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
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.
- 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
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.
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
- Sec.313: Death caused by act done with
intent to cause miscarriage if act done without women’s consent
- Sec. 354: Assault or criminal force to woman with
intent to outrage her modesty (Of Kidnapping, Abduction, Slavery and
Forced Labour)
- Sec.359 kidnapping Sec. kidnapping
- Sec.362 Abduction Sec. Abduction
- Sec. 366:
Kidnapping, abducting or inducing women to compel her marriage etc.
- Sec. 366A:
Procreation of minor girl
- Sec.366B:
Importation of girl from foreign country
- Sec. 372:
Selling minor for purposes of prostitution
- Sec. 373:
Buying minor for purposes of prostitution (Of Rape)
- Sec. 375: Rape
- Sec.376:
Punishment of Rape (Of Offences Relating to Marriage)
- Sec.493
Cohabitation caused by a man deceitfully inducing a belief of lawful
marriage
- Sec 494:
Marrying again during lifetime of husband or wife.
- Sec.495: Same
offence with concealment of former marriage from person with whom
subsequent marriage is contracted.
- Sec.496:
Marriage ceremony fraudulently gone through without lawful marriage.
- Sec. 497:
Adultery.
- Sec.498:
Enticing or taking away or detaining with criminal intent a married woman.
(Of Criminal Intimidation, Insult and Annoyance)
- Sec 509: Word
gesture or act intended to insult the modesty of a woman.
2.8. Other laws; relating to violence against women
- Dowry Prohibition Act, 1980
- Nari O Shishu
Nirjaton
- Acid Crime Prevention
Act, 2000.
- 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
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:
- Inter marriage between
persons of different castes is not prohibited.
- 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.
- Bigamy has been made
punishable as an offence.
- The conditions and
requirements of a valid marriage have been considerably simplified.
- 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:
- A female
may also be adopted(Sec:7&8)
- A virgin,
divorcee, or widow is entitled to adopt and wife can also adopt in certain
circumstances.(Sec:8)
- A male can
adopt only with the consent of wife or wives, if any. (Sec:7)
- 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
- invocation
before the sacred fire and
- ‘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 Bangladesh 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,
- Uniform
Marriage and Divorce Registration Act, 2005.
- Uniform
Maintenance Act, 2005.
- Uniform
Guardian and Ward Act, 2005.
- Uniform Law
of Inform of Inheritance Act, 2005.
- 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
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.
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
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Law Dictioniary 6th ed.(USA, Bouvier Publication,1856)
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Law Dictionary 8th ed. (
List of Statutes
- The Constitution of
- Muslim Family Laws Ordinance, 1961, (Ordinance no
VIII of 1961)
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(Act no LII of 1974)
- Hindu Marriage Disability Removal Act 1946 (Act no
XXVIII of 1946)
- Hindu Widows Remarriage Act 1856 (Act no XV of 1856)
- The Citizenship Act 1951 (Act no II of 1951)
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[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 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 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
[16] Ibid, p.200.
[17] Rehanuddin vs Azizun Nahar, 33 (1981) DLR,
p. 139
[19] Aharon Layish, Women and Islamic Law in a Non-Muslim State 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.
[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.
[32] Muslim Family Law Ordinance 1961
[34] Ibid 32,
[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
[44] Muslim Family Laws Ordinance 1961.
[46] Ibid 40.
[47] 25 cal 1897, p.9
[48] 39. A. All. p, 592.
Very helpful article.Excellent site
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