Legal status of women, specifically the Hindu women indicates to what extent in the country equality is enjoyed in the socio-economic and political spheres by the people.There exist laws protecting women’s rights which provide the essential framework for formal equality to be transformed into reality. They not only tend to give wordly status to women but also provide legal protection to women’s rights by critically intervening in health, education and employment sectors too.Dayabhaga is the School that governs the Hindus in Bangladesh. Though inIndia several changes have been made in both the Dayabhaga school and the Mitakkhara school but in our country it is just a dream which have never comes to be true despite of its crying need. It must be remembered that like Islam, Hinduism in addition to involving a belief in certain dogmas, imposes a particular concept of the word to its followers.There is thus the danger of over-simplification, when one concentrates on the rights arising out of certain institutions devotes from the totality. We should also always be conscious of the fact that institutions like marriage or adoption in Hindu law do not exist so much for the comfort of man as for the furtherance of the divine purpose to which both man and woman are subservient.The Hindu woman’s subservience, however, was not only directly to God but indirectly to her father and husband and salvation was to be earned by self-abnegation and self denial. But this did not mean that the Hindu women have no status at all, ‘and modern apologists’ put forward arguments that have been well summarized in this statement.
In Bangladesh, the Hindu Women has been Beard Two types of status, One is they are women another is they are Hindu women. A series of laws enduring women’s rights have proven largely in effecting in promoting their position, but as a Hindu women their deprive too much from as women. They are traveling with these two types of status. The prime reason for this are: the shortcoming and ineffectiveness of laws, Hindu women inability to access legal proceedings, the traditional and culture negative views of Hindu women’s rights, the absents of an accountable and transparent government, the expensive and time consuming judicial process, the lack of an efficient judiciary, and other socio-economic reason. The core theme of the thesis concentrates on the shortcoming and in effectiveness of laws, although viewing them within the context of those other factors.
Aims and Objectives of the Study
In regard with their double trouble status, I want to show, social , Political and economical deplorable condition of Hindu women and recant world wisdom effect to improve their position and fact in society through motivation, legislation and awareness which have prompted me to under take for investigating this socio-legal humane problem of Hindu women in Bangladesh.
Abuse of women’s rights and gender discrimination, religious discrimination is available in our country. The purpose of this research is to finding out the drawbacks, of law of women and recommendations for fill up the drawbacks, to pass new legislation in some issues endorsement the rights of the deprived the Hindu communities of the country in law, to create a positive social revolution for the Hindu women is stand of the objectives of the thesis.
The study aims to promote protection of Hindu women’s rights and try to remove or reduce their troubling on double status by recommending remedies to flaws in prevailing laws in Bangladesh.
Law may be termed as a behavioral science as it regulates human behavior. Changes in society demand that law should move with the time if fit has to remain alive and active. The Objectives of legal research are to find out loopholes in the existing laws relating to Hindu women and determine their status and to suggest the taking of suitable measures to eliminate them.
The objectives of the proposed study are:
a) To abolish gender discrimination from the society ,
b) To eliminate religious discrimination,
c) To protect Hindu women’s rights in legal and social regime.
d) To find out the drawbacks of law,the deprivation of some communities and making recommendation to prevent those.
e) To determine Hindu women’s legal status in domestic law.
e) To know the relating international law in view of women rights in Bangladesh.
f) To know the status of Hindu women in their personal laws.
g) To promote women’s equal status and rights in the domestic laws and reproductive right and political right, among other.
h) To protect unequal treatment of women in national and international women right.
Since the work belongs to the field of law, the primary sources of the research are (1) Different types of Hindu law existing in Bangladesh (2)The Constitutions of Bangladesh, charter of the United Nations and different convention (3) Acts and statutes relating to Hindu women in Bangladesh, and (4) Internationals conventions and Instruments relating women and human rights.Case laws, published and unpublished articles, books of renowned Scholars and jurist are important sources for this research. Government documents relating to the subject
As a primary or secondary source have been used. In addition, law reports and law journals were major sources of materials for the thesis.Law Reports, Law Journals and other published works in this field were available in the libraries of different bar association and universities, and of the government and nongovernmental institution (NGO).Research and Documentation cells of different human rights Organization as well as international agencies e.g.: UNICEF, UNHCR, United nation information centre (UNIC) World bank etc. Stationed in Dhaka and concerned ministries were also used as sources of the research. The same work was also done within the country.
Method of research
Method of research may be understood as the method or technique that is used for conducting a specific research7. It does constitute a part of the many dimensions of the research methodology.
In conducting, the study several methods of legal research e.g.: analytical, historical, comparative and critical were used. Books, published and unpublished articles, officials documents, paper clipping, case laws and etc, were helpful in this regard. In order to get a first hand knowledge on the issue, the researcher interviewed the concerned academicians, government officials, human rights activists, judges, lawyers and members of law enforcing agencies. In interpreting case laws, both analytical and critical approach was used and rational arguments have been made.
Limitation of the Study
Every research study has some limitations in true sense. So this research monograph is not the exception of this limitation and limitations reduced the scope of the study in some changes. The main limitation of the study is the limited writer of the concern subject. Limitation of the time binding’s work. The time is not enough for the study. To create any good research on any topics and subject, that time prerequisites sufficient instrument and enhance more books in university library but our library is not sufficient for making this research on Double trouble status of Hindu women in Bangladesh. There is no study that done on this topic before, so there was no perfect guideline. That is another important limitation of this study.
Scope of the study
The issue of legal status of women is multi-dimensional. It has several aspects e.g criminology, economical ethical, geographical, health human rights, legal, moral sociological etc. to research.
The focus of the study is mainly on legal aspect. So far comparative study on the existing laws relating to Hindu women in has been done.
The relevant case laws of both the Bangladesh and Indian courts have been used. All the relevant laws existing in Bangladesh have been used. For the study, up-to-date laws and laws framed (for three countries) till 2010 were used. Besides, the study made in investigation into the present situation of Hindu women status in law in Bangladesh.
Scope of the study
The issue of legal status of women is multi-dimensional. It has several aspects e.g criminology, economical ethical, geographical, health human rights, legal, moral sociological etc. to research.
The focus of the study is mainly on legal aspect. So far comparative study on the existing laws relating to Hindu women in has been done.
The relevant case laws of both the Bangladesh and Indian courts have been used. All the relevant laws existing in Bangladesh have been used. For the study, up-to-date laws and laws framed (for three countries) till 2010 were used. Besides, the study made in investigation into the present situation of Hindu women status in law in Bangladesh.
Justification of the study
The extent of legal status of Hindu women and their troubling on the double status has reached alarming proportions in Bangladesh. Though, mentionable laws against determining Hindu women’s legal status exist, their implementation remains week. There is a serious lack of enforcement and Determination.
In this regard, for our sustainable development, we have to make our Hindu communities strong hand. Delimitation of Hindu women rights, established, protection and enforcement of women’s rights is very necessary. This thesis tries to focus it. In this context, the proposed topic of the study is very timely, and the work of the study is worth mentioning and suitable for a Ph.D. degree.
The proposed study is attempt to examine the developed and effectiveness of laws relating to Hindu women status and determining their position in Bangladesh.
Its utilities are as follows
a) By this research the legal status of Hindu women and their troubling will be investigated in a proper perspective,
b) It will study and examine the existing laws relating to women and the Hindu communities which will be a real contribution to the store-house of legal knowledge,
c) It will help the researches, academicians, human rights activists and law makers to have an access to laws relating to women of the selected countries,
d) The study will hopefully succeed in surveying the troubling on Hindu women and related laws,
e) The study is a initiative to create social positive thinking and practices and to make effective the existing laws, and promote to create relating laws on the Hindu communities.
f) The study can remind amendment and enactment of necessary laws,
g) The work itself is believed to be of immense academic value for students, teachers, and researches concern.
Before British Rule
The study of any developed legal system requires a critical and analytical examination of it’s fundamental elements and conceptions as well as the practical and concrete details which make the contents or body of that law.The knowledge from which Hindu law is to be derived are the indices of dharma that have been stated by Hindu jurisprudentes. The veda ,the sriti,the approved usage and what is agreeable to good conscience are according to Manu ,the highest authority on this law ‘ the quadruple direct evidence of Dharma.Considered chronologically and having regard to the stage of it’s legal literature’ hindu law falls under three epochs,the pre-sutra period, the smriti and sutra period, the post-smriti period. There are three sources of dharma sruti(Vedas), sriti(memory), and good customs. Vedas constitute the fundamental sources of hindu law.The vedic texts , considered to be revealed down from generation to generation,are of primary importance. Smriti or memory is the second source of dharm and includes amongst others three codes: the code of manu, complied in between 2000B.C.-200A.D.,the code of Yjnavalkaya,complied in about 1st Century A.D., the code of naroda complied in 5th -6th centuryA.D. Customs are supposed to to be lost or forgotten sruti.
Good customs refer to the practice of the people who were well versed in the vedas and practiced the principle of dharma in their lives. Both vedic and smriti were later written down. . During the period of smritis women were bracketed with the sudras and were denied the right to study the Vedas to utter Vedic mantras and to perform Vedic rites. Marriage or domestic life became compulsory for women and unquestioning devotion to husband their only duty. Since women and property are bracketed together in several references in the epics, Smritis and Puranas, women came to be regarded as a sort of property. She could be given away or loaned as any item of property. This was like the attitude of a typical patriarchal society based on private property. Because of this the Brahmanical law did not allow any proprietary rights to women; the provision for stridhana is of a very limited character and does not extend beyond the wife’s rights to jewels, ornaments and presents made to her.
During this period women were treated nor as human neither they enjoyed any right of their own.They only could do whatever the then existing patriachial society allows them to do. They were seemed to be the instrument by means of which the father of a girl attain sacred honour after giving her into marriage and after marriage in the husband’s house she was treated as the ‘dasi’ of her husband for his eternal sancsity.
During Briish rule
The term law in Westernized societies holds a much greater value than the case in the case of the colonial Hindu tradition. It was not until the 1770s when the British Empire came to colonize India that the concept of law even came into practice. Hindu law during the British ruling turned into a mixture of hindu and british concept of law most commonly referred as the Anglo Hindu Law(1772–1864) is characterized by three main features: 1.) the collection and translation of important Dharmaśāstra texts by British administrator-scholars (especially Jones, Henry Thomas Colebrooke, Sutherland, and Borrodaile) in order to “apply” the rules of such texts to Hindus which further expanded the political rule of the British, 2.) the use of court pandits in British courts to aid British judges in the interpretation of classical Hindu law, and 3.)the proliferation of case law that resulted eventually in the “redundancy” of court pandits. From the very beginning of their territorial control, the British planned on governing India by codifying and re-instituting the ruling practices that had been developed by previous institutions of rule. With that said, knowledge of history and practice of India. During this period the courts established a number of important case laws which had a great influence on shaping the modern hindu law as well as conferring some rights of women. Justice Mahmud observes “It was the duty of a wife to live with her husband in conjugal cohabitation and it was the duty of the husband to maintain and support her”. These rights are not based on moral precepts but on texts which impose upon the husband the duty of maintaining his wife and dismiss other obligations. Enforcement of conjugal right by Judicial authority did not fall beyond the scope of the king’s functions, and therefore not beyond the jurisdiction of the Civil courts. The jural relation created by marriage involves the continuing obligation of conjugal cohabitation upon the husband and wife. An unlawful infringement of the obligation amounted to a continuing wrong in breach of the obligation.Thus eliminating to some extent hard hand of social discrimination and giving the women some rights to protect themselves from the injustice being done by the husbands.
The Madras High Court discussed the origin and binding force of customary law: chastity was a condition precedent to the taking not only of her husband’s property but it was a condition precedent to the taking of the heritage by all female heirs. it was held that the unchastity of the mother before the death of a her son precluded the mother from taking the inheritance.
Women`s reforms in British India were the outcome of the commendable role played by various reformers who took up the cause of women`s oppression with passion. Various outdated and harmful practices such as child marriage, Sati, female infanticide, polygamy, lack of women`s education and many more such evils were rampant in society and required an urgent redresses.
Post British rule
With the formal independence of India from Great Britain on August 14, 1947, India acquired a new constitution as well as a complex legal system. While a Western influence is apparent in this system, it is not an exact replication. The Indian legal system has characteristics of common law, but is codified and thus is actually more similar to civil law in nature. The modern Hindu legal system is applied to strictly personal law, including issues of marriage, inheritance and adoption, whereas India’s secular legal system is applied to issues of criminal law and civil law. A series of four major pieces of personal law legislation were passed in 1955-56 and these laws form the first point of reference for modern Hindu law: Hindu Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act (1956), and Hindu Adoptions and Maintenance Act (1956). The Constitution of India guarantees to all Indian women equality (Article 14), no discrimination by the State (Article 15(1)), equality of opportunity (Article 16), equal pay for equal work (Article 39(d)). In addition, it allows special provisions to be made by the State in favor of women and children (Article 15(3)), renounces practices derogatory to the dignity of women (Article 51(A) (e)), and also allows for provisions to be made by the State for securing just and humane conditions of work and for maternity relief. (Article 42). One of the first national level issues that brought the women’s groups together was the Mathura rape case. The acquittal of policemen accused of raping a young girl Mathura in a police station, led to a wide-scale protests in 1979–1980. The protests were widely covered in the national media, and forced the Government to amend the Evidence Act, the Criminal Procedure Code and the Indian Penal Code and introduce the category of custodial rape. In 2010 March 9, one day after International Women’s day, Rajyashabha passed Women’s Reservation Bill, ensuring 33% reservation to women in Parliament and state legislative bodies. In 1961, the Government of India passed the Dowry Prohibition Act, making the dowry demands in wedding arrangements illegal. However, many cases of dowry-related domestic violence, suicides and murders have been reported. In the 1980s, numerous such cases were reported.
After the independence Indian government have shown enough willingness to enact required laws for making the Hindu personal law time worthy. Though still there are many concerns are left which should be reformed but the present tendency casts a light of hope for a developed condition for women rights.
Status of women in Bangladesh
The role of women is often disputed, and positions range from equal status with men to restrictive. They are varied in authority, authenticity, content and theme, with the most. Positive references are made to the ideal woman in texts of Hindu law such as the Ramayana and the Mahabharata, while some texts such as the Manu Smriti advocate a restriction of women’s rights. In modern times the Hindu wife has traditionally been regarded as someone who must at all costs remain chaste or pure. This is in contrast with the very different traditions that have prevailed at earlier times in ‘Hindu’ kingdoms, which included highly respected professional courtesans (such as Amrapali of Vesali), sacred devadasis, mathematicians and female magicians (the basavis, the Tantric kulikas). Some European scholars observed in the nineteenth century women were “naturally chaste” and “more virtuous” than other women, although what exactly they meant by that is open to dispute. In any case, as male foreigners they would have been denied access to the secret and sacred spaces that woman often inhabited. Mahabharata and Manusmriti asserts that gods are delighted only when women are worshiped or honored, otherwise all spiritual actions become futile. Historically speaking, whether it was in ancient India or medieval India, the status of women specially the Hindus in the subcontinent was never good. A present day woman would feel outraged, and rightly so, if she goes through the contents of the Manusmriti, which is particularly harsh against women and treats them with disdain and suspicion. But we have no evidence to believe that the contents of the book were followed by all sections of the society. Probably the Brahmin women were its worst victims and suffered more compared to women of other castes. The situation irrespective of religion is gradually changing. In a changing world, society is trying to redefine the role of women in the institution of family and society. Politically women today enjoy an equal status with men and wider opportunities then their counterparts in many western countries. There is a talk to provide them with new privileges and rights including inheritance rights. But a lot still needs to be done on the social and economic front, because women in society still suffer from gender bias and a number of other problems such as dowry, inheritance, domestic abuse, sexual exploitation, rape and harassment.
Status in social and economic arena
The majority of women in Bangladesh have yet to be empowered to participate actively in the social, cultural, economic, and political life of the country. Gender discrimination is widespread in all spheres and at all levels, as indicated by official statistics on health, nutrition, education, employment, and political participation.
The Constitution of Bangladesh guarantees equal rights to all citizens, but in family matters such as marriage, divorce, custody, maintenance, and inheritance, laws discriminate against women. The policies and programs of the Government, some NGOs, and other institutions do not sufficiently address the need for women’s empowerment.
visible in some development interventions in which women are viewed as beneficiaries and handicapped but not as potential contributing partners.
Less aptitude to accept new ideas,a nonconducive environment, and inadequate resources are the major factors for the continuing “welfarist” approach.By custom, a patriarchal, patrilineal, and patrilocal social system exists in
Bangladesh. The life of a woman in Bangladesh is therefore dominated by this social
system. Such a system upholds a rigid division of labor that controls women’s mobility roles and responsibility, and sexuality. Traditionally, a woman in Bangladesh derives her status from her family. Her role includes the maintenance of her family as a social institution and as an economic entity. Most importantly, through childbearing and child rearing, she ensures the existence of succeeding generations. Increasingly, however, women’s roles, responsibility, and mobility are changing due to persistent poverty and the gradual erosion of the familial umbrella of support. The traditional patriarchal society of Bangladesh is based on class and gender divisions. Class mobility allows movement between rich and poor, but the division of social space and the difference in behavioral norms between men and women are rigidly maintained. The family, which constitutes the basic unit of social control, sets the norm for male and female roles. Within this system, the father, or in his absence, the next male kin, is the head of the household. As a result, both decision-making powers and economic control are vested in the hands of men.
Traditionally, women are largely involved in the non monetized sector and in subsistence activities. With increasing poverty and the breakdown of the supportive kinship umbrella and also due to the demand generated by some sectors, women’s participation in the labor market has increased since the mid-1980s. In the last decade,women have experienced some major changes in the labor market, primarily in terms of the nature of jobs and opportunities.
The Bangladeshi employed labor force is estimated at 41.7 million or at 54.6 million
and it increased in size by nearly 5 million since 1990-1991. In other words, around one million people enter the Bangladeshi labor force annually. The share of female employment between agriculture and nonfarm work is changing. The nonfarm sector is generating female employment at an increasing rate mainly due to the fact that government and nongovernment interventions are more concentrated in this sector. The occupational pattern of employed persons and the annual growth rate by major occupation from 1990-1991 to 1995-1996 shows that the growth rate of females employed in the sales occupation is the highest (51.1 percent) among all the major
occupations. The second highest growth rate is observed in the case of production labor. In bangladesh the condition of women was never been tried to adopt betterment.
In Bangladesh the condition of women was never been tried to adopt betterment.
As Islam is the prevailing religion in the society, women have very few opportunity to come out and find for a superior economic fortune, more or less women from every religion are made bound to remain in the household and was never given recognition of their capability to contribute in the economic sphere.
Status regarding Education and Equal participation and representation
Education receives the highest allocation of resources in the Bangladeshi social sector. As boys are perceived ultimately to take care of parents, sending them to school and investing in their education is preferred to investing in girls. Nevertheless, the primary level enrollment rates for girls have gone up remarkably .The gap between male and female enrollment, which stood at 22 percent in 1985, declined to 3 percent over the past decade and a half.
Lower access to technical education and higher secondary education, gender-biased curriculum, and curriculum without job prospects are critical concerns for women’s education that must be addressed through coordinated efforts
Although noteworthy achievements have been made in female enrollment at the primary level, progress has been very slow in secondary level education. At this level male and female enrollment rates improved by 5 and 10 percentage points, respectively, between 1985 and 1995. At the primary level, girls’ enrollment is increasing; it has risen from 45 percent in 1990 to 49 percent in 2000. At the secondary level, the dropout rate of female students reaches half, which is higher by 10 percentage points than the rate of male students. Very few women continue their education up to the tertiary level.
Women’s Participation and Political Representation
Notwithstanding all barriers of purdah (literally: veiled) and patriarchy, women have become more politically visible in the last two decades. A quota has ensured women’s presence in the local government and National Parliament. Among women politicians, the older group entered politics through social work, while some among them and the new generation of women have emerged from student politics. Despite many odds, statistics and analyses reveal a slowly growing trend towards women’s political participation. However, they face an ominous challenge. There has also been a growing influence of money in Bangladesh politics, particularly in electoral politics and in guarding/promoting spheres of influence. This acts as a further constraint on women’s
political participation since fewer women have access to financial resources. It is very difficult for women to work effectively in this system unless such practices are eradicated. Party affiliation depends on membership drives and on the organizational and electoral needs of each party. The actual number of women members in different political parties, however, cannot be determined, since gender-specific records are not maintained. Nevertheless, a slow trend towards women’s greater participation has emerged over the decade. As party workers, women render valuable contributions in the mobilization of voters, especially among other women. Although there are only a few women in leadership positions, their numbers have increased over the last two decades.
There is limited female involvement in party hierarchical structures. However, the top
leadership positions in each of the two largest parties are occupied by women. They
became leaders during crisis periods and have been successful as driving forces and
unifying factors of their respective parties. Significantly, neither of them inherited the mantle of leadership when their party was in power. Once placed in the position of leadership, they were able to generate their own dynamics and momentum to lead their parties through difficult times. Nevertheless, their close and inner circle of advisors
mostly consist of men. In occupying the role of a leader in public life, they have perhaps contributed to liberalization values in a predominantly Muslim culture where traditionally men had exclusive prerogative in politics. They played a crucial role toward democratization and brought about a certain degree of continuity into the political process. They have a strong potential to be positive role models for women of all ages in Bangladesh, provided they demonstrate a commitment to gender equity by involving more women in their parties and in government.
The election manifestos and constitutions of different political parties reveal that
there is little emphasis on gender equality in party platforms. The Awami League, the current ruling party, stresses the principle of fundamental human rights. Gender equity is mentioned in terms of social and political rights. The Bangladesh Nationalist Party (BNP), the major opposition party, places importance on women’s roles in development and on income-generating activities for self-reliance, and pledges to implement the United Nations Declaration on Women’s Rights step-by-step. The left-wing parties recognize that gender equity should be established. However, women’s issues are not given any priority by political parties. There is no agenda or plan of action and no recommendation for legal or electoral reforms. The Jamaat-e-Islami does not believe in gender equality and even expressed its explicit preference for gender segregation in all spheres of life.
Laws Relating to Important Issues on Women’s Rights
A Hindu marriage joins two individuals for life, so that they can pursue dharma (duty), artha (possessions), kama (physical desires), and moksa (ultimate spiritual release) together. It also joins two families together.The ancient Hindu law recognized eight forms of marriage, of which four were approved and others unapproved where brahma,daiva, arsha and prajapatya were approved with asura, gandharba, rakshasha and paishacha were the unapproved forms. Where the father or other guardian of the bride gives the bride in marriage without receiving any consideration from the bridegroom for giving the girl in marriage, the marriage is called brahma marriage, where he receives such consideration, which is technically called as shulka or bride’s price, the marriage is called asura . Now a days only brahma and asura are the recognized types. No marriage is invalid by reason of the caste of the bride or bridegroom. There is no marriage registration systems for Hindus in Bangladesh. There is also no Hindu marriage law and Hindu marriage register in the country. So, if Hindu women suffer any violation of any rights arising out of her marriage. Hindus can opt for a civil marriage, often incorrectly referred to as a “court marriage,” under the Special Marriage Act, 1923. Provisions in the Act govern civil marriages and require no religious ritual or ceremony of any kind. The necessary requirement is that the persons intending to marry inform the marriage officer of the district in which at least one of them lives. In Bangladesh minimum ages of marriage are 21 and 18 for male and female respectively. Any person who knowingly participates in any contracting of an under aged marriage shall be subjected to penal sanction but merely this reason does not invalidate such marriage. However there are still many laws prevailing in the country which are discriminatory and miserable towards the Hindu women. The wife being the object of the marriage contract, did not have to consent marriage is still valid and polygamy is authorized in case of the husband. The brides consent to or understanding of the implication of the marriage is irrelevant. Every Hindu is deemed to have a right to marry a person suitable of his age, mental or physical health or plurality of wives, there are no safeguards for the girl to being contracted in marriage with an unsuitable groom.Even lunacy on the part of groom is not a barrier if the man is able to accept his bride.A Hindu women suffering from the violation of her matrimonial rights can file a suit under Family courts ordinance,1985,Dowry Act,1980 and Women and Child Repression Act,2003, but this laws are far from being enough to protect the Hindu women’s rights. When the Hindu women want come out of the bad marriage they are in trouble as there is no marriage registration system in the Hindu society of Bangladesh. Marriage registration is as necessary as the baby’s birth registration. It will be helpful if parliament makes laws in this regard for the women suffering from the lack of such binding provision. In Bangladesh remarriage of widow is permitted by the Hindu widow’s remarriage Act,1856. which enacts that if widow marries for the second time, she can’t retain the property of her deceased husband.
Divorce is not known to the general Hindu law. The reason is that a marriage , from the Hindu point of view , creates an indissoluble tie between the husband and wife. Neither party, therefore , to a marriage can divorce the other, unless divorce is allowed by custom. However in some communities divorde is allowed by custom if the requsites of a valid custom is fulfilled(Sankaralingam vs Subban).There are cases in which Hindu law allows separation or desertion but this does not have the effect like divorce or dissolution of marriage tie completely.As Bangladesh follows shastric Hindu law many Hindu women here suffers from abandonment by the husband who can marry as many times as he wishes where the wife have nothing to get recourse. Which is the greatest tyranny for a wife. A husband can be unfaithful to the wife with having the habit of torturing and neglecting the wife but the poor women couldn’t but help themselves. As there is no provision of divorce for Hindu women in Bangladesh there is no question of post-divorce maintenance.
The relief of maintenance is considered an ancillary relief and is available only upon filing for the main relief like divorce, restitution of conjugal rights or judicial separation etc. Maintenance includes food , clothing, lodging. However the definition is not exhaustive, the word includes other necessary expenses for physical and mental well being of a minor, according to his status in the society. Educational expenses include in the definition.While passing from one family to other it Is ensured that after widowhood , the widow is still entitled to be maintained by her husbands family. Under Section 24 of Hindu Marriage Act, 1955, either the wife or husband can apply for interim maintenance. The basis of the claim for interim maintenance is that the claimant has no independent income of his/her own to support himself/herself. The provision is silent on the quantum of maintenance and it is upon the discretion of the court to determine the quantum. Similarly, maintenance pendent elite (while litigation is pending) is to be provided to the claimant who does not have an independent income and the financial need of litigation expenses has to be provided by the other spouse. When either the wife or the husband has no independent income for his or her support and for the necessary expenses of the proceedings, an application can be made either by the husband or wife to the court and the court may order the respondent to pay the expenses of the proceeding and such sum as maintenance as the court seems reasonable.Only upon proving that at least one of the grounds mentioned under the Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946,exists in the favor of the wife, maintenance is granted. These grounds are as follows:
a) The husband has deserted her or has willfully neglected her;
b) The husband has treated her with cruelty;
c) The husband is suffering from virulent form of leprosy/venereal diseases or any other infectious disease;
d) The husband has any other wife living;
e) The husband keeps the concubine in the same house as the wife resides or he habitually resides with the concubine elsewhere;
f) The husband has ceased to a Hindu by conversion to any other religion;
g) Any other cause justifying her separate living;
A Hindu woman in Bangladesh may live separate from her husband on some special grounds and claim for maintenance , under the “Hindu women’s right to separate residence and Maintenance Act, 1946”as applied in Bangladesh if it can be proved that her husband is suffering from loathsome disease not contracted from her or is guilty of cruelty which renders it unsafe or undesirable for her to live with him or deserts or abandons her or marries again or converts to another religion or keep a concubine or for any other justifiable cause So under the Act a Hindu wife can file a suit in the family court for maintenance against her husband.but According to the “Hindu women’s right to separate residence and Maintenance Act, 1946” any woman who obtained divorce and subsequently remarried is not allowed to get maintenance under the Act. So a Hindu woman can get maintenance after divorce until she is remarried.
But a Hindu woman faces complexity to get those above mentioned rights because of the absence of the law for the marriage registration, as a consequence it is evident that for this lacking in the legislation all the existing laws though not enough are to some extent ineffective to ensure the rights of the Hindu women.
Guardianship and custody
Child custody and guardianship are legal terms which are sometimes used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent’s duty to care for the child. The religion-based distinction of the personal laws is an evident and accepted fact. These laws are zealously guarded, fiercely protected and justified by the various religious communities. The basic opinion of the child and the mother is highly ignored while determining the custody of the child. Because a father earns more than a mother, it does not entitle him to get the custody of the child in the event of a divorce.InBangladesh guardianship is governed by The Guardians and Wards Act, 1890. Under the Act, minor means a person who has not completed the age of eighteen years. A minor is considered to be a person who is physically and intellectually imperfect and immature and hence need someone’s protection. Guardians may be of the following 3 types:
3.Guardians appointed or declared by the court other than the types mentioned, the two other types of guardians, existing under Hindu Law are de facto guardians and guardians by affinity. A father is the natural guardian of his minor legitimate children, sons and daughters. A father cannot be deprived of the natural guardianship of his minor children unless he has been found unfit. The position of adopted children is at par with that of born children. In case the father is incapable ,or fails or refuses to perform the functions the mother can be the guardian. The mother is the guardian of the minor illegitimate children even if the father is alive. Mother’s right to guardianship stays even if she has converted her religion. The position also remains the same even if the child is an adopted child and not a natural born child. Husband is the guardian of his minor wife. The laws relating guardianship and custody allows the mother the custody only till the age of 7 in case of son and 13 for daughter . Though there is provision that it should be decided as to the wish of the child but in Bangladesh the mother or the child seldom sought for such relief for the harsh hindrance created by the society. Further it should be noted that the mother has no right to the guardianship of the property of the minor child.
The two renowned works on adoption, viz the Dattaka-mimamsa of Nanda Pandit and Dattaka-chandrika, attributed to Kuvera, were accepted all over India. But, in case of difference between the two, the latter was followed in Bengal. The main points, according to the Dattaka-chandrika, are as follows. There are two motives in adopting a son; viz. (i) to perform obsequies rites is honor of the adoptive father and his ancestors, (ii) to be the successor of the adoptive father. Any sonless man may adopt a son; ‘sonless’ implies the absence of son, grandson and great-grandson. Except for a Sudra, one cannot adopt a daughter’s son or a sister’s son. A person’s single son cannot be given in adoption. A woman cannot give away a son without the permission of her living husband. If the husband is dead, she can do so in the absence of prohibition by the husband. An adopted son is placed on equal footing with a natural son.
Under the law in Bangladesh a man only can adopt unilaterally. A wife can’t adopt without the consent of her husband. A widow under the dayabhaga school may adopt if her husband gives implied or expressed consent before he dies. Thus in Bangladesh a woman doesn’t have any right of adoption herself. Besides a wife can but a woman not married can never adopt in Bangladesh which is possible in case of India as they have made required reforms in this regard.
The main points of law of inheritance are: (i) Dayabhaga does not recognize birth-right to property. Drayabhaga holds, right to inherit and order of succession are determined by principle of spiritual benefit; In Dayabhaga, members of a joint family hold shares in quasi-severalty; they can dispose of them even before partition; In Dayabhaga, even in an undivided family, the window takes the share of her husband dying childless.A Hindu woman in Bengal school is not debarred from being a co-partner in a joint family(Shamoly rani vs Gauri das).In Goutam Halder vs Shila devi it was held that a woman can exercise the power of managing the property where the other co-partners have mo objection to her in doing 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 predeceased 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 predeceased 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.Though it is hard to find in particular the position of woman in the ancient Hindu social system but it is clear it is clear from the old writings that with end of the matriarchal system and introduction of patriarchy, women have become largely dependent on there male counterparts to large extent. Since then Hindu women have been deprived of their right to property of their father or husband for survival. During their childhood, youth and old age they remain dependent respectively on their father, husband and on children. So now it is a burning need that the laws relating inheritance. Despite Hindu community is the second largest in Bangladesh according to the census held in 19911.5 percent of the population of the country comprised by them where it is a matter of great regret that very little has been done for reforming the hindu personal law though the constitution ensures the equality of all citizens.The rights of hindu female is limited to estate. She will only have the limited interest of the reversionary though this is not the case in the pure Hindu law and it is held that a woman can exercise the power of managing the property where the other co-partners have no objection to her doing so, however two or more women alone can’t constitute a co-partnership, women must be associated with two or more men to form a co-partnership. Moreover a daughter can’t receive any property even she can’t get life interest in the presence of son , grandson, and great Grandson because in Bangladesh pre-1947 law is still prevailing.
The word ”Stridhan ” is, as derived from the words stri meaning woman and dhana meaning property. Essentially a word and concept, which comes down centuries from the Hindu smritis but has today, permeated all forms of marriages in all castes and religions. According to the age old smritis and all old schools of Hindu law such as Dayabhaga, Mitakshara etc. the following was Stridhan in the hands of a woman be it a maiden, married woman or widow.
- Gifts made to a woman before the nuptial fire.
- Gifts made to a woman at the bridal procession
- Gifts made in token of love by father-in-law, mother-in-law
- Gifts made by father, mother and brother
Whether a particular kind of property acquired by a woman was Stridhan or not depended on the source from which the property was acquired and her status at the time of acquisition whether she acquired it during her maidenhood, subsistence of marriage or widowhood. Gifts and bequests from a woman’s relations during maidenhood, subsistence of marriage or widowhood is all Stridhan.
Gifts and bequests from strangers during maidenhood, subsistence of marriage or widowhood is all Stridhan. Property acquired by a woman by mechanical arts or by her own exertions during maidenhood, subsistence of marriage and during widowhood is Stridhan. The woman has an absolute, exclusive dominion over all her Stridhan including movable and immovable property and has the power to sell, alienate or give it away as she pleases both during her lifetime and thereafter. Her husband and / or his family members have no rights over a woman’s Stridhan.
In Bangladesh the Hindu women faces problems which are two fold. First, they are women and to the most irony of fate they are the Hindu women of Bangladesh.
Legislation for women and Hindu women
Since the independence in 1971 very few legal enactments are made which concern the sector of personal law of the people of the country. As a result this important matter for determining and ensuring the rights of the women of the country remained almost the same as it was left by the British rulers. Though India after its independence have made a lot of changes in this regard, Bangladesh and Pakistan didn’t. It is because religion in our country is so a very deciding factor for political culture that Governments hardly took steps that may switch religious debate, for not to impart with trusted vote banks. However there is still some inadequate enactments relating this matter which to some extent have their effects on the women and their rights prevailing in the country.
Hindu Disposition of Property Act, 1916:
This Act allows the hindus to to make will of his property in fevour of person or rersons who are not in existence at the time of making such will. But this right is not absolute, as there are some limitations imposed by the Act which express that nothing can be done while purporting any will nothing can be done in contravention of the provisions of those contained in Chapter II of the Transfer of Property Act, 1882, and those contained in sections 113, 114, 115 and 116 of the Succession Act, 1925. But this do a little for ascertaining right to hindu women to dispose of her property because they don’t have the right to hold or alienate any property. They only have the life estate to her husbands property for the purpose of her own maintenance. They can only dispose of the property which is called stridhan by means of the provisions of this Act.
Hindu Gains of Learning Act, 1930:
The object of promulgating this Act is to to remove doubt, and to provide an uniform rule, as to the rights of a member of a Hindu undivided family in property acquired by him by means of his learning. In this Act, “acquirer” means a member of a Hindu undivided family, who acquired gains of learning; “gains of learning” means all acquisitions of property made substantially by means of learning, whether such acquisitions be made before or after the commencement of this Act and whether such acquisitions be the ordinary or the extraordinary result of such learning and “learning” means education, whether elementary, technical, scientific, special or general, and training of every kind which is usually intended to enable a person to pursue any trade, industry, profession or a vocation in life.This Act further provides that the mere reason of being aided in such learning shall not effect the rights to the gains of such learning. But the dilemma is that in this Act the definition of the acquirer does not directly indicates it’s application to the female members of a joint hindu family rather incorporating the word “HE” it gave quit an impression that only male person are the subjects of the Act. So it is thus worthy to make it clear that the provisions are equally applicable irrespective of gender to the members of hindu undivided family though the concept of stridhan allows the women the exclusive right to the property acquired through their learning or skils.
Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946:
This Act is expedient to provide for the right to separate residence and maintenance under certain circumstances in the case of Hindu married women. This Act provides for some grounds under which a hindu woman can claim for such rights, in allowing such provisions the court shall consider the social conditions of the husband and wife and also the ability of the husband.
Births, Deaths and Marriages Registration Act, 1886:
This is an Act to provide for the voluntary Registration of certain Births and Deaths, for the establishment of General Registry Offices for keeping Registers of certain Births, Deaths and Marriages.As a result this provides for no binding provision for the death, birth and marriage registration of hindu religion. It is only applicable when anyone just wishes to register such incidents which have just make this law just an ornamental one and it plays no role for the betterment of the hindu women.
Child Marriage Restraint Act, 1929:
This Act was enacted to restraint child marriages whereas this stipulates the age of 21 and 18 as the age for marriage for male and female respectively. According to this law any marriage which is solemnized where any of the party to the marriage is under the stipulated age would be child marriage and any person who is of the age of majority for the purpose of this Act, get married with a minor knowingly or any person who directs or arrange such marriage of minor or the guardians or parents of such minor would be punishable for simple imprisonment not exceeding one or with fine of one thousand taka or with both provided that no women shall be punished with imprisonment. This Act further empowers the court to order injunction on its own motion or on application of any aggrieved person for preventing any child marriage but before passing such injunction the court must give prior notice and an opportunity of being heard to the person against whom such injunction is to be ordered. In case of any violation of the order of such injunction the accused person of such allegation shall be punishable for imprisonment for three months of either description or with fine of one thousand taka or with both.Though this is a very important piece of legislation but due our social practice and unawareness people seldom files any application to enforce this law. For enhancing the effectiveness of this law representatives from the local government shall be given special duties as a mandatory one to report any incident of child marriage taking place in their respective locality to the court and provision for punishment in case of failure to perform such duty should be incorporated which would surely do a lot for total effectiveness of the law.
Family Courts Ordinance, 1985:
According to this Act all courts of the Assistant district judge shall be deemed as the family court which shall have the exclusive jurisdiction to try every suit in Bangladesh arising in any of the following matters irrespective of the religious belief to which the party to such suit belong (Krishnapada Talukder vs Geetasree Talukder):
(a) dissolution of marriage;
(b) restitution of conjugal rights;
(e) guardianship and custody of children.
This family courts are empowered to exercise all the powers and follow all the procedures of a civil court that are given under the code of civil procedure,1908 and to some extent the powers of a criminal court also where it is necessary to dispose of the suits brought before it. This court also can hold the trial in camera either on its own motion or on the application of the parties to the suits. In a word this almost an exhaustive law in dealing with the matters within its jurisdiction(Nirmal Kanti Das vs Sreemati Biva Rani).Confusion regarding the juriseiction of the Family Court was removed in the judgement in Pochon Rikshi Rani Das vs Khuku Rani Das the high court division upheld that the Family court Ordinance has not taken away any personal law of any litigant party. But again it is still not enough expedient to give enough relief to hindu women because the laws which this court can enforce are not satisfactory and time worthy for hindu religion. In the matter of this context it can be said that for hindu people this can be compared with an army without weapons. For the effectiveness of the family court for hindu family matters sufficient reforms of the hindu personal law shall have to be ensured first.
The Hindu Widow’s Re-Marriage Act, 1856:
The object of this Act is to remove all legal obstacles to the marriage of Hindu Widows. Preamble to this Act provides that it is just to relieve all such Hindus from this legal incapacity of which they complain, and the removal of all legal obstacles to the marriage of Hindu widows will tend to the promotion of good morals and to the public welfare by the law as administered in the Civil Courts Hindu widows with certain exceptions are held to be, by reason of their having been once married, incapable of contracting a second valid marriage, and the offspring of such widows by any second marriage are held to be illegitimate and incapable of inheriting property and it is just to relieve all such Hindus from this legal incapacity of which they complain, and the removal of all legal obstacles to the marriage of Hindu widows will tend to the promotion of good morals and to the public welfare. This Act provides that whatever be the custom or interpretation of Hindu Law no marriage of any Hindu woman shall be invalid and the issue of such marriage shall be illegitimate by reason of such woman being married previously or betrothed to a person who is dead.As a consequence of such re-marriage the woman is ceased to have any right to her deceased husbands property.This is certainly a black spot for this law because unlike the muslim women Hindu womens don’t have any right to denmohor which shall never be ceased away. For this reason there should be a provision for Hindu women to get some interest from her deceased husband as absolute which would still remain even if she re-marries.This Act also go further to say that after her getting married again the woman can’t retain the guardianship of the children of her deceased husband which is certainly a cruel settlement on the part of both the mother and the children because it is not a dissabilty of the woman that her husband died nor she lacks the motherly affection to her child,the mother must have right of the guardianship and custody of the person of her child even after her re-marriage if the children wishes so.In determining the part of consent in such marriage the Act provides, in case of aminor widow whose marriage was not consummated can’t re-marry without the consent of her guardians who is empowered by law to give such marriage while in contravention of this rule the re-marriage can be rendered void.
Dowry Prohibition Act, 1980:
The system of giving and taking dowry is a social disease , the worst sufferer for which are the women of the country. This Act declares all forms of giving and taking dowry to be void and punishable. According to this Act, unless there is anything repugnant in the subject or context, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person to either party to the marriage or to any other person; at the time of marriage or at any time before or after the marriage as consideration for the marriage of the said parties, but does not include dower or mehr in the case of persons to whom the Muslim Personal Law (Shariat) applies.If any person gives or takes or abets the giving or taking dowry and if any person demands directly or indirectly dowry to the parents of the bride or bridegroom shall be punishable with imprisonment not exceeding five years and not below one year or with fine or with both. Any agreement for taking or giving dowry is also declared void.
Rights of women under the Constitution
Safeguards for women under the constitution:
The Constitution of Bangladesh is the supreme law of Bangladesh. It declares Bangladesh as a secular democratic republic where sovereignty belongs to the people and lays down the framework defining fundamental political principles of the state and spells out the fundamental rights of citizens. The preamble to the constitution pledges nationalism, democracy, socialism and secularity as the fundamental principles defining the Republic and declares the pursuit of a society that ensures its citizens- the rule of law, fundamental human rights and freedoms as well as equality and justice, political, economic and social.The constitution in various of its articles ensures the rights of women. Though there are also some provisions which really frustrate the ideals of equality. The following are the provisions for the safeguards and effecting equality for the rights of women:
Before discussing the related provisions it is a must that the effectiveness of the fundamental principles of state policy are the guiding principle for the running of the government and enacting and forming of the legislation but these are not enforceable by the court. Thus as a result these provisions have no binding force and as a consequence it can be said that this part is just an ornamental part of the constitution if the government shows no positive approach towards these principles in its activities.
Participation of women in national life:
The constitution recognizes the importance of the ability of women and necessity of their fluent participation in every spheres of national life for it is a must for the development of the country. The constitution positively declares that women’s participation shall be ensured and all necessary steps should be taken in that effect so that the women who are socially in a backward position.
Democracy and human rights:
The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed, and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured.
This provision declares the right of the people, for expressing their will and reflect their wishes through electing representatives in the government for participating in the governance of the country by a democratic process, irrespective of difference of any kind.
Social Security & Basic necessity:
It shall be a fundamental responsibility of the State to attain, through planned economic growth, a constant increase of productive forces and a steady improvement in the material and cultural standard of living of the people, with a view to securing to its citizens the provision of the basic necessities of life, including food, clothing, shelter, education and medical care. the right to reasonable rest, recreation and leisure; and the right to social security, that is to say to public assistance in cases of undeserved want arising from unemployment, illness or disablement, or suffered by widows or orphans or in old age, or in other such cases. This provisions somehow recognizes the states responsibility for ensuring the availability of the means to meet the basic needs of every citizen specially to people who are incapable of enough earning such least to satisfy those needs. So thus the constitution protect every person from being exposed to face vulnerability out of the lack of capacity specially the economical one.
Equality of opportunity:
The State shall Endeavour to ensure equality of opportunity to all citizens. The State shall adopt effective measures to remove social and economic inequality between man and woman and to ensure the equitable distribution of wealth among citizens, and of opportunities in order to attain a uniform level of economic development throughout the Republic.
Free and compulsory education:
The State shall adopt effective measures for the purpose of establishing a uniform, mass-oriented and universal system of education and extending free and compulsory education to all children to such stage as may be determined by law relating education to the needs of society and producing properly trained and motivated citizens to serve those needs; removing illiteracy within such time as may be determined by law.
Equality before law:
All citizens are equal before law and are entitled to equal protection of law.
Discrimination on grounds of religion:
The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. Women shall have equal rights with men in all spheres of the State and of public life. No citizen shall, on grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution. Nothing in this article shall prevent the State from making special provision in favor of women or children or for the advancement of any backward section of citizens.
Equality of opportunity in public employment:
There shall be equality of opportunity for all citizens in respect of employment or office
in the service of the Republic. No citizen shall, on grounds only of religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect of, any employment or office in the service of the republic. Nothing in this article shall prevent the State from making special provision in favor of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic giving effect to any law which makes provision for reserving appointments relating to any religious or denominational institution to persons of that religion or denomination reserving for members of one sex any class of employment or office on the ground that it is considered by its nature to be unsuited to members of the opposite
Right to protection of law.
To enjoy the protection of the law, and to be treated in accordance with law, and only in
accordance with law, is the inalienable right of every citizen, wherever he may be, and of
every other person for the time being within Bangladesh, 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.
Enforcement of fundamental rights:
The right to move the High Court Division in accordance with clause (I) of article 102
for the enforcement of the rights conferred by this Part of guaranteed. Without prejudice to the powers of the High Court Division under article 102, Parliament may be law empower any other court, within the local limits of its jurisdiction, to exercise all or any of those powers.
Constitutional Status of Hindu Women:
The above mentioned provisions provides for the rights of all the citizens as well as the rights of the women. Some of those specially reserves the rights of the women as they are too much subjected to vulnerability and as the minority part the Hindu women are more benefited by those provisions. In accordance to those provisions the status of Hindu women under the constitution follows. The democratic participation of women is emphasized to recognize their potent status in the political sphere. Social security which is to be provided specially to widows also dignified the status of Hindu women. The educational status of them is ensured also by providing for the compulsory and free educational provision. Equality of opportunity for men and women is privileged by making the government responsible to ensure effective measures to remove inequality between men and women.
Laws inconsistent with fundamental rights shall become void so far as they are inconsistent. As in our country Hindu people are the minority part they suffers from backdated and inadequate laws. According to this provision the Hindu women are given access to litigation the object of which can be enacting required laws to improve the old age approach of law towards them which are too much discriminatory. Besides the freedom of association, the freedom of movement and the freedom of assembly is ensured for every citizen. These rights in addition to the aforesaid one strengthen the Hindu women to move for their rights and put pressure on the government to amend the laws relating to their rights specially the part of the Hindu personal law which effects the rights of the Hindu women. In our Country women are not given willfully the complete status of a human being rather they are often regarded as inferior to men and are exploited like some instrument which can never have the free thought or conscience. The above mentioned rights give them the opportunity of being independent in acquiring their own rights not being subjected to the will or wish of any other particularly the men. The constitution ensures that there shall be no discrimination imposed on grounds of religion. So it is another important means for Hindu women in promoting their status and removing the obstacles to them to which they are often exposed by the society as they are regarded as the inferior than the inferiors as they are the women of the minority. This certainly gives them the opportunity to improve their condition themselves. The freedom of religion as guaranteed under the constitution also gives the Hindu women an equally dignified status as opposed to the social condition in which they are often confined. Above all of these the most important provision to uphold the above mentioned rights is the provision to enforce the fundamental rights through Art.(44). Which gives the right to have recourse to the High Court division in case of any violation of the fundamental rights by filing writ petition under Art(102) of the constitution of the peoples Republic of Bangladesh.
International instruments for women
Innternational legislation and related provisions for women:
The convention on the elimination of all forms of discrimination discrimination against women (CEDAW), 1979:
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women. Consisting of a preamble and 30 articles, it defines what constitutes discrimination against women and sets up an agenda for nation to end such discrimination. The Convention defines discrimination against women 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 a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”
By accepting the Convention, States commit themselves to undertake a series of measures to end discrimination against women in all forms, including:
- to incorporate the principle of equality of men and women in their legal system, abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women;
- to establish tribunals and other public institutions to ensure the effective protection of women against discrimination; and
- to ensure elimination of all acts of discrimination against women by persons, organizations or enterprises.
The Convention provides the basis for realizing equality between women and men through ensuring women’s equal access to, and equal opportunities in, political and public life — including the right to vote and to stand for election — as well as education, health and employment. States parties agree to take all appropriate measures, including legislation and temporary special measures, so that women can enjoy all their human rights and fundamental freedoms.
The Convention is the only human rights treaty which affirms the reproductive rights of women and targets culture and tradition as influential forces shaping gender roles and family relations. It affirms women’s rights to acquire, change or retain their nationality and the nationality of their children. States parties also agree to take appropriate measures against all forms of traffic in women and exploitation of women.
Countries that have ratified or acceded to the Convention are legally bound to put its provisions into practice. They are also committed to submit national reports, at least every four years, on measures they have taken to comply with their treaty obligations.Bangladesh is one of the 160 countries which signed their commitments to the said convention. On the 6th of November 1984, Bangladesh ratified CEDAW with reservations on Articles 2, 13.1a, 16.1c and f, on the basis of religious sentiments. While the Government feels that these provisions conflict with religious Islamic laws, women feel these reservations infringe upon the protection and promotion of their rights.The unequal treatment of women in Bangladesh sanctioned by the constitution reflects gender-based discrimination in mainstream society. In marriages and separations, for example, women’s right of choice is governed by the personal laws that give more importance to social obligation than personal choice.
6.2Universal Declaration of Human Rights (1948) :
The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations General Assembly (10 December 1948). It consists of 30 articles which have been elaborated in subsequent international treaties, regional human rights instruments, national constitutions and laws. The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols. In 1966 the General Assembly adopted the two detailed Covenants, which complete the International Bill of Human Rights; and in 1976, after the Covenants had been ratified by a sufficient number of individual nations, the Bill took on the force of international law. The provisions of this instrument are equally applicable to all human being without any type of discrimination. As a result allof the articles forwards protection towards men and women irrespective of their religious view. But the provisions which confer special safeguards to women are as follows: Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.Marriage shall be entered into only with the free and full consent of the intending spouses.The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
The International Covenant on Civil and Political Rights (ICCPR),1966:
This is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976. It commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. The ICCPR is monitored by the Human Rights Committee (a separate body to the Human Rights Council), which reviews regular reports of States parties on how the rights are being implemented. States must report initially one year after acceding to the Covenant and then whenever the Committee requests (usually every four years). The Convention obliges parties to legislate where necessary to give effect to the rights recognised in the Covenant, and to provide an effective legal remedy for any violation of those rights. It also requires the rights be recognised without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status and to ensure that they are enjoyed equally by women. The rights can only be limited in time of public emergency which threatens the life of the nation, and even then no derogation is permitted from the rights to life, freedom from torture and slavery.There are two Optional Protocols to the Covenant. The First Optional Protocol establishes an individual complaints mechanism, allowing individuals to complain to the Human Rights Committee about violations of the Covenant. The Second Optional Protocol abolishes the death penalty; however, countries were permitted to make a reservation allowing for use of death penalty for the most serious crimes of a military nature, committed during wartime. Bangladesh reserves the right to try people in absentia where they are fugitives from justice and declares that resource constraints mean that it cannot necessarily segregate prisons or provide counsel for accused persons.
The International Covenant on Economic, Social and Cultural Rights,1966 (ICESCR):
This is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from January 3, 1976. It commits its parties to work toward the granting of economic, social, and cultural rights (ESCR) to individuals, including labour rights and the right to health, the right to education, and the right to an adequate standard of living.
The convention establishes the principle of “progressive realisation”. It also requires the rights be recognised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The rights can only be limited by law, in a manner compatible with the nature of the rights, and only for the purpose of promoting the general welfare in a democratic society. The convention includes rights to
- work, under just and favourable conditions with the right to form and join trade unions
- social security, including social insurance
- family life, including paid parental leave and the protection of children
- an adequate standard of living, including adequate food, clothing and housing, and the continuous improvement of living conditions
- health, specifically the highest attainable standard of physical and mental health
- education, including free universal primary education, generally available secondary education and equally accessible higher education. This should be directed to the full development of the human personality and the sense of its dignity, and enable all persons to participate effectively in society 
- participation in cultural life.
Many of these rights include specific actions which must be undertaken to realise them. Bangladesh interprets the self-determination clause in Article 1 as applying in the historical context of colonialism. It also reserves the right to interpret the labour rights in Articles 7 and 8 and the non-discrimination clauses of Articles 2 and 3 within the context of its constitution and domestic law.
Besides the above mentioned instruments acting in the international regime there are some other regional enactments which actually have nothing to do with the improvement of the condition of women in our country. These are the part of international legislation that really have the potentiality to bring positive changes for the better status of hindu women in our country as well as all over the world. But as athird world country there is always a doubt due to reall experience about an effective implementetion of these instruments. Because while these countries are even struggling to give effect to the domestic legislation corresponding to these international treaties how they can implement the international protection which in actual practice have no binding force.
Political approach towards Hindu women
Government policy for Hindu women:
The government of our country plays a very role towards the minority people which is too much cofusing and hard to say that the government really feels for their unending misseries.It is believed because though the neighbouring country(INDIA) have taken almost all necessary steps to remove the hindrances created by the hindu personal law for the equal enjoyment of all human rights but still in our country it was not the reality.besides the government can’t show any reasonable cause for this shortcoming. The only cause behind that which have always remained un-uttered is that the political parties whoever forming the government want to take a risk in this patriarchial society which may cause a consequential removal of support from them as most of the hindu personal law allows unethical benefit towards men and supression towards women. As a result the political parties always give promises before the election that gives a hope for thse deprived hindu women bit after forming the government they just forget whatever they said and this is possibke because of the unconsciusness of the women.However the government of Bangladesh has adopted a National Women Development Policy (NWDP) to promote women’s equality without regards for their religion. In a move full of symbolism, the policy was launched on 7 March, a day before International Women’s Day. Under the NWDP, women will have greater rights in employment, inheritance and education. Inheritance is the new legislation’s sticky point. According to the Qur‘an, not all children are entitled to the same share of inheritance; women can only claim a quarter of what men get. Under the new rules, every child would inherit get the same share. For NWFP’s opponents, this would violated the holy text of Islam and be unfair to men, because if women inherit less than men do, that is because the latter are required to provide for her. That is why women do not need to have a larger dowry.
The government of Bangladesh had tried to adopt a similar policy in the past. The first time was in 1997 with what was then called the Women Development Policy. It never got off to a start. The second attempt came in 2007, under a caretaker government, but it too generated a strong protest movement. This time, Prime Minister Hasina and members of her government have repeatedly said that the new legislation does not violate the Qur‘an or the Sunna, and that they are committed to promoting Islam. The fight is thus all within the Islamic camp over interpretation and nuances. Now the most conservative forces in the country along with the main opposition party, the Bangladesh Nationalist Party (BNP), are waiting to take advantage of any faux pas by the government. Each word is thus carefully examined because if the National Women Development Policy is adopted, it could radically change the principles on which laws are based. Family law in Bangladesh is based on Islamic law even though the constitution is not.
The current constitution was adopted in 1972 and was originally more secular and socialist oriented. It was substantially changed under a military regime, which gave it a more Islamic hue. However, the High Court issued a ruling in 2007 that declared the changes made by the military illegal and unconstitutional. The convenor of the International Women’s Day’s Hundred Years Celebration Committee Lakkhi Chakrabarti, said that the state minister had promised to the women activists that the government would implement a women policy which would be free from all kinds of discrimination.But the cabinet approved the women policy without consulting us and it deceived the women movement as women did not get equal right to property.Minister for Law, Justice and Parliamentary Affairs Barrister Shafique Ahmed said the National Women Development Policy 2011 has been framed in accordance with the constitution but not to hurt anybody from religious point of view.He made the statement to dispel any doubt about its purpose as Islamic clerics kicked up the dust over the policy. Such statements actually again gives an impression that the women are going to be deprived again because the provisions of shariat and equal rights to property are conflicting to each other. However the same is the condition in case of the Hindu personal law though still there is no reactions demonstrated by them but the effect would still be the same as it would not be practicable for the government to take steps which will not be in equal effect to every women in the country. For that will again establish only the belief that discrimination in the country will not be abolished.
A Comparative Analysis In the Perspectives of Bangladesh, India and Nepal.
Bangladesh,India and Nepal all these three countries were under the the British coiionial ruling.As a result there remains very few dissimilarities in legal structure and framing of the laws both in their constitution and in their statutory laws. These countries follow the common law system and for the convenience of the well understandings of the significance of this chapter this is also worthy to mention that the personal laws that govern the Hindu communities of these states are also to the greater extent were framed and followed from the british rule. Which ensures the uniformity of this laws with each other except some subsequent reforms made after their independence. In addition to this it should also be mentioned that it is India which have taken considerable measures to develop the Hindu personal law in comparison to that the other two countries almost took no steps to that effect. For a comparative study between the rights available effecting the hindu women in this countries the following fundamental rights ensured by the constitutions of these countries are important:
Right to equality:
Both the constitutions of india and nepal like Bangladesh constitution have ensured equality and prohibits all forms of discrimination by reason of age, sex, caste, colr or language.The Indian constitution enacts that all citizens shall be equally protected by the laws of the country. It means that the State cannot discriminate against a citizen on the basis of caste, creed, colour, sex, religion or place of birtho.The constitution states that no person shall be discriminated on the basis of caste, colour, language etc. Every person shall have equal access to public places like public parks, museums, wells, bathing ghats and temples etc. However, the State may make any special provision for women and children. Special provisions may be made for the advancements of any socially or educationally backward class or scheduled castes or scheduled tribes.The constitution lays down that the State cannot discriminate against anyone in the matters of employment. All citizens can apply for government jobs. The provisions of article 11 of the constitution of nepal also states in almost in the same words as it is in the article 27 of the bangladesh constitution.
Right to freedom:
Right to freedom is ensured by the Indian constitution as well as in the bangladesh and nepal constitution. The Constitution of India contains the right to freedom, given in articles 19, 20, 21 and 22. Freedom of speech and expression, which enable an individual to participate in public activities. The phrase, “freedom of press” has not been used in Article 19, but freedom of expression includes freedom of press. Reasonable restrictions can be imposed in the interest of public order, security of State, decency or morality.Freedom to assemble peacefully without arms, on which the State can impose reasonable restrictions in the interest of public order and the sovereignty and integrity of India.Freedom to form associations or unions on which the State can impose reasonable restrictions on this freedom in the interest of public order, morality and the sovereignty and integrity of India.In the nepal constitution article 12 enumerates the right to freedom in the following words:
(1) No person shall be deprived of his personal liberty save in accordance with law, and no law shall be made which provides for capital punishment.
(2) All citizens shall have the following freedoms:
(a) freedom of opinion and expression
(b) freedom to assemble peaceably and without arms;
(c) freedom to form unions and associations
In the Bangladesh constitution same rights are ensured under article 36,37,38,39.
Right to Religion:
The constitution of nepal and bangladesh ensures the freedom of religion in the articles 41and 19 respectively but in case of india it is not done expressly rather imlied in the words of article 19.
Special provisions giving favores to women in framing the laws:
The constitutions of Banglaadesh,India and nepal empower the state to enact special laws to prevent righys of women in the following words: The State shall not discriminate against any citizen on grounds only of religion, race caste, sex or place of birth. Women shall have equal rights with men in all spheres of the State and of public life. No citizen shall, on grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution. The State shall make special provision in favour of women or children or for the advancement of any backward section of citizens.
Recommendations & Conclusion
There is a good amount of legislations in our country concerning women, crisis of laws discourage us negatively. 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 too.
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 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 labor 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. 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. There is no scope for the any female words. So this is the perfect time 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.
Monastic Violence Against Hindu Women Rights in Bangladesh has many reasons which result is very miserable, it can be removed by following ground: Taking up specific plans and programmers to secure women’s rights.
• Enacting a law on prevention and protection of the Hindu women rights and established their status as like a citizen not as a Hindu women. Drawing upon the Draft Bill prepared by over 40 human rights and women’s rights organizations, and holding public consultations on the same.
• Taking measures to ensure effective laws in regard with the status of Hindu women.
Examine the application of the Nari O Shishu Nirjaton Damon Ain 2000 as amended in 2003.
Conduct independent, impartial and effective rules and regulations and prevent violence against Hindu women and take appropriate legal action based on their findings including prosecuting those responsible. Amending personal laws to eliminate discrimination based on the religion and ensures equal rights for all religious people and holding public consultations on the issue. Withdrawing all reservations to CEDAW, and incorporating its provisions in national laws. The law should enable judges to pass orders of residence, restraining dispossession, restoring possession. Law should enable grant to monetary relief, custody and compensation in regard with the Hindu community. There should be no procession for mandating counseling for the Hindu women. The government commits substantial funds for the appointment of protection officers and for the implementation of the Act. Widest possible publicity of the Hindu law is given. The government provide for training of the law enforcement machinery.
So in Bangladesh the collonial laws are still remaining in force but timeserving reforms of Hindu law have been done.The reason behind this development in India is that the concerned people who were in need of those changes demanded those through their political and social activities but in bangladesh Hindus still are slleping force in the political sector while the Hindu women are far from being subtantialy being awared of their political rights and duty. To change this phenomena there remains no alternative but to provide proper education to them. It is really a great point of dissapointment that though the constitution provides provisions which are more than enough to the contrary of the situation as equality and free from discrimination is one of the founding principle of he constitution there is still almost no effect is realized as if our constitution is silenced. In fact for this free democratic environment is an essential to make a total realistic reform of the Hindu law which still to be present in our country. So for the objectives and reforms which are stated in the previus discussions to be made all the concerning people of the country specialy the Government and NGOs have to take steps in uniformity to each other.It is to make them consciuos of the necessity that they needs to be awre of their rights for sake of them and the country and most significantly for the future generaton to come. They need to understand that if they don’t demand for their rights to be ensured no one else will make them fulfilled. The media community is now a days playing too an important role in making awareness that it is now regarded as the shadow parliament of the country. So they must come forward for building public awareness in the minority issues. At last it can be said that when the Hindu community will begin to keep building pressure on the political leaders they will not be able to ignore the public sentiment any more.
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