WOMEN’S LEGAL STATUS : DOMESTIC LAW ( PART 1 )

Chapter one

  1. Introduction

               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.

Womens legal rights are one of the most significant determinants of their status. In Bangladesh, a series of laws ensuring womens rights have proven largely ineffective in promoting their positions. The prime reasons for this are: the shortcomings and ineffectiveness of laws, womens inability to access legal proceedings, the traditional and cultural negative views about womens rights, the absence of an accountable and transparent government, the expensive and time consuming judicial process, the lack of an efficient judiciary, and other socio-ecomic reasons. The core theme of the thesis concentrates on the shortcomings and ineffectiveness of laws, although viewing them within the context of those other factors. To signify the ineffectiveness of laws, emphasis is basically placed on the administrative and judicial approaches in the country to achieve the underlying objectives of law concerning womens rights in pertinent areas. This study aims to promote protection of womens rights by recommending remedies to flaws in prevailing laws in Bangladesh in four areas. Recommendations are made by reference to comparative and international practices. The primary arguments developed and maintained throughout the thesis are: (i) the protection of womens rights is imperative to improve their status and law is an essential instrument to ensure these rights; (ii) the legislative, administrative and judicial efforts in Bangladesh are not appropriate and conducive to dealing with womens rights; and (iii) improvements in those efforts can better protect womens rights. This study critically examines laws regarding womens employment and political participation and the laws on dowry and rape. It also explores the ways laws have been structured and enforced in Bangladesh, and how law can be an effective means of womens pursuit of rights. In so doing, this thesis analyses and compares a range of legislation and judicial decisions of a number of selected common law jurisdictions. Findings of the research demonstrate that the legal efforts of those countries resulted in significant improvements in traditional laws and enforcement procedures regarding employment, dowry as a form of domestic violence, and rape. Conversely, in Bangladesh, the age-old common-law grown formalities continue to dominate the legal and judicial proceedings and therefore fail to provide remedies to the contemporary needs of women. The present legal regime also suffers from an important flaw with regard to the scope and extent of liabilities for the violation of laws designed to protect women’s equal and special rights. The absence of any independent administrative body to monitor the compliance of laws presents another serious flaw in the current legal regime of the country. Such shortcomings eventually encourage and favour the wrongdoer, worsening the vulnerability of already disadvantaged women in the traditional culture of Bangladesh. In responding to such a situation, the present study recommends the reconceptualisation of laws to accommodate women’s unique experiences in Bangladesh. The study ends with a number of specific recommendations for ensuring women’s rights through strengthening the legal and enforcement mechanisms in Bangladesh

1.1) Scope and object:

As a woman who could be a man’s mother, sister, daughter or wife, who is given the equal constitutional rights with man, who is equally fit to run the state activities like a man and who is intellectually no less fit than a man in other spheres of life is being sold and purchased like cows, goats and sheep away from her natal home in gross violation of human rights; she is being taken to unknown far off places for being used either as a cheap labour or mainly as sex worker. This trading in women has of late stirred the wisdom of the world and throughout the world this shameless abuse of humanity has raised a voice to save the woman wherever she may be and whatever may be her caste, creed or religion by enacting new laws or updating the old ones and applying them through courts and tribunals.

This socially, politically and economically deplorable condition of women and recent world wisdom effect to improve their position and fate in society through motivation, legislation and awareness which have prompted me to undertake for investigating this socio-legal human problem of women of Bangladesh,.

Abuse of women’s rights and gender discrimination is available in our country. Finding out the drawbacks of law of women and recommendations for fill up the drawbacks, to pass new legislations in some issues, endorsement the rights of the deprived communities of the country in law, to create a positive social revolution for the women is stand on the objectives of the thesis.

Objectives of the Study

Law may be termed as a behavioural science as it regulates human behaviour. Changes in society demand that law should move with the time if it has to remain alive and active. The objective of legal research is to find out lacunae or deficiencies in the existing laws and to suggest suitable measures to eliminate them.

The objective sets the boundaries of a research problem. The main focus of the research proposal is to set its objectives properly. The proposed study focuses on legal status of women in Bangladesh.

The objectives of the proposed study are :

  1. To elimination of gender discrimination,
  2. To protect women’s rights in legal and social regime,
  3. To find out the drawbacks of law and deprivation of some communities, and recommendations,
  4. Determining women’s legal status in domestic law, etc.

Scope of the Study

The issue of legal status of women is multi-dimensional. It has several aspects e.g. criminological, economical, ethical, geographical, health, human rights, legal, moral, sociological etc. to be researched.

The focus of the study is mainly on legal aspect. So far comparative study on the existing laws relating to women in has been done. The study has made an evaluation of laws relating to women.

The relevant case laws of both the Bangladeshi and Indian courts have been used. All the relevant laws existing in Bangladesh have been used. For the study, up-to-date laws and laws framed (for three countries) till 2008 were used. Besides, the study made an investigation into the present situation of women in law in Bangladesh.

1.2) Justification of the Study

The extent of legal status of women has reached alarming proportions in Bangladesh. Though, mentionable laws against determining women’s legal status exist, their implementation remains weak.  There is a serious lack of enforcement.

In this regard, for our sustainable development, we have to make our women a strong hand. Delimitation of women’s rights, established, protection, and enforcement of women’s rights is very necessary. The thesis tried to focus it.

In this context, the proposed topic of the study is very timely. And, the work of the study is worth mentioning and suitable for a Ph.D. degree.

1.3) Utility

The proposed study is an attempt to examine the development and effectiveness of laws relating to legal status of women existing in Bangladesh.

      It’s utilities are as follows:

  1. By this research the legal status of will be investigated in a proper perspective;
  2. It will study and examine the existing laws relating to women which will be a real contribution to the store-house of legal knowledge;
  3. It will help the researchers, academicians, human rights activists and law makers to have an access to laws relating to women of the selected countries;
  4. The study will hopefully succeed in surveying literature on women and related laws; and
  5. The study is a initiative to create social positive thinking and practices and to make effective the existing laws,
  6. The study can remind amendment and enactment of necessary laws,
  7. The work itself is believed to be of immense academic value for students, teachers and researchers concerned.

1.4) Methodology

Sources

Since the work belongs to the field of law, the primary sources of the research are: (i) Constitutions of Bangladesh, Charter of the United nations and different Conventions, (ii) Acts and Statutes relating to trafficking in women in Bangladesh, and (iii) International Conventions and Instruments relating to women and human rights.

Case laws, published and unpublished articles, books of renowned Scholars and Jurists are important sources for this research. Government documents relating to the subject as a primary or secondary source have been used. In addition, Law Reports and Law Journals were major sources of materials for the thesis.

Law Reports, Law Journals and other published works in this field were available in the Library of the Supreme Court of Bangladesh; Bar Council Library, libraries of different bar associations and universities, and of the Government and non-governmental institutions.

Research and documentation cells of different human rights organisations as well as international agencies e.g. UNICEF, UNHCR, United Nations information Centre (UNIC), World Bank etc. stationed in Dhaka and concerned ministries were also used as sources of the research. The same work was also done within the country.

Method of Research

Method of research may be understood as the method or technique that is used for conducting a specific research.[1] It does constitute a part of the many dimensions of the research methodology.

In conducting the study, several methods of legal research[2] e.g. analytical, historical, comparative and critical were used. Books, published and unpublished articles, official documents, paper clippings, case laws[3] etc. were helpful in this regard. In order to get a first hand knowledge on the issue, the researcher while visiting these countries interviewed the concerned academicians, government officials, human rights activists, judges, lawyers and members of law enforcing agencies. In interpreting case laws, Internet, both analytical and critical approach was used and rational arguments have been made.

Chapter two

  1. Laws Relating to Women in Bangladesh

Legislation for Muslim Community:

  1. The Muslim Personal Law (Shariat) Application Act,1937 (Act XXVI of 1937).
  2. The Dissolution of Muslim Marriage Act,1939 (Act No. VIII of 1939).
  3. The Muslim Family Laws Ordinance, 1961(Act No. VIII of 1961).
  4. The Muslim Family Laws Rules, 1961.
  5. The Muslim Marriages and Divorces (Registration) Act, 1974.
  6. The Muslim Marriage and Divorce (Registration) Rules, 1975.

Legislation for Hindu Community:

  1. The Hindu Marriage Disabilities Removal Act, 1946 (Act No. VIII of 1946).
  2. The Hindu Married Women’s Right to separate Residence and Maintenance Act, 1946 (Act No. XIX of 1946).
  3. The Hindu Women’s Right to Property Act, 1937 (Act No. XIIX of 1937).
  4. The Hindu Disposition of Property Act, 1937 (Act No. XIIX of 1937).
  5. XII of 1928).
  6. The Hindu Widow’s Re-marriages Act, 1856 (Act No. XI, XV of 1856).
  7. The Hindu Validity Act, 1949.

Legislation for Chirstain Community:

  1. The Christian Marriage Act, 1872 (Act No. XV of 1872).
  2. The Christian Married Women’s Property Act, 1874 (Act No. XV of     1872).
  3. The Divorce Act, 1869 (Act No. IV of 1869).
  4. The Succession Act, 1925 (Act No. 39of 1925).

Legislations Common to all Communities:

  1. The Penal Code, 1860 (Act No. XLV of 1860).
  2. The special Marriage Act, 2923.
  3. The Child Marriage Restraint Act, 1929.
  4. The Guardians and Wards Act, 1890.
  5. The Births and Deaths Registration Act, 1873.
  6. The Birth, Deaths and Marriages Registration Act, 1886.
  7. The Foreign Marriage Act, 19093.
  8. The Bengal Maternity Benefit Act, 1939.
  9. The East Bengal Maternity Benefit Rules, 1931.
  10. The East Bengal Maternity Benefit (Tea Estates)Act,
  11. The East Bengal Maternity Benefit (Tea Estates) Rules, 1954.
  12. The Mines Maternity Benefit Act, 1941.
  13. The Arya Marriage Validation Act, 1937.
  14. The Orphanages and Widow’s Home Act, 1944.
  15. The Registration Act, 1974.
  16. The Child Marriage Restraint Act, 1929.
  17. The Dowry Prohibition Act, 1980.
  18. The Family Courts Ordinance, 1985.
  19. The Family Courts Rules, 1985.
  20. The Cruelty to Women (Deterrent Punishment) Ordinance, 1983.
  21. Oppression of Women and Children (Special Enactment), 1995.
  22. Nari O Shishu Nirjaton Daman Ain, 2000.
  23. The Acid Control Act, 2002.
  24. The Acid Oporadh Daman Ain, 2002.

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