WOMENS LEGAL STATUS IN DOMESTIC LAW, PART 1

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 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 womens 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 womens rights through strengthening the legal and enforcement mechanisms in Bangladesh.

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:

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

Legislation for Hindu Community:

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

Legislation for Chirstain Community:

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

Legislations Common to all Communities:

  • The Penal Code, 1860 (Act No. XLV of 1860).
  • The special Marriage Act, 2923.
  • The Child Marriage Restraint Act, 1929.
  • The Guardians and Wards Act, 1890.
  • The Births and Deaths Registration Act, 1873.
  • The Birth, Deaths and Marriages Registration Act, 1886.
  • The Foreign Marriage Act, 19093.
  • The Bengal Maternity Benefit Act, 1939.
  • The East Bengal Maternity Benefit Rules, 1931.
  • The East Bengal Maternity Benefit (Tea Estates)Act,
  • The East Bengal Maternity Benefit (Tea Estates) Rules, 1954.
  • The Mines Maternity Benefit Act, 1941.
  • The Arya Marriage Validation Act, 1937.
  • The Orphanages and Widow’s Home Act, 1944.
  • The Registration Act, 1974.
  • The Child Marriage Restraint Act, 1929.
  • The Dowry Prohibition Act, 1980.
  • The Family Courts Ordinance, 1985.
  • The Family Courts Rules, 1985.
  • The Cruelty to Women (Deterrent Punishment) Ordinance, 1983.
  • Oppression of Women and Children (Special Enactment), 1995.
  • Nari O Shishu Nirjaton Daman Ain, 2000.
  • The Acid Control Act, 2002.
  • The Acid Oporadh Daman Ain, 2002.

Chapter three

  1. 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.[4]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[5] 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) [6]

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[7]. 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.[8] It would be pertinent to mention the remarkable changes in ancient Hindu Law in India through the Hindu Marriage Act-1955:

  1. 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.[9]

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.[10]

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.[11]

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.

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.[12] 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.[13] 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.[14] 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.[15]

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.[16]

In accordance with Muslim Law, the father is bound to maintain his daughter until she is married[17]. 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.[18] If the father is poor, but the mother is in easy circumstances, the mother has the obligation to maintain the daughter[19]. 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.[20] 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[21]. 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.[22]

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.[23] 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.[24] 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.[25] 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.[26]

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,[27] 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).[28] 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.[29]  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.[30] 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.[31] 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.[32]

TABLE 1

VIOLENCE AGAINST WOMEN IN BANGLADESH

Sl. No. Year Reported Incidents of Repression Increased by (%)
1 1994 1,206 –
– – – –
2 1996 3,121 156.78
3 1997 5,443 74.39
4 1998 6,210 14.09
5 1999 9,572 54.13

Source : The Daily Janakantha (Dhaka) 10 March, 1998, pp. 1 & 11 and 1       September, 2000, p. 7.

TABLE 2

Incidents of Rape in Bangladesh

Sl. No. Year Reported Incidents Increased by (%)
1 1994 499 –
– – – –
2 1996 525 5.21
3 1997 2,224 323.61
4 1998 5,252 46.22
5 1999 3,596 10.57

Source : The Daily Janakantha, 10 March, 1998, pp. 1 & 11 and 1 September, 2000, p.7.

Trafficking and Legislations:

Organised crime syndicates control trafficking in women within and outside the country. Most of the countries in South Asian region have national criminal laws that prohibit trafficking in persons/women. But such laws are not being adequately enforced.

Constitutional Provisions

It is an encouraging fact that all of three countries selected for the study have constitutional provisions, which directly or indirectly prohibit trafficking in person irrespective of sex. Following is the country wise discussion on constitutional provisions, which prohibit trafficking:

The Constitution of Bangladesh ensures fundamental rights for every citizen. Part III of the Constitution guarantees fundamental rights and part II of it provides fundamental principles of the state policy. And all of these are based on the internationally accepted instruments of the United Nations e.g. UN Charter, Universal Declaration of Human Rights (UDHR).

The modern concept of humanism is that all human being irrespective of men, women and children have certain equal rights of life, liberty and pursuit of happiness. These rights are inherent, fundamental and inalienable. These are protected by Constitutional guarantees. These rights can be suspended, abridged or taken away only in accordance with the law.

The constitutionally guaranteed rights give ‘women equal rights with men in all spheres of the state and of public life contra-distinguished from private life which is the domain of a person’s personal law based primarily on religion.’[33]

The Constitution contains some important fundamental rights. These include: (i) equality before law, (ii) abolition of discrimination on grounds of race, sex, caste, or place of birth, (iii) right to protection of law, (iv) freedom of movement, assembly, association, thought and conscience, speech, profession or occupation and religion, (v) right to property and (vi) right to protection of home and correspondence. These rights are inviolable and some of them may be restricted in case of emergency. The rights are guaranteed equally for male and female citizens of the country and for the persons staying in Bangladesh.

In his thesis, Mr. Ahmed observes: “Most of the fundamental rights of Bangladesh Constitution are of such a nature that they may be applied in favour of Women as well as men.”[34] Such rights include right to equality e.g. equality before law, abolition of gender discrimination and right of protection of law.

The Constitution ensures right to protection of law. It enacts that “To enjoy the protection of the law, and to be treated in accordance with law,… is the inalienable right of every citizen,…, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.”[35] And “No person shall be deprived of life or personal liberty save in accordance with law.”[36]

As regards ‘equality before law,’ the Constitution provides that “All citizens are equal before law and are entitled to equal protection of law.”[37] And discrimination is prohibited on grounds of religion, race, caste, sex and place of birth.[38] Women’s equal rights with men are recognised “in all spheres of the state and of public life.”[39] But this ‘equality clause’ does not help women in her personal life. In addition to that the constitution empowers the state to make laws for women, and it empowers the state for “making special provision in favour of women.’[40]

The Constitution has no provision, which directly prohibits trafficking in human being. But some related articles prohibit the crime. The Constitution has categorically prohibited all “forms of forced labour,”[41] which is a consequence of trafficking. And, “any contravention of this provision shall be an offence punishable in accordance with law.” Besides, the Constitution empowers the state to ‘adopt effective measures to prevent prostitution.’

[4] 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

[5] . Fazlur Rahman – Islam P. 39 quoted in Legal Status of Women in Bangladesh by Salma Sobhan.

[6] Dhaka Law Report, 1956 P.77

[7] D.F. Mulla, Principles of Mohamedan Law, 17th Ed.P.277

[8] http://www.thedailystar.net

[9] : The Daily Star, June 04, 2004

[10] ibid, June 04, 2004

[11] The Daily Star, June 04, 2004

[12] D.F.Mulla, Principles of Mohammedan Law, 17th Ed.

[13] Salma Sobhan – Legal Status of  omen in Bangladesh, Bangladesh Institute of Law and International Affairs, Dhaka 1978, P. 20.

[14] 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.)

[15] Ibid, Mulla. 17th ED.P.305

[16] Obaidul Huq Chowdhury, Hand Book on Muslim Family Laws, the Dhaka Law Reports,  Fifth Edition 1997

[17] Ibid, Mulla. 17th ED.

 

[19] Ibid.

[20] Ibid, Mulla. 17th ED.

[21] Ibid.

[22] Khaled Rashid, Muslim Law, Third Ed. p. 305.

[23] 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.

[24] Ibid, D.F. Mulla, P70.

[25] Ibid. P.72.

[26] Salma Sobhan – Legal Status of Woman in Bangladesh. P.31.

[27] 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.

[28] khaled Rashid, p. 306.

[29] Sources: Chandra Banerji and Tapan Kumar Chakraborty

[30] Yasmin, op.cit., p. 39.

[31] Ibid., p. 32.

[32] Government of the People’s Republic of Bangladesh, Ministry of Planning, Planning Commission,  The First Five Year Plan 1997-2002, comp. p. 168.

[33] Khabir Uddin Ahmed, “Fundamental Rights of Women in Bangladesh Constitution and Muslim Law: A Comparative Study,” Unpublished Ph.D.   dissertation, Institute of Bangladesh Studies, Rajshahi University, 1999, p. 19.

[34] Ibid.

[35] The Constitution of the People’s Republic of Bangladesh (hereinafter Constitution), Art. 31.

[36] Art. 32.

[37] Art. 27.

[38] Art. 28(1).

[39] Art. 28(2).

[40] Art. 28(4).

[41] Art. 34(1).

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