“A thesis paper submitted in partial fulfillment of the requirement for the award of the Degree of Bachelor of Laws (Hons.)”
Acknowledgement
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It was a great opportunity for me to work on “women’s rights and dignity” and it is notified that every work regarding my research is done by me which was not so easy for me to complete.
But before concluding I must say that my friends and teachers encouraged me a lot to complete this research monograph .And some of my friends helped me in case of collecting information, and I am very much great full to all of them .
—————————————————–
Dhaka Marzia Akhter
2nd May, 2010.
ABASTRACT
Women’s rights and dignity have been violated flagrantly and are still being violated in different parts of the world in different ways. Thus, the women rights and dignity has become the burning issue in the contemporary world. The western secular philosophers and policy makers constantly claim that they have recognized and established women rights and dignity on an equal footing with men. But the truth is that, fifteen hundred years back Islam was the first to recognize and proclaim all fundamental human rights, freedom and dignity for both men and women. Islam is the beautiful religion. According to Al-Quran, Islam is the great niamah (blessing) for Mankind from Allah (swt).Today it is the burning question for our country that, whether women have any access to education, economic activities, health services, jobs and others.
This research monograph attempts to explore the exact rights and dignity of women under Muslim Law in our country, how rights and dignity have been violated and what obstacles are available to ensure rights for women and what are the recommendations. This paper is based on primary and secondary sources of information like parliamentary statutes, books, journals and research reports. Relevant literature has also been collected through Internet browsing.
Chapter-1
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1.1(Introduction)—
Right means interest which is recognized and protected by law. And dignity is the honor which people deserve from the people of the society as a human being generally. The right and dignity of women are specially provided by the Muslim Law (law of the Holy Qur’an).
Islam is the beautiful religion. Islam is been the complete way of life. Including the human rights it embodies holistic view on all aspects of life. According to Al-Qur’an, Islam is the great niamah (blessing) for Mankind from Allah (swt). Human being (Insam) is the special and unique creation of Allah (swt). 1
Fourteen hundred years ago, Islam recognized women’s right and dignity in such a way that grants them the utmost protection and respect which other systems fail to offer until now. Islam uplifts women’s status and asked the society to hold them in high esteem and offer them due respect (dignified). It grants women every kinds of rights be it social, political, civil, economic, and provides support in all the stages of their life.
Women’s rights are human rights and their rights along with their dignity must not be jeopardized or destroyed for the sake of any so called religious orthodoxy or in the name of secularism. To dignify the women the Almighty Allah says:
“And among Allah’s Signs in this, that Allah created for you mates from among yourselves, that you may dwell in tranquility with them, and Allah has put love verily in that are Signs for those who reflect”2
Again Allah Almighty says: “Live with them on a footing of kindness and equity. If you take a dislike to them it may be that you dislike a thing, and Allah brings about through it a great deal of good.” 3 It means that in the event of a family dispute, the Qur’an exhorts the husband to treat his wife kindly and not to overlook her positive aspects.
The Prophet slm(peace be upon him) never beats any of his wives or any other woman and that example needs to be followed by all Muslims and non-Muslims alive. Prophet Muhammad. (slm) said;
“The best of you is the best to his family and I am the best among you to my family. The most perfect believers are the best in conduct and best of you are those who are best to their wives.”4
By this way women’s have been dignified and their rights have been protected by the law of Islam but unfortunately the religion that had revolutionized the status of women is being singled out and denigrated as so repressive of women by a constant barrage of controversies which has no bearing with Islam. And protection of women’s rights and dignity is much more difficult than either defining them or codifying new legislations.
But Islam is the only religion which had immensely improved the status of women and granted them many rights that the modern world has recognized only in this century.
1.2(Historical Perspective)—
It may be useful to mention, briefly, the position of women under different civilizations and religions at the time of the advent of Islam. In Arabian society women had not only been deprived of the right to inherit but also they had been the objectives or property of inheritance. The conditions in the rest of the world were in no way better. Caste system had been the bane of Hindu society for centuries. The rule of inheritance was agnatic, that is, descent traced through males to the exclusion of females. The Christian civilization in Europe during the seventh century was crowed with countless inequalities. Athenian women were always minors, subject to some male-to their father, to their brother, or to some of their male kin. A Roman wife was described by an historian as:
“ a babe, a minor, a ward, a person incapable of doing or acting anything according to her own individual taste, a person continually under the tutelage and guardianship of her husband.”
Among the Scandinavian races women were under perpetual tutelage, whether married or unmarried. According to the English Common Law:…..all real property, which a wife held at the time of a marriage, become a possession of her husband. Only by the late nineteenth Century did the situation start to improve.5
1.3(Women Rights And Dignity Under The Constitution Of The People’s Republic Of Bangladesh)—
In our national life, the Constitution is the single most important document. It is the embodiment of the supreme will of the sovereign people. It depicts the fundamental objectives of the state and declares the fundamental rights guaranteed to the people. It also states the rules governing the principal functionaries of the State. So the need to know the Constitution, its genesis and development can hardly be overemphasized.
We achieved our ultimate victory on 16 December, 1971. And then the sovereign state of the People’s Republic of Bangladesh was established. Thereafter, the Constituent Assembly enacted the Constitution, adopted it on 4 November, 1972 and it came into force on 16 December of the same year. And this Constitution of Bangladesh in its several Articles has clearly mentioned some provisions regarding women’s rights and dignity which are discussed as follows :
In the Preamble of the Constitution it has been mentioned that : “further pledging that it shall be a fundamental aim of the State to realize through the democratic process a socialist society, free from exploitation-a society in which the rule of law , fundamental human rights and freedom , equality and justice, political, economic and social, will be secured for all citizens.”
In Article-9 of Part-2(Fundamental Principles of State Policy) of the Constitution it is provided that : The State shall encourage local Government institutions composed of representatives of the areas concerned and in such institutions special representation shall be given, as far as possible, to peasants, workers and women.
In Article-10 of Part-2(Fundamental Principles of State Policy) of the Constitution it is provided that : Steps shall be taken to ensure participation of women in all spheres of national life.
In Article-18 (2) of Part-2(Fundamental Principles of State Policy) of the Constitution it is provided that : The State shall adopt effective measures to prevent prostitution and gambling.
In Article-19(1) of Part-2(Fundamental Principles of State Policy) of the Constitution it is provided that : The State shall endeavour to ensure equality of opportunity to all citizens.
In Article-28 (2) of Part-3(Fundamental Rights) of the Constitution it is provided that:
Women shall have equal rights with men in all spheres of the State and of public life.
In Article-28 (4) of Part-3(Fundamental Rights) of the Constitution it is provided that: nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens.
In Article-29 (1) of Part-3(Fundamental Rights) of the Constitution it is provided that:
There shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic.
In Article-65 (3) of Part-5(The Legislature, Chapter-1. Parliament) of the Constitution it is provided that: Until the dissolution of Parliament occurring next after the expiration of the period of ten years beginning from the date of the first meeting of the Parliament next after the Parliament in existence at the time of commencement of the Constitution (Tenth Amendment) Act, 1990, there shall be reserved thirty seats exclusively for women members.
Provided that nothing in this clause shall prevent a woman from being elected to any of the seats provided for in clause (2).
It is important to mention here that , before 8th Parliamentary Election in Bangladesh the BNP and the Awami League in their election manifesto confirmed that direct election system for women will be practiced. But after election the then BNP Government only increased the number of seats from 30 to 45 in 2008 and forget about the direct election for women in the general seats of the Parliament. And for this kind of work 8th women’s organizations in our country started to protest against the decision and question was raised against the validity of 14th Amendment which says about the 45 reserved seats for women in the Parliament.
The 8th women organizations filed a writ petition in the High Court Division (Farida Akhter Case 11 BLC 156). The main object of women organizations were to participate in general election but not to have any reserved seats for them in the Parliament without having any power to apply for general people of Bangladesh.6
End Notes :
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(1) Women’s Rights In Malaysia are Balanced and Praiseworthy, by Shamsuddin Ahmed, Professor of Design Engineering, University of Malay.
(2) Sura: Ar-Rum : 21 the Verse of Holy Qur’an.
(3) Sura: An-Nisa’: 19, the Verse of Holy Qur’an- see. www. Muslimsdirectory. Com, last visited on 16-04-2008.
(4) Ibn- Hanbal, No. 7396.
(5) Parveen Shaukat Ali, Human Rights in Islam, Adam Publishers and Distributors, India, 1995, PP. 87, 107, 108.
(6) A discussion regarding Constitution of Bangladesh, National Parliament and Patriarchy, by Farida Akhter, 13th November, 2009, in Dhaka University.
Chapter-2
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2.1(Islam: The Complete Code of Life)—
According to Muslim, the view espoused by Islam can be used by humanity during all ages and times; its relevance and benefit is not restricted to a specific period of history, geographic area or civilization. Islam seeks to firmly implement in man’s heart the conviction that his dealings are with God, who sees him at all times and all places and sets God’s pleasure as the objective of man’s life. It makes the Divine revelation as the primary sources of knowledge, gives permanence and stability to the moral standards which afford reasonable scope for genuine adjustments, adaptations and innovations, also provides a sanction to morality in the love and fear of God which will impel man to obey the moral law even without any external pressure. It makes morality reign supreme and ensures that the affairs of life, instead of dominated by selfish desire and petty interests, should be regulated by norms of morality. It stipulates for man a system of life that is based on all good and is free from all evil by encouraging people not only to practice virtue but also to establish virtue and eradicate vice, to bid good and to forbid wrong. It wants that their verdict of conscience should prevail, and virtue must be subdued to play second fiddle to evil.1
2.2 (Rights of Women in Islam)—
In the midst of the darkness that engulfed the world, the divine relation echoed in the wide desert of Arabia with a fresh, noble, and universal message to humanity 2 As Allah Ta`la says, “O Mankind, keep your duty to your Lord who created you from a single soul and from it created its mate (of same kind) and from them twain has spread a multitude of men and women.”3However, there is no particular Sura in the Holy Qur’an, which provides for the list of women rights. Allah revealed the Qur’an in piece-meal to meet the requirements of the Islamic Movement at its different stages and thus women rights are to be found scattered in various verses of different Sura of the Qur’an and the Prophet’s Traditions. The following special rights can be traced from the Qur’an and Sunnah guaranteed for women:
(a) Right As Mother:
Motherhood of women is a unique phenomenon that cannot be compared with anything else, and which accords her a status next to that of Creator Himself.4 As Allah Ta’ala says:
“ O mankind! Rever your Guardian- Lord, whho created you from a single person and from it created its mate. Rever Allah who has created you mutually related and close: and rever the wombs (that bore you)”.5
“Your Lord has decreed that you worship none save Him, and that you be kind to your parents…..”6
A famous saying of the Messenger of Allah is “ Paradise lies under the feet of mothers.” 7
Mother has got absolute right against the father over the minor child after divorce. If she remarries she does not lose the right altogether. She will be then at par with the father. 8 As the Messenger of Allah says: “ Narrated Abdullah Ibn Amar –Al-As: A women said to the Prophet (SM), ‘this is my son – my womb was his vessel, my breast was his water-front and my lap was his cradle. His father has divorced me. Now his father is resolved to take him away from me.’ The Prophet (SM) said to her , ‘You alone have the claim over him till you remarry.’ 9
(b) Right As Child :
Islam criticizes the attitude of parents who reject their female children. As Allah Ta’ala says :
“When news is brought to one of them, of (the birth of) a female child, his face darkness and he is filled with inward grief ! With shame does he hide himself from his people because of the bad news he has had! Shall he retain her on (sufferance) and contempt, or bury her in the dust ? Ah! What an evil (choice) they decide on?”10
Islam requires kind and just treatment for girl child. The sayings of Prophet Muhammad slm., in this regard are as follows:
“Whosoever has a daughter and he does not bury her alive, does not insult her, and does not favor his son over her, Allah will enter him into Paradise.”11
(c) Right As Wife :
Marriage is instituted by divine commend among members of the human species. It does not give the husband any right over the wife except mutual relationship according to the law of nature and not contrary to it.12 As Allah Ta’ala says:
“It is he who created mortal (basher) from water, then established kindred of blood and marriage; for your Lord is All-powerful.”13
Right of women as wife (may be summed up follows):
- Supporter of each other- Husband and wife are each other’s support, comfort and protection, fitting each other as garments fit into the body. The objective of marriage is to create love and affection between husband and wife. As Allah Ta’ala says:
- Right to maintenance- The wife is entitled to maintenance from her husband although she may have the means to maintain herself . As Allah Ta’ala says:
“Men are the protectors and maintainers of women, because Allah has given the one more than other and because they support them from their means.”16 The Prophet (sm) said, as narrated by Mu’awiyah-al-Qushayri: I went to the Apostle of Allah and asked to Allah : “what do you say (command) about our wives ?” Allah replied : “give them food what you have for yourself, and clothe them by which you clothe yourself, and do not beat them, and do not revile them. 17
(3) Right to dower- Dower (Mahr) is a sum of money or other property to be paid to the wife by the husband as a mark of respect to the wife even it is not fixed at the time of marriage. It is prescribed in Islam as a special gift and privilege to a women. The lowest limit of dower is ten dirham but the upper limit depends on the status of the wife and husband but it should not be such as to be burden on the husband. As the Qur’an says :
“ And give the women (on marriage) their dower as a free gift; but if they, of their own good pleasure, remit any part of it to you, take it and enjoy it with good cheer.”18
It was specifically decreed that women has the full right to her Mahr in the nuptial contract, and that such ownership does not transfer to her father or husband. The concept of Mahr in Islam is neither an actual or symbolic price for the women, as was the case in certain cultures, but rather it is a gift symbolizing love and affection.
(4) Evaluator of husband’s dignity- A man is to be considered as the best man if he is evaluated by his wife as the best man. Prophet slm., says,
“The most perfect believers are the best in conduct and best of you are those who are best to their wives.” 19
He further says, “the best of you is one who is best towards his family and I am best towards my family”. 20
(5) Right to proper treatment- Wife is entitled to get proper treatment from her husband in all circumstances. Patient behaviour was the practice of the Messenger of Allah. As Allah says: “none but a noble man teats women in an honourable manner. And none but a mean man treats women disgracefully.”(21)
(d) Right As An Heir :
Islam prescribes for women the right of inheritance. Her share is completely hers and no one can make any claim on it, including her father and her husband. As Allah Ta’ala says, “unto men (of the family) belongs a share of that which parents and near kindred leave, and unto women a share of that which parents and near kindred leave, whether it be a little or much – determinate share.”22
(e) Right As a Righteous :
Both men and women are entitled to get same reward for the same work. The Holy Qur’an says :
“If anyone does deeds of righteousness, be he male or female, and has faith, he or she will enter into Paradise, and not the least injustice will be done to them.”23
It is also says that, “whoever works righteousness, man or woman, and has faith, verily to him will Allah give a new life that is good and pure, and Allah will bestow on such their reward according to their actions.”24
Women according to the Holy Qur’an is not blamed for Adam’s first mistake. Both were jointly wronged in their disobedience to Allah , both repented, and both were forgiven. In one verse in fact Adam specifically, was blamed. 25
In terms of religious obligations, such as the daily prayers, fasting, poor-due, and pilgrimage, women are not different from men. In some cases indeed, women have certain advantages over man. For example, the women are exempted from the daily prayers and from fasting during her menstrual periods and forty days after childbirth. She is also exempted from fasting during her pregnancy and when she is nursing her baby if there is any threat to her health or her baby’s life. If the missed fasting is obligatory (during the month of Ramadan), she can make up for the missed days whenever she can. She does not have to make up for the prayers missed for any of the above reasons.
(f) Right As An Independent Owner of Property :
Islam has guaranteed to women the right of independent ownership of all sort of property. She retains her full rights to buy, sell, mortgage or lease any or all her properties. It is noteworthy that such right applies to her properties before marriage as well as to whatever she acquires thereafter.26
(g) Right As A Decision Maker :
A woman does have her own right to take decision in any matter and her opinion and decision is regarded as very significant and useful in our daily life. The Messenger of Allah always showed great respect towards the opinion and decision of his wives. As it is narrated by Aisha , that when Allah’s Apostle returned with the inspiration and with his heart beating severly. Then he went to Khadija bint Khuwailid and said, “Cover me! Cover me!” She covered him till his fear was over and after that he told her everything that had happened and said, “I fear that something may happen to me .” Khadija replied, “never! by Allah, Allah will never disgrace you. You keep good relations with your kith and kin, help the poor and the destitute, serve your guests generously and assist the deserving calamity-afflicted ones.” Khadija then accompanied him to her cousin Waraqa bin Naufal bin Asad bin ‘Abdul ‘Uzza….”27
As the woman’s right to decide about her marriage is recognized, so also her right to seek an end for an unsuccessful marriage is also recognized. The women can divorce her husband without resorting to the court, if the nuptial contract allows that. Moreover, Islam emphasizes the importance of taking counsel and mutual agreement in family decisions. The Qur’an gives us an example :
“….If they (husband and wife) desire to wean the child by mutual consent and (after) consultation, there is no blame on them….”28
(h) Right As A Policy Maker :
Both in the Qur’an and in Islamic history we find examples of women who participated in serious discussions and argued even with the Prophet slm himself. During the Caliphate of Omar Ibn al-Khattab, a woman argued with him in the mosque, proved her point, and caused him to declare in the presence of people : “A woman is right and Omar is wrong.”
Although not mentioned in the Qur’an, a hadith of the Prophet is interpreted to make woman ineligible for the position of head of the state. The Hadith referred to is roughly translated : “A people will not prosper if they let a woman be their leader.” This limitation, however, has nothing to do with the dignity of women or with her rights. It is rather, related to the natural differences in the biological and psychological make-up of men and women.
End Notes :
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(1) Available at,
http://www.islamreligion.com/index.php?option=com_tree and task=section and id=7.
(2) Dr. Jamal Badawi, The Status of Women in Islam, originally published in, Al-Ittihad, Vol.8, No.2, Sha’ban 1391/Sept 1971 (Website).
(3) Al Qur’an ,Sura 4: Verse 1.
(4) Keramat Ali, Mohammad, The Message, Selected Verses From the Holy Qur’an, The University Press Limited, Dhaka, Bangladesh, 1993, P.213.
(5) Al Qur’an, Sura 4: Verse 1.
(6) Ibid. Sura 17: Verse 23.
(7) Al`Nasa’I, Ibn Majah, Ahmad.
(8) Gholam Rabbani, Justice. Mohammad, Journey Within Islam, The University Press Limited, Dhaka, Bangladesh, 2000,P.106.
(9) Abu Dawud: No. 2276.
(10) Al Qur’an, Sura 16: Verses 58-59.
(11) Ibn Hanbal, No. 1957.
(12) Gholam Rabbani, Justice. Mohammad, Journey Within Islam, The University Press Limited, Dhaka, Bangladesh,2000,P.105.
(13) Al Qur’an, Sura 25: Verse 54.
(14) Ibid. Sura 2: Verse 187.
(15) Ibid. Sura 9: Verse 71.
(16) Ibid. Sura 4: Verse 34.
(17) Abu Dawud: No. 2139.
(18) Al Qur’an, Sura 4: Verse 4.
(19) Ibn-Hanbal, No. 7396.
(20) At-Tirmithy.
(21) Ibid.
(22) Al Qur’an, Sura 4: Verse 7.
(23) Ibid. Sura 4: Verse 124.
(24) Ibid. Sura 16: Verse 97.
(25) Ibid. 2:36, 7:20-24, 20:121.
(26) Dr. Jamal Badawi’s essay, The Status of Women in Islam, was originally published in quarterly journal, Al-Ittihad, Vol.8, No.2, Sha’ban 1391/Sept 1971 (web site).
(27) Bukhari. No.3.
(28) Al Qur’an, Sura 2: Verse 233.
Chapter-3
—————-
3.1(Criticisms Regarding Women Right)—
The western secular thinkers and policy makers argue that Islam does not prescribe equal rights between men and women and it retains discrimination between man and woman on the following five major grounds :
(a) Women get half share of the men by way of inheritance;
(b) Women cannot enjoy full political right;
(c) Islam allows polygamy ;
(d) Islam made distinction between witnesses of male and female; and
(e) Wife has no right to divorce her husband .
3.2 (Rebuttal of The Criticism)—
(a) Justification as to half share of women- In principal, both man and woman in Islam are equally entitled to inherit the property of the deceased relations but the properties they get vary . The fact that in some instances a man gets two of shares whereas a woman receives only one does not mean that this has been done to give preference or supremacy to man over woman but to enable him to carry out his extra responsibilities of protecting and maintaining women .1 As Allah Ta’ala says :
“And women shall have rights similar to the rights against them, according to what is equitable; but men have a degree (of advantage) as in some cases of inheritance over them.”2
Man in Islam is fully responsible for the maintenance of his wife, his children, and in some cases of his needy relatives, especially the females. This responsibility is neither waived nor reduced because of his wife’s wealth or because of her access to any personal income gained from work, rent, profit, or any other legal means. Woman, on the other hand, is far more secure financially and is far less burdened with any claims on her possessions. Her possessions before marriage do not transfer to her husband and she even keeps her maiden name. She has no obligation to spend on her family out of such properties or out of her income after marriage. She is entitled to the “Mahr” which she takes from her husband at the time of marriage.
Therefore, an examination of the law of inheritance within the overall framework of the Islamic law reveals not only justice but also an abundance of compassion for women. The views expressed by Allama Iqbal in this respect are worthy of note :
“The share of daughter is determined not by any inferiority inherent in her but in view of her economic opportunities and the place she occupies in the social structure of which she is a part and parcel— while the daughter according to Mohammedan Law is left to be full owner of the property given to her both by father and husband at the time of her marriage. If we judge the working of the rule of inheritance from this point of view we will find that there is no material difference between the economic possession of sons and daughters, and it is really by this apparent inequality of their legal shares the law secures the equality.” 3
(b) Justification as to political rights- There is no text in the Qur’an or Sunnah that precludes women from any position of leadership, except in leading prayer due to format of prayer and the Headship of the State (based on common and reasonable interpretation of Hadith). The Holy Qur’an says :
“The believers men and women are protectors of one another : they enjoin what is just and forbid and what is evil : they observe regular prayers, practice regular charity and obey Allah and Allah’s apostle. On them will Allah pour Allah’s mercy: for Allah is exalted in power and wise.” 4
There is sufficient historical evidence of participation by Muslim women in the choice of rules, in public issues, in lawmaking, in administrative involvement in social and political affairs was done without loosing sight of the complementary priorities of both genders and without violating Islamic guidelines of modesty and virtue.
Even in modern times, and in the most developed countries, it is rare to find a woman in the position of a head of state acting as more than a figurehead, a woman commander of the armed services, or even a proportionate number of women representatives in parliaments, or similar bodies. It is more logical to explain the present situation in terms of the natural and indisputable differences between man and woman, a difference which does not imply any “supremacy” of one over the other. The difference implies rather the “complementary” roles of both the sexes in life.
(c) Polygamy: Its Relevance in Islamic Law- It is true that Islam did not outlaw polygamy straightly but regulated it and restricted it. It is neither required nor encouraged but simply permitted in extra ordinary facts and circumstances under strict terms and conditions. The only passage in the Holy Qur’an explicitly mentioned polygamy and restricted its practice in terms and number of wives in the following language:
“It you fear that you shall not be able to deal justly with the orphans, marry women of your choice, two or three or four: but if you fear that you shall not be able to deal justly (with them) ,then only one.”5
However ,in another passage the Holy Qur;an specifically mentions that “you are never be able to be equitable as between your women, be ever so eager.”6
The Messenger of Allah Prophet slm., said:
“ O younger men, those among you who can support a wife should marry, for it restrains eyes and preserves one from immorality. But he who cannot afford it should fast, it is a means of controlling the desire.” 7
The above-mentioned verse of the Holy Qur’an permitting polygamy was revealed after the battle of Uhud when the Muslim community was left with many orphans and widows. Therefore, the ultimate object of permitting polygamy was to provide a moral, practical and humane solution to the problems of widows and orphans who are likely to be more vulnerable in the absence of a husband/father to look after their financial needs, companionship, proper rearing and other needs.
Allah Ta’ala proclaims another verses that it is nit possible for us to be equitable as between our wives. Therefore, if we meticulously go through the above quoted verses of the Holy Qur’an and sacred words of the Messenger of Allah, it may be said that monogamy is the norm of Islam and polygamy is quite an exception to the said norm and polygamy has been permitted under such strict terms and condition that it is virtually impossible.
(d) Women as witness: Justification in Islamic Law- One reference in the Qur’an distinguishes between male and female witnesses. It is useful to quote this reference and explain in its own context. The Holy Qur’an says:
“O you believe! When you deal with each other in transactions involving future obligations in a fixed period of time reduce them to writing. Let a scribe write down faithfully as between the parties: let not the scribe refuse to write as Allah has taught him. So let him write. Let him who incurs the liability dictate but let him fear his Lord Allah and not diminish ought to what he owes. If the party liable is mentally deficient or weak or unable himself to dictate let his guardian dictate faithfully. And get two witnesses out of your own men and if there are not two men then a man and two woman such as you choose for witnesses so that if one of them errs the other can remind her. The witnesses should not refuse when they are called on (for evidence). Disdain not to reduce to writing (your contract ) for a future period whether it be small or big: it is just in the sight of Allah more suitable as evidence and more convenient to prevent doubts among yourselves; but if it be a transaction which you carry out on the spot among yourselves there is no blame on you if you reduce it not to writing. But take witnesses whenever you make a commercial contract; and let neither scribe nor witness suffer harm. If you do (such harm) it would wickedness in you. So fear Allah that teaches you. And Allah is well acquainted with all things.”8
The only reason given is to corroborate the female’s witness and prevent unintended errors in the perception of the business deal.
(e) Dissolution of Marriage and its Justification in Islamic Law- In Islam divorce (Talaq) is considered to be hateful and it is recognized as necessary evil. As the Messenger of Allah once remarked:
“With Allah the most detestable of all things permitted is divorce.”9
However ,it is true that Islam has vested ultimate power of divorce to the husband and the wife is not generally empowered to divorce her husband.
Moreover, Islam provides a well-defined procedure for delegation of power of divorce by the husband to his wife at the time of marriage contract, which is called Talak-e-Towfiz. Again, dissolution of marriage may place in the from of Khula or Mubarrat.
The Holy Qur’an deals with the right of women in the following verses:
“It is not lawful for you to forcefully keep woman treating them as your properly, and do not harass them with a view to getting back part of the dower.” 10
“If a woman is scared of cruelty or desertion by the husband, there is nothing wrong if they arrange an amicable mutual settlement: such settlement is best, through one looks to one’s own benefit; be kind and fear God, God knows all that you do.” 11
The Messenger of Allah Slm, also says: “If a woman be prejudiced by a marriage, let it be broken off.”12
In fact, the very idea of unilateral divorce militates against the real spirit behind Islamic law of marriage and divorce. Divorce is permissible in Islam only in cases of extreme emergency when all efforts at reconciliation have failed.13
End Notes:
————-
(1) Dr. M. Ershadul Bari, 1994, Human Rights in Islam with Special References to Women’s Rights, The Dhaka University Studies, Part-F, Vol. V, No. 1, P 19.
(2) Al Qur’an, Sura 2: Verse 228.
(3) Quoted by Dr.M. Erhadul Bari, 1994, Human Rights in Islam with Special References to Women’s Rights, The Dhaka University Studies, Part-F, Vol. V, No. 1, P 19.
(4) Al Qur’an, Sura 9:Verse 71.
(5) Ibid. Sura 4:Verse 3.
(6) Ibid. Sura 4: Verse 129.
(7) Bukhari. No.4.
(8) Bukhari. No. 157.
(9) Al Qur’an, Sura 2: Verse 282.
(10) Quoted by Parveen Shaukat Ali, Human Rights in Islam, Adam Publishers and Distributors, India, 1995, P 113.
(11) Ibid. Sura 4: Verse 128.
(12) Bukhari, Quoted by Syed Khalid Rashid, Musliim Law, Easter Book Company, Lucknow, India, Third Edition, 1996, P 109.
(13) Syed Khalid Rashid, Musliim Law, Easter Book Company, Lucknow, India, Third Edition, 1996, P 114.
Chapter-4
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4.1(Practical Position of Women in Bangladesh)—
Though in theory Islam provides a significant number of admirable rights to women but in practice, they are discriminated in many fields of life. In most cases men always get precedence, and women are usually kept away from the main stream of national life. Women are actually segregated in social and educational spheres. A woman is generally chosen to be fit only for domestic works. As a result, though according to the true Islamic norms and principles there is no ambit of suppression to women but in practice this untoward is happening because of ignorance of some ‘bad guy’ types Muslims and in absence of the application of Islamic law in state affairs.
4.2(Violation of Women’s Right and Dignity)—
Historically, denial or non-recognition of women’s right to equality and dignity mainly manifests itself in two ways: through discrimination and through physical and other categories of violence. There is also often a clear lack of concern for their special needs.
Discrimination is almost all-encompassing. It begins at birth. It occurs within the family in parental and marital relationships, and at the societal and the state levels. It is reflected in individual attitudes and in administrative action and inaction. It is ingrained in certain laws, habits and social customs.
Violence or abuse, whether it occurs domestically or at the hands of outsiders, has its roots in the racial belief about the women being a lesser breed. It thrives in practice because the law, society and the administration in their variety of ways render her more vulnerable and themselves less appropriately able to respond to the wrongs committed or possible of being committed against her.
Violence against women occurred from various sources. There are criminal violence that usually took the form of kidnapping, rape, public humiliation, trafficking and abuse. Extra-judicial violence is perpetrated by the prevalent penal system and by members of law-enforcing agencies, usually against women in custody. Domestic violence consisted in battering and even burning of women. And a graphic illustration of social violence is the custom of killing of a woman in the family on suspicion of her having formed illicit liaison. None of these got reported on the scale it actually occurred.
(a) Sexual violence : Rape is a form of violence against women and girls who become the victims of this offence almost unhindered. In some occasions they fall victims of gang
rape by the perpetrators causing death. Rape is not only committed by the civilians but also law enforcement officials commit this heinous crime. All cases are not reported due to intimidation by the perpetrators and also due to the fear of social stigma. This view has been endorsed in the judgment of Justice Badrul Haque in Amin VS. Bangladesh case. 1 He observed, “A women who has been reaped undergoes two crisis, one the rape and the other the subsequent investigation and trial. In Bangladesh, the number of rape is 33 times higher than in Nepal, where 0.3 percents are victims of rape. 2
Rape in Bangladesh is a punishable offence. It has been defined under section 375 of Bangladesh Penal Code (Act No. 45 of 1860) which came in to force on 6 October, 1860.
It is to noted that Islam prescribes only death punishment for a married fornicator or a fornicatress and scourging of 100 stripes for unmarried persons when illegal sexual intercourse takes place with or without consent. 3
(b) Police violence : With increasing pressure against keeping women accused in police stations overnight and the stiffening of the law against it the errant members of the law enforcement agencies began turning to other methods for their exploitation of women. They either directly joined criminal gangs that, among other things, assault or kidnap women, or they used their accessibility and the terror of police methods to trawl their prey.
(c) Women in prison : Conditions and practices in jails constitute another category of violence against women suspected or accused of, or convicted for, an offence. Often the circumstances of suspicion or accusation where themselves a kind of gross violence against them.
(d) Violence of customs : Social customs often developed in order in effect to reinforce the supremacy of the male and the discrimination against the female. Disparate marriages arranged by the families purely to suit their landed and other material interests or the girls’ ‘marriage’ to the Holy Qur’an just to keep the family property intact were the more common of the practices that did violence to the interests of the girls. A more directly violent practice is the killing of the persons suspected of adultery. This too in practice victimized the women much more than the men.
(e) Acid violence : In Bangladesh acid violence is a heinous and cruel form of crime which is committed mostly against women. It is a major subject of national concern and is being reported frequently by media throughout the year. Acid attack is a horror which must not be adhered in any civilized society. Only 25 years back, acid violence virtually was not known to this country. Acid attack causes severe pain, disfigurement, disabilities or death. Acid attacks usually take place due to rejection of offer of marriage or sexual relations, family disputes or dowry refusals. Acid throwing causing harm and injury is a serious crime for which death punishment or life imprisonment and monetary fine up to one lakh taka has been provided in the Prevention of Acid Crime Act, 2002.4 Besides, government legislated ‘Acid Control Act 2002’.
(f) Dowry victims : “ Mhr or dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the masrriage” ( Bailie. Vol. 1 p 91: Abdul Kadir vs Salima (1886) 8 All 149: (37). The Family Courts Ordinance, 1985 has not ousted the jurisdiction The Family Court’s Ordinance, 1985 has not ousted the jurisdiction of a Magistrate to exercise power under section 488, CrPC. The provision of the Family Court’s Ordinance, 1985 are applicable not only to Muslim community but also to other communities as well. ( Meher Negar vs Md Mojibur Rahman 1994 BLD 467).
It becomes very clear that to get dower is the right of women. But this dower is one of the major causes of violence against women rights. In spite of prohibition against taking of dowry by the bridegroom from bride, violence associated with it continues in Bangladesh unhindered. In rural areas there is hardly any marriage without dowry, specially in the poorer community. Failure to meet dowry demand is the prime reason for marital violence which sometimes lead to death of the wife. And the dowry is the curse for the poor girls.
(g) Women trafficking : Trafficking in women includes all acts involved in the capture , acquisition, recruitment and their transportation within and across national borders with the intent to sell, exchange, or use for illegal purposes such as prostitution, servitude in the guise of marriage, bonded labour or sale of human organs by means of violence or threat of violence. 5 Trafficking in women and children is the worst violence against them. Recently trafficking in women from Bangladesh has increased tremendously. And the trafficking women are treated as beasts not like as a human, so here their rights and dignity are also being violated.
(h) Domestic violence : Domestic violence against women may rise and fall in any particular society depending upon socio-economic developments, as well as upon religious and cultural factors. In Muslim community domestic violence occurred by the husband, mother-in-law, father-in-law, and others in the husband’s house because of not capable to give money to the husband, poor, illiterate, careless, and always dominated by the male members of the society in our country.
(i) Violence against women in the working place : Unlike domestic violence, violence against women in the working place is not yet commonplace in Muslim societies because there are still very few Muslim women working in vulnerable settings lacking family protection or the collective protection of relatives in their local.
In this age of modernity and uncertainty, women need to equip themselves with professional skills to face the challenges of life, and to bring their own contributions to the total productivity and creativity of any state and society. Muslim nations and countries have been ignoring this pressing need to educate their women up to their full potential. And for these reasons women’s rights and dignity needs to be protected.
End Notes :
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(1) 51 DLR (1999) 154.
(2) Human Development Report in South Asia, 2001, P.14.
(3) Al- Qur’an (Sura Noor) 24:2; Shahih Al-Bokhari, vol. vi, P. 161(1982).
(4) Section 4 of the Act (Act No. 2 of 2002) prescribes death punishment or rigorous imprisonment for life including fine taka not more than one lakh if any body causes death or makes an attempt to cause death to any child or woman by using any burning substance, e.g. acid.
(5) State of Human Rights Bangladesh 1999. Coordinating Council for Human Rights in Bangladesh (CCHR) p. 98 (2000).
Chapter-5
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5.1(Reforms to Stop Violence)—
In earlier chapter various forms of violence against women’s rights and dignity has been discussed. Now I would like to discuss about some of the important reformative issues to stop these violence against women. We need to take the following steps :
(a) Reforms of Islamic Family Laws in Bangladesh : Bangladesh follows the legacy of India and Pakistan in the area of Islamic Law and its reform with certain modifications as and when it required by amendments. Therefore, after independence of Bangladesh in 1971, all the laws relating to child marriage, dissolution of marriage, registration of marriage, polygamy, talaq khula, inheritance of orphan grandchildren are embodied in the Islamic Family law of Bangladesh. 1
The judiciary has played all active part in reshaping the Islamic Family law of Bangladesh. In the area of maintenance, in the case of Sirajul Islam vs. Helena Belena Begum and others, 2 the Appellate Division of Supreme Court decided after a long discussion of the Pakistani and Indian case law that past maintenance is a right of the wife and the child.3 Similar to Shah Bano case in India a decision from the High Court of Bangladesh ruled that a Muslim husband is bound to maintain his divorced wife beyond the period of iddah which however was overturned by the Supreme Court in 1998 thus upholding the traditional Islamic Family law.4
Regarding additional marriage of a Muslim husband, the High Court Division held that such marriage without the consent of the arbitration council is against the principles of Islamic law.5 Based on social welfare, there is a shift in the attitude of the judges in deciding on restitution of conjugal right. The High Court Division of the Supreme Court observed that to allow restitution of conjugal right against a wife unwilling to live with her husband is to disregard the accepted state and public principle and policy.6
In addition to want have been stated as legislative reform in India and Pakistan as part of Islamic Family Law, Bangladesh has introduced the Muslim Marriages and Divorces Registration Act, 1974 where registration of marriage and divorce is made compulsory. The Act of 1974 amended section 3 of the MFLO related to registration of marriage and repealed the Bengal Mohammedan Marriage and Divorce Registration of marriage and repealed the Bengal Mohammedan Marriage and Divorce Registration Act, 1876. The Act of 1974 has set a penalty of simple imprisonment for a term which may extend to Tk.3000/- or both for those couples who contravenes the requirement of registration. However, similar to the earlier laws contravention of the compulsory requirement of registration the Act of 1974 does not render a marriage invalid, nor mere registration can validate an otherwise invalid marriage under Muslim law.
There are some other general codified laws in Bangladesh which affect Family law for example, the Dowry Prohibition Act, 1980, the Family Court Ordinance, 1985, the Prevention of Cruelty to Women and Children Act, 2000 etc.
(b) Development of Islamic Knowledge and Human Rights : Islam is complete of rights for Mankind. On rights, it’s a body construct. Human Rights can be seen into a few categories. The fundamental human rights embody physiological, shelter and safety rights. This abounds food, cloth, health, safety, and education. Advanced rights such as career opportunity, social position, social regards, and self-actualization depends on individual quality and body physics. The former category of rights should be ensured by the government or society through the family heads and other competent members. For the latter category of rights, the government is responsible to create environment and opportunities to develop oneself up to the highest of one’s ability or competency.
(c) Women in Jobs and Income : Muslim women are seen in almost all jobs predominantly. In government offices, currently women outnumbered men. Majority of the primary, secondary teachers are women now. According to their competency, they are allowed to hold any positions now-a-days. Many Muslim women are in businesses, engineering and medical professions. Therefore, they have very good level of access to economic activities and money making.
(d) Women’s Participation in Public Forum : A significant number of women are involved in politics. In the government party there are several MPs. Not only that in our country the leaders of BMP and AwamiLeague are female. Women’s in our country are getting more conscience about their rights day by day, by participating in various political parties.
(e) Learning on Basic on Islamic and Other Religions : For Muslim students (male and female) all schools offer designated Islamic subjects. Along with other subjects such as English, Math, Science, Moral, Geography etc Muslim women should learn other subjects and concepts of other religion existing in the world.
(f) Women’s Education : Women in our country are very much deprived in case of learning. They should have the right to get proper education . Because there is a truth that without educated mother a nation cannot be educated. So women in our country specially in the rural area should get proper facility by the government to get proper education.
(g) Women’s must be Dignified in Public Place: In all Masjids women are allowed to pray according to Islam. In this case they should get adequate space and facilities. And not only that women in public place such as, in bus, on road, offices, banks, shops, etc in all such places they should be treated politely and they must be dignified. Then women will not fell wired outside the home.
(h) Rights in the Family form Parents and Husbands : When women are in their fathers house they must be protected. They must get proper education, health care, foods, and
other facilities from their mother and father before their marriage. And after the marriage women needs to get proper support from their husbands. It is important to mention here that if women get a friendly relation with their parents and trustworthy relation with their husbands then only it is possible to make a woman’s life successful, where women’s rights will be protected and they will be dignified.
(i) Right to seek Protection of Women Rights in the court : Initiatives needs to be taken by the government of our country to make the path easier for the aggrieved women to go to the court for getting justice when their legal rights are infringed.
Apart from the points mentioned above the concept of gender equity must be discarded in favor of recognizing full equality as an inalienable right for women, the law must not discriminate on the basis of gender, there must be comprehensive legal and social equality for bath men and women.
End Notes :
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(1) For details see. Serajuddin, Alamgir Muhammad Shari’a Law and Society Tradition and Change in the Indian Subcontinent, 199, Asiatic Society of Bangladesh, Dhaka.
(2) 48 DLR 1996 HCD 48; 1996 4BLT (AD) 97 at pp.99-104.
(3) Siddiqua, Begum Asma The Family Courts of Bangladesh: AN appraisal of Rajshshi Sadar Family Court and the Gender Issues, 2005, FOWSIA, Freedo Foundation, Dhaka,p.57.
(4) Muhammad Hafzur Rahman vs. Shamsun Nahar Begum 47 DLR 1995 HCD 54,15 BLD HCD 1995, 34 AND 51 DLR 1999 AD 172.
(5) Jesmin Sulktana vs. Mohammad Elias 1997 HCD 17 BLD 4.
(6) Nelly Zaman vs. Giasuddin Khan 34 DLR 1982 HCD 221.
Chapter-6
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6.1(Women’s Rights in a National Context)—
Bangladesh is a country where more than ninety percent of its population is Muslim and constitutionally the State Religion is Islam. Though the municipal law is largely based on common law but the personal law of Muslims is guided by Sharia Law i.e. Islamic Law. The Muslim Family Laws Ordinance, 1961 brought a remarkable change in the application of Muslim Family Law particularly in succession, polygamy, talaq (divorce), maintenance and dower.1This ordinance played a vital role in upholding the legal rights of women in Bangladesh and thus directly contributed in women emancipation. Another remarkable piece of legislation is the Dissolution of Muslim Marriages Act, 1939 (Act 8 of 1939). This Ordinance determined the cruelty of husband to a wife very clearly. This legislation covers almost all the aspects of mental, physical and financial atrocities that a man can commit on a woman.
Another remarkable national legislation is the Prevention of Repression on Womwn and Children Act,2000 (Act No. 8 of 2000) which is applicable to irrespective of any religion to all women and children. It provided for capital punishment for committing certain oppressions on women e.g. murder, rape, kidnapping and trafficking etc.
Recently the Government of Bangladesh declared the Women Policy, 2008 which triggered a violent protest of the orthodox religious scholars and fundamentalist Islamic Political Parties. The policy was formulated from the ultra secularist’s view and it suggested some conflicting provisions with Quran and Sunnah. For example it provided for making legal provision to make the equal share of women and men in case of inheritance.
If the Islamic law of inheritance can be ensured for a woman that would be sufficient for her financial freedom. Therefore, changing of the law of inheritance might destroy the family ties in Bangladesh thus the oldest institution in the civilization i.e. the family could be badly damaged like western world. The western world is now trying to rehabilitate and reconcile the institution of family at any cost. But if we follow the religious orthodox views and if we can maintain and preserve the family institution in Bangladesh would be much batter for the society and humankind.
6.2(Review)—
Islam, as it is declared by the Holy Qur’an, is the complete code of life for all people of the world irrespective of their caste, creed, race or language and it is universally applicable for all time equally. Consequently, it does not merely prescribe the rules and regulations regarding the religious norms and practices but also guide the human family in every aspect of their life. The Holy Qur’an along with the Hadith, the two main sources of Islamic law, provides numerous provisions relating to the inalienable, inviolable and universal rights of human being and very lucidly provides distinguished rights of women. These rights are not simply declaratory in nature but these were thoroughly implemented by the Messenger of Allah Prophet slm., and his righteous companions in their life time which is regarded as the golden age of Islam. But in Course of time, some Muslim rulers and most of the Muslims deviated from the true path of Islam and interpreted and implemented the provisions of Islam in their own discretion in order to accomplish their vested interest. In this way, the Muslim community utterly fails to represent the true norms of Islamic principles to the rest of the world. However, the most civilized, human principles of Islam are absolutely based on fair justice and equity. But the non-Muslim and secular Muslim jurists without going through the actual principles of Islam, prima facie presume a wrong idea about Islam and express their comment thereon. Thus, the true Islamic principles remain far away from the people of the world. Taking this advantage, the western mass media spread propaganda against Islam. As a result, Islam is being portrayed as doctrine of oppression and repression of women. By doing so they managed to make Islam the most misunderstood religion now a days.
6.3(Conclusion)—
It is really divine blessing for human being that Islam has emerged in the Arabia Peninsula during the period of “Dark Age” which is rightly called as the Aiwame Jahelia, in order to guide the people of the world to the right path. Besides, it has laid down human rights and fundamental freedom for all the members of human family, which are to be observed and respected in all circumstances. Islam is second to none in enhancing the dignity of women by providing well-defined and distinguished rights. But it is a matter of great regret that in practice the Muslim Ummah does not reflect all the Islamic principles regarding women rights and dignity in their way of life.
Thus, there has been a considerable gap between the belief of Muslims and their practice. It is because of their lack of knowledge and disregard to Islam. It is really the high time for Muslim Ummah to realize the facts and take the sacred duty to reduce this gap and demonstrate to the rest of the world that the theoretical framework of Islamic ideology can be easily implemented in individual and collective life, which requires that each and every one becomes a true Muslim in the light of Al Qur’an and Sunnah. Under the present facts and circumstances, it has become obligatory for every true believer to demonstrate by their character and behaviour that Islamic values are not inimical to women progress rather Islam provides all sorts of distinguished rights with full benefits for their actual development in all spheres of life. In this way the women will get due place in the socio-political organization of Muslim community.
For further information some Muslim Laws existing in Bangladesh are annexed herewith in the ANNEXURE PART.
End Note :
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(1) Came in to force on 15 July 1961, by notification dated 12 July 1961.
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