A Comparative Study on Women’s Right in Bangladesh under Hindu and Muslim Personal Laws



Introduction
     
The term women's rights refer to freedom and entitlements of women and girls of all ages. These rights may or may not be institutionalized, ignored or suppressed by law, local custom, and behavior in a particular society. These liberties are grouped together and differentiated from broader notions of human rights because they often differ from the freedoms inherently possessed by or recognized for men and boys, and because activists for this issue claim an inherent historical and traditional bias against the exercise of rights by women and girls.[1]                                                                                         Issues commonly associated with notions of women's rights include, though are not limited to, the right: to bodily integrity and autonomy; to vote(suffrage); to hold public office; to work; to fair wages or equal pay; to own property; to education; to serve in the military or be conscripted; to enter into legal contracts; and to have marital, parental and religious rights. Women and their supporters have campaigned and in some places continue to campaign for the same rights as men.[2]                                                         All family laws- Hindu, Muslim, Parsee, Sikh, Jain and Christian personal laws-have certain common features. All of them recognize the man as the head of the household, they sanction patrilineage and patrilocality, they treat women as men’s property and consider the father to be the natural guardian and they perpetuate double standards in sexual morality and property rights. It is common knowledge among those reasonably acquainted with law that women are greatly deprived of their rights within the laws that govern crucial aspects of the man woman relationship: marriage and divorce, custody of children and guardianship rights, alimony and maintenance for divorced women as well as property rights. The question of women has acquired great importance throughout the world today among all communities. This is for obvious reasons. For centuries, women have been in total subjugation in male-dominated patriarchal societies. It has been a “natural law” to regard women as the inferior sex and for them to submit to male authority for the smooth functioning of society in its day to day progress.

The women in Bangladesh have to deal with little to no rights. Women’s rights are definitely an issue in Bangladesh it is starting to become better but yet at a very slow speed. Many men do not agree with women acquiring equal rights as men because of religious reasons. Some connections to women’s rights matter in Bangladesh are caused from education to religion to legal issues.[3]                                                               Women’s rights in Bangladesh have been an issue for decades. One of the main reasons for this problem is the religion of the country. Now the government is starting to put rules in order to protect and grant women more rights.  As of today there are three laws that are set in place for women, Anti-Dowry Prohibition Act of 1980, Cruelty of Women Law of 1983 and the Women and Children Repression Act of 2000.² These laws have helped women out, but they aren’t strongly enforced, therefore, there are still many issues that aren’t taken care of. The main reason for why these rules are not being strongly enforced is because of religious conflicts. Muslims follow a certain guide line of rules which states that women aren’t to have equal rights as men. Men have made protest against the government for making those laws; they don’t think it’s right that women should be allowed to have the same rights as the men. Men say that some of the policies that are being made are against the Quran and that they are against the teachings of the Quran. The Quran is a Holly and divine text that the Muslims follow. The scenarios are almost same in Hindu community. The laws relating to women’s right are believed to be oriented from Holly Scriptures which can not be altered or modified for the religious sentiment that does not allow the radical changes in customs and rules which have been prevailing for hundreds of years. It is difficult for the government to set any clear and enforced law.[4] The rights for women in Bangladesh are becoming a big issue that is slowly getting better, but there are still a lot of incidents where women are suffering.



Law relating to women’s right

The Bangladesh Constitution declares equal rights for men and women in all spheres of public life.[5] The word 'public' seems to be a major clue to solving this riddle. It is only in the spheres of state and public life that equality is guaranteed through the Constitution. This means that in the private or personal sphere women are pretty much on their own. So even if her husband for whatever reason continuously tortures a woman, until she is killed, the state is unlikely to intervene, as it is we say, too gentlemanly to invade the privacy of the individual. The result is that women continue to be treated as inferior human beings by their husbands and by a society that tends to victimize victims instead of helping them.
Trying to understand the dichotomy of public and private spheres of our legal system is like squirming around in quicksand-- the more you want to get out the deeper you get stuck in the muck. According to Faustina Pereira, a Supreme Court Advocate and author of the book 'Fractured Scales' that deals with this very issue, the legal system of Bangladesh is categorized into two distinct branches. One is Constitutional Law and the other is General Law or those that are not directly governed by the Constitution. The Constitution being the supreme law of the land demands that any law inconsistent with its provisions is void. Thus laws considered under the General Law must technically confirm to the constitution. But if we try to get a firm grip on what ‘General Law’ consists of, it becomes clear why so many women prefer to silence rather then seek legal help. [6]

2.1. Women’s Rights under the Family Laws
The General Law consists of civil and criminal laws, which are governed respectively by the Code of Civil Procedure of 1908, the Penal Code of 1860 and the Criminal Procedure Code of 1898. The Personal or Family Laws are under the General Law but mostly are governed by the civil law: the matters which directly affect women such as marriage, divorce, dower, maintenance, guardianship, custody, inheritance and restitution of conjugal rights are separately governed by each religious community's "religious personal law" system. For example, take marriage. Muslim parties, says Pereira, are regulated by, among others, the Muslim Family Ordinance 1961 or the Muslim Marriages and Divorce (Registration) Act 1974. Hindu parties are regulated by (among others) the Hindu Marriages Disabilities Removal Act 1946 or the Hindu Widow's Remarriage Act 1856. Christian parties to marriage meanwhile, come under the Christian Marriage Act 1872.
The existence of separate laws for each community means that the kind of justice meted out to a woman is determined by the religious community she belongs to. Most of these laws are antiquated and originated from patriarchal mindsets and therefore do little to change the status of women from helpless, inferior citizens.

2.2. Women’s Rights under the Constitution
Even some of the articles in the Constitution are patronizing towards women. Article 28 (1) states: The State shall not discriminate against any citizens on the grounds of religion, race, cast, sex or place of birth. But then Article 28 (4) states: Nothing in this article shall prevent the State from making special provisions in favour of women and children or for the advancement of any backward section of citizens. In “The Fractured Scales” by ‘Faustina Pereira, She said, Lumping women with 'any backward section of the citizens', prejudicially protective, paternalistic attitude. The language of the law, all law, till now, has been the language of patriarchs.
1.      Article 7 of the Constitution declares that any existing law of the state which is inconsistent with any provision of the Constitution shall be void.
2.      Articles 27, 28 and 29 of the Constitution declare the principles of non discrimination.
3.      As per Articles 36, 39 and 65 of the Constitution, a woman has the right to seek nomination and contest for any political opposition.
  1. Article 28(2) of the Constitution states that women shall have equal rights with men in all spheres of STATE and PUBLIC life.

2.3. Gender Discrimination in Citizenship
There are also constitutional laws that directly discriminate against women. The Citizenship Act of 1951, for example, states that only a man can transmit nationality. A woman does not have the right to transmit her nationality to her children or husband. Strangely this prejudicial law has existed for decades in other parts of South Asia such as India, Pakistan and Sri Lanka. In 1992 however, the Citizenship Act of India 1955, was amended to allow both men and women equal right to transmit their nationality to their children and spouses. In Bangladesh the Citizenship Act, relegates women to second class citizenship. The Factories Act 1934, The Tea Plantation Labour ordinance 1962 and The Shops and Establishments Act 1965, gravely restrict women's right to movement or choice of employment. These laws prohibit employment of women and children between the hours of 8p.m. and 6a.m.[7]

2.4. Some legal attempt to remove Gender Discrimination
There have been some attempts in recent years by governments to safeguard women's legal rights and improve their social status. The Dowry Prohibition Act of 1980 forbids anyone from giving or receiving dowry although the practice is still very prevalent in our country which indicates the lack of enforcement. The “Nari-O- Shishu Nirjatan Daman Ain 2000” (Law on the Suppression of Violence against Women and Children 2000), has for the first time expanded the definition of rape considerably although it does not acknowledge marital rape. Sexual assault and sexual harassment have been made punishable offences under this Act. The overall character of this new law is reflective of same level of participatory effort; the law on children is one of the best examples of the workings of a clear distinction between religion as a private matter and the area of personal welfare of citizens as subject to state intervention. The laws on children and personal disputes relating to children such as the Guardians and Wards Act, the Majority Act and the Child Marriage Restraint Act, are all applied uniformly to all children and citizens of Bangladesh, irrespective of gender or religion despite these areas being clearly within religious-personal sphere of citizen's lives.

2.5. Bangladesh is a member of CEDAW but under reservation
New laws have to be formulated to reflect Bangladesh's concurrence with international laws such as the Universal Declaration of Human Rights and CEDAW. While religion and culture have to be respected, violations of basic human rights in the name of religion or tradition must be categorically condemned and shunned by the laws of the land. Most importantly laws that govern both public and personal spheres must be compatible to the Constitutional laws and be equally applicable to all citizens irrespective of sex, religion or the community they belong to.
Bangladesh continues to maintain reservations Articles 2 and 13(a). In September 2000, Bangladesh became the first country to ratify the Optional Protocol to CEDAW which ensures the implementation of the tools to eradicate discrimination. Maintaining such reservation to the very pledge to eradicate such discrimination is therefore contradictory and makes the sincerity of the state to remove gender discrimination, questionable.
Under Article 2, states are required to domestically enforce CEDAW, adopt appropriate legislation and other measures to prohibit all discrimination against women, modify or abolish existing laws, regulations, customs and practices which constitute such discrimination. Other articles of the Convention deal with many of the pressing issues that concern women such as women's right to determine their own and their children's nationality and removal of discrimination in education, employment, healthcare, social and economic benefits.
Part IV of CEDAW calls for equality before the law and equality within marriage and family law. Articles under this component for example guarantees the same legal capacity as men to contract, administer property, appear in courts or before tribunals; freedom of movement the right to choose where they will live; equal rights and responsibilities of women with men in marriage; the right to choose when they will have children, to choose their family name or occupation; and equal rights and responsibilities regarding ownership, management and disposition of property.
 So ultimately the goal of the CEDAW can not be gained by restricting thus articles. So it can be said in a sense that the CEDAW is inactive in Bangladesh.
2.6. Other International Conventions & Reports to Treaty Governing Bodies Bangladesh acceded to the ICESCR in 1998 with a number of declarations. The interpretative declaration relating to Articles 2 and 3 of the Covenant states that equality of rights between men and women is to be implemented in so far as they agree with the Constitution of Bangladesh and, more specifically, subject to Bangladeshi state inheritance law.                                                                                                      Bangladesh acceded to the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages in 1998 with reservations to Articles 1 and 2, stating that the treaty would be applied in accordance with the Personal Laws of different religious communities of the country, and allowing for a dispensation as to age, for serious reasons, in the interest of the intending spouses.
2.7. Gender Violence: Laws under the Penal Code 1860:                                             Of the causing of Miscarriage, of injuries to unborn Children, of the Exposure of infants, and of the Concealment of Births:                                                            
1.       Sec.312: Causing miscarriage
  1.  Sec.313: Death caused by act done with intent to cause miscarriage if act done without women’s consent
  2. Sec. 354: Assault or criminal force to woman with intent to outrage her modesty (Of Kidnapping, Abduction, Slavery and Forced Labour)
  3. Sec.359 kidnapping Sec. kidnapping
  4. Sec.362 Abduction Sec. Abduction
  5.  Sec. 366: Kidnapping, abducting or inducing women to compel her marriage etc.
  6.  Sec. 366A: Procreation of minor girl
  7.  Sec.366B: Importation of girl from foreign country
  8.  Sec. 372: Selling minor for purposes of prostitution
  9.  Sec. 373: Buying minor for purposes of prostitution (Of Rape)
  10.  Sec. 375: Rape
  11.  Sec.376: Punishment of Rape (Of Offences Relating to Marriage)
  12.  Sec.493 Cohabitation caused by a man deceitfully inducing a belief of lawful marriage
  13.  Sec 494: Marrying again during lifetime of husband or wife.
  14.  Sec.495: Same offence with concealment of former marriage from person with whom subsequent marriage is contracted.
  15.  Sec.496: Marriage ceremony fraudulently gone through without lawful marriage.
  16.  Sec. 497: Adultery.
  17.  Sec.498: Enticing or taking away or detaining with criminal intent a married woman. (Of Criminal Intimidation, Insult and Annoyance)
  18.  Sec 509: Word gesture or act intended to insult the modesty of a woman.

2.8. Other laws; relating to violence against women
  1. Dowry Prohibition Act, 1980
  2.   Nari O Shishu Nirjaton Daman Ain , 2000
  3.   Acid Crime Prevention Act, 2000.
  4.   Acid Control Act, 2000.
                                                        

Women’s Right under Hindu and Muslim Personal Law;
                                        A Comparative Study        


3.1. Women’s Right under Muslim Law                                                                                                                                                                                                                             3.1.1. Status of Women under Muslim Law
The purpose of women, according to the Quran, is to compliment men. Women’s rights to employment and participation in public life, freedom of movement and freedom of organization, are severely restricted through a combination of the Shari’a principles of qawam (men’s guardianship over women),[8] hijab (the veil) and segregation between men and women. Examples of women’s inequality can be found in the administration of justice and in certain aspects of family law. A woman’s judicial testimony is deemed to be of half the value of that of a man, in civil cases, and is not accepted at all in serious criminal cases.[9] In certain types of wrongful homicide, monetary compensation paid to the heirs of a female victim is less than that paid to the heirs of a male victim and a woman’s share in inheritance is half that of a man’s. Additionally, no woman may hold any public office which involves exercising authority over men.[10]                                       In addition, one verse of the Qur’an seemed not only to confirm the inferior role of women but also to sanction wife-beating. This verse states:                                        “Men are the maintainers of women because Allah has made some of them to excel others and because they spend out their property; the good women are therefore obedient, guarding the unseen as Allah has guarded, and (as to) those on whose part you fear desertion, admonish them, and leave them alone in the sleeping-places and beat them; then if they obey you, do not seek a way against them; surely Allah is High, Great.”[11]
The status of women in Islam is complicated by the fact that scholarly interpretation of the Qur’an may have been subject to the biases of those who stood to benefit by a society that favored their gender. Women played no part in interpretation of the Qur’an, and their absence “has been mistakenly equated with voiceless ness in the text itself.”[12] Furthermore, social norms in many male-dominated countries may have obscured many of the original purposes of the Qur’anic legislation. Former Prime Minister of Pakistan, Benazir Bhutto, claims that the subjugation of women in Islam “has got nothing to do with the religion, but it has got very much to do with material or man-made considerations.” She concludes, “It is not Islam which is averse to women rulers, I think—it is men.[13]                                                                                                                                                                                                                                                                    

3.1.2. Status of Women under Marriage
The word ‘Nikah’ has been used in two senses in Muslim law, i.e. marriage and sexual contact.[14] Muslim marriage has been considered a ceremony for a man to be united with a woman to enjoy their life together and to produce children.
Though it can be said that Muslim law in all its egalitarian principles confers upon women equal status is also interpreted in various other ways. Though it was always felt that the man must marry himself to a woman of equal status, there was no such provision for the women that a woman must marry herself to a man of equal status. Rather it was always considered that a man, on marriage with a woman of lower status, would simply elevate her position to his own position. This concept of equality between the two parties to a Muslim marriage was traditionally known as kafa’a. The idea of faskh demonstrates the uncommon platform on which men and women stand in Muslim law. This concept was that a woman who contracts herself to marriage with a man of unequal status without the consent of any of her male relations would render such a marriage violable and rescindable by the Court.[15]
So here we can see that the women did not get a large scope to choose husband for them. Moreover the right to give consent for marriage is really a controversy one. Most of the cases the women’s consent not considered in settling the marriage, in other cases the silence are treated as of her consent.
So ultimately the law regarding marriage discriminate the women’s status.

3.1.3. Right of Women in Divorce
In Islam, divorce is permitted when serious differences arise which cannot be resolved through reconciliation. However, it has to be the last resort, for the Prophet p.b.u.h. has described divorce as the most detestable of all lawful things in the sight of God. Now divorce is probably the last thing in the world that a couple would want to consider when negotiating their Prenuptial Agreement, but since Islamic divorce law is far more reasonable and equitable than Western divorce law, it would be wise to commit to the Shar'iah in your Prenuptial Agreement and in the early stages of marriage. Furthermore, this is the time when a woman may claim many of her Islamic rights.                               There is a misguided notion both among western nations and even among Muslims themselves that under Muslim law a woman will get nothing from her husband towards her maintenance and living expenses beyond her probationary period of Iddat. This is a very simplistic notion and is clearly misleading.                                                         In Islam the husband may unilaterally divorce his wife at any time, without specifying any reason, and a woman may do the same as long as she acquires this right when contracting her marriage. She can do this by negotiating and demanding that the prospective husband delegate to herself (or her nominated agent) the right to divorce her at any time without assigning any reason. It should be borne in mind that the procedure relating to the pronouncement of divorce can vary depending upon which school of law is followed by the husband and wife. The prospective wife can also have the husband's right to divorce her curtailed in many other ways - all by demanding and having the required legal conditions included in the marriage contract - and these conditions would be just as enforceable in a court of law as any conditions of a civil contract.[16]                                       In fact, the modus operandi, even in a so-called bilateral marital breakdown situation (i.e., where both the husband and the wife mutually agree to divorce) is always for one of the two spouses to take the initiative to call the marriage off. So, in reality, marriage breakdown situations almost always entail unilateral decisions and motivations. Therefore, given that there is often an unavoidable, unilateral dimension in initiating divorce proceedings, one could argue that to let either of the two spouses have the unilateral right to divorce the other will save both of them from endless argumentation and bickering that could ultimately lead them to very expensive and emotionally charged court litigation.                                                                                                                       One good ground for divorce, according to the Prophet of Islam, is the absence of mutual understanding/bonding between the parties and therefore they should free themselves from the bondage of marriage.                                                                        Classical Muslim law recognizes three modes of dissolution of a marital tie i.e. by the death of either party, through mutual consent and by an act of the parties.[17] Absolute authority under classical Muslim law to repudiate the marital tie has been vested to the husband. However, it is possible for the husband to delegate this authority to the wife when she can free herself from the marital tie, i.e. she can get a talaq-e-tafweez. In addition, parties to the marriage can repudiate the marital tie through mutual consent which is popularly known as Khula and Mubaraat. The wife would be required to compensate the husband in the case of khula divorce.                                                        There are three forms of talaq recognized under the classical Hanafi law for the husband, i.e. talaq- al- ahsan, talaq- ul- hassan and talaq- ul- bidat. Talaq-al-ahsan is considered the most approved form of talaq. The husband is required to pronounce talaq in a single pronouncement in the period of tuhr followed by abstinence from sexual intercourse for the whole period of iddat. Talak becomes effective after the iddat period. In the case of Talaq- ul- hassan a husband is required to make three pronouncements in the time of three tuhrs. No sexual intercourse taking place during any of the three tuhrs. Talaq becomes effective after pronouncement of talak for the third time during tuhr.                                                                                                                                    Finally in Talaq-ul-bidat the husband is required to make three pronouncements at a time in the period of single tuhr. Though this type of talaq is not approved by the Prophet it is considered lawful under the classical Hanafi School.[18] In this form of talaq there is no room for revocation and it will be effective immediately after the three pronouncements. It is also known as triple talaq Asghar Ali has revealed that during the Prophets lifetime and during Abu Bakrs reign and during the first two years of Umar, there was no practice of pronouncing three talaq in one sitting; and pronouncing any number of talaq was considered as a single pronouncement. Umar later on introduced this type of talaq during the later part of his regime due to the impatience of the people to wait to obtain divorce. Ahmed ibn Hanbal, according to Asghar Ali, had revised his previous opinion and had come to a conclusion that there is no place of triple talaq in the Quran. It only approves the revocable talaq.             Talaq by mutual consent is of two kinds,                  Khula and Mubara.
Under classical Hanafi law khul or Khul is the only way for an unwilling wife to obtain divorce from her husband. In this form of talaq both parties come to an agreement to free themselves from the bond. The interesting thing is that in this form of talaq the wife, one might say, has to buy her freedom. She has to waive some of her existing economic rights which are considered as compensation to the husband and the husband will pronounce the talaq to free her from marital bond. Usually the wife offers to pay certain sum; normally the amount of dower either given to her or promised to her is waived to release her from the marriage contract.
There is another form of talaq by mutual consent known as mubaraat. Offer of mubaraat unlike khula may come from either side and accepted by both the parties. No question of compensation arises here.
In talaq-i-tafweez or delegated divorce the wife may divorce her husband subject to satisfaction of some conditions. It has been stated earlier that the husband may delegate his authority of divorce to the wife. Under this delegated authority the wife can free herself from the marital tie by way of divorce on some specific grounds. The wife will have to prove failure of the husband to perform his marital obligations. Therefore, it is not an absolute authority of the wife to dissolve the marital tie as the husband does.
It is noteworthy that in all forms of talaq, discussed above, husband has got exclusive authority, except in Khula and Mubaraat divorce, to repudiate the marital tie. In addition, consent of the wife is immaterial under these forms oftalaq which, Huda has revealed, might be extra judicial and might go beyond any external check. There is no debate or confusion too regarding unilateral authority of the husband to divorce his wife under classical Muslim law. Though the wife can repudiate the marital tie in some cases, of course not unilaterally but with the consent or under the authority of the husband, it is not frequently used by women due to economic and socio-cultural factors. It is interesting to mention here that contracting marriage under classical Hanafi law needs witnesses while dissolving the same requires no witnesses at all.
Against the backdrop of severe criticism on the husbands whimsical exercise of unilateral authority to repudiate the marital tie (though, according to Prophet, it should always be used prudently and not whimsically), especially by triple talaq there was an endeavor to restrict this unilateral authority of the husband. Therefore, in 1961 a special law named Muslim Family Laws Ordinance (MFLO) was promulgated. It makes, as Huq observes, all forms of talaq a single revocable talaq. Section 7 of the MFLO requires any man who wishes to dissolve the marital tie by way of talaq to send a notice thereof to the Chairman of the union council/city corporation and a copy thereof to the other party. Talaq will be effective after ninety days of receiving the notice by the Chairman. Despite the requirement that the Chairman will form an arbitration council for reconciliation between the parties, lack of which will not make a talaqineffective. It is worth mentioning that MFLO requires observing few procedures of talaq; nowhere does it nullify the unilateral authority of the husband to repudiate the marriage bond.

3.1.4. Women’s Right to Inheritance
In Islamic inheritance law of whether a male always inherits a share that is twice that of a female of equal class presents an interesting case in which male interpreters of the Qur’an may have been willing to stretch even the words of the Qur’an itself to favor their gender. The Qur’anic verse states that “[t]he male shall have the equal of the portion of two females. . . .” Yet a literal reading of the separate verse that specifies heirs’ fractional shares is not consistent in some cases with the double share requirement. For example, if a decedent is survived by his wife and parents, the wife should receive one-fourth of his estate, the mother one-third and the father the remaining five-twelfths. Worrying that the father does not receive double of what the mother receives, the legal scholars determined that the mother was not to receive one-third of the estate but rather one-third of what remains in the estate after the wife receives her share. Under this interpretation, then, the wife would take one-fourth, the mother would take one-fourth also (one-third of the remaining three-fourths), and the father would take the remaining one-half of the estate, thus securing his double portion.[19]
The provision for double shares for males is often pointed to as a source for the proposition that Islamic law generally favors men over women. It should be noted, however, that the Qur’anic system may at times result in situations in which female family members (although not of the same rank) may end up with equal or greater shares of decedent’s estate. For example, if a wife dies survived by her husband, her daughter and her (the wife’s) brother, the estate will be distributed as follows: one-fourth to the husband, one-half to the daughter, one-fourth to her brother. Thus, the spouse and male relative of the wife each receive half of the amount allocated to the daughter.

Husband and Wife

Husband’s Right to Wife’s Estate

Islamic law provides both the husband and the wife with a definite portion of each other’s estates and then divides the rest of the estate among other relatives of the deceased spouse. The husband’s share in the wife’s estate is expressly delineated in the Qur’an. Under the Sunni system, if the wife is survived by one or more agnatic lineal descendants, the husband is entitled to one-fourth of her estate If the wife is not survived by any children or agnatic lineal descendants, the husband takes one-half of her estate. The remaining estate is then divided, under the Sunni approach, among her agnatic lineal descendants or, if none, the wife’s other relatives. (Her husband is not deemed to be her “relative.”) It is important to note, however, that the husband’s share of the estate is specifically limited by the Qur’an to his prescribed portion after payment of any legacies or debts.[20]



Wife’s Right to Husband’s Estate
Under Islamic law, the widow has a right to her deferred mehr [21]and also to her Qur’anic share of her husband’s estate. The prescribed amount is basically one-half of the amount to which the husband is entitled if the wife were to die first. If the husband left agnatic lineal descendants, the widow’s share is one-eighth of his estate.[22] Her share is one-fourth of the estate in the absence of lineal descendants. If there is more than one widow, however, the widows must share that amount equally among themselves. The wife, like the husband, will never take more than the prescribed share. Also, as with husbands, the Qur’an specifically states that the surviving wife’s share is a share only of the net estate.                                                                                                                                            Daughters                                                                                                                                 Both the Sunni and the Shi’a systems list the daughter as a named taker with a prescribed share of the estate. Thus, a daughter will never be excluded from sharing in the parent’s estate.[23] The amount of the Qur’anic share of a daughter depends upon whether the deceased parent is survived by sons or other daughters. If the decedent is survived by sons as well as one or more daughters, the daughters and sons share the residue of the estate but each daughter takes one-half of a son’s share. If there is no son and the decedent is survived by only one daughter, she takes one-half of the estate. If there are no sons but more than one daughter, the surviving daughters share two-thirds of the estate equally among themselves.[24]                                                               

Mother                                                                                                                                        Mothers are among those takers who are specified in the Qur’an.[25] If the decedent dies and is not survived by any children or son’s children, and is survived by only one sibling, if any, the decedent’s mother’s share is one-third of the estate. If the decedent in this case is survived by two or more siblings, the mother’s share is one-sixth. If the decedent is survived by one or more children or son’s children, the mother also takes one-sixth of the estate.                                                                                                                                

3.1.5. Mother’s right to custody of her child                                                                 The mother, whether she is separated or not, has the first claim to get the custody of an infant. If a mother is unable or unwilling to take custody, the general principle is that a close female relative of hers, .e.g. mother’s mother will take charge of the infant. There are differences of opinion regarding the duration of a mother’s right to custody. The prevailing opinion under the classical Hanafi school is that a mother retains the right of custody until seven years of age if the child is male and until nine years of age if the child is female. And that duration of custody in the Maliki school is the age of puberty in case of a boy and till marriage in case of a girl while in the Hanbali school it is seven years for both boys and girls.[26]

The welfare doctrine reveals that the interest of the child will get paramount importance to the court to determine who the custodian will be. Authoritative precedent of the welfare doctrine is the Abu Bakar Siddiqui case. [27] In this case the Appellate Division of the Supreme Court deviated from the traditional principle of the Hanafi school regarding the duration and allowed custody in favor of the mother though the child crossed the age limit. Here custody of a boy over seven years of age, who was sick and needed treatment abroad, has been given to the mother, who was a physician. The Court considered three grounds in giving this verdict. First, the mother in this case is the best person to rear up a sick child than any other person including the father. Secondly, there is neither Quranic injunction nor tradition of the Prophet regarding custody of a child. Thirdly, there is no consensus among the Muslim jurists on the question.
Though there are numerous cases where courts have observed that the welfare of the child will get paramount importance to determine the custody, the Abu Bakar siddique’s case is the only one where the court has deviated from the traditional rule of the Hanafi school.[28]
Mullah observes that a female including the mother will lose the right to custody if (a) she re-marries a person not related to the child within prohibited degrees; (b) if she goes and resides, during the subsistence of a valid marriage, at distance from the husband’s place of residence; (c) if she is leading an immoral life and; (d) if she neglects to take care of the child.[29]Therefore, re-marriage of a mother is a crucial point to determine the custody of a child under traditional Muslim law..
The mother is the best person to get the custody of an infant, her right is not absolute. Her right is rather conditional, under control and supervision of the husband It is true that the courts have been following the welfare doctrine to determine the custody of the child; but benefit of this doctrine mostly goes to the husband. Sometimes the wife is being deprived of her right to custody due to the welfare, Economic condition or the point that she is not financially sound enough to support the child is one of the common reasons for denying her the right. Our courts do not direct the father to give adequate expenses of the child while it is in the custody of the mother in accordance with the living standard. For example, in the Nilufar Majid’s[30] case the court has deprived the mother from getting custody of her child on two grounds: (a) she is re-married to a stranger and (b) being a service holder she will have to spend most of her time in the office. Therefore, the child will mostly depend on the maidservant which, according to the court, is against the welfare of the child.
It is also interesting to see that the court does not pay attention to the re-marriage of the husband and does not consider it harmful to appoint him as the custodian of the child, even though the busyness of a father is immaterial whereas this point is strong enough against the mother of the custody of her child.                                                                                                                                                                                                    3.1.6. Women’s right to Maintenance                                                              According to Mulla’s Principle of Mohammedan Law, the husband is bound to maintain his wife (unless she is too young for matrimonial intercourse) so long as she is faithful to him and obey his reasonable orders. But he is not bound to maintain her who refuses herself to him[31] or is otherwise disobedient. Unless the refusal or disobedient is justified of non payment of prompt dower (sec. 290)[32]                                                                               If the Husband is neglect or refuses to maintain his wife without any lawful cause the wife may sue him for maintenance, unless the claim is based on a specific agreement[33] or she may apply for an order of maintenance under the provision of the Code of Criminal Procedure, 1908, section 488, in which case the court may order the husband to make a monthly allowance not exceeding four hundred Taka.                                             After divorce the wife is entitle to maintenance during the period of Iddat (sec.257)[34]. A pregnant woman is entitled to maintenance till she delivers the child.                                                                                                                                                         


3.2. Right of Women under Hindu Law
3.2.1. Women’s right in marriage                                                                            According to Hindu social customs, Hindu marriages are solemnized through religious rituals. There is no marriage registration system for Hindus in Bangladesh. There is also no Hindu marriage law or Hindu marriage registrar in the country. So, if any Hindu woman suffers in the hands of her in-laws, she does not get legal help.
In Bangladesh, Hindu marriages differ from caste to caste. The Hindu marriage rituals have often no lawful ground. So, when the Hindu women want to come out of bad marriages they are in trouble because there is no marriage registration system in the Hindu society in Bangladesh.
As per a 1946 law, Hindu women can file cases with courts to only regain the rights to conjugal life. Besides, the Hindu women can file cases under Family Court Ordinance 1985, Dowry Act 1980 and Women and Children Repression Act 2003. But these laws are too inadequate to protect the Hindu women's rights.
But the situation is very different in neighboring India. There are laws in that country to protect the rights of Hindu women such as Widow Marriage Act 1856, Racial Inability Remission Act 1850, Child Marriage Prevention Act 1929 (Amendment 1938), Earned Property Affairs Act 1930, Inheritance Act 1925 and Hindu Women's Rights to Lands Act 1937. Besides, new laws have been made in India after independence in 1947. These include Hindu Marriage Act 1955, Immature Children's Property Act 1956, Hindu Adoption and Maintenance Act 1956, Hindu Inheritance Act 1956 and Special Marriage Act 1960.
Efforts to enact laws to protect Hindu women's rights in Bangladesh are thwarted by conservatives. There are Hindu men who leave their first wives and take second ones, but the same people resist changes for the better.[35]
Although the clauses No 19 (1) and 19 (2) of the constitution carry clear provisions that the state will ensure equal rights to all citizens and remove social and economic disparities, no government came up with steps to reform Hindu laws for protecting Hindu women's rights.                                                                                                      `           As per a 1946 law, Hindu women can file cases with courts to only regain the rights to conjugal life. Besides, the Hindu women can file cases under Family Court Ordinance 1985, Dowry Act 1980 and Women and Children Repression Act 2003. But these laws are too inadequate to protect the Hindu women's rights. But the situation is very different in neighboring India. There are laws in that country to protect the rights of Hindu women such as Widow Marriage Act 1856, Racial Inability Remission Act 1850, Child Marriage Prevention Act 1929 (Amended 1938), Earned Property Affairs Act 1930, Inheritance Act 1925 and Hindu Women's Rights to Lands Act 1937. Besides, new laws have been made in India after independence in 1947. These include Hindu Marriage Act 1955, Immature Children's Property Act 1956, Hindu Adoption and Maintenance Act 1956, Hindu Inheritance Act 1956 and Special Marriage Act 1960. It would be pertinent to mention the remarkable changes in ancient Hindu Law in India through the Hindu Marriage Act-1955:                                                                                                 
  1. Inter marriage between persons of different castes is not prohibited.
  2. Monogamy which is essentially the voluntary union for life of one man with one                                                                                                                                                                                                        woman to the exclusion of all others is now enforced by legislation.
  3. Bigamy has been made punishable as an offence.
  4. The conditions and requirements of a valid marriage have been considerably simplified.
  5. Several matrimonial reliefs e.g., restitution of conjugal rights, judicial separation, nullity of marriage and divorce have been provided in this Act.
It is a matter of great regret that the Hindu women of our country fail to avail this kind of opportunity due to the lack of proper legislation.
3.2.2. Right of women in divorce                                                                                         The concept of divorce is not recognized under the orthodox Hindu Law. Manu believed that the duty of a wife continues even after death. She can never have a second husband. The reason is that a marriage from the Hindu point of view creates an indissoluble tie between husband and wife. Unless divorce is allowed by the custom neither party to a marriage can divorce the other party. However, through the passing of Hindu Marriage Act 1955 in India some revolutionary changes have been introduced regarding marriage and divorce. After the passing of the Act the idea of marriage as an indissoluble union has been abolished and it is almost converted to a civil contract just like Muslim Law. The option of Divorce is the most significant part of this Act. Section 13(1) declares the right of divorce to both the parties. The grounds are as follows:                                   Adultery; treated the other party with cruelty; deserted the other party for a continuous period of not less two years immediately preceding the presentation of the petitioner; conversion to other religion; if one party becomes incurably of unsound mind or has been suffering continuously or intermittently from medical disorder of such a kind and extent that other party cannot reasonably be expected to live with the respondent.            Four grounds are available only to wife: Bigamy; Rape, sodomy; Non payment of maintenance decreed to the wife; Wife was under 15 when she was married and has repudiated the marriage before she is 18.                                                               Unfortunately in Bangladesh any legislative enactment is yet to be introduced allowing a Hindu to divorce his/her spouse. Hindu women in Bangladesh are the worst sufferer due to this lack of provision of divorce. Very often they have to undergo physical and mental torture for dowry from their husband but can't divorce him since there is no such option in our country.                                                                                                                                                                                                                                                            3.2.3. Women’s right to adoption                                                                                             Adoption is the transplantation of a son from the family in which he is born to another family where he is given by the natural parents by way of gift. The power of a Hindu female to adopt a son is very much restricted in Bangladesh. She can't adopt by herself but only with the consent of her husband. She has no right herself, she is deemed to act merely as an agent, or representative of her husband. A wife can but no other female can adopt. However, in India a woman enjoys a lot of rights conferred by the Hindu Adoption & Maintenance Act 1956. The Act has made the following changes in the law relating to adoption:
  1. A female may also be adopted(Sec:7&8)
  2. A virgin, divorcee, or widow is entitled to adopt and wife can also adopt in certain circumstances.(Sec:8)
  3. A male can adopt only with the consent of wife or wives, if any. (Sec:7)
  4. The father without the consent of mother can't give a child in adoption except in certain circumstances.(Sec:9)
5.      The ceremony of “Datta Homam” is not essential. (Sec:11)                                                                                                                                                                                                               3.2.4. Women’s right to inheritance                                                                 According to Bangladesh Law Hindu women only get a limited share. They inherit life interest in the property. There are five female Sapindas according to the Dayabagha law, namely the widow, the daughter, the mother, the father's mother and the mother of father's father. No other female relation is recognised as heir by the said school. Moreover a daughter cannot receive any property; even she cannot get life interest in the presence of son, grand son and great grand son. Although in neighboring India laws in this regard have been updated since independence in 1947, in Bangladesh the pre-1947 laws are still prevailing. In India laws have been framed and amended that has established women's rights on the property of father and husband.                                                                                                                                                                              3.2.5. Stridhana                                                                                                       Stridhana means a particular property a women may have a limited or an absolute interest. Stridhana belonging to a woman of which she is the absolute owner she may dispose of this property without the consent of her husband and without the consent of any one during the maidenhood or widowhood. Stridhana of every description passes on her death to her heirs and not to the heirs of the person from whom such property was acquired.                                                                                                              
3.2.6 Women’s right to maintenance                                                                        Generally a Hindu wife with her husband and the husband is bound to maintain her and she must discharge her duties towards her husband. But if she leaves him for own accord, either without cause or on account of such ordinary quarrels as are incidental to married life, she can set up no claim to separate residence and maintenance.                                                   “The Hindu Women’s Right to Separate Residence and Maintenance Act” – 1946, says that, notwithstanding any custom and law of a woman is entitle to have maintenance and separate residence from her husband-
i.                    If he is suffering from certain loathsome diseases.
ii.                  If he is abandoned her.
iii.                If he has married another woman.
iv.                If he is converted to another religion.
v.                  If he is cruel to the wife
vi.                If he keeps concubine
However a woman can not claim maintenance if-
i.                    She is guilty of unchastity
ii.                  She convert to another religion
iii.                She refuse to go back to her husband without any justified cause
iv.                She has re-married to another person.



Some Important Case Analysis on Family Laws in the Supreme Court of Bangladesh

Case Reference 1

Amulya Chandra Modak v. The State[36]

This case is a milestone under the Hindu Personal Law, to decide requirement of valid marriage, of Hindu community.                                                                                                                                                                                                                                                  Fact behind the Case                                                                                                                       This case for the prosecution in brief is that complaint Kalpona Rani Modak  (aged about 17/18 years at the time of occurrence) used to lived with her parents in the house whice is adjacent to the house of accused Amulya Chandra Modak (aged about 22 years at the time of the occurrence) the accused mother was ailing. The accused in month of  Baisakh 1383 B.S. took her to his house to look after his mother and also work in his house. The accused mother also asked her to nurse and work in her house about 10/15 days latter the condition of accused mother deteriorated and she was transferred to her elder son’s house at Mymensing town. After his mother went Mymensing the accused proposed to marry her by exchanging garlands and also proposed to marry her ceremonially after his mother returned from Mymensing.                                                                                                                  On 17th Baishakh 1383 B.S. at night the accused brought two readymade garlands (made of paper) and secretly exchanged garlands with her in night. She was made to understand that she was married to appellant. Thereafter Kalpana Rani co-habited with him under the belief thatshe was lawfully married to him. In this way the accused co-habited with her about one and a half month. There after the accused mother came back from Mymensing , Kalpana Rani told him to marry her ceremonially. The accused promised to marry her within 2/3 days. But his parents did not agree with this and drove her out from their house. Kalpana Rani told the accused that she is pregnant by him when the accused again promised to marry her. The accused brought some roots and ask her to eat the same so that a miscarriage could take place but se denied to do this. Thereafter she narrated the occurrence to her parents, her father reports this to the villagers, they request to the accused father to get his son married to Kalpana Rani as the accused had made her pregnant even after such request the parents of the accused refused to agree.                                                                                                                                                             Related Law and Custom of Marriage                                                                  According to Hindu law there are two essentials for a valid marriage are
  1. invocation before the sacred fire and
  2. ‘Saptapadi’, that is the taking of seven steps by  the couple
and some other rites amongst the Hindu in Bangladesh.
            As stated in Mulla’s Hindu Law( eleventh edition) at page 547, invocation before the sacred fire and ‘Saptapadi’, that is the taking of seven steps by  the bridegroom and the validity of a hindu marriage other in the Bruhma form or in Ausura form.                                                                                                                                                         Discussion on this Fact                                                                                              Actually for valid marriage in Hindu Law there are mainly two essentials, First one, invocation before the sacred fire and second is, ‘Saptapadi’, that is the taking of seven steps by  the couple.                                                                                                                           However in this marriage case the main ritual for valid marriage has not done by the both parties. For breaking the religious and customary law of Hindu marriage must not be accepted to the court. The court always presumed that there have all kinds religious customary may done. But above in all situations, according to the fact and other circumstances in this religious is not pure or valid. According to the other case law as a precedent here is a true example on Raghanath Padhy v. The State.[37]                                                                                                                                                               Relevant Case Laws
Penal Code (XIV of 1860)
Under Section 493
            If we want to prove that this marriage was not valid for that time there are some relevant case like Raghanath Padhy v The State,[38] in this case the accused Raghanath a Brahmin with his wife living was asked by the complainant Racharani Devi a Brahmin widow, to marry her by writing bond. The complainants put bangles, new cloth and exchange garland. From the fact of writing a bond by the accused and handing over the same to the complainant and participating in some sort of ceremony it was held that the accused acted in good faith and his subsequent act of assertion of a pregnant woman; however censurable it may be would not suffice to make a criminal liability under section 493 of the Penal Code.           
In the case of Abed Ali v. The State,[39] it was held that,
            “A mere promise of marriage made by the accused to her (the complainant) of to her guardian intending never to fulfill his promise does not warrant a conclusion that a false belief was caused in her mind that she was the lawfully married wife of the accused.”                                                                                                                                                                                                                                                              Judgment                                                                                                                   According to 493 of the Penal Code, Muhammed Habibur Rahman, j accused Amulya Chandra Modak has been convicted by Mr. S.M.A. Rahman, Assistant Session Judge. Second Court, Mymensing on 30.12.1978 under section 493 of the Penal Code and sentenced to suffer rigorous imprisonment for five years and pay a fine of taka 1,000.00 in defaults to suffer 2 months more.                                                                                                                                                                                                                                  Findings of the case                                                                                                                  After analysis of the above case it is clear that the marriage of Hindu community is not specified. The form of the evidence of the case is inadequate. There is no provision of marriage registration so there has the scope to confusion. If there would a binding force to the registration of marriage there will no confusion of validity of a marriage.

  
Case Reference 2

Abu Bakar Siddique v. S.M.A. Bakar and Others[40]

This case is a unique case in Muslim personal law, it maintain the doctrine of welfare of child. This is the only case which gave judgment which is separate from sharia law which opens a new door to ensure natural justice.                                                                                                                                                                                                                         Fact behind the Case                                                                                                           Appellant Abu Bakar Siddique filed an application under section 25 of the Guardian and Wards Act ( Act VIII of 1890) in the Court of District Judge, Dhaka for Custody of his minor son. The boy is about 8 years, was born on 22nd may 1976. He married respondent who is an M.B.B.S. doctor on 10th June 1973 she on getting a job left for Saudi Arabia leaving the boy with his father. In July 1978, she came back home and after two months she again left for Saudi Arabia. This time she took the boy with her. Appellant also went to Saudi Arabia and lived with his wife and son. But come back in April 1981 leaving the boy with his wife.                                                                                                                               In a suit for dissolution of marriage is filed at the instance of respondent. Her marriage with the appellant was dissolve in June 1982. in may 1984 respondent returned with her son to Bangladesh and went back to Saudi Arabia keeping the boy with her relations. At this stage the appellant filled an application for the custody of the boy. She filed a written statement thereafter denying the allegation. It was stated that, the boy has been suffering from ‘Hirshtring’ a diseases. Steps were to taken to take boy to the UK. Welfare of the boy would be best served if he is allowed to live with his mother District Court agreed with her statement and dismissed the suit, and then the appellant go to High Court Division, however, it was also dismissed in the same ground.

Related Rules and customs of Custody                                                                   Question regarding Hizanat (custody) of a minor boy or daughter is depended on his or her age.                                                                                                                          The right of mother to custody of infant child: the mother is entitling to the custody of her male children until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by her husband unless she marries a second husband in which case the custody belongs to the father.                                                                                                                          The right of father to custody of infant child: right of father to custody of a boy over seven years of age and an unmarried girl who has attained puberty. Failing the father the custody belongs to the paternal relations.                                                                                     If there be none of these it is for the court to appoint a guardian of the person of the minor. - Mulla’s Principle of Mohammedan Law.
Rules of Hizanat as formulated in Islamic Law find place in Hedaya. The following tradition of the Holy prophet (upon whom be peace) is quoted,                                                        “A women once applied to the Prophet, saying O’ Prophet of God! That is my son the fruit of my womb, cherished in my bosom and suckled at my breast, and his father is desirous to taking him away from me into his own care,” to which Prophet replied,
“thou hast a right in the child prior to that of thy husband, so long as thou do’st not marry with a stranger”. (Chapter XIV ‘on Hizanat’)                                                                   In the hedaya there is also mentioned of the reason as to why the mother should have the custody of a infant child. Thus it is stated that, “a mother is naturallynot inly more tender, but also better qualified to cherish a child during infancy, so that committing the care to her is of advantage of the child.”                                                                                                                                                                                                                    Discussion of the fact                                                                                                           In case involving the question of guardianship their decision are seen to be influenced by the concept of welfare of the minor child concerned. In this connection it may be mentioned that under the provision of Guardianship Act, the court to whom an application is made under that Act is to be satisfied that the welfare of minor required the appointment of a particular person as his guardian. But the court is to make appointment consistently with the law to which the minor is the subject. Indeed, the principle of Islamic Law has to be regarded, but deviation there from would seem possible as the paramount consideration should be child’s welfare.                                                                               In this case the minor son was sick and needed to medical treatment and his mother is an M.B.B.S doctor who can take batter care of her child and to stay with his mother is really needed for his physical improvement.                                      Though father and mother both are important for children but necessity of a doctor for a patient can not be overlooked. In present case the learned Single judge while considering the welfare of the boy was rightly determined the question which need not be disturbed.                                                                                                                                                                                                                                                                         Relevant Case Law                                                                                                                   In case Zohora Begum v. Ahmed Munawar[41] here the court observed as followed,
“………… it would be permissible courts to differ from the rule of Hizanat stated in the text book on Muslim Law for there is no Quranic or traditional text on the point. Courts which have taken the place of Quazis can, therefore, come to there own conclusion by process of Ijtihad which, according ‘Imam-al- Shafei” included in the doctrine Qiyasit has been mentioned earlier that the rule propounded in different text books on the subject of Hizanat is not uniformed. It would therefore be permissible to depart from the rule stated therein, if on the fact of a given case its application is against the welfare of the minor, I am fortified in this view by the instance in which a Quazi of another school of law which took a liberal view of the matter.”                                                                                                                                                                                                                     Judgment                                                                                                                               The court held that, for the minor’s welfare the minor should be live with his mother or she should be appoint as his guardian.
Findings of the case                                                                                                               In this case it is appears that the women’s economic independence is most needed for accruing there right. This is only case where the welfare of the child is prevailed over the Muslim Law, beyond this judgment the most influencing reason is that the mother is an M.B.B.S doctor she is economically independent and a doctor which is most needed for a sick child. 

Case Reference 3

Hafizur Rahman v. Shamsun Nahar Begum[42]

This case is under the Muslim Law, maintenance. In this case the court determined how much and how far the husband is bound to maintain his wife as well as the child. In this case the decision of the High Court Division was set aside because of that it is beyond of the Islamic Law. And court decide the point so moto.                                                                                                                                                                                                     Fact behind the case                                                                                                     Shumsun Nahar Begum filed Family count suit no.60 of 1988 in the Family Court and the Court of Assistant Judge, Doudkandi, Comilla on 2-11-1988 for realization of dower money of taka 50,001.00 and for maintenance of each of the plaintiffs, mother and son. The parties are married on 25-3-1985 at dower money of taka 50,000.00. The son borned in their wedlock, on 15-2-1987, and the defendant divorced plaintiff on 10-08-1988. The family court by judgment and order dated 30-10-1990, decreed the suit for Taka 89,000.00 including taka 3,000.00 to the wife as maintenance during the Iddat period at Taka 1000 per month.                                                                                                                         In family appeal no.2 of 1991, preferred by the appellant, the learned District Judge, Comilla by judgment and decree dated 20-04- 1992, reduced the amount of Taka 1,000.00 to Taka 600.00 per month in respect of maintenance of wife. The learned District judge deleted Taka 2,000.00 claimed to have been spend by plaintiff at the time of holding that the Family Court Ordinance did not provide for realization of any such amount. The total decretal amount was reduced from taka 89,000.00 to 72,000.00.
Hafizur Rahman preferred Civil Revision no.2067 of 1992 against the judgment and decree of the Learned District Judge and obtained a rule and stay on 30-08-1992. The High Court Division restored the judgment and decree of the Family Court with the modification that the wife and the child shall get maintenance at the rate of Taka 1,000.00 each month from the defendant till the wife and child respectively remarries or attains majority. The appellant thereafter seek appeal to the Appellate division of the Supreme Court of Bangladesh.                                                                                                                                                                                                                                                                       Related rules and customs of maintenance                                                                        According to Mulla’s Principle of Mohammedan Law, the husband is bound to maintain his wife (unless she is too young for matrimonial intercourse) so long as she is faithful to him and obey his reasonable orders. But he is not bound to maintain her who refuses herself to him[43] or is otherwise disobedient. Unless the refusal or disobedient is justified of non payment of prompt dower (sec. 290)[44].                                                                            If the Husband is neglect or refuses to maintain his wife without any lawful cause the wife may sue him for maintenance, unless the claim is based on a specific agreement[45] or she may apply for an order of maintenance under the provision of the Code of Criminal Procedure, 1908, section 488, in which case the court may order the husband to make a monthly allowance not exceeding four hundred Taka.                                           After divorce the wife is entitle to maintenance during the period of Iddat (sec.257)[46]. A pregnant woman is entitled to maintenance till she delivers the child.                                                                                                                                                  Discussion of the Fact:                                                                                                         Under Mohammedan Law maintenance during the period of Iddat is incumbent upon a former husband. A divorced wife can legally and lawfully realized maintenance for the period of iddat. But the right of “Mattaa” loosely used as maintenance beyond the period of Iddat may be statutorily provided for the poorer women who are destitute and suffering in the hand of unjust and cruel husbands. It can be argued that for giving benefit to Muslim women laws may be made as has been made in several counties and the beneficial legislation will not be against Muslim personal law and will be consonance with the ideas of justice tolerance and composition of Holy Qur-an enjoins upon all righteous and true Muslim.                                                                                                                    The High Court Division is appears to be too wide, but as in our country many women are divorced by their husbands without any fault on their part some legislation may be made for the good of Muslim women community in Bangladesh. Many divorced women in our county suffer as they have no economic and educational background to support them. She urges to provide for a fair, just and reasonable legislation to remove the extreme hardship of divorced women in our society. Such statutory recognition of benefits and privileges for a divorced woman will not be in conflict of Muslim Law.                                                                                                                                             Relevant Case Laws                                                                                                             Aga Muhammed Jaffer v. koolsom Beebee[47]                                                                                      The plaintiff was married to the defendant on May 17, 1950. A son was born of the marriage and thereafter the husband neglected the wife and refuse to maintain her and her son on the plea (held to be false) that he had divorced her on the night of the wedding. The trial court moved by the wife, granted a decree for maintenance for both mother and son.                                                                                                                                                In Asmatullah v. Mst khatunessa[48], after divorce the wife is entitled to maintenance during the period of Iddat. She was held not entitle to past maintenance unless there was a specific agreement.                                                                                                                                                                                                                    Judgment                                                                                                                               It was held that the learned judge of the High Court Division had no jurisdiction to give her any further relief beyond what was granted by the first two courts below. The decision of the High Court Division was set aside because of that it is beyond of the Islamic Law. And court decide the point so moto.
Findings of the Case                                                                                                             I am also agreeing with the observation from the case of Rashida Begum Vs. Shadhin Din & others,[49] with the view that if the interpretation of the Holy Qur-an by the commentators who lived in thirteen or twelve hundred years ago is considered as the last word on the subject then the whole Islamic society will be shut up in a iron cage and not allow to develop along with the time. The decisions of the High Court Division was a unique decision over time the judge consider the literal meaning of the first part of Verse 241 of Sura Baquara and finally held that a person after divorcing his wife is bound to maintain her on a reasonable scale beyond the period till she looses the status of a divorce by re marring another person………………….., I think it is a milestone to prevent polygamy and violence against women. But unfortunately the Appellate Division set aside the decision and re-imposes the decree that the husband is bound to maintain his wife till Iddat period.   
  

Some Recent Important steps Towards Ensuring equal rights of women                                                                                                                           5.1. A proposal of Unified Family Code in Bangladesh by Committee of Bangladesh                          Mahila Parishad                                                                                             The Bangladesh Mahila Parished wisely proposed a Uniform Family Code irrespective of sex, religion, race, cast and place of birth which should be applicable to all citizens. It is based on principle of equality, principle of non- discrimination, and principle of state obligation.                                                                                                                                             They argued that the Constitution of Bangladesh ensures the right of man and woman in all spear of public life and it is one of the fundamental right. Under third part of the Constitution, Article 27 states “All citizen are equal before law and entitle to equal protection of law.” After that in Article 28(1), it says “The state shall not discriminate against any citizen on the ground of only of religion, race, cast, or place of birth”. And according to Article 26, Law inconsistent with fundamental right will be void.                                 Part two of the Constitution of the Bangladesh states the fundamental principle of state policy, according to Article 8 there are four fundamental principles one of them is socialism; here means that, economic and social justice. So discrimination against women in social life can not be social justice.                                                                                                        So for the requirement of time the law should be changed which is discriminate against women. In this perspective this organization proposed that there should be one uniform law irrespective of sex, religion, race, cast etc. it was first published in 1 April 1993 and the new edition was published after several reform in 2006.                         This proposal contains five parts,
  1. Uniform Marriage and Divorce Registration Act, 2005.
  2. Uniform Maintenance Act, 2005.
  3. Uniform Guardian and Ward Act, 2005.
  4. Uniform Law of Inform of Inheritance Act, 2005.
  5. Uniform Adoption Act, 2005.
According to their proposal in Uniform Marriage and Divorce Registration Act, all citizen should be bound to registration their marriage and divorce within one month from marriage and divorce irrespective of religion.                                                           
In Uniform Maintenance act they proposed three type of maintenance
1.      Maintenance by husband to his wife
2.      Maintenance by wife to her husband
3.      and maintenance of their child
In this proposal there should be equal responsibility of husband and wife to maintain each other and their child.                                                                                                                              In Uniform Guardian and Ward Act the mother and father of the child should equally treated as the guardian of the child; there also gender equality get priority.
            In Uniform Law of Inheritance, the male and female both heirs should be get equal proportion of the property irrespective of religion.
            In Uniform Adoption Act there should be scope to adopt child for all religion. 

5.2. Opinion of Law Commission; on the Study Report for Marriage, Inheritance    and Family Laws in Bangladesh towards a Common Family Code
 The UNESCO and Women for Women have jointly prepared a Study Report in respect of “Marriage, Inheritance and Family Laws in Bangladesh-Towards a Common Family Code” and submitted the same to the Government in the Ministry of Law, Justice and Parliamentary Affairs for its opinion on the report. The Government has thereafter referred the joint study report to the Law Commission for opinion in the matters raised in the Report vide Memo No-177  dated 23/03/05, where the chairman was Justice Mustafa Kamal, and other two members are Justice M.D. Sirajul Islam and Dr. M. Enamul Haque. 
According to Law Commission,     
The Muslim Personal Law (Shariat) Application Act, 1937 (XXVI of 1937) is still an existing law in Bangladesh providing for the application of Muslim Personal Law in all matters relating to Muslim Family Affairs. A reference may be made to the case of Hefzur Rahman Vs Shamsun Nahar Begum, 51 DLR (AD) 172, in which a question of maintenance of a divorced Muslim woman was decided by the Appellate Division. Justice Mustafa Kamal (then a Judge of the Appellate Division) in his Judgment has quoted section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 which is as follows:
“Application of Personal Law to Muslims- Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubara’at, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).” In this case mention has been made of Article 8 (1) of the Constitution which says that “The principles of absolute trust and faith in the Almighty Allah .............shall constitute the fundamental principles of state policy” and of Article 8 (1A) of the Constitution which says that “Absolute trust and faith in the Almighty Allah shall be the basis of all actions.” (page 194, pares 92 and 93)
From the above quoted provision of Act XXVI of 1937 supported by then provisions of the Constitution, it can be said that the Muslim personal law is an eternal law prevailing as the only law for all Muslim Family Affairs and hence there cannot be any change in it nor can it be amalgamated with any other personal law of any other religion.                                                                                                                                   The Hindu law is one of the most ancient laws in Bangladesh. The Hindu jurisprudence regards the Smritis, which are often designated as Dharmashastras, as constituting the foundation of an important source of Hindu law. In Hindu religion, the law is considered as a branch of Dharma. The rights and obligations of Hindus are determined by the principles of Hindu law which is the traditional law of this religious community and which is regarded as law of the religion itself. Therefore, Hindu law also cannot be amalgamated with other religious law in favour of a Common Family Code. Although some changes have been made by a number of enactments in India in the Hindu personal laws, but that have been made applicable to the people of Hindu, Buddhist, Jaina and Sikh communities only in the whole of India and are not applicable to the people of Muslim and Christian communities.                                                                                             The Christians in Bangladesh are mostly followers of Canon laws that are based on traditions of their respective Churches. Christian law is also the personal law of the Christians and is called the law of the religion of the community. The Buddhist community of our country has no separate system of law. They are mostly governed by the principles of Hindu law. The different Tribal Communities are guided by their indigenous religious beliefs, customs and culture. Most of the tribal people follow a Matriarchal family system.
Whenever the laws of Bangladesh admit the operation of a personal law, the rights and obligations of Muslims, Hindus, Christians and Buddhists are determined by their personal laws which their traditional laws are called the law of the respective religions. Hindu and Christian personal laws are not static but empiric and progressive, but even then it will be very difficult in our country to make substantial changes or modifications in those laws. The hypothesis of a Uniform Family Code and the suggested recommendations made in the Study Report can not be given any legal coverage in our country where five different religions and their respective codes of life are practically the determinant factors in their respective family affairs. The religious laws of different communities of Bangladesh differ from each other in their origin, base, faith and beliefs. It will, therefore, be impossible in our country to make substantial changes in these laws to make room for a Common Family Code as proposed in the Study Report.
The personal laws of marriage, divorce, guardianship, maintenance, inheritance etc. of all the communities including the tribal communities of Bangladesh are different from each other in nature and in their manners of application. All these religious or personal laws are based on religious injunctions, faith and beliefs. More so, the personal laws of all communities are sensitive, complex and of diverse origin. It is impossible to bring uniformity in these differing laws by way of modification or reforms for purposes of incorporation in a Common Family Code. Any such attempt is likely to cause injury to the religious sentiment, faith and beliefs of the people of the country.
Lastly they said that there cannot be any Common Family Code for all the communities in our country as proposed by a few persons only which does not reflect the wish or opinion of all the people of the country.




Conclusion

In the last decades of the 20th century there was a declaration of Principle of Fundamental Human rights. In June 1993 at the Vienna Human right Conference it was recognized that Women’s Right is Human Right, Violence against Women is Violence against Humanity. From then there is movements for ensuring women’s as to a man and for removing gender discrimination.                                                                                                                                 In our country the women are mostly discriminated by the Personal Law. After the above analysis it is clear that under the existing personal law the gender equality can not be possible at all, in this circumstance the Law Commission refuses the possibility of a common personal law prepared by the UNESCO and Women for Women.
            We have seen that there are some reformation has occurred in personal law for the welfare of the people and we think that the uniform family code is also possible for the benefit of the people. The Law Commission States that the uniform family code is the desire of a few people…..but this is not true because in Bangladesh all women are suffering by the hardship of the personal laws, not only one community but by all personal law.                                                                                                                                          In Bangladesh the personal laws are not reformed along with the time. The law which has been old of thousand years how can it match with modern society? As of human being the women also entitle equal right, which the personal law did not realize.   It is common knowledge among those reasonably acquainted with law that women are greatly deprived of their rights within the laws that govern crucial aspects of the man woman relationship: marriage and divorce, custody of children and guardianship rights, alimony and maintenance for divorced women as well as property rights.                               The question of women has acquired great importance throughout the world today among all communities. This is for obvious reasons. For centuries, women have been in total subjugation in male-dominated patriarchal societies. It has been a “natural law” to regard women as the inferior sex and for them to submit to male authority for the smooth functioning of society in its day to day progress. In the today’s world it is an issue of impartiality of law irrespective of race was clearly crucial. Indeed the law which   
prevented women from achieving their full development as individuals must be bad law.
            So the personal law which is discriminate against women should be reformed the only solution of this gender discrimination by the personal law is enacting a Uniform Personal Law, the women must no be deprived any more. Since we see there are many barriers in implementing necessary reforms in the personal laws, we need to accelerate awareness programs among the common people against the violence oppression and deprivation to women. Educated community should move forward to ensure social justice and equality. They need to speak for the deprived class; they have to take strong possession against injustice. If this social conscious class continues whole heartedly to contribute the social awareness activities then very soon the conscience of the nation would be awaken, and the Law commission should not get chance to termed this demand of a uniform law as the opinion of few rather it would be the demand of the majority. Only then we will be succeed to establish equality, that will lead us to social order and justice in its real sense      











Reference

Books
  1. Alrimuzzaman Choudhuy, Thoughts on Mulla’s Principle of Muhammedan law, 1st ed (Dhaka:Interline publishers Dhaka, 1983)
  2. S.T. Desai, Mulla Principle of Hindu Law,  7th ed. (Bombay: N.M. Tripathi Private Limited, 1998)  
  3. Sakina Hasin, Nari o Mulobad, (women and fundamentalism), 1st ed ( Dhaka: Mutahar Hossain, Papyrus. 2005)
  4. Norshirvan H. Jhavala, Principles of Hindu law, 20th ed ( Mumbai: C. Jamandas & Co..)
  5. Sofia Khatun, Nari Odhikar O Ononno, 1st ed (Women’s Right and others), (Dhaka: Sahitta Prokas,. 1999)
  6. Dinshah Fardunji Mulla, Principles of Mahomedan Law, 14th ed, (1955)
  7. Mohammad Nazmi, Mohammadan Law, (Allahbad: Central Law Publications, 2005)
8.      Bangladesh Mahila Parishad, Uniform Family Code, 2nd ed. (Dhaka: legal Aid sub-committee of Bangladesh Mahila Parishad, 2006)
9.      Anupoma Roy, Gendered Citizenship, 1st ed. (Delhi: Orient Longman Private Limited 2005)
  1. Threrese Saliba and others, Gender politics and Islam, (Delhi: Orient Longman Private limited 2002)

Newspapers / Magazines
  1. Article by Pankaj Deb “Right of Minority”,The Daily Star, June 04, 2004
  2. Bangladesh: Is the law fair towards women, by Aasha Mehreen Amin; weekend Star magazine/ The Daily Star (Bangladesh) March 5, 2004                     .

Internet Sources
1.       www.IslamsWomen.com Muslim Woman Status, Rights, Hijab, Marriage, and More – Official Website. last visited in 5th November
2.      WOMEN IN THE MIDDLE EAST: PROGRESS OR REGRESS? Middle East Review of International Affairs, Volume 10, No. 2, Article 2 - June 2006 last visited in 5th November
3.      Benazir Bhutto, Politics and the Muslim Woman, in Liberal Islam: A Sourcebook 111 (Charles Kurzman ed. (1998). www.mwlusa.org/pub_book_legalrights.shtml. last visited in 5th November
4.      Carolyn Ratner, Book Review, Islamic Laws as Violations of Human Rights in the Sudan: God Has Ninety-Nine Names, by Judith Miller, 18 B.C. Third World L.J. 137, 150 (1998). www.mwlusa.org/pub_book_legalrights.shtml. last visited in 5th November
5.      Muslim Women’s League, Women in Soceity,: Legal Right www.mwlusa.org/pub_book_legalrights.shtml. last visited in 5th November
6.      Urfan Khaliq, Byond the Veil: An Analysis of the Provisions of the Women’s Convention in the Law as Stipulated in Shari’ah,(1995)  www.mwlusa.org/pub_book_legalrights.shtml. last visited in 5th November
7.      "Rioting over women's rights in Bangladesh - 12 April 08." Al Jazeera's Hannah Belcher reports.12 Apr. 2008.  http://www.youtube.com/ last visit 2nd November 2009. Last visited in 5th November. last visited in 5th November

Law Dictionaries
  1. John Bouvier, Bouvier Law Dictioniary 6th ed.(USA, Bouvier Publication,1856)
  2. Bryan A. Garner Black Law Dictionary 8th ed. ( USA, Thomson West, 2008)

List of Statutes
  1. The Constitution of Peoples Republic of Bangladesh, 1972
  2. Muslim Family Laws Ordinance, 1961, (Ordinance no VIII of 1961)
  3. Muslim Marriage and Divorce Registration Act 1974 (Act no LII of 1974)
  4. Hindu Marriage Disability Removal Act 1946 (Act no XXVIII of 1946)
  5. Hindu Widows Remarriage Act 1856 (Act no XV of 1856)
  6. The Citizenship Act 1951 (Act no II of 1951)
  7. Dowry Prohibition Act 1980 (Act no XXXV of 1980)
  8. The Hindu Women’s Right to Property Act, 1937 (Act no XVIII of 1937)
  9. The Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946. (Act no XIX of 1946)






[1] Fran P Hosken., 'Towards a Definition of Women's Rights' in Human Rights Quarterly, Vol. 3, No. 2. (May, 1981) p.10. http://www.youtube.com/ last visit 2nd November 2009
[2] Women's Rights: A "Human Rights Quarterly" Lockwood, Bert B. Reader (ed.), (John Hopkins University Press, 2006) http://www.youtube.com/ last visit 2nd November 2009
[3] Ibid

[4] "Rioting over women's rights in Bangladesh - 12 April 08." Al Jazeera's Hannah Belcher reports.12 Apr. 2008. YouTube.  http://www.youtube.com/ last visit 2nd November 2009
[5] The constitution of the Peoples Republic of Bangladesh, 1972 – article 28 (2).
[6] Bangladesh: Is the law fair towards women, by Aasha Mehreen Amin; Star weekend Magazine/ The Daily Star, March 5, 2004
[7] Bangladesh: Is the law fair towards women, by Aasha Mehreen Amin; Star weekend magazine/ The Daily Star (Bangladesh) March 5, 2004.

[8] The guardianship of women by men is required, among other reasons, because of women’s “sexual irresponsibility.” Urfan Khaliq, Beyond the Veil: An Analysis of the Provisions of the Women’s Convention in the Law as Stipulated in Shari’ah,(1995)www.mwlusa.org/pub_book_legalrights.shtmll last visited 4th November,2009.
[9] An alternative version of this rule states that the rule applies only in debtor-creditor transactions, that it is an exception to the general rule that women can serve as witnesses equally with men, and that its original purpose (to secure accurate testimony as women usually did not engage in commercial transactions and thus might be more likely to make a mistake) may have disappeared in modern times when women are actively involved in the commercial world. Muslim Women’s League, Women in Society: Legal Rights www.mwlusa.org/pub_book_legalrights.shtml. last visited 4th November, 2009
[10] Carolyn Ratner, Book Review, Islamic Laws as Violations of Human Rights in the Sudan: God Has Ninety-Nine Names, by Judith Miller, 18 B.C. Third World L.J. 137, 150 (1998). www.mwlusa.org/pub_book_legalrights.shtml. last visited 4th November, 2009
[11] Sura IV, verse 34, The Holy Qur’an 51 (Shakir transl.).
[12] Ibid
[13]  Benazir Bhutto, Politics and the Muslim Woman, in Liberal Islam: A Sourcebook 111,Charles Kurzman                                                                                                                                                       1st ed. (1998).www.mwlusa.org/pub_book_legalrights.shtml. last visited 4th November, 2009
[14]  Mohammad Nazmi, Mohammadan Law (Allahabad: Central Law Publications, 2005), p. 32


[16] Ibid, p.200.
[17]  Rehanuddin vs Azizun Nahar, 33 (1981) DLR, p. 139
[18] Nilufar Majid vs Mokbul Ahmed, 4 (1984) BLD,  p. 79.
                                                                                                          
[19] Aharon Layish, Women and Islamic Law in a Non-Muslim State: A Study Based on Decisions of the Shari’a Courts in Israel 279 (1975); www.mwlusa.org/pub_book_legalrights.shtml. last visited in 5th November
[20] Sura IV, verse 12, The Holy Qur’an 49
[21] According to section 5 of the Family Courts Ordinance 1985 the Family Court has jurisdiction to decide cases relating to or arising out of dissolution of marriage, restitution of conjugal rights, maintenance, dower and custody and guardianship of children.
[22]  Syed Ameer Ali, Muhammedan Law, 5th ed (Vol. II, 1985), p. 269.   
[23] Ibid, p, 280.
[24] Sura IV, verse 11 provides in part as follows: “Allah enjoins you concerning your children: The male shall have the equal of the portion of two females; then, if they are more than two females, they shall have two-thirds of what the deceased has left, and if there is one, she shall have the half . . . .” The Holy Qur’an 49
[25] Sura IV, verse 11 provides in part as follows:
and as for his parents, each of them shall have the sixth of what he has left if he has a child, but if he has no child and (only) his two parents inherit him, then his mother shall have the third; but if he has brothers, then his mother shall have the sixth after (the payment of) a bequest you may have bequeathed or a debt . . . .
The Holy Qur’an 49.
[26] Md. Abu Bakar Siddique v. S.M.A. Bakar, 38 DLR (1986), AD, p. 106.

[27] Ibid

[28]  Ibid
[29] D.F. Mullah, Principles of Mohammedan Law (Paragraph 354) cited in Rahimullah Chowdhury v Mrs Sayeda Helali Begum and others, 20 DLR, AD, p. 1.
[30] Nilufar Majid v Mokbul Ahmed, 4 BLD, HCD, p. 79.
[31] Muhammed Ali Vs. Mt Gulam Fatima (1983)160 I.C. 335,(135)A.L. 902.
[32] Muslim Family Law Ordinance 1961
[33] Abdool Futtah Vs.Zabmessa (1881) 6 Cal. p,631.
[34] Ibid 32,
[35] : Pankaj Deb, Right of  minority, The Daily Star, June 04, 2004
[36] 35 DLR 1983 p.31.
[37] AIR 1957, Orissa,p. 198 
[38] Ibid
[39] 34 DLR 1981 p.366
[40] 38 DLR 1986, AD p.106
[41] 17 DLR 1965, p,138; PLD 1965, Lah, p,695
[42] 51 DLR (AD) 1999 p.177
[43] Muhammed Ali v. Mt Gulam Fatima (1983)160 I.C. 335,(135)A.L. 902.
[44] Muslim Family Laws Ordinance 1961.
[45] Abdool Futtah v. messa (1881) 6 Cal. p,631.
[46] Ibid 40.
[47] 25 cal 1897, p.9
[48] 39. A. All. p, 592.
[49] PLD 1960, (Lahore) p, 1142.

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