Sadia Afrin Kona :
According to Muslim law, all men have a supreme right to divorce at will. Under Talaaq-e-Tafwid, the husband can delegate the right to divorce the wife to the wife under column 18 of Kabin Nama. If he does not delegate then wife cannot exercise the right. Husband also can delegate the right to any third person which is absolute injustice as it keeps the woman at mercy of that person. Divorce at the instance of wife is recognized by the Muslim law, which is regulated by the Dissolution of Muslim Marriages Act 1939 but the procedure is too complicated. Woman can seek the alternative option to divorce using a lengthy process they can only do so on specific grounds. One of the grounds that the wife may take for the dissolution of marriage is ‘cruelty’ which may or may not be ‘physical’. The court held in the case of Hosneara Begum vs. Rezaul Karim 3 DLR 543 that compelling the wife coming from a well to do family not accustomed to do domestic works will tantamount to ‘cruelty’. When a husband intentionally does not give the notice to his wife or register it, the wife cannot register it without her husband’s consent. The wife cannot marry again and if she marries again then her new husband and she both of them charged for adultery as there is no evidence of divorce. Wife have to go to court again for divorce under Dissolution of Muslim Marriage Act 1939.
In a Hindu marriage, the concept of equality is missing and the wife considers her husband a semi-god to be worshipped and taken care of. The right to divorce is not recognized under the Hindu personal law. A Hindu woman can however apply for separate residence and maintenance from their husbands but even in these cases, their rights can be invalidated if the court finds the woman to be ‘unchaste’.
Divorce is also discriminatory and complicated for women under Christian personal law like men can divorce if they allege that their wife has committed adultery. Wives, on the other hand, must prove adultery and some other grounds, the grounds being like conversion to another religion, bigamy, rape, sodomy, bestiality, desertion for two years, or cruelty.
There are different types of religion in Bangladesh like Muslim, Hindu, Christian, Buddhist etc. they all have separate personal law and statutory law. But there is some discrimination also in case of enjoying some rights. In Bangladesh the number of Hindu people is in minority. A series of laws enduring women’s rights have proven largely in promoting their position, but as a Hindu women they deprive. There is no divorce law for Hindu women generally. However in other laws like Muslim and Christian, there are provisions for divorce her husband. But in Hindu law, the Hindu women can only want for separation but it does not have the effect like divorce. Here most of Hindu women follow Shastric Hindu law. Where women cannot divorce her husband whatever the situation is and husband can marry many times if he want. It is very cruel for Hindu women and it creates discrimination for Hindu women.
The Family Courts Ordinance 1985 was a significant step to establish the legal status of women in Bangladesh. Family Courts has exclusive jurisdiction for expeditious settlement and disposal of disputes in only suits relating to dissolution of marriage, restitution of conjugal rights, dower, maintenance, guardianship and custody of children. Soon after the court began functioning there was a controversy about whether the Family Courts would deal only with the family matters of Muslim community or of all communities.
In case of Krishnapada Talukder V Geetasree Talukder14 (1994) BLD 415 the question was whether a woman, Hindu by faith, could file a suit in a Family Court for maintenance against her husband. The honorable judge of the High Court Division held that as per the provisions of the present Ordinance, all the sections of the statute have been made available for the litigants who are Muslim by faith only. Later in case of Nirmal Kanti Das Vs Sreemati Biva Rani14 (1994) BLD (HCD) 413, the High Court Division expressed opposite view. Thus, any person professing any faith has a right to bring a suit for settlement and disposal of disputes relating to dissolution of marriage, restitution of conjugal rights, dower, maintenance, guardianship and custody of children. A Hindu wife is entitled to bring a suit for maintenance against her husband in a Family Court.
Hence in Pochon Rikssi Das Vs Khuku Rani Dasi and others 50 (1998) DLR (HCD) 47 the special bench of the High Court Division upheld that Family Courts Ordinance applies to all citizens irrespective of religion. The issue of jurisdiction of family court for the citizens of Bangladesh irrespective of religious belief was in ambiguity driven till the decision of this case in 1997.
There was no exclusive exclusion of any community and unless there is specific exclusion the law will have general application that is, it will apply to the citizens of all faiths. So it cannot be said that this is only for the Muslim. Accordingly, there is no confusion has furnished regarding the jurisdictions of the Family Courts. Henceforth, a Family Court can try suits under The Hindu Married Women’s Right to Separate Residence and Maintenance Act 1946. By implication matrimonial issues of Christian marriage if it coincides with the matters under section 5 will be decided by the family court. The proposition follows from section where it is said that after the enactment of Family Court Ordinance any others provisions inconsistent with provision of the Family Court ordinance will not have any effect.
The core argument of this article that there are anomalies and inconsistency regarding the marriage and divorce related legal provisions in Bangladesh that debars Bangladesh from bringing equality. Any recommendation that may be suggested in this backdrop can be the adoption of a single statute providing provisions for marriage and divorce that applies to all the citizens of Bangladesh. The law commission reviewed a similar proposals placed by The United Nations Educational, Scientific and Cultural Organization (UNESCO) jointly non- government organization named Women for Women. They prepared a report in 2005 titled ‘Marriage, inheritance and family laws in Bangladesh: towards a common family code’, the report endeavor to explore the possibility of framing out a uniform family code for all religious community of Bangladesh.
However the possibility is negated by law commission after conducting a vigorous study. The law commission placed the view that such an effort is ambitious for a country like Bangladesh, where the righteous beliefs of the citizens are significantly different from each other. Hence, the issues remained unaddressed for long on religious excuses putting a doubt upon the will of the legislators to bring equality in the field of personal law of the citizens. So the article concludes with the view that the said issues remained less addressed following the legislators lack of will on religious sensitivity. Hence Bangladesh has failed to incorporate equality enshrined in the international instruments as well as in the Constitution of Bangladesh.
According to Muslim law, all men have a supreme right to divorce at will. Under Talaaq-e-Tafwid, the husband can delegate the right to divorce the wife to the wife under column 18 of Kabin Nama. If he does not delegate then wife cannot exercise the right. Husband also can delegate the right to any third person which is absolute injustice as it keeps the woman at mercy of that person. Divorce at the instance of wife is recognized by the Muslim law, which is regulated by the Dissolution of Muslim Marriages Act 1939 but the procedure is too complicated. Woman can seek the alternative option to divorce using a lengthy process they can only do so on specific grounds. One of the grounds that the wife may take for the dissolution of marriage is ‘cruelty’ which may or may not be ‘physical’. The court held in the case of Hosneara Begum vs. Rezaul Karim 3 DLR 543 that compelling the wife coming from a well to do family not accustomed to do domestic works will tantamount to ‘cruelty’. When a husband intentionally does not give the notice to his wife or register it, the wife cannot register it without her husband’s consent. The wife cannot marry again and if she marries again then her new husband and she both of them charged for adultery as there is no evidence of divorce. Wife have to go to court again for divorce under Dissolution of Muslim Marriage Act 1939.
In a Hindu marriage, the concept of equality is missing and the wife considers her husband a semi-god to be worshipped and taken care of. The right to divorce is not recognized under the Hindu personal law. A Hindu woman can however apply for separate residence and maintenance from their husbands but even in these cases, their rights can be invalidated if the court finds the woman to be ‘unchaste’.
Divorce is also discriminatory and complicated for women under Christian personal law like men can divorce if they allege that their wife has committed adultery. Wives, on the other hand, must prove adultery and some other grounds, the grounds being like conversion to another religion, bigamy, rape, sodomy, bestiality, desertion for two years, or cruelty.
There are different types of religion in Bangladesh like Muslim, Hindu, Christian, Buddhist etc. they all have separate personal law and statutory law. But there is some discrimination also in case of enjoying some rights. In Bangladesh the number of Hindu people is in minority. A series of laws enduring women’s rights have proven largely in promoting their position, but as a Hindu women they deprive. There is no divorce law for Hindu women generally. However in other laws like Muslim and Christian, there are provisions for divorce her husband. But in Hindu law, the Hindu women can only want for separation but it does not have the effect like divorce. Here most of Hindu women follow Shastric Hindu law. Where women cannot divorce her husband whatever the situation is and husband can marry many times if he want. It is very cruel for Hindu women and it creates discrimination for Hindu women.
The Family Courts Ordinance 1985 was a significant step to establish the legal status of women in Bangladesh. Family Courts has exclusive jurisdiction for expeditious settlement and disposal of disputes in only suits relating to dissolution of marriage, restitution of conjugal rights, dower, maintenance, guardianship and custody of children. Soon after the court began functioning there was a controversy about whether the Family Courts would deal only with the family matters of Muslim community or of all communities.
In case of Krishnapada Talukder V Geetasree Talukder14 (1994) BLD 415 the question was whether a woman, Hindu by faith, could file a suit in a Family Court for maintenance against her husband. The honorable judge of the High Court Division held that as per the provisions of the present Ordinance, all the sections of the statute have been made available for the litigants who are Muslim by faith only. Later in case of Nirmal Kanti Das Vs Sreemati Biva Rani14 (1994) BLD (HCD) 413, the High Court Division expressed opposite view. Thus, any person professing any faith has a right to bring a suit for settlement and disposal of disputes relating to dissolution of marriage, restitution of conjugal rights, dower, maintenance, guardianship and custody of children. A Hindu wife is entitled to bring a suit for maintenance against her husband in a Family Court.
Hence in Pochon Rikssi Das Vs Khuku Rani Dasi and others 50 (1998) DLR (HCD) 47 the special bench of the High Court Division upheld that Family Courts Ordinance applies to all citizens irrespective of religion. The issue of jurisdiction of family court for the citizens of Bangladesh irrespective of religious belief was in ambiguity driven till the decision of this case in 1997.
There was no exclusive exclusion of any community and unless there is specific exclusion the law will have general application that is, it will apply to the citizens of all faiths. So it cannot be said that this is only for the Muslim. Accordingly, there is no confusion has furnished regarding the jurisdictions of the Family Courts. Henceforth, a Family Court can try suits under The Hindu Married Women’s Right to Separate Residence and Maintenance Act 1946. By implication matrimonial issues of Christian marriage if it coincides with the matters under section 5 will be decided by the family court. The proposition follows from section where it is said that after the enactment of Family Court Ordinance any others provisions inconsistent with provision of the Family Court ordinance will not have any effect.
The core argument of this article that there are anomalies and inconsistency regarding the marriage and divorce related legal provisions in Bangladesh that debars Bangladesh from bringing equality. Any recommendation that may be suggested in this backdrop can be the adoption of a single statute providing provisions for marriage and divorce that applies to all the citizens of Bangladesh. The law commission reviewed a similar proposals placed by The United Nations Educational, Scientific and Cultural Organization (UNESCO) jointly non- government organization named Women for Women. They prepared a report in 2005 titled ‘Marriage, inheritance and family laws in Bangladesh: towards a common family code’, the report endeavor to explore the possibility of framing out a uniform family code for all religious community of Bangladesh.
However the possibility is negated by law commission after conducting a vigorous study. The law commission placed the view that such an effort is ambitious for a country like Bangladesh, where the righteous beliefs of the citizens are significantly different from each other. Hence, the issues remained unaddressed for long on religious excuses putting a doubt upon the will of the legislators to bring equality in the field of personal law of the citizens. So the article concludes with the view that the said issues remained less addressed following the legislators lack of will on religious sensitivity. Hence Bangladesh has failed to incorporate equality enshrined in the international instruments as well as in the Constitution of Bangladesh.
(Sadia Afrin Kona is a Natioanal Fellow of Blast)
