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.
Chapter two
2. Laws Relating to Women in Bangladesh
Legislation for Muslim Community:
(i) The Muslim Personal Law (Shariat) Application Act,1937 (Act No. XXVI of 1937).
(ii) The Dissolution of Muslim Marriage Act,1939 (Act No. VIII of 1939).
(iii) The Muslim Family Laws Ordinance, 1961(Act No. VIII of 1961).
(iv) The Muslim Family Laws Rules, 1961.
(v) The Muslim Marriages and Divorces (Registration) Act, 1974.
(vi) The Muslim Marriage and Divorce (Registration) Rules, 1975.
Legislation for Hindu Community:
(i) The Hindu Marriage Disabilities Removal Act, 1946 (Act No. VIII of 1946).
(ii) The Hindu Married Women’s Right to separate Residence and Maintenance Act, 1946 (Act No. XIX of 1946).
(iii) The Hindu Women’s Right to Property Act, 1937 (Act No. XIIX of 1937).
(iv) The Hindu Disposition of Property Act, 1937 (Act No. XIIX of 1937).
(v) No. XII of 1928).
(vi) The Hindu Widow’s Re-marriages Act, 1856 (Act No. XI, XV of 1856).
(vii) The Hindu Validity Act, 1949.
Legislation for Chirstain Community:
(i) The Christian Marriage Act, 1872 (Act No. XV of 1872).
(ii) The Christian Married Women’s Property Act, 1874 (Act No. XV of 1872).
(iii) The Divorce Act, 1869 (Act No. IV of 1869).
(iv) The Succession Act, 1925 (Act No. 39of 1925).
Legislations Common to all Communities:
(i) The Penal Code, 1860 (Act No. XLV of 1860).
(ii) The special Marriage Act, 2923.
(iii) The Child Marriage Restraint Act, 1929.
(iv) The Guardians and Wards Act, 1890.
(v) The Births and Deaths Registration Act, 1873.
(vi) The Birth, Deaths and Marriages Registration Act, 1886.
(vii) The Foreign Marriage Act, 19093.
(viii) The Bengal Maternity Benefit Act, 1939.
(ix) The East Bengal Maternity Benefit Rules, 1931.
(x) The East Bengal Maternity Benefit (Tea Estates)Act, 1950.
(xi) The East Bengal Maternity Benefit (Tea Estates) Rules, 1954.
(xii) The Mines Maternity Benefit Act, 1941.
(xiii) The Arya Marriage Validation Act, 1937.
(xiv) The Orphanages and Widow’s Home Act, 1944.
(xv) The Registration Act, 1974.
(xvi) The Child Marriage Restraint Act, 1929.
(xvii) The Dowry Prohibition Act, 1980.
(xviii) The Family Courts Ordinance, 1985.
(xix) The Family Courts Rules, 1985.
(xx) The Cruelty to Women (Deterrent Punishment) Ordinance, 1983.
(xxi) Oppression of Women and Children (Special Enactment), 1995.
(xxii) Nari O Shishu Nirjaton Daman Ain, 2000.
(xxiii) The Acid Control Act, 2002.
(xxiv) The Acid Oporadh Daman Ain, 2002.
Chapter three
3. 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. 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 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)
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 . 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. 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.
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.
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.
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. With the introduction of the Muslim Family Law Ordinance 1961, the position has changed. Section 7 of the Ordinance provides that Divorce given by the husband shall not take effect until the husband has given notice of the Divorce to the chairman of local administrative unit, Union Parishad and ninety days have elapsed after issuance of the said notice and within the said period the husband can revoke the Divorce. The husband is also to give a copy of the said notice to the wife. The Chairman on receipt of the notice would constitute Arbitration Council for effecting a re-conciliation which, if successful, would render the divorce ineffective. It is an offence not to notify the Chairman about exercise of Divorce by the husband. The provisions of Sec. 7 of the Ordinance apply mutatis mutandis in case of divorce exercised by the wife and the divorce does not take effect unless notice thereof is given to the Chairman and 90 days have elapsed thereafter. The husband can delegate his power of divorce to his unconditionally or with condition and that is called Talak-e-Tawfeez. When any condition is stipulated the wife can divorce her husband in the happening of that condition. Now the divorced parties can remarry without the formality of the marriage with third party. (Sec7(6), Muslim Family Laws Ordinance, 1961.)
Muslim marriage can be dissolved by agreement between the husband and wife and it may take the force of Khula or Mubarrat. In Khula, the marriage is dissolved by an agreement between the parties for a consideration paid, or to be paid, by the wife to the husband, it being necessary condition that the desire to separate should come from the wife. Where desire to the separation is mutual, it is said to be Mubarat. A wife is entitled to Khula as of right or restoration of what she had received in consideration of marriage, if she satisfies the conscience of the court that it will otherwise mean forcing her into a hateful union. As stated above, a Muslim female does not have the right to divorce in the way a male has, but she could seek judicial divorce on grounds permitted by Muslim Law. The Dissolution of Muslim Marriage Act, 1939 (Act No.VIII of 1939 (Vide Pakistan Code 1966, Vol.IX,P.716). was passed in order to consolidate and to clarify those grounds and also to add some new grounds. A wife is entitled to obtain a judicial divorce on neglect or failure of the husband to provide maintenance for two years. But if the wife refuses herself to her husband without any lawful excuse and deserts her husband, or otherwise willfully fails to perform her marital duties, she has no right to claim maintenance and cannot obtain a decree for dissolution of marriage on the ground of nonpayment of maintenance. The fact that the wife is a woman of means would not be a defense to the claim of judicial divorce for non-payment of maintenance. A Muslim woman can obtain judicial divorce on any ground recognized by Muslim Law. Thus a wife is entitled to judicial divorce if the husband brings false charge of adultery against her unless the husband bonafide retracts the charge of adultery. To constitute a valid retraction, it must be made before the commencement of the hearing of the suit, it must be bonafide and there must be an admission by the husband about making the charge and an unconditional acknowledgement by him that the charge is false. Incompatibility of temperament as results in a hateful union has been accepted as a ground for seeking judicial divorce. Before the Dissolution of Muslim Marriage Act 1939, apostasy from Islam of either party operated as a complete and immediate dissolution of marriage. After passing of the Act, apostacy from Islam of the wife does not dissolve the marriage (Sec.4 of the Act) while apostacy of the husband dissolves the marriage immediately.
Restrictions have been imposed on polygamy; the husband’s power to divorce remains virtually unrestricted. Women exercising the delegated power of divorcing are seen in oblique eye. After dissolution of marriage the women are deprived of maintenance. It is difficult for the women to go to court for realizing her maintenance and dower after she exercises the power of delegated Talak. Traditional method of dissolving, still dominant. Divorce by adhering to traditional method that means registration by divorce with the Kazis, is still continues. Notice procedure to UP Chairman under section 7/8 is not always popular. Section 6(2) of the Muslim Marriage and Divorce Registration Act, 1974, provides, “an application for registration of divorce shall be made orally by the persons who has or have effected the divorce” but the act does not contain any adverse legal consequence if the registration of divorce is not made. On the other hand, section 7 speaks that the husband shall give notice of talak to chairman. If notice requirement is violated the husband is liable to punishment one year imprisonment of fine maximum Tk.10000/=-or both. So, why the parties shall go for registration of divorce where there is no penal provision for its violation. The Ordinance made provision for constitution of arbitration council within 30 days after the chairman receives the notice. But nothing is said in the ordinance if the chairman does not do his duty. It is may be better to dissolution of marriage and decide about maintenance and dower in any case by the Family Court.
Divorce in Christian Law:
Christian Law creates greater discrimination between husband and wife. Husband is given priority over wife and equality provisions are violated. The divorce Act, 1869 provides for right to divorce (section 10-11), adultery alone is the ground on which the husband can seek dissolution to the District Court or High Court Division. On the other hand, Christian women must demonstrate his adultery coupled with incest (sex relationship with kinsfolk) desertion, or he is guilty of bigamy (taking two wives at the same time), or of rape, sodomy or bestiality (beastliness). So men and women have different standards on self-same matter. Another objectionable side of the act that the husband has a right to get compensation from a person, who had illegal relation with his wife (section 34). In contrast the wife can not pray for such relief. If the court proves that the wife is an adulterer, she is subjected to penalty ands loses her right to alimony. This is also gender biased.
Hindu, Tribal etc.:
No system of divorce is available in Hindu law. According to Dayabhaga law divorce is not possible except on a very limited ground of chastity of wife. But, what would happen if the husband is of immoral character? Section 10 of the Divorce Act 1869 empowers the wife to present petition to the district court or to the High Court division for the dissolution of her marriage on some reasonable grounds. Then, it is a question why not the Hindu women exercise their rights? Are all Hindu marriages not recognized by Bangladeshi law? All of their marriages are void?
On the other hand, Tribal, Buddhist and some other communities has no divorce procedure and divorce registration in Bangladeshi law. Women of these communities became subjected to different humilities. Their fundamental and humanitarian rights are violated fluently. Can we do to preserve their rights?
3.3) Maintenance:
maintenance includes food, clothing and lodging. This definition of maintenance is not exhaustive. Te word includes other necessary expenses for mental and physical well being of a minor, according to his status in society. Educational expenseswere included in the definition in Ahmedullah Vs. Mafizuddin Ahmad (73) AIR Gau.
In accordance with Muslim Law, the father is bound to maintain his daughter until she is married . The fact that the mother has the custody of the daughter till the latter attains puberty does not relieve the father of his obligation to maintain the daughter. If the father is poor, but the mother is in easy circumstances, the mother has the obligation to maintain the daughter . But a father is not bound to maintain a daughter who is capable of being maintained out of her own property. A Muslim mother is entitled to maintenance from her son if she is poor or if the son is financially solvent. A Muslim husband is bound to maintain his wife so long the wife remains faithful to him and obeys his reasonable orders. If the wife refuses herself to her husband without any lawful excuse and deserts her husband or otherwise wilfully fails to perform her marital obligations she has no right to claim maintenance from the husband. But if the wife refuses to perform her marital obligations on the failure of the husband to pay the prompt dower the husband will not be absolved of his liability to maintain his wife . A Muslim woman in the event of divorce is entitled to maintenance by the husband till the expiry of the period of Iddat (e.i.90 days, and in case of a pregnant wife till the end of the pregnancy). A Muslim male maintains his daughter as best as his means permit and a husband also maintains his wife to the best of his ability so long the relationship remains good, but if the relationship is estranged, the condition of the wife is very difficult. The social milieu and cumbersome court procedure made it difficult for the wife to have maintenance through Court. Muslim Family Laws Ordinance, 1961 tried to evolve a procedure through which the wife can easily have her remedy, but it has not produced any appreciable improvement. The Family Courts Ordinance, 1985, however, has been promulgated to deal with divorce and related matters and provisions have been made to dispose the cases of within the shortest time possible. A Muslim widow is essentially dependent on her son, for, generally even her share in the property of her husband remains in the hands of the son and ironically enough, her fate depends upon the attitude of the daughter-in-law. But if the widow has no son to depend upon the relations of the husband; her condition in most cases is miserable.
Muslims, Hindus, Christians, Tribal all are entitled to take resort to Family Court. Muslim can claim under personal laws. Hindu women claim maintenance under their personal laws. Hindu married women’s right to maintenance has been established by the Married Women’s Separate Residence and Maintenance Act, 1946. Hindu women can claim her maintenance on certain grounds. The Christian women can claim alimony (maintenance) under the Divorce Act, 1869. In accordance with this act in a pending suit the wife is allowed alimony from her husband, not exceeding 1/5th of husband’s average net income for three years next proceeding the ate of the order. Apparently, law provides for maintenance but in our social context and legal regime its practice is not good.
3.4) Guardianship and Custody of Children
Custody of children is one of the most gender biased law in our legal system. The concept is that women do not have guardian status in the eye of law. Law of custody and guardianship is a mixture of:
(i) Sunni Hanafi Law,
(ii)Colonial Legislative Innovation (Guardianship and Wards Act, 1890),
(iii) The wide use of the powers of judicial discretion,
(iv) Social and cultural practice of gender stereotyping.
Muslim Law
After divorce mother is entitled to custody of male till seven and female until puberty, of course this age line is flexible on ground of ‘welfare doctrine’. Above this age line father is the legal guardian. Reasons for women’s deprivation the laws view women as, less capable financial provider, incapable social protector. Also the traditional belief that father is the legal guarding. By not giving a mother such inherent right of custody over her own offspring, she is treated as an in competent human being.
Christian Law
Though the Christian Law sounds perfect in protecting best interest of the child, it is discriminatory to the mother. The mother’s right may be denied if it is deemed that such custody might conflict with the bringing up of a child with a faith other than the father’s.
Hindu Law
In Hindu law mother is not legal guardian. Guardians of the minors are: (i) father, (ii) persons appointed by will by father, (iii) person appointed by court and Guardians and Wards Act, 1890. Thus mother can be deprived of guardianship by father by appointing guardian by will. It is a gender biased law and contradictory to the law of equality. Controversially, mother is the natural guardian of her illegitimate child. Thus puts extra burden on mother.
3.5) Inheritance :
Muslim Law
Mmuslim law of inheritance based is based on, the rules relating thereto laid down in the Koran or in the traditions,and the customs and usages prevailing amongst the Arabs in so far as they have not been altered or abrogated by the Koranic injuctions or traditions.
Muslim law of inheritance has two distinct elements, namely, the customs of ancient Arabia and the rules laid down by the Qurand and prophet Mohammad. Under the customary law of pre-Islamic Arabia the women in whatever capacity were excluded from inheritance. The Quran made quite a considerable change of the position. According to to the Muslim Law there are three kinds of heirs (i) “sharers” who are entitled to a prescribed share of the inheritance, (ii) “residuaries” who take on prescribed share, but succeed to the residue left after satisfying the claims of the sharers, and (iii) “distant kindreds” who are blood relations other than the sharers and residuaries, and succeed generally in the absence of sharers and residuaries. In the classification of the heirs, it is important to note that though the son’s son and son’s daughter have been made residuary and sharer respectively, daughter’s children have been made distant kindreds. The principles of succession among the sharers and residuaries are two-fold, i. The nearest in blood relationship excluded the remote one and ii. Whoever is related to the deceased through any person shall not inherit while the person is living. Under the Muslim Law, the wife (or wives taken together) get one-eighth if there is child, and one fourth if there be no child from the estate of her husband, though the husband gets exactly double. Mother gets from the estate of her sons one-sixth when there is child of her son or when there are two or more brothers or sisters or one brother and one sister of her son, and one third when there is no child and not more than one brother or sister of her son. On the other hand, the father gets from the estate of his son one-sixth if there be child of his son and in the absence of any child of his son, he gets the entire residue after satisfying other sharers claim, and so on and so forth. It is significant that the Quran has provided that daughter, mother and wife would under all circumstances be entitled to some share in the inheritance and are not liable to exclusion from inheritance, but they are not treated at par with their male counterparts, i.e. son, father and husband and to this extent rules of inheritance are discriminatory. Women in fact were not given parity in the matter of their shares and as a general rule, the female is given one-half the share of the male. Salma Sobhan writes, since “the Koran is to be likened to an “amending act” rather an exhaustive code… in the changed society there is little reason to perpetuate this distinction.
The case of sister’s inheritance is equally discriminatory. According to the rule of nearer in relationship excluding the remoter in relationship, children of a pre-deceased son or daughter would not inherit if a person died leaving another son. This often rendered the child or child of pre-deceased child destitute. This inequity, however, has been removed by Muslim Family Laws ordinance, 1961, which provides that the children of the predeceased child would inherit the share which the pre-deceased children would have inherited had he or she been alive. But the widow of a predeceased son remains as helpless as before as she does not inherit anything of this ordinance.
Muslim law ensures, females and cognates are made competent to inherit, As a general rule, a female is given one-half of the share of a male, this is because of her lesser responsibilities and obligations in comparision with males. Muslim law of inheritance ensures six classes of females as Koranic shares. But the questions on the point that, “the widow receives very in adequate treatment, for her maximum share is 1/4th of her husbands estate and that too is reduced to 1/8th by the survival of any child of the deceased, and, the most controversial problem in the Muslim law of inheritance is posed by the fact that the Islamic law of intestate succession gives a son twice the share of a daughter, and a brother of the full and consanguine blood twice that a corresponding sister (and, indeed a widower twice a widow’s share, and a father, in certain circumstances, twice that of a mother). In Muslim law the female never get residuary. In law , the newly-created heirs are mostly female. Some deprivation and exclusion from inheritance of women is not justified. Some of rules of exclusion suffer with certain defects and need modifations. For example, the exclution on the basis of homicide, in Hanafi law should be restricted to intentional homicide, a child of fornication should be accepted as an heir in shia law, and the statutes which excludes daughters from inheritance and thus defeat a most cardinal principle of Muslim law, should be repeald.
Chirstian Law
Christian law simply liberal for male female’s succession. Married Women’s Property Act, 1874 and The Succession Act, 1925 provides for Christian inheritance. In Christian law son and daughter get equal from the deceased.
Hindu Law
The main points of difference between Dayabhaga and Mitaksara are: (i) Dayabhaga does not recognise birth-right to property, Mitaksara does so; (ii) Drayabhaga holds, right to inherit and order of succession are determined by principle of spiritual benefit; in Mitaksara blood relationship is the determinant. Spiritual benefit consists in performing obsequial rites and offering pindas (rice-balls). Plainly stated, the right of a person to a deceased person’s property is determined by his capability of offering pinda for the benefit of the latter; (iii) In Dayabhaga, members of a joint family hold shares in quasi-severalty; they can dispose of them even before partition; (iv) In Dayabhaga, even in an undivided family, the window takes the share of her husband dying childless; in Mitaksara, she cannot do so.
In case of inheritance from father, according to Dayabhaga law, sons exclude others except in case of non agricultural property. In case of non agricultural property a wife gets a share equal to that of a son. Sons or son of a predecessed son inherit from their grandfather the share which their father would have inherited if had been alive at the time of their grandfather’s death. If neither sons nor wife, nor sons of a predecessed son is alive, the daughter or daughters inherit with the priority to the maiden daughters. Barren widowed daughter or daughters having no son or probability to have no son are excluded from inheritance to their father. Loss of chastity is also a ground which can exclude a wife or daughter from inheritance. Only five classes of women inherit according to Dayabhaga School of Hindu law. They are according to preference: wife, daughter, mother, father’s mother, father’s father’s mother. But these women inherit only in life interest, that is they are owners with limited rights and on their death the property would pass to the nearest male heir of the deceased male owner and not to the heirs of the female heirs. The woman or women inheriting in life interest can sell the property only for limited legal necessity.
Stridhana Property acquired by women or received as gifts are own property of women and are called stridhana property. They can sell or give away this property as per their desire. Stridhana are devided into four classes according to the origin of acquisition by woman. Succession to stridhana is also different giving the daughters a better right of inheritance.
The order of succession to stridhana, depending on its different kinds, is as follows: (i) Sulka (bride’s price): full brother, mother, father, husband; (ii) Yautuka (gifts made at the time of marriage): un-betrothed daughters, betrothed daughters, married daughters having or are likely to have sons, barren married daughters and childless widowed daughters sharing equally; sons, daughter’s sons, son’s sons, sons’ sons’ sons, step-sons, step-sons’ sons, step-sons’ sons’ sons. In the absence of any of the above, the yautuka of a woman would devolve in the order: her husband, brothers, mother, father; (iii) Anvadheya (gifts or bequests made by the father subsequent to marriage): order of succession is the same as in Yautuka with the difference that (a) sons are preferable to married daughters; (b) in case of a woman, dying childless, the order of succession is brother, mother, father, husband; (iv) Ayautuka (gifts or bequests from relations made before or after marriage; gifts and bequests from father before marriage): Sons and maiden daughters sharing equally; married daughters having or are likely to have sons; son’s sons; daughter’s sons; barren married daughters and childless widowed daughters. In the absence of all the above, Ayautuka devolves in the following order: brother, mother, father, husband, husband’s younger brother, husband’s brother’s son, sister’s son, husband’s sister’s son, brother’s son, daughter’s husband, husband’s sapindas, sakulyas and samanodakas, father’s kinsmen.
Persons deprived of inheritance : The following are some of those who are not entitled to share in properties: impotent, born blind, born deaf, lunatic, idiot, dumb, having deformed limbs, apostate, son of an apostate, incurably diseased, leper, renouncer of worldly life, renegade. A Hindu converted to other religion cannot inherit if the succession opens after conversion. If a Hindu widow remarrys she has to give up the property or right she had received from the previous husband.
Disowning or to disinherit an heir is permitted in Hindu law. Religious endowments are common in Hindu law and person appointed for its management is called shahayet. In the absence of the heirs the property of the deceased male will vest in his preceptor, pupil and fellow-student in this order. Only five classes of women inherit according to Dayabhaga School of Hindu law. They are according to preference: wife, daughter, mother, father’s mother, father’s father’s mother. But these women inherit only when living, that is they are owners with limited rights and on their death the property would pass to the nearest male heir of the deceased male owner and not to the heirs of the female heirs. The woman or women inheriting when living can sell the property only for limited legal necessity.
Practice in India: After the partition of India in 1947 Hindu law was changed in India. In 1955, new Marriage Act was enacted in India whereby marriage system has totally been changed and polygamy given an end. Divorce system was also introduced. Section 13(1) of Hindu Marriage Act 1955 declares the right of divorce to both the parties on some grounds. In 1956, by the enactment of the The Hindu Succession Act 1956, one law was enacted for all the Hindus of India. Sons and daughters were given equal share on the demise of their father or mother while wife or husband was due for one third share. In 1991, the Indian Succession Act 1925 was amended. The amendment eliminates this discrimination against women and provides that both daughters and sons will receive equal shares in the property of both a female and male intestate.
No one can trace the exact time or year of the birth of Hindu law. However, it is believed that Hindu law was not created or promulgated in a day like other laws. It was probably grown through a process of evolution and custom until the writers made it a law. Deprivation from inheritance of women is nothing but injustice or miscarriage of equality. It should be considered by our legislature.
3.6) Trafficking
An alarming increase in crimes against women has raised a serious concern at the state of law and order in the country. In fact, violence against women is an outcome of the prevailing unequal relationship between men and women in our society. In the persisting patriarchal societal structure, social customs, traditions, religious believes and institutional rules and regulations all are tended to marginalize the position, rights and status of women and further more undermine their security. There is a direct relationship between the definition of law and order situation and security of women. The widespread deterioration of law and order situation makes the situation more vulnerable for not only the working women but also for those who remain inside of a house. Even more disturbing is the tolerance by the community of violence perpetrated by ‘well known persons’, gangs or law enforcing personnel.
Presently, violence against women in Bangladesh is existing in all its forms: visible and invisible. Rape, marital and custodial rape, child rape, gang rape, murder, trafficking of women and girls, oppression of women to simple nutritional deprivation are some of the different forms of violence. Women are here considered as an object of repression and no women aged between three and 50 are spared. The incidents of rape in police custody become a new concern for women, which indicates that women are not safe in the custody of the law enforcing agencies.
The Bangladesh Bureau of Statistics in 1993 revealed that women’s death due to unnatural causes (e.g. suicide, murder, burn, poisoning etc.) was almost three times higher than pregnancy related causes.
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.’
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.” 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.” And “No person shall be deprived of life or personal liberty save in accordance with law.”
As regards ‘equality before law,’ the Constitution provides that “All citizens are equal before law and are entitled to equal protection of law.” And discrimination is prohibited on grounds of religion, race, caste, sex and place of birth. Women’s equal rights with men are recognised “in all spheres of the state and of public life.” 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.’
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,” 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.’
Statutory Legislations
Bangladesh and India were a single State before 1947. So they inherit the same system of criminal justice.
The State of Bangladesh inherits laws and legal system existing in Pakistan, which was also a single State named India before 1947. Like India and Pakistan, the Code of Criminal Procedure (CrPC) and the Penal Code, in amended forms govern the criminal justice system in Bangladesh. The Penal Code contains provisions for penalising crimes related to adduction, kidnapping, subject to slavery, keeping in confinement, buying or disposing any person as a slave and selling for purpose of prostitution which in general cover trafficking. Sections 360, 362, 363, 365, 366 (A), 366 (B), 367, 368, 369, 370, 371, 372, 373 and 374 of the Code have provisions for penalising such crimes.
Like India, no Bangladeshi legislation-already repealed or now existing aims to abolish prostitutes and prostitution as such and make it per se a criminal offence or punish a woman as she prostitutes herself. But the law was or is to inhibit or abolish commercialised vice namely the trafficking in women (and children) for the purpose of prostitution as an organised crime.
Punishment under the Penal Code
The penalty for kidnapping any person is imprisonment of either description for a term, which may be extended to seven years and also fine. For kidnapping a person under the age of ten years and to be engaged in slavery, the punishment is death sentence or life imprisonment or rigorous imprisonment for a term, which may be extended to 14 years and shall not be less than seven years. If the kidnapped person is a major one, the punishment is imprisonment for either description for a form may be extended up to ten years and fine also.
The punishment for inducing or forcing or seducing any women under the age of 18 years to illicit intercourse with another person is imprisonment which may be extended to ten years and fine also.
The penalty for importing any woman under the age of 21 years into Bangladesh from any country to be forced or seduced to illicit intercourse with another person is imprisonment, which may be extended to 10 years and fine.
The Code also penalises crime related to enslavement. The punishment for importing, exporting, removing, buying, selling or dispensing of any person as a slave (or accepts, receives or detains against his/her will) is imprisonment of either description for a term which may be extended up to seven years and also fine. If anyone habitually deals in slaves the punishment is life sentence or imprisonment of either description for term not exceeding 10 years and also fine.
For selling or buying or hiring or disposing of any person, under the age of 18 years with intent that such person shall (at any age) be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, the punishment is imprisonment of either description for a term which may be extended to 10 years and also fine.
Special Laws
Having provisions for penalising crime relating to violence against women the Penal Code has been failing remarkably. The Code provides punishment of imprisonment ranging from only one year to 14 years for crime related to trafficking.
As overall incidents of violation of human rights of women had been increasing dramatically at the early 80s, women’s and human rights organisations were demanding special law with deterrent effect to stop violence against women and children.
In this circumstances, the then Chief Martial Law Administrator promulgated the Cruelty to Women (Deterrent Punishment) Ordinance, 1983. The expedition to promulgate such a law was “to provide for deterrent punishment for cruelty to women.”
The Cruelty to Women (Deterrent Punishment) Ordinance, 1983
The provision of the Ordinance overrides provisions contained in any other law. This was the first legislation in Bangladesh, which provides penalty for crimes related to ‘trafficking in women’ specifically. Section 5 of the Ordinance reads as ‘whoever imports or exports, or sells, lets to hire or otherwise disposes of or buys, hires or otherwise obtains possession of any woman of any age with intent that such woman shall be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such woman will be employed or used for any such purpose shall be punishable with death or imprisonment for life or with rigorous imprisonment for a term which may extend to fourteen years, and shall not be less than seven years and shall also be liable to fine.’
When a woman is sold or let for hire or otherwise disposed of to a prostitution or to any person who manages it, the person disposing of such a woman shall be presumed to have disposed of her with the intent that she would be used for the purpose of prostitution, until contrary is proved. The gist of the offence is the exercise or effective control over a woman with intent that such a woman would be used for the purpose of prostitution or illicit intercourse. The intention may be gathered from the facts proved.
The law also provided the punishment with imprisonment for life or rigorous imprisonment for a term, which may extend to 14 years and fine also for the crime related to kidnap or abduction of woman for unlawful or immoral purposes. Earlier, the punishment for kidnapping any person was imprisonment of either description for a term, which may extend to 10 years and fine also. So the law of 1983 has increased the penalty.
The Oppression on Woman and Child (Special provision) Act, 1995
This law was enacted with a view to penalise heinous crimes relating to oppression on women and children. With the enactment of this law the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 was repealed. Like the 1983 Ordinance the 1995 Act also override other relevant laws.
The Act of 1995 further strengthened the penalty for trafficking in woman. It also provided life imprisonment and fine for crime related to import, export, buy or sell or hire or otherwise transfer a woman to be engaged in prostitution or illicit intercourse or for immoral purposes. The punishment for obtaining possession of a woman for importing, exporting, hiring or transferring otherwise to be engaged in prostitution or illicit intercourse or for immoral purposes was rigorous imprisonment for 14 years and fine. This law provides life sentence to rigorous imprisonment, which may not be less than seven years and also fine for offence related to kidnapping or adduction of a woman to be engaged in prostitution or to be used for immoral purposes; forced marriage; forced or deceitful intercourse. For crime relating to trafficking in a child the law, for the first time, provided the punishment of capital punishment or life imprisonment (Section 12).
Special Features of the Oppression on Women and Children (Special Provision) Act, 1995
Unlike the 1983 Ordinance the 1995 Act had some special features. The new law provided provisions for trial of offences relating to oppression on women and children by special courts (Section 15). There should be a special court in every district headquarter for training the crime covered by the 1995 Act (Section 16). The government could also established special courts in other places, if necessary, by Gazette notification. The court would be formed with a District and Session Judge. This also included Additional District and Session Judge.
The Oppression on Women and Children Control Act, 2000:
The law has been passed to facilitate enactment of necessary rules for controlling oppression on women and children strictly. With the enactment of this new law the Oppression on Women and Children (Special Provision) Act, 1995 has been repealed. Like special laws of 1983 and 1995, the new one of 2000 also overrides other relevant laws.
Special Features of the Act
The Oppression on Women and Children Control Act, 2000 has been enacted with a view to control ‘oppression’ as a whole on the vulnerable group of our society, women and children strictly. The new legislation has some special features.
Penalty
The newly enacted law provides punishment of death sentence or life imprisonment or rigorous imprisonment which may be extended up to 20 years but not less than 10 years and also fine for offence related to trafficking in women. The punishment would be death sentence or rigorous imprisonment for life and fine if the victim is a child.
The punishment for abducting a woman or child to be engaged in prostitution or unlawful or immoral purposes is life imprisonment or rigorous imprisonment up to 14 years and in addition fine.
Rape is the common consequence of trafficking. The Act provides the penalty for rapping a woman or child, a rigorous imprisonment for life and also fine. If the victim dies following the rape the punishment would be death sentence or rigorous imprisonment and fine of taka not less than one lakh. The same penalty would be sentenced to each of the gang if any woman or child dies following a gang rape.
Special Tribunal
Section 26 of the Act deals with the formation of special tribunals. It provides that there would be the Oppression on Women and Children Control Tribunal in each district headquarter to try offences under the Act. The Government can establish more than one tribunal in a district, if necessary. The tribunal would be constituted with one Judge in the rank of District and Session Judge. This includes Additional District and Session Judge also.
The tribunal would not accept any offence for trial without a written report submitted by a police officer not bellow the rank of a Sub-Inspector (SI) or other authorised person designated by the government [Section 27(1)]. The tribunal may accept any complaint directly in exceptional cases [Section 27(1)].
Trial Procedure
The offences under the Act are cognisable and non-bailable. Only for exceptional circumstances, the tribunal may grant bail (Section 19).
The offence under the Act have to be investigated out by the concerned police officer within 60 days from receiving information regarding happenings of the Offence or being ordered by the Magistrate for the investigation. The Investigation officer may be granted 30 days more if s/he could convince the Tribunal that more time is needed for fare justice (Section 18).
The hearing of a case continues in the Tribunal in every working day until it comes to an end. The trial of a case has to be completed within 180 days after being accepted for trial by the tribunal (Section 20). The trial can be done in absence of the accused person(s) (Section 21).
Effectiveness and Weakness of Legislation:
Constitutional guarantees in favour of women and laws enacted for their protection and benefit have not had much real impact on their lives. The harsh reality is that women in South Asia in general and in the Indian Sub-continent in particular are less powerful, less educated, less well to do than men and more exploited at almost every level of society.
The incidents of violence against women e.g. kidnapping, family violence, dowry, wife beating, sexual exploitation, trafficking and the like have been increasing gradually. Despite the constitutional provisions for equality, social justice and protection of women these continue. Jurist observes: “such offences are not merely a problem of law enforcement but are also indicative of the disabilities and inequalities from which the women in our country continue to suffer….” This is the reality also for India and Nepal.
In case of Bangladesh, the then Chief Martial Law Administrator in 1983 enacted the first special legislation, the Cruelty to Women (Deterrent Punishment) Ordinance, 1983. This law was enacted in response to the widespread and gradually increasing oppression on women and children. This was done with a view to remove the drawback of the existing law enacted during the colonial rule. The 1983 Ordinance provides provisions for penalising offences related to kidnapping or abduction of women for unlawful or immoral purposes (Section 4), trafficking in women (Section 5), rape (Sections 7 and 8), causing death for dowry (Section 6) etc. But it had no provision for penalising offences relating to oppression on children, which was underlined as a major drawback of the legislation.
With the existence of the law the oppression on women and children had been increasing alarmingly. As a result, the weakness of the 1983 Ordinance appeared to the administration and judiciary without further delay. The Parliament during the then Government of the Bangladesh Nationalist Party (BNP) once again enacted a new legislation titled Nari-O-Shisu Nirjatan (Bishesh Bidhan) Ain, 1995 [The Oppression on Women and Children (Special Provision) Act, 1995] in 1995. This (new law) repealed the 1983 Ordinance. The 1995 Act decreased the punishment for “trafficking in women” from “death or imprisonment for life or with rigorous imprisonment for a term which may extend to fourteen years, and shall not be less than seven years and shall also be liable to fine” to “life imprisonment and in addition to fine also.” Unlike the 1983 Ordinance the 1995 Act provides for 14 years rigorous imprisonment and fine for disposing or otherwise obtaining possession of a woman to import or export, let to hire to be engaged in prostitution or illicit intercourse or unlawful and immoral purposes [Section 8(2)]. Accordingly, it provides for the punishment of life imprisonment or rigorous imprisonment for 10 years which may not be less than seven years and in addition fine for offences related to kidnapping or abduction of women (i) to be engaged in prostitution or other unlawful or immoral purposes; (ii) to be married against her will; and (iii) to be forced or deceitful intercourse (Section 9). The law, for the first time provided punishment directly for trafficking in children. The penalty was death sentence or life imprisonment (Section 12).
The new legislation having 29 sections provided for provisions for special court, time limit for investigation, trial procedure, special powers for Magistrates etc.
But within a very short time, the loopholes of the new legislation were (1995 Act) exposed to a great extent. It was observed that stringency was more emphasised instead of normal implementation during enactment of the law. It provided that the arrested person (accused) would not be granted bail within 90 days.
Section 18 of the Act provided for the tenure of 60 days for investigation of any complaint under the Act. In special circumstances, the court could extend the time for 30 days more. There was no provision for punishment of the Investigation Officer if s/he failed to complete the investigation within the stipulated time (maximum 90 days). It was not clearly mentioned that what would be the position of a case if the investigation were not completed timely. Press reports indicate that the “non-bailable” provision of the Act become a weapon for harassing “innocent public.” The Act provided the penalty of death sentence for offences like acid burn (Section 5), rape (Section 6), killing for dowry (Section 10), child trafficking (Section 12) etc. For other offences, the penalty ranged from life imprisonment to rigorous imprisonment for 14 years. The oppression on women and children has been increasing gradually. With the enactment of “special laws” for women and children the phenomena of filing “false case” has increased sharply. The judge, lawyer and investigating authority (police) acknowledged it. This is going on for harassing others. As a result the rate of conviction is very few under the Act. Though it also resulted from faulty complaint and charge sheets, lack of evidences, absence or irregular presence of eyewitnesses, faulty trail procedure and other things. These influence high rate of acquittal.
TABLE 3
STATEMENT OF CASES RELATING TO TRAFFICKING IN WOMEN DURING 1996 TO 1999
Year No. of Cases No. of Trafficked Women Recovery of Trafficked Women Total No. of Accused No. of Accused Arrested
1996 33 77 41 130 67
1997 64 103 84 244 68
1998 83 112 85 215 103
Up to September 1999 31 46 28 104 34
Total 211
338
238
693
272
Source : Bangladesh Bar Council, Human Rights and Role of Lawyers, ud.
After enactment of the Oppression on Women and Children (Special Provision) Act, 1995 the number of cases filed under the Act is 3,646 in 1996, 5,543 in 1997 only in first six months of 1999. The increasing rate from 1996 to 1998 is 102 percent. Within one year, from 1996 to 1997, the number of registered cases increased by 60 percent. With the increasing of number of case, the rate of conviction decreased.
In 1996, 2,733 out of 3,646 cases were charge sheeted (75%). Final report was made for 906 cases (25%). Conviction was made only for 207 cases (19%) and for 1,068 cases accused were acquitted.
Under the 1995 Act the rate of conviction was 19.26 percent in 1996 which decreased to 14.08 percent in 1997. The rate of acquitted cases was 80.74 percent in 1996. This increased to 85.92 percent in 1997.
Though separate data for trafficking cases are not available, but the figure mentioned earlier indicate the ‘over all’ picture of the ‘special legislation’ enacted ‘in favour of women and children.’
Given the example of the Oppression on Women and Children Tribunal, in last 28 months completed by February 1999, the court has completed trial of 3000 cases. Besides, 1,356 cases were under trial. Among completed cases conviction was possible only for 55 cases (15.33%). The accused was sentenced with different punishment including life imprisonment. The main cases behind acquittal of large number of cases were identified as lack of eyewitness and evidences. Since the punishment is stringent for offences related to oppression on women and children the complaint and accused come to a negotiation and proceed accordingly. As the trial is time consuming the complaint become frustrated.
According to a press report, 2,615 cases have been filed under the 1995 Act in last five years, 1996 to 2000 in the district of Bogra only. The interesting thing is that till December 2000 only 25 cases have been finalised. Due to faulty charge sheets, absence or irregular presence of complaint and eyewitnesses, the concerned court has so far discharged 715 cases. Police officials in Bogra indicate that 95 percent of the cases filed under the 1995 Act are “false”. These cases were filed in different police stations and courts. The year-wise number of discharged cases in the district is: 89 out of 142 in 1996; 184 out of 268 in 1997; 172 out of 502 in 1998; 207 out of 798 in 1999 and 63 out of 905 in 2000. The percentage of discharged cases is 62% in 1996; 68% in 1997; 34% in 1998; 25% in 1999 and 6% in 2000.
The Sangbad, a vernacular daily from Dhaka headlines that “Misuse of Oppression on Women and Children Act in Bogra, 281 cases in six months, half are ‘false”. According to the report, during the period from 1 July to 30 June 1998, 281 cases have been registered with 11 police stations in Bogra under the 1995 Act. Among the case, 191 are for oppression on women and 90 for oppression on children. The report discloses that most of the complaint of the said cases were accused in different cases earlier. They filed new cases to harass the eyewitnesses, even complaints of the previous cases. Some lawyers reportedly encourage to file “false cases” for their “professional gains”. The case of Bogra was not the only one. The same thing is going on in other districts.
With this backdrop, the 1995 Act earned enormous criticism within two years of its enactment. The Government initiated to enact a new law for penalising oppression on women and children back in 1998. Finally, the new legislation titled Nari O Shishu Nirjatan Daman Ain, 2000 (the Oppression on Women and Children Control Act, 2000) was enacted in 2000. This routinely repealed the 1995 Act. The new law among others penalises offences related to filling “false case”. The punishment is maximum seven years rigorous imprisonment and fine (Section 17).
Though, to evaluate the effectiveness and weaknesses of the new legislation more time would be needed but in the meantime some sections of the Act have come under criticism.
The law empowers the Tribunal to order for keeping the victim, women and children in a place run under the authority of the Government for the purpose of the Act or in other suitable organisation or in the custody of a person, which is considered suitable by the Tribunal. This can be done if the Tribunal has the reason to believe that the victim needs ‘safe custody’ during the trail of any offence under the law (Section 31). But to keep any person in the ‘safe custody’ is contrary to the spirit of the Constitution. Eminent Lawyer, Barrister Amirul Islam has rightly challenged the constitutional validity of the provision questioning: “What is the right of the law and law enforcing agency which cannot protect life and dignity of a women to became a custodian for her security?” He suggests to consider will, opinion, intellectual ability, relatives and circumstances of the woman before keeping her in jail in the name of the “safe custody.”
So far, few positive sides of the existing law have been explored. Unlike the previous Ordinance and Act, the new one does not totally prohibits granting of bail. But it empowers the tribunal to exercise its discretion in this regard (Section 19). There are also provisions for recommending “departmental punishment” by the Tribunal if the concerned Investigation officer and doctor failed to perform their duties (Section 18 and 32).
In the case of Bangladesh, it is proved that the stringent law is not the solution of the problem. What is more important is that proper implementation of the law, widely acknowledged by the jurist, lawyer and human rights activists.
However, the enactment of three legislation “in favour of women and children” in last 17 years has made the efficiency of the legislator questionable.
3.7) Dowry
Marriage negotiations for Bangladeshi Muslims involve various financial transactions including primarily the religiously sanctioned dower (mahr). Added to mahr, the practice of dowry or joutuk, demands made by the husband’s side to the bride’s side, have in the last few decades become a widespread practice supported neither by state law nor personal laws, but apparently designed to strengthen traditional patriarchal assumptions. The dowry system is not recognised in the religion or the law of the Muslim societies but has spread into it. Conversely, Islamic law provides dower to enhance the status of women. Why should Muslim women, who are supposed to be protected by dower, become victims of dowry? While recent scholars have admitted the fact that dowry has spread to the Muslim communities, they have largely ignored the position of Muslim women within this discourse.
Dowry deaths are a common phenomenon in South Asia. These deaths of women are usually caused by the same persons who are legally and socially enjoined to protect them, i.e. their husband or in-laws.
The Dowry Prohibition Act of 1980 prohibits the taking or giving of dowry. The Repression Against Women and Children Prevention Act of 2000 Defines Dowry as: Money, goods or other property given or promised directly or indirectly by the brides side to the groom or his father, mother or any other person from the bridegrooms side at the time of marriage as consideration or condition of the marriage and any such money, goods or property demanded from the bride or the bride’s side by the groom, his father or mother or any person from the groom’s side [Section 2(j)] .
The Repression of Women and Children Prevention Act of 2000 Section 11 States:
If any woman’s husband or husband’s father, mother, guardian, relation or any person acting for the husband, causes the death of that woman for dowry or attempts to cause death or injures such woman for dowry or attempts to cause such injury the husband or husband’s father, guardian, relation or any person shall:
a. For causing death be punishable by death penalty or for attempt to cause death by life imprisonment and in both cases shall be liable to pay additional fine:
b. For causing injury shall be punishable by rigorous life imprisonment or for attempt to cause injury be punishable by rigorous imprisonment up to the term of maximum fourteen years but not less that five years and In both cases be liable to additional fine.
Under the Dowry Prohibition Act, 1980.Agreement for giving or taking dowry is void. Magistrate court has jurisdiction over the matter. But in our social context, still now dowry is very common in marriage in different form. The purpose of this act is not properly frustrated; it creates at least public awareness. We have to practice to go for legal help and try to remove dowry from society.
3.8) Restrictions on Child Marriage:
Child marriage is the sickness of our society . It is a very common phenomenon in our country.Under the Muslim law, marriage is a contract between two individuals and to make it valid the consent of both partners in the presence of two witnesses is essential. With regard to child marriage, the law states that should a girl be married off by her parents during infancy, the marriage must be endorsed or dissolved by the girl on her attaining puberty. In a bid to restraint child marriage, the Child Marriage Restraint Act 1929 (amended in 1984) raised the minimum age of marriage for both women and men. The 1984 amendment fixed the minimum age at 18 for women and 21 years for men. But widespread contravention’s of this law proves that its enforcement is very weak, and there is hardly any prosecution for any breach of this law..
In accordance with section 4 of the child Marriage Restraint act,1929 child marriage is punishable offence, solemnizing child marriage and the guardians also liable to punishment. Women’s are not liable to punishment under this act, I think it is questionable. Union parishad or paurashava or municipal corporation within the area shall bring the complaint and any first class Magistrates have jurisdiction to take cognizance the offence. Bringing allegation process is very complex, I think it should be liberal. In our social context, the objects of the act is not totally frustrated, at brings public awarness.
Chapter four
4. Constitutional guarantees:
The Constitutions of Bangladesh India and Nepal guarantee equality of status and opportunities to men and women. More over the States are empowered by the Constitutional provisions for making provisions both general and special for the welfare of women.
The Constitutions of these three selected countries guarantee various fundamental rights irrespective of sex. A women as a citizen of the country enjoys these rights. The following fundamental rights are available for both men and women.
Right to Equality
“Equality before law” has a place in almost all the written Constitutions that guarantee fundamental rights. Both the expressions have also been used by the UDHR. These terms have been adopted from the English Constitution, which implied absence of special privilege in favour of any person. It provides that all citizen are equal before the law and thus implies “equality of treatment in equal circumstances,” e.g. application of the same law alike and without discrimination to all persons similarly situated.
The formula as stated in the relevant Articles of the Constitutions of Bangladesh, India and Nepal contain the English concept of equality before law and the American concept of equal protection of law. But the concept is not independent and severable in their application and will be found to overlap each other. But it is a guarantee against discrimination both in conferment of privileges and imposition of liabilities.
In fact the concept “Equality before law,” derived form the English Constitutional law follows from the ‘rule of law.’ The latter connotes the undisputed supremacy of law. This supremacy of law is for giving security to the rights of individual who are the citizens of a democratic State.
Every modern State, at least theoritically has accepted the principle of equality before law. Its acceptance is found in the provisions of the most of the written Constitutions.
Generally, equality before law meant that among the equals law shall be equal and shall be equally administered. There shall not be any special privilege for the reason of birth, creed etc.
In the case of Sheikh Abdus Sabur v. Returning officer it was observed that:
Equality before the law does not mean absolute equality of man, which is physically impossible, but the denial of any special privileges by reason of birth, creed or the like, in favour of any individual and also the equal subjection of all individuals and classes to the ordinary law of the land administered by the ordinary law courts.
The Appellate Division of the Supreme Court of Bangladesh further observed:
“Equality before law” is not to be interpreted in its absolute sense to hold that all persons are equal in all respects disregarding different conditions and circumstance in which they are placed or special qualities and characteristics which some of them may posses but which are lacking in others.
Though personal laws existing in South Asian countries provide that male and female are not of ‘equal status’ in terms of inheriting property. But the Indian Supreme Court observes that in case of division of property after the death of the father, sons, wife and daughters are entitled to inherit his estate including alienated property even though the wife and daughters are under the customary laws incompetent to challenge the alienation.
The Constitution of Bangladesh further provides that women shall have equal rights with men in all spheres of State and of public life.
Right to Non-Discrimination
The Constitutions of Bangladesh, India, and Nepal prohibit classification of citizens on grounds of only religion, race, caste, sex or place of birth.
Discrimination indicates an unjust, unfair or unreasonable bias in favour of one and against other. The general meaning of ‘discriminated against’ is to ‘make an adverse distinction with regard to,’ ‘distinguish unfavorable from others.’
Article 28(1) of the Constitution of Bangladesh provides that state shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. This Article corresponds to Article 15(1) of the Indian Constitution and Article 11(3) of the Nepali Constitution. According to Durga Das Basu the scope of the Article 15 of the Indian Constitution is very wide. Article 15(1) reads “The State Shall not discriminate against any citizen on grounds of only religion, race, caste, sex, place of birth or any of them,” The plain meaning of the prohibition is that no person belonging to a particular religion, cast, sex etc. shall be treated unfavourably by the State when compared with persons of any other religion or sex merely on the ground that s/he belongs to the particular religion or sex. But discrimination will not be unconstitutional if there is any other ground or consideration for the differential treatment in addition to those prohibited by the Article.
Right to Equal Protection of Law
Right to equal protection of law is an important fundamental right. Article 31 of the Bangladesh Constitution provides that right to protection of the law and to be treated in accordance with law is the inalienable right of every citizen. This is also applicable for the person residing in Bangladesh for the time being. And no action detrimental to the life, liberty, body, reputation or property of any person shall be taken in accordance with law.
Article 140 of the Indian Constitution provides : “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Article 11(1) of the Nepali Constitution also provides that “… No person shall be denied the equal protection of the laws.”
In Mofizur Rahman v. Bangladesh the Appellate Division of the Supreme Court of Bangladesh observes that “every action affecting a citizen’s right must be taken in accordance with law or under the authority of law and not according to the whims of the person in authority or under any executive fiat.”
Right to Equality of Opportunity in Employment
The Constitution provides equality of opportunity for all citizens in respect of employment or office in the service of the Republic and prohibits discrimination or ineligibility on grounds only of religion, race, caste, sex or place of birth.
Article 16(1) of the Constitution of India provides equality of opportunity in matters relating to employment or appointment to any office of the state. The right to equality is only in employment or appointment under the State. This relates to the matter of recruitment, promotion, wages, termination increments, leave, gratuity, pension, age of retirement, etc. But this equality is amongst the equally placed persons, equality amongst the same class of persons and not amongst different classes of persons.
The Constitution lists specific grounds on which citizens are not to be discriminated against each other. These are religion, race, caste, sex, descent, place of birth etc. Gender based discrimination is specifically prohibited by the Constitution. Sex shall not be the sole ground of ineligibility for any post.
Right to Life and Personal Liberty
The Constitutions of Bangladesh, India, and Nepal guarantee right to life and personal liberty. Article 32 of the Constitution of Bangladesh reads : “No person shall be deprived of life or personal liberty save in accordance with law.” This Article corresponds with Article 21 of the Constitution of India and Article 12(1) of the Constitution of Nepal.
The very objective of the provision is that no man (human being) can be subjected to any physical coercion that does not admit of legal justification. It means that no member of the Executive are entitled to interfere with the liberty of a citizen unless s/he can support her/his action by some provision of law.
Therefore, when the State or any of its agents deprives an individual of his/her personal liberty, the law should justify such action and the procedures prescribed by such law have to be observed “strictly and scrupulously.”
Right to Privacy
Except as provided by the law, the right to privacy of the person, house, property, document, correspondence, or information of anyone is inviolable. This relates to Article 43 of the Bangladesh Constitution and Article 21 of the Indian Constitution.
Right to Freedom
Articles 36 to 41 of the Bangladesh Constitution provide for citizen right to freedoms of movement; assembly, association; thought and conscience, and expression; profession or occupation; religion; and property. These articles provide that subject to any reasonable restrictions imposed by law, public order and morality in the public interest or in the public order or Public health or the State, friendly relations with foreign States or in relation to contempt of court, defamation or enticement to offense as the case may the citizen or people residing in Bangladesh for the time being are entitled to enjoy the rights mentioned above.
These rights relate to Articles 12, 17 and 19 of the Constitution of Nepal. These, except right to religion and right to property corresponds to Article 19 of the Constitution of India.
Right Against Exploitation
As mentioned earlier Article 21 of the Constitution of India guarantees right to life and personal liberty. But “Right to life” does not merely mean animal existence. It means some thing more, e.g. the right to live with dignity. Thus, rape is a crime against basic human rights and is also violative of the victims right to life guaranteed in Art. 21. Art. 23 of the Constitution has categorically prohibited “traffic in human beings and begging and other similar forms of forced labour…” Similarly, Art. 24 prohibits employment of child (including a female child) below the age of 14 years in any factory or mine or in any other hazardous works.
The Constitution of Nepal also prohibits “Traffic in human beings, slavery, serfdom or forced labour in any form…” Any contravention of the provision shall be punishable by law.
Unhopefully, the Constitution of Bangladesh does not prohibit “traffic in human being” directly. But it prohibits all forms of forced labour which is a major consequence of trafficking. Besides, Art. 18(2) of the Constitution provides for the State for adopting “effective measure to prevent prostitution” which is also a consequence of trafficking.
Women’s Special Fundamental Rights:
Most of the fundamental rights guaranteed in the Constitutions of Bangladesh, India and Nepal are both for men and women. But there is some exception also. Some fundamental rights are exclusively for women. These rights give them (women) equal status, at least theoretically with men and empower the state to adopt laws or provisions in favour of women. These fundamental rights are exclusively for women.
Equal Rights for Women
Article 28(2) of the Constitution of Bangladesh guarantees that women shall have equal rights with men in all spheres of the State and public life. This provision in favour of women makes an advance over the Constitutions of other South Asian countries including India, Nepal and Pakistan. But this clause does not help her in all spheres of life except the spheres of the State and public life. This “equal rights” provision is not applicable to those rights which are governed by the personal laws (e.g. in case of Muslims by Sharia). But human rights activist explains it negatively:
This limitation has been implied from the inherently ambiguous nature of the equality guarantee itself as in Bangladesh where it appears to be qualified by the pharse “State and public life.”
Women are Favoured : Law Making Power of the State
The Constitutions of Bangladesh, India, and Nepal empower the State for making special provision(s) for the protection and the interests of women or in favour of women. The State is empowered by these provisions for making laws to help the womenfolk in the competition where they are in a weaker position. Art. 15(3) of the Constitution of India reads : “Nothing in this article shall prevent the State from making any special provision for women and children.” This provision is an exception to the rule against discrimination provided in Arts. 15(1) and 15(2) of the Constitution.
Art. 15(3) of the Constitution of India permits the State to make special provision for women and children. In fact, making a special provision is not the same as taking decisions in favour of women. In this regard the Allahabad High Court observes that special provision for women as a class can be made, but not to benefit an individual woman.
In Dattatraya Motiram v. State of Bombay, Chief Justice Chagla observes that as a result of the joint operation of Art. 15(1) and Art. 15(3) the State should discriminate in favour of women against men, but it could not discriminate in favour of men against women. This observation has also been supported in Smt. Choki v. State of Rajahthan . This contraction of Art. 15(1) and Art. 15(3) would be applied to existing as well as future law. In this regard Chief Justice Chhagla in Dattatrayas Motiram More v. State of Bombay observes :
It is impossible to argue that the constitution did not permit laws to have special provision for women if the laws were passed before the constitution come into force but permitted the legislature to pass laws in favour of women after the commencement of the constitution. If a law discriminating in favour of women is opposed to the fundamental rights of citizens, there is no reason why such law should continue to remain in statute book … But the exception made to Article 15(1) by Article 15(3) is an exception which applies both to existing laws and to laws which the state makes in future.
This special treatment for the vulnerable group, women and children is for the interest of the society itself. Accordingly, in a case of conflict between Art. 27 and 28(3) of the Constitution of Bangladesh, the latter will prevail.
The Penal Code also has special treatment in favour of women. In this regard section 497 of the Bangladesh penal code dealing with the offence of adultery is mentionable. The Section reads :
Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.
The Section expressly excludes the woman who equally participates in the crime from participation in the crime form being punished as an abettor. Only man is liable to be punished under the Section. The constitutionality of the Section was challenged as violative of Articles 14 and 15 of the Constitution of India.
In this regard, the judgment of Hon’bel Supreme Court of India in Yusuf Abdul Aziz v. State of Bombay is a landmark in the history of the constitutional validity of the penal provision(s) protecting women. In the case a complain under section 497 was filed against the petitioner. He immediately applied to the High Court of Bombay (now Mumbai) to determine the constitutionality of the Section. The High Court upholds it as constitutional. Then the petitioner filed an appeal before the Supreme Court under Article 132(1) 134(1) of Constitution. Section 497 was challenged on the ground that it was violative of Article 14 and 15 of the Constitution of India, which guarantee a right to equality. The historic judgement was delivered by a bench consisting of Chief Justice Mahajan, Justice B.B. Mukerjee, Justice S. R. Das, Justice Bose and Justice Ghulam Hasan. Delivering the Judgement of the Court Jostice Bose observes :
Article 14 is general and must be read with the other provisions which setout the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two Articles read together validate the impugned clause in Section 497 of penal Code.
The validity of the Section was also upheld by the Supreme Court in Smt. Sowmithri Vishnu v. Union of India.
Chapter five
5. Low of Women under the Penal Code:
Women’s several rights and protection of law have been established in the Penal Code (Act no. 45 of 1860) and jurisdiction is given to the criminal courts. The following provisions are available in the penal code for the protection of women:
Section 366- kidnapping, abducting or inducing woman to compel her marriage,
Section 372 – selling minor for the purpose of prostitution etc.
Section 372- buying minor for the purpose of prostitution etc.
Section 375¬¬- rape,
Section 376- punishment of rape (punishment of rape goes to Nari-O- Shishu Nirjaton Daman Ain-2000),
Section 312- causing miscarriage,
Section 313- causing miscarriage without women’s consent,
Section 314- death caused by act done with intent to cause carriage, if act done without women’s consent,
Section 493- cohabitation caused by a man deceitfully inducing a belief of lawful marriage,
Section 494- marrying again during life time of husband and wife,
Section 495- some offence with concealment of favor marriage from person with whom subsequent marriage is contracted,
Section 446- marriage ceremony fraudulently gone through without lawful marriage,
Section 497- adultery,
Section 498- enticing or taking away or detaining with criminal intent a married woman,
Section 509- word, gesture or act intended to insult the modesty of a woman.
These protection of women by the penal code runs in corroboration with Cr.P.C. 1898, Evidence Act, 1872 and some other criminal laws. In our social context, these laws do not run in its full rhythm.
Chapter six
6. Protection of women by Special legislations and special court or tribunal:
Enhancement of the legal status of women and for the protection of women a series of enactments was made in the legal regimr of Bangladesh. Women’s are deemed to be the backward section of out country. Many special laws have been passed and special courts or tribunals have been established for thje protection and development of women.
The Family Courts Ordinance, 1985 and family courts (Civil Action):
Family courts, which have been established in the country more than twenty years ago, need not be made familiar once again. If you are not a lawyer you may not have to learn the procedure of trial in the courts. It may even not be necessary for everyone to know the jurisdiction of the courts. But you must know your rights to be exercised through family courts. Hence, this write-up aims to make you informed about your dealings with a family court.
By the Family Courts Ordinance 1985 the Family Courts get hold of exclusive jurisdiction for expeditious settlement and disposal of disputes only in suits relating to dissolution of marriage, restitution of conjugal rights, dower, maintenance, guardianship and custody of children. The courts began working all over the country except in the hill districts of Rangamati, Bandarban and Khagrachhari. Soon after the court began functioning, questions were raised about whether the Family Courts would deal only with the family matters of Muslim community or of all communities. The uncertainty lasted for a long time until in 1998 a special High Court bench of the Supreme Court in a path finding judgment removed all the questions regarding family court’s jurisdiction. Every lawyer and judge dealing with Family Courts are supposed to be aware of the judgment. But the common people for whose benefit the courts have been constituted seem still uninformed about the great decision relieving the justice-seekers in the Family Courts of a harming uncertainty. Section 5 of the Family Court Ordinance, 1985 speaks about the jurisdiction of the Family Courts which reads as: “Subject to the provisions of the Muslim Family Laws Ordinance, 1961 (VII of 1961), a Family Court shall have exclusive jurisdiction to entertain, try and dispose of any suit relating to, or arising out of, all or any of the following matters,
namely:-
(a) dissolution of marriage
(b) restitution of conjugal rights
(c) dower
(d) maintenance
(e) guardianship and custody of children
Just after coming into force, the family court comes under confusion, as mentioned above, about its jurisdiction that whether a Family Court is a court for Muslim Community only. In Krishnapada Talukder Vs Geetasree Talukder [14 (1994) BLD 415] the question was whether a woman, Hindu by faith, could file a suit in a Family Court for maintenance against her husband. The honourable judge of the High Court Division held that “As per the provisions of the present Ordinance, all the sections of the 27 section statute have been made available for the litigants who are Muslim by faith only.”
The said judgment came on 5th June 1994, and just a few days later on 25th July 1994 in Nirmal Kanti Das Vs Sreemati Biva Rani [14 (1994) BLD (HCD) 413], the High Court Division expressed diametrically opposite view. The learned judge of the High Court Division referring section 3 of the Ordinance held that the provisions of Family Courts Ordinance shall have effect notwithstanding anything contained in ‘any other laws’ for the time being in force. From the expression ‘other laws’, it appears that the Family Court Ordinance controls the Muslim Family Laws Ordinance, 1961, and not vice versa. Thus, any person professing any faith has a right to bring a suit for settlement and disposal of disputes relating to dissolution of marriage, restitution of conjugal rights, dower, maintenance, guardianship and custody of children. And so, a Hindu wife is entitled to bring a suit for maintenance against her husband in a Family Court.
In Meher Nigar Vs Md Mujibur Rahman [14 (1994) BLD (HCD) 467] the High Court Division corroborated the abovementioned view by holding that the Muslim Family Laws Ordinance 1961 introduced some changes in the orthodox Muslim personal laws relating to polygamy, <>talaq<> and inheritance and in order to keep those reformative provisions of the Ordinance of 1961 effective it has been provided that the provisions of Muslim Family Laws Ordinance of 1961 shall not be affected by the provisions of the Family Courts Ordinance of 1985; and section 23 of the Family Courts has specified the area not to be affected. It otherwise indicates that the provisions of the Family Courts Ordinance are applicable to other communities which constitute the populace of Bangladesh. Following such dissimilar views and decisions, the confusion regarding jurisdiction of the Family Court was natural. And such confusion continued until 1997 when a larger bench of the High Court Division of the Supreme Court in its path-finding judgment in Pochon Rikssi Das Vs Khuku Rani Dasi and others [50 (1998) DLR (AD) 47] removed all the confusions. The special bench of the High Court Division comprised of three Judges upheld that “the Family Court Ordinance has not taken away any personal right of any litigant of any faith. It has just provided the forum for the enforcement of some of the rights as is evident from section 4 of the Ordinance, which provides that there shall be as many Family Courts as there are Courts of Assistant Judge and the latter courts shall be the Family Courts for the purpose of this Ordinance.
Moreover, the court also declared that ‘Family Courts Ordinance applies to all citizens irrespective of religion’.
It seems quite pertinent to refer some of the submissions which the Court relied on. It was submitted that:
If Family Court Ordinance is intended to apply only to the Muslim community then there was no reason for not providing it accordingly as has been done in case of Muslim Filmily Laws Ordinance, 1961. The Family Courts Ordinance should have been named as Muslim Family Courts Ordinance. …….in the Family Courts Ordinance there was no exclusive exclusion of any community and unless there is specific exclusion the law will have general application, that is, it will apply to the citizens of all faiths. ….. if sections 3, 5, and 24 of the Family Courts Ordinance are read together it will be evident that guardianship and custody of children were made exclusively triable in the Family Courts and unless the law is applicable to all how a non-Muslim can get a relief in the said matters. …… 5 matters enumerated in section 5 of the Family Courts Ordinance are matters of personal laws of the citizens of different faiths who follow different rules in matters enumerated in the section or do not have any rule at all as in the case of Dower and Dissolution of Marriage in case of Hindus. All citizens may not be concerned in all matters but that cannot be a ground to hold that the Ordinance applies only to the Muslims. ……Family Courts Ordinance has not encroached upon the personal laws of the citizen of any faith. This Ordinance provided that Family Courts will have jurisdiction to entertain and decide suits on the matters enumerated in section 5 subject to the provisions of the Muslim Family Laws Ordinance meaning thereby that while disposing of a matter amongst the Muslim the provisions of Muslim Family Laws Ordinance shall have to be kept in mind. …..had there been no exclusive jurisdiction of Family Courts there may be complications in cases filed by husband and wife professing different faiths. ….not all the personal laws of the Muslim have been included in section 5. Some provisions of Muslim personal laws such as Waqf, Gift, parentage etc. have been kept out of the provisions of the Family Courts Ordinance. So it cannot be said that this is only for the Muslim.
Accordingly, there should not remain any confusion regarding the jurisdictions of the Family Courts. Henceforth, it seems needless to mention that a Family Court can try suits under The Hindu Married Women’s Right to Separate Residence and Maintenance Act 1946, the law that has given a right to the Hindu wives to live in separate houses and to get the maintenance, but has not provided any forum to go to enforce the rights.
Another matter needs to be clarified that the Family Courts Ordinance does not extend to the hill districts of Rangamati, Bandarban and Khagrachhari. The fact is that initially the hill districts used to be governed by Hill Districts Regulation of 1900 and it was repealed in 1983 but as no new law has been introduced for administering the area, as per provisions of General Clauses Act, the repealed law is still in force and the Hill Districts Regulation is still continuing, resulting in exclusion of Family Courts there. This does not mean that tribal people cannot take recourse to a Family Court. The suits among aboriginal or adivasi or tribal people can be tried by a Family Court if they reside within the local limits, that is, territorial jurisdiction of the Family Court.
Special Criminal Laws and Criminal Courts (Criminal Action):
Laws are made with the intention to reduce crime against women. This view has been endorsed in the judgment of Justice Badrul Haque in the case of Amin vs. Bangladesh. The honourable judge observed, “A woman who has been raped undergoes two crisis, one the rape and the other the subsequent investigation and trial. A victim of a sex crime has to undergo certain tribulations. These begin with treatment by the police and continue through a male dominated criminal justice”. In Bangladesh 50% of all murders are of women by their partners, 68% never told anyone about being beaten? Many women do not report it. The lack of proper reporting is not only because of the inadequacy of government officials but also because women themselves are reluctant to report crimes against them for fear of repeated violence, honour or loss of face of their families and for the fear that they will be turned out of their matrimonial home. However, when a wife decides to seek a divorce, she often reports such violence.
A recent research by Dr. Nusrat Ameen stated that the official statistics do not give us a full picture of the incidence of violence against women. This vacuum can only be filled by further research on the issue.
The Cruelty to Women (Deterrent Punishment) Ordinance of 198? was replaced by the Repression against Women and Children (special enactment), Act xviii of 1995. This Act has provided death penalty for ten crimes against women and children (under sections 4, 5(b), 5(d), 6(1)-(4), 7, 10(1) and 12). The crimes affecting women and children include causing death by corrosive substance, causing permanent damage of the body by corrosive substance, for rape, for rape with murder, for rape with attempt to murder, for group rape, for group rape with murder, for dowry death and for trafficking of children.
The Repression of Women and Children (special enactment), Act xviii of 1995 has been amendedby the Act in 2003. The new Act made changes mainly with the intention to minimise the huge number of pending cases and to expedite disposal of cases without inordinate delay. A limit of 120 days was provided in the Act of 1995 this limit was extended up to 180 days for giving enough time for trial of cases under the Act of 2000.
Broad outlines of the sections of the amended Act of 2003 below will highlight the Criminal Procedure for crime against women: Nari O Shishu Domon Ain of 2003, Section -18: Investigation of an Offence:
1.Irrespective of any law in the Criminal Procedure Code investigation of any offence under this Act
a. when the accused person is caught red handed by the police or by any other person and has deposited him to the police, the investigation must be finished within 15 working days from the date when the accused was caught.
b. when the accused person is not caught red handed, his investigation will be completed within 60 working days from the First Information Report (FIR) or otherwise by the related officer or any other Officer with the power or from the date of the order given by the Tribunal.
2.If the investigation is not completed within the time fixed by sub-section (1), the Investigation Officer will complete the investigation by additional 30 days by submitting the cause of delay by writing, and give a reasoning for the cause to his Controlling Officer by writing or otherwise, the written report has to be submitted to the Tribunal which gave the order.
3.If the investigation is not completed within the time fixed by sub-section (2), the investigation officer will complete the investigation within 24 hours stating the reason for delay to the Controlling Officer or, the written report stating the reason for delay have to be submitted to the Tribunal which gave the order.
After the acknowledgment that the report was not completed under Sub-section (3), the Controlling Officer or the Tribunal which gave the order, can handover the investigation to another Investigating Officer and in this way when the investigation is transferred to the Investigation Officer-When the accused person is caught -red handed by the police or by any other person and has deposited him to the police the investigation must finish within 7 working days from the date when the accused was caught or in other cases he must complete the investigation within 30 working days.
5.If the investigation is not completed within the time fixed by sub-section (4), the investigation officer will state the reasons for delay to the Controlling Officer or, give a written statement stating the reason for delay which has to be submitted to the Tribunal which gave the order within 24 hours.
6.If the investigation is not completed within the time limit then after verifying the written report -of the Investigation Officer, the Controlling Officer or otherwise the Tribunal, which ordered the investigation, has to decide whether the Investigating Officer is responsible for not giving the report of investigation within the time limit, then it will be notified that the responsible person is an unqualified and had done misconduct and this un-qualification and misconduct will be written in his yearly confidential report and in a particular case he will be accused as per service rules.
7.If the Tribunal is satisfied after verifying the investigation report that the person who is regarded as accused is required to be taken as witness, the Tribunal can order the person to be a witness instead of accused. 8.After concluding the evidence of the witnesses, if the Tribunal finds that the Investigation Officer under this Act, in the investigation report is trying to save the accused person or without examining a valuable witness or falsely finding no proof to determine the crime the accused person is made witness instead of accused then the aforesaid Investigation Officer will be charged for his act or will be regarded as an unqualified person doing misconduct and will be charged for this un-qualification and misconduct by the Tribunal by giving order to the Controlling Officer of that Investigating Officer to take legal action against him. 9.The Tribunal can change the Investigation Officer and order the Controlling Officer to appoint another Investigation Officer when any petition is given to the Tribunal or on the basis of any information.
Nari O Shishu Domon Ain of 2003, Section -20. The procedures of the Trial:.All offences under this Act will be tried by the Tribunal of Nari O Shishu Nirjatan Domon Ain under section 25. When a case is started in the Tribunal it will continue continuously in every working day until the trial is completed. The Tribunal must finish the procedure of trial by 180 days from the date of submission to it. If the trial is not done by that time limit, then the Tribunal can bail the accused person and if the accused person is not given bail then the cause of not giving bail have to be written down by the Tribunal.
Women and Children Nirjatan Domon Tribunal:-
1.Under this Act for the trial of offences there will be a Tribunal in each district and if needed, the Government can make more than one Tribunals; these Tribunals shall be known as the Nari O Shishu Nirjatan Domon Tribunal.
2.There will be a judge in the Tribunal and the Government will appoint the above judge of the Tribunal from the District and Sessions judges of the Government.
3.The Government if required will appoint any District and Sessions Judge as additional Judge of the said Tribunals.
4.In this Act, District Judge and Sessions Judge will be named as Additional District Judge and Additional Sessions Judge.
Nari O Shishu Domon Ain of 2003, Section 28 Appeal: By taking order from the Tribunal, the accused party can appeal to the High Court Division within 60 days of the judgment or detention. During investigation of the case, if the Tribunal is of the opinion that any woman or child needs to be kept in safe custody, it may order that such woman or child be taken out of the prison and kept in safe custody home designated by the government or in consideration by the Tribunal be handed over to any organisation or person in this regard under section 31 of the Act of 2000. For privacy of the victims section 14 provides a restriction on the media from identifying the woman and child victims of violence. It provides a punishment of maximum two years and one lakh taka or both for non-compliance of the section. This provision is needed for the protection of the victim from the clutches of the violators and again if it is not publicised the case is sometimes not accounted for.
Different kinds of violence and the law
Offences against women have taken modern aggravated forms, which were more or less absent in the past, as for example acid throwing or murder for dowry. Crimes against women have risen after independence. The causes for the increase are similar to the increase of dowry; in many cases, dowry itself is the cause. Women in Bangladesh are facing not only aggravated forms of conventional crimes but also new types of crimes.
Dowry: The dowry system is not recognised in the religion or the law of the Muslim societies but has spread into it. Conversely, Islamic law provides dower to enhance the status of women. Why should Muslim women, who are supposed to be protected by dower, become victims of dowry? While recent scholars have admitted the fact that dowry has spread to the Muslim communities, they have largely ignored the position of Muslim women within this discourse.
Dowry deaths are a common phenomenon in South Asia. These deaths of women are usually caused by the same persons who are legally and socially enjoined to protect them, i.e. their husband or in-laws.
The Dowry Prohibition Act of 1980 prohibits the taking or giving of dowry. The Repression Against Women and Children Prevention Act of 2000 Defines Dowry as: Money, goods or other property given or promised directly or indirectly by the brides side to the groom or his father, mother or any other person from the bridegrooms side at the time of marriage as consideration or condition of the marriage and any such money, goods or property demanded from the bride or the bride’s side by the groom, his father or mother or any person from the groom’s side [Section 2(j)] .
The Repression of Women and Children Prevention Act of 2000 Section 11 States:
If any woman’s husband or husband’s father, mother, guardian, relation or any person acting for the husband, causes the death of that woman for dowry or attempts to cause death or injures such woman for dowry or attempts to cause such injury the husband or husband’s father, guardian, relation or any person shall:
a.For causing death be punishable by death penalty or for attempt to cause death by life imprisonment and in both cases shall be liable to pay additional fine:
b.For causing injury shall be punishable by rigorous life imprisonment or for attempt to cause injury be punishable by rigorous imprisonment up to the term of maximum fourteen years but not less that five years and In both cases be liable to additional fine.
Rape/Sexual Assault: Rape is probably one of the most common forms of violence against women in Bangladesh to date. Usually money and muscle are the reasons why the crime goes unpunished.
In most of the investigations conducted by Odhikar, the victim’s family was too poor and ignorant of the law to seek legal recourse. In one case, the victim’s father, a rickshaw puller, told Odhikar that he did not know the lawyer’s name, but knew what he looked like. In another case, the lawyer has been demanding payments for every court appearance while asking the court for more time. Rape in Bangladesh is a punishable offence. As Section 376 of the Penal Code states: “Whoever commits rape shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, unless the woman raped is own wife is not under twelve years of age in which case he shall be punished with imprisonment for life or with imprisonment of either descriptions for a term which may extend to ten years, and shall also be liable to fine…” Rape is also committed by law enforcement officials. All these cases are not reported due to intimidation by the perpetrators and also due to the fear of social stigma. Of all the cases of rape in police custody brought to light so far, very few of the offenders have been held accountable. One reason for this could be the fact that members of the police carry out investigations regarding crimes allegedly committed by their own colleagues. Thirteen women were raped by members of the law enforcement agencies in the year 2000, the youngest being a girl of six who was raped by a police constable in Panchagar.
Women and Children Repression Prevention Act of 2000 deal with the offence of rape and provides severe penalties. Section 9 deals with punishment for rape, gang rape as well as injury or death caused as a result of rape. For the offence of rape, the perpetrator will be sentenced to rigorous life imprisonment with additional fine. For death caused by rape or incidental to rape, the accused may be sentenced to death or rigorous imprisonment and will be required to pay fine up to the limit of taka one lakh. In the case of death or injury caused as a consequence of gang rape, each of the perpetrators will be sentenced to death or rigorous imprisonment with the requirement of additional fine up to the limit of taka one lakh. In the case of attempt to cause injury or death after rape, the accused will be punished with the sentence of life imprisonment with fine. For attempt to rape, the penalty fixed by the Act is rigorous imprisonment or seven to ten years with additional fine.
On June 16th, 2003, an amendment bill of the Women and Children Repression Prevention Act, 2000 was placed in Parliament to clarify definitions of certain offences and reducing punishment to stop the abuse of law. The bill was passed by the Parliament on 13th July, 2003. Under the new Act, the definition of a child has been raised from 14 years to 16 years. Moreover, where a woman commits suicide for fear of losing her chastity due to the wilful act of a person, then that person will be accused as a provocateur and will be punished for the offence with imprisonment of five to ten years.
Most remarkable amendment is regarding the destiny of a child born out of rape. Under the amendment, a child born out of rape will be kept under the care of the mother and will be known after his/her mother or father or both. Beside the State will be responsible for the child until s/he attains the age of 21 years and, in case of a girl, until she gets married. The State will realise the money for bringing up the child from the rapist. The Act provided that the opinion of the rape victim has to be taken if the need for camera trial arises or if the victim has to be taken under safe custody.
Section 13 States: Irrespective of anything contained in any other act, if any child is born as consequence of rape-
a. The rapist will be responsible for the maintenance of the child
b. After the birth of the child, the tribunal shall determine who will be the custodian of the child and the amount to be paid by the rapist to such custodian for the purpose of maintenance of the child.
c. Unless such child is disabled such sum shall be payable in case of a son until the age of 21 years and in the case of a daughter until her marriage and in case of a disabled child until such child becomes capable of maintaining himself or herself.
Section 376 of the Penal Code mandates two years imprisonment, or fine, or both, for the rape of a woman by her husband. Section 342, however, requires that a woman undergo a medical examination immediately after rape, which in practice minimizes the possibility of a conviction being made.
The Women and Children Repression Prevention Act of 2003 (Nari O Shishu Nirjatan Domon Ain of 2003) The Act uses and defines the terms sexual abuse and sexual harassment for the first time. Section 10 states that if any male, in order to satisfy his carnal desires, touches the sexual or any other organs of any woman or child with any organ of his body or with any other object, his action will amount to sexual abuse or abuses the modesty of any woman or makes any indecent gesture, his act shall be deemed to be sexual harassment and for this such male will be punished by rigorous imprisonment for a term which may extend up to ten years but shall not be less than three years and shall additionally also be liable to fine.
Confusion may be created in cases where the same offence is dealt with in several existing laws. Acid crimes come under the Acid Crimes Prevention Act 2002, but the provisions of the Penal Code 1860 as well as the Woman and Child Repression Prevention Act of 2000 regarding the same offence has not been omitted and this may create confusion as to which Court or Tribunal or which law the case should be instituted under. Even though as special law these take priority, and the laws themselves state this, the confusion persists and ought to have been clarified. The same problem may arise in the case of rape which is covered by both the Code and the Act of 2000.
Acid Violence and the Acid Crimes Prevention Tribunal: In Bangladesh acid violence is a dreadful and vindictive 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 violence is a terror which must not be adhered in any civilised society. Before independence acid violence was almost unknown in Bangladesh. Section 4 of the Acid Crime Act, 2002 prescribes death penalty 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. import, production, storage, sale or usage of acid without a license is a punishable offence. But the mechanisms prevalent to regulate importation, preparation and sale of the acid used in these attacks are inadequate. However, the Acid control Act, 2002, provides for the formation of a national council to control the selling use, production, import, transportation and storing of acid.
The Acid Crimes Prevention Act 2002 contains provisions regarding trial procedures, investigation of offences and negligence of investigating officers, medical examination and so forth. The Acid Crimes Prevention Act 2002 sets up an Acid Crimes Prevention Tribunal and all offences under the Act are to be tried by this Tribunal. Appeals against any order, judgment or punishment imposed by the Tribunal must be made to the High Court within 60 days. Section 28 also contains the provision for safe custody for any person during the continuance of the trial and specifies that such custody shall be outside the prison and by order of the Tribunal.
Multi-Sectoral Programme on Violence Against Women:
There is a multi-sectoral project on violence against women which includes five ministries including the Women and Children Affairs (MOWCA) which works with the objective to eradicate or at best reduce crime against women. The major activities include the establishment of six One Stop Crisis Centers (OCC) for victims of violence that will provide medical, legal and social services; upgrading of forensic facilities with DNA profiling; information campaigns; training plans for police, lawyers, judiciary and medical personnel.
The Objectives of this programme are: improved public services such as health, police assistance, criminal justice and social services (counselling, rehabilitation) for the women victims of violence, increased public awareness on all forms of VAW, etc.
Activity OCC-BNWLA joint legal support program: This is a flow description how BNWLA works at the activity level under the OCC program. The activities of the BNWLA Lawyers can be categorised as follows: Once a patient get admitted under the OCC centre the lawyers of BNWLA take the history of the survivors and the incident, which are being registered instantly. Consulting with the duty doctor about the severity of the incident and injury the respective lawyers talk to the police officer in duty. On the basis of the information collected from the responsible officials the Lawyers decide to file a GD or FIR with the consent of the survivors. This the lawyers went for a legal counselling to let the survivors understand that she may get legal support.
Ensuring legal support: After filing the case the lawyer collect a copy of the FIR and Vokalatnama having sign from the survivors and in the office they have to prepare the order sheet and enter into the register. If the judgment comes against the Survivors, then according to the process the lawyers appeal against the judgment to Higher Court.
Violence agonist women is increasing and indicates generally that the amount of different crimes against women is so high that the time has come to introduce measures to eradicate them. Clearly, the need of the hour is to protect women from violence through the law. The whole issue of violence against women did not project the flaws in the criminal justice system or what else we require, to make the system effective giving proper justice to women as justice delayed is justice denied.
The Convention on Elimination of All forms of Discrimination Against Women (CEDAW): The strongest instruments of change in society are the laws that it is governed by. There are existing laws in the country, which guarantee many rights for women. But many of them are archaic and need immediate reform or amendment. Discriminatory laws need to be abolished and replaced with more progressive ones. New laws have to be formulated to reflect Bangladesh’s concurrence with international laws such as the Universal Declaration of Rights and CEDAW. While religion and culture have to be respected, violations of basic human rights in the name of religion or tradition must be categorically condemned and shunned by the laws of the land. Most importantly laws that govern both public and personal spheres must be compatible to the Constitutional laws and be equally applicable to all citizens irrespective of sex, religion or the community they belong to.
The Convention on Elimination of All forms of Discrimination Against Women (CEDAW) was adopted on December 19, 1979 and came into force as a treaty on September 3, 1981 following its ratification by twenty countries. Ratification obligates governments to pursue a policy of eliminating discrimination against women and to report on progress in that effort to the UN Committee on the Elimination of Discrimination. Article 1 of the Convention defines discrimination as:
‘Any distinction, exclusion or restriction made on the basis of sex, which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.’
Under Article 2, states are required to domestically enforce CEDAW, adopt appropriate legislation and other measures to prohibit all discrimination against women, modify or abolish existing laws, regulations, customs and practices which constitute such discrimination.
Other articles of the Convention deal with many of the pressing issues that concern women such as women’s right to determine their own and their children’s nationality and removal of discrimination in education, employment, healthcare, social and economic benefits.
Part IV of CEDAW calls for equality before the law and equality within marriage and family law. Articles under this component for example guarantees the same legal capacity as men to contract, administer property, appear in courts or before tribunals; freedom of movement the right to choose where they will live; equal rights and responsibilities of women with men in marriage; the right to choose when they will have children, to choose their family name or occupation; and equal rights and responsibilities regarding ownership, management and disposition of property.
The good news is that more than half of the world community has ratified CEDAW. The bad news is that a large number of countries– 168 states–have submitted reservations. Seventeen of these countries have a majority Muslim population and includes Bangladesh.
Bangladesh continues to maintain reservations Articles 2 and 13(a). In September 2000, Bangladesh became the first country to ratify the Optional Protocol to CEDAW which ensures the implementation of the tools to eradicate discrimination. Maintaining such reservation to the very pledge to eradicate such discrimination is therefore contradictory and makes the sincerity of the state to remove gender discrimination, questionable.
Chapter seven
7. Women’s status on social context:
The ambiguity surrounding the question of violence against women in Bangladeshi society on the one hand, violence is held in repugnance and may provoke outrage. For example, a man who sprayed acid on and killed his new wife, on grounds of her inadequate dowry, was hacked to death by villagers in Northern Bangladesh . On the other hand, violence against women is accepted, tolerated and .in certain prescribed forms and given contexts. it is legitimated. Gender inequality, leading to gender violence, is deeply embedded in the Bangladeshi social structure; all Bangladeshi social institutions permit, even encourage the demonstration of unequal power relations between the sexes . The legitimating of male violence, especially battering, allows it to be seen (by women as well as men), as a deserved response to female transgression of male demands or controls. Thus, women feel shame and guilt – as well as anger in some cases – which militates against the reporting of battering. Murder, acid throwing and abduction may suffer less from stigma in reporting. Other factors contributing to the under-reporting of violence against women include: the lack of awareness among women of their legal rights; the perception that their cases will be treated with derision and/or ignored by the police; and the fear that making charges will compound problems with their husband and his kin. Rape probably evokes the greatest feelings of shame among women, and thus is most likely to be under-reported. Nevertheless, Jahan suggests that the rise in reported crime against women in Bangladesh may reflect a rise in the reporting of rape, but also an increase in the incidence of assaults on women and in the proportion of female victims of violent crimes. She notes that in 1980, 12.4 percent of the victims of all reported violent crime were female, whereas by 1984, the proportion had risen to 32.7 percent. A rise in the availability of weapons such as guns and acid, and also the increased portrayal of violence in the mass media in imported films, as factors which may be associated with the rise in violent crimes, including those against women.
Avoidance of women’s rights is the continuous practice. It is a social sickness. Our social system is not uncourageous, society discouraged women’s to establish their rights. The state enacts general and special legislations and has enforcement mechanism to protect women’s rights but in different ways these are ignoring, and the protective measures fails its goal. We have to come out from this concept.
Chapter eight
8. Recommendations:
There is a good amount of legislations in our country concerning women. crisis of laws and drawbacks also available in law for the women. Our social thinking and concept also discourageous and negative. Some cases women are given more rights than male.
Legal status of women indicate to what extent women enjoy equality in the socio-economic and political spheres of the country. Laws protecting women’s rights provide the essential framework for formal equality to be transformed into reality. They also provide legal protection to women’s rights by critically intervening in health, education and employment sectors to.
The constitution of the People’s Republic of Bangladesh is the ultimate source of the fundamental rights enjoyed by men and women. However, the day to day life of the people is governed by two sets of laws: civil and personal. The civil laws cover the rights of women under the constitution; the personal laws cover the family life.
An analysis of the relevant text of the constitution shows that the guarantees of equal rights between men and women do not extend to the private sector (i.e., the inheritance of parental property and matters concerning the family). In ratifying the UNCEDAW, the government had reservation regarding the provisions related to equal rights within the family. This is a sharp departure from the commitment made by the government to establish gender equality. The civil laws are supposed to maintain non-discrimination between men and women. But some of these laws are openly discriminatory against women. The Citizenship Act of 1951 is an example of such discrimination. This act encroaches upon a woman’s right to enjoy the same legal status as that of a man.
The criminal laws are not based on religious laws. Still these laws fail to maintain non-discrimination between men and women in some cases. Under the existing criminal laws, rape is defined as an act of sexual violence, but proving charges of rape has been made very difficult for a woman as the rules of evidence require that the victim has to medically prove the act as well as her lack of consent. The victim and the accused have been put on the same footing as the law requires that the victim’s testimony must be corroborated.
The constitution guarantees non-discrimination and full application of the existing labor laws in the industrial sector. Women workers hardly get any protection from these laws. Widespread disregard of the existing labour legislation is a rule rather than an exception. Existing practices in industrial workplaces enable the management to bypass its statutory obligations. Preferential recruitment of unmarried women and extending the period of probation of workers beyond the statutory period deprives many female workers of their legitimate/legal rights.
Despite a rapid increase in the number of women workers in the informal sector, their rights are not protected by law.
A wide gap exists between the rights and status of women guaranteed by the Constitution and those imposed on her by social norms and practices reflected in personal laws. The family laws are based on personal laws of the respective religious community into which a person is born. Thus, civil laws and personal laws co-exist perpetuating male-female disparities with regard to marriage, divorce, guardianship, custody of children and inheritance.
Under the Muslim law, marriage is a contract between two individuals and to make it valid the consent of both partners in the presence of two witnesses is essential. With regard to child marriage, the law states that should a girl be married off by her parents during infancy, the marriage must be endorsed or dissolved by the girl on her attaining puberty. In a bid to restraint child marriage, the Child Marriage Restraint Act 1929 (amended in 1984) raised the minimum age of marriage for both women and men. The 1984 amendment fixed the minimum age at 18 for women and 21 years for men. But widespread contravention’s of this law proves that its enforcement is very weak, and there is hardly any prosecution for any breach of this law. Although, the law provides for punishment in cases of contravention, the act has no provision to make such marriages invalid. Limited polygamy is permitted in Islam where by a man is allowed to marry upto four wives at a time on condition that: (a) the husband has the means to maintain the wives according to their status; and (b) all the wives be given equal share of his love and affection and be treated by him with complete equality. But in the absence of any mechanism to enforce these directives, the senior wives generally become victims of the husband’s cruelty and neglect.
In an attempt to provide protection to these wives, the Family Ordinance 1961 forbids a man to contract a marriage during the subsistence of an existing marriage without the prior permission in writing of the Arbitration Council and the wife/wives. The punishment consists in the immediate payment of the entire dower or mahr (a fixed sum of money agreed to be paid by the husband to the wife). Prompt dower is immediately payable on demand to the wife and deferred dower is payable on dissolution of marriage. The punishment also includes imprisonment upto one year or a fine of Tk 5000.00 or both. However, the ordinance has no provision to make the subsequent marriage illegal. Under the Muslim law, divorce can be attained in any of the following ways: (a) mutual consent of the husband and the wife without court intervention; (b) a judicial decree on request of the wife on one or more grounds specified in the Dissolution of Muslim Marriage Act 1939 and the Muslim Family Law’s Ordinance 1961; and (c) divorce by the husband at will without assigning any reason.
However, the right of talak (divorce), where a marriage is irrevocably and immediately dissolved by simply pronouncing the intention in front of witnesses, has been modified by the Muslim Family Laws Ordinance, 1961. Under the procedure to be followed, talak does not become effective immediately. A period of 90 days would have to intervene between the date of serving the notice to the Union Parishad chairman (the lowest tier of the local government system in Bangladesh) and the date when the divorce becomes effective.
The right to divorce at will is not enjoyed by a Muslim wife unless her husband confers this right on her in the marriage deed (kabin) registered by the Muslim Marriage Registrar. However, she can obtain a divorce through a court decree, which is an uncertain, lengthy and costly process involving complicated procedure. Despite the legal reforms, gender discrimination still persists in the sphere of marriage and divorce.
Under the Muslim law, the wife inherits a fixed share of one-eighth of the deceased husband’s estate if he leaves behind agnatic descendants. If he does not leave behind any agnatic descendants, then the wife inherits a quarter of the husband’s estate.
A daughter, who is an only child, inherits half the estate of her late father or mother. If there is more than one daughter and no son, then the daughters jointly inherit two-thirds of the estate. However, if there is a son (or sons), then the daughter’s or each of the daughters share will be equal to half of the son’s or half of each of the son’s share. In all cases within the family men inherits more than the women do. Thus, in the area of inheritance also, personal laws continue to remain grossly gender discriminatory.
Under the Muslim law, the mother is never entitled to guardianship of her children. It lies with the father and after him, with his father and brothers. However, the mother is entitled to the care and custody of her sons until they are seven years old and of her daughters till puberty.
The laws, as modified by the Guardian and Wards Act of 1890, states that the welfare of the children is more important than the rights of the parents. A mother may also have her children beyond the specified ages if the court is satisfied that they would not be well looked after by the father. The mother may also apply to the court for guardianship of the children. But it involves expensive and time-consuming litigation over a long period. The father may dispose of the child’s property under certain circumstances, but the mother cannot do so without the prior permission of the court even if she is the appointed guardian of the child. A Muslim mother is entitled to maintenance from her son if he is solvent financially (The Muslim Family Laws Ordinance, 1961).
The existing law requires that every Muslim marriage solemnised must be registered. There has also been an enactment titled ‘Marriage and Divorce Registration Act, 1974. But even a casual observation in the rural areas reveals that a vast majority of the marriages are not registered.
Again, despite the existence of a law to restrain child marriage, the girls are being married off well below the minimum age of 18 years. However, it is difficult to enforce this law due to the absence of the birth registration practice in Bangladesh, particularly in the rural areas. Although, religion has made provisions for dower (an amount payable to the wife), the payment is rarely made. The society has made provisions for dowry (money, jewelry, and luxury items presented by the bride’s guardians at marriage), and it has become a tradition. Non-payment of dowry, more often than not, brings disaster to the lives of many women.
In response to the demands voiced by women’s organisations to amend existing laws or/and enacting new ones to improve women’s legal status, the government from time to time amended existing laws and enacted new ones. These include: (1) The Muslim Personal Law (Shariah) Application Act 1937; (2) The Dissolution of Muslim Marriages Act 1939; (3) The Muslim Family Laws Ordinance 1961 (Amended in 1986); (4) The Muslim Family Laws Rules 1961; (5) The Muslim Marriages and Divorces Registration Act 1974; (6) The Muslim Marriages and Divorces Registration Rules 1975; (7) The Dissolution of Muslim Marriages Act 1939; (8) The Family Courts Ordinance 1985; (9) The Family Courts Rules 1985; (10) The Bangladesh Penal Code 1860; (11) The Evidence Act 1872; (12) The Civil Procedure Code 1903; (13) The Criminal Law Amendment Act 1938; (14) The Suppression of Immoral Act 1933; (15) The Dowry Prohibition Act 1980; (16) The Cruelty to Women (Deterrent Punishment) Act 1983; (17) The Woman and Child Oppression (Special Provision) Act 1995; and (18) Maternity Benefits Act 1939.
While the civil laws are applicable to the Hindu community, marriage, divorce, inheritance and guardianship, which relate to the private sphere, are governed by the Hindu Personal Laws. These laws have remained unchanged since 1947 (the year of partition of the subcontinent).
In the Hindu religion, marriage is a sacrament, not a contract. The foremost duty of a Hindu father is to marry her daughters off. The girl’s consent in marriage is not required; nor is divorce possible; and unrestricted polygamy is allowed. The father is always the preferred guardian of his children, while the mother can be the guardian, her rights are inferior to those of the father. Not all daughters of a man are equally eligible to inherit. In order of priority, unmarried daughters and married daughters with sons can inherit. Married daughters beyond child bearing age and widows without sons cannot inherit. The Hindu laws permit adoption, but only of boys.
The laws for the Christian communities in many cases gender biased and controversial to the constitution, and human rights. Right to divorce, right to alimony, Rights to maintenance are largely gender discriminatory. It should be overcome by new legislations and make thes effective. There is no personal law for the tribal, Buddhist and some other religious communities people in our country. There is a wide demand in this purpose.
To protect women’s rights, to make effective laws relating to women in our country, authority of the state should find out the drawbacks of the legislations and amend them if necessary or new legislations shall enact for the specific issues. Being the member of the society we have to change our traditional negative concept and practice and encourage the women to protect their rights to make successful the laws of women.
Chapter nine
9. Conclusion:
The legal status of women is a isolated in law and practice in our country. Some times women are given more rights than the male. Violence agonist women is increasing and indicates generally that the amount of different crimes against women is so high that the time has come to introduce measures to eradicate them. Clearly, the need of the hour is to protect women from violence through the law. The whole issue of violence against women did not project the flaws in the criminal justice system or what else we require, to make the system effective giving proper justice to women as justice delayed is justice denied.
Violence against women is a phenomenon much older than human rights concept. It is one of the major manifestations of gender discrimination, an essential outcome of the existing patriarchal social system. Mains-treaming of violence against women has engendered the international human rights framework. A much-needed clarity in understanding of human rights has been established. This has enhanced chances for protection of women’s human rights the world over.
The underlying marginalisation of women in political decision-making and infringement of their right to freedom from violence are consequences of the general acceptance of inequality and social tolerance of violence against women. Bangladesh is committed to various international conventions such as the Declaration on Violence (Vienna 1993) and CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women)38. These commitments are reflected in the National Policy for the Advancement of Women (1997). However, in dealing with the progressively alarming situation of violence against women, each successive government seems to be concerned with passing of laws and tightening the legal provisions while little attention is paid to the fact that laws are not enforced, procedures remain inappropriate and the perpetrators of violence often enjoy political impunity. Women’s movement has persistently highlighted these issues and has continued to demand holistic measures for administrative reform and action for elimination of unequal access to political power, discrimination and violence against women. Apparently, we have take effective measurement to protect the women’s rights and interest in whole for our sustainable development.
