Assignment on Legal Status of Women in Domestic Law

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.

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)     T 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.

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.

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?

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.[15] 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.

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.

 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.[21] 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,[24] 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.

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.

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.

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.

ConstitutionalProvisions

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.”[32] 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.”[34] And discrimination is prohibited on grounds of religion, race, caste, sex and place of birth.[35] Women’s equal rights with men are recognised “in all spheres of the state and of public life.”[36] 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,”[38] 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.

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) .

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.

      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 .

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?”[86] 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[87] 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.

Dowry

Marriage negotiations for Bangladeshi Muslims involve variousfinancial transactions including primarily thereligiously sanctioned dower (mahr). Added to mahr, the practice of dowry or joutuk, demands made by thehusband’s side to the bride’s side,have in the last few decades become a widespreadpractice supported neither by state law nor personal laws, butapparently designed to strengthen traditionalpatriarchal 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  .

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.

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.