Chapter three
- Important Issues Relating to women and protection of Law
3.1) Marriage:
Muslim marriage
Marriage in Islam is a contract and every Muslim of sound mind who has attained puberty may enter into a contract of marriage. Puberty is presumed, in the absence of evidence, when one reaches the age of 15 years, but this presumption is rebutable.Until the age of puberty, a minor may be given in marriage by his or her guardian and though this is in fact against the provisions of the Child Marriage Restraint Act, such a marriage even under that Act would not be void. Under the Sharia Hanafi, a girl given in marriage below the age of puberty can repudiate that marriage after she attained it and up to the age of 18 provided the marriage was not consummated. By statute puberty is no longer relevant and girl given in marriage below the age of 16 can repudiate the marriage either on the attaining of 16 years, or puberty, where she was married before puberty. Since according to the Sharia a girl is free from guardianship at puberty and by the time she is 13 this is assumed, the law presents another anomaly in that a girl can give herself in marriage if she wishes below the age of 16, if she has attained puberty and the marriage would be valid though the person officiating and the groom himself where he was over 18 would be liable for punishment under the Child Marriage Restraint Act. Registration of Muslim Marriage under section 3 of the Muslim Marriages and Divorces (Registration) Act, 1974, “Notwithstanding anything contained in any law, custom or usage, every marriage solemnized under Muslim Law shall be registered in accordance with the provisions of this Act.” That meams registration is mendatory. Non-registration of Muslim marriage is punishable, but marriage is not void or void able due to non-registration in any law.
Though a minor may be given in marriage, no minor may contract herself in marriage during her minority and any such marriage would be held to be void (9D.L.R.1957 p.45) Where a minor has been given in marriage and marriage has been consummated before puberty such consummation does not operate to deprive the minor of the option to repudiate after puberty (9 D.L.R.1957 p.45) However there appears no provision for explaining or informing the minor of this right either at the time of her marriage or when she attains puberty. It would further appear that even in cases where a girl was given in marriage before puberty, she attained puberty or say the age of 14 1/2 years and subsequently the marriage was consummated, she should have the right under statute to repudiate the marriage after she was 16 provided there were no further acts of consummation between the period of her 16th or 18th years.(8 D.L.R.1956 p.77)
A Muslim male can contract valid marriage with a Muslim as also with a Ketabi (Jew or Christian). But his marriage with an idolatress will be irregular. On the other hand, A Muslim woman may not contract a valid marriage with any one else but a Muslim. A marriage with a Christian or a Jew would be irregular while a marriage with a Hindu would be invalid (that is any children born would be illegitimate). It simply means that while a man may marry someone who is not his “social equal” a woman should be protected against such marriages.
A Muslim male can take four wives at a time, but a Muslim woman cannot take more than one husband. Even a male marries having already four wives; the fifth marriage is not void, but only irregular. Though Islamic Law vastly improved the then status of woman, the idea of woman being a property could not be altogether thrown away as can be found from the permissibility of plurality of wives. However, realizing the evil effects of and the injustice inherent in the polygamy of men Muslim Family Laws Ordinance, 1961 (Ordinance No.VIII of 1961 Vide Pakistan Code 1966 Vol.XIV, P.67) was passed. Sec.6 of the Ordinance provides that no man, during the subsistence of existing marriage, shall contract another marriage without prior written permission of Arbitration Council and violation of this provision entails liability of conviction and punishment. The Arbitration Council while dealing with an application for permission to marry during the subsistence of a marriage would consider whether the existing wife consents to such marriage and whether it is necessary and just to grant the permission. But this legislation failed to produce the desired result because due to protracted procedure in courts few inclined to bring violations to court and because the Arbitration Council being manned by males very often were not un-willing to accord permission on the slightest pretexts. The law did not make adequate provision to control the discretion of the Arbitration council.
By Bengal Act No.1 of 1876 (Vide East Pakistan Code, 1963 Vol. 11. p.71) provision was made for registration of Muslim marriages, but registration under this Act was optional. Muslim Family Laws Ordinance 1961 made the registration compulsory and enjoined the Kazi (who solemnizes marriage) on pain of punishment to report solemnization of marriage to marriage registrar so that the marriage may be registered. Similar provisions have been made by Muslim Marriages and Divorces Act, 1974. One of the essential part of Muslim marriage is “dower” paid or promised to be paid by the husband to the wife. Dower must not, however be confused with “dowry” which consists of presents made by father and other relations of the bride and Muslim Law does not make any provision for payment of dowry.
Dower is the sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage. The amount of dower may be fixed either before or at the time of marriage of after marriage. The law does not say anything about the quantum of dower. The amount of dower is generally split into two parts- “prompt dower” which is payable immediately on demand by the wife and “deferred dower” which is payable only on dissolution of marriage by death or divorce.
Muslim personal law has been taken initiative to abolish intervening marriage. Muslim Family Law Ordinance, 1961 comprises provision to abolish intervening marriage. As per section 7(6) of the Ordinance, it has been provided that nothing shall debar a wife whose marriage has been terminated by talak from remarrying the same husband, without an intervening marriage with a third person up to tree times and after which the dissolution become irrevocable.
In our social context, rights of the brides are violated, forced consent are usually practiced. Child marriage is often solemnized which leads to offence, including even death. Intervening marriage often solemnizing in rural area which is violation of human rights, why it should after thee times effective divorce. In my point of view, child marriage should properly restraint. Birth registration has been completed in our country; a column should be added with “Form-E” for “Birth Registration Number” of brides under Muslim Marriages and Divorce Rules, 1975. It can reduce Child marriage.
Hindu Marriage:
According to Hindu social customs, Hindu marriages are solemnised through religious rituals. In the Hindu religion, marriage is a religious duty, not a contract. In Bangladesh, Hindu marriage follows no legal proceedings rather social customs. Besides, Hindu marriage rituals or formalities vary from caste to caste. Family Court Ordinance, 1985 aims at resolving legal disputes related to dissolution of marriage, restitution of conjugal relation, dower, maintenance, and guardianship and custody of children. A Hindu woman can seek help from the ordinance only when the marriage is solemnised by Special Marriage Act 1872 and registered. It is amazing that there is no specific Hindu marriage law or no marriage registration system for Hindu people in Bangladesh. But, now days to legalize the marriage a Hindu couple can seek help from the court. The couple may notarise their marriage in front of two witnesses (one of the witnesses may be the priest who solemnised the marriage but it is not mandatory) like in Muslim marriage. After that the marriage will be registered. Problems arise when the parties from different religions would like to marry each other without changing their religion. Special Marriage Act 1872 is the preliminary solution of the problem but in case of determining inheritance of their successors it is really an impossible task as no domestic law can resolve the problem.
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.
2. 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.
3.Bigamy has been made punishable as an offence.
4.The conditions and requirements of a valid marriage have been considerably simplified.
5. Several matrimonial reliefs e.g., restitution of conjugal rights, judicial separation, nullity of marriage and divorce have been provided in this Act.
Hindu women in Bangladesh suffering for absence of marriage registration:
‘Minati Karmakar in her 20s suffers at her husband’s house for inability to bring dowry. Minati’s husband tortures her, as she cannot bring dowry money for him. Fed up, one day she leaves her husband’s house and returns to her parents. The husband is still after her and insists to return to him with dowry money.
The harassment is too much for her to bear. Minati wants to terminate the marriage. She goes to court and finds to her surprise that the Hindu law does not help her much.
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.
Consider the case of Kazali Rani Das, 23. She works as a day-labourer at her village. Her neighbour, Sanjoy Madhu, lured Kazali with a marriage proposal and convinced her. Then they got married and began their conjugal life at the house of Kazali’s parents. Before long, Kazali becomes pregnant and Sanjoy is asked to take Kazali to his own house.
Kazali’s trouble begins here. It does take long for Kazali to understand that she has fallen into a trap. Sanjoy delays to take Kazali to his house by making false excuses and later disclaims his marriage with her. Kazali is now too helpless to express her plight. Society does not want to believe what she says. She has no official document, as her marriage was not registered. This is no exception. It happens to thousands of Hindu women in Bangladesh.
According to Hindu social customs, Hindu marriages are solemnized merely through some religious rituals. There is no marriage registration system for Hindu people in Bangladesh. It is surprising that there is also no Hindu marriage law or Hindu marriage register in the country. So, if any Hindu woman suffers in the hands of her in-laws, she does not get legal help.
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.
A total of 926 marriage cases were received by Ain O Shalish Kendra during July 2003 to February 2004 period. Of them, only 17 cases were related to Hindu women. Says lawyer Nina Goswami, “Hindu women do not complain much fearing the marriage will break. That fear grips them because divorced Hindu women find it hard to get new husbands. There is no law allowing Hindu widows to remarry.”
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.
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.
Awami League presidium member Surajit Sen Gupta says, “Hindu laws need to be reformed in our country. But the free democratic environment that is needed for the reforms has not properly developed yet.”
Hindu religionist and Professor of Culture and Pali Department of Dhaka University Dr Niranjan Odhikari says, “Marriage registration is as necessary as the babies’ birth registration. It will be helpful if Parliament makes laws in this regard.”
President of Metropolitan City Universal Puja Committee Swapan Shaha says: “There should be laws to guide Hindu marriage, including rights to divorce because Hindu women are sometimes forced to leave their husbands’ houses. In such a case, a woman should be able to obtain legal divorce and take another husband.”
Organising Secretary of Bangladesh Mohila Parisad Rakhi Das Purkaistha says, “Marriage registration is a legal right of women. Marriage registration needs to be obligatory to all people irrespective of religion, cast and creed because marriage registration does not disregard religion.”
But leaders of Hindu, Buddhist, Christian Oikya Parishad have different views. They think marriage registration is unnecessary for Hindu people. They think Hindu boys believe in single marriage and the number of those who go for polygamy is very few. The leaders say Hindu women will be repressed more if marriage registration and divorce laws are enacted.
A Hindu woman social worker, preferring anonymity, regrets, “People in our country only think of the society. They forget that marriage registration is a right of women”. Advocate Nina Goswami also says, “In fact, the Hindu women have no right in our country. But we have nothing to do.”
The government can proclaim an ordinance regarding the registration of the existing Hindu marriages with the support of the local government like birth registration side by side sophisticate the Muslim Family Law Ordinance to be supportive to the other religious community. It will be a remarkable act and will put an end to the applications of religious personal laws. I think it is high time to withdraw the reservation for the full implementation of the international instrument and it is also necessary to change the domestic laws as a complement. A unitary personal law codification is very much necessary.
Christian, Buddhist, Tribal etc.
The Christian Marriage Act, 1872 (Act No. XV of 1872), relates to solemnization of marriage of persons who professing Christian religion. Marriage Registration is mandatory in Christian law. U/s 5 of the act, marriage can be solemnized. The act provides that any marriage solemnized other than in accordance with the act shall be void. Marriage under Christian law is in the nature of contract and hence there should be a free and voluntary consent between the parties. When there is a minor, as defined in the act, the consent of father or guardian is necessary. Marriage is not permitted between the parties who are within the prohibited degrees of relationship u/s 19 of the act. There is no legal impediment for marriage between a Catholic and a Protestant. By marriage, the husband and wife becomes one person, the legal existence of the women is incorporated and consolidated into that of the husband.
There is no law in our country regarding marriage or marriage registration of Buddhist and Tribal community. There is wide demand for registration of marriage and divorce for all communities alike. Because of non registration women are subjected to different humiliation. There is a big tribal community in our country. To avoid gender discrimination and to establish fundamental rights and human rights and equality before law, and to develop the community proper enactments and steps is very necessary for this concern.
[1] Mustag Ahmed Vs Mahmud Amin P.L.D. 62. Karachi 442 quoted in Women’s Legal Status in Bangladesh by Sufia Ahmed and Jahanara Choudhurry. P.301
[2] . Fazlur Rahman – Islam P. 39 quoted in Legal Status of Women in Bangladesh by Salma Sobhan.
[3] Dhaka Law Report, 1956 P.77
[4] D.F. Mulla, Principles of Mohamedan Law, 17th Ed.P.277
[5] http://www.thedailystar.net
[6] : The Daily Star, June 04, 2004
[8] The Daily Star, June 04, 2004