WOMENS LEGAL STATUS IN DOMESTIC LAW, PART 3

Chapter six

6. Protection of women by Special legislations and special court or tribunal:

Enhancement of the legal status of women and for the protection of women a series of enactments was made in the legal regimr of Bangladesh. Women’s are deemed to be the backward section of out country. Many special laws have been passed and special courts or tribunals have been established for thje protection and development of women.

 The Family Courts Ordinance, 1985 and family courts   (Civil Action):

Family courts, which have been established in the country more than twenty years ago, need not be made familiar once again. If you are not a lawyer you may not have to learn the procedure of trial in the courts. It may even not be necessary for everyone to know the jurisdiction of the courts. But you must know your rights to be exercised through family courts. Hence, this write-up aims to make you informed about your dealings with a family court.

By the Family Courts Ordinance 1985 the Family Courts get hold of exclusive jurisdiction for expeditious settlement and disposal of disputes only in suits relating to dissolution of marriage, restitution of conjugal rights, dower, maintenance, guardianship and custody of children. The courts began working all over the country except in the hill districts of Rangamati, Bandarban and Khagrachhari. Soon after the court began functioning, questions were raised about whether the Family Courts would deal only with the family matters of Muslim community or of all communities. The uncertainty lasted for a long time until in 1998 a special High Court bench of the Supreme Court in a path finding judgment removed all the questions regarding family court’s jurisdiction. Every lawyer and judge dealing with Family Courts are supposed to be aware of the judgment. But the common people for whose benefit the courts have been constituted seem still uninformed about the great decision relieving the justice-seekers in the Family Courts of a harming uncertainty.  Section 5 of the Family Court Ordinance, 1985 speaks about the jurisdiction of the Family Courts which reads as: “Subject to the provisions of the Muslim Family Laws Ordinance, 1961 (VII of 1961), a Family Court shall have exclusive jurisdiction to entertain, try and dispose of any suit relating to, or arising out of, all or any of the following matters,

namely:-
(a) dissolution of marriage
(b) restitution of conjugal rights
(c) dower
(d) maintenance
(e) guardianship and custody of children

Just after coming into force, the family court comes under confusion, as mentioned above, about its jurisdiction that whether a Family Court is a court for Muslim Community only. In Krishnapada Talukder Vs Geetasree Talukder [14 (1994) BLD 415] the question was whether a woman, Hindu by faith, could file a suit in a Family Court for maintenance against her husband. The honourable judge of the High Court Division held that “As per the provisions of the present Ordinance, all the sections of the 27 section statute have been made available for the litigants who are Muslim by faith only.”

The said judgment came on 5th June 1994, and just a few days later on 25th July 1994 in Nirmal Kanti Das Vs Sreemati Biva Rani [14 (1994) BLD (HCD) 413], the High Court Division expressed diametrically opposite view. The learned judge of the High Court Division referring section 3 of the Ordinance held that the provisions of Family Courts Ordinance shall have effect notwithstanding anything contained in ‘any other laws’ for the time being in force. From the expression ‘other laws’, it appears that the Family Court Ordinance controls the Muslim Family Laws Ordinance, 1961, and not vice versa. Thus, any person professing any faith has a right to bring a suit for settlement and disposal of disputes relating to dissolution of marriage, restitution of conjugal rights, dower, maintenance, guardianship and custody of children. And so, a Hindu wife is entitled to bring a suit for maintenance against her husband in a Family Court.

In Meher Nigar Vs Md Mujibur Rahman [14 (1994) BLD (HCD) 467] the High Court Division corroborated the abovementioned view by holding that the Muslim Family Laws Ordinance 1961 introduced some changes in the orthodox Muslim personal laws relating to polygamy, <>talaq<> and inheritance and in order to keep those reformative provisions of the Ordinance of 1961 effective it has been provided that the provisions of Muslim Family Laws Ordinance of 1961 shall not be affected by the provisions of the Family Courts Ordinance of 1985; and section 23 of the Family Courts has specified the area not to be affected. It otherwise indicates that the provisions of the Family Courts Ordinance are applicable to other communities which constitute the populace of Bangladesh. Following such dissimilar views and decisions, the confusion regarding jurisdiction of the Family Court was natural. And such confusion continued until 1997 when a larger bench of the High Court Division of the Supreme Court in its path-finding judgment in Pochon Rikssi Das Vs Khuku Rani Dasi and others [50 (1998) DLR (AD) 47] removed all the confusions. The special bench of the High Court Division comprised of three Judges upheld that “the Family Court Ordinance has not taken away any personal right of any litigant of any faith. It has just provided the forum for the enforcement of some of the rights as is evident from section 4 of the Ordinance, which provides that there shall be as many Family Courts as there are Courts of Assistant Judge and the latter courts shall be the Family Courts for the purpose of this Ordinance.

Moreover, the court also declared that ‘Family Courts Ordinance applies to all citizens irrespective of religion’.

It seems quite pertinent to refer some of the submissions which the Court relied on. It was submitted that:

If Family Court Ordinance is intended to apply only to the Muslim community then there was no reason for not providing it accordingly as has been done in case of Muslim Filmily Laws Ordinance, 1961. The Family Courts Ordinance should have been named as Muslim Family Courts Ordinance. …….in the Family Courts Ordinance there was no exclusive exclusion of any community and unless there is specific exclusion the law will have general application, that is, it will apply to the citizens of all faiths. ….. if sections 3, 5, and 24 of the Family Courts Ordinance are read together it will be evident that guardianship and custody of children were made exclusively triable in the Family Courts and unless the law is applicable to all how a non-Muslim can get a relief in the said matters. …… 5 matters enumerated in section 5 of the Family Courts Ordinance are matters of personal laws of the citizens of different faiths who follow different rules in matters enumerated in the section or do not have any rule at all as in the case of Dower and Dissolution of Marriage in case of Hindus. All citizens may not be concerned in all matters but that cannot be a ground to hold that the Ordinance applies only to the Muslims. ……Family Courts Ordinance has not encroached upon the personal laws of the citizen of any faith. This Ordinance provided that Family Courts will have jurisdiction to entertain and decide suits on the matters enumerated in section 5 subject to the provisions of the Muslim Family Laws Ordinance meaning thereby that while disposing of a matter amongst the Muslim the provisions of Muslim Family Laws Ordinance shall have to be kept in mind. …..had there been no exclusive jurisdiction of Family Courts there may be complications in cases filed by husband and wife professing different faiths. ….not all the personal laws of the Muslim have been included in section 5. Some provisions of Muslim personal laws such as Waqf, Gift, parentage etc. have been kept out of the provisions of the Family Courts Ordinance. So it cannot be said that this is only for the Muslim.

Accordingly, there should not remain any confusion regarding the jurisdictions of the Family Courts. Henceforth, it seems needless to mention that a Family Court can try suits under The Hindu Married Women’s Right to Separate Residence and Maintenance Act 1946, the law that has given a right to the Hindu wives to live in separate houses and to get the maintenance, but has not provided any forum to go to enforce the rights.

Another matter needs to be clarified that the Family Courts Ordinance does not extend to the hill districts of Rangamati, Bandarban and Khagrachhari. The fact is that initially the hill districts used to be governed by Hill Districts Regulation of 1900 and it was repealed in 1983 but as no new law has been introduced for administering the area, as per provisions of General Clauses Act, the repealed law is still in force and the Hill Districts Regulation is still continuing, resulting in exclusion of Family Courts there. This does not mean that tribal people cannot take recourse to a Family Court. The suits among aboriginal or adivasi or tribal people can be tried by a Family Court if they reside within the local limits, that is, territorial jurisdiction of the Family Court.

Special Criminal Laws and Criminal Courts (Criminal Action):

Laws are made with the intention to reduce crime against women. This view has been endorsed in the judgment of Justice Badrul Haque in the case of Amin vs. Bangladesh. The honourable judge observed, “A woman who has been raped undergoes two crisis, one the rape and the other the subsequent investigation and trial. A victim of a sex crime has to undergo certain tribulations. These begin with treatment by the police and continue through a male dominated criminal justice”. In Bangladesh 50% of all murders are of women by their partners, 68% never told anyone about being beaten? Many women do not report it. The lack of proper reporting is not only because of the inadequacy of government officials but also because women themselves are reluctant to report crimes against them for fear of repeated violence, honour or loss of face of their families and for the fear that they will be turned out of their matrimonial home. However, when a wife decides to seek a divorce, she often reports such violence.

A recent research by Dr. Nusrat Ameen stated that the official statistics do not give us a full picture of the incidence of violence against women. This vacuum can only be filled by further research on the issue.

The Cruelty to Women (Deterrent Punishment) Ordinance of 198? was replaced by the Repression against Women and Children (special enactment), Act xviii of 1995. This Act has provided death penalty for ten crimes against women and children (under sections 4, 5(b), 5(d), 6(1)-(4), 7, 10(1) and 12). The crimes affecting women and children include causing death by corrosive substance, causing permanent damage of the body by corrosive substance, for rape, for rape with murder, for rape with attempt to murder, for group rape, for group rape with murder, for dowry death and for trafficking of children.

The Repression of Women and Children (special enactment), Act xviii of 1995 has been amendedby the Act in 2003. The new Act made changes mainly with the intention to minimise the huge number of pending cases and to expedite disposal of cases without inordinate delay. A limit of 120 days was provided in the Act of 1995 this limit was extended up to 180 days for giving enough time for trial of cases under the Act of 2000.

Broad outlines of the sections of the amended Act of 2003 below will highlight the Criminal Procedure for crime against women: Nari O Shishu Domon Ain of 2003, Section -18: Investigation of an Offence:

1.Irrespective of any law in the Criminal Procedure Code investigation of any offence under this Act

1. when the accused person is caught red handed by the police or by any other person and has deposited him to the police, the investigation must be finished within 15 working days from the date when the accused was caught.
2. when the accused person is not caught red handed, his investigation will be completed within 60 working days from the First Information Report (FIR) or otherwise by the related officer or any other Officer with the power or from the date of the order given by the Tribunal.

2.If the investigation is not completed within the time fixed by sub-section (1), the Investigation Officer will complete the investigation by additional 30 days by submitting the cause of delay by writing, and give a reasoning for the cause to his Controlling Officer by writing or otherwise, the written report has to be submitted to the Tribunal which gave the order.

3.If the investigation is not completed within the time fixed by sub-section (2), the investigation officer will complete the investigation within 24 hours stating the reason for delay to the Controlling Officer or, the written report stating the reason for delay have to be submitted to the Tribunal which gave the order.

After the acknowledgment that the report was not completed under Sub-section (3), the Controlling Officer or the Tribunal which gave the order, can handover the investigation to another Investigating Officer and in this way when the investigation is transferred to the Investigation Officer-When the accused person is caught -red handed by the police or by any other person and has deposited him to the police the investigation must finish within 7 working days from the date when the accused was caught or in other cases he must complete the investigation within 30 working days.

5.If the investigation is not completed within the time fixed by sub-section (4), the investigation officer will state the reasons for delay to the Controlling Officer or, give a written statement stating the reason for delay which has to be submitted to the Tribunal which gave the order within 24 hours.

6.If the investigation is not completed within the time limit then after verifying the written report -of the Investigation Officer, the Controlling Officer or otherwise the Tribunal, which ordered the investigation, has to decide whether the Investigating Officer is responsible for not giving the report of investigation within the time limit, then it will be notified that the responsible person is an unqualified and had done misconduct and this un-qualification and misconduct will be written in his yearly confidential report and in a particular case he will be accused as per service rules.

7.If the Tribunal is satisfied after verifying the investigation report that the person who is regarded as accused is required to be taken as witness, the Tribunal can order the person to be a witness instead of accused. 8.After concluding the evidence of the witnesses, if the Tribunal finds that the Investigation Officer under this Act, in the investigation report is trying to save the accused person or without examining a valuable witness or falsely finding no proof to determine the crime the accused person is made witness instead of accused then the aforesaid Investigation Officer will be charged for his act or will be regarded as an unqualified person doing misconduct and will be charged for this un-qualification and misconduct by the Tribunal by giving order to the Controlling Officer of that Investigating Officer to take legal action against him. 9.The Tribunal can change the Investigation Officer and order the Controlling Officer to appoint another Investigation Officer when any petition is given to the Tribunal or on the basis of any information.

Nari O Shishu Domon Ain of 2003, Section -20. The procedures of the Trial:.All offences under this Act will be tried by the Tribunal of Nari O Shishu Nirjatan Domon Ain under section 25. When a case is started in the Tribunal it will continue continuously in every working day until the trial is completed. The Tribunal must finish the procedure of trial by 180 days from the date of submission to it. If the trial is not done by that time limit, then the Tribunal can bail the accused person and if the accused person is not given bail then the cause of not giving bail have to be written down by the Tribunal.

Women and Children Nirjatan Domon Tribunal:-1.Under this Act for the trial of offences there will be a Tribunal in each district and if needed, the Government can make more than one Tribunals; these Tribunals shall be known as the Nari O Shishu Nirjatan Domon Tribunal.

2.There will be a judge in the Tribunal and the Government will appoint the above judge of the Tribunal from the District and Sessions judges of the Government.

3.The Government if required will appoint any District and Sessions Judge as additional Judge of the said Tribunals.

4.In this Act, District Judge and Sessions Judge will be named as Additional District Judge and Additional Sessions Judge.

Nari O Shishu Domon Ain of 2003, Section 28 Appeal: By taking order from the Tribunal, the accused party can appeal to the High Court Division within 60 days of the judgment or detention. During investigation of the case, if the Tribunal is of the opinion that any woman or child needs to be kept in safe custody, it may order that such woman or child be taken out of the prison and kept in safe custody home designated by the government or in consideration by the Tribunal be handed over to any organisation or person in this regard under section 31 of the Act of 2000. For privacy of the victims section 14 provides a restriction on the media from identifying the woman and child victims of violence. It provides a punishment of maximum two years and one lakh taka or both for non-compliance of the section. This provision is needed for the protection of the victim from the clutches of the violators and again if it is not publicised the case is sometimes not accounted for.

Different kinds of violence and the law

Offences against women have taken modern aggravated forms, which were more or less absent in the past, as for example acid throwing or murder for dowry. Crimes against women have risen after independence. The causes for the increase are similar to the increase of dowry; in many cases, dowry itself is the cause. Women in Bangladesh are facing not only aggravated forms of conventional crimes but also new types of crimes.

Dowry: The dowry system is not recognised in the religion or the law of the Muslim societies but has spread into it. Conversely, Islamic law provides dower to enhance the status of women. Why should Muslim women, who are supposed to be protected by dower, become victims of dowry? While recent scholars have admitted the fact that dowry has spread to the Muslim communities, they have largely ignored the position of Muslim women within this discourse.

Dowry deaths are a common phenomenon in South Asia. These deaths of women are usually caused by the same persons who are legally and socially enjoined to protect them, i.e. their husband or in-laws.

The Dowry Prohibition Act of 1980 prohibits the taking or giving of dowry. The Repression Against Women and Children Prevention Act of 2000 Defines Dowry as: Money, goods or other property given or promised directly or indirectly by the brides side to the groom or his father, mother or any other person from the bridegrooms side at the time of marriage as consideration or condition of the marriage and any such money, goods or property demanded from the bride or the bride’s side by the groom, his father or mother or any person from the groom’s side [Section 2(j)] .

The Repression of Women and Children Prevention Act of 2000 Section 11 States:

If any woman’s husband or husband’s father, mother, guardian, relation or any person acting for the husband, causes the death of that woman for dowry or attempts to cause death or injures such woman for dowry or attempts to cause such injury the husband or husband’s father, guardian, relation or any person shall:

a.For causing death be punishable by death penalty or for attempt to cause death by life imprisonment and in both cases shall be liable to pay additional fine:

b.For causing injury shall be punishable by rigorous life imprisonment or for attempt to cause injury be punishable by rigorous imprisonment up to the term of maximum fourteen years but not less that five years and In both cases be liable to additional fine.[1]

Rape/Sexual Assault: Rape is probably one of the most common forms of violence against women in Bangladesh to date. Usually money and muscle are the reasons why the crime goes unpunished.

In most of the investigations conducted by Odhikar, the victim’s family was too poor and ignorant of the law to seek legal recourse. In one case, the victim’s father, a rickshaw puller, told Odhikar that he did not know the lawyer’s name, but knew what he looked like. In another case, the lawyer has been demanding payments for every court appearance while asking the court for more time. Rape in Bangladesh is a punishable offence. As Section 376 of the Penal Code states: “Whoever commits rape shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, unless the woman raped is own wife is not under twelve years of age in which case he shall be punished with imprisonment for life or with imprisonment of either descriptions for a term which may extend to ten years, and shall also be liable to fine…” Rape is also committed by law enforcement officials. All these cases are not reported due to intimidation by the perpetrators and also due to the fear of social stigma. Of all the cases of rape in police custody brought to light so far, very few of the offenders have been held accountable. One reason for this could be the fact that members of the police carry out investigations regarding crimes allegedly committed by their own colleagues.  Thirteen women were raped by members of the law enforcement agencies in the year 2000, the youngest being a girl of six who was raped by a police constable in Panchagar.

Women and Children Repression Prevention Act of 2000 deal with the offence of rape and provides severe penalties. Section 9 deals with punishment for rape, gang rape as well as injury or death caused as a result of rape. For the offence of rape, the perpetrator will be sentenced to rigorous life imprisonment with additional fine. For death caused by rape or incidental to rape, the accused may be sentenced to death or rigorous imprisonment and will be required to pay fine up to the limit of taka one lakh. In the case of death or injury caused as a consequence of gang rape, each of the perpetrators will be sentenced to death or rigorous imprisonment with the requirement of additional fine up to the limit of taka one lakh. In the case of attempt to cause injury or death after rape, the accused will be punished with the sentence of life imprisonment with fine. For attempt to rape, the penalty fixed by the Act is rigorous imprisonment or seven to ten years with additional fine.

On June 16th, 2003, an amendment bill of the Women and Children Repression Prevention Act, 2000 was placed in Parliament to clarify definitions of certain offences and reducing punishment to stop the abuse of law. The bill was passed by the Parliament on 13th July, 2003. Under the new Act, the definition of a child has been raised from 14 years to 16 years. Moreover, where a woman commits suicide for fear of losing her chastity due to the wilful act of a person, then that person will be accused as a provocateur and will be punished for the offence with imprisonment of five to ten years.

Most remarkable amendment is regarding the destiny of a child born out of rape. Under the amendment, a child born out of rape will be kept under the care of the mother and will be known after his/her mother or father or both. Beside the State will be responsible for the child until s/he attains the age of 21 years and, in case of a girl, until she gets married. The State will realise the money for bringing up the child from the rapist. The Act provided that the opinion of the rape victim has to be taken if the need for camera trial arises or if the victim has to be taken under safe custody.

Section 13 States: Irrespective of anything contained in any other act, if any child is born as consequence of rape-

1. The rapist will be responsible for the maintenance of the child
2. After the birth of the child, the tribunal shall determine who will be the custodian of the child and the amount to be paid by the rapist to such custodian for the purpose of maintenance of the child.
3. Unless such child is disabled such sum shall be payable in case of a son until the age of 21 years and in the case of a daughter until her marriage and in case of a disabled child until such child becomes capable of maintaining himself or herself.

Section 376 of the Penal Code mandates two years imprisonment, or fine, or both, for the rape of a woman by her husband. Section 342, however, requires that a woman undergo a medical examination immediately after rape, which in practice minimizes the possibility of a conviction being made.

The Women and Children Repression Prevention Act of 2003 (Nari O Shishu Nirjatan Domon Ain of 2003) The Act uses and defines the terms sexual abuse and sexual harassment for the first time. Section 10 states that if any male, in order to satisfy his carnal desires, touches the sexual or any other organs of any woman or child with any organ of his body or with any other object, his action will amount to sexual abuse or abuses the modesty of any woman or makes any indecent gesture, his act shall be deemed to be sexual harassment and for this such male will be punished by rigorous imprisonment for a term which may extend up to ten years but shall not be less than three years and shall additionally also be liable to fine.

Confusion may be created in cases where the same offence is dealt with in several existing laws. Acid crimes come under the Acid Crimes Prevention Act 2002, but the provisions of the Penal Code 1860 as well as the Woman and Child Repression Prevention Act of 2000 regarding the same offence has not been omitted and this may create confusion as to which Court or Tribunal or which law the case should be instituted under. Even though as special law these take priority, and the laws themselves state this, the confusion persists and ought to have been clarified. The same problem may arise in the case of rape which is covered by both the Code and the Act of 2000.

Acid Violence and the Acid Crimes Prevention Tribunal: In Bangladesh acid violence is a dreadful and vindictive form of crime which is committed mostly against women. It is a major subject of national concern and is being reported frequently by media throughout the year. Acid violence is a terror which must not be adhered in any civilised society. Before independence acid violence was almost unknown in Bangladesh. Section 4 of the Acid Crime Act, 2002 prescribes death penalty or rigorous imprisonment for life including fine taka not more than one lakh if any body causes death or makes an attempt to cause death to any child or woman by using any burning substance, e.g., acid. import, production, storage, sale or usage of acid without a license is a punishable offence. But the mechanisms prevalent to regulate importation, preparation and sale of the acid used in these attacks are inadequate. However, the Acid control Act, 2002, provides for the formation of a national council to control the selling use, production, import, transportation and storing of acid.

The Acid Crimes Prevention Act 2002 contains provisions regarding trial procedures, investigation of offences and negligence of investigating officers, medical examination and so forth. The Acid Crimes Prevention Act 2002 sets up an Acid Crimes Prevention Tribunal and all offences under the Act are to be tried by this Tribunal. Appeals against any order, judgment or punishment imposed by the Tribunal must be made to the High Court within 60 days. Section 28 also contains the provision for safe custody for any person during the continuance of the trial and specifies that such custody shall be outside the prison and by order of the Tribunal.

Multi-Sectoral Programme on Violence Against Women:

There is a multi-sectoral project on violence against women which includes five ministries including the Women and Children Affairs (MOWCA) which works with the objective to eradicate or at best reduce crime against women. The major activities include the establishment of six One Stop Crisis Centers (OCC) for victims of violence that will provide medical, legal and social services; upgrading of forensic facilities with DNA profiling; information campaigns; training plans for police, lawyers, judiciary and medical personnel.

The Objectives of this programme are: improved public services such as health, police assistance, criminal justice and social services (counselling, rehabilitation) for the women victims of violence, increased public awareness on all forms of VAW, etc.

Activity OCC-BNWLA joint legal support program: This is a flow description how BNWLA works at the activity level under the OCC program. The activities of the BNWLA Lawyers can be categorised as follows: Once a patient get admitted under the OCC centre the lawyers of BNWLA take the history of the survivors and the incident, which are being registered instantly. Consulting with the duty doctor about the severity of the incident and injury the respective lawyers talk to the police officer in duty. On the basis of the information collected from the responsible officials the Lawyers decide to file a GD or FIR with the consent of the survivors. This the lawyers went for a legal counselling to let the survivors understand that she may get legal support.

Ensuring legal support: After filing the case the lawyer collect a copy of the FIR and Vokalatnama having sign from the survivors and in the office they have to prepare the order sheet and enter into the register. If the judgment comes against the Survivors, then according to the process the lawyers appeal against the judgment to Higher Court.

Violence agonist women is increasing and indicates generally that the amount of different crimes against women is so high that the time has come to introduce measures to eradicate them. Clearly, the need of the hour is to protect women from violence through the law. The whole issue of violence against women did not project the flaws in the criminal justice system or what else we require, to make the system effective giving proper justice to women as justice delayed is justice denied.

The Convention on Elimination of All forms of Discrimination Against Women (CEDAW): The strongest instruments of change in society are the laws that it is governed by. There are existing laws in the country, which guarantee many rights for women. But many of them are archaic and need immediate reform or amendment. Discriminatory laws need to be abolished and replaced with more progressive ones. New laws have to be formulated to reflect Bangladesh’s concurrence with international laws such as the Universal Declaration of 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.

The Convention on Elimination of All forms of Discrimination Against Women (CEDAW) was adopted on December 19, 1979 and came into force as a treaty on September 3, 1981 following its ratification by twenty countries. Ratification obligates governments to pursue a policy of eliminating discrimination against women and to report on progress in that effort to the UN Committee on the Elimination of Discrimination. Article 1 of the Convention defines discrimination as:

‘Any distinction, exclusion or restriction made on the basis of sex, which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.’

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.

The good news is that more than half of the world community has ratified CEDAW. The bad news is that a large number of countries– 168 states–have submitted reservations. Seventeen of these countries have a majority Muslim population and includes Bangladesh.
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.

Chapter seven

7. Women’s status on social context:

The ambiguity surrounding the question of violence against women in Bangladeshi society on the one hand, violence is held in repugnance and may provoke outrage. For example, a man who sprayed acid on and killed his new wife, on grounds of her inadequate dowry, was hacked to death by villagers in Northern Bangladesh[2]. On the other hand, violence against women is accepted, tolerated and .in certain prescribed forms and given contexts. it is legitimated. Gender inequality, leading to gender violence, is deeply embedded in the Bangladeshi social structure; all Bangladeshi social institutions permit, even encourage the demonstration of unequal power relations between the sexes[3]. The legitimating of male violence, especially battering, allows it to be seen (by women as well as men), as a deserved response to female transgression of male demands or controls. Thus, women feel shame and guilt – as well as anger in some cases – which militates against the reporting of battering. Murder, acid throwing and abduction may suffer less from stigma in reporting. Other factors contributing to the under-reporting of violence against women include: the lack of awareness among women of their legal rights; the perception that their cases will be treated with derision and/or ignored by the police; and the fear that making charges will compound problems with their husband and his kin. Rape probably evokes the greatest feelings of shame among women, and thus is most likely to be under-reported. Nevertheless, Jahan[4] suggests that the rise in reported crime against women in Bangladesh may reflect a rise in the reporting of rape, but also an increase in the incidence of assaults on women and in the proportion of female victims of violent crimes. She notes that in 1980, 12.4 percent of the victims of all reported violent crime were female, whereas by 1984, the proportion had risen to 32.7 percent. A rise in the availability of weapons such as guns and acid, and also the increased portrayal of violence in the mass media in imported films, as factors which may be associated with the rise in violent crimes, including those against women.

Avoidance of women’s rights is the continuous practice. It is a social sickness. Our social system is not uncourageous, society discouraged women’s to establish their rights. The state enacts general and special legislations and has enforcement mechanism to protect women’s rights but in different ways these are ignoring, and the protective measures fails its goal. We have to come out from this concept.

Chapter eight

8. Recommendations:

There is a good amount of legislations in our country concerning women. crisis of laws and drawbacks also available in law for the women. Our social thinking and concept also discourageous and negative. Some cases women are given more rights than male.

Legal status of women indicate to what extent women enjoy equality in the socio-economic and political spheres of the country. Laws protecting women’s rights provide the essential framework for formal equality to be transformed into reality. They also provide legal protection to women’s rights by critically intervening in health, education and employment sectors to.

The constitution of the People’s Republic of Bangladesh is the ultimate source of the fundamental rights enjoyed by men and women. However, the day to day life of the people is governed by two sets of laws: civil and personal. The civil laws cover the rights of women under the constitution; the personal laws cover the family life.

An analysis of the relevant text of the constitution shows that the guarantees of equal rights between men and women do not extend to the private sector (i.e., the inheritance of parental property and matters concerning the family). In ratifying the UNCEDAW, the government had reservation regarding the provisions related to equal rights within the family. This is a sharp departure from the commitment made by the government to establish gender equality. The civil laws are supposed to maintain non-discrimination between men and women. But some of these laws are openly discriminatory against women. The Citizenship Act of 1951 is an example of such discrimination. This act encroaches upon a woman’s right to enjoy the same legal status as that of a man.

The criminal laws are not based on religious laws. Still these laws fail to maintain non-discrimination between men and women in some cases. Under the existing criminal laws, rape is defined as an act of sexual violence, but proving charges of rape has been made very difficult for a woman as the rules of evidence require that the victim has to medically prove the act as well as her lack of consent. The victim and the accused have been put on the same footing as the law requires that the victim’s testimony must be corroborated.

The constitution guarantees non-discrimination and full application of the existing labor laws in the industrial sector. Women workers hardly get any protection from these laws. Widespread disregard of the existing labour legislation is a rule rather than an exception. Existing practices in industrial workplaces enable the management to bypass its statutory obligations. Preferential recruitment of unmarried women and extending the period of probation of workers beyond the statutory period deprives many female workers of their legitimate/legal rights.

Despite a rapid increase in the number of women workers in the informal sector, their rights are not protected by law.

A wide gap exists between the rights and status of women guaranteed by the Constitution and those imposed on her by social norms and practices reflected in personal laws. The family laws are based on personal laws of the respective religious community into which a person is born. Thus, civil laws and personal laws co-exist perpetuating male-female disparities with regard to marriage, divorce, guardianship, custody of children and inheritance.

Under the Muslim law, marriage is a contract between two individuals and to make it valid the consent of both partners in the presence of two witnesses is essential. With regard to child marriage, the law states that should a girl be married off by her parents during infancy, the marriage must be endorsed or dissolved by the girl on her attaining puberty. In a bid to restraint child marriage, the Child Marriage Restraint Act 1929 (amended in 1984) raised the minimum age of marriage for both women and men. The 1984 amendment fixed the minimum age at 18 for women and 21 years for men. But widespread contravention’s of this law proves that its enforcement is very weak, and there is hardly any prosecution for any breach of this law. Although, the law provides for punishment in cases of contravention, the act has no provision to make such marriages invalid. Limited polygamy is permitted in Islam where by a man is allowed to marry upto four wives at a time on condition that: (a) the husband has the means to maintain the wives according to their status; and (b) all the wives be given equal share of his love and affection and be treated by him with complete equality. But in the absence of any mechanism to enforce these directives, the senior wives generally become victims of the husband’s cruelty and neglect.

In an attempt to provide protection to these wives, the Family Ordinance 1961 forbids a man to contract a marriage during the subsistence of an existing marriage without the prior permission in writing of the Arbitration Council and the wife/wives. The punishment consists in the immediate payment of the entire dower or mahr (a fixed sum of money agreed to be paid by the husband to the wife). Prompt dower is immediately payable on demand to the wife and deferred dower is payable on dissolution of marriage. The punishment also includes imprisonment upto one year or a fine of Tk 5000.00 or both. However, the ordinance has no provision to make the subsequent marriage illegal. Under the Muslim law, divorce can be attained in any of the following ways: (a) mutual consent of the husband and the wife without court intervention; (b) a judicial decree on request of the wife on one or more grounds specified in the Dissolution of Muslim Marriage Act 1939 and the Muslim Family Law’s Ordinance 1961; and (c) divorce by the husband at will without assigning any reason.

However, the right of talak (divorce), where a marriage is irrevocably and immediately dissolved by simply pronouncing the intention in front of witnesses, has been modified by the Muslim Family Laws Ordinance, 1961. Under the procedure to be followed, talak does not become effective immediately. A period of 90 days would have to intervene between the date of serving the notice to the Union Parishad chairman (the lowest tier of the local government system in Bangladesh) and the date when the divorce becomes effective.

The right to divorce at will is not enjoyed by a Muslim wife unless her husband confers this right on her in the marriage deed (kabin) registered by the Muslim Marriage Registrar. However, she can obtain a divorce through a court decree, which is an uncertain, lengthy and costly process involving complicated procedure. Despite the legal reforms, gender discrimination still persists in the sphere of marriage and divorce.

Under the Muslim law, the wife inherits a fixed share of one-eighth of the deceased husband’s estate if he leaves behind agnatic descendants. If he does not leave behind any agnatic descendants, then the wife inherits a quarter of the husband’s estate.

A daughter, who is an only child, inherits half the estate of her late father or mother. If there is more than one daughter and no son, then the daughters jointly inherit two-thirds of the estate. However, if there is a son (or sons), then the daughter’s or each of the daughters share will be equal to half of the son’s or half of each of the son’s share. In all cases within the family men inherits more than the women do. Thus, in the area of inheritance also, personal laws continue to remain grossly gender discriminatory.

Under the Muslim law, the mother is never entitled to guardianship of her children. It lies with the father and after him, with his father and brothers. However, the mother is entitled to the care and custody of her sons until they are seven years old and of her daughters till puberty.

The laws, as modified by the Guardian and Wards Act of 1890, states that the welfare of the children is more important than the rights of the parents. A mother may also have her children beyond the specified ages if the court is satisfied that they would not be well looked after by the father. The mother may also apply to the court for guardianship of the children. But it involves expensive and time-consuming litigation over a long period. The father may dispose of the child’s property under certain circumstances, but the mother cannot do so without the prior permission of the court even if she is the appointed guardian of the child. A Muslim mother is entitled to maintenance from her son if he is solvent financially (The Muslim Family Laws Ordinance, 1961).

The existing law requires that every Muslim marriage solemnised must be registered. There has also been an enactment titled ‘Marriage and Divorce Registration Act, 1974. But even a casual observation in the rural areas reveals that a vast majority of the marriages are not registered.

Again, despite the existence of a law to restrain child marriage, the girls are being married off well below the minimum age of 18 years. However, it is difficult to enforce this law due to the absence of the birth registration practice in Bangladesh, particularly in the rural areas. Although, religion has made provisions for dower (an amount payable to the wife), the payment is rarely made. The society has made provisions for dowry (money, jewelry, and luxury items presented by the bride’s guardians at marriage), and it has become a tradition. Non-payment of dowry, more often than not, brings disaster to the lives of many women.

In response to the demands voiced by women’s organisations to amend existing laws or/and enacting new ones to improve women’s legal status, the government from time to time amended existing laws and enacted new ones. These include: (1) The Muslim Personal Law (Shariah) Application Act 1937; (2) The Dissolution of Muslim Marriages Act 1939; (3) The Muslim Family Laws Ordinance 1961 (Amended in 1986); (4) The Muslim Family Laws Rules 1961; (5) The Muslim Marriages and Divorces Registration Act 1974; (6) The Muslim Marriages and Divorces Registration Rules 1975; (7) The Dissolution of Muslim Marriages Act 1939; (8) The Family Courts Ordinance 1985; (9) The Family Courts Rules 1985; (10) The Bangladesh Penal Code 1860; (11) The Evidence Act 1872; (12) The Civil Procedure Code 1903; (13) The Criminal Law Amendment Act 1938; (14) The Suppression of Immoral Act 1933; (15) The Dowry Prohibition Act 1980; (16) The Cruelty to Women (Deterrent Punishment) Act 1983; (17) The Woman and Child Oppression (Special Provision) Act 1995; and (18) Maternity Benefits Act 1939.

While the civil laws are applicable to the Hindu community, marriage, divorce, inheritance and guardianship, which relate to the private sphere, are governed by the Hindu Personal Laws. These laws have remained unchanged since 1947 (the year of partition of the subcontinent).

In the Hindu religion, marriage is a sacrament, not a contract. The foremost duty of a Hindu father is to marry her daughters off. The girl’s consent in marriage is not required; nor is divorce possible; and unrestricted polygamy is allowed. The father is always the preferred guardian of his children, while the mother can be the guardian, her rights are inferior to those of the father. Not all daughters of a man are equally eligible to inherit. In order of priority, unmarried daughters and married daughters with sons can inherit. Married daughters beyond child bearing age and widows without sons cannot inherit. The Hindu laws permit adoption, but only of boys.

The laws for the Christian communities in many cases gender biased and controversial to the constitution, and human rights. Right to divorce, right to alimony, Rights to maintenance are largely gender discriminatory. It should be overcome by new legislations and make thes effective. There is no personal law for the tribal, Buddhist and some other religious communities people in our  country. There is a wide demand in this purpose.

To protect women’s rights, to make effective laws relating to women in our country, authority of the state should find out the drawbacks of the legislations and amend them if necessary or new legislations shall enact for the specific issues. Being the member of the society we have to change our traditional negative concept and practice and encourage the women to protect their rights to make successful the laws of women.

Chapter nine

9. Conclusion:

The legal status of women is a isolated in law and practice in our country. Some times women are given more rights than the male. Violence agonist women is increasing and indicates generally that the amount of different crimes against women is so high that the time has come to introduce measures to eradicate them. Clearly, the need of the hour is to protect women from violence through the law. The whole issue of violence against women did not project the flaws in the criminal justice system or what else we require, to make the system effective giving proper justice to women as justice delayed is justice denied.

Violence against women is a phenomenon much older than human rights concept. It is one of the major manifestations of gender discrimination, an essential outcome of the existing patriarchal social system. Mains-treaming of violence against women has engendered the international human rights framework. A much-needed clarity in understanding of human rights has been established. This has enhanced chances for protection of women’s human rights the world over.

The underlying marginalisation of women in political decision-making and infringement of their right to freedom from violence are consequences of the general acceptance of inequality and social tolerance of violence against women. Bangladesh is committed to various international conventions such as the Declaration on Violence (Vienna 1993) and CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women)³⁸. These commitments are reflected in the National Policy for the Advancement of Women (1997). However, in dealing with the progressively alarming situation of violence against women, each successive government seems to be concerned with passing of laws and tightening the legal provisions while little attention is paid to the fact that laws are not enforced, procedures remain inappropriate and the perpetrators of violence often enjoy political impunity. Women’s movement has persistently highlighted these issues and has continued to demand holistic measures for administrative reform and action for elimination of unequal access to political power, discrimination and violence against women. Apparently, we have take effective measurement to protect the women’s rights and interest in whole for our sustainable development.

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