Execution Of Foreign Decree In Bangladesh

Introduction

The Bangladesh constitution declares equal rights for men and women in all spheres of public life. According to the Article 28(2)[1]of the constitution of People’s Republic of Bangladesh, “Women shall have equal rights with men in all spheres of the state and of public life.”[2] The word ‘public’ seems to be only in the spheres of state and public life, where the equality is assured through the constitution. This means, in the private or personal sphere women are pretty much on their own, and even if her husband for whatever reason continuously tortures her, until she is killed, the state is unlikely to interfere. The result is that women continue to be treated as substandard human beings by their husbands and by society that tends to victimize victims instead of help them.

On 4 December 1995, Salima, a 19-year-old Muslim woman living in the old part of Dhaka city, brought a legal complaint against her husband, Asad, a truck driver. Salima and Asad were married in august 1994, under the customary Islamic legal tradition, and their marriage was duly registered. Salima claims that the first month of their marriage passed by peacefully without any incident. Gradually, her husband started to demand money and various expensive items from her, accusing her of cheating him out of his dowry. When Salima’s father, who was very poor, was unable to provide the dowry demand, Asad began to abuse her physically. This went on for several months, even though Salima’s father had given Asad a suit and a heavy gold chain. Salima gave birth to a son on 5 august 1995. Two months prior to bringing this complaint, Salima’s mother wanted to visit her. On hearing of this proposed visit, Salima’s parents-in-law chased her out of the house, saying that she could return only if she were able to satisfy their claim of dowry. She and her son took shelter at her parent’s house. The night before she filed the complaint her in-laws came by microbus and forcefully took her son away. A friend of her husband also tried to pull her into the vehicle but she resisted. Later she found out that her husband had been married previously and had chased the former wife away also because she was unable to pay the dowry demanded. Salima wants custody of her child and claims maintenances from her husband.

Now, in this case of Salima, according to Muslim law, if she is granted a divorce, she cannot expect to receive maintenance any longer than three months from the date of the divorce. If she is successful in gaining custody of her child it will be a temporary right that will expire when the child reaches seven years. Even this temporary right translates into a mere ‘custodianship’ over her child since the law dictates that the father is the legal guardian of the child. Her husband, therefore, can take all decision on behalf of the child but she cannot.

Moreover, Salima, even if she is given a divorce and granted custody of her child, she cannot remarry a person of her choice. If she is to remarry as well as retain custody of the child she must marry the child’s uncle or immediate blood relative. Or else she is to immediately lose her child.

The Legal System of Bangladesh

The Bangladeshi legal system is a mixed arrangement of laws that consist of a combined influence of indigenous, Moghul and English legal imprint. Upon independence in 1971, Bangladesh inherited this vast mixed body of jurisprudence.[3] By the Bangladesh Order 1972, this large compendium of laws was adopted and made applicable for the governance of Bangladesh. The legal system of Bangladesh is categorized in two distinct branches – Constitutional Law and General Law.

Constitutional Law

Constitutional law is a set of legal rules, which regulate the structure of the organs of government, their functions, and their relationship with each other and with the citizen. Constitutional law consists of two aspects, which are —

o                   Human Rights

o                   Fundamental Principles

General Law

General laws are the laws that are not directly governed by the constitution. These laws consist of, but are not limited to, 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 laws, terms used interchangeably in most discourses with ‘Family Laws’, are subsumed under this General Law category and govern by civil law.

Review of Existing Laws

In certain cases the remedies provided by the existing laws overlap and often, because of their archaic character, are rendered inconsequential to the parties in question. Requirement for the reform and update of such laws are highlighted herein. Of special interest will be those laws and those cases, which, depending upon the party’s religious affiliation, provide a different remedy for one and the same injury. Within this category are those cases where the treatment of women differs from the treatment of men, irrespective of religious association, as well as within the same religious category. Some examples are given below —

o       Marriage

In Bangladesh marital rights are separately governed by each religious community’s “religious personal law” system[4]. Muslim parties are regulated by the Muslim Family Ordinance 1961 or Muslim Marriages and Divorce (Registration) Act 1974. Hindu parties are regulated by (among others) the Hindu Marriage Disabilities Removal Act 1946 or the Hindu Widow’s Remarriage Act 1856.[5] Christian parties to marriage meanwhile, come under the Christian Marriage Act 1872.

The existence of separate laws for laws for each community means that the religious community a woman belongs to will determine the kind of justice meted out to her. Within these laws there are some laws that discriminate women in large part. Such as —

Ø                  Muslim Marriage and Divorces (registration) Act, 1974 prescribes a form, called a ‘kabinnama’, in which particulars of the marriage agreement are documented. Section 5 of this form inquires whether the bride is a virgin, or a widow or a divorcee; no such query is made to determine the status of the man.

Ø                  Additionally, while a Muslim man may validly marry a Christian or Jewish woman, a Muslim woman may marry only a Muslim man.[6]

o       Divorce:

Ø                  A husband’s right of divorce in Muslim law is unencumbered.[7] The wife has no part in the procedure, which is further indicated by the fact that she does not have to be present nor must she be informed.

Ø                  Where as a wife has to prove certain condition such as – the husband has not been known for a period of four years, or the husband has neglected or fail to provide for her maintenance for a period of two year, or the husband has taken an additional wife, etc. to get divorce from her husband.

Ø                  While in case of Hindus it is not possible for a woman to have divorce in Bangladesh. A Hindu man can have several wives; there is no stipulation for the equal treatment of any of them, as is the case in Islam. The most she may get is limited relief under the Hindu Married Women Right to Separate Residence and Maintenance Act, 1964, under section 2 of which she is entitled to separate residence and maintenance from her husband.

o       Remarriage

Ø                  Muslim women have to observe iddah for a period of 90 days in order to determine pregnancy, and paternity of the child. They cannot remarry during this period.[8]

Ø                  A Muslim woman will lose the custody of her child if she remarries a person of her choice.[9] If she is to remarry as well as retain custody of the child she must marry the child’s uncle or immediate blood relative.

o       Child Custody

Ø                  Under Muslim law a mother is not entitle to the legal guardian of her children as of right. Being the primary care giver, she has the first claim of custody, in the case of her male child, usually until the age of seven years, and in the case of her female child, till attainment of puberty. Even during this period, the father continues to be the children’s legal guardian and maintainer.[10]

Ø                  According to Hindu law, if a father changes his religion, he will not lose custody of his children.[11] But a mother does upon her religious conversion.

Ø                  Section 39 to 44 of the Divorce Act, 1869, of Christian community deals with the guardianship of children.[12] The Act requires that the child be brought up in its father’s faith and a mother may be deprived of her right to guardianship if it is likely that the child will not be so brought up.

o       Inheritance

Ø                  A husband takes one-fourth of his wife’s estate.[13] If his wife has no living children or children of a son, he takes one-half. Where as a wife inherits one-eight of her husband’s estates if there are children or children of a son, and one-fourth if there are no children.

Ø                  A daughter inherits either as a primary heir or an agnatic heir (an heir who inherits in the right of another). When there is no son, a single daughter inherits one-half of the estate. If the decreased had left behind two sons and three daughters, the division would be as follows: two sons — four-sevenths (two-sevenths each), and three daughters, three-sevenths (one-sevenths each).

Ø                  A Hindu woman’s position under the Hindu law of inheritance is much worse than that of her Muslim counterpart. A Bangladeshi Hindu woman’s right to inheritance is non-existent. A widowed, sonless or childless daughter cannot inherit, as she cannot afford spiritual benefit through a son. Therefore, unmarried daughter and daughter with a son are the inheritors, while married daughter with daughter and childless daughter are excluded.

o       Adoption

Ø                  While Muslim law does not allow adoption, under Hindu law only men have the right to take a male child for adoption. Hindu women are not allowed to adopt any child.[14]

o       Nationality

Ø                  The Citizenship Act of 1951, states that only a man can transmit nationality[15]. A woman does not have the right to transmit her nationality to her children or husband.

Ø                  In Bangladesh the citizenship Act relegates women to second-class citizenship, as they acquire their citizenship from their father or grandfather.

o       Ultra-protective laws

Ø                  The Factories Act, 1934, the Tea Plantation Labor Ordinance, 1962, and The Shops and Establishment Act, 1965, impinging on fundamental rights of women with impunity, calculatedly taking on only a selective notion of women’s capacity. All these laws gravely restrict women’s right to movement or choice of employment. These laws prohibit employment of women and children between the hours of 8 p.m. and 6 a.m. or other than between 7 a.m. and 8 p.m.

Some safeguards provided by Govt.

Governmental activism in recent years has brought about a number of important instruments, which allow certain laws to be uniformly applied in the personal matter of all citizens, irrespective of their religious tradition. These enactments include:

Ø      The Nari-o-Shishu Nijratan Daman Ain, 2000 (Laws on the Suppression of Violence against Women and Children, 2000).

Ø      The Dowry Prohibition Act (35 of 1980).

Ø      The Cruelty to Women (Deterrent Punishment) Ordinance, 1983 (Ordinance no.60 of 1983).

Ø      The Family Court Ordinance (Ordinance no. 18 of 1985).

Ø      The Family Courts Rules, 1985.

Ø      The Guardians and Wards Act, 1890.

Recommendations on Existing Laws

o             In the matter of marriage, divorce, custody and guardianship of children and inheritance, men and women would be treated by an equal standard.

o             Irrespective of the ritual aspects of marriage under each religious tradition, all marriages would be registered under the civil law.

o             Child marriage would be abolished. The minimum age for marriage for both en and women would be fixed at 18 years.

o             In the case of marriage the witnesses’ capacity should be equal to men and women.

o             Registration of all marriage, whether civil or religious, should be made mandatory.

o             The mother and the father would be the natural as well as legal guardians of the children. In the absence of parents, either the closest relatives or person designate by parents would be responsible for the guardianship of the children.

o             After the dissolution of marriage the maintenance of the child would be borne by each parent on the basis of his or her financial capability.

o             The power to dissolution a marriage should be equal for both husband and wife.

o             Both man and women should be free to remarry after divorce proceedings finalized.

o             In case of divorce the property acquired during married life by either of the parties shall be divided equally between husband and wife.

o             Men and women to inherit equal share through inheritance. Female child should be treated as equal to a male child.

o             Right to adoption should be open to all irrespective of gender or marital status. Welfare of child and competence of adoptee to be main basis of consideration.

o             Both male and female child can be adopted.

Conclusion

The strongest instruments of change in society are the laws that it 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 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Along with the government the private sectors should come forward. Our social and cultural norms are not favorable to improvements in women’s status in Bangladesh. It is necessary to find ways of modifying the existing traditional view. While religious and culture have to be respected, violations of basic human rights in the 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.

Bibliography

1.         Bangladesh. (2009). Retrieved September 15, 2010, from Emory Law: http://www.law.emory.edu/ifl/legal/bangladesh.htm

2.         Ali, S. (n.d.). Aasha Mehreen Amin. Women?, 12-13. Star Magazine.

3.         AMIN, A. M. (2004, March 5). Star Magazine. Retrieved October 15, 2010, from The Daily Star: http://www.thedailystar.net/magazine/2004/03/01/coverstory.htm

4.         Amin, A. M. (2007). Time To Get Back on Track. Star Magazine, 4.

5.         Becket Fund for Religious Liberty. (2008). United Nations Human Rights Council, 1-2.

6.         (n.d.). In F. R. Hasan, & S. Ali (Ed.), Study on the Possible Reform in the Existing Muslim Family Law & Procedure. Dhaka: BNWLA.

7.         Homemakers.net. (n.d.). Retrieved October 16, 2010, from E Home Makers: http://www.ehomemakers.net/en/print.php?id=1055

8.         International Solidarity Network. (2003). Knowing our rights. London: Zubaan.

(Feb 2000). In M. Islam, Constitutional Law of Bangladesh. 2nd ed. Dhaka: Mallick Brothers.

9.         John L. Esposito, N. J.-B. (2001). Women in Muslim family law (2nd ed.). United States of America: Syracuse University press.

10.        OFFICE OF THE LAW COMMISSION. (2006, February 19). Proposed Amendment of the Divorce Act.

11.        Oulé Jansen, Y. (2007). Muslim Brides and the Ghost of the Shari’a. 5(2).

12.        Pereira, F. (2002). The Fractured Scales . Dhaka: The University Press Limited.

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[1](Bangladesh, 2009)

[2](Becket Fund for Religious Liberty, 2008)

[3](Pereira, 2002)

[4](Amin, 2007)

[5](AMIN, 2004)

[6](International Solidarity Network, 2003)

[7](Pereira, 2002)A Muslim man who has attained puberty and is of sound mind has the right to divorce his wife whenever he wishes without citing a cause.

[8](Hasan)

[9](Homemakers.net)A Muslim woman may also lose her right to custody if upon divorce she remarries someone who is not related to her children within the prohibited degree.  The person next in line who is entitled to custody is the child’s maternal grandmother.

[10](Oulé Jansen, 2007)

[11](Pereira, 2002)If a father changes his religion, he will not lose custody of his children.

[12](OFFICE OF THE LAW COMMISSION, 2006)

[13](John L. Esposito, 2001)

[14](Becket Fund for Religious Liberty, 2008)

[15](Amin, 2007)

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