- Low of Women under the Penal Code:
Women’s several rights and protection of law have been established in the Penal Code (Act no. 45 of 1860) and jurisdiction is given to the criminal courts. The following provisions are available in the penal code for the protection of women:
Section 366- kidnapping, abducting or inducing woman to compel her marriage,
Section 372 – selling minor for the purpose of prostitution etc.
Section 372- buying minor for the purpose of prostitution etc.
Section 375- rape,
Section 376- punishment of rape (punishment of rape goes to Nari-O-Shishu Nirjaton Daman Ain-2000),
Section 312- causing miscarriage,
Section 313- causing miscarriage without women’s consent,
Section 314- death caused by act done with intent to cause carriage, if act done without women’s consent,
Section 493- cohabitation caused by a man deceitfully inducing a belief of lawful marriage,
Section 494- marrying again during life time of husband and wife,
Section 495- some offence with concealment of favor marriage from person with whom subsequent marriage is contracted,
Section 446- marriage ceremony fraudulently gone through without lawful marriage,
Section 497- adultery,
Section 498- enticing or taking away or detaining with criminal intent a married woman,
Section 509- word, gesture or act intended to insult the modesty of a woman.
These protection of women by the penal code runs in corroboration with Cr.P.C. 1898, Evidence Act, 1872 and some other criminal laws. In our social context, these laws do not run in its full rhythm.
- Protection of women by Special legislations and special court or tribunal:
Enhancement of the legal status of women and for the protection of women a series of enactments was made in the legal regimr of Bangladesh. Women’s are deemed to be the backward section of out country. Many special laws have been passed and special courts or tribunals have been established for thje protection and development of women.
The Family Courts Ordinance, 1985 and family courts (Civil Action):
Family courts, which have been established in the country more than twenty years ago, need not be made familiar once again. If you are not a lawyer you may not have to learn the procedure of trial in the courts. It may even not be necessary for everyone to know the jurisdiction of the courts. But you must know your rights to be exercised through family courts. Hence, this write-up aims to make you informed about your dealings with a family court.
By the Family Courts Ordinance 1985 the Family Courts get hold of exclusive jurisdiction for expeditious settlement and disposal of disputes only in suits relating to dissolution of marriage, restitution of conjugal rights, dower, maintenance, guardianship and custody of children. The courts began working all over the country except in the hill districts of Rangamati, Bandarban and Khagrachhari. Soon after the court began functioning, questions were raised about whether the Family Courts would deal only with the family matters of Muslim community or of all communities. The uncertainty lasted for a long time until in 1998 a special High Court bench of the Supreme Court in a path finding judgment removed all the questions regarding family court’s jurisdiction. Every lawyer and judge dealing with Family Courts are supposed to be aware of the judgment. But the common people for whose benefit the courts have been constituted seem still uninformed about the great decision relieving the justice-seekers in the Family Courts of a harming uncertainty. Section 5 of the Family Court Ordinance, 1985 speaks about the jurisdiction of the Family Courts which reads as: “Subject to the provisions of the Muslim Family Laws Ordinance, 1961 (VII of 1961), a Family Court shall have exclusive jurisdiction to entertain, try and dispose of any suit relating to, or arising out of, all or any of the following matters,
(a) dissolution of marriage
(b) restitution of conjugal rights
(e) guardianship and custody of children
Just after coming into force, the family court comes under confusion, as mentioned above, about its jurisdiction that whether a Family Court is a court for Muslim Community only. In Krishnapada Talukder Vs Geetasree Talukder [14 (1994) BLD 415] the question was whether a woman, Hindu by faith, could file a suit in a Family Court for maintenance against her husband. The honourable judge of the High Court Division held that “As per the provisions of the present Ordinance, all the sections of the 27 section statute have been made available for the litigants who are Muslim by faith only.”
The said judgment came on 5th June 1994, and just a few days later on 25th July 1994 in Nirmal Kanti Das Vs Sreemati Biva Rani [14 (1994) BLD (HCD) 413], the High Court Division expressed diametrically opposite view. The learned judge of the High Court Division referring section 3 of the Ordinance held that the provisions of Family Courts Ordinance shall have effect notwithstanding anything contained in ‘any other laws’ for the time being in force. From the expression ‘other laws’, it appears that the Family Court Ordinance controls the Muslim Family Laws Ordinance, 1961, and not vice versa. Thus, any person professing any faith has a right to bring a suit for settlement and disposal of disputes relating to dissolution of marriage, restitution of conjugal rights, dower, maintenance, guardianship and custody of children. And so, a Hindu wife is entitled to bring a suit for maintenance against her husband in a Family Court.
In Meher Nigar Vs Md Mujibur Rahman [14 (1994) BLD (HCD) 467] the High Court Division corroborated the abovementioned view by holding that the Muslim Family Laws Ordinance 1961 introduced some changes in the orthodox Muslim personal laws relating to polygamy, <>talaq<> and inheritance and in order to keep those reformative provisions of the Ordinance of 1961 effective it has been provided that the provisions of Muslim Family Laws Ordinance of 1961 shall not be affected by the provisions of the Family Courts Ordinance of 1985; and section 23 of the Family Courts has specified the area not to be affected. It otherwise indicates that the provisions of the Family Courts Ordinance are applicable to other communities which constitute the populace of Bangladesh. Following such dissimilar views and decisions, the confusion regarding jurisdiction of the Family Court was natural. And such confusion continued until 1997 when a larger bench of the High Court Division of the Supreme Court in its path-finding judgment in Pochon Rikssi Das Vs Khuku Rani Dasi and others [50 (1998) DLR (AD) 47] removed all the confusions. The special bench of the High Court Division comprised of three Judges upheld that “the Family Court Ordinance has not taken away any personal right of any litigant of any faith. It has just provided the forum for the enforcement of some of the rights as is evident from section 4 of the Ordinance, which provides that there shall be as many Family Courts as there are Courts of Assistant Judge and the latter courts shall be the Family Courts for the purpose of this Ordinance.
Moreover, the court also declared that ‘Family Courts Ordinance applies to all citizens irrespective of religion’.
It seems quite pertinent to refer some of the submissions which the Court relied on. It was submitted that:
If Family Court Ordinance is intended to apply only to the Muslim community then there was no reason for not providing it accordingly as has been done in case of Muslim Filmily Laws Ordinance, 1961. The Family Courts Ordinance should have been named as Muslim Family Courts Ordinance. …….in the Family Courts Ordinance there was no exclusive exclusion of any community and unless there is specific exclusion the law will have general application, that is, it will apply to the citizens of all faiths. ….. if sections 3, 5, and 24 of the Family Courts Ordinance are read together it will be evident that guardianship and custody of children were made exclusively triable in the Family Courts and unless the law is applicable to all how a non-Muslim can get a relief in the said matters. …… 5 matters enumerated in section 5 of the Family Courts Ordinance are matters of personal laws of the citizens of different faiths who follow different rules in matters enumerated in the section or do not have any rule at all as in the case of Dower and Dissolution of Marriage in case of Hindus. All citizens may not be concerned in all matters but that cannot be a ground to hold that the Ordinance applies only to the Muslims. ……Family Courts Ordinance has not encroached upon the personal laws of the citizen of any faith. This Ordinance provided that Family Courts will have jurisdiction to entertain and decide suits on the matters enumerated in section 5 subject to the provisions of the Muslim Family Laws Ordinance meaning thereby that while disposing of a matter amongst the Muslim the provisions of Muslim Family Laws Ordinance shall have to be kept in mind. …..had there been no exclusive jurisdiction of Family Courts there may be complications in cases filed by husband and wife professing different faiths. ….not all the personal laws of the Muslim have been included in section 5. Some provisions of Muslim personal laws such as Waqf, Gift, parentage etc. have been kept out of the provisions of the Family Courts Ordinance. So it cannot be said that this is only for the Muslim.
Accordingly, there should not remain any confusion regarding the jurisdictions of the Family Courts. Henceforth, it seems needless to mention that a Family Court can try suits under The Hindu Married Women’s Right to Separate Residence and Maintenance Act 1946, the law that has given a right to the Hindu wives to live in separate houses and to get the maintenance, but has not provided any forum to go to enforce the rights.
Another matter needs to be clarified that the Family Courts Ordinance does not extend to the hill districts of Rangamati, Bandarban and Khagrachhari. The fact is that initially the hill districts used to be governed by Hill Districts Regulation of 1900 and it was repealed in 1983 but as no new law has been introduced for administering the area, as per provisions of General Clauses Act, the repealed law is still in force and the Hill Districts Regulation is still continuing, resulting in exclusion of Family Courts there. This does not mean that tribal people cannot take recourse to a Family Court. The suits among aboriginal or adivasi or tribal people can be tried by a Family Court if they reside within the local limits, that is, territorial jurisdiction of the Family Court.
Special Criminal Laws and Criminal Courts (Criminal Action):
Laws are made with the intention to reduce crime against women. This view has been endorsed in the judgment of Justice Badrul Haque in the case of Amin vs. Bangladesh. The honourable judge observed, “A woman who has been raped undergoes two crisis, one the rape and the other the subsequent investigation and trial. A victim of a sex crime has to undergo certain tribulations. These begin with treatment by the police and continue through a male dominated criminal justice”. In Bangladesh 50% of all murders are of women by their partners, 68% never told anyone about being beaten? Many women do not report it. The lack of proper reporting is not only because of the inadequacy of government officials but also because women themselves are reluctant to report crimes against them for fear of repeated violence, honour or loss of face of their families and for the fear that they will be turned out of their matrimonial home. However, when a wife decides to seek a divorce, she often reports such violence.
A recent research by Dr. Nusrat Ameen stated that the official statistics do not give us a full picture of the incidence of violence against women. This vacuum can only be filled by further research on the issue.
The Cruelty to Women (Deterrent Punishment) Ordinance of 198? was replaced by the Repression against Women and Children (special enactment), Act xviii of 1995. This Act has provided death penalty for ten crimes against women and children (under sections 4, 5(b), 5(d), 6(1)-(4), 7, 10(1) and 12). The crimes affecting women and children include causing death by corrosive substance, causing permanent damage of the body by corrosive substance, for rape, for rape with murder, for rape with attempt to murder, for group rape, for group rape with murder, for dowry death and for trafficking of children.
The Repression of Women and Children (special enactment), Act xviii of 1995 has been amendedby the Act in 2003. The new Act made changes mainly with the intention to minimise the huge number of pending cases and to expedite disposal of cases without inordinate delay. A limit of 120 days was provided in the Act of 1995 this limit was extended up to 180 days for giving enough time for trial of cases under the Act of 2000.
Broad outlines of the sections of the amended Act of 2003 below will highlight the Criminal Procedure for crime against women: Nari O Shishu Domon Ain of 2003, Section -18: Investigation of an Offence:
1.Irrespective of any law in the Criminal Procedure Code investigation of any offence under this Act
- when the accused person is caught red handed by the police or by any other person and has deposited him to the police, the investigation must be finished within 15 working days from the date when the accused was caught.
- when the accused person is not caught red handed, his investigation will be completed within 60 working days from the First Information Report (FIR) or otherwise by the related officer or any other Officer with the power or from the date of the order given by the Tribunal.
2.If the investigation is not completed within the time fixed by sub-section (1), the Investigation Officer will complete the investigation by additional 30 days by submitting the cause of delay by writing, and give a reasoning for the cause to his Controlling Officer by writing or otherwise, the written report has to be submitted to the Tribunal which gave the order.
3.If the investigation is not completed within the time fixed by sub-section (2), the investigation officer will complete the investigation within 24 hours stating the reason for delay to the Controlling Officer or, the written report stating the reason for delay have to be submitted to the Tribunal which gave the order.
After the acknowledgment that the report was not completed under Sub-section (3), the Controlling Officer or the Tribunal which gave the order, can handover the investigation to another Investigating Officer and in this way when the investigation is transferred to the Investigation Officer-When the accused person is caught -red handed by the police or by any other person and has deposited him to the police the investigation must finish within 7 working days from the date when the accused was caught or in other cases he must complete the investigation within 30 working days.
5.If the investigation is not completed within the time fixed by sub-section (4), the investigation officer will state the reasons for delay to the Controlling Officer or, give a written statement stating the reason for delay which has to be submitted to the Tribunal which gave the order within 24 hours.
6.If the investigation is not completed within the time limit then after verifying the written report -of the Investigation Officer, the Controlling Officer or otherwise the Tribunal, which ordered the investigation, has to decide whether the Investigating Officer is responsible for not giving the report of investigation within the time limit, then it will be notified that the responsible person is an unqualified and had done misconduct and this un-qualification and misconduct will be written in his yearly confidential report and in a particular case he will be accused as per service rules.
7.If the Tribunal is satisfied after verifying the investigation report that the person who is regarded as accused is required to be taken as witness, the Tribunal can order the person to be a witness instead of accused. 8.After concluding the evidence of the witnesses, if the Tribunal finds that the Investigation Officer under this Act, in the investigation report is trying to save the accused person or without examining a valuable witness or falsely finding no proof to determine the crime the accused person is made witness instead of accused then the aforesaid Investigation Officer will be charged for his act or will be regarded as an unqualified person doing misconduct and will be charged for this un-qualification and misconduct by the Tribunal by giving order to the Controlling Officer of that Investigating Officer to take legal action against him. 9.The Tribunal can change the Investigation Officer and order the Controlling Officer to appoint another Investigation Officer when any petition is given to the Tribunal or on the basis of any information.
Nari O Shishu Domon Ain of 2003, Section -20. The procedures of the Trial:.All offences under this Act will be tried by the Tribunal of Nari O Shishu Nirjatan Domon Ain under section 25. When a case is started in the Tribunal it will continue continuously in every working day until the trial is completed. The Tribunal must finish the procedure of trial by 180 days from the date of submission to it. If the trial is not done by that time limit, then the Tribunal can bail the accused person and if the accused person is not given bail then the cause of not giving bail have to be written down by the Tribunal.