Muslim personal law synonymous with the arabic muamalat, which means rules and regulations of social by lawjuris

Muslim Personal Law synonymous with the Arabic muamalat, which means rules and regulations of social life

INTRODUCTION WHAT IS MEANT BY MUSLIM PERSONAL LAW? Muslim Personal Law synonymous with the Arabic muamalat, which means rules and regulations of social life, or the rules that regulate the day to day life of a person. In other words, the rules that a person should follow in his/her personal and social life are collectively called 'muamalat' or social law. The branch of laws treated as 'personal law' in the general legal system is called 'social law' in Islamic Shariah. Thus Muslim law means the personal and social laws of Muslims. Law in Muslim jurisprudence is essentially the revealed will of Allah, a divinely ordained system that guides a Muslim state and control a Muslim community. The Muslim law is not applied by the courts of Bangladesh as a whole, but in some specific areas. The power of the courts to apply Muslim law is derived from and regulated partly by statutes, and mostly by legislation. In Bangladesh, the rules of Muslim law are applied to succession/inheritance, preemption (in purchase of land), land acquisition, marriage, divorce, maintenance of family etc. To have an idea about the Muslim jurisprudence one must analyze the purposes and operation of the Shariah laws i.e. the laws ordained by Allah that provides guidelines for the judicial and administrative system of the Muslim society. Muslim personal laws consist of laws relating to (a) marriage; (b) maintenance of families and guardianship; (c) inheritance of property; (d) WAQF

and charity; (e) pre-emptive rights in purchase of land.

OBJECTIVES OF THIS WORK: The whole work is based on women rights, womenâ&#x20AC;&#x2122;s desires, and womenâ&#x20AC;&#x2122;s obstacles and how much their rights are implemented in their own field & what are the developments of Muslim Personal laws & statutory laws relating to women rights.

So the topic of this research work Reformss of Mulsim Personal Laws Relating to Women Rights in Bangladesh: A Legal Analysisâ&#x20AC;&#x2122; enable to get a comprehensive idea over the development of Muslim personal laws regarding the women rights in Bangladesh.

METHODOLOGY OF THIS WORK: IMAM A research work may put up by following types of methodology. There have three types of methodology such as (i) historical study, (ii) empirical study or statistical or data base study & (iii) analytical study. Among them I particularly follow the analytical methodology.

SUMMERY OF EACH CHAPTER: This endeavor is completed by five chapters along with one introductory & one conclusion chapter. Introduction & conclusion are not included within five chapters. The first chapter of this work generally deals with the concept of women rights. To furnish this chapter I compile some definitions like women rights, human rights, feminism & gender sensitivity. I also provide some international instruments where womenâ&#x20AC;&#x2122;s rights are dealt. The second chapter is embodied with the Shariah Laws. As we know that our personal laws are dealt with Muslim Personal Laws. The sources of Muslim personal Laws are the Quaran, Hadith, Izma, Kiyas & some other customs. In this chapter the provisions of Shariah Laws are stated according to individual headings. The headings are (i) Women Rights in Marriage, (ii) Women Rights in Dower, (iii) Women Rights in Divorce, (iv) Women Rights in Guardianship, (v) Women Rights in Inheritance, (vi) Women Rights in other aspects. The next chapter is the third chapter of this work. This chapter is elaborated with two separate headings, one is women rights ensured by the Constitution of Bangladesh & another is women rights ensured by other statutory provisions. In the first phase of this chapter, the provisions stated in the Constitution of Bangladesh regarding the women rights are asserted. Thereafter, in the later phase some statutes those are enforcing in the field of women rights are described.

Subsequently, the forth chapter fulfills the main object of this work, where the legal analysis between Muslim personal law & statutory modifications relating to women rights in Bangladesh is shown. And finally, chapter five gives a critical analysis regarding the proposed women rights policy in Bangladesh.

CHAPTER-I CONCEPT OF WOMEN’S RIGHTS 1.1 MEANING OF WOMEN’S RIGHTS: Women’s Rights, rights that establish the same social, economic, and political status for women as for men. Women’s rights guarantee that women will not face discrimination on the basis of their sex. Until the second half of the 20th century, women in most societies were denied some of the legal and political rights accorded to men. Although women in much of the world have gained significant legal rights, many people believe that women still do not have complete political, economic, and social equality with men. Throughout much of the history of Western civilization, deep-seated cultural beliefs allowed women only limited roles in society. Many people believed that women’s natural roles were as mothers and wives. These people considered women to be better suited for childbearing and homemaking rather than for involvement in the public life of business or politics. Widespread belief that women were intellectually inferior to men led most societies to limit women’s education to learning domestic skills. Well-educated, upper-class men controlled most positions of employment and power in society. Until the 19th century, the denial of equal rights to women met with only occasional protest and drew little attention from most people. Because most women lacked the educational and economic resources that would enable them to challenge the prevailing social order, women generally accepted their inferior status as their only option. At this time, women shared these

disadvantages with the majority of working class men, as many social, economic, and political rights were restricted to the wealthy elite. In the late 18th century, in an attempt to remedy these inequalities among men, political theorists and philosophers asserted that all men were created equal and therefore were entitled to equal treatment under the law. Before the Industrial Revolution most people worked in farming or crafts-making, both of which took place in or near the home. Men and women usually divided the numerous tasks among themselves and their children. Industrialization led male workers to seek employment outside of the home in factories and other large—scale enterprises. The growing split between home and work reinforced the idea that women’s “rightful place” was in the home, while men belonged in the public world of employment and politics.

1.2 WOMEN RIGHTS AND HUMAN RIGHTS: Any right of human being is centered on liberty. The modern concept of liberty had its origin, development and practice in Britain. This we can see to have resulted mainly from the Magna Carta 1215, petition of Rights 1628, Bill of Rights 1628, Act of settlement 1701,Habeas Corpus Act 1679 Independence 1776 and American Bill of Rights 1791 and the French Declaration of Rights of Man 1789 in which liberty, equality and fraternity acquiesced later in human rights realm. Old age and disability have a substantially negative impact on the lives of women. Women face discrimination, intimidation, harassment, torture and physical abuse not simply from State organs but also from their own family and other private institutions. A major problem which has led to a negative impact on the position of women is the reluctance of intentional human rights laws to intervene in what is perceived as private (as opposed to public) matters. Attempts to combat discrimination and violence against women in the private domain have been met with substantial opposition. Intrusion into private and family life is not view as a desirable undertaking for legal establishments. Such an intrusion is seen as contrary to the social, cultural and religious values prevalent in many societies. Within the sanctity of the home, women in many parts of the world are regularly subjected to mental and physical violence or sexual abuse, such as incest, rape, dowery deaths, wife battering, genrtial mutilation, prostitution and forced sterilization. In these social structure women have to undergo a persistent cycle of rejection, subordination and shame. Disabled women, as the

Committee on Economic, Social and Cultural Rights has noted, suffer from double discrimination. It is encouraging to mote that the United Nations has undertaken positive steps to combat discrimination and violence against women in both the public and private domains. The United Nations Convention on the Elimination of All Forms of Discrimination against women, the primary focus of this chapter, prohibits discrimination in any other field. At the same time it is important to note that difficulties have arisen in enforcing the norm of non discrimination on the domestic sphere.

1.3 FEMINISM AND HUMAN RIGHTS: British suffragist and journalist Rebecca West famously said, "Feminism is the radical notion that women are people." In other words, feminism is a commitment to achieving the equality of the sexes. This radical notion is not exclusive to women: men, while benefiting from being the dominant sex, also have a stake in overcoming the restrictive roles that deprive them of full humanity. Though the media has maligned feminism as a drive for selfish fulfillment by female professionals, those who stand to gain the most are actually those who have the least. The demand for full equality for all women is profoundly radicalizing when it addresses the additional layers of discrimination women experience because of class, race, sexuality, disability, and age, and also the heightened impact on women and children of war, poverty and environmental degradation. Multi-issue feminism quickly develops into a critique of the whole social system. As Clara Fraser, the pioneering theorist and builder of socialist feminism, wrote, "The logic of feminism is to expand into generalized radicalism."1 The term â&#x20AC;&#x153;Humanâ&#x20AC;? includes both male & female and human rights talks for the rights of male & female. Feminists work to achieve & protect the rights of female. It is to be mentioned here that the female part of human beings are suppressed as well as oppressed for the long period even till to date they are continuing their battle for getting equal human rights in every sphere of social life.

Clara Fraser, "The Emancipation of Women," in Revolution, She Wrote

So, there is a relationship between feminism & human rights. ‘Human rights’ is a broad meaning than the feminism but the feminist not only activate for their own but also they claim equal human rights.

1.4 INTERNATIONAL STANDARD OF WOMEN RIGHTS: INTERNATIONAL INSTRUMENTS: UDHR INSTRUMENTS: Since UDHR several instrument of international concern on right of women have come into being. Those instruments are such as:

1. Convention on the Political Right of Women,1952: It embodies 11 Articles “…. right to take part in the government of his country directly or through freely chosen representatives” in light of UDHR (Art 21) has been made the basis of this Convention. Women shall be entitled to vote in all election in an equal footing with men. This is the first convention adopted by the United Nations specifically dealing with women.

2. Convention on the Nationality of Married Women, 1957: It contains 12 Articles. On the aspect of the right to nationality of married women each contracting state in view of Article 15 of UDHR agree that neither the celebration nor the dissolution of marriage between one of its nationals and an alien shall automatically affect the nationality of the wife.

3. Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 1962: It consists of 10 Articles. Taking Article 16(2) of UDHR it was enshrined in this convention that no marriage shall be legally entered into, without the full and free consent of both parties, such consent to be expressed by them in person after authority competent to solemnize the marriage and of witnesses as prescribed by law. State parties shall specify a minimum age for marriage. All marriages shall be registered.

4. Declaration on the Elimination of Discrimination against Women, 1967: It contains 11 Articles. The declaration represents a general pronouncement of the United Nations policy in regard to equality of rights of men and women and the elimination of discrimination based on sex.

5. Declaration on the Protection of Women and Children in Emergency and Armed Conflict,1974: It consists of 6 clauses. Women and the Children in the circumstances of emergency and armed conflict shall not be derived of shelter, food and medical aid or other traditional rights as per UDHR including ICCPR and ICESCR and Declaration of the Rights of Child or other instruments of international law.

6. Convention on the Elimination of All Forms of Discrimination against Women, 1979: It contains 30 Articles. Although it is not convention to with women right, it is the first universal instrument to address the issue of discrimination.

7. Declaration on the Elimination of Violence Against Women,1993: The Declaration includes a clear definition of violence as being physical, sexual and psychological violence occurring in the family or the community and perpetrated or condoned by the state.

8. The Convention on the Elimination of All Forms of Discrimination against Women: In 1993, although the Vienna Declaration and Programme of Action confirmed that the rights of women and the girl child are â&#x20AC;&#x2DC;inalienable, integral and indivisible part of human rights it did not elaborate on what constituted the human rights of women and the girl child. Detailed explanation of discrimination against women first appeared in the CEDAW, adopted by the UN General Assembly on l9December 1979. The Convention has 30 articles in all out of which Articles 1 to 16 relate to different aspects of equal status of women and the law, while Articles 17-30 deal with committee procedures including the formation of the committee and

reporting by it. It is a comprehensive document binding state parties with the legal duty of eliminating all forms of discrimination against women in civil, political, economic, social and cultural contexts. Article 1 of the Convention states: “…discrimination against women shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” The Convention not only provides principles of equality between men and women in all spheres of life but also encourages state parties to reform existing legislation, which are contrary to women’s human rights. Since the principal emphasis is on de facto rather than de jure equality between men and women, the ratification of the Convention requires state parties to promulgate principles for the effective implementation of the Convention in order to remove existing discriminatory treatment on the basis of gender.

Margaret Fuller , one of the greatest exponents of women’s cause had written: For human beings are not so constituted that they can live without expansion, we would have every arbitrary barrier thrown down. We would have every path laid open to women as freely as to men. What women needs is not as a woman to act or rule, but as a nature to grow, as an intellect to discuss, as a sole to live freely and unimpeded to unfold her power. It is recognized that all around the world women have a relatively lower status economically, politically and socially’. A Women’s status is reflected in the authority and power she holds within the family by, and/or prestige she commands from the other members of the family and the community. The United Nations has defined the status of women as the conjunction of position a women occupies as a worker, student, wife matter of the power and prestige attached to this position and of the rights and duties she is expected to exercise.

After the Second World War in 1948 the United Nations Organization adopted the ‘Universal Declaration of Human Rights” where the equality of rights of women and men was explicitly declared. The preamble to the said declaration affirms the principle of equality and the inadmissibility of declaration proclaiming that all human beings are born free with equal rights and equal dignity. In the context of human rights, women’s fundamental human rights are frequently violated for instance; violence against women is a common occurrence all over the world. It has no social, economic or racial barriers. Gender violence, i.e. violence against women is defined very broadly to include intent of perpetuation/promotion of hierarchical gender relations in all social structures; family, community, work place and society. Gender violence is an obstacle to the achievement of equality, development and peace. To remove the barrier the UN General Assembly adopted the “Declaration on the Elimination of violence against women, where the ‘violence against women’ means any act of gender based violence that results in, or is likely to result in, physical, sexual or psychological harm or sufferers to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life”. So violence could be anything beginning from verbal abuse to physical torture and even death.

RIGHTS

WOMEN

PRESERVED

UNDER

ILO

CONVENTIONS: 1.

Convention Concerning Employment of Women during the Night. (Convention No.-4)

Convention Concerning the Rights of Association and Combination of Agricultural

workers.(Convention No—11) on No.—29) 3.

Convention Concerning forced or compulsory lab our. (Convents

Convention Concerning the Employment of Women on Underground work in Mines

of all kinds. (Convention No.—45) 5.

Convention concerning freedom of Association and protection of the right to

organize. (Convention No.—87)

Convention Concerning night work of women employed in Industry. (Revised1948).

(Convention No.—89) 7.

Convention Concerning Discrimination respect of Employment and occupation.

(Convention No.—1 11) 8.

Convention Concerning equality of Treatment of nationals and non-nationals in social

security. (Convention No.—l 18) 9.

Convention Concerning Employment and conditions of Work and life of nursing

personnel. (Convention No.—149)

1. Convention Concerning Employment of Women during the Night: This convention consists 14 Articles, Article 3 is the major relating provision of this convention which provides that, Women without distinction of age shall not be employed during the night in any public or private industrial under-takings or in any branch thereof, other than an undertaking in which only members of the same family are employed.

2. Convention Concerning the Rights of Association and Combination of Agricultural workers: This convention consist 9 Articles and Article 1 is major relating provision of this convention which provide that, Each member of the International Lab our Origination which ratifies this convention undertakes to sure to all those engaged in agriculture the same rights of association and combination as to industrial workers, and to repeal any statutory or other provisions restricting such rights in the case of those engaged in agriculture.

3. Convention concerning forced or compulsory lab our: This convention consists 13 Articles and Article, 2 is major provision which provide that, (1) For the purpose of this convention the term forced or compulsory lab our shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.

4. Convention Concerning the Employment of Women on Underground work in Mines of all kinds: This convention consist 3 Articles and the Article 2 is major provision which provide that, No female, whatever her age, shall be employed on underground work in any mine.

5. Convention concerning freedom of Association and protection of the right to organize: There are 11 Articles in this provision and Article 5 and 11 are the major provision provided that, Workers and employers organizations shall have the right to established and join federations and confederations and any such origination, federation or confederation shall have the right to affiliate with international origination of workers and employers. Each Members of the International Lab our Originationâ&#x20AC;&#x2122;s for which this convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organize.

6. Convention concerning night work of women employed in Industry: This provision has 8 Articles and Article 3 is the major provision is provided that, Women without distinction of age shall not be employed during the night in any public or private industrial undertaking, or in any branch thereof, other than an undertaking in which only members of the same family are employed.

7. Convention Concerning Discrimination respect of Employment and occupation: There are 14 Articles and Article 2 in consist of this provision is provided that, Each member for which this convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect there of.

8. Convention concerning equality of Treatment of nationals and nonnationals in social security: This provision are 14 Article and Article 1 is provides that, Each Member may accept the obligations of this convention in respect of any of more of the following branches of social security for which it is has ineffective operation legislation covering its own nationals within its own territory:

(i) Medicinal care, (ii) Sickness benefit, (iii) Maternity benefit, (iv) Invalidity benefit, (v) oldage benefit, (vi) Survivors benefit, (vii) Employment injury, (viii) Unemployment benefit, (ix) Family benefit.

9. Convention Concerning Employment and conditions of Work and life of nursing personnel: There are 9 Articles in this provision and Article 1 and 2 is consist that, For the purpose of this convention, the term nursing personnel includes all categories of persons providing nursing care and nursing service. This convention applies to all nursing personnel, wherever they work..

1.5 GENDER SENSITIVITY: GENDER SENSITIVITY means taking women and men seriously: SEEING – women and men, what they actually do, rather than relying on assumptions. HEARING – women and men, their needs, priorities and perspectives. COUNTING – the value of women’s work. RESPECTING – women and men’s views and human rights. CARING – about women and men and what happen to them through development programs. Otherwise Gender Sensitivity is a frame of mind, a set of attitude and the way we approach whatever we do in our intimate relationships, in our work, in our everyday transactions with the outside world; - Not a war of the sexes - Not an anti-male - Both women and men are victims, although women are affected more than men. In practically all cultures women have a lower status than men.2

Eden A Wales, MD MPH

What is Gender? Gender is a dynamic concept that looks at the system formed by the interrelations between men and women in the context of society. Gender socially determined characteristics, models of behavior and roles that are taught to us through socialization. Gender role assigned to men and women based on their gender. Social Institutions – family, education, religion, media & state assigns characteristics to be associated with women and men, influence gender role socialization & served as mechanism that maintain gender roles.

Why is gender a development issue? In the areas of reproduction, production, and the community-women have often been adversely affected by the development process. There is a wide gap bet. Women’s high yet unrecognized, economic participation and their low political and social power. ‘’A very important point is that the woman’s share in labour was of much more vital importance to the maintenance of the household than the man’s work . . . even the food supply contributed by the women was far more important than the man’s share . . food collected by the women was the staple food of the natives . . . economically the family is entirely dependent upon women’s work.. Although the principle of equality of men and women were recognized in the UN Declaration of Human Rights, the majority of development planners and workers did not fully address women’s position in the development process. The ways of defining women’s position in development has changed through the years. 1992 – World Health Assembly 1994 – International Conference on Popn. & Devlpt ( ICPD ) 1995 – Fourth World Conference on Women in Beijing In 1994, the Phils responded to the call and were committed to uplift the status of women in all aspects of society especially in improving her health and well-being.

Distinction between Sex & Gender: Sex 1. Biological Dimension - Chromosomes - Hormones - Reproductive parts:

Gender 1. Socio-Cultural Dimension

(i) internal (ii) external - Physique 2. Relatively fixed from birth

3. Universal Born with Cannot be changed - Only women can give birth - Only men can produce sperm

2. Learned - Gender of rearing - Gender identity - Gender role 3. Variable across age and time 4. Variable across culture Socially constructed Changeable - Women can do traditionally male jobs - Men can take good care of children

CHAPTER-II WOMEN RIGHTS ENSURED BY ISLAM (SHARIAH LAW)

2.1 WOMEN’S RIGHTS WITHIN THE ISLAMIC CONTEXT: The approach to protection of women’s rights in Islam is best demonstrated by reference to the web of family relationships, which encompasses a range of reciprocal rights and obligations. Reciprocity is the key to understanding how the system is framed and, we are convinced, is also the key to formulating a robust framework for protecting women’s rights in Muslim society. From this perspective women’s rights should not be seen as stand-alone claims made by women, but as claims arising from a system of mutual rights and obligations guaranteed by both religion and law. Women’s rights in general are not unreciprocated burdens placed on society, or gratuitous favours done to them, but compensatory gestures arising from an equitable distribution of

claims and burdens within the society. An example which clearly highlights this principle of reciprocity is the husband-wife relationship, the underlying principles of which are described in the Qur’an in terms of mutual respect, security, and compassion, all demonstrative of Allah’s signs understood only by ‘those who reflect’3. Islamic law assigns rights and duties to both the husband and the wife: that is to say the rights of the wife are the husband’s duties, and her corresponding obligations are his rights in relation to her. The Qur’an says women have rights even as they have obligations according to what is equitable4. Among the obligations of the wife the Qur’an mentions devout obedience, and conscientious guarding of her chastity5. Her main obligation is to contribute to the success of the marriage, taking care of the comfort and wellbeing of the husband, avoiding conduct that may offend him. The husband is required to discharge the reciprocal obligations of loving and caring for his wife, treating her well and providing for her needs such as food, clothing and shelter. It should be noted that the mutual rights and obligations of the husband and wife in particular, and of the family members in general, are not mere private concerns of the individual marriage partners or individual members of the family. They are also the concern of society as a whole, because the protection of the family relationship, which in turn ensures the sustenance of human progeny, is identified by Muslim scholars as one of the fundamental goals of Islamic law. The progress, well-being and continuity of human society depend on how far the lights and duties relating to the family relationship are respected and protected. Consequently the mutual expectations of family members, in terms of rights and obligations, which pertain to a variety of issues such as lineal identity, maintenance, succession, affection and socialization of the young, security for the aged and maximization of effort to ensure the family’s continuity and well-being, are reinforced and complemented by the values and norms of the larger Muslim community. This in essence means that striving to protect the rights accorded to women, while they in turn discharge their duties, is one of the obligations imposed by God on all members of Muslim society. 3

(Qur’an, 30:21; 2:184) (Qur’an, 2:228) 5 (Qur’an, 2:228) 4

It is useful to understand this context of family relationships in the form of reciprocal and mutual rights and obligations, and the ennobling of these relationships in Islam through law, morality and a sense of social responsibility as we proceed to examine in detail the various practices which relate to the rights of women.6

2.2 WOMEN RIGHTS IN MARRIAGE: In Islam, marriage involves legal, social and religious matters. Marriage is a contract, which permits wedlock and procreation and gives legal recognition of the parenthood of children. According to a verdict given by Justice Mahmud , "Muslim marriage is not a sacrament; it is absolutely a civil contract"7. The essential terms and conditions of Muslim marriage are: proposal and acceptance; eligibility for the marriage contract; presence of two witnesses; utterance of the proposal and acceptance in the same sitting; and absence of impediments. Marriage has four purposes: (a) formal recognition of conjugal relationship of men and women and refraining them from adultery8; (b) expression of love and cordiality between men and women in a sacred way9; (c) maintenance and protection of a family10; and (d) formation of a family. According to the provisions of the holy QURAN11, a person can not marry his mother, daughter (and her offspring), sister, aunt, niece, foster-mother, foster-sister, and mother-in-law. A person also can not marry two sisters at a time. It may be mentioned that a Muslim male can marry a 'kitabia woman' (follower of ahl-e-kitab), but a Muslim woman cannot marry a nonMuslim. Shariah gives as a condition for the permission to marry more than one wife the ability and willingness to do justice between co-wives. The Qur’an says, ‘Marry women of your choice, two or three or four, but if you fear that you shall not be able to deal justly with them, then only one . . .’12

Ahmadu Bello, University, Zaria Abdul Karim vs Salema, 1886, 8, Allahabad, 149 8 Surah Nisa: 24 9 Surah Al-rum: 21 10 Surah Al-shura: 11 11 Surah Nisa: 26 12 Qur’an 4:3 7

Dealing justly with co-wives means not showing any preference for one over the other, sharing your time equally between them and providing for them equally. Non-provision of amenities or conjugal desertion is grounds for divorce because they constitute cruelty and illtreatment. The Prophet (SAW) is reported to have said that anybody who openly shows preferential treatment of a wife over another will be raised on the Day of Judgment with half of his body paralyzed. The Prophet used to say, after distributing his time and provisions among his wives, ‘God, this is what I can do over what I can control. As for that which I have no control over, I believe I will not be taken to task.’ The Jurists unanimously agree that the justice demanded by Sharia among co-wives is justice that is determinable and objective, rather than immeasurable things such as emotional feelings.

2.3 WOMEN RIGHTS IN DOWER: Dower (Mahr) a symbol of honour offered by a bridegroom to the bride. According to Islamic Shariah, marriage is a legal bondage and dower is the most important among its terms and conditions. Islam declared dower as the honorarium paid by the husband to his wife for making the conjugal relationship legal. It said in the Quran that, "pay mahr as a farz (obligatory) to your wives for the pleasure you get from them".13 The reasonable amount of dower is determined on the basis of financial solvency of the husband and the social status of the wife. The Prophet Muhammad (Sm) said, "The best amount of mahr is that which can be paid easily. According to the Hanafi school of thought, the minimum amount of mahr is ten dirham.14

2.4 WOMEN RIGHTS IN DIVORCE: The Arabic for divorce is talaq, which means repudiation. The morphological root of the word implies releasing a wife or freeing her from the bondage of marriage. According to Muslim Shariah, divorce can be implemented in any of the following ways: (a) by the husband at his will or by mutual consent of the wife and the husband without the intervention of a court; and (b) by a decree of the court on the lawsuit filed by the husband or wife. The 13 14

Qur’an 4:3 Al Hidaya, Baili – 92

divorce made by the husband at his will is called talaq; when it is effected by a mutual agreement on terms and conditions, it is called khula or mubarrat. Shariah requires that following divorce, for a certain number of months in which the wife is serving the iddah (waiting period), the husband must continue to maintain her in all respects as if no divorce had taken place. It is unlawful to ask her to leave the matrimonial home during that period. Allah says in the Qur’an, ‘O Prophet, when you do divorce women, divorce them at their prescribed periods . . . and fear Allah your Lord and turn them not out of their houses, nor shall they leave except in case they are guilty of some open lewdness . . . When they fulfill their term appointed, either take them back on equitable terms or part with them on equitable terms . . .’15 Allah also specifically instructs that the husbands ‘shall bear the cost of their feeding and clothing on equitable terms . . .’16 The Shariah recommends that beside the legal entitlement of the wife, she should be given a parting gift known as mutual. Allah says, ‘. . . bestow on them [divorced women] a suitable gift, the wealthy according to his means and the poor according to his means, a gift of a reasonable amount is due from those who wish to do the right thing.’17 All the Jurists agree that a divorced wife can sue and successfully recover withheld entitlements from the divorcing husband. Divorce in Islam is relatively easy and formally simple. Its revocability is also easy and formally simple. There are also various grounds and mechanisms to dissolve a marriage and there are various alternatives for redeeming it. Contemporary Muslim scholars concentrate on the Sunnah or orthodox method of divorce as the ideal moral solution for the Muslim community while they condemn the unapproved types (bridal) as deviations and unacceptable. It is also true that Islam recognizes the right of each party to seek and acquire the dissolution of an unsuccessful marriage.

Qur’an 65:1–2 Qur’an 2:233 17 Qur’an 2:236 16

The ease with which it can be done is also an avenue for frivolous people with questionable moral credentials to resort to misusing the right to divorce as a license for engaging in multiple marriages and changing women as frequently as they wish. The Prophet condemned this practice when he said, ‘God has cursed that man who divorces so often’. The State can always put restrictions on an individual’s right to exercise his freedom of choice when harm is occasioned on others.

Khul’ divorce at the instigation of women Among the forms of divorce, one of the frequently used methods by which women do terminate marriage is khul’. This is a Shariah process where, if the woman desires a separation for any reason and the husband will not pronounce a talaq, the wife offers to pay back some property, mostly the dowry that the husband paid her during marriage. Thereafter, she becomes separated from him, irrespective of his wishes. This form of divorce affords women an opportunity to terminate an unsatisfactory marriage without much difficulty. However, Shariah does not oblige the husband to provide any maintenance for the upkeep of the wife following this kind of divorce, but her rights to custody or to custody allowances are not affected. This method of divorce is widely used by Muslim women . In comparison, due to its lack of formality talaq is been the most prevalent method of bringing a marital relationship to its end. However, khul’ seems to be the most popular of all methods of divorce available to women, perhaps because the standard of proof is low.

Other grounds on which the Qur’an has provided relief to women are: (i) Li’an: This is where a husband accuses his wife of adultery but he has no witness except himself. This can take the form of denying responsibility for her pregnancy. (ii) Ila (vow of continence): This is where the husband for reasons best known to himself vows not to approach his wife for an unspecified period. The Qur’an gives him up to a maximum of four months to go back to her or consider the marriage terminated.

(iii) Zihar (injurious dissimulation): This is a customary Arab practice where, to humiliate the wife, the husband contrives to avoid her by comparing her to his mother. The Shariah requires that whoever after doing this wishes to go back to his wife must expiate by either freeing a slave, or fasting for two consecutive months or feeding 60 needy people.18 His delay in doing the expiation entitles the wife to divorce. (iv) Forceful denial of post-divorce custody: Shariah categorically gives custody of minor children to the mother: girls until they marry and boys until they reach the age of puberty and discretion. This ruling is based on the case that was brought before Caliph Abubakar by a grandmother challenging the attempt of Umar to take his child away from her. Caliph Abubakar decided in her favour adding that, â&#x20AC;&#x2DC;The hugs and kisses of that old woman to the child are more important and valuable than whatever material wealth you can offer the childâ&#x20AC;&#x2122;. This provision of Shariah, besides granting rights to the wife, has the additional benefit of placing restraint on indiscriminate divorce. In effecting a divorce the husband has to consider the unpleasant prospect of losing custody of the children. Muslim Jurists unanimously agree that custody of young children is rightly in the hands of the mother and her relatives. In the order of priority outlined in Shariah, the father is fifth in line of eligibility to custody. So far, from all the known cases, the courts have unhesitatingly given custody to the mothers.

(v) The custody of children after divorce: Shariah makes it the duty of the father to provide maintenance and education for his children. In fact Sharia insists that the father must pay for a nanny or domestic help to cater for his children where such services are needed. According to the Law, the divorced mother is entitled to be paid specifically for suckling the child of a husband who divorces her. 18

Qurâ&#x20AC;&#x2122;an 2:236

Allah says: ‘. . . and if they [divorced wives] suckle your offspring, give them their recompense. And take mutual counsel together, according to what is just and reasonable. And if you find yourselves in difficulties, let another woman suckle the child on the father’s behalf.’19 Allah also says, ‘The mothers shall give suck to their offspring for two whole years, for him who desires to complete the term. But he shall bear the cost of feeding and closing on equitable terms, no soul shall have a burden laid on it greater than it can bear. No mother shall be treated unfairly on account of her child nor father on account of his child. An heir shall be chargeable in the same way. If they both decide on weaning by mutual consent, and after due consultation, there is no blame on them. If you decide on a foster-mother for your offspring, there is no blame on you, provided you pay the foster-mother what you offered on equitable terms. But fear Allah and know that Allah sees well what you do’.20

2.5 WOMEN’S RIGHTS IN MAINTENANCE: Maintenance includes food, clothing and lodging. It also includes the expenses required for ensuring the mental and physical well being of a minor that suits his/her social status. Educational expenses are also included in maintenance. The following five classes of persons have the right to claim maintenance: infants and unmarried daughters, grown up children, parents, grand-parents, and wife. It is against the basic principle of Islam to marry knowing full well that one cannot maintain a wife. The directive of the Prophet is to the effect that ‘O young people! Whoever has the wherewithal should get married. Those who do not should fast because fasting suppresses sexual urge.’ Maintenance under Islamic law includes not only basic necessities such as accommodation, food and clothing, but also the provision of all items required by a wife to live decently. The

19 20

Qur’an 65:6 Qur’an 2:233

Qur’an says, ‘Let those who find not the wherewithal for marriage keep themselves chaste, until God gives them means out of His grace.’21 On the obligations of maintaining a wife the Qur’an says, ‘Let the women live in the same style as you live, according to your means. Annoy them not so as to restrict them . . . Let the man of means spend according to his means . . .’22 Qur’an says “Men are the protectors and maintainers of women because Allah has given the one more (strength) than the other and because they support them from their means. Therefore the righteous women are devoutly obedient and guard in (the husband's) absence what Allah would have them guard. As to those women on whose part ye fear disloyalty and ill-conduct admonish them (first) (next) refuse to share their beds (and last) beat them (lightly); but if they return to obedience seek not against them means (of annoyance): for Allah is Most High Great (above you all).”23

2.6 WOMEN RIGHTS IN INHERITANCE: Under Shariah, no one can deprive a woman of her share in the estate left by her parents or close relatives. ‘There is a share for men and a share for women from what is left by a parent and those nearest related, whether the property be small or large – a legal share.’24 Quaran Says: “Allah (thus) directs you as regards your children's (inheritance): to the male a portion equal to that of two females: if only daughters two or more their share is two-thirds of the inheritance; if only one her share is a half. For parents a sixth share of the inheritance to each if the deceased left children; if no children and the parents are the (only) heirs the mother has a third; if the deceased left brothers (or sisters) the mother has a sixth. (The distribution in all cases is) after the payment of legacies and debts. Ye know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah and Allah is All-Knowing All-Wise.”25

Qur’an 24:33 Qur’an 2:233 23 Surah Nisa: Ruku 6, Ayah 34 24 Qur’an 4:7 25 Surah Nisa: Ruku 2, Ayah 11 22

“In what your wives leave your share is a half if they leave no child; but if they leave a child ye get a fourth; after payment of legacies and debts. In what ye leave their share is a fourth if ye leave no child; but if ye leave a child they get an eighth; after payment of legacies and debts. If the man or woman whose inheritance is in question has left neither ascendants nor descendants but has left a brother or a sister each one of the two gets a sixth; but if more than two they share in a third; after payment of legacies and debts; so that no loss is caused (to anyone). Thus is it ordained by Allah and Allah is All-Knowing Most Forbearing.”26

2.7 WOMEN RIGHTS IN OTHER ASPECTS: (i) Early and forced marriage: It is true that some parents force their children to marry husbands of their parents’ choice. This practice still persists in some parts of Northern Nigeria. Parents who do this rely on the jurisprudential ruling of Imam Malik to the effect that a father may compel his previously unmarried daughter to marry a man he chooses for her. The right of compulsion, where it exists, can only be exercised by the father, who is also qualified to be a guardian on the assumption that his care and compassion for his daughter are ordinarily taken for granted. This fatherly power is known as ijbar. Public morality and the individual’s own integrity take priority over personal freedom when they come into conflict.

(ii) Abuse and violence against the girl-child: First, Shariah rejects any form of injustice. Even the practice of showing preference among co-wives is highly condemned. It is unlawful under Sharia to mistreat and abuse one’s children, who are seen not only as gifts but also as a trust from Allah. Any kind of abuse is prohibited. Beating one’s child lightly as a means of correction once he or she has reached the age of discernment may be tolerated provided there is no physical harm to the child. The only instance reported from the Prophet (SAW) in which he sanctioned beating children

Surah Nisa: Ruku 2, Ayah 12

lightly for the purposes of correction is where he said ‘Command your children to pray at the age of seven and beat them (to compel them to do it) at the age of ten.’

(iii) Equal Preference for the child: The Prophet Muhammed (SAW) not only praised the parents who successfully raise a daughter to puberty, but categorically stated that ‘any person who raised and catered for three girls will be admitted to Paradise’. A lady asked ‘what about two?’ He replied ‘even two’. Another lady asked ‘what about one?’ He replied ‘even one.’ The Qur’an condemns the behaviour of those parents who show preference for a male child over a female child. It also prohibits the ugly and barbaric practice of the Jahiliyya Arabs of burying alive a female child in the name of saving the family honour. The Qur’an says, ‘When news is brought to one of them of the birth of a female child, his face darkens, and he is filled with inward grief with shame does he hide himself from his people, because of the bad news he has had. Shall he retain it on sufferance and contempt or bury it in the dust? Ah! What an evil choice they decide on?’27 The Prophet (SAW) said ‘Do justice among your children’ by not preferring one over the other. He also said ‘fear Allah and treat your children with equality and justice.’ A Muslim is required to believe in line with the Quranic provision that children are gifts from Allah and it is He who decides whether to give one a male or a female child. The Qur’an states: ‘To Allah belongs the kingdom of the heavens and the earth. He creates what He wills, He bestows female (offspring) upon whom He wills and bestows male (offspring) upon whom He wills. Or He bestows both males and females and He renders barren whom He wills. Verily He is the All-knower and He is able to do all things.’28

(iv) Equality in feeding boys and girls: In Islam, more value is attached to the upbringing and care of daughters to the extent that the Prophet (SAW) expressly guaranteed paradise for successfully bringing up daughters.

27 28

Qur’an 16:58–9 Qur’an 42: 49–50

(v) Exploitation and abuse of wives: Shariah prohibits all kinds of abuse and exploitation. The Prophet (SAW) is reported to have said ‘You should not harm anybody, nor should you be harmed.’ ‘You are not a true believer until you love for your brother (Muslim) what you love for yourself.’ Islam not only condemns maltreatment of wives but goes further to require the husband to be loving and compassionate to his wife, to the extent that the Prophet (SAW) says ‘the best among you in the sight of Allah is the best to his family.’ ‘. . . and live with them [your wives] honorably. If you dislike them it may be that you dislike a thing and Allah brings through it a great deal of good.’29 On the issue of abuse arising from polygyny, Shariah has laid down conditions and specific rules to ensure justice is done to all wives. These conditions include the ability to provide for wives adequately and to treat them equally. Shariah gives as a condition for the permission to marry more than one wife the ability and willingness to do justice between co-wives. The Qur’an says, ‘Marry women of your choice, two or three or four, but if you fear that you shall not be able to deal justly with them, then only one . . .’ 30

29 30

Qur’an 4:19 Qur’an 4:3

The Prophet used to say, after distributing his time and provisions among his wives, ‘Allah, this is what can do over what I can control. As for that which I have no control over, believe will not be taken to task.’ The Jurists unanimously agree that the justice demanded by Shariah among co-wives is justice that is determinable and objective, rather than immeasurable things such as emotional feelings.

(vi) Heavy and discounted domestic chores: Under Shariah, both the husband and the wife have rights and duties. It is interesting to note that to most Jurists domestic chores are not part of the duties or obligations of a wife of an Islamic marriage. It is, however, recommended that she carries out her duties and tasks of her own volition in the interests of good companionship, and that the husband reciprocates by showing appreciation as a division of labour between them. It is also highly recommended in line with the practice of the Prophet (SAW) that husbands should assist their wives with domestic work. This corresponds with the report that the Prophet (SAW) used to assist his wives with their routine domestic tasks. Muslim Jurists are of the view that where the husband can afford it, he should supply domestic help for the wife. This is included as one of the rights of the wife in an ideal Islamic marriage.

(vii) Women’s control over wealth/ Women’s control over income: On marriage a woman’s personality does not dissolve into that of the husband. She retains her personality and identity and is deemed to own privately and exclusively whatever she acquired before marriage or after it. The holy Qur’an says for men there is reward for what they have earned; (likewise) for women there is reward for what they have earned. 31 The husband may participate in the use or control of her wealth only where the wife gives her express consent.

(viii) Preventing wives seeking career employment: Shariah allows a woman to earn a living by any legitimate means so long as it does not compromise her honour and moral integrity. Where the work she is doing compromises the moral values of the family or society, she must be advised to change to more acceptable employment. According to Shariah, economic independence is sought to safeguard honour and moral integrity. 31

4:32

(ix) Economic rights: This practice is completely against the teachings of Shariah, which emphasizes that Muslims must not devour each other’s property except based on mutual consent and for beneficial reasons. ‘Oh you who believe! Eat up not your property among yourselves unjustly except it be a trade among you by mutual consent.’32

(x) The exclusion of women from decision-making: The principle of consultation in the Shariah permeates all segments of Muslim society for private, family and community matters. Referring to the Muslim community the Qur’an describes the members as those ‘. . . who conduct their affairs by mutual consultation . . .’.33 The Qur’an specifically enjoins consultation and consensus in matters relating to family, particularly the upbringing of children. For example the Qur’an directs that all matters relating to the weaning of the child be decided mutually between the parents ‘. . . if they both decide on weaning by mutual consent and after due consultation there is no sin on them’.34 In another verse talking about decision-making within the family the Qur’an says ‘let each one of you accept the advice of the other in a just way’.35 Consultation is one of the qualities of the Prophet (SAW) which he exhibited in his dealings with his family, friends and the community at large.

(xi) The exclusion of women from politics: Women’s participation in politics is not against the principles of the Shariah. The only restrictions discussed and agreed by the majority of Jurists relate to the contest for and occupying the office of the chief-executive of the state by a woman. They contend that a woman can vie for any office except that of Head of State.

Qur’an 4:29 Qur’an 4:29 34 2:233 35 65:6 33

(xii) Women’s access to courts/The unequal participation of women in ADR: In the administration of justice, Islam does not impose any restriction on women regarding their movement or participation. Shariah allows equal access to the Courts of Law or other justice forums. Muslim women have enjoyed this right from time immemorial. Qur’anic precept protects this right by documenting the case of Khaulat bint Thaalaba, a woman complainant to whom the Qur’an granted full hearing and prescribed an immediate remedy. 36

CHAPTER-IV

STATUTORY PROVISIONS ON WOMEN RIGHTS IN BANGLADESH A. WOMEN RIGHTS ENSURED BY THE CONSTITUTION OF BANGLADESH: Constitutional status of women: Women have some rights recognized by the Bangladesh constitution.

(i) Participation of women in national Life: Article: 10 Steps shall be taken to ensure participation of women in all sphere of national Life.

(ii) Social security to widows: Article: 15(d): Under the heading of Fundamental Principles of State Policy, states that where the state accepts a fundamental responsibility towards raising the standard of living of the people, it specifically undertakes responsibility for providing social security to inter alia, widows. 36

58:1

(iii) Equal opportunity for all citizens: Article 19(1). Sub-section 2 Equal opportunity for all citizens was ensured by Article 19(1). Sub-section 2 of the same Article required the state to take effective measures to remove socio-economic discrimination.

(iv) Free and compulsory Education: Article: 17 The State shall adopt effective measures for the purpose of: (a) Establishing a uniform, mass-oriented and universal system of education and extending free and compulsory education to all children to such stage as may be determined by law; (b) Relating education to the needs of society and producing properly trained and motivated citizenâ&#x20AC;&#x2122;s to serve those needs; (c) Removing illiteracy within such time as may be determined by law.

(v) Public health and morality: Article: 18 (1) The State shall regard the raising of the level of nutrition and the improvement of public health as among its primary duties, and in particular shall adopt effective measures to prevent the consumption, except for medical purposes or for such other purposes as may be prescribed by law, of alcoholic and other intoxicating drinks and of drugs which are injurious to health. (2) The State shall adopt effective measures to prevent prostitution and gambling. The Third section of the Bangladesh Constitution contained provisions for fundamental rights. Rights and opportunities for women (or rights relevant to them) are the following: Article 27: equality of all citizens before law and equal protection under law. Article 28(1): no discrimination on grounds only of religion, race, caste, sex or place of birth. Article 28(2): equal opportunity for men and women in all spheres of state and public live.

Article 28(3): no discrimination on grounds only of religion race, caste, sex or place of birth in providing access to any place of public entertainment or resort, or admission to any educational institution. Article 29(1): equal opportunity for all citizens in respect of employment or office in the service of the Republic. Article 65(3): Women are free to contest election from any constituency. But originally 15 seats were reserved for women; the number has been raised to 30 and thereafter 45 in 2004.

(vi) Equality before law: Article: 27 All citizens are equal before law and are entitled to equal protection of law.

(vii) Discrimination on grounds of religion, etc. Article: 28 (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. (2) Women shall have equal rights with men in all spheres of the State and of public life. (3) No citizen shall on grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution. (4) Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of Citizens.

(viii) Inequality of opportunity in public employment: Article: 29 (1) There shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic.

(2) No citizen shall, on grounds only of religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect of, any employment or office in the service of the Republic. (3) Nothing in this article shall prevent the State from: (a) Making special provision in favour of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic. (b) Giving effect to any law which makes provision for reserving appointments relating to any religious or denominational institution to persons of that religion or denomination. (c) Reserving for members of one sex any class of employment or office on the ground that it is considered by its nature to be unsuited to members of the opposite sex.

Article 27: Equality before law All citizens are equal before law and are entitled to equal protection of law.

Article 28: Discrimination on grounds of religion, etc 1. The State shall not discriminate against any citizen on grounds only of religion, race caste, sex or place of birth. 2. Women shall have equal rights with men in all spheres of the State and of public life. 3. No citizen shall, on grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution.

Article 29: Equality of opportunity in public employment 1. There shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic. 2. No citizen shall, on grounds only of religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect of, any employment or office in the service of the Republic.

Article 65: Establishment of Parliament:

3. Until the dissolution of Parliament occurring next after the expiration of the period of ten years beginning from the date of the first meeting of the Parliament next after the Parliament in existence at the time of commencement of the Constitution (Tenth Amendment) Act, 1990, there shall be reserved thirty seats exclusively for women members, who shall be elected according to law by the members aforesaid: Provided that nothing in this clause shall prevent a woman from being elected to any of the seats provided for in clause (2)]. The Constitution of Bangladesh made provision for reserved seats for women in the context of women's backwardness and disadvantageous situation. Originally 15 for ten years as per the constitution of 1972, an amendment in 1978 increased this number of women's reserved seats to 30, and extended the period of reservation to fifteen years. The system was however, interrupted in December 1987. Consequently, there was no provision for reserved women's seats in the 1988 parliamentary election. But, pressed by the strident demands of some women's organizations, the system was reinstated through the tenth Amendment in 1990 reserving 30 seats for 10 years from the date of the first meeting of the next parliament. This limit has expired in 2000. Thereafter, in 14 th Amendment of the constitution in 2004 the provision of women's seats in parliament increase up to 45 seats. The Constitution of Bangladesh gives equal right to women to enter any employment or office in the civil service. The Constitution not only ensures equality of sexes but also acknowledges the necessity of remedying the existing unequal representation by reserving certain percentage of civil service posts for the women. The constitution prohibits discrimination against women on grounds of their religion, caste, or place of birth. The constitution incorporates the principle of special representation of women in local self-governing bodies. In line with this provision, three women members are elected to each of the Union Councils and Municipal Councils of the country. The constitution of the People's Republic of Bangladesh is the ultimate source of the fundamental rights enjoyed by men and women. However, the day to day life of the people is governed by two sets of laws: civil and personal. The civil laws cover the rights of women under the constitution; the personal laws cover the family life.

The Constitution of Bangladesh guarantees equal rights of men and women in all spheres of the state and public life enabling the state to take affirmative actions towards this end. Article 19 of the Constitution recognizes political rights of women by clearly enunciating that no discrimination on the basis of sex shall be permitted. Article 27 categorically states that all citizens are equal before the law and are entitled to equal protection by the law. Article 28 permits the state to make 'special provisions in favour of women or children or for the advancement of any backward section of citizens'. These provisions in the constitution are believed to have provided adequate guarantee for women's rights in Bangladesh.

B. WOMEN RIGHTS ENSURED BY OTHER STATUTORY PROVISIONS: (1) THE CODE OF CRIMINAL PROCEDURE, 1898: (i) Order for maintenance of wives and children: Section 488: (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain it-self, the District Magistrate, a Metropolitan Magistrate, a sub-Divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding four hundred taka in the whole as such Magistrate thinks fit and to pay the same to such person as the Magistrate from time to time directs. (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance. (3) If any person so ordered fails without sufficient cause to comply with the order any such Magistrate may for every breach of the order issue a warrant for levying the amount due in manner herein before provided for levying fines and may sentence such person for the whole

or any part of each months allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner mode. Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Provided further, that no warrant shall be issued for that recovery of any amount due under this section unless application is made to the court to levy such amount within a period of one year from the date on which it became due. (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery or that without sufficient reason she refuses to live with her husband or that they are living separately by mutual consent, the Magistrate shall cancel the order. (6) All evidence under this chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his advocate, and shall be recorded in the manner prescribed in the case of the trial or cases, Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the court, the Magistrate may proceed to hear and determine the case exparte. Any orders so made may be set aside for good cause showed on application made within three months from the date thereof. (7) The court in dealing with application under this section shall have power to make such order as to costs as may be just.

(8) Proceedings under this section may be taken against any person in any district where he resides or where he last resided with his wife, or as the case may be, the mother of the illegitimate child. (ii) Alteration in allowance: Section 489: (1) On proof of a change in the circumstance of any person receiving under section 488 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife or child, the Magistrate may make such alteration in the allowance as he thinks fit. Provided that if he increases the allowance the monthly rate of four hundred taka in the whole be not exceeded. (2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil court, any order made under section 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. (iii) Enforcement of order of maintenance: Section 490: A copy of the order of maintenance shall be given without payment to the person in whose favour it is made, or to his guardian, if any or to the person to whom the allowance is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non payment of the allowance due.

(2) THE CIVIL PROCEDURE CODE, 1908: (i) Exemption of certain women from personal appearance: Section 132: (1) Women who, according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempt from personal appearance in Court.

(2) Nothing herein contained shall be deemed to exempt such women from arrest in execution of Civil Process in any case in which the arrest of women is not prohibited by this code.

(3) THE EVIDENCE ACT, 1872 Section 112: (i) Birth during marriage, Conclusive proof of legitimacy: The fact that any person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution, the mother remaining Unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. Section: 120: (ii) Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial: In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit shall be competent witness. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness. Section 122: (iii) Communications during marriage: No person who is or has married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.

(4) CHILD MARRIAGE RESTRAIN ACT, 1929: Marriage of minors, including that of Muslim minors are prohibited under the Child Marriage Restrain Act, 1929 which makes it an offence to solemnize the marriage of a male under the

age of 18 years & a female under the age of 15 years. But since marriage solemnized in contravention of the above Act are treated valid it is submitted that in such cases all the above prohibitions of Muslim law will become applicable & the validity of the marriage would be tested afresh. A marriage contracted by the minor himself is avoidable at his option on his attaining the age of puberty. It would be immaterial whether his guardian had approved of the marriage or not, provided that marriages approved by father or agnatic grand-father are not voidable. The option lasts till the minor comes to know that he has such a right & a reasonable time thereafter. The reasonability of time will depend upon the subjective satisfaction of the court. Option of Puberty: When a minor is married by his lawful guardian other than the father or paternal grand-father such a marriage can be repudiated by the minor on attaining the age of puberty. Such an option vested in a minor is called the â&#x20AC;&#x2DC;option of pubertyâ&#x20AC;&#x2122;.

(5) MUSLIM MARRIAGE DISSOLUTION ACT, 1939: The Act extends only to the dissolution of Muslim marriage. It is not very large just provides six sections. In Section 2 of the Act provides for the grounds for decree for dissolution of marriage. The grounds upon which a married woman can dissolve her marriage through court of action: (i) Where the husband is missing for four years (ii) The husband failed or neglect to provide maintenance to his wife for two years (iii) The husband married further by breaching the rules provided in MFLO, 1961 (iv) Where husband is imprisoned for seven or more years (v) Without having any logical cause the husband failed to perform his conjugal rights for three years (vi) The husband was impotent during his marriage and still it is continuing (vii) The husband is being insane or massive skin or sexual disease for two years (viii) Where the wife is married by her father or other guardians before attaining 16 and she denied her marriage before 18 provided that there must not any consumption

(ix) Husbandâ&#x20AC;&#x2122;s cruelty against his wife It is noted that the wife may allege any one or more of the above mentioned grounds for her dissolution of marriage.37 Section 4 provides where a woman converted to other faith after her marriage and it does not dissolve her marriage. Provided that if she converted to other faith it also never curtail her rights of the grounds upon which a married woman can dissolve her marriage through court of action. Section 5 provides that the rights of dower will not be affected because of the dissolution of her marriage.

(6) MUSLIM FAMILY LAW ORDINANCE, 1961: In 1961 Muslim Family Laws Ordinance started its enforcement regarding on marriage and family laws. (i) Muslim Family Law Ordinance, 1961 regarding Registration of Marriage: Section 5 of the Muslim Family Laws Ordinance, 1961 provides that every marriage solemnized under Muslim law shall be registered in accordance with the provisions of this Ordinance. It is noted that this has been omitted later and the provisions regarding the registration of marriage has been included in The Muslim Marriage & Talak (Registration) Act, 1974.

(ii) Muslim Family Law Ordinance, 1961 regarding Polygamy: Sub section (i) of Section 6 provides that no man, during the subsistence of an existing marriage, shall except with the previous permission in writing of the Arbitration Council, contract another marriage nor shall any such marriage contracted without such permission be registered under this Ordinance.

Muslim Marriage Dissolution Act, 1939

Sub section (i) of Section 6 provides that whether the husband has got permission from his existing wife or wives, the Chairman shall ask to the husband.

Case Reference: The husband will be punished according to law where he married without the consent of the existing wife but the law does not provide any punishment for the 2nd wife.38

(iii) Muslim Family Law Ordinance, 1961 regarding Talak or Divorce: The Ordinance provides the following provisions: 1.

What ever may the kind of Talak, thatâ&#x20AC;&#x2122;s no matter. If a person wants to give talaq his

wife, at first he should inform in writing Chairman and have to give a copy to the woman. 2.

If a person does not follow sub-section (1), he will be punishable simple

imprisonment for a term which may extend to one year or with fine which may ten thousand taka or with both. 3.

Except (5) a talaq unless revoked earlier, the talaq will get effect after 90 day from

the date of giving notice to Chairman. 4.

The chairman constitutes an arbitration council for reconciliation after gating getting

notice within 30 days. 5.

After giving birth child Talaq is effective, not at the time of pregnancy.

6. If a marriage has been terminated by talaq and they want to marry again, they canâ&#x20AC;&#x2122;t unless the women marry another third person In the matter of Talak the proceedings of Sub-Section (1) of Section 7 will be hold by Section 3 (b) of MFLO.39

Case Reference: 38 39

39, DLR, P 181 Muslim Family Law Rules, 1961

Suppose ‘A’ wants to give talaq his wife. But he has three wife. The application goes under that union or parashava who will get talaq by his husband. ‘C’ is got talaq by husband so area will be area of ‘C’ where she lives. In a case where it was held that 90 days reconciliation period is to start from the date of the receipt of the notice by the Chairman, and not from the date when it was written.40 Divorce without notice to the Chairman: When the divorce is clearly established by the conduct of Husband, mere non –service of notice upon the chairman as enjoined by the Section 7 of the Ordinance does not render the divorce ineffective.41 Without notice under Section 7 (1) there is No ‘talaq’: Unless the provisions of Section 7 (1), MFLO are complied with regarding service of notice to the Chairman of Union council a talaq would fail to operate. Therefore the Talaq being dated 16.11.61 cannot free a woman to marry a man on 21.12.62 the provisions of Section 7(1) standing on the way.42 Dissolution of marriage otherwise than by Talak (Section 08): 1.

Where right to Divorce has been delegated to the wife and wishes to exercise that

right. 2.

Where any of the parties wants to dissolve the marriage other than talak in this regard

provision of Section 7 as far as possible.

(iv) Muslim Family Law Ordinance, 1961 regarding Maintenance: Under section 9 of the MFLO, 1961 the wife or wives can complain to the Chairman for not giving maintenance by their husband.

(v) Muslim Family Law Ordinance, 1961 regarding Dower:

46 DLR 700 16 BLD (HCD) 477 42 15 DLR SC 9 41

Section 10 of the MFLO, 1961 provides that where the dower money is not specific in the contract of marriage, the whole dower will be as prompt dower.

(7) FAMILY COURT ORDINANCE, 198543 : Family Court Ordinance, 1985 aims at resolving legal disputes related to dissolution of marriage, restitution of conjugal relation, dower, maintenance, and guardianship and custody of children. This Ordinance was promulgated in 1985. The contents selected for consideration in the Ordinance are compiled from Muslim law, HINDU LAW, CIVIL PROCEDURE CODE,

Evidence Act, Dissolution of Muslim Marriage Act,

and the MUSLIM FAMILY LAW ORDINANCE. This Ordinance extends to whole of Bangladesh except the hill districts of Rangamati, Khagrachhari and Bandarban. This law provides that all courts of Assistant Judge shall be Family courts and the Assistant Judge shall be the judges of Family courts. Basically Family Courts shall have exclusive jurisdiction to entertain, try and dispose of matters relating to marriage, conjugal relations, dower, maintenance, guardianship and custody of children.

(i) Family Court Ordinance, 1985 regarding Dissolution of marriage or Talak: The contract of marriage may be dissolved in any one of the following ways: (i) by the husband at his will, without the intervention of the court; (ii) by mutual consent of the husband and wife, without the intervention of the court; (iii) by a judicial decree at the suit of the husband or wife. The wife cannot divorce herself from her husband without his consent unless such right is given to wife in the Nikah Nama. This type of talak is known as talak-e-toufiz. When the divorce is effected by mutual consent, it is called khula or mubara'at according to the terms of the contract between the parties.

Banglapedia

The dissolution of contract of marriage by the husband at his will without the intervention of the court is called talak. Talak may be oral or in writing. To talak orally husband with sound mind pronounces a few words wilfully, which are expressed (saheeh) or well understood as implying divorce, and since pronouncement behaves accordingly. Talak in writing or talaknama is the written document of oral talak. The deed may be executed in the presence of the kazi, or the wife's father or of other witnesses. However, the deed should be in customary form and properly super scribed and addressed so as to show the name of the writer and person addressed. In Muslim law, the wife too has limited right to divorce her husband judicially. A wife can dissolve the contract of marriage with the intervention of the court on the grounds: (i) The whereabouts of the husband are unknown for a period of four years; (ii) Failure of the husband to provide for the maintenance of the wife for a period of two years; (iii) Sentence of imprisonment on husband for a period of seven years or more; (iv) Failure without reasonable cause to perform marital obligations; (v) Impotence of husband; (vi) Insanity of husband or his suffering from virulent venereal disease; (vii) Repudiation of marriage by wife; (viii) Cruelty of husband; and (ix) Marriage without her consent. This divorce is called talak-e-taufiz.

(ii) Family Court Ordinance, 1985 regarding Restitution of conjugal relation: The husband may sue against the wife for restitution of conjugal life if the wife, without lawful cause, ceases to cohabit with her husband. This suit is maintainable only against legally married wife. However, a husband cannot file such a suit if the contract of marriage is dissolved.

(iii) Family Court Ordinance, 1985 regarding Dower (mohr): It is the sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage. Muslim law made it binding (farz) for all Muslim husbands to settle the amount of dower in marriage and record the same in the marriage

contract popularly known as Kabinnama or Nikahnama. The amount of dower is settled basing the bride's social status, personal traits, and beauty. The husband may settle any amount he likes by way of dower upon his wife, which in any case must not be less than ten dirham or equivalent thereof. Husband is bound to pay the entire amount of dower settled even though it is beyond his means. It is the debt of husband to his wife, and he has to pay the wife the total amount on demand unless otherwise is stated in the marriage contract. Realisation of dower is a right of wife and even a widow can keep her husband's properties in possession under a claim for her dower till the whole amount is paid.

(iv) Family Court Ordinance, 1985 regarding Maintenance: Maintenance (nafafa) is the monetary support that a wife, children, parents, and grand children can claim as a matter of legal right on the husband, parents, son, and grandfather respectively to maintain their livelihood. It includes food, clothing, lodging, medical support for the adults (in applicable cases), and also includes other necessary expenses for mental and physical well being according to their respective status in society. Grounds by which the obligation is imposed on a person in order of gravity are: (a) marriage, (b) kinship, and (c) inheritance. A father is bound to maintain his sons until they have attained puberty, and his daughters until they are married. Maintenance of widowed or divorced daughters is also a responsibility of father. If the father is poor and incapable to maintain, mother will shoulder the responsibility. If the father is poor and infirm, and the mother is also poor, obligation to maintain the children lies on grandfather, provided he is in easy circumstances. Wife is the first and prime claimant of maintenance, and she has every right to realise the claim even though she is financially well off than her husband or the husband does not have enough means to meet up the claim. After divorce, wife is entitled to maintenance up to iddat period which may extend to three months. There are provisions for maintenance in other religions too. An able man should, in addition to his wife children and parents, subject to capability, maintain grandparents and other relations.

(v) Family Court Ordinance, 1985 regarding Guardianship or Custody of Children: In all cases father, if alive, is the natural guardian of the person and property of his minor child. In absence of father, the responsibility shifts to mother, and in case of absence or inability of mother grandfather or the nearest relation of the parents becomes guardian of the person and property of the minor. An appeal against the judgement, decree or order of a Family court shall be preferred within thirty days of the passing of the judgement, decree or order excluding the time required for obtaining true copies thereof. The High Court Division may, either on the application of any party or of his own accord transfer any suit under this Ordinance from the Family court to another court within the local limits of its jurisdiction. A Family court shall be deemed to be district court for the purposes of guardianship and custody of children. The provisions of this Ordinance shall have priority over other concerned rules, provided that does not affect the personal law or the religious law prevailing in the country. These rules are applicable for the adherents of those religions in which dissolution of marriage is accepted. This court shall conduct the trial and shall pass the judgement as per religious provisions. However, this Ordinance shall not affect any of the provisions of Muslim Family Law Ordinance of 1961.

Case Reference: The Family Court Ordinance 1985 is not only applicable for the Muslims but also citizens of Bangladesh.44

(8) THE MUSLIM MARRIAGE & DIVORCE (REG.) ACT, 1974: (i) The Muslim Marriage & Divorce (Reg.) Act, 1974 regarding Registration of Marriage: Section 3 of the Act provides that every marriage solemnized under Muslim law shall be registered. 44

47 DLR (1995) 18

(ii) The Muslim Marriage & Divorce (Reg.) Act, 1974 regarding Registration of Divorce: Section 6 of the Act provides that every divorce even Talak E Tawfiz shall be duly registered as per the statute provides.

(9) THE DOWRY PROHIBITION ACT, 1980: Section 3 of the Act fully prohibits the dowry provision. Whoever dowry takes or gives both is punished under this Act by imprisonment which may not less than one year and not more than five years or fine or both. Section 4 provides that if anyone claims dowry directly or indirectly to the guardians of bride or bridegroom shall be punished under this Act by imprisonment which may not less than one year and not more than five years or fine or both.

(10) NARI O SHISHU NIRJATAN DAMAN AIN, 2000: Nari O Shishu Nirjatan Daman Ain, 2000 contains 34 sections of which the major crimes deals under this Act are given bellow: (i) Women & children abduction (ii) Kidnapping & (iii) Women & children trafficking (iv) Cause of death to women & children by rape (v) Sexual abuses (vi) Causing death for dowry (vii) Mutilation of the women & children for begging (viii) Children as outcome of rape All offences of Nari O Shishu Nirjatan Daman Ain shall be tried by the Special Tribunals established under this Act.

The major provisions of the Act are given bellow: Section-4 Punishments for offences caused by inflammatory etc. This section prescribes several punishments for offences caused by inflammatory, corrosive or poisonous substances. One of the major conditions of these offences is that the offender knew the substance in question to be inflammatory, corrosive or poisonous.

Section-4(1)If any person causes or tries to cause death of any woman or child by using inflammatory, corrosive or poisonous substances he shall be liable for death penalty or rigorous imprisonment for life and in addition of it he shall be liable for fine of taka up to one lac. Section-4(2)If any person causes injury of any woman or child in such a way by using inflammatory, corrosive or poisonous substances that damages the sight of the eye or the hearing of the ear or privation of any member of joint or impairing of the powers of any member or joint(a) For privation /damaging the sight of the eye or the hearing of the ear or disfiguration of the head or face ,breast or others â&#x20AC;&#x201C;that person shall be liable for death penalty or rigorous imprisonment for life and in addition of it he shall be liable for fine of taka up to one lac. (b)For privation of any member or joint or impairing of the powers of any member or joint or in case of hurt in the body that person shall be liable for rigorous imprisonment for a term which may extend up to 14 years but not less than 7 years and in addition of it he shall be liable for fine of taka up to fifty thousand. Section 4(3) If any person tries to throw any inflammatory, corrosive or poisonous substances to other and even if is does not cause any physical, mental or other injury that person shall be liable for rigorous imprisonment for a term which may extend up to 7 years but not less than 3 years and in addition of it he shall be liable for fine of taka up to fifty thousand.

Case Reference: Where the accused administered arsenic to her lover, the deceased, in sweetmeat in the belief that it was a charm which would revive his love for her and she did not know that it as poison.45

3 Bom. L.R 425

Where the accused poured a bottle of arsenic in the food on the request of another not knowing what the contents of the bottle were, He could not be convicted for administration of poisonous substances.46 Acid is a corrosive substance.47 Section â&#x20AC;&#x201C;5 Punishments for Women Trafficking etc. Section-5(1)If any person for the purpose of prostitution or for engaging illegal or immoral work bring any woman in to this country or sends to abroad or traffics or sells or purchases or transfers or let a woman for hire for the purpose of repression or possesses, detains in his custody any woman for the aforesaid purposes that person shall be liable foe death penalty or imprisonment for life or rigorous imprisonment for a term which may extend up to twenty years but not less than ten years in addition he shall be liable for fine. Section-5(2) If any person sells, let for hire or transfer in any way to a prostitute or caretaker or a person who engages to manage a prostitution then if it is not proved in other way it shall be deemed he has transferred that woman for the purpose of prostitution and shall be liable for the same punishments as describe in Sub-Section -1 of this Section. Section-5(3) If any person who is a caretaker or a person who engages to manage a prostitution buys or take for let to hire or in any other way possesses or detains a woman in his custody then if it is not proved in other way it shall be deemed he has purchased or hired that woman for the purpose of prostitution and shall be liable for the same punishments as describe in Sub-Section -1 of this Section. Section â&#x20AC;&#x201C;6(1) If any person for illegal ore immoral purposes brings any children in this country or sends in abroad or traffics or sells or purchase or possesses or detains in his custody for that purpose that person shall be liable for death penalty or rigorous imprisonment for life and in addition of it he shall be liable for fine.

AIR 1952 Mad.535 Dulal Madhu vs. State ;8 BLC (2003) 532 = 24 BLD (HCD) (2004) 71 = 9 MLR (HC) (2004)53

Section –6(2)If any person steal any newborn baby from any hospital or charity of child or mother or nursing home ,clinic etc. or from the custody of a of a guardian the that person shall be liable for the same offence as described in Sub-Section-1 of this Section. It has been held that in order to fasten an accused person with the offence of section 6 (1) prosecution is to be established that the accused – (i) Illegally traffics any child or sells any child; or (ii) With a view to trafficking keeps any child under his custody for the above purpose and the child is found with that person.48 Section –7 Punishments for Kidnapping and Abduction of Woman and Children If any person abducts any woman or child for any purposes other than described in section 5 that person shall be liable for imprisonment for life or rigorous imprisonment not less than 14 years and in addition of it he shall be liable for fine. Nari-O-Shishu Nirjatan Daman Ain defines abduction as compelling a person to go to from one place to another by use of force or by enticement or by inducement or by deceitful means or by use of threat.

Case Reference: The High Court Division quashed a proceeding for abduction even in the stage of investigation since the victim girl was above the age of 18 years ,her affidavit before a Notary Public showed that the voluntarily at her free will had gone out with the accused –petitioner and had married him in accordance with law.49

Section –8 Punishments for Ransom: If any person detains any woman or child for the purpose of gaining ransom he shall be liable for death penalty or rigorous imprisonment for life and in addition of it he shall be liable for fine. 48

The State vs. Abul Kashem 1 LG (2004)HCD 33.

Manik (Md) alias Md. Akkash Khan (Manik) vs. State , 2 BLC (1997) 418

Section-9-Punishments for Rape or Death for Rape: (1) If any male rapes any woman or child he shall be liable for death penalty or rigorous imprisonment for life and in addition of it he shall be liable for fine. EXPLANATION-It shall be deemed as rape if any male without marital relation intercourse with a woman over age of sixteen without consent or with consent where consent is taken by showing fear or by deceitful means or when she is under age of sixteen and intercourse has been held with or without consent. Section 9 (2) If any woman or child dies due to the cause of rape or for any other act after rape then the accused shall be liable for death penalty or rigorous imprisonment for life and in addition of it he shall be liable for fine not less than taka 1 lac. Section 9(3) If more than one person in a group rape a woman or child and that woman or child dies or injures for rape each person of them shall be liable for Death penalty or rigorous imprisonment for life and in addition of which that person shall be held liable for an amount of taka not less than taka 1 lac. Section 9(4)(a)if any person after committing a rape tries to murder or hurt that person shall be liable for rigorous imprisonment for life and in addition of which he shall also liable for fine. Section 9(4)(b)if any person tries to commit a rape that person shall be liable for rigorous imprisonment for a term which may extend up to ten years but not less than five years in addition of which he shall also liable for fine . Section â&#x20AC;&#x201C; 9(5) If any person is raped while she is any custody of police the persons who are directly liable for her custody and if not otherwise proved for their failure of such security or custody of such victim shall be liable for rigorous imprisonment for a term which may up to ten years but not less than five years in addition of which he shall also liable for fine not less than ten thousand taka. Section 375 of the penal code requires two essentials â&#x20AC;&#x201C; (i) Sexual intercourse by man with a woman & (ii) Sexual intercourse must be under circumstances falling under any of the five clauses in section 375.

Case Reference: Wife’s consent obtained by threat is amounts to rape.50 Consent obtained by impersonation as the prosecutrix’s husband.51 Section-9(A) Punishments for abetment of suicide of a woman etc. If any woman dies for suicide caused by any direct or willful act of indecent activities of a person which is without her consent that person shall liable for rigorous imprisonment for a term which may extend up to ten years but not less than five years in addition of which he shall also liable for fine . Section-10 Punishments for Sexual assault etc. If any person to meet her sexual will touches any sexual organ or other organ through any of his organ or through another thing that person shall be liable for rigorous imprisonment for a term which may extend up to ten years but not less than three years in addition of which he shall also liable for fine . Under this section a man shall be liable for sexual assault if he – (a) With an intention to illegally satisfy his sexual instinct, touches the sex organ or any other organ of a woman or a child with his sex organ or any other thing; or (b) Outrages the modesty of a woman.52

Section-11 Punishments for Death for Dowry etc. If any husband of a woman or father of her husband ,mother, guardian, relative or anyone on behalf of the husband murders or tries to murder to any woman or causes grievous hurt or simple hurt to her then such husband or father of her husband, mother, guardian, relative or anyone person.

State of Maharashtra vs.Prakash and another AIR 1992 SC 1275=1992 Cr L J 1924

Jayanti Rani Panda vs. State of West Bengal and another-1983 Cr L J 1535

State of Punjab vs. Major Singh AIR 1967 SC 63=1967 Cr L J 1

(a) Shall be liable for death penalty for causing death or rigorous imprisonment of trying for causing death and shall also liable for fine. (b) Shall be liable for rigorous imprisonment for life or not over 12 years but not less than 5 years and in addition of which he shall be liable for fine for causing grievous hurt. (c) Shall be liable for rigorous imprisonment for a term not over 3 years but not less than 1 year and in addition of which he shall be liable for fine for causing simple hurt.

(11) ACID CRIME CONTROL ACT, 2002: The President of the Peoples' Republic of Bangladesh approved the Acid Control Act 2002 and the Acid Crime Control Act 2002 on 17 March 2002. The laws were promulgated to meet the demands that acid crimes be controlled and perpetrators receive swift punishment and that the trade in acid and other corrosive substances be guarded by legal checks and balances to prevent their easy accessibility. The Acid Crime Control Act, this law aims to rigorously control acid crimes. It houses stringent punishments ranging from the death sentence to life imprisonment, to between three to fifteen years imprisonment and a hefty fine. The Act provides that if the Acid Crime Control Tribunal feels that the investigating officer has lapsed in his duty in order to 'save someone from the liability of the crime and did not collect or examine usable evidence' or avoided an important witness, etc., the former can report to the superior of the investigating officer of the latter's negligence and may also take legal action against him.

The Acid Control Act 2002 has been introduced to control the â&#x20AC;&#x153;import, production, transportation, hoarding, sale and use of acid and to provide treatment for acid victims, rehabilitate them and provide legal assistanceâ&#x20AC;?. The National Acid Control Council has been set up under this act, with the Minister for Home Affairs as its Chairperson. Under this Council, District-wise Committees have been formed albeit, only in six or seven Districts to date. Members of the Council include the Minister for Women and Children Affairs, Secretaries from the Ministries of Commerce, Industry, Home Affairs, Health, Women and

Children Affairs, and representatives from civil society as specifically mentioned in the law. This allows for a broad spectrum of representation. More importantly, according to this law, businesses dealing with acid need a license to do so, and the government has arranged for a Fund to provide treatment to victims of the violence and to rehabilitate them, as well as to create public awareness about the bad effects of the misuse of acid.

CHAPTER-IV LEGAL ANALYSIS BETWEEN MUSLIM PERSONAL LAW & STATUTORY MODIFICATIONS RELATING TO WOMEN RIGHTS IN BANGLADESH Shariah Law not only means the provisions came from the verses of Quaran but also the Hadith, rules made by Khalifas, provisions came through Isma, Kias and subsequently those are stand as customs of Muslims.

4.1 MARRIAGE: According to Shariah Muslim marriage is not a sacrament, but purely a civil contract. In Shariah marriage is conducted by only (i) offer (proposal), (ii) acceptance & (iii) two witnesses. The proposal & acceptance must both be expressed at the same meeting. No other formalities are necessary to perform in case of marriage. But the Statute makes the provisions of marriage more reasonable & secured to the women. Section 5 of the Muslim Family Laws Ordinance, 1961 provides that every marriage solemnized under Muslim law shall be registered. Thereafter, this section is omitted and a separate statute has been made in 1974 named Muslim Marriage & Talak (Registration) Act, 1974. Where section 3 of the Act provides that every marriage under Muslim law shall be registered.

(i) Polygamy: It is generally regarded that Muslims are freely allowed by their religion to contract four marriages at a time and they generally do so to satisfy their baser instincts and lust. It is submitted that nothing could be more erroneous than this. Neither Islam favours polygamy not the Muslims prefers polygamous union.

In Islam, monogamy is a general rule while polygamy is only an exception, though the command of the Quran favouring polygamy shall be seen in the context of the pre-Islamic Arabian customs which placed no restriction as to the number of wives. Islam limited the number to four and presented monogamy as an ideal form. Shariah makes restriction on the numbers of polygamy and behavior among the wives but no other hard & fast rule is provided there. While the Statute makes some extent restriction in case of polygamy which will make hindrance to man from free exercise of polygamy. Polygamy is another discriminatory practice allowed by Muslim law. Though a husband requires his wife's/wives' permission to remarry, and can be sentenced to six months' imprisonment if he does so without it, it really isn't a practical solution. 53 â&#x20AC;&#x153;After spending six months in jail, more than his love for his wife growing and bringing him back to her, he is likely to want to take revenge on her for sending him to jail.â&#x20AC;? Muslim Family Law Ordinance, 1961 provides, in Sub section (i) of Section 6 that no man, during the subsistence of an existing marriage, shall except with the previous permission in writing of the Arbitration Council, contract another marriage nor shall any such marriage contracted without such permission be registered under this Ordinance. Sub section (i) of Section 6 provides that whether the husband has got permission from his existing wife or wives, the Chairman shall ask to the husband.

(ii) Child Marriage: Child marriage is valid according to Shariah. There is no restriction to do the same. But the real scenario of child marriage is very danger. There are so many bad effects of child marriage in the social context, physical, psychological & many other sectors. In this situation Bangladesh has just made a Child Marriage Restriction Act, 1929 not prohibition Act though it is also an improvement.

Sultana Kamal

In the Child Marriage Restriction Act, 1929 Muslim minors are prohibited under the Act to solemnize the marriage of a male under the age of 18 years and a female under the age of 15 years.

4.2 DOWER: It is said in the Quran that “pay mahr (dower) as a farz (obligatory) to your wives for the pleasure you get from them.” 54 Shariah also provides several types of dowers & the manners how dower should be paid. The statute makes more trustworthy principles to get dower by the wives from their husbands. In Muslim law, dower, or “mohorana” -- a consideration of marriage -- is to be given by the husband to the wife to guarantee the economic security of the latter. But this too is payable in full only upon consummation of the marriage, which suggests that it is against a woman's sexual allowance that it is given. The Muslim husbands have a duty to “maintain” their wives. The Muslim woman has equal rights of inheritance with her male counterparts. Under Muslim law, women do not have equal rights to initiate divorce. Section 10 of the Muslim Family Law Ordinance, 1961 provides that where dower money is not specific in the contract of marriage the whole dower will be as prompt dower. This provision gives more assurance to the women for getting their dower. Women have another weapon to get their dower by suing in the Family Court for seeking their dower right. Family Court Ordinance, 1985 gives rights to the women for claiming their dower.

4.3 DIVORCE: In Arabic divorce is called talak, which means repudiation. Islam gives large power of divorce to the men while women are not eligible to exercise the power of divorce absolutely.

Surah Nisa: 3

Muslim Shariah, divorce can be implemented in any of the following ways: (a) by the husband at his will or by mutual consent of the wife and the husband without the intervention of a court; and (b) by a decree of the court on the lawsuit filed by the husband or wife. “A Muslim woman has no inherent right to divorce.”55 “Divorce will invariably have to be given by the husband.” The only exception is “talaq-i-tafweez”, which is still a delegated right. In this case, when the marriage contract is written, the wife must ask the husband for the right to divorce. Other than this, a couple can also separate by mutual consent, but if the separation is initiated by the wife, she must give some sort of compensation. Talak as the men can frequently use, women have no such power to exercise it as per Shariah even any statute cannot give such right. But women can exercise Talak E Tawfiz according to the Shariah thought it is one kind delegated power by the husband to the wife. In Shariah law Talak is very easy to pronounce & execute by a husband which occurs negative impact on the society now a days. In the perspective the Statute takes some good steps which goes in favour of the women’s benefit. Muslim Family Law Ordinance, 1961 provides in Section 7 & 8 regarding Talak. Where it makes some provisions to be exercised by the husband in order to execute Talak and without following the procedure as provided in Section 7 & 8 of the Muslim Family Law Ordinance, 1961 Talak will not operative & legal. Muslim Marriage Dissolution Act, 1939 & Family Court Ordinance, 1985 is another two statutes through which women can seek divorce against her husband. Muslim Marriage Dissolution Act, 1939 provides the grounds upon which women can dissolve her marriage and Family Court Ordinance, 1985 is the mechanism to implement Muslim Marriage Dissolution Act, 1939 by the women. Statute also restricted that every divorce even Talak E Tawfiz shall be duly registered as per the Muslim Marriage & Divorce (Reg.) Act, 1974 provides in Section 6. This will also restrain the free exercise of power of divorce or Talak by the husband.

lawyer and human rights activist Sultana Kamal

4.4 MAINTANANCE: Wives are obligated to obtain maintenance from their husbands. Not only wives but also some other persons as provided in the Quran among them offspring of the husband are obligated to obtain maintenance. Similarly there are also some Statutes in Bangladesh by which women are more secured to get maintenance. The Code of Criminal Procedure, 1898, Muslim Family Law Ordinance, 1961 & Family Court Ordinance, 1985 provide some excellent provisions regarding maintenance which makes easy to get solution of any sorts of claims regarding maintenance.

4.5 INHERITANCE: Under Shariah, no one can deprive a woman of her share in the estate left by her parents or close relatives. ‘There is a share for men and a share for women from what is left by a parent and those nearest related, whether the property be small or large – a legal share.’56 In Muslim law, men and women inherit in a ratio of 2:1, that is, men inherit double what women do. Popular logic claims this is so because a woman inherits from both her father and her husband, so she can be given less. Less popular is the fact that men also inherit from their wives, and the 2:1 ratio results in them ultimately inheriting more than women. The only way out of this is to make a “hiba”, or gift a woman any amount of property.

Equal right to inheritance by women is a matter of controversial. There is no such specific law to achieve inheritance equal to the men. But the constitution gives equal opportunity for all citizens and under this heading woman has the right to get equal right in inheritance.57

56 57

Qur’an 4:7 Article 19(1), Sub Section 2 of the Constitution of Peoples Republic of Bangladesh

The constitution further said the state shall not discriminate against any citizen on grounds only of religion, race caste, sex or place of birth and women shall have equal rights with men in all spheres of the state and of public life.58 So, though equal right of women in inheritance is not yet established but the claim is still going on to that effect.

4.6 CUSTODY (Hizana): Mother is entitled to the custody (Hizana). In case of Hanafi Law – (i) A male child till 7 years (ii) A female child till puberty, which is either 15 or 18 years In case of Shia Law – (i) A male child till 2 years (ii) A female child till 7 years “The mother is, of all persons, the best entitled to the custody of her infant child during marriage and after separation from her husband, unless she be a apostate or wicked or unworthy to be trusted.” A Muslim mother is never a legal guardian of her child; she can only claim custodianship in limited circumstances. “Under Muslim law” a human rights and legal aid organisation, “the mother is never, under any circumstances, a natural guardian of the child. Whether the father is dead or has deserted the family, in name he will always be the guardian.” 59 Thus, in case of divorce, while the mother gets to have custody of her son until he is seven years of age and her daughter until puberty -- interestingly, the difficult, rearing years -- she has no right over the person or property of her children. “Where they will live, go to school, etc., will all be decided by the father, the guardian. Women can establish her right of custody through the Family Court Ordinance, 1985. 58

Article 28 of the Constitution of Peoples Republic of Bangladesh

Sultana Kamal, Executive Director, Ain o Salish Kendra

As mentioned above that Shariah Law is based upon Quaran, Hadith, Isma & Kias and subsequently those are stand as customs of Muslims. Moreover, the Statutes are more specific, meaningful & operative. Because most of the Shariah Laws provide many rights in favour of the women but there is no governing or supervising body or institution in our country that can take any necessary steps or can impose any sentence while breaches are occurred against the women. So, we see that the Shariah laws are in some extent modified by the Statutes. Such modification is needful in the present situation. But the statutes are not exhaustive in the scope of womenâ&#x20AC;&#x2122;s rights.

CHAPTER-V A CRITICAL ANALYSIS REGARDING THE PROPOSED WOMEN RIGHTS POLICY IN BANGLADESH

5.1 THE SUBSTANCE OF THE WOMEN RIGHTS POLICY: The Bangladesh government is pushing ahead with a new National Women's Development Policy, 2008 (NWDP). The policy has been designed to ensure equal rights for women in all spheres of national life and also to ensure safety and security for women in the national, social and family environment. Key features of the policy include reserving one-third of parliamentary seats for women and their direct election, as well as new laws to ensure equal opportunity of women in terms of control of their earned property. According to the World Economic Forum's Global Gender Gap Index 2007, women make up only 15 percent of parliament and have 8 percent of ministerial positions. The NWPD envisages the empowerment of women in all political, social, administrative and economic spheres. The issues of disparity between men and women in society would be abolished by giving proper importance to socio-economic contributions of the women and giving equal opportunities to women and girl child.

The government would take measures to meet the needs of destitute women. It would also ensure the social security of widows, abandoned and unmarried women, and women having no children or no one to take care of them Special attention with budgetary allocations should be given for communication, sanitation, rest room, day-care centre and health care facilities at places where a large number of women and girls are engaged in work. It also said the quota for women in entry level jobs in both government and private organizations would be increased. The government will initiate a process to abolish all laws that discriminate against women.

5.2 BANGLADESHâ&#x20AC;&#x2122;S OBLIGATION TO ENSURE WOMENâ&#x20AC;&#x2122;S RIGHTS: (i) Convention for the Elimination of All Forms of Discrimination against Women (CEDAW): Gender disparity remains one of the dominant concerns of women in the world. To ensure the protection of women's rights, the Convention for the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted by the United Nations on December 18, 1976 and entered as an international treaty on September 3, 1981. The convention aims to promote women's equal status and rights in the areas of domestic violence, reproductive rights, legal and political rights, among others. Bangladesh is one of the 160 countries which signed their commitments to the said convention. On the 6th of November 1984, Bangladesh ratified CEDAW with reservations on Articles 2, 13.1[a], 16.1[c] and [f] (Please see notes below), on the basis of religious sentiments. While the Government feels that these provisions conflict with religious Islamic laws, women feel these reservations infringe upon the protection and promotion of their rights. Bangladesh ratified CEDAW with reservations of the following articles:

Article 2. States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women. Article 13.1. States Parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular: [a] The right to family benefits. Article 16.1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: [c] The same rights and responsibilities during marriage and at its dissolution; [f] The same rights and responsibilities with regard to guardianship, wardship, trusteeship, and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount. Actions taken to the effect of CEDAW: A strong network of women's groups started advocacy at the national level, hoping to mobilize other women to push for implementation of CEDAW provisions in domestic legislation. A CEDAW Forum was formed and launched in 1992, composed of individuals and organizations dedicated to the women's cause and the implementation of CEDAW. Bangladesh National Women Lawyers Association (BNWLA), Mahila Parishad, and Nari Pokkho frontlined the said Forum. With the help of the International Women's Rights Action Watch (IWRAW), workshops, training, and CEDAW forums were conducted for different groups, from lawyers to journalists to ordinary citizens. These were to raise public awareness on how to incorporate the convention with emphasis on Articles 2, 13.1 [a], 16.1[c] & [f] into their domestic laws. Advocacy for the withdrawal of Bangladesh reservations forced the government to call on several women's groups to discuss their opinions about the country's CEDAW Report. The UN CEDAW Committee fixed 1997 as the year for reviewing the report of the Bangladeshi Government. The three frontline organizations jointly prepared a commentary report. Embodied in the report were women's sentiments on state policies and programs that do not

reflect women's agenda and the government's inability to remove reservations on specific CEDAW provisions. The government even chose two women activists as their consultants for the said report.

(ii) National Policy for the Development of Women, 1997: In March 1997 the Bangladesh Government declared the National Policy for Development of Women. The objectives of the National Policy are comprehensive in scope and rest on the basic commitment to develop women as a human resource, establish women's human rights, eliminate all forms of discrimination against women and girls and to recognize women's contribution in the social and economic spheres. Specific to employment, the plan includes the following objectives for ending women's economic inequality: (a) To ensure equal rights of women on land, capital and technology as well as on all economic resources. (b) To reduce the gap between women and men regarding availability of necessary information, skills and knowledge to benefit from economic opportunities. (c) Visualization and recognition of the economic activities of women. (d) Ensuring equal participation of women and men in professional occupations. With regard to the monitoring of the implementation of the various policies, programmes and laws, the National Council for Women's Development and the Inter-ministerial Coordination and Evaluation Committee provide institutional mechanisms through which individuals and various women's organizations can participate. Five Year Development Plans Since 1985, National Development Plans goals for increasing women's employment have focused on expanding opportunities for specialized training, skill development and entrepreneurship development programmes, and increasing opportunities for income generation, access to institutional credit and institutional capacity-building for the promotion of womenâ&#x20AC;&#x2122;s participation in bottom-up planning.

Promoting gender equality, and "realizing the constitutional goal of equality between all citizens - women and men", is a major aim of the Fifth Development Plan (1997-2002). Efforts focus on main-streaming gender in all levels of the governments development work. As such, Ministries are responsible for implementing gender concerns within their respective sectors. With regard to women’s employment, the goals and objectives during the Fifth Development Plan (1997-2002) are to: (a) initiate necessary steps to implement the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); (b) ensure women’s legal rights in property, inheritance and related laws; (c) increase women’s participation in decision making at both the national and local level; (d) promote economic self-reliance of women through expansion of vocational skills training, especially in non-traditional areas, managerial training and credit facilities; (e) develop women’s entrepreneurship and create employment for women through skills training in various trades and extensive micro-credit; (f) promote economic self-reliance for women including access to economic resources such as land, capital and technology; (g) main-stream women's concerns in agriculture and rural development, industry and commerce and also in the informal sector; (h) Ensure the visibility and recognition of women's work and to reduce the gender gap in access to information, skill and knowledge about economic opportunities; and, (i) Raise the rate of female participation in the active labour force (employed) to bring it at par with men;

(iii) Convention on Rights of Children: Bangladesh signed the CRC in 1990 and ratified the same year, with reservations to Articles 14(1) on children’s freedom of religion and 21 relating to adoption. The reservation to the latter states that the provision will apply subject to the existing laws and practices in Bangladesh.

(iv) International Covenant on Economic, Social & Cultural Rights:

Bangladesh acceded to the ICESCR in 1998 with a number of declarations. The interpretative declaration relating to Articles 2 and 3 of the Covenant states that equality of rights between men and women is to be implemented in so far as they agree with the Constitution of Bangladesh and, more specifically, subject to Bangladeshi state inheritance law.

(v) Convention on Consent to Marriage, Minimum age for Marriage and Registration of Marriages in 1998: Bangladesh acceded to the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages in 1998 with reservations to Articles 1 and 2, stating that the treaty would be applied in accordance with the Personal Laws of different religious communities of the country and allowing for a dispensation as to age, for serious reasons, in the interest of the intending spouses.

5.3

DEVELOPMENT

MUSLIM

LAWS

JUDICIAL

DECISIONS: Much legal developments have occurred through case law regarding Muslim Personal Laws.

Obedience/Maintenance: In Nelly Zaman v. Giasuddin Khan60 the Court ruled that, with the passage of time, the husbandâ&#x20AC;&#x2122;s suing for forcible restitution of conjugal rights against an unwilling wife is both outmoded and untenable if considered with relation to the principle of equality of men and women enshrined in Articles 27 and 31 of the Constitution.

Post-Divorce Maintenance/Financial Arrangements: In Rustom Ali v. Jamila Khatun61 the Court ruled (in accordance with classical Hanafi law) that a wife is not entitled to arrears of maintenance. Maintenance will only be allowed her from the date the suit is brought before the Family Court until three months from the decree of dissolution of marriage. The former wife or the child may not claim past maintenance unless the parties have a previously established agreement. 60 61

34 DLR (1982) 221 43 DLR (1991) 301

In Muhammad Hefzur Rahman v. Shamsun Nahar Begum 62 relating to the maintenance of divorce, the Court ruled that a Muslim husband’s responsibility to maintain his divorced wife does not cease with the expiry of the idda. The Court stated that the former husband is bound to provide his divorced wife with maintenance on a reasonable scale for an indefinite period, until her status as a divorce changes, that is, if she remarries. The ruling was based on an interpretation of a Quranic verse relating to provisions for divorced wives (2:241). The Supreme Court overturned the High Court’s judgment on 3 December 1998, leaving the classical Hanafi interpretation intact for the moment.

Polygamous marriage: In Jesmin Sultana v. Mohammad Elias 63, the Court ruled that Section 6 of the MFLO prohibiting the contracting of a polygamous marriage without the prior permission of the Arbitration Council is against the principles of Islamic law. The Court stated that Muslim jurists and scholars are nearly unanimous in the view that it is practically impossible to deal with co-wives justly, and so the Quranic injunction that a second wife may be taken under specific conditions is virtually a prohibition. The Court also noted that Tunisia has given legislative effect to this interpretation. Thus the Court recommended that section 6 of the MFLO should be repealed and replaced by a section prohibiting polygamy altogether. The Court also directed that a copy of the judgment be sent to the Ministry of Law for consideration. No action is known to have been taken on it.

Judicial Divorce: In Hasina Ahmed v. Syed Abul Fazal64, the Court ruled that a woman may be granted a khul by a judicial decision without the husband’s consent.

Child Custody:

15 BLD (1995) 34 1997 (17) BLD 4 64 32 DLR (1980) 294 63

In Muhammad Abu Baker Siddique v. S.M.A. Bakar & others 65. The Court’s ruling contradicted the classical dictates of Hanafi law according to which the mother’s custody over a boy ends at 7. The Court stated that "indeed, the principle of Islamic Law (in the instant case, the rule of hizanat or guardianship of a minor child as stated in the Hanafi school) has to be regarded, but deviation there from would seem permissible as the paramount consideration should be the child’s welfare." The Court also pointed out that the rationale for the departure from classical positions is justified as there is no clear and distinct statement of the Quran or sunnah to rely upon, and also because the jurists themselves never reached any consensus. The Zohra Begum v. Latif Ahmed Munawar66 case, and other rulings deviating from classical law are also cited.

5.4 ALLEGED INCONSISTENCY WITH SHARIAH LAW: The subject matter is a controversial one. There have strong feelings in the both sides. The Islamic scholars committee has suggested that the terms “equality” and “equal rights” for women in multiple sections of the policy be replaced by “just rights” in light of the Quran and Sunnah as interpreted by them. This applies to women’s human rights and fundamental freedoms, removing existing discrimination between women and men, their equal rights in politics, administration and the workplace, their socio-economic position, education, culture, sports and family life. The committee has opposed the provision for a child being identified by both the mother and father on the basis that this will encourage sexual promiscuity and the fact that, in Islam, children born out of wedlock are identified by the mother. It has also proposed that the phrase “child marriage” be done away with as, according to Islam, a girl can be married as soon as she “comes of age” and the legal age of 18 should not apply. Among the sections the Islamic scholars committee has recommended should be cancelled all together are sections 10.5, 10.6 and 10.7, which provide for the increased participation of women in politics by reserving one-third of parliamentary seats for them through direct election, and reserved seats through direct election at the local government level. The Islamic scholars committee argues that such affirmative action goes against Islam, democracy and the Constitution. It has also proposed the scrapping of two provisions (6.2 and 65 66

38 DLR (AD) 1986 1965 (17) DLR (WP) and PLD 1965 (Lah) 695

6.3) by which women would be allowed to participate in the establishment of peace and conflict resolution and sent to peacekeeping missions abroad, saying that this would tarnish the country’s image. Finally, the committee has opposed section 3.2 of the policy which provides for the implementation of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and proposed that Bangladesh withdraw from the treaty (signed in 1984) all together as it is not in accordance with Islamic values, spirit and culture. The Women Development Policy 2008 does not address the root cause of women’s oppression, which, she claims, is a capitalist system and the way women are viewed as commodities and sex objects in such a system. The section on women’s equal rights to movable and immovable property ultimately leads to inheritance, for the latter is mainly inherited from parents. Giving women equal rights to this is going against Islamic law.67 “The social system we live in, the laws that we have, have failed to ensure the security and the existing rights of women, how will they ensure even greater rights which are not even sanctioned by the Quran in the first place, which were not and would not be needed in an Islamic system where the equality of women was not even an issue because, in Islam, women were always in a position of honour anyway. What we need is not a policy but good governance, and this would be ideal if in accordance with the rules of Islam.”

5.5 COMMENT: The Quran, however, says that rulers must rule and make laws in consultation with their people. “There can be nothing more secular, the Quran was the light of secularism.”68 With regards to women’s rights, one must understand the social context in which the Quran was revealed. In pre-Islamic Arabia, girl children were not valued. Women were bought and 67 68

Fahmida Farhana Khanam, an architect by profession Yamin Chowdhury, a scholar of the Holy Quran and a physics teacher by profession

sold in the slave market. A woman who could give her husband a son would become the favourite wife and the others sold back in the market. Women were simply commodities. During this time, women did not work, they could not look after themselves and so the Quran put men in charge of women. Because they were responsible for their wives, men would inherit more from their parents than women, who did not have to look after their husbands. In the long run, it more or less balanced out. Today, this inheritance law is meaningless. Women -- except for women in a transition period who are illiterate and backward and cannot take care of themselves -- work and earn their own living and do not depend on their husbands. Parents can decide how they want to divide their property. The Quran does not say that you cannot will otherwise. With regard to marriage, the Quran never recommended it before one was ready. The material hazards had to be overcome first, and men had to be financially stable and able to look after their wives. Today we know that the hazards of marriage at a very young age are many and the Quran would not recommend it. As for womenâ&#x20AC;&#x2122;s participation in politics and peacekeeping missions, we only have to look to the prophetâ&#x20AC;&#x2122;s wife Ayesha who mustered up an army of men to fight the existing ruler. Women went on the battlefield, nursing, cooking, even shooting arrows and fighting when men fell short, never mind peacekeeping. Regarding the ratification of international treaties on womenâ&#x20AC;&#x2122;s rights, the liberation of women came from Islam. The West was very anti-woman; the essence of these treaties came not from the West but from Islam. So, obviously, ratifying these treaties would not mean going against Islam. The Quran has said that Allah wants good works from both men and women. There is no discrimination there. Thus men and women are seen as equal. Islam recognizes that reality is progressive. The Quran in many places talks about dawn or revolution, about transformation. It stresses on rationality, asking people to apply their conscience and not be superstitious. It is against all sorts of inhibitions and develops free thinking.

Islam is an anti-ritualistic, anti-conservative religion. The main theme of the Quran is not worldly life but creation. Very little of it is dedicated to laws. This is what bothers those who want to use religion to their own advantage, that there’s nothing with which to control people. We must be wary of whom, other than the Quran, we follow. The seal of prophet hood in Islam is clear in stating that no other human being will come as an authority after the Prophet. Why should we believe or follow these or any other groups who claim to be authorities on religion? Ones religion is ones personal belief. The Quran states that there is no compulsion in religion and that, henceforth, the right is clear from the wrong. There is no scope to go running after anyone for religious guidance. Whenever people turn to people for guidance, they are exploited.

CONCLUSION In Bangladesh, however, there is a clear demarcation between the “public” and the “private” or “personal”, with family affairs falling under personal laws governed by religion, where the State is reluctant to become involved. Thus, while Article 28(1) of the Constitution states that “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth”, Article 28(2) immediately follows with “Women shall have equal rights with men in all spheres of the State and of public life.” Consequently, in matters considered to be “personal” by the State, such as marriage, divorce, dower, maintenance, custody and guardianship of children and inheritance, citizens are governed by their respective Muslim, Hindu and Christian, religious-personal laws or “family laws”, the majority of which discriminate against women. There is no dearth of laws ensuring the human securities of women. Apart from having domestic legislation to ensure women’s rights and privileges, Bangladesh has also ratified international human rights instruments related to women and children, namely, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC). Despite the state’s will to abide by the spirit of these conventions very little has been done to actually promote the rights of women and children and to secure their protection from oppression. While greater law enforcement is certainly required, protective legislation is not enough unless they address the fundamental

causes of gender violence. Good laws, in themselves, cannot bring about justice. Laws, in order to be effective, must be realistic and enforceable. While laws have been approached as a solution to the problem of gender discrimination, the complexities involved have not been adequately gauged. Given the socio-economic scenario laws also have their limits in addressing violations against women. In the circumstances, sustained activism is essential to ensure application of laws to gain justice for women. It is necessary to develop a broader understanding of womenâ&#x20AC;&#x2122;s rights in order that they be efficaciously applied. The problem of violence against women will not simply disappear with the imposition of severe punishments through elaborate legal enactment but by changing deep-rooted perceptions that regard women as inferior to men and, therefore, dispensable. There is need to break the silence that is premised on â&#x20AC;&#x153;fear of reprisal, censorship of sexual issues, the shame and blame of those violated, unquestioning acceptance of tradition and the stronghold of male dominion. This can be achieved through a systematic campaign, involving every segment of the society including the judicial system, go non-governmental and governmental agencies, politicians, religious leaders, the media, the educational system and all members of the civil society, in raising profile of gender violence. There must be a concerted action amongst all concerned to eradicate this unholy practice. It must be understood and appreciated that there is immediate need to bring about a social transformation urgently that will resolve the politics of gender- based violence for once and for all. Although few Islamic states have ratified CEDAW, among those who have, all like Bangladesh, entered reservations on the grounds of religion. However Muslim countries were not alone in inserting reservations. Countries like Belgium, Brazil, Canada, Cyprus, Jamaica, the Republic of Korea, Mauritius and Thailand also registered reservations to CEDAW. Naturally international law can only address states having due regard for their sovereignty. It can achieve compliance with its norms only by using agencies of the state. This does not necessarily mean that nothing can be done to encourage the compliance by states with their obligations under international law. In so doing, it would be useful to explore the possibilities of changing existing religious and customary laws, which are contrary to the principles of human rights.

In this regard a clear understanding of the nature and operation of religion is necessary in order to identify the extent to which religion actually obstructs the implementation of womenâ&#x20AC;&#x2122;s rights and to which such obstruction is orchestrated by dominant male politics. Moreover, the statutory developments regarding women rights in Bangladesh so far as ensured are not exhaustive. The real scenario of women in Bangladesh is very rough. Here, a woman work as a man but she does not get equal salary. Women are still seen as a backward portion of the society. There are many hazardous violenceâ&#x20AC;&#x2122;s are faced by our women. However, the society is dominion by the male. So that women cannot get their justice in many extents. The statutory provisions should stricter & punishments should be more rigorous. Many of the statutory provisions provide less punishment like nominal amount of fines & less term imprisonment it should be increased. We are a developing country & habitually crime full. So, to get rid from the curse of violence against women and to develop as well as ensure women rights, we have to take all necessary steps to that effect. Finally, women are the half of the nation. Without their development we will not progress ourselves.