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CHANGES NEEDED UNDER HINDU LAW IN BANGLADESH
In Bangladesh no such changes has been brought about in Hindu law after 1947. Where as at the same time the Indians brought out an extensive changes in their law. An example like Hindu. In this respect D.F. Mulla said in his book Principles of Hindu law, ‘the outstanding feature of alternation made in the law by the latter enactment is that in effect it eliminates all disparity in the right of men and women in matters of succession and inheritance’.
Marriage, according to Hindu law is a religious sacrament. Marriage is a holy union for the performance of religious duties. According to Vedas a marriage is “the union of flesh with flesh and bone with bone. Thus a Hindu marriage looked upon as something which is more of a religious necessity and less of a physical luxury. It is a union which the Vedas regards as indissoluble. As long as he husband is alive, the wife is enjoined to retard him as her god, like was the wife is declared to be half the body of her husband, who shares with him equally the fruits of all his acts, good or bad.
Maintenance is a right to get the necessities which are reasonable. The right of maintenance arises from the concept of an undivided family. The head of such a family is bound to maintain its members, their wives, and their children. All members of a joint family, whatever be their status, and whatever be their age, are entitled to maintenance. Manu said in this respect “The aged mother and father, the chaste wife, and an infant child must be maintained even by doing a hundred misdeeds.” Under Hindu Law, a person has personal obligation to maintain his Wife children, aged aid infirm parents. It arises from the very nature of the relationship and exists whether he possesses property or not.
Divorce however, a thorny question in Hindu law. Divorce was unknown to genera; Hindu Law, as marriage was regarded as an indissoluble union of the husband and wife. Manu has declared that a wife can not be released from her husband either by sale or by abandonment, implying that the marital tie cannot be severed in any way. It, therefore, follows that the textual Hindu Law does not recognize a divorce and does not believe in discontinuance of the marriage relationship. He declares, “Let mutual fidelity continue till death; this in brief may be understood to be the highest Dharma of husband and wife. The duty of a wife continues even after her death. She can never have a second husband.
According to the Hindu rules to accept others son as ones own son in called adoption. Manu defines an adopted son an follows : “A son equal in caste and affectionately disposed whom his matter or father (or both) give with water at a time of calamity, is known as the Dattrima (Dattaka) Son’)Thus 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 adopted son is then taken as being born in the new family and acquires right, duties and status there only, and his ties with the old family come to an end.
As joint and undivided family was the usual family structure in the ancient Hindu society. So, the law makers of the then period had hardly dealt about the law of inheritance. That individual Hindu family was joint both in state, food and worship. Life and death is only are certain things in human life. The question of right of succession gets priority after the death of a property holder who would be the successor of the deceased person became very important matter.
Hindu Family Law Reform before 1947
In the text of Narada, a wife could marry again if her husband is missing or dead or impotent etc. No where explanation is found as to how a wife could remarry without giving divorce. Those laws which were enacted in the British period relating to women’s right are given below:
1) Satidaho Protha Nibaran Ain, 1829
2) The Religious Freedom Act, 1850
3) The Hindu Widows Remarriage Act, 1856
4) The Special Marriage Act, 1872
5) The Guardian and Wards Act, 1890.
6) The Hindu Disposition of Property Act, 1916
7) The Child Marriage Restraint Act
8) The Hindu Law of Inheritance (Amendment) Act, 1929.
9) The Hindu Gains ofLeaming Act, 1930.
10) The Hindu Women Right to Property Act, 1937.
11) The Hindu Women Right to Education. 1939.
12) The Hindu Married Women Right to Separate Residence and Maintenance Act, 1946.
13) The Hindu Marriage Incapability Disabilities Removal Act 28 of 1946.
Reforms whether needed in Bangladesh-An Analysis:
Reform and amendment in Hindu Family Law was done before the 1947 of which few are mentioned earlier, are same for India and Bangladesh. In Chapter Three of this study, a comparative review of Hindu Family Law in context of Bangladesh and India has been done, showing how reforms(before and after 1947) in Hindu Family Law in India brought changes in the situation of women’s status. These changes of our neighboring country made us to take the initiatives to undertake this study as an initial step towards that goal and also to find out the desired expectations of the Hindu community regarding possible- change and amendment in their existing family law.
Key questions of the study were addressed on Inheritance, Marriage, Divorce, Maintenance and Adoption. Amongst Hindus all aspects of their life, inheritance, marriage, adoption are governed by two distinctive schools-Mitakshara and Dayabhaga system. In Bangladesh the Dayabhaga system is followed.
In India amendments has been brought in Inheritance law by which the women’s status was upgraded and they could enjoy the property right.
As per ancient Hindu law, Marriage is sacrament, a union of flesh with flesh, bone with bone,- to be continued even in the next world.
Significant changes are also brought in areas of Divorce,and Remarriage of widows in India.
Maintenance is a right to get the necessities which are reasonable to survive for a family, woman, and children. The right of maintenance arises from the concept of an undivided family under Hindu Law; a person has personal obligations to maintain his wife, children and aged and disabled parents. As per ancient text the obligations are so severe that a text of Manu cited in the Mitakshara and the Parasara Madhavya that, “It is declared by Manu that the aged mother and father, the chaste wife and an infant child must be maintained even by doing a hundred misdeeds.”
Section 3(b) of the Hindu Adoption and Maintenance Act, 1956 of India defines maintenance (1) for all, provision for food, clothing, residence, education, and medical attendance and treatment. (11) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage. It does not rest upon contract. It arises from the very nature of the relationship and exists whether he possesses property or not.
Adoptionis 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. Under the textual Hindu law, the main intention of adoption is religious and only man can adopt. Right of adoption is very restricted for women. But the amended law on adoption, in India is more modem and progressive with flexible provisions such as female right to adopt, condition of adoption etc.
As in Bangladesh the old Hindu Customary law-is still continuing by which the Hindu women are still being deprived of some of their basic rights. But the changes are hardly needed in Bangladesh.