaceful burial when the law of marriage act came into operation."  Is affirmative. As we have seen above, before and during colonialism, customary and Islamic laws were used in marriage and divorce issues, the difference between these two ways of dealing with marriage and divorce created problems to legal system particularly rights of women. Most of Islamic and customary laws were unfair to women in division of properties, the laws were most favorable to men.

Due to legal problems created by customary and Islamic laws in marriage and divorce, to curb all these problems, in 1971, Tanzania now independent country enacted L.M.A  to correct unfairness, impropriety, irregularity and all forms of subordination against women. The Law of Marriage Act came with several steps and Procedures to be followed in dealing with divorce. These new procedures buried entirely the talaq pronouncement  authority by Muslim men in Tanzania.

PROCEDURES FOR DIVORCE UNDER THE LAW OF MARRIAGE ACT

Under the provisions of L.M.A, both Muslims and Christians are required to follow procedures introduced by the law in order to implement divorce. No person, department, board or tribunal is empowered to grant divorce to parties except only court of law. Parties who wish to end their union must follow the following procedures as stated in Law of Marriage Act .

A person who wish to petition for divorce, before starting any procedure, must make sure that the reasons for divorce provided under section 107(2) of L.M.A are available in his case. This is mandatory because lastly a court will issue divorce basing on these reasons, a court of law cannot grant divorce to any party applying it without proving that, (a)Adultery committed by the Respondent; (b) Cruelty, whether mental or physical, inflicted by the Respondent on the Petitioner or the children, if any in the marriage; (c) Willful neglect on the part of the Respondent; and (d) Desertion of the Petitioner by the Respondent among others. A Muslim man lack powers to pronounce talaq out the above reasons for divorce.

A requirement of two years of marriage. Section 100 of L.M.A provides that, only marriages with more than two years can be tried for divorce. Where the marriage has lasted for less than two years except where it is shown that exceptional hardship is being suffered by the person applying for such leave, a court may grant. A Muslim man who wish to divorce his wife must abide to this step, pronouncing talaq is not enough to affect marriage.

A requirement to submit marriage complaints before marriage re-conciliatory board. The Marriage Conciliation Board is a neutral third party board, which acts as an expert mediator with experience in the marriage matters. The function of the body is to reconcile the disputed parties and not to separate them, when happen the reconciliation board fail to reach reasonable solution, then the matter may be referred to court for full litigation.

Conciliation is an out of judicial process resolution instrument, through which parties under dispute can seek to an amicable dispute resolution  with the assistance of a third party who acts as a neutral party. Conciliation is a willingly, flexible and confidential. The third party is sought for the conciliation proceedings are known as a conciliator. The decision whether to settle depends on the parties.

In United Republic of Tanzania, the marriage conciliation boards are established under section 102 (1) of The Law of Marriage Act and the minister has been empowered by this law to establish marriage re-conciliation board in every ward. Apart from reconciliation boards under government, we have BAKWATA and CHURCH BOARDS which entitled powers to settle marriage matters under religious ways. The functions of these re-conciliatory boards is to try to settle the matter not to terminate marriage.  Under this perspective, a Muslim man cannot pronounce a talaq and expect it to be enough to affect marriage. It is mandatory to take the matter before BAKWATA to be tried prior taking it to court of law. During trial, BAKWATA will try to settle the matter, in case they fail to do so, parties will be given a certificate which will be used to petition for divorce.

CONCLUSION

By regarding the procedures above, a petitioner for divorce must make sure he/she has all requirements provided in section 107(2), reasons for divorce, the marriage must have lasted for more than two years or exceptional hardship as provided under section 100. And finally, a certificate of conciliation board as all marriage matters required to be tried first by reconciliation boards. From this point, a petitioner is free to file divorce petition.

Due these new legal requirements, talaq has lost its meaning or powers, pronouncing talaq is not working these days unless a proper procedure is followed. A statement that “"The right of a Muslim husband to dissolve a marriage by merely pronouncing a talaq died in 1971 and It was given peaceful burial when the law of marriage act came into operation."  Is affirmative.

Read this too : Learning notes on family law.

REFERENCE

BOOKS

Prennetta, JP Jr (2000) book review ‘Family Values and the New Society: Dilemmas of the 21st Century by George P Smith, II Connecticut: Praeger, 1998’ Journal of Contemporary Health Law and Policy 16.

Richards, MPM (1995) ‘Private Worlds and Public Intentions—the Role of the State at Divorce’ in A Bainham, D Pearl and R Pickford (eds), Frontiers of Family Law (Chichester, Wiley).

Carbone, J (1996) ‘Symposium: Ethics, Public Policy, and the Future of the Family: Morality, Public Property and the Family: The Role of Marriage and the Public/Private Divide’ Santa Clara Law Review 36.

Cretney, SM (2000) Family Law (London, Sweet & Maxwell). —— (1998) Law, Law Reform and the Family (Oxford, Oxford University Press).

STATUTE

The Law of Marriage Act, Cap 29 R;E 2010

The Children and Young Person Act, Cap 13 R;E 2002

WEBSITES

https://www.tanzanianweb.co.tz/2018/01/roles-of-court-and-marriage-re.html?m=1 (Accessed May 8 2021

https://www.mondaq.com/india/divorce (Accessed May 8 2021)