Scottish Law

The law in Scotland has a long and complicated history. It has its own distinct legal system including its own laws and Courts; it has developed from a variety of sources. Some of the laws in Scotland are different from those in England and Wale.
Before discussing Scottish legislation at 1st we need to know what legislation is. There are 4 sources of Scottish Law legislation is one of them. We know at present time Scottish Legal system considered a mixed legal system with England law and Northern Irish law. But in past time it was also mixed with Celtic, Welsh and also big contribution of Roman law. Scottish law recognizes four sources of law: legislation, legal precedent, specific academic writings and custom. The name of legislation is statuary law. Legislation is usually proposed by a member of the legislature.
The sources of Scottish legislation are in the following:
1. Parliament of the UK
2. Scottish Parliament
3. European parliament and
4. Council of European Union
In the United Kingdom, delegated legislation is also the name given to legislation or law that is passed otherwise than in an Act of Parliament (or an Act of the Scottish Parliament, Northern Ireland Assembly or National Assembly for Wales).

The delegated LEGISLATION IS a series of laws made by a body other that Parliament, under the authority of Parliament.  They are also a good example of secondary legislation.
Types of delegated legislation
Delegated legislation can take a variety of forms, each of which are for different purposes. Delegated legislation is used will be determined by the wording of the parent Act.
Orders-in-Council
Orders of Council
Orders are usually made by Ministers.
Directions

Form of legislation:
Legislation is the act of making laws. It can be when the laws are carried out. When new legislation is being up it begins as a bill. There are various types of bill, Private, hybrid and public bill. Public bill is the greatest part of the legislative program. These come in two forms, private member bill and government bill.
To making law, bill goes though several stages:

First review: this is a brief introduction of the bill to the house by the proposer who names the bill and date for the second reading.

Second reading: a general senate takes place but no amendments are allowed at this stage. A vote is taken and the bill mores on.

Committee stage: this is where real work is done as members of the committee debate the bill clause, amendments are made vote taken.

Report stage: the bill presented to the house and any new clauses debated with the government any charge which has been agreed in committee. In this stage no vote is taken.

Third reading: the bill is debated in principle and a vote taken. It is unusual for the bill not to be passed here.
After these stages have been concluded, the bill is sent to the other house and goes through the same procedure. Once both houses have agreed, the bill is sent for royal assent and comes into effect either immediately, at a specified date or in some cases in various stages.

Scottish Legislation (Law):
Alcoholetc. (Scotland) Act 2010
Arbitration (Scotland) Act 2010
Budget (Scotland) Act 2010
Control of Dogs ( Scotland) Act 2010
Patient Rights ( Scotland) Act 2011


The court, both in Scotland, England and some of European courts, are another source of Scottish law. The courts are very important in the Scottish legal system because they can change the law.
There are 3 kinds of court in Scotland as like UK
Civil Court
Criminal Court
Some other special Court

Civil Court: In Scotland the Civil Court Are as follows
Supreme Court of of the UK
Court of session
Sheriff Court
Criminal Court: The Scotland Criminal Courts
High Court of Judiciary
Sheriff Court
District Court
Justice of the Peace Courts

Special Court: In Scotland have also some special Courts other than civil and criminal court. Those are
Tribunal
Children’s Hearings ( i.e. In my country known as Juvenline Court)
Court of Lord Lyon

Other Court: other Court means when the court think the dispute can be solve alternative way and than is easier then the court rules and regulation so Joudge can transfer this. Like for
Alternative dispute Resolution (ADR)
Arbitration
Mediation.

The institutional writers are historical individuals who have recorded the developed and contributed to understanding the Scots law. Lawyers in the 17th and 18th centuries who wrote books setting out the principles on which Scots law is based is called institutional writers. Many of these principles were based on Roman law. Lawyers in Scotland today still look at what the institutional writers said about the law and apply these principles to modern day situations.
There are several institutional writers but the main ones are Stair, Bell and Erskine. The ideas that these individuals promoted are still debated in Scottish universities to this day and May even are used in court cases to illustrate important legal points. These individuals include:
Sir Thomas Craig who published Jus Feudale  in 1655. John Dalrymple, Viscount Stair, who published Institutions of the Law of Scotland in 1681.Lord Bankton who published An Institute of the Laws of Scotland in 1772. The institutional writers have not published anything since 1829.

Custom or long term practice may be looked on as a source of law, where no other source of law are available. However for a Court to treat custom as a source of law. It must not be contrary to any statutory legislation.
At present time Scottish legal custom plays historical rules. As it has been gradually eroded by statute and the development of the institutional writers' authority in the 19th century. Some examples in Scotland, such as the influence of UDAL LAW in Orkney and Shetland. However, its importance is largely historic with the last court ruling to cite customary law being decided in 1890.
So the Custom law is not using today, it has been over 100 years since any court used custom as a source of law.


Market Failure


At present time market failure is very important topic in the current business world. Because at present time many countries facing this problem. Generally market failure means when market are not able to go freely functioning about economic efficiency. Its means that when in a market the quantity of a product demand by the customers does not match to the supplied by the suppliers. In a simple word its means that when a market are not able to work optimally, that call market failure. We can set up a example for market failure. Like share stock market. At present time share price going to decrease day by day.

There are many reasons for market failure. Such as public goods, merit goods e.t.c.

Public goods: there are 2 kinds of goods one is non-rival and another is non-excludable. Public goods are non excludable good. Non-excludable goods mean that if the good is providing one time and no one can stop the benefiting from the product. Like Air defence systems, Roads / motorways, Public parks & beaches etc. This failure did as the goods being produced are of a nature that the market would under provide, over provide or even fail to provide, if the government did not intervene. So for stopping market failure government can play some rules and regulation of public goods. 

Merit goods: when for the insufficient information demerit goods are produce more then the demand, that time market will goes to fail. Because most peoples expecting good product.  So produce the merit good producer need to make sure how much he need to produce and is that acceptable to the consumer or not. a merit good is a product like education and when the imperfect information government think that consumers undervalue.

Externalities: Externalities means that 3rd parties economic activity. That means when a 3rd party is affected by the decisions and action of the others. One of the main reasons for market failure is no clearly defined of property right for those agents who are operating in the market. There are two kinds of externalities one is positive externalities another negative externalities. Negative externalities like Smoke. So solve this problem government need to make sure about the clear property right, like intellectual property, patent etc.

Imperfect competition: Another main reason for the market failure is imperfect competition. Competition is good for the market but not imperfect competition. The main reason is imperfect completion is differences in income and wealth between different groups within our economy. Which is lead to our living standards. And the values of judgements come into play when we distribute of wealth in the society. Government can play a vital rule for solve this problems. In my opinions government can take more tax from the reach peoples.


“Government Policy: Welfare Policy”
Whenever government make any rules and law there must be some conflict about that laws. So for achieving the main goal to the law there must need some resources there. So the government laws also an economic problem.
There are 2 kinds of government object:
Economic and
Non-economic.
A.
Welfare policy decisions are often made in the areas of education, health, and employment. My current Government policy on welfare is Education policy. Recently UK Government increase tuition fees for higher education.

B.
The government can make intervention by 2 ways one is taxation and other subsidies. when the market is going to fail that time the gorvernment is apply this rights. So I have chosen the policy on the based of following instruments ; 
1. Taxation and
2. Subsidies

Taxation : 
The purpose of taxation is to finance government expenditure. A tax "is not a voluntary payment or donation, but an enforced contribution, exacted pursuant to legislative authority" in the name of toll, tribute, tallage, gabel, impost, duty, custom, excise, subsidy, aid, supply, or other name. so its take very important role to the price of products.
So the Taxation can be seen as the opposite of a subsidy. In most cases taxes are levied because the market failure is that too many of the goods in question are being produced and this over- production is seen as imposing some from of cost to society.
Pollution , congestion, the use of de-merit goods are all examples. 

Subsidies: 
Subsidies is very opposite to tax and it is very eassy idea where the government give some impregnate to producer for more produce than the normal produce.A subsidy is an assistance paid to a business or economic sector. So it is a sum of money granted by the government or a public body to assist an industry or business so that the price of a commodity or service.
When Government help in a sector for public is called subsidy. For example, in Agriculture sector Government can supply instruments of half price, they can supply seeds and give them loan without interest from government bank. 
The industry where this is most obvious is agriculture, where the UK Common Agriculture Policy is held up as an excellent example of how subsidies can work but have numerous side effects. However , the principal also extends to other areas- housing , for example.
cause of the problem of rising house prices it is very difficult to get on the housing ladder, because there is not much low-cost housing available. Some councils have granted planning permission for new housing  for local people and not high price of that house. Others are looking for a public subsidy to ensure that low-cost housing is made available for those that need it.
From the example, we can conclude that the market failure is an insufficient amount produced to meet consumer needs. Finally subsidies bring positive externalities.
The concept of externalities - subsidies bring positive externalities, taxation reduces negative externalities. 

C.
Evaluation of the current Government policy in education :
The current Government Policy of education which is using within the UK is failure.
In intervening in the market, the government is seeking to correct the problem that has been identified generally using some from of subsidy, tax, regulation, direct provision or other method. The market failure may be partly corrected but may also have an impact on other related and non -related markets.
The problems surrounding so called government failure stem from a number of key areas ;
Lack of knowledge about what the public wants.
Lack of knowledge about the relative costs and benefits of a policy.
The distortion of markets, the price signal and incentives.
So called rent where the interests of powerful minority lobbyists get precedence over more pressing but less powerfully supported issues.

GRIEVANCE AND DISCIPLINE HANDLING

The grievance procedure is very important to resolution of conflict, both at the individual and collective levels. It designed to help and encourage all employees to achieve and maintain standards of conduct, attendance and performance. The company’s rules and this procedure apply to all employees. The main aims of the Grievance Procedure to ensure consistent and fair treatment for all parties. The company’s have rules and regulations to be followed by the employees to run the business for long term. If there is no Grievance procedure of the organizations, no one can run the organization for a long term with a fair and equal treatment to every employee. The procedure also plays an important role in the resolution of a conflict at the workplace by different ways for instance according to one of the main principles of the grievance procedure that no employee will be dismissed at a first breach of Grievance procedure, except in the case of gross misconduct when the penalty will be dismissal without notice or payment in lieu of notice. Moreover, when someone at work knowingly breach a clearly mentioned rule of the company may have less to breach it because of company’s direct action of dismissal about the misconduct. Most of company’s have this principle that no disciplinary action will be taken against an employee until the case has been fully investigated which help in promoting confidence among employees. It also has a principle of right of appeal for the employee to state his or her case before any decision is made. A grievance procedure is very important to maintain the business environment on the way to progress and prosperity.


QUENCH Ltd.
GENERAL PRINCIPLES
The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well defined and that an internal appeal mechanism is available. 
The following principles will apply to the application of this procedure: -
1. Procedures should be reviewed and up-dated periodically so that they are consistent with changed circumstances in the workplace, developments in employment legislation and case law, and good practice generally.
2. Wherever possible grievances should be resolved informally without recourse to formal procedures. It is expected that individuals will enter into the procedure in good faith, with the aim of resolving a particular issue. The grievance procedure should not be used as a substitute for normal day to day discussions.
3. Any steps taken under this procedure should be taken promptly, unless there is a good reason for delay.
4. If, on investigation, the grievance is found to be vexatious or trivial the Chief Excutive may dismiss it without further consideration. The employee will be advised accordingly.
5. All employees who are the subject of this procedure will have the right to be accompanied at any formal meetings held under this procedure by a trade union representative or work colleague.
6. All parties involved in these procedures must ensure that they maintain, as appropriate, the confidentiality of the process within and outside the company.
7. Timescales - Whilst every endeavor will be made to comply with timescales, due to the complexity and or specific circumstances of a case, timescales may be extended. In such circumstances the individuals concerned will be advised of the reasons for any delay.
8. Involvement of Human Resources - A member of the human resources team will be consulted and will advise on the formal process.
    
Disciplinary action may include: 
- An oral warning 
- A written warning
- A final written warning 
- Suspension without pay 
- Demotion 
- Some other appropriate disciplinary action short of dismissal
- Dismissal.
Below are the steps, which must be complied with when handling employee grievances and which must, as a minimum, be set out in the company grievance procedure:

A. Informal Procedure
1 Grievances can often be resolved quickly and informally through discussion with Chief Executive and there is an expectation that every effort will be made to resolve matters informally. Employees are therefore expected to raise any concerns or issues informally with their immediate Personal Manager / head of section (the Chief Executive).
2 Personal Manager will discuss an employee's concerns in confidence with him/her, make discreet investigations, as appropriate, and attempt to address his/her concerns fairly and promptly.
 
B. Formal Procedure
Stage One - Formal Resolution
If it is not possible to resolve a grievance informally, the employee should raise the matter formally, and without unreasonable delay, by putting his/her grievance in writing. The employee must set out the grievance in writing and send it to the employer. The Assistant personal manager will write to the employee acknowledging receipt of the grievance, normally within five working days. The Assistant personal manager will invite the employee to attend a formal grievance meeting in order to discuss the grievance. This meeting will normally take place within ten working days of the written acknowledgement. The out come of the meting must be communicated to the employee within 5 working days.
Stage Two-
If an employee not satisfied from stage 1 he need to inform personal manager and As a result of the initial grievance meeting, the personal manager may determine that it is necessary to make further enquiries and/or may appoint an investigating officer to conduct an impartial and thorough investigation into the background facts or into any allegations made by the employee. The results of the investigation will be provided to the personal manager in the form of an investigation report within 10 working days. The Personal manager will determine the outcome of the grievance. S/he may reject the grievance, or may uphold the complaint and indicate what steps have been/should be taken to resolve it. The manager will inform the individual, in writing, of the decision and the right of appeal normally within ten working days of receiving the investigation report or of the final grievance meeting/hearing. The employee will be given an explanation if this is not possible and will be advised when a response can be expected.
Stage Three - Appeal
If an employee remains aggrieved, s/he may write to the Director of HR within ten working days of the date of the decision under Stage 1, exercising his/her right of appeal. Appeals will be considered by the Chief Executive. And he will appoint an Appeal officer who will have had no prior involvement in the case. This procedure may, in the interest of natural justice. The decision may be given verbally at the appeal hearing and will in any event be conveyed or confirmed in writing within ten working days of the hearing. Any recommendations for further action will be clearly stated in the letter.
The decision following the appeal is final and there will be no further internal right of appeal.


The grievance procedure, which is used at the Wellbeloved District General Hospital, is fully related to A.C.A.S. recommendations. They have used the principles of A.C.A.S. as general principles. They have discussed their Grievance Procedure in four stages like A.C.A.S. 
In first stage the line manager of employee will arrange a meeting within three working days and the outcome of the meeting must communicated to the employee within three working days which is similar to A.C.A.S.
In stage two they are saying same rule of A.C.A.S., if employee is not satisfied an employee can raise the grievance in writing with the next most senior manager. The manager will arrange a meeting within five working days and he will also notify him within five working days.
In stage three the general manager will hear evidence from all parties and he will also communicate the outcome of the meeting in writing, to the employee which is also mentioned in A.C.A.S. procedure. 
And the final stage they have said about appeal but the procedure of A.C.A.S. they have said about appeal in stage three.
From the above discuss we can say that the grievance procedure of Wellbeloved District General Hospital is a very similar to A.C.A.S. recommendations.

Fair Dismissal


We know that there are some reasons for fair dismissal. Those are as following:
1. Misconduct;
2. Your capability or ability to do your job;
3. Redundancy;
4. A statutory restriction;
5. Some other substantial reason.
Now we discuss those reasons with some case reference

Blackman vs The Post office (1974)
Fact: In this case we can see that Blackman got the maximum number of opportunity during his job time but, and he still failed. He taken lots of chance for improve him, but he can’t, that why he was dismissed. It was held that as the taking of an aptitude test was a qualification requirement of that job his dismissal was fair.
But we know that, before dismissing an employee for incompetence, the employer should have give some time to change himself under the CODE OF PRACTICE ON DICIPLINARY PRACTICE AND PROCEDURE in employment. So no dismissal should be take place without formal warning providing the employee with an opportunity to redress his position. So Court of appeal held that the company had reasonable grounds for honesty for believing that he was incompetent.

British home stores v Burchell (1978)
Fact:  In this case plaintiff said that she was unfairly dismissed. Court also said that there is no reasonable reason for her dismissal. After that defendant was appeal to the higher court. This is an appeal by British Home Stores Ltd. against the decision of the Industrial Tribunal when they had to consider an application by Miss Burchell, said that in which she claimed that she had been unfairly dismissed by the present appellants. 
The prescriptions of sub-Para (8) Of Para 6 provided that, the evidence brought forward by management so as to discharge the burden, with the consequence that this was not, as we think, an unfair dismissal. So the appeal was allowed.

Williams vs. Compare Maxam Ltd (1982)
Fact: Compare Maxam Ltd was losing their business. So the company was wanted to reduce their employee. So the company was dismissed some employees. We know that redundancy is a fair reason for dismissal. Redundancies take place when there is no longer enough to work for an employee at a company. But the 5 workers claimed that their dismissal was unfair.
There is a generally accepted view in industrial relations that, in cases where the employees are represented by an independent union recognized by the employer, and reasonable employers will seek to act in accordance with the following principles:
The employer will seek to give as much warning from the employer;
The employer will seek to establish criteria for selection which so far as possible;
The employer will seek to ensure that the selection is made fairly;
The employer will seek to offer him alternative employment.
For these reasons the majority decision was not merely wrong, but wrong is that the decision offends common sense. So the judge Browne-Wilkinson J said that there was an error of law by reaching a conclusion so perverse on the facts. The dismissal selection was unfair.

Foot v eastern counties timber (1972)
Fact: In this case Mrs. Foot was employed as a wages and accounts clerk by the respondents. She was dismissed shortly after her husband. In this case the dismissal of a cashier who married her employer’s business competitor was held to be fair (Some other substantial reason). Because this is one of the reasons for fair dismissal.

Motivation theories

Theories: Motivation theories mainly classify into two different perspectives:
Content and ; Process theories. 

Content Theories: This theories deal with “what” motivates people and it is concerned with individual needs and goals. Content theories Says that motivation create for individual needs. At the 1st are physiological needs, which are the need of satisfy biological requirements for food, air, water, and shelter. After that safety needs – the need for a secure and stable environment and the absence of pain, threat, or illness. Belongingness is the need for love, affection, and interaction with other people.
So the content theories are as:
McGregor’s Theory X and Theory Y;
ERG Theory;
Herzberg’s Motivation-Hygiene Theory;
McClelland’s Theory
Herzberg theory: In this section, we discuss at the Herzberg’s theories of motivation that dominate organizational thinking today.
Herzberg was the first times proved that satisfaction and dissatisfaction at work nearly always arose from different factors. In 1959 Herzberg wrote the following useful little Article, which is very helping to explain this theory, i.e., that the factors which motivate people at work are different to and not simply the opposite of the factors which cause dissatisfaction:
"We can expand ... by stating that the job satisfiers deal with the factors involved in doing the job, whereas the job dissatisfies deal with the factors which define the job context."
The main perspectives of Herzberg theory is:
high and low attitude;
short and long term duration of feelings;
first and second level factors;
The interrelationship of factors.

Process Theories: This theory deals with the “process” of motivation and is concerned with “how” motivation occurs. Vroom, Porter & Lawler, Adams and Locke studied motivation from a “process” perspective. Process theories of motivation are about a cognitive rational process and concentrate on the psychological and behavioural processes that motivate an individual.
Process theories of motivation - Adam's Equity Theory
At a primary level, most people generally like to be in relationships where give and takes are about same. So if any person is getting too little from the relationship, then clearly they are going to be unhappy with this but it is also likely that the other person will also be feeling rather guilty about this imbalance. This is reinforced by strong social norms about fairness.

I Scotia Airway they have their goal. But the problem is that the relationship between the members was not good. So they are not getting their result. They should work with a good team work. And distribute their work to every one of the members.

The Scotia Airways needs to change their working strategy for survive in challenging international market and for earn healthy money. The investors of Scotia airways want to change their rules and regulation and adopt new strategy to earn good profit. But some of the workers and management members of Scotia Airways do believe that if they change their principle rules that mean change in culture and ethos, which is not a good thing for their self and also the company. In such condition management want to increase job performance, which can be done by team work, empowerment, job design, training and work organisation. 

In according to motivation theories I think they 1st of all management can be meeting all the member of Scotia Airways into a group. They can discuss about the matters with unsatisfied members. They should discuss their ideas and can come out with a loot of smart thinking. Management should involve the entire member into making of new decision and let the staff to set their own goals and targets. By doing this management will get their own result and also employees or unsatisfied members will be happy by doing this in their own way. (Goal Theory)

Senior management need to put the responsibility on the member of team by job enactment, and job rotation should be their for circular load which reduce the boringness from the work. Training should be given to the staff or every member of group and he or she feels to be involved in the work. In this way morale, confidence and skill of workers will improve. Most important think of this process is work with organisation. Which can be done by provide better equipment. Up to date material should be provided. The good environment can give his or her best out come. Modern Technology should be used as much as possible.

So, I think these are some methods like Process theories (Goal theory), and Content theories (Herzber) those can be improved the job performance of Scotia Airways.

Teamwork is the concept of people working together cooperatively as a team in order to accomplish the same goals/objectives. The most important method for achieve our desire goals and targets and destination is Team working. Teamwork is action performed by a team towards a common goal. A team is consisting of more than one person with different responsibilities. In business team work plays an vital role, as we know now a days complexity of business increase the threats of failure .in such type of situation team work is best method to work with. Team is not a gathering of people for enjoyment. Teams are built to achieve the goals.

A team is making by number of people. The number of peoples in a team can be few or can be many. The different type of people has different skill and ideas. By using these skill and idea a team can produce more flexible result. So, we can say that group of people who gather for some purpose is called team and work done by this team is called team work. Teamwork is important because it allows goals to be reached in an efficient and timely method. Teamwork combines many different skills from many people; allowing achievements to be made that could not be made alone!

I my personal opinion Scotia Airways need a team working because in present situation Scotia needs to make new destination and it needs different kinds of skill and ideas which can be getting from their members. This can be only possible with the help of team working.

Now we discuss the benefit which can be produced by team working:
Distribution of work with the all member of the can be easy;
Distribution of work can increase the interest of member in work.
It can be help to making better decision-in team number and the ideas can be emerged by team member. 
This can also feel equality-in team each and every member is involved to achieve the goal. 

There are also some costs of team working. Some time its need extra money to produce suitable environment in which teams can perform their jobs. Two different and good ideas for one matter can increase the sense of competition between two team members which is not good for team. This competition can become hindrance in the way of team.

Lastly we can say that if some one wants to a good result, they should needs some good ideas, skill and intention. This only can do by team working.

There are many numbers of methods which are very helpful for improving the team cohesion. I think improve the team performance and cohesion for Scotia Airways apply three main factors which can improve their organization. Those are as follows:
Clarity of goals;
Consultation;
Team size and objective. 

1st Clarity of goals is very important think which touch the performance. The organizations 1st need to fixe their own goal. In Scotia every employee should aware from his or her goal and target. Management should allow them to set their own goals to achieve success. If goals are clear it makes it easy for some one to choose right way to be there.

2nd Consultation is also another important factor which is very helpful for improving performance of Scotia. There are 80 staffs in Scotia Airways, they are working in different department. Meeting should be held which invite member from all departments in which they can share their views and solve the problems in short time.


3rd Team size also plays an important role. We know In Scotia Airways have a large numbers of employees, who work in different department. I think all employees should be divided in small groups so by this every one can take equal part in the work to be done very essay.

I think these are some factor that can be improved the team cohesion and performance of Scotia Airways.

knowledge acquired by learning and instruction

Knowledge acquired by learning and instruction; "it was clear that he had a very broad education"
An Education is an upcoming coming-of-age drama film directed by Lone Scherfig, written by Nick Hornby, and featuring an ensemble cast headed by newcomer Carey Mulligan. It is currently in post-production, and no official release dates have been announced.
What is education? The answer is, all elements in the opening paragraph and more, relate to education and all should be considered. This would be ideal and sounds good, but "all" is not possible where performance must be measured. Only what can be measured will be selected and the measuring tool is the written test. Anyone who does not have the ability to put clear thoughts on paper is labeled a failure. All natural skills, including knowledge processing, does not count. The fact is, what is exercised grows stronger, what is ignored stays dormant. The classroom exercises the collection of academics, leaving all other natural skills in the closet.
Test does not measure intelligence or ability; it does not measure how the mind processes information, how motivating experiences develop persistence, or how the mind sorts out instincts, opinions, evaluations, possibilities, alternatives. Knowledge by itself has no value, it is like a dictionary filled with words. Words by themselves have no value, it is the process of stringing them together that gives them value. How they are strung together determines the level of value. Now our education system is becoming a system that memorizes the dictionary. When students have memorized selected knowledge, then they will be given a one-day test, based on dictionary knowledge, which will influence employment opportunity for the rest of their life. Natural skills are not considered. Is this how America became the worlds' economic leader? NO! Knowledge only has value when used with a process and process in an artificial environment is not predictable or measurable.
Achievers in life use inspiration and motivation to overcome barriers. Teaching to the test does not inspire or motivate anyone, memorizing does not inspire a love to learn, in fact, it does just the opposite, it turns off the desire to learn. Education’s goal should be to develop a love to learn that stays with students throughout a lifetime. Education should be a lifetime experience, not limited to the youth years.
Educators are switching to test because there is a crisis in education of their own making and society wants measurable results. This pressure is passed on to political leaders who base political decisions on what is measurable, which is academic test and test are based on acceptance of the status quo. Ever student must now accept the status quo and be an academic intellectual or be labeled a failure. Natural talent and knowledge processing skills does not count. Students receiving the failure label are growing in numbers and percent, all because the system measures selected knowledge on a one day standardized paper test.

Consider the parent who is having a problem with a word processor. On their own, they can’t solve the problem. They have been collecting knowledge for years, but their knowledge processor is in hibernation. With any new gadget, someone has to teach them, they can’t figure it out for themselves. Their thirteen-year-old boy comes to the rescue. He has limited knowledge, but he knows how to processes available information. He explores the word process problem until he finds a solution. He is not unusually smart, this is a teenager’s natural approach to finding solutions.
All young children have a natural talent for creative process of information. It’s during the teen years that natural creative processing is replaced with the status quo. The status quo memorizes knowledge and forgets how to process it. In the classroom, memorizing is what counts. Standardized test reinforces the status quo. It kills creative processing ability. Status quo attitudes will follow them into adult life where they will have to ask their children for help.
Today, the education has a new tool on the market. Behavior control drugs. Any student who refuses to accept the status quo is labeled a troublemaker and will be drugged. The student now behaves in the classroom with glassy eyes and school officials receive high performance ratings. The student may get passing grades and land a job with a comfortable wage, but that will be all. Teenage dreams of great ambitions are gone.

Fact:
Self-made millionaires are not "A" students in the classroom. The way they process knowledge is in conflict with classroom priorities. The self-made millionaire has a vision, then he researches specific knowledge, applies intuitive knowledge and process all the elements, searching for a workable solution. Finding alternative ways to do common tasks makes millionaires. The secret is vision, research and processing, not pre stored knowledge.
The typical employer wants employees with dictionary knowledge, not visionaries. They want employees who follow orders, are willing to do repetitive tasks, be happy with a limited role, and accept the status quo. Repetitive tasks' is efficiency and this is where profits are made. Also, the status quo prevents the exposure of blunders by leaders. Too many blunders and profits disappear. In a status quo environment visionaries become bored quickly and soon receive the troublemaker label by offering alternatives or exposing blunders, sometimes leading to dismissal, yet, their ideas increase efficiency and create new sources of profits for the company. In the long haul, visionaries are the one’s who make above average wages no matter what their formal education level. The education system now has the tools to kill off this type of person, behavior control drugs! As these students move into the workforce, status quo and blunders will kill off the typical business.
What can be considered a quality education? A quality education is custom design that addresses the unique abilities of each student and has a positive emotional experience. Custom education evaluates natural talent and how the student learns. This is why home schooled students out perform classroom students. Parents learn what works and does not work, then focus on what works. With this method, students develop a love to learn and learning becomes a lifelong process.

The Purpose of Education
Education lays the foundation for the fulfillment of a person's dreams and aspirations. Education helps a person meet his/her career objectives and achieve an economic growth. Education builds a resourceful individual out of a raw human being. Education contributes to the cultivation of a prudent person and earns the person satisfaction of having met his/her goals. Education results in a sense of personal fulfillment and paves path for this feeling of fulfillment. An educated human being, having experienced the positive effects of education on his/her personality is bound to encourage the idea of education and effectively, educate his/her children. Hence one individual thus results in an educated family, taking education a long way along the future generations. One of the beliefs about the purposes of education is that education aims at creating good teachers!
The true purpose of education is to bring about profoundness to one's emotions, to broaden one's perspectives and to lead to a healthier approach of looking at life.
If today is a typical day on planet Earth, we will lose 116 square miles of rainforest, or about an acre a second. We will lose another 72 square miles to encroaching deserts, as a result of human mismanagement and overpopulation. We will lose 40 to 100 species, and no one knows whether the number is 40 or 100. Today the human population will increase by 250,000. And today we will add 2,700 tons of chlorofluorocarbons to the atmosphere and 15 million tons of carbon. Tonight the Earth will be a little hotter, its waters more acidic, and the fabric of life more threadbare.
The truth is that many things on which your future health and prosperity depend are in dire jeopardy: climate stability, the resilience and productivity of natural systems, the beauty of the natural world, and biological diversity.
It is worth noting that this is not the work of ignorant people. It is, rather, largely the result of work by people with BAs, BSs, LLBs, MBAs, and PhDs. Elie Wiesel made a similar point to the Global Forum in Moscow last winter when he said that the designers and perpetrators of the Holocaust were the heirs of Kant and Goethe. In most respects the Germans were the best educated people on Earth, but their education did not serve as an adequate barrier to barbarity. What was wrong with their education? In Wiesel's words: "It emphasized theories instead of values, concepts rather than human beings, abstraction rather than consciousness, answers instead of questions, ideology and efficiency rather than conscience."
The same could be said of the way our education has prepared us to think about the natural world. It is a matter of no small consequence that the only people who have lived sustainably on the planet for any length of time could not read, or, like the Amish, do not make a fetish of reading. My point is simply that education is no guarantee of decency, prudence, or wisdom. More of the same kind of education will only compound our problems. This is not an argument for ignorance, but rather a statement that the worth of education must now be measured against the standards of decency and human survival - the issues now looming so large before us in the decade of the 1990s and beyond. It is not education that will save us, but education of a certain kind.

SANE MEANS, MAD ENDS
What went wrong with contemporary culture and with education? There is some insight in literature: Christopher Marlowe's Faust, who trades his soul for knowledge and power; Mary Shelley's Dr. Frankenstein, who refuses to take responsibility for his creation; Herman Melville's Captain Ahab, who says "All my means are sane, my motive and object mad." In these characters we encounter the essence of the modern drive to dominate nature.
Historically, Francis Bacon's proposed union between knowledge and power foreshadows the contemporary alliance between government, business, and knowledge that has wrought so much mischief. Galileo's separation of the intellect foreshadows the dominance of the analytical mind over that part given to creativity, humor, and wholeness. And in Descartes' epistemology, one finds the roots of the radical separation of self and object. Together these three laid the foundations for modern education, foundations now enshrined in myths we have come to accept without question. Let me suggest six.
First, there is the myth that ignorance is a solvable problem. Ignorance is not a solvable problem, but rather an inescapable part of the human condition. The advance of knowledge always carries with it the advance of some form of ignorance. In 1930, after Thomas Midgely Jr. discovered CFCs, what had previously been a piece of trivial ignorance became a critical, life-threatening gap in the human understanding of the biosphere. No one thought to ask "what does this substance do to what?" until the early 1970s, and by 1990 CFCs had created a general thinning of the ozone layer worldwide. With the discovery of CFCs knowledge increased; but like the circumference of an expanding circle, ignorance grew as well.
A second myth is that with enough knowledge and technology we can manage planet Earth.. "Managing the planet" has a nice a ring to it. It appeals to our fascination with digital readouts, computers, buttons and dials. But the complexity of Earth and its life systems can never be safely managed. The ecology of the top inch of topsoil is still largely unknown, as is its relationship to the larger systems of the biosphere.
What might be managed are us: human desires, economies, politics, and communities. But our attention is caught by those things that avoid the hard choices implied by politics, morality, ethics, and common sense. It makes far better sense to reshape ourselves to fit a finite planet than to attempt to reshape the planet to fit our infinite wants.
A third myth is that knowledge is increasing and by implication human goodness. There is an information explosion going on, by which I mean a rapid increase of data, words, and paper. But this explosion should not be taken for an increase in knowledge and wisdom, which cannot so easily by measured. What can be said truthfully is that some knowledge is increasing while other kinds of knowledge are being lost. David Ehrenfeld has pointed out that biology departments no longer hire faculty in such areas as systematic, taxonomy, or ornithology. In other words, important knowledge is being lost because of the recent overemphasis on molecular biology and genetic engineering, which are more lucrative, but not more important, areas of inquiry. We still lack the the science of land health that Aldo Leopold called for half a century ago.
It is not just knowledge in certain areas that we're losing, but vernacular knowledge as well, by which I mean the knowledge that people have of their places. In the words of Barry Lopez:
"[I am] forced to the realization that something strange, if not dangerous, is afoot. Year by year the number of people with firsthand experience in the land dwindles. Rural populations continue to shift to the cities.... In the wake of this loss of personal and local knowledge, the knowledge from which a real geography is derived, the knowledge on which a country must ultimately stand, has come something hard to define but I think sinister and unsettling."
In the confusion of data with knowledge is a deeper mistake that learning will make us better people. But learning, as Loren Eiseley once said, is endless and "In itself it will never make us ethical [people]." Ultimately, it may be the knowledge of the good that is most threatened by all of our other advances. All things considered, it is possible that we are becoming more ignorant of the things we must know to live well and sustainably on the Earth.
A fourth myth of higher education is that we can adequately restore that which we have dismantled. In the modern curriculum we have fragmented the world into bits and pieces called disciplines and subdisciplines. As a result, after 12 or 16 or 20 years of education, most students graduate without any broad integrated sense of the unity of things. The consequences for their personhood and for the planet are large. For example, we routinely produce economists who lack the most rudimentary knowledge of ecology. This explains why our national accounting systems do not subtract the costs of biotic impoverishment, soil erosion, poisons in the air or water, and resource depletion from gross national product. We add the price of the sale of a bushel of wheat to GNP while forgetting to subtract the three bushels of topsoil lost in its production. As a result of incomplete education, we've fooled ourselves into thinking that we are much richer than we are.
Fifth, there is a myth that the purpose of education is that of giving you the means for upward mobility and success. Thomas Merton once identified this as the "mass production of people literally unfit for anything except to take part in an elaborate and completely artificial charade." When asked to write about his own success, Merton responded by saying that "if it so happened that I had once written a best seller, this was a pure accident, due to inattention and naiveté, and I would take very good care never to do the same again." His advice to students was to "be anything you like, be madmen, drunks, and bastards of every shape and form, but at all costs avoid one thing: success."
The plain fact is that the planet does not need more "successful" people. But it does desperately need more peacemakers, healers, restorers, storytellers, and lovers of every shape and form. It needs people who live well in their places. It needs people of moral courage willing to join the fight to make the world habitable and humane. And these needs have little to do with success as our culture have defined it.
Finally, there is a myth that our culture represents the pinnacle of human achievement: we alone are modern, technological, and developed. This, of course, represents cultural arrogance of the worst sort, and a gross misreading of history and anthropology. Recently this view has taken the form that we won the cold war and that the triumph of capitalism over communism is complete. Communism failed because it produced too little at too high a cost. But capitalism has also failed because it produces too much, shares too little, also at too high a cost to our children and grandchildren. Communism failed as an ascetic morality. Capitalism failed because it destroys morality altogether. This is not the happy world that any number of feckless advertisers and politicians describe. We have built a world of sybaritic wealth for a few and Calcuttan poverty for a growing underclass. At its worst it is a world of crack on the streets, insensate violence, anomie, and the most desperate kind of poverty. The fact is that we live in a disintegrating culture. In the words of Ron Miller, editor of Holistic Review.
"Our culture does not nourish that which is best or noblest in the human spirit. It does not cultivate vision, imagination, or aesthetic or spiritual sensitivity. It does not encourage gentleness, generosity, caring, or compassion. Increasingly in the late 20th Century, the economic-technocratic-statist worldview has become a monstrous destroyer of what loves and life-affirming in the human soul."

WHAT EDUCATION MUST BE FOR US
Measured against the agenda of human survival, how might we rethink education? Let me suggest six principles.
First, all education is environmental education. By what is included or excluded we teach students that they are part of or apart from the natural world. To teach economics, for example, without reference to the laws of thermodynamics or those of ecology is to teach a fundamentally important ecological lesson: that physics and ecology have nothing to do with the economy. That just happens to be dead wrong. The same is true throughout all of the curriculum.
A second principle comes from the Greek concept of paideia. The goal of education is not mastery of subject matter, but of one's person. Subject matter is simply the tool. Much as one would use a hammer and chisel to carve a block of marble, one uses ideas and knowledge to forge one's own personhood. For the most part we labor under a confusion of ends and means, thinking that the goal of education is to stuff all kinds of facts, techniques, methods, and information into the student's mind, regardless of how and with what effect it will be used. The Greeks knew better.
Third, I would like to propose that knowledge carries with it the responsibility to see that it is well used in the world. The results of a great deal of contemporary research bear resemblance to those foreshadowed by Mary Shelley: monsters of technology and its byproducts for which no one takes responsibility or is even expected to take responsibility. Whose responsibility is Love Canal? Chernobyl? Ozone depletion? The Valdez oil spill? Each of these tragedies were possible because of knowledge created for which no one was ultimately responsible. This may finally come to be seen for what I think it is: a problem of scale. Knowledge of how to do vast and risky things has far outrun our ability to use it responsibly. Some of it cannot be used responsibly, which is to say safely and to consistently good purposes.

Fourth, we cannot say that we know something until we understand the effects of this knowledge on real people and their communities. I grew up near Youngstown, Ohio, which was largely destroyed by corporate decisions to "disinvest" in the economy of the region. In this case MBAs, educated in the tools of leveraged buyouts, tax breaks, and capital mobility have done what no invading army could do: they destroyed an American city with total impunity on behalf of something called the "bottom line." But the bottom line for society includes other costs, those of unemployment, crime, higher divorce rates, alcoholism, child abuse, lost savings, and wrecked lives. In this instance what was taught in the business schools and economics departments did not include the value of good communities or the human costs of a narrow destructive economic rationality that valued efficiency and economic abstractions above people and community.
My fifth principle follows and is drawn from William Blake. It has to do with the importance of "minute particulars" and the power of examples over words. Students hear about global responsibility while being educated in institutions that often invest their financial weight in the most irresponsible things. The lessons being taught are those of hypocrisy and ultimately despair. Students learn, without anyone ever saying it, that they are helpless to overcome the frightening gap between ideals and reality. What is desperately needed are faculty and administrators who provide role models of integrity, care, thoughtfulness, and institutions that are capable of embodying ideals wholly and completely in all of their operations.
Finally, I would like to propose that the way learning occurs is as important as the content of particular courses. Process is important for learning. Courses taught as lecture courses tend to induce passivity. Indoor classes create the illusion that learning only occurs inside four walls isolated from what students call without apparent irony the "real world." Dissecting frogs in biology classes teaches lessons about nature that no one would verbally profess. Campus architecture is crystallized pedagogy that often reinforces passivity, monologue, domination, and artificiality. My point is simply that students are being taught in various and subtle ways beyond the content of courses.

Muslim Law


DOWER
Definition of ‘mahr’
BAILLIE: dower is not the woman for entering into the contract; but an effect to the contract imposed by the law on the husband as a token of respect for its subject, the woman

ABDUR RAHIM (On the basis of Hedaya): “ It is either a sum of money or other form of property to which the wife becomes entitled by marriage … It is an obligation imposed by law on the husband as a mark of respect for the wife … (This definition has adopted by Mulla also).

TYABJI: “Mahr or dower is sum that become payable by the husband to the wife on marriage, either by agreement between the parties, or by operation of law.”

The nature of dower
Mahmood, J; in Abdul Kadir v. salima, gives the best description of the nature of dower. He observes:

Dower, under the muhammadan law, is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of the marriage, and even where no dower is expressly fixed or mentioned at the marriage ceremony, the law confers the right of dower upon the wife as a necessary effect of marriage. To used the language of the hedaya, the payment of dower is in enjoyed by the law merely as a token of respect for its object (the woman), wherefore the mention of it is not absolutely essential to the validity of a marriage and for the same reason a marriage is also valid although a man were to engage in the contract on the special condition that there should be no dower.

Even after the marriage the amount of dower may be increased by the husband during converture; in this sense and no other can dower under the muhammadan law be regarded as Arabic textbooks of muhammadan law have compared it to price in the contract of sale it is simply because marriage is a civil contract under that law and sale is the typical contract which muhammandan jurist are accustomed to refer to in illustrating the incident of other contract by analogy.’’ (Italics are mine).

The line of reasoning based on the analogy of sale was criticised by Ameer Ali and by sir shah Sulaiman in anees begum v. mohd Istefa and in Wajid Ali khan case. Sir sulaiman observed:
“It is quite obvious that the analogy of sale cannot be carried too far. The marriage cannot be regarded as purely a sale of the person by the wife in consideration for the payment of dower.”

It was observed in this case that the similarity of dower to sale price cannot be pushed in too far nor can the principles the governing the sales of the goods be applied in all their details. For examples the contract of sale of goods can be cancelled if a portion of the price has not been paid. Even if the goods have been once delivered they may in such an even be returned. But if consummation of marriage has taken place and the wife at her could cancel a part of the dower remains unpaid, it would be absurd to think that marriage will. Moreover the question –whether the dower is the consideration for the first consummation of marriage only or whether it is the consideration for the first consummation of marriage only or whether it is the consideration for the society of the wife during the married life? –Could not be answered by applying the analogy of sale to dower money and marriage.

Islam insists that dower should be paid to the wife herself. It sought to make dower into a real settlement in favour of the wife a provision for the rainy day and socially a check on the capricious exercise by the husband of his almost unlimited power of divorce.

A husband thinks thrice before divorcing a wife when he knows that upon divorce the whole of dower would be payable immediately.
There is a classic example given by someone, which must be mentioned here. A person purchases a horse. To whom he must pay the price? Not to the horse itself, certainly. But to the owner. Thus, if dower be regarded as sale-price, it must be paid to the guardian of the wife. Since it is paid to the wife herself, it cannot be the price. It is a token of respect.


Kinds of dower:
Broadly, there are two kind of dower:(i) specified, and (ii) unspecified. But the specified dower has been further divided into- (a) prompt, and (b) deferred.

(i) Specified dower – An amount settled by the parties at the time of marriage or after, is called specified dower. If the bridegroom is minor, his father may settle the amount of dower, but according to Shia law, he will be so liable.

The husband is bound to pay the amount of the specified dower, however exercise or beyond the reach it may be. In oudh, however, the excessive amount may be curtailed to a reasonable amount.

Prompt and deferred dower: - prompt dower is payable on demand, and deferred dower is payable on the dissolution of marriage by death or divorce. The wife may realize the prompt portion of the dower at any time before or after consummation, but the deferred dower could not be so demanded.
In the case where it is not settled how much of the dower is prompt and what part of it is deferred, the Shia law holds that the whole of dower is prompt; the Sunni law, however, holds that only a part is prompt. This part is to be fixed with reference to (i) custom, or (ii) the status of the parties, and (iii) the amount of settled dower.

There are two aspect of the prompt dower (mahr-i-muajjal)- the time factor and quantum factor. Prompt in theory means immediately on demand or at the time of marriage, or at any time before consummation, or after consummation when demanded. In practice, however, it is seldom paid promptly at the time of marriage or even when demanded; and equally tardily demanded. We may illustrate the point with the facts of a recent case E.V. Kunhimariam Vs. O. Mammu. In the word of justice Sukumaran.


(ii) Unspecified dower: - in such case where dower has not been settled at the time of the marriage or after, it is fixed with reference to the social position of the wife’s family and her own personal qualification. Help would be taken by taking into accounts of dower fixed in case of wife’s sister, paternal aunts, etc., and according to the hedaya, the wife’s age, beauty, intellect and virtual will also be considered. Such dowers are called mahr-ul- misl.
Under school of Muslim law, even where the wife stipulates that she will not demand any dower, she remains entitled to it and the rule of estoppels will not apply to her. This implied dower is called proper dower, or customary dower or mahr-i-misl or mahr-ul-misl.


Subject matter of dower
The fitting subject matter of dower is not only confined to a sum of money or property; it includes personal services and other thing. The following were recognized as the subject of dower.
(i)                  A handful of dates (Abu Daud)
(ii)                A pair of shoes (Tirmizi)
(iii)               If the husband is a slave, his services to his wife (Mohit Sakhsee)
(iv)              The services of the husband slaves to the wife (Fatawa-i-Alam-giri)
(v)                Husband services rendered to the guardian o f a minor wife (Durrul Mukter)
(vi)              Teaching Koran to the wife (Tradition).

In fact, the main contention of the Muslim jurists is that anything, which comes within the defination of maal, can be the subject matter of dower.


Maximum and minimum amount of dower:

Minimum –hanafis-10 dirhams (Rs 5-6 after devaluation).
Malikis –3 dirhams (Rs  1.50-2 after devaluation).

Shafiis
Shias

Maximum – among Sunnis there is no maximum; any amount may be fixed. Fyzee cites an example based on his personal knowledge, of a dower amount of Rs 2,20,00,000.
Among some of the sects of shias, however, there is a tendency not to stipulate for a sum higher then the minimum fixed by the prophet for his favourite daughter Fatima, the wife of Ali, namely 500 dirhams (Rs 100 approximately).



Amounts of dower and conditions of payment

(1)    If the marriage is consummated, and is dissolved by death:
(a)    Whole of the specified dower, or
(b)   Proper dower if unspecified,
(c)    Specified or proper dower, whichever is less, in the case of irregular marriage.


(2)    If the marriage is not consummated, and is dissolved by the act of party;
          (i) When divorce by the husband – 
(a)    Half of the specified dower,
(b)   A present of three articles, if unspecified 
(ii) When divorced by the wife: no dower.
    (iii) If the marriage is irregular in the case.
                  (1) and (2) above.


Bangladesh: 
The role of the Kazi (Kadi, Qadi, Qazi; Islamic judge) in Muslim marriage Research Directorate, Immigration and Refugee Board, Ottawa 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.


Pre-Islamic background:
Among the pre-Islamic Arabs, the power of divorce possessed by the husband was unlimited. They could divorce their wives at any time, for any reason or without any reason.
According to Abdur Rahman at least four various types of aissolution of marriage were known in pre-Islamic Arabia. These are talaq, Ila, zihar and khula.


After the advent of Islam
The prophet of Islam looked upon these customs of divorce with extreme disapproval and regarded their practice as calculated to under the foundation of society. It was impossible, however under the existing condition of society to abolish the custom entirely. The reforms of Prophet Mohammad marked a new departure in the history of eastern legislation. Ameer Ali asserts:
       “The permission (of dower), therefore, in the Koran though it gave a certain countenance to the old custom, has to be read in the light of the law-giver’s own enunciation. When it is borne in mind how intimately law and religion are connected in the Islamic system it will be easy to understand the bearing of his words on the institution of divorce.”
Fyzee says that it is sometimes suggested that the greatest defect of the Islamic system is the absolute power gives to the husband to divorce his wife without cause. Dower to some extent restricts the use of this power.


Modes of dissolution of marriage
Among the books on Muslim law, including that of Baillie, Willson, Tyabji, Ameer Ali, Mulla and Saksena, Fyzee has given the best classification of divorce. His method of classification is more scientific and easy to grasp and hence, it has been adopted here with little additions.


        Classification:
A. By the death of husband or wife
B. By the act of parties

By the husband:                
(i) Talak:
(a)    Talak-us-sunnat: Ahsan (most approved)
                                   Hasan (approved)

(b)   Talak-ul-biddat: triple divorce. One irrevocable divorce (generally in written)
            (ii) Ila (vow of continence).
            (iii) Zihar (injurious comparison).

By the wife:
         Talak-e-tafwid (delegated divorce).

By mutual consent:
(i)      Khula (redemption).
(ii) Mubarat (mutual freeing).

By judicial process
1.       Lian (redemption).
2.       Faskh (judicial annulment).

A.      By the death of husband or wife- It is clear and natural that with the death of husband or wife the marriage tie comes to an end. When the wife dies, the husband may remarry immediately, but in case of husband’s death, widow has to wait till the expiry of iddat (4 months and 10 days, or if pregnant, till delivery).


B. By the act of parties
1. By the husband:
(i)                  Talak: talak means by dissolution of marriage. In its literal sense this Arabic word means “taking off any tie or restraint”, and in law it signifies the dissolution of marriage. In hanafi law, no special form or phrase is necessary to pronounce talak. The Ithna in ashari law, however, insist on strict adherence to a from, that is, must be in the Arabic language uttered orally, in the presence and hearing of two male witnesses, who should be honest and virtuous Muslim. Even the presence of the wife is not required. In fact, while facing proceedings for maintenance, as for example under section 488, CrPC, it is a common practice for the husband ti take the plea that he had pronounced talak on his wife, and the court regard it as a conclusive fact of completed divorce.                 

(a)    Talak-us-sunnat. That is, a talak which carries the approval of the prophet. It may be in the most approved form, i.e., ahsan; or hasan, i.e., simply an approved forms.

Ahsan- hedaya brands it as the most laudable divorce, where the husband repudiates his wife by a signal pronouncement in a period of tuhr (purity, i.e., when the wife is free from her menstrual courses), during which he has not had intercourse with her, and then leaves her to the observance of iddat. The divorce remains revocable during the iddat, and the parties retain the right of inheritance. After the iddat period lapsing without revocation, the talak becomes final and irrevocable.

Hasan: in talak hasan, the husband successively pronounces divorce there time during consecutive periods of purity (tuhr). It is therefore, ‘a divorce upon a divorce’, where the first and second pronouncements are revoked and followed by a third, only then talak becomes irrevocable. It is also essential that no intercourse should have taken place during that particular period of purity in which the wife is in tuhr, without having intercourse with her, the husband pronounces talak. Then he revokes it by words or by intercourse. Menstruation follows. Again when she is tuhr, and before intercourse, the husband pronounces talak. Now during tuhr, without having had intercourse, he pronounces talak. This is final, and divorce becomes irrevocable.

(b)   Talak-ul-biddat. - Here the husband does not follow the approved form of talak of talak i.e., talak –us-sunnat, and neither pays any attention to the period of purity nor to the abstention from intercourse. This was an escape lane from the restrictions imposed by the prophet, as we saw just above. As by the prophet on the facility of repudiation interfered with the indulgence of their caprice, endeavourer to find as escape from the strictness of law and found a loophole to effect their purpose.

Talak- when becomes irrevocable. - (i) talak ahsan becomes irrevocable on the completion of the period of iddat.   (ii) Talak Hasan comes into force on the very point when the third pronouncement is made. Iddat factor has no influence on it.    (iii) Talak-ul-biddat of both types-triple and signal-also becomes irrevocable right on pronouncement.   (iv) In case of unconsummated marriage talak becomes irrevocable right on pronouncement.  (v) A written talak comes into effect from the moment of its execution, unless it is ambiguous.                 

(ii)                Ila (vow of continence). - Ila is when a person swears that he will not have sexual intercourse with his wife and abstains from it for four month, the divorce is affected. The Hanafi jurists argue that since the husband acted
Unjustly towards his wife, it is equitable that on the expiration of four months the should be deprived of the benefit of marriage. The shafiis and shias consider that such a vow does not amount to divorce, but only gives the wife a ground to seek judicial divorce. In Sunni law legal proceedings are not required. The intent of the husband must be expressed clearly. Even after the expiry of 4 months the husband can cancel ILA with the assent of the wife. ILA is not in practice in India.

(iii)               Zihar (injurious comparison). –Zihar signifies a husband’s comparison of his wife with his mother or any female relation within the prohibited degrees. In zihar, the usual phrase is “thou art to me as the back of my mother”. According to ameer Ali the intention of the husband must be to show disrespect to the wife. Zihar is also out of vogue. These words do not naturally come to Muslims in India.



2. By the wife. - Talak-e-tafwid (delegated divorce).

Baillie defines it as follows.

            “As a man may in person repudiate his wife, so he may commit the power of repudiating her to herself or to a third party.”
That is, the husband may delegate the power of divorce to his wife. He may do not so at the time of marriage contract or any time when he so likes.
    This doctrine is peculiar to the Muslim law and has no parallel in other system. The Indian high court have repeatedly held as valid the agreement by which the husband authorizes the wife to divorce her-self from him in the event of his marrying a second wife without her consent.


3.       By mutual consent.
        
(i)                  Khula (redemption) - if the mutual relationship between the husband and wife is not good, the wife, if she so desires, may seek a khula divorce, e.g. by relinquishing her claim to the dower. A husband may similarly propose a khula divorce; the wife or refuse it. If she accepts, it means that she relinquished the right to get dower from her husband. Khula may be for any consideration-dower, money, property, etc.        

(ii)                Mubarat (mutual freeing). - When the divorce is effected by mutual consent of the husband and wife, it is known as mubarat’ at (i.e. freeing one another mutually).

Iddat is compulsory after mubara’ at as after khula. Aquil Ahmad notes the following points of difference:


-Redemption of the contract of marriage
-Mutual release from the marital tie.
-Offer comes the wife, husband accepts
-Any party may make the offer, the other side accepts.
-Consideration passes from wife to husband
-No question of consideration
-Aversion is on the side of the wife
-Mutual aversion

B.    By judicial process:
                                                                                                                           
(i)                  Lian (mutual imprecation). -The wife is entitled to sue to for a divorce on the ground that her husband has falsely charged her with adultery. At the hearing of the suit, the husband had two alternatives: (a) he may retract (withdraw) the charge before the end of the trial, in which case the wife could not get a divorce, or (b) to persist in his attitude, whereby he will be required to accuse his wife on oath. This is follow by oaths of innocence made by the wife. After these “mutual imprecation”, the court dissolves the marriage. In a lian suit the burden of proof lies on the wife. According to malik this holding is against Muslim law where it is provided that the husband must prove the charge of adultery or suffer the consequences.


(ii)                Faskh (judicial annulment). - Faskh means annulment. It refers to the power of kazi (in India, law court) to annul a marriage on the application of the wife. The law of faskh is founded upon Koran and traditions, “if a woman be prejudiced by a marriage, let it be broken off”. (Bukhari). In India, such judicial annulments are governed by section 2 of the dissolution of Muslim marriage act, 1939. Prior to the act, the Muslim woman could apply for dissolution of marriage under the doctrine of faskh on 4 grounds:
                
(a)    The marriage was irregular,

(b)   In exercise of the right of option- khyar-ul-bulugh,
(c)    The marriage was within the prohibited degrees of relationship,
(d)   Post-marriage conversion of the parties to Islam.

Effect of divorce:
(i)                 Cohabitation becomes illegal between the couple.
(ii)                Dower becomes payable to the wife.
(iii)               The husband and the wife are entitled to inherit from the other, if either of them dies during iddat following a revocable divorce. No right of inheritance arises in irrevocable divorce.
(iv)              The wife becomes entitled to maintenance during the period of iddat.
(v)                Remarriage between the couple is only possible after observing a strict procedure. Remarriage with another man can be contracted by the widow after observing iddat only.



 Grounds of decree for dissolution of marriage:
    
A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the husband of the following ground, namely: -
(i)                  That the whereabouts of the husband have not been known for a period of four years;
(ii)                That the husband has neglected or has failed to provide for her maintenance for a period of two years;
(iii)               That the husband has been sentenced to imprisonment for her of seven years or upwards;
(iv)              That the husbands has failed to perform, without reasonable cause, his marital obligations for a period of three pears;
(v)                That the husband was impotent at the time of the marriage and continues to be so;
(vi)              That the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;
(vii)             That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years:
Provided that the marriage has not been consummated;
(viii)           That the husband treats her with cruelty, that is to say;
(a)    Habitually assaults her or make her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
(b)   Associates with woman of evil repute or leads an infamous life, or
(c)    Attempts to force her to lead an immoral life, or
(d)   Disposes of her property or prevents her exercising her legal rights over it, or
(e)   Obstructs her in the observance of her religious profession or practice, or
(f)     If he has more wives then one, does not treat her equitably in accordance with the injunction of the Koran.

(ix)              On any other ground which is recognized as valid for the dissolution of marriage    under Muslim law. Provided that-
(a)    No decree shall be passed on ground (iii) until the sentence has become final;
(b)   A decree passed on ground (i) shall not take effect for period of six months from the date of such decree, and if the husband appears either in person or through an authorized agent within that period and satisfies the court that he is prepared to perform his conjugal duties, the court shall set aside the said decree; and
(c)    Before passing a decree on ground (v) the court shall, on application by the husband, make an order requiring the husband to satisfy the court within a period of one year from the date of such order that he has ceased to be impotent and if the husband satisfies the court within such period, no decree shall be passed on the said ground.


Lecturer _ Farhana Madam.