3.2) Divorce:
Divorce in Muslim Personal Law:
It is in the field of divorce that the most flagrant inequality between husband and wife exists. The husband has the right of unilateral divorce, for no cause at all. The wife has no such right, and when her husband exercises his right, the wife has no redress.
The women can have judicial separation on specified grounds through intervention of Court. The Muslim Family Law Ordinance 1961 though has already provided for arbiters, the arbitration council cannot prevent the talak by the husband even if it be highly arbitrary and unjust and can only delay the action in the hope that some conciliation will result. The most common mode of divorce by man prevalent in Bangladesh is Bedai Talak (Irrevocable Divorce) which takes effect mmediately without the requirement of communication to the wife for its validity. The husband pronounces three times that he divorces his wife and with the third pronouncement the Talak becomes irrevocable and takes effect on completion of a certain period. This may also be done by writing on a piece of paper.
Once this right was exercised the parties could not re-marry without the intervention of another marriage, i.e. unless the wife was married to a thrid person and then divorced after consummation of the marriage. With the introduction of the Muslim Family Law Ordinance 1961, the position has changed. Section 7 of the Ordinance provides that Divorce given by the husband shall not take effect until the husband has given notice of the Divorce to the chairman of local administrative unit, Union Parishad and ninety days have elapsed after issuance of the said notice and within the said period the husband can revoke the Divorce. The husband is also to give a copy of the said notice to the wife. The Chairman on receipt of the notice would constitute Arbitration Council for effecting a re-conciliation which, if successful, would render the divorce ineffective. It is an offence not to notify the Chairman about exercise of Divorce by the husband. The provisions of Sec. 7 of the Ordinance apply mutatis mutandis in case of divorce exercised by the wife and the divorce does not take effect unless notice thereof is given to the Chairman and 90 days have elapsed thereafter. The husband can delegate his power of divorce to his unconditionally or with condition and that is called Talak-e-Tawfeez. When any condition is stipulated the wife can divorce her husband in the happening of that condition. Now the divorced parties can remarry without the formality of the marriage with third party. (Sec7(6), Muslim Family Laws Ordinance, 1961.)
Muslim marriage can be dissolved by agreement between the husband and wife and it may take the force of Khula or Mubarrat. In Khula, the marriage is dissolved by an agreement between the parties for a consideration paid, or to be paid, by the wife to the husband, it being necessary condition that the desire to separate should come from the wife. Where desire to the separation is mutual, it is said to be Mubarat. A wife is entitled to Khula as of right or restoration of what she had received in consideration of marriage, if she satisfies the conscience of the court that it will otherwise mean forcing her into a hateful union. As stated above, a Muslim female does not have the right to divorce in the way a male has, but she could seek judicial divorce on grounds permitted by Muslim Law. The Dissolution of Muslim Marriage Act, 1939 (Act No.VIII of 1939 (Vide Pakistan Code 1966, Vol.IX,P.716). was passed in order to consolidate and to clarify those grounds and also to add some new grounds.A wife is entitled to obtain a judicial divorce on neglect or failure of the husband to provide maintenance for two years. But if the wife refuses herself to her husband without any lawful excuse and deserts her husband, or otherwise willfully fails to perform her marital duties, she has no right to claim maintenance and cannot obtain a decree for dissolution of marriage on the ground of nonpayment of maintenance. The fact that the wife is a woman of means would not be a defense to the claim of judicial divorce for non-payment of maintenance. A Muslim woman can obtain judicial divorce on any ground recognized by Muslim Law. Thus a wife is entitled to judicial divorce if the husband brings false charge of adultery against her unless the husband bonafide retracts the charge of adultery. To constitute a valid retraction, it must be made before the commencement of the hearing of the suit, it must be bonafide and there must be an admission by the husband about making the charge and an unconditional acknowledgement by him that the charge is false. Incompatibility of temperament as results in a hateful union has been accepted as a ground for seeking judicial divorce. Before the Dissolution of Muslim Marriage Act 1939, apostasy from Islam of either party operated as a complete and immediate dissolution of marriage. After passing of the Act, apostacy from Islam of the wife does not dissolve the marriage (Sec.4 of the Act) while apostacy of the husband dissolves the marriage immediately.
Restrictions have been imposed on polygamy; the husband’s power to divorce remains virtually unrestricted. Women exercising the delegated power of divorcing are seen in oblique eye. After dissolution of marriage the women are deprived of maintenance. It is difficult for the women to go to court for realizing her maintenance and dower after she exercises the power of delegated Talak. Traditional method of dissolving, still dominant. Divorce by adhering to traditional method that means registration by divorce with the Kazis, is still continues. Notice procedure to UP Chairman under section 7/8 is not always popular. Section 6(2) of the Muslim Marriage and Divorce Registration Act, 1974, provides, “an application for registration of divorce shall be made orally by the persons who has or have effected the divorce” but the act does not contain any adverse legal consequence if the registration of divorce is not made. On the other hand, section 7 speaks that the husband shall give notice of talak to chairman. If notice requirement is violated the husband is liable to punishment one year imprisonment of fine maximum Tk.10000/=-or both. So, why the parties shall go for registration of divorce where there is no penal provision for its violation. The Ordinance made provision for constitution of arbitration council within 30 days after the chairman receives the notice. But nothing is said in the ordinance if the chairman does not do his duty. It is may be better to dissolution of marriage and decide about maintenance and dower in any case by the Family Court.
Divorce in Christian Law:
Christian Law creates greater discrimination between husband and wife. Husband is given priority over wife and equality provisions are violated. The divorce Act, 1869 provides for right to divorce (section 10-11), adultery alone is the ground on which the husband can seek dissolution to the District Court or High Court Division. On the other hand, Christian women must demonstrate his adultery coupled with incest (sex relationship with kinsfolk) desertion, or he is guilty of bigamy (taking two wives at the same time), or of rape, sodomy or bestiality (beastliness). So men and women have different standards on self-same matter. Another objectionable side of the act that the husband has a right to get compensation from a person, who had illegal relation with his wife (section 34). In contrast the wife can not pray for such relief. If the court proves that the wife is an adulterer, she is subjected to penalty ands loses her right to alimony. This is also gender biased.
Hindu, Tribal etc.:
No system of divorce is available in Hindu law. According to Dayabhaga law divorce is not possible except on a very limited ground of chastity of wife. But, what would happen if the husband is of immoral character? Section 10 of the Divorce Act 1869 empowers the wife to present petition to the district court or to the High Court division for the dissolution of her marriage on some reasonable grounds. Then, it is a question why not the Hindu women exercise their rights? Are all Hindu marriages not recognized by Bangladeshi law? All of their marriages are void?
On the other hand, Tribal, Buddhist and some other communities has no divorce procedure and divorce registration in Bangladeshi law. Women of these communities became subjected to different humilities. Their fundamental and humanitarian rights are violated fluently. Can we do to preserve their rights?
3.3) Maintenance:
maintenance includes food, clothing and lodging. This definition of maintenance is not exhaustive. Te word includes other necessary expenses for mental and physical well being of a minor, according to his status in society. Educational expenseswere included in the definition in Ahmedullah Vs. Mafizuddin Ahmad (73) AIR Gau.
In accordance with Muslim Law, the father is bound to maintain his daughter until she is married. The fact that the mother has the custody of the daughter till the latter attains puberty does not relieve the father of his obligation to maintain the daughter.If the father is poor, but the mother is in easy circumstances, the mother has the obligation to maintain the daughter. But a father is not bound to maintain a daughter who is capable of being maintained out of her own property. A Muslim mother is entitled to maintenance from her son if she is poor or if the son is financially solvent. A Muslim husband is bound to maintain his wife so long the wife remains faithful to him and obeys his reasonable orders. If the wife refuses herself to her husband without any lawful excuse and deserts her husband or otherwise wilfully fails to perform her marital obligations she has no right to claim maintenance from the husband. But if the wife refuses to perform her marital obligations on the failure of the husband to pay the prompt dower the husband will not be absolved of his liability to maintain his wife. A Muslim woman in the event of divorce is entitled to maintenance by the husband till the expiry of the period of Iddat (e.i.90 days, and in case of a pregnant wife till the end of the pregnancy). A Muslim male maintains his daughter as best as his means permit and a husband also maintains his wife to the best of his ability so long the relationship remains good, but if the relationship is estranged, the condition of the wife is very difficult. The social milieu and cumbersome court procedure made it difficult for the wife to have maintenance through Court. Muslim Family Laws Ordinance, 1961 tried to evolve a procedure through which the wife can easily have her remedy, but it has not produced any appreciable improvement. The Family Courts Ordinance, 1985, however, has been promulgated to deal with divorce and related matters and provisions have been made to dispose the cases of within the shortest time possible. A Muslim widow is essentially dependent on her son, for, generally even her share in the property of her husband remains in the hands of the son and ironically enough, her fate depends upon the attitude of the daughter-in-law. But if the widow has no son to depend upon the relations of the husband; her condition in most cases is miserable.
Muslims, Hindus, Christians, Tribal all are entitled to take resort to Family Court. Muslim can claim under personal laws. Hindu women claim maintenance under their personal laws. Hindu married women’s right to maintenance has been established by the Married Women’s Separate Residence and Maintenance Act, 1946. Hindu women can claim her maintenance on certain grounds. The Christian women can claim alimony (maintenance) under the Divorce Act, 1869. In accordance with this act in a pending suit the wife is allowed alimony from her husband, not exceeding 1/5th of husband’s average net income for three years next proceeding the ate of the order. Apparently, law provides for maintenance but in our social context and legal regime its practice is not good.
3.4) Guardianship and Custody of Children
Custody of children is one of the most gender biased law in our legal system. The concept is that women do not have guardian status in the eye of law. Law of custody and guardianship is a mixture of:
(i) Sunni Hanafi Law,
(ii)Colonial Legislative Innovation (Guardianship and Wards Act, 1890),
(iii) The wide use of the powers of judicial discretion,
(iv) Social and cultural practice of gender stereotyping.
Muslim Law
After divorce mother is entitled to custody of male till seven and female until puberty, of course this age line is flexible on ground of ‘welfare doctrine’. Above this age line father is the legal guardian. Reasons for women’s deprivation the laws view women as, less capable financial provider, incapable social protector. Also the traditional belief that father is the legal guarding. By not giving a mother such inherent right of custody over her own offspring, she is treated as an in competent human being.
Christian Law
Though the Christian Law sounds perfect in protecting best interest of the child, it is discriminatory to the mother. The mother’s right may be denied if it is deemed that such custody might conflict with the bringing up of a child with a faith other than the father’s.
Hindu Law
In Hindu law mother is not legal guardian. Guardians of the minors are: (i) father, (ii) persons appointed by will by father, (iii) person appointed by court and Guardians and Wards Act, 1890. Thus mother can be deprived of guardianship by father by appointing guardian by will. It is a gender biased law and contradictory to the law of equality. Controversially, mother is the natural guardian of her illegitimate child. Thus puts extra burden on mother.
3.5) Inheritance :
Muslim Law
Mmuslim law of inheritance based is based on, the rules relating thereto laid down in the Koran or in the traditions,and the customs and usages prevailing amongst the Arabs in so far as they have not been altered or abrogated by the Koranic injuctions or traditions.
Muslim law of inheritance has two distinct elements, namely, the customs of ancient Arabia and the rules laid down by the Qurand and prophet Mohammad. Under the customary law of pre-Islamic Arabia the women in whatever capacity were excluded from inheritance. The Quran made quite a considerable change of the position. According to to the Muslim Law there are three kinds of heirs (i) “sharers” who are entitled to a prescribed share of the inheritance, (ii) “residuaries” who take on prescribed share, but succeed to the residue left after satisfying the claims of the sharers, and (iii) “distant kindreds” who are blood relations other than the sharers and residuaries, and succeed generally in the absence of sharers and residuaries. In the classification of the heirs, it is important to note that though the son’s son and son’s daughter have been made residuary and sharer respectively, daughter’s children have been made distant kindreds. The principles of succession among the sharers and residuaries are two-fold, i. The nearest in blood relationship excluded the remote one and ii. Whoever is related to the deceased through any person shall not inherit while the person is living. Under the Muslim Law, the wife (or wives taken together) get one-eighth if there is child, and one fourth if there be no child from the estate of her husband, though the husband gets exactly double. Mother gets from the estate of her sons one-sixth when there is child of her son or when there are two or more brothers or sisters or one brother and one sister of her son, and one third when there is no child and not more than one brother or sister of her son. On the other hand, the father gets from the estate of his son one-sixth if there be child of his son and in the absence of any child of his son, he gets the entire residue after satisfying other sharers claim, and so on and so forth. It is significant that the Quran has provided that daughter, mother and wife would under all circumstances be entitled to some share in the inheritance and are not liable to exclusion from inheritance, but they are not treated at par with their male counterparts, i.e. son, father and husband and to this extent rules of inheritance are discriminatory. Women in fact were not given parity in the matter of their shares and as a general rule, the female is given one-half the share of the male. Salma Sobhan writes, since “the Koran is to be likened to an “amending act” rather an exhaustive code… in the changed society there is little reason to perpetuate this distinction.
The case of sister’s inheritance is equally discriminatory. According to the rule of nearer in relationship excluding the remoter in relationship, children of a pre-deceased son or daughter would not inherit if a person died leaving another son. This often rendered the child or child of pre-deceased child destitute. This inequity, however, has been removed by Muslim Family Laws ordinance, 1961, which provides that the children of the predeceased child would inherit the share which the pre-deceased children would have inherited had he or she been alive. But the widow of a predeceased son remains as helpless as before as she does not inherit anything of this ordinance.
Muslim law ensures, females and cognates are made competent to inherit, As a general rule, a female is given one-half of the share of a male, this is because of her lesser responsibilities and obligations in comparision with males. Muslim law of inheritance ensures six classes of females as Koranic shares. But the questions on the point that, “the widow receives very in adequate treatment, for her maximum share is 1/4th of her husbands estate and that too is reduced to 1/8th by the survival of any child of the deceased, and, the most controversial problem in the Muslim law of inheritance is posed by the fact that the Islamic law of intestate succession gives a son twice the share of a daughter, and a brother of the full and consanguine blood twice that a corresponding sister (and, indeed a widower twice a widow’s share, and a father, in certain circumstances, twice that of a mother).In Muslim law the female never get residuary. In law , the newly-created heirs are mostly female. Some deprivation and exclusion from inheritance of women is not justified. Some of rules of exclusion suffer with certain defects and need modifations. For example, the exclution on the basis of homicide, in Hanafi law should be restricted to intentional homicide, a child of fornication should be accepted as an heir in shia law, and the statutes which excludes daughters from inheritance and thus defeat a most cardinal principle of Muslim law, should be repeald.
Chirstian Law
Christian law simply liberal for male female’s succession. Married Women’s Property Act, 1874 and The Succession Act, 1925 provides for Christian inheritance. In Christian law son and daughter get equal from the deceased.
Hindu Law
The main points of difference between Dayabhaga and Mitaksara are: (i) Dayabhaga does not recognise birth-right to property, Mitaksara does so; (ii) Drayabhaga holds, right to inherit and order of succession are determined by principle of spiritual benefit; in Mitaksara blood relationship is the determinant. Spiritual benefit consists in performing obsequial rites and offering pindas (rice-balls). Plainly stated, the right of a person to a deceased person’s property is determined by his capability of offering pinda for the benefit of the latter; (iii) In Dayabhaga, members of a joint family hold shares in quasi-severalty; they can dispose of them even before partition; (iv) In Dayabhaga, even in an undivided family, the window takes the share of her husband dying childless; in Mitaksara, she cannot do so.
In case of inheritance from father, according to Dayabhaga law, sons exclude others except in case of non agricultural property. In case of non agricultural property a wife gets a share equal to that of a son. Sons or son of a predecessed son inherit from their grandfather the share which their father would have inherited if had been alive at the time of their grandfather’s death. If neither sons nor wife, nor sons of a predecessed son is alive, the daughter or daughters inherit with the priority to the maiden daughters. Barren widowed daughter or daughters having no son or probability to have no son are excluded from inheritance to their father. Loss of chastity is also a ground which can exclude a wife or daughter from inheritance. Only five classes of women inherit according to Dayabhaga School of Hindu law. They are according to preference: wife, daughter, mother, father’s mother, father’s father’s mother. But these women inherit only in life interest, that is they are owners with limited rights and on their death the property would pass to the nearest male heir of the deceased male owner and not to the heirs of the female heirs. The woman or women inheriting in life interest can sell the property only for limited legal necessity.
Stridhana Property acquired by women or received as gifts are own property of women and are called stridhana property. They can sell or give away this property as per their desire. Stridhana are devided into four classes according to the origin of acquisition by woman. Succession to stridhana is also different giving the daughters a better right of inheritance.
The order of succession to stridhana, depending on its different kinds, is as follows: (i) Sulka (bride’s price): full brother, mother, father, husband; (ii) Yautuka (gifts made at the time of marriage): un-betrothed daughters, betrothed daughters, married daughters having or are likely to have sons, barren married daughters and childless widowed daughters sharing equally; sons, daughter’s sons, son’s sons, sons’ sons’ sons, step-sons, step-sons’ sons, step-sons’ sons’ sons. In the absence of any of the above, the yautuka of a woman would devolve in the order: her husband, brothers, mother, father; (iii) Anvadheya (gifts or bequests made by the father subsequent to marriage): order of succession is the same as in Yautuka with the difference that (a) sons are preferable to married daughters; (b) in case of a woman, dying childless, the order of succession is brother, mother, father, husband; (iv) Ayautuka (gifts or bequests from relations made before or after marriage; gifts and bequests from father before marriage): Sons and maiden daughters sharing equally; married daughters having or are likely to have sons; son’s sons; daughter’s sons; barren married daughters and childless widowed daughters. In the absence of all the above, Ayautuka devolves in the following order: brother, mother, father, husband, husband’s younger brother, husband’s brother’s son, sister’s son, husband’s sister’s son, brother’s son, daughter’s husband, husband’s sapindas, sakulyas and samanodakas, father’s kinsmen.
Persons deprived of inheritance : The following are some of those who are not entitled to share in properties: impotent, born blind, born deaf, lunatic, idiot, dumb, having deformed limbs, apostate, son of an apostate, incurably diseased, leper, renouncer of worldly life, renegade. A Hindu converted to other religion cannot inherit if the succession opens after conversion. If a Hindu widow remarrys she has to give up the property or right she had received from the previous husband.
Disowning or to disinherit an heir is permitted in Hindu law. Religious endowments are common in Hindu law and person appointed for its management is called shahayet. In the absence of the heirs the property of the deceased male will vest in his preceptor, pupil and fellow-student in this order. Only five classes of women inherit according to Dayabhaga School of Hindu law. They are according to preference: wife, daughter, mother, father’s mother, father’s father’s mother. But these women inherit only when living, that is they are owners with limited rights and on their death the property would pass to the nearest male heir of the deceased male owner and not to the heirs of the female heirs. The woman or women inheriting when living can sell the property only for limited legal necessity.
Practice in India: After the partition of India in 1947 Hindu law was changed in India. In 1955, new Marriage Act was enacted in India whereby marriage system has totally been changed and polygamy given an end. Divorce system was also introduced. Section 13(1) of Hindu Marriage Act 1955 declares the right of divorce to both the parties on some grounds. In 1956, by the enactment of the The Hindu Succession Act 1956, one law was enacted for all the Hindus of India. Sons and daughters were given equal share on the demise of their father or mother while wife or husband was due for one third share. In 1991, the Indian Succession Act 1925 was amended. The amendment eliminates this discrimination against women and provides that both daughters and sons will receive equal shares in the property of both a female and male intestate.
No one can trace the exact time or year of the birth of Hindu law. However, it is believed that Hindu law was not created or promulgated in a day like other laws. It was probably grown through a process of evolution and custom until the writers made it a law. Deprivation from inheritance of women is nothing but injustice or miscarriage of equality. It should be considered by our legislature.
3.6) Trafficking
An alarming increase in crimes against women has raised a serious concern at the state of law and order in the country. In fact, violence against women is an outcome of the prevailing unequal relationship between men and women in our society. In the persisting patriarchal societal structure, social customs, traditions, religious believes and institutional rules and regulations all are tended to marginalize the position, rights and status of women and further more undermine their security. There is a direct relationship between the definition of law and order situation and security of women.The widespread deterioration of law and order situation makes the situation more vulnerable for not only the working women but also for those who remain inside of a house. Even more disturbing is the tolerance by the community of violence perpetrated by ‘well known persons’, gangs or law enforcing personnel.
Presently, violence against women in Bangladesh is existing in all its forms: visible and invisible. Rape, marital and custodial rape, child rape, gang rape, murder, trafficking of women and girls, oppression of women to simple nutritional deprivation are some of the different forms of violence. Women are here considered as an object of repression and no women aged between three and 50 are spared. The incidents of rape in police custody become a new concern for women, which indicates that women are not safe in the custody of the law enforcing agencies.
The Bangladesh Bureau of Statistics in 1993 revealed that women’s death due to unnatural causes (e.g. suicide, murder, burn, poisoning etc.) was almost three times higher than pregnancy related causes.
[1] D.F.Mulla, Principles of Mohammedan Law, 17th Ed.
[2] Salma Sobhan – Legal Status of omen in Bangladesh, Bangladesh Institute of Law and International Affairs, Dhaka 1978, P. 20.
[3] Act N° VII of 1939 (Vide Pakistan Code 1966 Vol.IV, p.716, quoted in Women’s Legal Status in angladesh by Sufia Ahmed and Jahanara Choudhury. P.313.)
[4] Ibid, Mulla. 17th ED.P.305
[5] Obaidul Huq Chowdhury, Hand Book on Muslim Family Laws, the Dhaka Law Reports, Fifth Edition 1997
[9] Ibid, Mulla. 17th ED.
[10] Ibid.
[11] Khaled Rashid, Muslim Law, Third Ed. p. 305.
[12] Women’s Legal Status in Bangladesh by Sufia Ahmed and Jahanara Choudhyry, published in Situation of Women in angladesh, Women for Women 1979. P.295.
[15] Salma Sobhan – Legal Status of Woman in Bangladesh. P.31.
[16] An ordinance to give effect to certain recommendations of the Commission on Marriage and Family Laws dealing with succession, registration of marriage, polygamy, divorce, maintenance, dower, ect.
[18] Sources: Chandra Banerji and Tapan Kumar Chakraborty
[19] Yasmin, op.cit., p. 39.
[20] Ibid., p. 32.
[21] Government of the People’s Republic of Bangladesh, Ministry of Planning, Planning Commission, The First Five Year Plan 1997-2002, comp. p. 168.