Women’s Legal Status in Domestic Law

8/11/2019 Womens Legal Status in Domestic Law

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Womens Legal Status In Domestic Law

Collected by BdLawSource Com

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Abbreviations

ACD- Association for Community DevelopmentAIDS-Acquired Immunodeficiency Syndrome

ASK- Ain O Salish KendroATSEC- Action A ainst Traffic!in and Se"ual E"ploitation of Children##S- #an ladesh #ureau of Statistics#D$S- #an ladesh Demo raphic and $ealth Survey#ITA- #an ladesh Institute of Theatre Arts#%&'A - #an ladesh %ational &omen 'a(yers Association#SA)- #an ladesh Shishu Adhi!er )orumC*D- Community *articipation and DevelopmentC+C -Convention on the +i hts of the Child

CS& -Commercial Se" &or!er C&CS -Centre for &omen and Children Studies,AAT& -,lo al Alliance A ainst Traffic!in of &omen$I.- $uman Immunodeficiency .irusIEC- Information/ Education and CommunicationI'O- International 'a our Or ani ationIO1- International Or ani ation for 1i rationI%CIDI%- Inte rated Community and Industrial Development Initiatives1O&CA- 1inistry of &omen and Children Affairs

%,O- %on-,overnment Or ani ation+TI -+eproductive Tract Infection

SAA+C- South Asian Association for +e ional CooperationSTD- Se"ually Transmitted DiseaseS2)- Society for 2nder-privile ed )amiliesT- Traffic &atch #an ladeshT-3% Traffic &atch #an ladesh 3outh %et(or! T&SA- Traffic &atch South Asia2#I%I,- *olicy +esearch for Development Alternative2DDI*O%- 2nited Development Initiative for *ro ram Action2%ICE)- 2nited %ations Children4s )und2SAID- 2nited States A ency for International Development

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Contents

TopicsPage

Abstract 10

Chapter one1. Introduction 121.1 Scope and Object 131.2 Justification of the Study 141.3 Utility 151.4 Methodology 15

Chapter Two

2. Laws Relating to Women in angladesh 1

Chapter Three

3. important Issues Relating to Women and !rotecton o" Law3. 1 Ma!!iage 1

3"2 #i$occe 2%

3"3 Maintenance 2&

3"4 'ua!dianship and (ustody of (hild!en 31

3"5 )nhe!itance 31

3"% *!affic+ing 3%

3", #o-!y 50

3" .est!ictions on (hild Ma!!iage 52

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Chapter #our

4. Constitutional $urantees 53

Chapter #i%e

&. Law o" Women 'nder the !enal Code %1

Chapter (i)

*. !rotection o" Women b+ (pecial Legislations and (pecial Court

or Tribunal %2

Chapter (e%en

,. Women-s (tatus on (ocial Conte)t ,4

Chapter ight

/. Recommendations ,5

Chapter 0ine

7 Conclusion

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0

Abstract

&omens le al ri hts are one of the most si nificant determinants of their status9 In#an ladesh/ a series of la(s ensurin (omens ri hts have proven lar ely ineffective in

promotin their positions9 The prime reasons for this are: the shortcomin s andineffectiveness of la(s/ (omens ina ility to access le al proceedin s/ the traditional andcultural ne ative vie(s a out (omens ri hts/ the a sence of an accounta le and transparent

overnment/ the e"pensive and time consumin ;udicial process/ the lac! of an efficient ;udiciary/ and other socio-ecomic reasons9 The core theme of the thesis concentrates on theshortcomin s and ineffectiveness of la(s/ althou h vie(in them (ithin the conte"t of thoseother factors9 To si nify the ineffectiveness of la(s/ emphasis is asically placed on theadministrative and ;udicial approaches in the country to achieve the underlyin o ;ectives of

la( concernin (omens ri hts in pertinent areas9 This study aims to promote protection of (omens ri hts y recommendin remedies to fla(s in prevailin la(s in #an ladesh intonine chapters:Introduction/'a(s relatin to (omen in #an ladesh9Important issues relatin to (omen and protection of la(Constitutional uarantees9&omen4s la( under the penal Code9*rotection of (omen y special le islations and special courts or tri unals&omen4s status on social conte"t9+ecommendations9Concludin remar!s9


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This study critically e"amines la(s re ardin (omens employment and political participation and the la(s on do(ry and rape9 It also e"plores the (ays la(s have eenstructured and enforced in #an ladesh/ and ho( la( can e an effective means of (omens

pursuit of ri hts9 In so doin / this thesis analyses and compares a ran e of le islation and ;udicial decisions of a num er of selected common la( ;urisdictions9 )indin s of the research

demonstrate that the le al efforts of those countries resulted in si nificant improvements intraditional la(s and enforcement procedures re ardin employment/ do(ry as a form of domestic violence/ and rape9 Conversely/ in #an ladesh/ the a e-old common-la( ro(nformalities continue to dominate the le al and ;udicial proceedin s and therefore fail to

provide remedies to the contemporary needs of (omen9 The present le al re ime also suffersfrom an important fla( (ith re ard to the scope and e"tent of lia ilities for the violation of la(s desi ned to protect (omens equal and special ri hts9 The a sence of any independentadministrative ody to monitor the compliance of la(s presents another serious fla( in thecurrent le al re ime of the country9 Such shortcomin s eventually encoura e and favour the(ron doer/ (orsenin the vulnera ility of already disadvanta ed (omen in the traditionalculture of #an ladesh9 In respondin to such a situation/ the present study recommends thereconceptualisation of la(s to accommodate (omen4s unique e"periences in #an ladesh9The study ends (ith a num er of specific recommendations for ensurin (omens ri htsthrou h stren thenin the le al and enforcement mechanisms in #an ladesh9

Chapter one

1. Introduction

Legal status of women indicate to (hat e"tent (omen en;oy equality in thesocio-economic and political spheres of the country9 'a(s protectin (omen=s ri hts

provide the essential frame(or! for formal equality to e transformed into reality9 Theyalso provide le al protection to (omen=s ri hts y critically intervenin in health/education and employment sectors to9

&omens le al ri hts are one of the most si nificant determinants of their status9 In#an ladesh/ a series of la(s ensurin (omens ri hts have proven lar ely ineffective in

promotin their positions9 The prime reasons for this are: the shortcomin s andineffectiveness of la(s/ (omens ina ility to access le al proceedin s/ the traditional andcultural ne ative vie(s a out (omens ri hts/ the a sence of an accounta le andtransparent overnment/ the e"pensive and time consumin ;udicial process/ the lac! of an efficient ;udiciary/ and other socio-ecomic reasons9 The core theme of the thesisconcentrates on the shortcomin s and ineffectiveness of la(s/ althou h vie(in them(ithin the conte"t of those other factors9 To si nify the ineffectiveness of la(s/ emphasisis asically placed on the administrative and ;udicial approaches in the country to achievethe underlyin o ;ectives of la( concernin (omens ri hts in pertinent areas9 This studyaims to promote protection of (omens ri hts y recommendin remedies to fla(s in

prevailin la(s in #an ladesh in four areas9 +ecommendations are made y reference tocomparative and international practices9 The primary ar uments developed andmaintained throu hout the thesis are: >i? the protection of (omens ri hts is imperative to

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improve their status and la( is an essential instrument to ensure these ri hts >ii? thele islative/ administrative and ;udicial efforts in #an ladesh are not appropriate andconducive to dealin (ith (omens ri hts and >iii? improvements in those efforts can

etter protect (omens ri hts9 This study critically e"amines la(s re ardin (omensemployment and political participation and the la(s on do(ry and rape9 It also e"plores

the (ays la(s have een structured and enforced in #an ladesh/ and ho( la( can e aneffective means of (omens pursuit of ri hts9 In so doin / this thesis analyses andcompares a ran e of le islation and ;udicial decisions of a num er of selected commonla( ;urisdictions9 )indin s of the research demonstrate that the le al efforts of thosecountries resulted in si nificant improvements in traditional la(s and enforcement

procedures re ardin employment/ do(ry as a form of domestic violence/ and rape9Conversely/ in #an ladesh/ the a e-old common-la( ro(n formalities continue todominate the le al and ;udicial proceedin s and therefore fail to provide remedies to thecontemporary needs of (omen9 The present le al re ime also suffers from an importantfla( (ith re ard to the scope and e"tent of lia ilities for the violation of la(s desi ned to

protect (omen4s equal and special ri hts9 The a sence of any independent administrative ody to monitor the compliance of la(s presents another serious fla( in the current le alre ime of the country9 Such shortcomin s eventually encoura e and favour the(ron doer/ (orsenin the vulnera ility of already disadvanta ed (omen in thetraditional culture of #an ladesh9 In respondin to such a situation/ the present studyrecommends the reconceptualisation of la(s to accommodate (omen4s uniquee"periences in #an ladesh9 The study ends (ith a num er of specific recommendationsfor ensurin (omen4s ri hts throu h stren thenin the le al and enforcementmechanisms in #an ladesh

1.1) Scope and object:

!s a woman who could be a man"s mother# sister# daughter or wife#who is given the equal constitutional rights with man# who is equally $tto run the state activities like a man and who is intellectually no less $tthan a man in other spheres of life is being sold and purchased likecows# goats and sheep away from her natal home in gross violation of human rights% she is being taken to unknown far o& places for beingused either as a cheap labour or mainly as sex worker 'his trading inwomen has of late stirred the wisdom of the world and throughout theworld this shameless abuse of humanity has raised a voice to save thewoman wherever she may be and whatever may be her caste# creed or

religion by enacting new laws or updating the old ones and applyingthem through courts and tribunals

This socially/ politically and economically deplora le condition of (omen and recent(orld (isdom effect to improve their position and fate in society throu h motivation/le islation and a(areness (hich have prompted me to underta!e for investi atin thissocio-le al human pro lem of (omen of #an ladesh/9

A use of (omen4s ri hts and ender discrimination is availa le in our country9 )indinout the dra( ac!s of la( of (omen and recommendations for fill up the dra( ac!s/ to

pass ne( le islations in some issues/ endorsement the ri hts of the deprived communities

of the country in la(/ to create a positive social revolution for the (omen is stand on theo ;ectives of the thesis9

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Objectives of the Study

'a( may e termed as a ehavioural science as it re ulates human ehaviour9 Chan es insociety demand that la( should move (ith the time if it has to remain alive and active9The o ;ective of le al research is to find out lacunae or deficiencies in the e"istin la(sand to su est suita le measures to eliminate them9

The o ;ective sets the oundaries of a research pro lem9 The main focus of the research proposal is to set its o ;ectives properly9 The proposed study focuses on le al status of (omen in #an ladesh9

The o ;ectives of the proposed study are :a?To elimination of ender discrimination/

?To protect (omen4s ri hts in le al and social re ime/

c?To find out the dra( ac!s of la( and deprivation of some communities/ andrecommendations/

d?Determinin (omen4s le al status in domestic la(/ etc9

Scope of the Study

The issue of le al status of (omen is multi-dimensional9 It has several aspects e9 9criminolo ical/ economical/ ethical/ eo raphical/ health/ human ri hts/ le al/ moral/sociolo ical etc9 to e researched9

The focus of the study is mainly on le al aspect9 So far comparative study on the e"istinla(s relatin to (omen in has een done9 The study has made an evaluation of la(srelatin to (omen9

The relevant case la(s of oth the #an ladeshi and Indian courts have een used9 All therelevant la(s e"istin in #an ladesh have een used9 )or the study/ up-to-date la(s andla(s framed >for three countries? till 600 (ere used9 #esides/ the study made aninvesti ation into the present situation of (omen in la( in #an ladesh9


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1.2) Justification of the StudyThe e"tent of le al status of (omen has reached alarmin proportions in #an ladesh9Thou h/ mentiona le la(s a ainst determinin (omen4s le al status e"ist/ their implementation remains (ea!9 There is a serious lac! of enforcement9

In this re ard/ for our sustaina le development/ (e have to ma!e our (omen a stronhand9 Delimitation of (omen4s ri hts/ esta lished/ protection/ and enforcement of (omen4s ri hts is very necessary9 The thesis tried to focus it9

In this conte"t/ the proposed topic of the study is very timely9 And/ the (or! of the studyis (orth mentionin and suita le for a *h9D9 de ree9

1.3) Utility

'he proposed study is an attempt to examine the development ande&ectiveness of laws relating to legal status of women existing inBangladesh

(t"s utilities are as follows)

a?By this research the legal status of will be investigated in a properperspective%

?(t will study and examine the existing laws relating to women which willbe a real contribution to the store*house of legal knowledge%

c?(t will help the researchers# academicians# human rights activists andlaw makers to have an access to laws relating to women of theselected countries%

d? 'he study will hopefully succeed in surveying literature on women andrelated laws% and

e? 'he study is a initiative to create social positive thinking and practicesand to make e&ective the existing laws#

f? 'he study can remind amendment and enactment of necessary laws#


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? 'he work itself is believed to be of immense academic value forstudents# teachers and researchers concerned

1.4) Methodolo y

Sources

Since the work belongs to the $eld of law# the primary sources of theresearch are) +i, Constitutions of Bangladesh# Charter of the -nitednations and di&erent Conventions# +ii, !cts and Statutes relating totra.cking in women in Bangladesh# and +iii, (nternational Conventionsand (nstruments relating to women and human rights

Case laws# published and unpublished articles# books of renownedScholars and /urists are important sources for this research0overnment documents relating to the subject as a primary orsecondary source have been used (n addition# Law 1eports and Law

/ournals were major sources of materials for the thesis

Law 1eports# Law /ournals and other published works in this $eld wereavailable in the Library of the Supreme Court of Bangladesh% BarCouncil Library# libraries of di&erent bar associations and universities#and of the 0overnment and non*governmental institutions

1esearch and documentation cells of di&erent human rightsorganisations as well as international agencies e g -2(C34# -25C1#-nited 2ations (nformation Centre +-2(C,# 6orld Bank etc stationed in7haka and concerned ministries were also used as sources of theresearch 'he same work was also done within the country

Method of !esearch8ethod of research may be understood as the method or techniquethat is used for conducting a speci$c research 1 (t does constitute apart of the many dimensions of the research methodology

(n conducting the study# several methods of legal research 9 e ganalytical# historical# comparative and critical were used Books#published and unpublished articles# o.cial documents# paper clippings#

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case laws : etc were helpful in this regard (n order to get a $rst handknowledge on the issue# the researcher while visiting these countriesinterviewed the concerned academicians# government o.cials# humanrights activists# judges# lawyers and members of law enforcingagencies (n interpreting case laws# (nternet# both analytical and criticalapproach was used and rational arguments have been made

Chapter two

2. Laws Relatin to !o"en in #an ladesh

Le islation for $usli" Co""unity%

>i? The Muslim Personal Law (Shariat) Application Act,1937 (ActNo. !" o# 1937).

>ii? The Dissolution of 1uslim 1arria e Act/5787 >Act %o9 .III of 5787?9>iii?The 1uslim )amily 'a(s Ordinance/ 57B5>Act %o9 .III of 57B5?9>iv?The 1uslim )amily 'a(s +ules/ 57B59

>v?The 1uslim 1arria es and Divorces >+e istration? Act/ 57 vi?The 1uslim 1arria e and Divorce >+e istration? +ules/ 57 @9

Le islation for &indu Co""unity%

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http://bdlaws.gov.bd/pdf/173___.pdfhttp://bdlaws.gov.bd/pdf/173___.pdfhttp://bdlaws.gov.bd/pdf/173___.pdfhttp://bdlaws.gov.bd/pdf/173___.pdf


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>i? The $indu 1arria e Disa ilities +emoval Act/ 57Act %o9 .III of 57ii? The $indu 1arried &omen4s +i ht to separate +esidence and 1aintenance Act/

57Act %o9 I of 57iii? The $indu &omen4s +i ht to *roperty Act/ 578 >Act %o9 II of 578 ?9

>iv?The $indu Disposition of *roperty Act/ 578 >Act %o9 II of 578 ?9>v? %o9 II of 576 ?9>vi?The $indu &ido(4s +e-marria es Act/ 5 @B >Act %o9 I/ . of 5 @B?9>vii?The $indu .alidity Act/ 57i? The Christian 1arria e Act/ 5 6 >Act %o9 . of 5 6?9>ii? The Christian 1arried &omen4s *roperty Act/ 5 < >Act %o9 . of 5 6?9>iii?

The Divorce Act/ 5 B7 >Act %o9 I. of 5 B7?9>iv?The Succession Act/ 576@ >Act %o9 87of 576@?9

Le islations Co""on to all Co""unities%

>i? The *enal Code/ 5 B0 >Act %o9 '. of 5 B0?9>ii? The special 1arria e Act/ 67689>iii?The Child 1arria e +estraint Act/ 57679>iv?The ,uardians and &ards Act/ 5 709

>v? The #irths and Deaths +e istration Act/ 5 89>vi?The #irth/ Deaths and 1arria es +e istration Act/ 5 B9>vii?The )orei n 1arria e Act/ 570789>viii?The #en al 1aternity #enefit Act/ 57879>i"?The East #en al 1aternity #enefit +ules/ 57859>"? The East #en al 1aternity #enefit >Tea Estates?Act/ 57@09>"i?The East #en al 1aternity #enefit >Tea Estates? +ules/ 57@"ii?The 1ines 1aternity #enefit Act/ 57"iii?The Arya 1arria e .alidation Act/ 578 9>"iv?The Orphana es and &ido(4s $ome Act/ 57"vii?The Do(ry *rohi ition Act/ 57 09>"viii?The )amily Courts Ordinance/ 57 @9

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>"i"?The )amily Courts +ules/ 57 @9>""? The Cruelty to &omen >Deterrent *unishment? Ordinance/ 57 89>""i? Oppression of &omen and Children >Special Enactment?/ 577@9>""ii?

%ari O Shishu %ir;aton Daman Ain/ 60009>""iii? The Acid Control Act/ 60069>""iv? The Acid Oporadh Daman Ain/ 60069

Chapter three

'. I"portant Issues Relatin to wo"en and protection of Law

'.1) $arria e%

$usli" "arria e

1arria e in Islam is a contract and every 1uslim of sound mind (ho has attained pu erty may enter into a contract of marria e9 *u erty is presumed/ in the a sence of evidence/ (hen one reaches the a e of 5@ years/ ut this presumption isre uta le9


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Sharia $anafi/ a irl iven in marria e elo( the a e of pu erty can repudiate thatmarria e after she attained it and up to the a e of 5 provided the marria e (as notconsummated9 #y statute pu erty is no lon er relevant and irl iven in marria e

elo( the a e of 5B can repudiate the marria e either on the attainin of 5B years/ or pu erty/ (here she (as married efore pu erty9 Since accordin to the Sharia a irl is

free from uardianship at pu erty and y the time she is 58 this is assumed/ the la( presents another anomaly in that a irl can ive herself in marria e if she (ishes elo( the a e of 5B/ if she has attained pu erty and the marria e (ould e validthou h the person officiatin and the room himself (here he (as over 5 (ould elia le for punishment under the Child 1arria e +estraint Act9 +e istration of 1uslim1arria e under section 8 of the 1uslim 1arria es and Divorces >+e istration? Act/57 Fe(or Christian?9 #ut his marria e (ith an idolatress (ill e irre ular9 On the other hand/A 1uslim (oman may not contract a valid marria e (ith any one else ut a 1uslim9A marria e (ith a Christian or a Fe( (ould e irre ular (hile a marria e (ith a$indu (ould e invalid >that is any children orn (ould e ille itimate?9 It simplymeans that (hile a man may marry someone (ho is not his Jsocial equalJ a (omanshould e protected a ainst such marria es9

A 1uslim male can ta!e four (ives at a time/ ut a 1uslim (oman cannot ta!e morethan one hus and9 Even a male marries havin already four (ives the fifth marria eis not void/ ut only irre ular9 Thou h Islamic 'a( vastly improved the then status of (oman/ the idea of (oman ein a property could not e alto ether thro(n a(ay ascan e found from the permissi ility of plurality of (ives9 $o(ever/ reali in the evileffects of and the in;ustice inherent in the poly amy of men 1uslim )amily 'a(sOrdinance/ 57B5 >Ordinance %o9.III of 57B5 .ide *a!istan Code 57BB .ol9 I./*9B ? (as passed9 Sec9B of the Ordinance provides that no man/ durin the su sistenceof e"istin marria e/ shall contract another marria e (ithout prior (ritten permissionof Ar itration Council and violation of this provision entails lia ility of conviction

B Dha!a 'a( +eport/ 57@B *9

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and punishment9 The Ar itration Council (hile dealin (ith an application for permission to marry durin the su sistence of a marria e (ould consider (hether thee"istin (ife consents to such marria e and (hether it is necessary and ;ust to rantthe permission9 #ut this le islation failed to produce the desired result ecause due to

protracted procedure in courts fe( inclined to rin violations to court and ecause

the Ar itration Council ein manned y males very often (ere not un-(illin toaccord permission on the sli htest prete"ts9 The la( did not ma!e adequate provisionto control the discretion of the Ar itration council9

#y #en al Act %o95 of 5 B >.ide East *a!istan Code/ 57B8 .ol9 559 p9 5? provision(as made for re istration of 1uslim marria es/ ut re istration under this Act (asoptional9 1uslim )amily 'a(s Ordinance 57B5 made the re istration compulsory anden;oined the Ka i >(ho solemni es marria e? on pain of punishment to reportsolemni ation of marria e to marria e re istrar so that the marria e may ere istered9 Similar provisions have een made y 1uslim 1arria es and DivorcesAct/ 57 B? of the Ordinance/ it has een provided that nothin shallde ar a (ife (hose marria e has een terminated y tala! from remarryin the samehus and/ (ithout an intervenin marria e (ith a third person up to tree times andafter (hich the dissolution ecome irrevoca le9 In our social conte"t/ ri hts of the rides are violated/ forced consent are usually

practiced9 Child marria e is often solemni ed (hich leads to offence/ includin evendeath9 Intervenin marria e often solemni in in rural area (hich is violation of

human ri hts/ (hy it should after thee times effective divorce9 In my point of vie(/child marria e should properly restraint9 #irth re istration has een completed in our country a column should e added (ith G)orm-EH for G#irth +e istration %um erHof rides under 1uslim 1arria es and Divorce +ules/ 57 @9 It can reduce Childmarria e9

&indu $arria e%

Accordin to $indu social customs/ $indu marria es are solemnised throu hreli ious rituals9 In the $indu reli ion/ marria e is a reli ious duty/ not a contract9 In

D9)9 1ulla/ *rinciples of 1ohamedan 'a(/ 5 th Ed9*96

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#an ladesh/ $indu marria e follo(s no le al proceedin s rather social customs9#esides/ $indu marria e rituals or formalities vary from caste to caste9 )amily CourtOrdinance/ 57 @ aims at resolvin le al disputes related to dissolution of marria e/restitution of con;u al relation/ do(er/ maintenance/ and uardianship and custody of children9 A $indu (oman can see! help from the ordinance only (hen the marria e is

solemnised y Special 1arria e Act 5 6 and re istered9 It is ama in that there is nospecific $indu marria e la( or no marria e re istration system for $indu people in#an ladesh9 #ut/ no( days to le ali e the marria e a $indu couple can see! helpfrom the court9 The couple may notarise their marria e in front of t(o (itnesses >oneof the (itnesses may e the priest (ho solemnised the marria e ut it is notmandatory? li!e in 1uslim marria e9 After that the marria e (ill e re istered9*ro lems arise (hen the parties from different reli ions (ould li!e to marry eachother (ithout chan in their reli ion9 Special 1arria e Act 5 6 is the preliminarysolution of the pro lem ut in case of determinin inheritance of their successors it isreally an impossi le tas! as no domestic la( can resolve the pro lem9

As per a 57Amended 578 ?/Earned *roperty Affairs Act 5780/ Inheritance Act 576@ and $indu &omen=s +i htsto 'ands Act 578 9 #esides/ ne( la(s have een made in India after independence in57< 9 These include $indu 1arria e Act 57@@/ Immature Children=s *roperty Act57@B/ $indu Adoption and 1aintenance Act 57@B/ $indu Inheritance Act 57@B andSpecial 1arria e Act 57B09 It (ould e pertinent to mention the remar!a le chan esin ancient $indu 'a( in India throu h the $indu 1arria e Act-57@@:59 Inter marria e et(een persons of different castes is not prohi ited969 1ono amy (hich is essentially the voluntary union for life of one man (ith one(oman to the e"clusion of all others is no( enforced y le islation989#i amy has een made punisha le as an offence9


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The harassment is too much for her to ear9 1inati (ants to terminate the marria e9She oes to court and finds to her surprise that the $indu la( does not help her much9

In #an ladesh/ $indu marria es differ from caste to caste9 The $indu marria e ritualshave often no la(ful round9 So/ (hen the $indu (omen (ant to come out of ad

marria es they are in trou le ecause there is no marria e re istration system in the$indu society in #an ladesh9

Consider the case of Ka ali +ani Das/ 689 She (or!s as a day-la ourer at her villa e9$er nei h our/ San;oy 1adhu/ lured Ka ali (ith a marria e proposal and convincedher9 Then they ot married and e an their con;u al life at the house of Ka ali=s

parents9 #efore lon / Ka ali ecomes pre nant and San;oy is as!ed to ta!e Ka ali tohis o(n house9

Ka ali=s trou le e ins here9 It does ta!e lon for Ka ali to understand that she hasfallen into a trap9 San;oy delays to ta!e Ka ali to his house y ma!in false e"cusesand later disclaims his marria e (ith her9 Ka ali is no( too helpless to e"press her

pli ht9 Society does not (ant to elieve (hat she says9 She has no official document/as her marria e (as not re istered9 This is no e"ception9 It happens to thousands of $indu (omen in #an ladesh9 7

Accordin to $indu social customs/ $indu marria es are solemni ed merely throu hsome reli ious rituals9 There is no marria e re istration system for $indu people in#an ladesh9 It is surprisin that there is also no $indu marria e la( or $indumarria e re ister in the country9 So/ if any $indu (oman suffers in the hands of her in-la(s/ she does not et le al help9As per a 57Amendment578 ?/ Earned *roperty Affairs Act 5780/ Inheritance Act 576@ and $indu &omen=s+i hts to 'ands Act 578 9

#esides/ ne( la(s have een made in India after independence in 57< 9 Theseinclude $indu 1arria e Act 57@@/ Immature Children=s *roperty Act 57@B/ $induAdoption and 1aintenance Act 57@B/ $indu Inheritance Act 57@B and Special1arria e Act 57B09

7 : The $ail% Star, &une ' , ''50 i id/ Fune 0


18/69

Efforts to enact la(s to protect $indu (omen=s ri hts in #an ladesh are th(arted yconservatives9 There are $indu men (ho leave their first (ives and ta!e second ones/

ut the same people resist chan es for the etter9 55

Althou h the clauses %o 57 >5? and 57 >6? of the constitution carry clear provisions

that the state (ill ensure equal ri hts to all citi ens and remove social and economicdisparities/ no overnment came up (ith steps to reform $indu la(s for protectin$indu (omen=s ri hts9A(ami 'ea ue presidium mem er Sura;it Sen ,upta says/ J$indu la(s need to ereformed in our country9 #ut the free democratic environment that is needed for thereforms has not properly developed yet9J

$indu reli ionist and *rofessor of Culture and *ali Department of Dha!a 2niversityDr %iran;an Odhi!ari says/ J1arria e re istration is as necessary as the a ies= irthre istration9 It (ill e helpful if *arliament ma!es la(s in this re ard9J

*resident of 1etropolitan City 2niversal *u;a Committee S(apan Shaha says: JThereshould e la(s to uide $indu marria e/ includin ri hts to divorce ecause $indu(omen are sometimes forced to leave their hus ands= houses9 In such a case/ a(oman should e a le to o tain le al divorce and ta!e another hus and9J

Or anisin Secretary of #an ladesh 1ohila *arisad +a!hi Das *ur!aistha says/J1arria e re istration is a le al ri ht of (omen9 1arria e re istration needs to eo li atory to all people irrespective of reli ion/ cast and creed ecause marria ere istration does not disre ard reli ion9J

#ut leaders of $indu/ #uddhist/ Christian Oi!ya *arishad have different vie(s9 Theythin! marria e re istration is unnecessary for $indu people9 They thin! $indu oys

elieve in sin le marria e and the num er of those (ho o for poly amy is very fe(9The leaders say $indu (omen (ill e repressed more if marria e re istration anddivorce la(s are enacted9A $indu (oman social (or!er/ preferrin anonymity/ re rets/ J*eople in our countryonly thin! of the society9 They for et that marria e re istration is a ri ht of (omenJ9Advocate %ina ,os(ami also says/ JIn fact/ the $indu (omen have no ri ht in our country9 #ut (e have nothin to do9J

The overnment can proclaim an ordinance re ardin the re istration of the e"istin

$indu marria es (ith the support of the local overnment li!e irth re istration side y side sophisticate the 1uslim )amily 'a( Ordinance to e supportive to the other reli ious community9 It (ill e a remar!a le act and (ill put an end to theapplications of reli ious personal la(s9 I thin! it is hi h time to (ithdra( thereservation for the full implementation of the international instrument and it is alsonecessary to chan e the domestic la(s as a complement9 A unitary personal la(codification is very much necessary9

Christian( #uddhist( ribal etc.

55 The $ail% Star, &une ' , ''

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The Christian 1arria e Act/ 5 6 >Act %o9 . of 5 6?/ relates to solemni ation of marria e of persons (ho professin Christian reli ion9 1arria e +e istration ismandatory in Christian la(9 2 s @ of the act/ marria e can e solemni ed9 The act

provides that any marria e solemni ed other than in accordance (ith the act shall evoid9 1arria e under Christian la( is in the nature of contract and hence there should

e a free and voluntary consent et(een the parties9 &hen there is a minor/ as definedin the act/ the consent of father or uardian is necessary9 1arria e is not permitted

et(een the parties (ho are (ithin the prohi ited de rees of relationship u s 57 of theact9 There is no le al impediment for marria e et(een a Catholic and a *rotestant9#y marria e/ the hus and and (ife ecomes one person/ the le al e"istence of the(omen is incorporated and consolidated into that of the hus and9

There is no la( in our country re ardin marria e or marria e re istration of #uddhist and Tri al community9 There is (ide demand for re istration of marria eand divorce for all communities ali!e9 #ecause of non re istration (omen aresu ;ected to different humiliation9 There is a i tri al community in our country9 Toavoid ender discrimination and to esta lish fundamental ri hts and human ri hts andequality efore la(/ and to develop the community proper enactments and steps isvery necessary for this concern9

'.2) *ivorce%

*ivorce in $usli" +ersonal Law%

It is in the field of divorce that the most fla rant inequality et(een hus and and (ife

e"ists9 The hus and has the ri ht of unilateral divorce/ for no cause at all9 The (ifehas no such ri ht/ and (hen her hus and e"ercises his ri ht/ the (ife has no redress9

The (omen can have ;udicial separation on specified rounds throu h intervention of Court9 The 1uslim )amily 'a( Ordinance 57B5 thou h has already provided for ar iters/ the ar itration council cannot prevent the tala! y the hus and even if it ehi hly ar itrary and un;ust and can only delay the action in the hope that someconciliation (ill result9 The most common mode of divorce y man prevalent in#an ladesh is #edai Tala! >Irrevoca le Divorce? (hich ta!es effect mmediately(ithout the requirement of communication to the (ife for its validity9 The hus and

pronounces three times that he divorces his (ife and (ith the third pronouncement

the Tala! ecomes irrevoca le and ta!es effect on completion of a certain period9 Thismay also e done y (ritin on a piece of paper9

Once this ri ht (as e"ercised the parties could not re-marry (ithout the interventionof another marria e/ i9e9 unless the (ife (as married to a thrid person and thendivorced after consummation of the marria e9 56 &ith the introduction of the 1uslim)amily 'a( Ordinance 57B5/ the position has chan ed9 Section of the Ordinance

provides that Divorce iven y the hus and shall not ta!e effect until the hus and hasiven notice of the Divorce to the chairman of local administrative unit/ 2nion

*arishad and ninety days have elapsed after issuance of the said notice and (ithin thesaid period the hus and can revo!e the Divorce9 The hus and is also to ive a copy of

56 D9)91ulla/ *rinciples of 1ohammedan 'a(/ 5 th Ed 9

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the said notice to the (ife9 The Chairman on receipt of the notice (ould constituteAr itration Council for effectin a re-conciliation (hich/ if successful/ (ould render the divorce ineffective9 It is an offence not to notify the Chairman a out e"ercise of Divorce y the hus and9 The provisions of Sec9 of the Ordinance apply mutatismutandis in case of divorce e"ercised y the (ife and the divorce does not ta!e effect

unless notice thereof is iven to the Chairman and 70 days have elapsed thereafter9The hus and can dele ate his po(er of divorce to his unconditionally or (ithcondition and that is called Tala!-e-Ta(fee 9 &hen any condition is stipulated the(ife can divorce her hus and in the happenin of that condition9 %o( the divorced

parties can remarry (ithout the formality of the marria e (ith third party9 >Sec >B?/1uslim )amily 'a(s Ordinance/ 57B59?

1uslim marria e can e dissolved y a reement et(een the hus and and (ife and itmay ta!e the force of Khula or 1u arrat9 In Khula/ the marria e is dissolved y ana reement et(een the parties for a consideration paid/ or to e paid/ y the (ife tothe hus and/ it ein necessary condition that the desire to separate should come fromthe (ife9 &here desire to the separation is mutual/ it is said to e 1u arat9 A (ife isentitled to Khula as of ri ht or restoration of (hat she had received in considerationof marria e/ if she satisfies the conscience of the court that it (ill other(ise meanforcin her into a hateful union9 58 As stated a ove/ a 1uslim female does not have theri ht to divorce in the (ay a male has/ ut she could see! ;udicial divorce on rounds

permitted y 1uslim 'a(9 The Dissolution of 1uslim 1arria e Act/ 5787 >Act %o9.III of 5787 >.ide *a!istan Code 57BB/ .ol9I /*9 5B?9 (as passed in order toconsolidate and to clarify those rounds and also to add some ne( rounds 95< A (ifeis entitled to o tain a ;udicial divorce on ne lect or failure of the hus and to providemaintenance for t(o years9 #ut if the (ife refuses herself to her hus and (ithout anyla(ful e"cuse and deserts her hus and/ or other(ise (illfully fails to perform her marital duties/ she has no ri ht to claim maintenance and cannot o tain a decree for dissolution of marria e on the round of nonpayment of maintenance9 The fact thatthe (ife is a (oman of means (ould not e a defense to the claim of ;udicial divorcefor non-payment of maintenance9 A 1uslim (oman can o tain ;udicial divorce onany round reco ni ed y 1uslim 'a(9 Thus a (ife is entitled to ;udicial divorce if the hus and rin s false char e of adultery a ainst her unless the hus and onafideretracts the char e of adultery9 To constitute a valid retraction/ it must e made eforethe commencement of the hearin of the suit/ it must e onafide and there must ean admission y the hus and a out ma!in the char e and an unconditionalac!no(led ement y him that the char e is false9 Incompati ility of temperament as

results in a hateful union has een accepted as a round for see!in ;udicial divorce9#efore the Dissolution of 1uslim 1arria e Act 5787/ apostasy from Islam of either party operated as a complete and immediate dissolution of marria e9 After passin of the Act/ apostacy from Islam of the (ife does not dissolve the marria e >Sec9< of theAct? (hile apostacy of the hus and dissolves the marria e immediately 95@

+estrictions have een imposed on poly amy the hus and4s po(er to divorceremains virtually unrestricted9 &omen e"ercisin the dele ated po(er of divorcinare seen in o lique eye9 After dissolution of marria e the (omen are deprived of

58 Salma So han - 'e al Status of omen in #an ladesh/ #an ladesh Institute of 'a( and InternationalAffairs/ Dha!a 57 / *9 609

5< Act %L .II of 5787 >.ide *a!istan Code 57BB .ol9I./ p9 5B/ quoted in &omen=s 'e al Status in an ladesh y Sufia Ahmed and Fahanara Choudhury9 *98589?

5@ I id/ 1ulla9 5 th ED9*980@

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maintenance9 It is difficult for the (omen to o to court for reali in her maintenanceand do(er after she e"ercises the po(er of dele ated Tala!9 Traditional method of dissolvin / still dominant9 Divorce y adherin to traditional method that meansre istration y divorce (ith the Ka is/ is still continues9 %otice procedure to 2*Chairman under section is not al(ays popular9 Section B>6? of the 1uslim

1arria e and Divorce +e istration Act/ 57 ta!in t(o (ives at

the same time?/ or of rape/ sodomy or estiality > eastliness?9 So men and (omenhave different standards on self-same matter9 Another o ;ectiona le side of the actthat the hus and has a ri ht to et compensation from a person/ (ho had ille alrelation (ith his (ife >section 8


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maintenance includes food/ clothin and lod in 9 This definition of maintenance isnot e"haustive9 Te (ord includes other necessary e"penses for mental and physical(ell ein of a minor/ accordin to his status in society9 Educational e"penses(ereincluded in the definition in Ahmedullah .s9 1afi uddin Ahmad > 8? AI+ ,au 95B

In accordance (ith 1uslim 'a(/ the father is ound to maintain his dau hter untilshe is married 5 9 The fact that the mother has the custody of the dau hter till the latter attains pu erty does not relieve the father of his o li ation to maintain the dau hter9 5

If the father is poor/ ut the mother is in easy circumstances/ the mother has theo li ation to maintain the dau hter 579 #ut a father is not ound to maintain a dau hter (ho is capa le of ein maintained out of her o(n property9 A 1uslim mother isentitled to maintenance from her son if she is poor or if the son is financiallysolvent 960 A 1uslim hus and is ound to maintain his (ife so lon the (ife remainsfaithful to him and o eys his reasona le orders9 If the (ife refuses herself to her

hus and (ithout any la(ful e"cuse and deserts her hus and or other(ise (ilfullyfails to perform her marital o li ations she has no ri ht to claim maintenance fromthe hus and9 #ut if the (ife refuses to perform her marital o li ations on the failureof the hus and to pay the prompt do(er the hus and (ill not e a solved of hislia ility to maintain his (ife 659 A 1uslim (oman in the event of divorce is entitled tomaintenance y the hus and till the e"piry of the period of Iddat >e9i970 days/ and incase of a pre nant (ife till the end of the pre nancy?9 A 1uslim male maintains hisdau hter as est as his means permit and a hus and also maintains his (ife to the estof his a ility so lon the relationship remains ood/ ut if the relationship isestran ed/ the condition of the (ife is very difficult9 The social milieu andcum ersome court procedure made it difficult for the (ife to have maintenance

throu h Court9 1uslim )amily 'a(s Ordinance/ 57B5 tried to evolve a procedurethrou h (hich the (ife can easily have her remedy/ ut it has not produced anyapprecia le improvement9 The )amily Courts Ordinance/ 57 @/ ho(ever/ has een

promul ated to deal (ith divorce and related matters and provisions have een madeto dispose the cases of (ithin the shortest time possi le9 A 1uslim (ido( isessentially dependent on her son/ for/ enerally even her share in the property of her hus and remains in the hands of the son and ironically enou h/ her fate depends uponthe attitude of the dau hter-in-la(9 #ut if the (ido( has no son to depend upon therelations of the hus and her condition in most cases is misera le9

1uslims/ $indus/ Christians/ Tri al all are entitled to ta!e resort to )amily Court91uslim can claim under personal la(s9 $indu (omen claim maintenance under their

personal la(s9 $indu married (omen4s ri ht to maintenance has een esta lished ythe 1arried &omen4s Separate +esidence and 1aintenance Act/ 57


23/69

can claim her maintenance on certain rounds9 The Christian (omen can claimalimony >maintenance? under the Divorce Act/ 5 B79 In accordance (ith this act in a

pendin suit the (ife is allo(ed alimony from her hus and/ not e"ceedin 5 @ th of hus and4s avera e net income for three years ne"t proceedin the ate of the order9Apparently/ la( provides for maintenance ut in our social conte"t and le al re ime

its practice is not ood9

'.,) -uardianship and Custody of Children

Custody of children is one of the most ender iased la( in our le al system9 Theconcept is that (omen do not have uardian status in the eye of la(9 'a( of custodyand uardianship is a mi"ture of:>i? Sunni $anafi 'a(/ >ii?Colonial 'e islative Innovation >,uardianship and &ards Act/ 5 70?/

>iii? The (ide use of the po(ers of ;udicial discretion/ >iv? Social and cultural practice of ender stereotypin 9

$usli" Law

After divorce mother is entitled to custody of male till seven and female until pu erty/of course this a e line is fle"i le on round of (elfare doctrine49 A ove this a e linefather is the le al uardian9 +easons for (omen4s deprivation the la(s vie( (omenas/ less capa le financial provider/ incapa le social protector9 Also the traditional

elief that father is the le al uardin 9 #y not ivin a mother such inherent ri ht of custody over her o(n offsprin / she is treated as an in competent human ein 9

Christian Law

Thou h the Christian 'a( sounds perfect in protectin est interest of the child/ it isdiscriminatory to the mother9 The mother4s ri ht may e denied if it is deemed thatsuch custody mi ht conflict (ith the rin in up of a child (ith a faith other than thefather4s9

&indu Law

In $indu la( mother is not le al uardian9 ,uardians of the minors are: >i? father/ >ii? persons appointed y (ill y father/ >iii? person appointed y court and ,uardiansand &ards Act/ 5 709 Thus mother can e deprived of uardianship y father yappointin uardian y (ill9 It is a ender iased la( and contradictory to the la( of equality9 Controversially/ mother is the natural uardian of her ille itimate child9 Thus

puts e"tra urden on mother9

'. ) Inheritance :

$usli" Law

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1muslim la( of inheritance ased is ased on/ the rules relatin thereto laid do(n inthe Koran or in the traditions/and the customs and usa es prevailin amon st theAra s in so far as they have not een altered or a ro ated y the Koranic in;uctionsor traditions9 66

1uslim la( of inheritance has t(o distinct elements/ namely/ the customs of ancientAra ia and the rules laid do(n y the urand and prophet 1ohammad9 2nder thecustomary la( of pre-Islamic Ara ia the (omen in (hatever capacity (ere e"cludedfrom inheritance9 The uran made quite a considera le chan e of the position9Accordin to to the 1uslim 'a( there are three !inds of heirs >i? JsharersJ (ho areentitled to a prescri ed share of the inheritance/ >ii? JresiduariesJ (ho ta!e on

prescri ed share/ ut succeed to the residue left after satisfyin the claims of thesharers/ and >iii? Jdistant !indredsJ (ho are lood relations other than the sharers andresiduaries/ and succeed enerally in the a sence of sharers and residuaries9 In theclassification of the heirs/ it is important to note that thou h the son=s son and son=sdau hter have een made residuary and sharer respectively/ dau hter=s children have

een made distant !indreds9 68 The principles of succession amon the sharers andresiduaries are t(o-fold/ i9 The nearest in lood relationship e"cluded the remote oneand ii9 &hoever is related to the deceased throu h any person shall not inherit (hilethe person is livin 96< 2nder the 1uslim 'a(/ the (ife >or (ives ta!en to ether? etone-ei hth if there is child/ and one fourth if there e no child from the estate of her hus and/ thou h the hus and ets e"actly dou le9 1other ets from the estate of her sons one-si"th (hen there is child of her son or (hen there are t(o or more rothersor sisters or one rother and one sister of her son/ and one third (hen there is no childand not more than one rother or sister of her son9 On the other hand/ the father etsfrom the estate of his son one-si"th if there e child of his son and in the a sence of any child of his son/ he ets the entire residue after satisfyin other sharers claim/ andso on and so forth 96@ It is si nificant that the uran has provided that dau hter/mother and (ife (ould under all circumstances e entitled to some share in theinheritance and are not lia le to e"clusion from inheritance/ ut they are not treated at

par (ith their male counterparts/ i9e9 son/ father and hus and and to this e"tent rulesof inheritance are discriminatory9 &omen in fact (ere not iven parity in the matter of their shares and as a eneral rule/ the female is iven one-half the share of themale9 Salma So han (rites/ since Jthe Koran is to e li!ened to an Jamendin actJrather an e"haustive code999 in the chan ed society there is little reason to perpetuatethis distinction 96B

The case of sister=s inheritance is equally discriminatory9 Accordin to the rule of nearer in relationship e"cludin the remoter in relationship/ children of a pre-deceased son or dau hter (ould not inherit if a person died leavin another son9 Thisoften rendered the child or child of pre-deceased child destitute9 This inequity/ho(ever/ has een removed y 1uslim )amily 'a(s ordinance/ 57B5 /6 (hich

provides that the children of the predeceased child (ould inherit the share (hich the66 Khaled +ashid/ 1uslim 'a(/ Third Ed9 p9 80@968 &omen=s 'e al Status in #an ladesh y Sufia Ahmed and Fahanara Choudhyry/ pu lished in Situation of

&omen in an ladesh/ &omen for &omen 57 79 *967@9 6< I id/ D9)9 1ulla/ * 096@ I id9 *9 696B Salma So han - 'e al Status of &oman in #an ladesh9 *9859

6 An ordinance to ive effect to certain recommendations of the Commission on 1arria e and )amily 'a(s dealin (ithsuccession/ re istration of marria e/ poly amy/ divorce/ maintenance/ do(er/ ect9

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pre-deceased children (ould have inherited had he or she een alive9 #ut the (ido(of a predeceased son remains as helpless as efore as she does not inherit anythin of this ordinance9

1uslim la( ensures/ females and co nates are made competent to inherit/ As aeneral rule/ a female is iven one-half of the share of a male/ this is ecause of her

lesser responsi ilities and o li ations in comparision (ith males9 1uslim la( of inheritance ensures si" classes of females as Koranic shares9 #ut the questions on the

point that/ Gthe (ido( receives very in adequate treatment/ for her ma"imum share is5 and/ indeed a (ido(er t(ice a (ido(4s share/ and afather/ in certain circumstances/ t(ice that of a mother?9 6 In 1uslim la( the femalenever et residuary9 In la( / the ne(ly-created heirs are mostly female9 Somedeprivation and e"clusion from inheritance of (omen is not ;ustified9 Some of rulesof e"clusion suffer (ith certain defects and need modifations9 )or e"ample/ thee"clution on the asis of homicide/ in $anafi la( should e restricted to intentionalhomicide/ a child of fornication should e accepted as an heir in shia la(/ and thestatutes (hich e"cludes dau hters from inheritance and thus defeat a most cardinal

principle of 1uslim la(/ should e repeald9

Chirstian Law

Christian la( simply li eral for male female4s succession9 1arried &omen4s *ropertyAct/ 5 < and The Succession Act/ 576@ provides for Christian inheritance9 InChristian la( son and dau hter et equal from the deceased9

&indu Law

The main points of difference et(een Daya ha a and 1ita!sara are: >i? Daya ha adoes not reco nise irth-ri ht to property/ 1ita!sara does so >ii? Draya ha a holds/ri ht to inherit and order of succession are determined y principle of spiritual

enefit in 1ita!sara lood relationship is the determinant9 Spiritual enefit consistsin performin o sequial rites and offerin pindas >rice- alls?9 *lainly stated/ the ri htof a person to a deceased person=s property is determined y his capa ility of offerin

pinda for the enefit of the latter >iii? In Daya ha a/ mem ers of a ;oint family holdshares in quasi-severalty they can dispose of them even efore partition >iv? InDaya ha a/ even in an undivided family/ the (indo( ta!es the share of her hus anddyin childless in 1ita!sara/ she cannot do so9

In case of inheritance from father/ accordin to Daya ha a la(/ sons e"clude otherse"cept in case of non a ricultural property9 In case of non a ricultural property a (ife

ets a share equal to that of a son9 Sons or son of a predecessed son inherit from their

randfather the share (hich their father (ould have inherited if had een alive at the6

!haled +ashid/ p9 80B9

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time of their randfather=s death9 If neither sons nor (ife/ nor sons of a predecessedson is alive/ the dau hter or dau hters inherit (ith the priority to the maidendau hters9 #arren (ido(ed dau hter or dau hters havin no son or pro a ility tohave no son are e"cluded from inheritance to their father9 'oss of chastity is also a

round (hich can e"clude a (ife or dau hter from inheritance9 Only five classes of

(omen inherit accordin to Daya ha a School of $indu la(9 They are accordin to preference: (ife/ dau hter/ mother/ father=s mother/ father=s father=s mother9 #ut these(omen inherit only in life interest/ that is they are o(ners (ith limited ri hts and ontheir death the property (ould pass to the nearest male heir of the deceased maleo(ner and not to the heirs of the female heirs9 The (oman or (omen inheritin in lifeinterest can sell the property only for limited le al necessity9

Stridhana *roperty acquired y (omen or received as ifts are o(n property of (omen and are called stridhana property9 They can sell or ive a(ay this property as

per their desire9 Stridhana are devided into four classes accordin to the ori in of acquisition y (oman9 Succession to stridhana is also different ivin the dau hters a

etter ri ht of inheritance9

The order of succession to stridhana / dependin on its different !inds/ is as follo(s:>i?Sulka > ride=s price?: full rother/ mother/ father/ hus and >ii? Yautuka > ifts madeat the time of marria e?: un- etrothed dau hters/ etrothed dau hters/ marrieddau hters havin or are li!ely to have sons/ arren married dau hters and childless(ido(ed dau hters sharin equally sons/ dau hter=s sons/ son=s sons/ sons= sons=sons/ step-sons/ step-sons= sons/ step-sons= sons= sons9 In the a sence of any of thea ove/ the yautu!a of a (oman (ould devolve in the order: her hus and/ rothers/mother/ father >iii? Anvadheya > ifts or equests made y the father su sequent tomarria e?: order of succession is the same as in 3autu!a (ith the difference that >a?sons are prefera le to married dau hters > ? in case of a (oman/ dyin childless/ theorder of succession is rother/ mother/ father/ hus and >iv? Ayautuka > ifts or

equests from relations made efore or after marria e ifts and equests from father efore marria e?: Sons and maiden dau hters sharin equally married dau htershavin or are li!ely to have sons son=s sons dau hter=s sons arren marrieddau hters and childless (ido(ed dau hters9 In the a sence of all the a ove/ Ayautu!adevolves in the follo(in order: rother/ mother/ father/ hus and/ hus and=s youn er

rother/ hus and=s rother=s son/ sister=s son/ hus and=s sister=s son/ rother=s son/dau hter=s hus and/ hus and=s sapindas, sakulyas and samanodakas / father=s !insmen9

Persons deprived of inheritance %The follo(in are some of those (ho are notentitled to share in properties: impotent/ orn lind/ orn deaf/ lunatic/ idiot/ dum /havin deformed lim s/ apostate/ son of an apostate/ incura ly diseased/ leper/renouncer of (orldly life/ rene ade9 A $indu converted to other reli ion cannotinherit if the succession opens after conversion9 If a $indu (ido( remarrys she has to

ive up the property or ri ht she had received from the previous hus and9

Diso(nin or to disinherit an heir is permitted in $indu la(9 +eli ious endo(mentsare common in $indu la( and person appointed for its mana ement is called

shahayet 9 In the a sence of the heirs the property of the deceased male (ill vest in his preceptor/ pupil and fello(-student in this order 967 Only five classes of (omen inherit

accordin to Daya ha a School of $indu la(9 They are accordin to preference: (ife/67 Sources: Chandra #aner;i and Tapan Kumar Cha!ra orty

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dau hter/ mother/ father=s mother/ father=s father=s mother9 #ut these (omen inheritonly (hen livin / that is they are o(ners (ith limited ri hts and on their death the

property (ould pass to the nearest male heir of the deceased male o(ner and not tothe heirs of the female heirs9 The (oman or (omen inheritin (hen livin can sellthe property only for limited le al necessity9

+ractice in India% After the partition of India in 57< $indu la( (as chan ed inIndia9 In 57@@/ ne( 1arria e Act (as enacted in India (here y marria e system hastotally een chan ed and poly amy iven an end9 Divorce system (as alsointroduced9 Section 58>5? of $indu 1arria e Act 57@@ declares the ri ht of divorce to

oth the parties on some rounds9 In 57@B/ y the enactment of the The $induSuccession Act 57@B/ one la( (as enacted for all the $indus of India9 Sons anddau hters (ere iven equal share on the demise of their father or mother (hile (ifeor hus and (as due for one third share9 In 5775/ the Indian Succession Act 576@ (asamended9 The amendment eliminates this discrimination a ainst (omen and providesthat oth dau hters and sons (ill receive equal shares in the property of oth a femaleand male intestate9

%o one can trace the e"act time or year of the irth of $indu la(9 $o(ever/ it is elieved that $indu la( (as not created or promul ated in a day li!e other la(s9 It(as pro a ly ro(n throu h a process of evolution and custom until the (riters madeit a la(9 Deprivation from inheritance of (omen is nothin ut in;ustice or miscarria e of equality9 It should e considered y our le islature9

89B? Traffic!in

!n alarming increase in crimes against women has raised a seriousconcern at the state of law and order in the country (n fact# violenceagainst women is an outcome of the prevailing unequal relationshipbetween men and women in our society (n the persisting patriarchalsocietal structure# social customs# traditions# religious believes andinstitutional rules and regulations all are tended to marginalize theposition# rights and status of women and further more underminetheir security 'here is a direct relationship between the de$nition of law and order situation and security of women :; 'he widespreaddeterioration of law and order situation makes the situation morevulnerable for not only the working women but also for those whoremain inside of a house 3ven more disturbing is the tolerance bythe community of violence perpetrated by


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repression and no women aged between three and ?; are spared 'he incidents of rape in police custody become a new concern forwomen# which indicates that women are not safe in the custody of the law enforcing agencies

'he Bangladesh Bureau of Statistics in >@@: revealed that women"sdeath due to unnatural causes +e g suicide# murder# burn# poisoningetc , was almost three times higher than pregnancy relatedcauses :9

A#L/ 1

"#O$%&'% A(A#&S *OM%& #& +A&($A,%S-

Sl2o

Aear 1eported (ncidents of 1epression

(ncreased by+ ,

> >@@ >#9;D ** * * *9 >@@D :#>9> >?D EF: >@@E ?# : E :@

>@@F D#9>; > ;@? >@@@ @#?E9 ? >:

Source ) The Daily Janakantha +7haka, >; 8arch# >@@F# pp > G >>and > September# 9;;;# p E

A#L/ 2(2C(732'S H4 1!=3 (2 B!20L!73S5

Sl2o

Aear 1eported(ncidents

(ncreased by+ ,

> >@@ @@ ** * * *9 >@@D ?9? ? 9>: >@@E 9#99 :9: D>

>@@F ?#9?9 D 99

86 ,overnment of the *eople4s +epu lic of #an ladesh/ 1inistry of *lannin / *lanninCommission/ The First Five Year Plan !!"#$%%$ / comp9 p9 5B 9

6


29/69

? >@@@ :#?@D >; ?E

Source ) The Daily Janakantha # >; 8arch# >@@F# pp > G >> and >September# 9;;;# p E

ra c/in and $e islations:

Or anised crime syndicates control traffic!in in (omen (ithin and outside the country9 1ost of thecountries in South Asian re ion have national criminal la(s that prohi it traffic!in in persons (omen9#ut such la(s are not ein adequately enforced9

'onstitutional 0rovisions(t is an encouraging fact that all of three countries selected for the study haveconstitutional provisions# which directly or indirectly prohibit tra.cking in personirrespective of sex 4ollowing is the country wise discussion on constitutional

provisions# which prohibit tra.cking)

'he Constitution of Bangladesh ensures fundamental rights for every citizen =art((( of the Constitution guarantees fundamental rights and part (( of it providesfundamental principles of the state policy !nd all of these are based on theinternationally accepted instruments of the -nited 2ations e g -2 Charter#-niversal 7eclaration of 5uman 1ights +-751,

'he modern concept of humanism is that all human being irrespective of men#women and children have certain equal rights of life# liberty and pursuit of happiness 'hese rights are inherent# fundamental and inalienable 'hese areprotected by Constitutional guarantees 'hese rights can be suspended# abridged

or taken away only in accordance with the law 'he constitutionally guaranteed rights give


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liberty save in accordance with law J :D

!s regards


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0unish ent under the 0enal 'ode

'he penalty for kidnapping any person is imprisonment of either

description for a term# which may be extended to seven years andalso $ne 4or kidnapping a person under the age of ten years andto be engaged in slavery# the punishment is death sentence or lifeimprisonment or rigorous imprisonment for a term# which may beextended to > years and shall not be less than seven years ? (f thekidnapped person is a major one# the punishment is imprisonmentfor either description for a form may be extended up to ten yearsand $ne also D

'he punishment for inducing or forcing or seducing any womenunder the age of >F years to illicit intercourse with another person isimprisonment which may be extended to ten years and $ne also E

'he penalty for importing any woman under the age of 9> years intoBangladesh from any country to be forced or seduced to illicitintercourse with another person is imprisonment# which may beextended to >; years and $ne F

'he Code also penalises crime related to enslavement 'hepunishment for importing# exporting# removing# buying# selling ordispensing of any person as a slave +or accepts# receives or detainsagainst hisKher will, is imprisonment of either description for a termwhich may be extended up to seven years and also $ne @ (f anyonehabitually deals in slaves the punishment is life sentence orimprisonment of either description for term not exceeding >; yearsand also $ne ?;

4or selling or buying or hiring or disposing of any person# under theage of >F years with intent that such person shall +at any age, beemployed or used for the purpose of prostitution or illicit intercoursewith any person or for any unlawful and immoral purpose# thepunishment is imprisonment of either description for a term whichmay be extended to >; years and also $ne ?>

Special $a2s5aving provisions for penalising crime relating to violence againstwomen the =enal Code has been failing remarkably 'he Code


32/69

provides punishment of imprisonment ranging from only one year to> years for crime related to tra.cking

!s overall incidents of violation of human rights of women had beenincreasing dramatically at the early F;s# women"s and human rights

organisations were demanding special law with deterrent e&ect tostop violence against women and children

(n this circumstances# the then Chief 8artial Law !dministratorpromulgated the Cruelty to 6omen +7eterrent =unishment,Hrdinance# >@F: ?9 'he expedition to promulgate such a law was Itoprovide for deterrent punishment for cruelty to women J ?:

The Cruelty to Women (Deterrent Punishment) Ordinance!"#$

'he provision of the Hrdinance overrides provisions contained in anyother law ? 'his was the $rst legislation in Bangladesh# whichprovides penalty for crimes related to 57B8? 8 All E+ 5 9@B Amended y Act 8 of 57 (ith effect from 50 Fuly/ 57 9@

I id9@ )atiur &ahman v9 The State / 65 D'+ 708 5@ D'+ &* @@ 5@ D'+ &* 55@9@7 T. Ammal v9 S. *oundan / 6< Cr9 '9F9 500 67 Cr9 '9F9 7789

85


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'he law also provided the punishment with imprisonment for life orrigorous imprisonment for a term# which may extend to > yearsand $ne also for the crime related to kidnap or abduction of womanfor unlawful or immoral purposes D; 3arlier# the punishment forkidnapping any person was imprisonment of either description for aterm# which may extend to >; years and $ne also D> So the law of >@F: has increased the penalty

he Oppression on *o an and 'hild Specialprovision) Act 1556 78

'his law was enacted with a view to penalise heinous crimesrelating to oppression on women and children 6ith the enactmentof this law the Cruelty to 6omen +7eterrent =unishment, Hrdinance#>@F: was repealed D: Like the >@F: Hrdinance the >@@? !ct alsooverride other relevant laws D

'he !ct of >@@? further strengthened the penalty for tra.cking inwoman (t also provided life imprisonment and $ne for crime relatedto import# export# buy or sell or hire or otherwise transfer a womanto be engaged in prostitution or illicit intercourse or for immoralpurposes D? 'he punishment for obtaining possession of a woman forimporting# exporting# hiring or transferring otherwise to be engagedin prostitution or illicit intercourse or for immoral purposes wasrigorous imprisonment for > years and $ne DD 'his law provides lifesentence to rigorous imprisonment# which may not be less thanseven years and also $ne for o&ence related to kidnapping oradduction of a woman to be engaged in prostitution or to be usedfor immoral purposes% forced marriage% forced or deceitfulintercourse DE 4or crime relating to tra.cking in a child the law# forthe $rst time# provided the punishment of capital punishment or lifeimprisonment +Section >9,

Special 9eatures of the Oppression on *o en and 'hildrenSpecial 0rovision) Act 1556

-nlike the >@F: Hrdinance the >@@? !ct had some special features 'he new law provided provisions for trial of o&ences relating tooppression on women and children by special courts +Section >?,

B0 The Cruelty to &omen >Deterrent *unishment? Ordinance/ 57 8/ Section95?9BB I id9 , Section >6?9B I id9 , Section 79

86


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'here should be a special court in every district headquarter fortraining the crime covered by the >@@? !ct +Section >D, 'hegovernment could also established special courts in other places# if necessary# by 0azette noti$cation 'he court would be formed witha 7istrict and Session /udge 'his also included !dditional 7istrictand Session /udge

he Oppression on *o en and 'hildren 'ontrolAct 8 : 7;

'he law has been passed to facilitate enactment of necessary rulesfor controlling oppression on women and children strictly D@ 6ith theenactment of this new law the Hppression on 6omen and Children+Special =rovision, !ct# >@@? has been repealed E; Like special lawsof >@F: and >@@?# the new one of 9;;; also overrides otherrelevant laws E>

Special 9eatures of the ActThe Oppression on &omen and Children Control Act/ 6000 has een enacted (ith a vie( to control

oppression4 as a (hole on the vulnera le roup of our society/ (omen and children strictly9 The ne(le islation has some special features9

+enalty 'he newly enacted law provides punishment of death sentence orlife imprisonment or rigorous imprisonment which may be extendedup to 9; years but not less than >; years and also $ne for o&encerelated to tra.cking in women E9 'he punishment would be deathsentence or rigorous imprisonment for life and $ne if the victim is achild E:

'he punishment for abducting a woman or child to be engaged inprostitution or unlawful or immoral purposes is life imprisonment or

rigorous imprisonment up to > years and in addition $neE

1ape E? is the common consequence of tra.cking 'he !ct providesthe penalty for rapping a woman or child# a rigorous imprisonmentfor life and also $ne ED (f the victim dies following the rape the

B Act %o9 .III of 60009 *u lished in the #an ladesh ,a ette on 5< )e ruary/ 60009B7 *ream le of the 'a(9

0 The Oppression on &omen and Children Control Act/ 6000/ Section 8 ?Q98 Section B9 Child means any person not over 5< years of a e P6>!?Q9< Section 9

@ The *enal Code/ Section 8 @9B The Oppression on &omen and Children Control/ Act/ 6000/ Section 7>5?9

88


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punishment would be death sentence or rigorous imprisonment and$ne of taka not less than one lakh EE 'he same penalty would besentenced to each of the gang if any woman or child dies followinga gang rape EF

Special ribunalSection 9D of the !ct deals with the formation of special tribunals (tprovides that there would be the Hppression on 6omen andChildren Control 'ribunal in each district headquarter to try o&encesunder the !ct 'he 0overnment can establish more than onetribunal in a district# if necessary 'he tribunal would be constitutedwith one /udge in the rank of 7istrict and Session /udge 'hisincludes !dditional 7istrict and Session /udge also

'he tribunal would not accept any o&ence for trial without a writtenreport submitted by a police o.cer not bellow the rank of a Sub*(nspector +S(, or other authorised person designated by thegovernment Section 9E+>,M 'he tribunal may accept any complaintdirectly in exceptional cases Section 9E+>,M

rial 0rocedure

'he o&ences under the !ct are cognisable and non*bailable Hnlyfor exceptional circumstances# the tribunal may grant bail +Section>@,

'he o&ence under the !ct have to be investigated out by theconcerned police o.cer within D; days from receiving informationregarding happenings of the H&ence or being ordered by the8agistrate for the investigation 'he (nvestigation o.cer may begranted :; days more if sKhe could convince the 'ribunal that moretime is needed for fare justice +Section >F,

'he hearing of a case continues in the 'ribunal in every working dayuntil it comes to an end 'he trial of a case has to be completedwithin >F; days after being accepted for trial by the tribunal+Section 9;, 'he trial can be done in absence of the accusedperson+s, +Section 9>,

%6?9 Section 7>8?9

8


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lives 'he harsh reality is that women in South !sia in general and inthe (ndian Sub*continent in particular are less powerful# lesseducated# less well to do than men and more exploited at almostevery level of society

'he incidents of violence against women e g kidnapping# familyviolence# dowry# wife beating# sexual exploitation# tra.cking andthe like have been increasing gradually 7espite the constitutionalprovisions for equality# social justice and protection of women thesecontinue /urist observes) Isuch o&ences are not merely a problemof law enforcement but are also indicative of the disabilities andinequalities from which the women in our country continue tosu&erN J E@ 'his is the reality also for (ndia and 2epal

(n case of Bangladesh# the then Chief 8artial Law !dministrator in>@F: enacted the $rst special legislation# the Cruelty to 6omen+7eterrent =unishment, Hrdinance# >@F: 'his law was enacted inresponse to the widespread and gradually increasing oppression onwomen and children 'his was done with a view to remove thedrawback of the existing law F; enacted during the colonial rule 'he>@F: Hrdinance provides provisions for penalising o&ences relatedto kidnapping or abduction of women for unlawful or immoralpurposes +Section ,# tra.cking in women +Section ?,# rape+Sections E and F,# causing death for dowry +Section D, etc But ithad no provision for penalising o&ences relating to oppression onchildren# which was underlined as a major drawback of thelegislation

6ith the existence of the law the oppression on women and childrenhad been increasing alarmingly !s a result# the weakness of the>@F: Hrdinance appeared to the administration and judiciarywithout further delay 'he =arliament during the then 0overnmentof the Bangladesh 2ationalist =arty +B2=, once again enacted a newlegislation titled Nari-O-Shisu Nirjatan (Bishesh Bidhan) Ain, 1995 F>

'he Hppression on 6omen and Children +Special =rovision, !ct#>@@?M in >@@? 'his +new law, repealed the >@F: Hrdinance 'he>@@? !ct decreased the punishment for Itra.cking in womenJ fromIdeath or imprisonment for life or with rigorous imprisonment for aterm which may extend to fourteen years# and shall not be less thanseven years and shall also be liable to $neJ to Ilife imprisonmentand in addition to $ne also J -nlike the >@F: Hrdinance the >@@?!ct provides for > years rigorous imprisonment and $ne fordisposing or otherwise obtaining possession of a woman to importor export# let to hire to be engaged in prostitution or illicit

7 Fustice 'atifur +ahman/ inau ural address at the %ational Seminar on $uman +i hts R +ole of 'a(yersor anised y the #an ladesh #ar Council/ Co"4s #a ar/ #an ladesh 6B-6 %ovem er/ 57779

0 The *enal Code >Act %o9 '. of 5 B0?95 Act %o9 .III of 577@/ approved y the *resident of the *eople4s +epu lic of #an ladesh on 5B Fuly/ 577@ and

pu lished in the #an ladesh ,a ette >Additional Issue?/ 5 Fuly/ 577@9

8@


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intercourse or unlawful and immoral purposes Section F+9,M!ccordingly# it provides for the punishment of life imprisonment orrigorous imprisonment for >; years which may not be less thanseven years and in addition $ne for o&ences related to kidnappingor abduction of women +i, to be engaged in prostitution or otherunlawful or immoral purposes% +ii, to be married against her will%and +iii, to be forced or deceitful intercourse +Section @, 'he law# forthe $rst time provided punishment directly for tra.cking in children

'he penalty was death sentence or life imprisonment +Section >9,

'he new legislation having 9@ sections provided for provisions forspecial court# time limit for investigation# trial procedure# specialpowers for 8agistrates etc

But within a very short time# the loopholes of the new legislationwere +>@@? !ct, exposed to a great extent (t was observed thatstringency was more emphasised instead of normal implementationduring enactment of the law (t provided that the arrested person+accused, would not be granted bail F9 within @; days

Section >F of the !ct provided for the tenure of D; days forinvestigation of any complaint under the !ct (n specialcircumstances# the court could extend the time for :; days more

'here was no provision for punishment of the (nvestigation H.cer if sKhe failed to complete the investigation within the stipulated time+maximum @; days, (t was not clearly mentioned that what would

be the position of a case if the investigation were not completedtimely =ress reports indicate that the Inon*bailableJ provision of the!ct become a weapon for harassing Iinnocent public J 'he !ctprovided the penalty of death sentence for o&ences like acid burn+Section ?,# rape +Section D,# killing for dowry +Section >;,# childtra.cking +Section >9, etc 4or other o&ences# the penalty rangedfrom life imprisonment to rigorous imprisonment for > years 'heoppression on women and children has been increasing gradually6ith the enactment of Ispecial lawsJ for women and children thephenomena of $ling Ifalse caseJ has increased sharply 'he judge#lawyer and investigating authority +police, acknowledged it 'his is

going on for harassing others !s a result the rate of conviction isvery few under the !ct 'hough it also resulted from faultycomplaint and charge sheets# lack of evidences# absence orirregular presence of eyewitnesses# faulty trail procedure and otherthings 'hese inOuence high rate of acquittal

TA#'E 8

6 Section 6B/ Accused person (ould not e ranted ail (ithout holdin hearin of the complaint9 If the court isconvinced that there are reasona le rounds for conviction in the complaint ail (ould ot e ranted9

8B


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S'!'3832' H4 C!S3S 13L!'(20 'H '1!44(CP(20 (2 6H832 7-1(20>@@D 'H >@@@

Aear2o of Cases

2o of 'ra.cked6omen

1ecoveryof

'ra.cked6omen

'otal 2oof !ccused

2o of !ccused!rrested

>@@D :: EE > >:; DE>@@E D >;: F 9 DF>@@F F: >>9 F? 9>? >;:-p toSeptember>@@@

:> D 9F >; :

otal

811 33; 83; 753 8=8

Source ) Bangladesh Bar Council# u!an "i#hts and "$le $% &a'yers, ud

!fter enactment of the Hppression on 6omen and Children +Special=rovision, !ct# >@@? the number of cases $led under the !ct is:#D D in >@@D# ?#? : in >@@E only in $rst six months of >@@@ 'heincreasing rate from >@@D to >@@F is >;9 percent 6ithin one year#from >@@D to >@@E# the number of registered cases increased by D;percent 6ith the increasing of number of case# the rate of conviction decreased

(n >@@D# 9#E:: out of :#D D cases were charge sheeted +E? , 4inalreport was made for @;D cases +9? , Conviction was made only for9;E cases +>@ , and for >#;DF cases accused were acquitted

-nder the >@@? !ct the rate of conviction was >@ 9D percent in>@@D which decreased to > ;F percent in >@@E 'he rate of acquitted cases was F; E percent in >@@D 'his increased to F? @9percent in >@@E

'hough separate data for tra.cking cases are not available# but the$gure mentioned earlier indicate the


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acquittal of large number of cases were identi$ed as lack of eyewitness and evidences Since the punishment is stringent foro&ences related to oppression on women and children thecomplaint and accused come to a negotiation and proceedaccordingly !s the trial is time consuming the complaint becomefrustrated F

!ccording to a press report# F? 9#D>? cases have been $led under the>@@? !ct in last $ve years# >@@D to 9;;; in the district of Bograonly 'he interesting thing is that till 7ecember 9;;; only 9? caseshave been $nalised 7ue to faulty charge sheets# absence orirregular presence of complaint and eyewitnesses# the concernedcourt has so far discharged E>? cases =olice o.cials in Bograindicate that @? percent of the cases $led under the >@@? !ct areIfalseJ 'hese cases were $led in di&erent police stations andcourts 'he year*wise number of discharged cases in the district is)F@ out of > 9 in >@@D% >F out of 9DF in >@@E% >E9 out of ?;9 in>@@F% 9;E out of E@F in >@@@ and D: out of @;? in 9;;; 'hepercentage of discharged cases is D9 in >@@D% DF in >@@E% :in >@@F% 9? in >@@@ and D in 9;;; FD

'he San# ad # a vernacular daily from 7haka headlines that I8isuseof Hppression on 6omen and Children !ct in Bogra# 9F> cases in sixmonths# half are /uly to :; /une >@@F# 9F> cases have been registered with >>police stations in Bogra under the >@@? !ct !mong the case# >@>are for oppression on women and @; for oppression on children 'hereport discloses that most of the complaint of the said cases wereaccused in di&erent cases earlier 'hey $led new cases to harassthe eyewitnesses# even complaints of the previous cases Somelawyers reportedly encourage to $le Ifalse casesJ for theirIprofessional gainsJ 'he case of Bogra was not the only one 'hesame thing is going on in other districts

6ith this backdrop# the >@@? !ct earned enormous criticism withintwo years of its enactment 'he 0overnment initiated to enact anew law for penalising oppression on women and children back in>@@F 4inally# the new legislation titled Nari O Shishu NirjatanDa!an Ain, *** +the Hppression on 6omen and Children Control!ct# 9;;;, was enacted in 9;;; 'his routinely repealed the >@@?!ct 'he new law among others penalises o&ences related to $llingIfalse caseJ 'he punishment is maximum seven years rigorousimprisonment and $ne +Section >E,

'hough# to evaluate the e&ectiveness and weaknesses of the newlegislation more time would be needed but in the meantime somesections of the !ct have come under criticism

< I id9@ The +aily ugantor >Dha!a?/ 50 1arch/ 6005/ *9 79

B I id9 The Sang(ad, 6 Fuly/ 577 9

8


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'he law empowers the 'ribunal FF to order for keeping the victim#women and children in a place run under the authority of the0overnment for the purpose of the !ct or in other suitableorganisation or in the custody of a person# which is consideredsuitable by the 'ribunal 'his can be done if the 'ribunal has thereason to believe that the victim needs @, 'here are also provisionsfor recommending Idepartmental punishmentJ by the 'ribunal if theconcerned (nvestigation o.cer and doctor @; failed to perform theirduties +Section >F and :9,

In the case of #an ladesh/ it is proved that the strin ent la( is not the solution of the pro lem9 &hat is more important is that proper implementation of the la(/ (idelyac!no(led ed y the ;urist/ la(yer and human ri hts activists9

$o(ever/ the enactment of three le islation Gin favour of (omen and childrenH in last5 years has made the efficiency of the le islator questiona le9

'.0) *owry

1arria e ne otiations for #an ladeshi 1uslims involve various financial transactionsincludin primarily the reli iously sanctioned do(er > mahr ?9 Added to mahr / the

practice of do(ry or /outuk / demands made y the

hus and4s side to the ride4s side/have in the last fe( decades ecome a (idespread practice supported neither y statela( nor personal la(s/ ut apparently desi ned to stren then traditional patriarchalassumptions9 The do(ry system is not reco nised in the reli ion or the la( of the1uslim societies ut has spread into it9 Conversely/ Islamic la( provides do(er toenhance the status of (omen9 &hy should 1uslim (omen/ (ho are supposed to e

protected y do(er/ ecome victims of do(ryN &hile recent scholars have admittedthe fact that do(ry has spread to the 1uslim communities/ they have lar ely i noredthe position of 1uslim (omen (ithin this discourse9

The Oppression on &omen and Children Control Tri unal/ constituted under section 6B of the 6000 Act97 The +aily ttefa-, Dha!a/ 7 )e ruary/ 6000/ p9 9

70 +esponsi le for medical e"amination of the rape victim9

87


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Do(ry deaths are a common phenomenon in South Asia9 These deaths of (omen areusually caused y the same persons (ho are le ally and socially en;oined to protectthem/ i9e9 their hus and or in-la(s9

The Do(ry *rohi ition Act of 57 0 prohi its the ta!in or ivin of do(ry9 The

+epression A ainst &omen and Children *revention Act of 6000 Defines Do(ry as:1oney/ oods or other property iven or promised directly or indirectly y the ridesside to the room or his father/ mother or any other person from the ride rooms sideat the time of marria e as consideration or condition of the marria e and any suchmoney/ oods or property demanded from the ride or the ride=s side y the room/his father or mother or any person from the room=s side PSection 6>;?Q 9

The +epression of &omen and Children *revention Act of 6000 Section 55 States:

If any (oman=s hus and or hus and=s father/ mother/ uardian/ relation or any personactin for the hus and/ causes the death of that (oman for do(ry or attempts to causedeath or in;ures such (oman for do(ry or attempts to cause such in;ury the hus andor hus and=s father/ uardian/ relation or any person shall:

a9 )or causin death e punisha le y death penalty or for attempt to cause death ylife imprisonment and in oth cases shall e lia le to pay additional fine:

9 )or causin in;ury shall e punisha le y ri orous life imprisonment or for attemptto cause in;ury e punisha le y ri orous imprisonment up to the term of ma"imumfourteen years ut not less that five years and In oth cases e lia le to additionalfine9

2nder the Do(ry *rohi ition Act/ 57 09A reement for ivin or ta!in do(ry isvoid9 1a istrate court has ;urisdiction over the matter9 #ut in our social conte"t/ stillno( do(ry is very common in marria e in different form9 The purpose of this act is

not properly frustrated it creates at least pu lic a(areness9 &e have to practice to ofor le al help and try to remove do(ry from society9


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'. ) Restrictions on Child $arria e%

Child marria e is the sic!ness of our society 9 It is a very common phenomenon inour country92nder the 1uslim la(/ marria e is a contract et(een t(o individualsand to ma!e it valid the consent of oth partners in the presence of t(o (itnesses isessential9 &ith re ard to child marria e/ the la( states that should a irl e marriedoff y her parents durin infancy/ the marria e must e endorsed or dissolved y the

irl on her attainin pu erty9 In a id to restraint child marria e/ the Child 1arria e+estraint Act 5767 >amended in 57


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The Constitutions of #an ladesh India and %epal uarantee equality of status and opportunities to menand (omen9 1ore over the States are empo(ered y the Constitutional provisions for ma!in

provisions oth eneral and special for the (elfare of (omen9

The Constitutions of these three selected countries uarantee various fundamental ri hts irrespective of se"9 A (omen as a citi en of the country en;oys these ri hts9 The follo(in fundamental ri hts areavaila le for oth men and (omen9

Ri ht to / ualityGEquality efore la(H has a place in almost all the (ritten Constitutions that uarantee fundamentalri hts975 #oth the e"pressions have also een used y the 2D$+9 76 These terms have een adoptedfrom the En lish Constitution/ (hich implied a sence of special privile e in favour of any person9 It

provides that all citi en are equal efore the la( and thus implies Gequality of treatment in equalcircumstances/H 78 e9 9 application of the same la( ali!e and (ithout discrimination to all personssimilarly situated9 75? reads GThe StateShall not discriminate a ainst any citi en on rounds of only reli ion/ race/ caste/ se"/

place of irth or any of them/H The plain meanin of the prohi ition is that no person elon in to a particular reli ion/ cast/ se" etc9 shall e treated unfavoura ly y theState (hen compared (ith persons of any other reli ion or se" merely on the roundthat s he elon s to the particular reli ion or se"9 50 #ut discrimination (ill not eunconstitutional if there is any other round or consideration for the differentialtreatment in addition to those prohi ited y the Article9 50

1ight to 3qual =rotection of Law+

Women’s Legal Status in Domestic Law

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Transcript of Women’s Legal Status in Domestic Law