WOMEN’S LEGAL STATUS IN DOMESTIC LAW IN BANGLADESH ( PART 4)

Chapter seven

7. Women’s status on social context:

The ambiguity surrounding the question of violence against women in Bangladeshi society on the one hand, violence is held in repugnance and may provoke outrage. For example, a man who sprayed acid on and killed his new wife, on grounds of her inadequate dowry, was hacked to death by villagers in Northern Bangladesh[1]. On the other hand, violence against women is accepted, tolerated and .in certain prescribed forms and given contexts. it is legitimated. Gender inequality, leading to gender violence, is deeply embedded in the Bangladeshi social structure; all Bangladeshi social institutions permit, even encourage the demonstration of unequal power relations between the sexes[2]. The legitimating of male violence, especially battering, allows it to be seen (by women as well as men), as a deserved response to female transgression of male demands or controls. Thus, women feel shame and guilt – as well as anger in some cases – which militates against the reporting of battering. Murder, acid throwing and abduction may suffer less from stigma in reporting. Other factors contributing to the under-reporting of violence against women include: the lack of awareness among women of their legal rights; the perception that their cases will be treated with derision and/or ignored by the police; and the fear that making charges will compound problems with their husband and his kin. Rape probably evokes the greatest feelings of shame among women, and thus is most likely to be under-reported. Nevertheless, Jahan[3] suggests that the rise in reported crime against women in Bangladesh may reflect a rise in the reporting of rape, but also an increase in the incidence of assaults on women and in the proportion of female victims of violent crimes. She notes that in 1980, 12.4 percent of the victims of all reported violent crime were female, whereas by 1984, the proportion had risen to 32.7 percent. A rise in the availability of weapons such as guns and acid, and also the increased portrayal of violence in the mass media in imported films, as factors which may be associated with the rise in violent crimes, including those against women.

Avoidance of women’s rights is the continuous practice. It is a social sickness. Our social system is not uncourageous, society discouraged women’s to establish their rights. The state enacts general and special legislations and has enforcement mechanism to protect women’s rights but in different ways these are ignoring, and the protective measures fails its goal. We have to come out from this concept.

Chapter eight

8. Recommendations:

There is a good amount of legislations in our country concerning women. crisis of laws and drawbacks also available in law for the women. Our social thinking and concept also discourageous and negative. Some cases women are given more rights than male.

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.

The constitution of the People’s Republic of Bangladesh is the ultimate source of the fundamental rights enjoyed by men and women. However, the day to day life of the people is governed by two sets of laws: civil and personal. The civil laws cover the rights of women under the constitution; the personal laws cover the family life.

An analysis of the relevant text of the constitution shows that the guarantees of equal rights between men and women do not extend to the private sector (i.e., the inheritance of parental property and matters concerning the family). In ratifying the UNCEDAW, the government had reservation regarding the provisions related to equal rights within the family. This is a sharp departure from the commitment made by the government to establish gender equality. The civil laws are supposed to maintain non-discrimination between men and women. But some of these laws are openly discriminatory against women. The Citizenship Act of 1951 is an example of such discrimination. This act encroaches upon a woman’s right to enjoy the same legal status as that of a man.

The criminal laws are not based on religious laws. Still these laws fail to maintain non-discrimination between men and women in some cases. Under the existing criminal laws, rape is defined as an act of sexual violence, but proving charges of rape has been made very difficult for a woman as the rules of evidence require that the victim has to medically prove the act as well as her lack of consent. The victim and the accused have been put on the same footing as the law requires that the victim’s testimony must be corroborated.

The constitution guarantees non-discrimination and full application of the existing labor laws in the industrial sector. Women workers hardly get any protection from these laws. Widespread disregard of the existing labour legislation is a rule rather than an exception. Existing practices in industrial workplaces enable the management to bypass its statutory obligations. Preferential recruitment of unmarried women and extending the period of probation of workers beyond the statutory period deprives many female workers of their legitimate/legal rights.

Despite a rapid increase in the number of women workers in the informal sector, their rights are not protected by law.

A wide gap exists between the rights and status of women guaranteed by the Constitution and those imposed on her by social norms and practices reflected in personal laws. The family laws are based on personal laws of the respective religious community into which a person is born. Thus, civil laws and personal laws co-exist perpetuating male-female disparities with regard to marriage, divorce, guardianship, custody of children and inheritance.

Under the Muslim law, marriage is a contract between two individuals and to make it valid the consent of both partners in the presence of two witnesses is essential. With regard to child marriage, the law states that should a girl be married off by her parents during infancy, the marriage must be endorsed or dissolved by the girl on her attaining puberty. In a bid to restraint child marriage, the Child Marriage Restraint Act 1929 (amended in 1984) raised the minimum age of marriage for both women and men. The 1984 amendment fixed the minimum age at 18 for women and 21 years for men. But widespread contravention’s of this law proves that its enforcement is very weak, and there is hardly any prosecution for any breach of this law. Although, the law provides for punishment in cases of contravention, the act has no provision to make such marriages invalid. Limited polygamy is permitted in Islam where by a man is allowed to marry upto four wives at a time on condition that: (a) the husband has the means to maintain the wives according to their status; and (b) all the wives be given equal share of his love and affection and be treated by him with complete equality. But in the absence of any mechanism to enforce these directives, the senior wives generally become victims of the husband’s cruelty and neglect.

In an attempt to provide protection to these wives, the Family Ordinance 1961 forbids a man to contract a marriage during the subsistence of an existing marriage without the prior permission in writing of the Arbitration Council and the wife/wives. The punishment consists in the immediate payment of the entire dower or mahr (a fixed sum of money agreed to be paid by the husband to the wife). Prompt dower is immediately payable on demand to the wife and deferred dower is payable on dissolution of marriage. The punishment also includes imprisonment upto one year or a fine of Tk 5000.00 or both. However, the ordinance has no provision to make the subsequent marriage illegal. Under the Muslim law, divorce can be attained in any of the following ways: (a) mutual consent of the husband and the wife without court intervention; (b) a judicial decree on request of the wife on one or more grounds specified in the Dissolution of Muslim Marriage Act 1939 and the Muslim Family Law’s Ordinance 1961; and (c) divorce by the husband at will without assigning any reason.

However, the right of talak (divorce), where a marriage is irrevocably and immediately dissolved by simply pronouncing the intention in front of witnesses, has been modified by the Muslim Family Laws Ordinance, 1961. Under the procedure to be followed, talak does not become effective immediately. A period of 90 days would have to intervene between the date of serving the notice to the Union Parishad chairman (the lowest tier of the local government system in Bangladesh) and the date when the divorce becomes effective.

The right to divorce at will is not enjoyed by a Muslim wife unless her husband confers this right on her in the marriage deed (kabin) registered by the Muslim Marriage Registrar. However, she can obtain a divorce through a court decree, which is an uncertain, lengthy and costly process involving complicated procedure. Despite the legal reforms, gender discrimination still persists in the sphere of marriage and divorce.

Under the Muslim law, the wife inherits a fixed share of one-eighth of the deceased husband’s estate if he leaves behind agnatic descendants. If he does not leave behind any agnatic descendants, then the wife inherits a quarter of the husband’s estate.

A daughter, who is an only child, inherits half the estate of her late father or mother. If there is more than one daughter and no son, then the daughters jointly inherit two-thirds of the estate. However, if there is a son (or sons), then the daughter’s or each of the daughters share will be equal to half of the son’s or half of each of the son’s share. In all cases within the family men inherits more than the women do. Thus, in the area of inheritance also, personal laws continue to remain grossly gender discriminatory.

Under the Muslim law, the mother is never entitled to guardianship of her children. It lies with the father and after him, with his father and brothers. However, the mother is entitled to the care and custody of her sons until they are seven years old and of her daughters till puberty.

The laws, as modified by the Guardian and Wards Act of 1890, states that the welfare of the children is more important than the rights of the parents. A mother may also have her children beyond the specified ages if the court is satisfied that they would not be well looked after by the father. The mother may also apply to the court for guardianship of the children. But it involves expensive and time-consuming litigation over a long period. The father may dispose of the child’s property under certain circumstances, but the mother cannot do so without the prior permission of the court even if she is the appointed guardian of the child. A Muslim mother is entitled to maintenance from her son if he is solvent financially (The Muslim Family Laws Ordinance, 1961).

The existing law requires that every Muslim marriage solemnised must be registered. There has also been an enactment titled ‘Marriage and Divorce Registration Act, 1974. But even a casual observation in the rural areas reveals that a vast majority of the marriages are not registered.

Again, despite the existence of a law to restrain child marriage, the girls are being married off well below the minimum age of 18 years. However, it is difficult to enforce this law due to the absence of the birth registration practice in Bangladesh, particularly in the rural areas. Although, religion has made provisions for dower (an amount payable to the wife), the payment is rarely made. The society has made provisions for dowry (money, jewelry, and luxury items presented by the bride’s guardians at marriage), and it has become a tradition. Non-payment of dowry, more often than not, brings disaster to the lives of many women.

In response to the demands voiced by women’s organisations to amend existing laws or/and enacting new ones to improve women’s legal status, the government from time to time amended existing laws and enacted new ones. These include: (1) The Muslim Personal Law (Shariah) Application Act 1937; (2) The Dissolution of Muslim Marriages Act 1939; (3) The Muslim Family Laws Ordinance 1961 (Amended in 1986); (4) The Muslim Family Laws Rules 1961; (5) The Muslim Marriages and Divorces Registration Act 1974; (6) The Muslim Marriages and Divorces Registration Rules 1975; (7) The Dissolution of Muslim Marriages Act 1939; (8) The Family Courts Ordinance 1985; (9) The Family Courts Rules 1985; (10) The Bangladesh Penal Code 1860; (11) The Evidence Act 1872; (12) The Civil Procedure Code 1903; (13) The Criminal Law Amendment Act 1938; (14) The Suppression of Immoral Act 1933; (15) The Dowry Prohibition Act 1980; (16) The Cruelty to Women (Deterrent Punishment) Act 1983; (17) The Woman and Child Oppression (Special Provision) Act 1995; and (18) Maternity Benefits Act 1939.

While the civil laws are applicable to the Hindu community, marriage, divorce, inheritance and guardianship, which relate to the private sphere, are governed by the Hindu Personal Laws. These laws have remained unchanged since 1947 (the year of partition of the subcontinent).

In the Hindu religion, marriage is a sacrament, not a contract. The foremost duty of a Hindu father is to marry her daughters off. The girl’s consent in marriage is not required; nor is divorce possible; and unrestricted polygamy is allowed. The father is always the preferred guardian of his children, while the mother can be the guardian, her rights are inferior to those of the father. Not all daughters of a man are equally eligible to inherit. In order of priority, unmarried daughters and married daughters with sons can inherit. Married daughters beyond child bearing age and widows without sons cannot inherit. The Hindu laws permit adoption, but only of boys.

The laws for the Christian communities in many cases gender biased and controversial to the constitution, and human rights. Right to divorce, right to alimony, Rights to maintenance are largely gender discriminatory. It should be overcome by new legislations and make thes effective. There is no personal law for the tribal, Buddhist and some other religious communities people in our  country. There is a wide demand in this purpose.

To protect women’s rights, to make effective laws relating to women in our country, authority of the state should find out the drawbacks of the legislations and amend them if necessary or new legislations shall enact for the specific issues. Being the member of the society we have to change our traditional negative concept and practice and encourage the women to protect their rights to make successful the laws of women.

Chapter nine

9. Conclusion:

The legal status of women is a isolated in law and practice in our country. Some times women are given more rights than the male. Violence agonist women is increasing and indicates generally that the amount of different crimes against women is so high that the time has come to introduce measures to eradicate them. Clearly, the need of the hour is to protect women from violence through the law. The whole issue of violence against women did not project the flaws in the criminal justice system or what else we require, to make the system effective giving proper justice to women as justice delayed is justice denied.

Violence against women is a phenomenon much older than human rights concept. It is one of the major manifestations of gender discrimination, an essential outcome of the existing patriarchal social system. Mains-treaming of violence against women has engendered the international human rights framework. A much-needed clarity in understanding of human rights has been established. This has enhanced chances for protection of women’s human rights the world over.

The underlying marginalisation of women in political decision-making and infringement of their right to freedom from violence are consequences of the general acceptance of inequality and social tolerance of violence against women. Bangladesh is committed to various international conventions such as the Declaration on Violence (Vienna 1993) and CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women)³⁸. These commitments are reflected in the National Policy for the Advancement of Women (1997). However, in dealing with the progressively alarming situation of violence against women, each successive government seems to be concerned with passing of laws and tightening the legal provisions while little attention is paid to the fact that laws are not enforced, procedures remain inappropriate and the perpetrators of violence often enjoy political impunity. Women’s movement has persistently highlighted these issues and has continued to demand holistic measures for administrative reform and action for elimination of unequal access to political power, discrimination and violence against women. Apparently, we have take effective measurement to protect the women’s rights and interest in whole for our sustainable development.

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