Revisiting Personal Laws in Bangladesh: Proposals for Reform 9004357343, 9789004357341

Table of contents :
Contents
Foreword • Meghna Guhathakurta
Foreword • Cécile Insinger
Preface • Kamal Hossain
Acknowledgments
List of Illustrations
Notes on Contributors
Introduction
1 Civil Laws Governing Christians in Bangladesh: A Proposal for Reform • Faustina Pereira
2 Combating Gender Injustice: Women and the Hindu Law of Personal Status in Bangladesh: A Comparative Analysis • Shahnaz Huda
3 Muslim Women’s Rights under Bangladesh Law: Provisions, Practices and Policies Related to Custody and Guardianship • Nowrin Tamanna, Muhammad Amirul Haq and Sara Hossain
4 Gender, Personal Laws and Practices of the Bengali Barua Buddhists of Bangladesh • Shahnaz Huda
5 Personal Laws of the Indigenous Peoples of the Chittagong Hill Tracts, Bangladesh: A Gender Perspective • Rani Yan Yan and Raja Devasish Roy
Annex 1: Hindu Marriage Registration Act, 2012
Annex 2: Guardians and Wards Act, 1890
Index

Citation preview

Revisiting Personal Laws in Bangladesh

Studies in International Minority and Group Rights Editors-in-Chief Gudmundur Alfredsson and Kristin Henrard Advisory Board Han Entzinger, Professor of Migration and Integration Studies (Sociology), Erasmus University, Rotterdam, The Netherlands; Baladas Ghoshal, Jawaharlal Nehru University (Peace and Conflict Studies, South and Southeast Asian Studies), New Delhi, India; Michelo Hansungule, Professor of Human Rights Law, University of Pretoria, South Africa; Baogang He, Professor in International Studies (Politics and International Studies), Deakin University, Australia; Joost Herman, Professor in Globalisation Studies and Humanitarian Action, University of Groningen, The Netherlands; Will Kymlicka, Professor of Political Philosophy, Queen’s University, Kingston, Canada; Ranabir Samaddar, Director, Mahanirban Calcutta Research Group, Kolkata, India; Prakash Shah, Senior Lecturer in Law (Legal Pluralism), Queen Mary, University of London, the United Kingdom; Tove Skutnabb-Kangas, Åbo Akademi University, Dept. of Education, Vasa, Finland; Siep Stuurman, Professor of History, Erasmus University, Rotterdam, The Netherlands; Stefan Wolff, Professor in Security Studies, University of Birmingham, the United Kingdom.

volume 14

The titles published in this series are listed at brill.com/imgr

Revisiting Personal Laws in Bangladesh Proposals for Reform Edited by Faustina Pereira Shahnaz Huda Sara Hossain

leiden | boston

Library of Congress Cataloging-in-Publication Data Names: Pereira, Faustina, editor. | Huda, Shahnaz, editor. | Hossain, Sara, editor. Title: Revisiting personal laws in Bangladesh : proposals for reform / edited by Faustina Pereira, Shahnaz Huda, Sara Hossain. Description: Leiden ; Boston : Brill Nijhoff, 2019. | Series: Studies in international minority and group rights ; volume 14 | Includes bibliographical references and index. Identifiers: LCCN 2018012186 | ISBN 9789004357341 (hardback : alk. paper) | ISBN 9789004357273 (e-book) Subjects: LCSH: Domestic relations--Bangladesh. | Religious minorities--Legal status, laws, etc.--Bangladesh. | Muslims--Legal status, laws, etc.--Bangladesh. | Indigenous peoples--Legal status, laws, etc.--Bangladesh. Classification: LCC KNG540 .R48 2018 | DDC 342.549208--dc23 LC record available at https://lccn.loc.gov/2018012186

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 2210-2132 isbn 978-90-04-35734-1 (hardback) isbn 978-90-04-35727-3 (e-book) Copyright 2019 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Foreword vii Meghna Guhathakurta Foreword ix Cécile Insinger Preface xiii Kamal Hossain Acknowledgments xv List of Illustrations xvii Notes on Contributors xviii Introduction 1 1 Civil Laws Governing Christians in Bangladesh 6 A Proposal for Reform Faustina Pereira 2 Combating Gender Injustice: Women and the Hindu Law of Personal Status in Bangladesh 58 A Comparative Analysis Shahnaz Huda 3 Muslim Women’s Rights under Bangladesh Law 145 Provisions, Practices and Policies Related to Custody and Guardianship Nowrin Tamanna, Muhammad Amirul Haq and Sara Hossain 4 Gender, Personal Laws and Practices of the Bengali Barua Buddhists of Bangladesh 195 Shahnaz Huda 5 Personal Laws of the Indigenous Peoples of the Chittagong Hill Tracts, Bangladesh: A Gender Perspective 212 Rani Yan Yan and Raja Devasish Roy Annex i Hindu Marriage Registration Act, 2012 247 Annex ii Guardians and Wards Act, 1890 251 Index 271

Foreword In 2017, we celebrated the 70th anniversary of what is popularly known in South Asia as the Partition of the Indian subcontinent in 1947. This marked the watershed for the emergence of India and Pakistan (and later Bangladesh) from the British colonial past to the modern precepts of the nation-state. A lot has happened since then: massive population movements, wars, Liberation movements, extremism and fluidity and ruptures in the construction of new nations and nationalities. But despite the changes, traditions persist, especially in the construct of new nation-states whose foundations remain entrapped in the traditional legal practice of a colonial era. Considerable reforms have been made in these laws and new progressive laws have been incorporated as state policies in keeping with the ‘brave new world’ that we were entering, but such laws often failed to traverse the faultlines left by socio-political forces of history. Reforms in religious laws sometimes affected only majority communities leaving minority communities in the shadows of rules and regulations considered inappropriate in a humanistic world. On the other hand customary practices in indigenous communities have provided more cultural freedom and protection than those provided by state laws. The concept of personal laws in South Asia incorporates the complexities mentioned above. Muslim personal law has effectively been amended among majority communities in Pakistan and Bangladesh, but not so for minority communities. This situation is a mirror reflection in the case of personal laws for the majority Hindu population in India. An additional complexity is that personal laws in South Asia are gendered and those sanctioned by religion are especially ensconced in structures of patriarchy, making legal reforms especially difficult and arduous as it entails digging deep into both societal values and legal provisions. But that does not mean it cannot be done. Reforms in South Asia have often been brought about by changes in power structure or by long drawn out people’s movements and by an assiduous rereading and re-interpretation of the law itself. In transiting from a colonial discursive practice into a more humanistic understanding of the world, there can be no short cuts! The writings in this volume is therefore very important not only for those in Bangladesh but for all those who seek to modernize and adapt traditional notions of justice into more universal ways of application. In Bangladesh we already have a vibrant movement arguing for a Uniform Personal Code or for seeking to do away with the Bangladesh state’s reservation in ratifying the uncedaw Resolution. Readings of customary law arguing for diversity is a

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budding­discourse among lawyers and professionals of the indigenous community. But more needs to be done. More boundaries need to be pushed, because we are indeed living in a world that carries a tremendous potential of destruction as it does of preservation. Protection of individual rights, of the environment can come about by first addressing local structures of power and patriarchy and then exploring notions of diversity that lie embedded in humanity and nature. The writings in this book provides just such an opportunity and therefore carries an appeal beyond the boundaries of nation, state and region. Meghna Guhathakurta

Foreword In May 2009 the South Asian Institute of Advanced Legal and Human Rights Studies (sails), a fairly young institute at the time, organised a small seminar on Women’s Property Rights. Professor Bina Agarwal, a development economist from New Delhi, India had been invited to speak. She had led the movement in India which had resulted in the passing of the Hindu Succession (Amendment) Act in 2005, a law that gave daughters equal rights to their male relatives when inheriting property. We ended up with a passionate and candid discussion shared by all participants on the current situation of succession, marriage and property ownership of Hindu women in Bangladesh. India was way ahead of Bangladesh with respect to reforming its laws and regulations in the personal sphere for its largest community, the Hindu community. It was an inspiring afternoon; clearly there was work to be done for Bangladesh. A year later, in April 2010, sails embarked on the ‘Combating Gender Injustice’ research project funded by the Netherlands Embassy in Bangladesh, with back office support from the law firm of Dr Kamal Hossain & Associates and the blessing of the Bangladesh Law Commission. This project was the starting point and the foundation of the publication before you. Three communities within Bangladeshi society were to be targeted. The daily lives of the women and children within these communities were then and still are today affected by personal laws reflecting gender inequality and a lack of will or power to reform these laws and procedures in line with modern views of civilization. We had chosen to study the personal laws of the Christian communities, the Hindu community and also to examine court cases and legal procedures related to custody and guardianship which involve women and children within the mainstream community of the country, the Islamic community, an area in which the rules of Shariʿa are in conflict with the provisions laid down in international conventions which Bangladesh has ratified. Three teams were formed, each led by experts in its field: Dr Faustina Pereira (brac), Professor Shahnaz Huda (University of Dhaka) and Barrister Sara Hossain, (Partner Dr Kamal Hossain & Associates). Dr Nowrin Tamanna an expert on Islamic family law from the University of Reading, UK joined the team on custody and guardianship, as did Advocate Muhammad Amirul Haq, a young advocate practicing in Dhaka. Students were selected to carry out the painstaking task of travelling through the country interviewing the members of the different communities and collecting the court cases. After all the interviews had been carried out, collected and the results interpreted, stakeholder meetings

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were held at the sails office to hear the opinions of experts and community members of each of the three communities on our findings. Again, the discussions were heated. We knew we had touched upon issues of importance. The entire research effort took over a year. sails presented its published reports of the ‘Combating Gender Injustice’ project in May of 2012. At least two of them have since known to be instrumental to the improvement women’s rights of minorities in the country. The results of the third report would need to be documented and is a task still awaiting us. We owe it to brill’s experienced Series Editor Professor Gudmundur Alfredsson that the book before you covers all of the religious and ethnic communities­in Bangladesh including the laws and customs of the Buddhist communities of the plains expertly covered by Shahnaz Huda and of the indigenous peoples living in the Chittagong1 Hill Tracts. We are extremely grateful to have acquired the active support of the only two people who would be able to take on the task of covering the personal laws of the indigenous peoples living in this area which is unlike mainstream Bangladesh. Raja Devashish Roy and his wife Rani Yan Yan joined the team of authors. Devashish Roy is the Chief of the Chakma Circle (the Chakma Raja) the largest of the eleven indigenous peoples living in the Chittagong Hill Tracts. The region has a separate status in the country due to its specific demography and the specific culture of its peoples. As a Barrister, Raja Devasish Roy and his wife Rani Yan Yan, who holds a PhD from Adelaide University, understand both the laws and cultures of the indigenous peoples as well as the meaning and implications of international conventions. This book is unique in its kind and hopefully its reader will gain some insight and understanding of the complex and diverse problems of families belonging to the various religious and ethnic communities which together make up today’s People’s Republic of Bangladesh. Cécile Insinger

1 Very recently the official spelling of several districts has been changed, for example Chittagong to Chattogram, Comilla to Cumilla. Throughout this book, however, the former spelling has been used.

Figure 0.1 The Supreme Court of Bangladesh. Photo by naser siddique/drik

Preface Bangladesh is a pluralistic society of diverse races, religions, languages, and beliefs where the followers of the four major religious communities—Muslims, Hindus, Christians, Buddhists—coexist with the followers of animism and other religious-cultural practices of various indigenous groups. The Constitution of Bangladesh underlines gender equality but at the same time it guarantees religious freedom to all citizens. The religious communities thus have the freedom to have personal laws govern the daily lives of its members in accordance with their religion even though, as many scholars and human rights advocates have argued, some provisions of these laws are perceived to be inconsistent with universal human rights norms, and specifically with the right to gender equality, as laid down in the international human rights treaties. Under the auspices of the South Asian Institute of Advanced Legal and Human Rights Studies (sails) and with the support of the Kingdom of the Netherlands studies were carried out with the aim to identify the specific legal issues relating to women’s rights within the family where gender inequality prevailed. The Bangladesh Law Commission and members of the National Human Rights Commission have reviewed and commented on them. Given that there has been no reform of Hindu or Christian law in Bangladesh since independence, two chapters focus on identifying the scope and possibilities for reforms in these areas. It is noteworthy that a uniform family code may be the ultimate aim, though the challenge this presents would be evident from the fact that even in India where Article 44 of the Indian Constitution provides that the state should endeavour to secure for citizens a uniform civil code, different religious personal laws still govern family matters. This volume also includes useful contributions on personal laws of indigenous peoples of the Chittagong Hill Tracts in Bangladesh and of the Buddhists of Bangladesh. Furthermore the volume examines the application of the Guardian and Wards Act, 1890, which is applicable to all citizens, and its specific impact in relation to disputes, where one or both parties are Muslims, with particular focus on the issue of custody and guardianship of children under Muslim law. The aim of this part of the study was to review the applicable laws, mechanisms and procedures with a view to frame recommendations for law, policy and procedural reforms. The study reviews the jurisprudence of the higher courts, which have contributed towards the evolving of some “best practices” and examines whether the lower courts, so as to ensure the paramount consideration of the child’s welfare, duly comply with these.

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This study based on empirical research, which examined documentary materials and interview data from the stakeholders and practitioners from four districts, aims to address the gaps that currently exist. The key developments in this area, as are reflected in the statutory provisions and case law, have been oriented around developing and applying the principle of the child’s welfare. Progressive contributions from the higher courts on matters such as the issue of women’s equal rights or entitlement issues have been valuable by-products. The objective of the study has thus been to explore gender parity in matters related to custody and guardianship through the lens of child welfare concerns and practices addressed by the courts. This volume provides an update on the reforms that have been made in response to widely-felt needs and identifies areas which must continue to engage efforts for further reforms, aimed at improving the lives of women and children. Dr Kamal Hossain

Acknowledgments The editorial team is greatly indebted to Dr Kamal Hossain, in his capacity as Chairman of the South Asian Institute for Human Rights and Advanced Legal Studies (sails), for his constant support for the research project “Combating Gender Injustice” which constitutes the basis of this volume. The staff of his law firm, Kamal Hossain & Associates, was invaluable in keeping the project operational. We are equally grateful to Dr Sharif Bhuiyan, the then Acting Director of sails, for his overall support and invaluable advice. Dr Uttam Kumar Das, the Deputy Director of sails at the time, also deserves our appreciation and gratitude for his unfailing hospitality in hosting our focus-discussion groups as well as his support in the publication process of the sails reports which, as mentioned earlier, constitute the basis of this present publication. The research assistants of the three separate research teams tirelessly carried out the legwork needed to collect the large amount of data and materials­ essential for the studies. In this regard we acknowledge the contributions of Farhana Lokman and Israt Jahan Tamanna for the research on the Christian community; Ragib Hasan, Ruma Halder, Nipa Roy, Nishal Farjana Nipa and Nusrat Jahan Urmi for the study on the Hindu Community and Chandan Kanti Nath, Raisin Jahan, Shaila Nasreen Shanta, Mohammad Amrul Kayes Khan and Md Saiful Alam for the analysis of the policies and procedures regarding custody and guardianship. Our thanks also go to Rokeya Chowdhury, who skilfully supervised and coordinated the activities of the three teams. We are deeply grateful to the many advisors we approached for background information and advice on the issues we needed to address. The then Chairman of the Bangladesh Law Commission (2010–2013), Dr Shah Alam, encouraged our efforts and kept in close contact with our progress and we gratefully acknowledge his support. The research would have not have possible without the funding provided by the Embassy of the Kingdom of the Netherlands arranged by Ms Henny de Vries. The quality of this publication has been greatly enhanced by the inclusion of chapters on the Buddhist laws and procedures of Bangladesh, which was done mainly on the advice we received from Professor Dr Gudmundur Alfredsson for which we will remain eternally grateful. We are immensely indebted to Ms. Lindy Melman of brill nijhoff for her support, her everlasting patience with South Asian timetables and her firm belief that this publication would eventually see the light of day, and to Pieter van Roon for his guidance of the manuscript’s production process with great patience and painstaking precision.

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Last, but not least, we thank our co-authors Dr Nowrin Tamanna, Muhammad Amirul Haq, Raja Devasish Roy and Rani Yan Yan for their tireless work and authorship to make this unique publication into the comprehensive work it has become.

Illustrations Figures 0.1 1.1 1.2 2.1 3.1 4.1 5.1

The Supreme Court of Bangladesh XII The Holy Rosary Church at Tejgaon, Dhaka 6 Recurring problems emerging from sixteen case studies 42 A newly married Hindu couple 58 A mother and daughter celebrating Bengali New Year, Dhaka 145 Celebrating Vesak at the Dharmarajik Buddhist Monastery in Dhaka 195 Winter in a Mro village, Chittagong Hill Tracts, Bangladesh 212

Tables 2.1 General responses to removal of prohibition against inter-caste marriages 76 2.2 Student responses to removal of prohibition against inter-caste marriages 77 2.3 General responses to introducing provision for Hindu marriage registration 82 2.4 Student responses to introducing provision for Hindu marriage registration 83 2.5 General responses regarding introducing a system of dissolution of marriage in Bangladeshi Hindu law 88 2.6 Student responses regarding introducing a system of dissolution of marriage in Bangladeshi Hindu law 88 2.7 General responses as to whether daughters should inherit along with sons 101 2.8 Student responses as to whether daughters should inherit along with sons 101 3.1 Statistics on disposal of cases in three Family Courts of Dhaka, 2014–2015 171 3.2 Manikganj Court statistics, 2010 171 3.3 Reported judgments of the Supreme Court of Bangladesh on guardianship and custody 182

Notes on Contributors Faustina Pereira is an International Human Rights Lawyer, and Gender and Development Specialist. She has served in senior leadership positions in national and international organisations, including International Development Law Organisation (idlo), brac and Ain o Salish Kendra (ask). She is an Advocate of the Supreme Court of Bangladesh and an Alumna of the Center for Civil and Human Rights at the University of Notre Dame (usa) and the University of Dhaka (Bangladesh). Faustina was a Postdoctoral Fellow at the Irish Centre for Human Rights at the National University of Ireland, Galway. Her book The Fractured Scales: The Search for a Uniform Personal Code (stree, Calcutta, 2017) was recognised and awarded by the Asiatic Society of Bangladesh for its impact on the lives of women and marginalised communities who suffer legal impediments. Shahnaz Huda has been teaching at the Law Department of the University of Dhaka since 1989, specializing in personal and comparative family laws, gender and child rights issues. Shahnaz Huda is regarded as an authority in her field and is frequently consulted by ngo’s and other institutions for advice. She is an also active Board member of the Manusher Jonno Foundation, a national initiative set up to promote good governance and human rights in the country. Professor Huda obtained her Doctorate from the University of East London, UK in 1996 and recently completed a post-doctoral research at the School of Oriental and African Studies (soas), University of London, UK as a Commonwealth Academic Fellow on family law in South Asia. She speaks and publishes very regularly on subjects of family law governing both the Hindu and the Muslim communities in the country. Sara Hossain is a barrister and a partner at the law firm of Dr Kamal Hossain & Associates, Dhaka (www.khossain.com). She is an Advocate of the Supreme Court of Bangladesh, and her areas of specialisation are in human rights and international law, constitutional law, and family law. Ms Hossain obtained her MA (Hons) in Jurisprudence from Wadham College, Oxford University in 1988 and was called to the Bar of England and Wales (Middle Temple) in 1989. In 1990 she was admitted to the Dhaka Bar and in 1992 to the High Court Division of the Supreme Court, and in 2008 she enrolled in the Appellate Division of the Supreme Court

Notes On Contributors

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of Bangladesh. She writes and lectures frequently on human rights, p ­ ublic ­interest law, access to justice and women’s rights. Her publications include ‘Honour’: Crimes, Paradigms and Violence against Women (Zed Books, London, 2005; Zubaan, India, 2006) and Forced Marriage; Remedies in South Asia and the United Kingdom (Interrights, 2011). Nowrin Tamanna is a lecturer at the School of Law, University of Reading, UK. She holds a PhD from the University of Kent, Canterbury, UK and an llm from the University of Chittagong, Bangladesh. Her research expertise and publications are in the areas of comparative equality jurisprudence, human rights in cross-cultural perspectives, feminist engagements with religious laws and public private divide and Islamic personal law reform. Since 2001 she has lectured on various subjects in the field of law at the University of Kent, the Oxford Brookes University and the University of Reading. She joined the Faculty at the Law School of the University of Reading in 2006, where she now lectures on Islamic Law, Gender and Law and Property Law subjects. Before joining the School she has worked with various human rights organizations, specializing in gender issues, law reform, alternative dispute resolution and legal aid in South Asia. Muhammad Amirul Haq is an Advocate of the Supreme Court of Bangladesh currently working with ‘Amir-Tanvir & Partners,’ Dhaka. He obtained his llm from the University of Dhaka in 2004 and has worked for various human rights and legal aid organizations during and after obtaining his university degree. After being enrolled as an Advocate in 2007 he became a member of the Dhaka Bar Association. He was granted permission to practice before the High Court Division of the Supreme Court of Bangladesh in 2009 and is a member of the Supreme Court Bar Association. Mr Haq takes a particular interest in the field of private international law and in all aspects of family law especially issues involving crossborder marriage, divorce, guardianship, custody disputes or adoption. He has experience on constitutional law, and commercial arbitration. He writes on legal and human rights issues in law journals, ngo reports as well as in daily newspapers. Raja Devasish Roy is the hereditary Chakma Raja and Chief of the Chakma Circle in the Chittagong Hill Tracts (cht). He heads a tribal system of civil and minor c­ riminal

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courts, advises district and ministry-level bodies on matters of his Circle, and supervises the work of approximately 180 Territorial Sub-Chiefs and about 1,500 Village Chiefs, who act as local judges, manage customary lands and forests and act as land revenue officials. He studied law in the United Kingdom and Australia and holds a Barristerat-Law degree from the Inn’s of Court School of Law, London. He started law practice in the late 1980s. In 2008, he was a Minister-of-State in the Interim Non-Party Caretaker Government of Bangladesh, in charge of the ministries of Environment & Forests and Chittagong Hill Tracts Affairs. Roy served as an indigenous-nominated member of the UN Permanent Forum on Indigenous Issues (unpfii) for two terms, from 2011–1016, occasionally acting as a Vice Chair. He has headed numerous caucuses and groups in relation to the adoption of the UN Declaration on the Rights of Indigenous Peoples and the Outcome Document of the World Conference on Indigenous Peoples. He also helped facilitate the final negotiations between the Government of Bangladesh and the indigenous peoples’ political party, jss, which led to the signing of the Chittagong Hill Tracts Accord of 1997 and ending the two decades old armed conflict in the cht. Raja Devashish Roy has several publications on indigenous peoples’ issues, including with iwgia, Minority Rights Group International, Routledge, Cambridge University Press, University of Arizona and University of Zurich, along with studies sanctioned by the unpfii. He lives in Rangamati, cht, along with his family and clan, the headquarters of his Circle and the cht region. Rani Yan Yan is a Rakhine-Marma indigenous woman from the Chittagong Hill Tracts (cht), Bangladesh. As a recipient of a Australian Development Scholarship, she completed her Bachelor’s degree and Honours of the Bachelor’s degree in Development Studies at the University of Adelaide, Australia, with high distinction. She received the Adelaide Graduate Research Scholarship in 2011 to pursue a PhD degree in Development Studies. However, she decided to return to cht to engage in development and indigenous peoples’ rights work at the field level, with plans to continue doctoral level studies after she has accumulated adequate field experience. In the cht, she engages in research, social and advocacy work, both in her personal capacity and, as the Chakma Rani, the consort of Chakma Raja Devasish Roy. As an independent researcher, consultant and activist, she has worked with and for a number of Dhaka and cht-based ngos in the field of indigenous peoples’ rights, with a focus on indigenous women’s rights.

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She is also the Advisor to the Chakma Circle, a traditional institution of indigenous peoples, headed by Raja Devasish Roy. Her work involves examining and evaluating the strengths and weaknesses of traditional institutions, including at sub-Circle levels, in terms of their capacity to ensure justice for their constituencies, especially women, and exploring avenues to initiate and sustain progressive reforms in the traditional leadership system and customary practices without compromising their semi-autonomous self-governing status. She is currently engaged in advocacy work on Climate Change (including redd+) and indigenous peoples’ rights. She lives in Rangamati, cht, along with her spouse and son. Kamal Hossain is a Senior Advocate of the Supreme Court of Bangladesh and Barrister; he joined the legal profession in 1959, after obtaining an Honours degree in Jurisprudence, bcl and doctorate in International Law, from the University of Oxford. Chairman, Board of Trustees, South Asian Institute of Advanced Legal and Human Rights Studies (sails). Member of Parliament (1972–75); Minister of Law, Foreign Affairs, Government of Bangladesh (1972–75); Visiting Fellow, All Souls College, Oxford (1975) and Visiting Professor, Free University of Amsterdam (1997). Vice-Chairman, Executive Council, International Law Association­(until 2016); Chairman, (Panel D-2), United Nations Compensation Commission, Geneva (1999–2005). Ad hoc Judge, International Tribunal for the Law of the Sea, Hamburg (2003) and Member, Arbitral Tribunal under Annex vii of the UN Convention on the Law of the Sea, in the Land Reclamation case involving Malaysia and Singapore, (2004–2005), and in the Maritime Delimitation case involving Guyana and Surinam (2005–2007). He has served as Chairman and Member in a number of International Arbitral Tribunals (icsid, icc and uncitral) and is currently a member of several icsid Tribunals. Meghna Guhathakurta taught International Relations at the University of Dhaka, Bangladesh from 1984 to 2006. She is currently Executive Director of Research Initiatives, Bangladesh (rib) a research support organized based in Dhaka, which specializes in action research with marginalized and minority communities. Dr Guhathakurta graduated from the University of Dhaka and received her PhD from the University of York, UK, in politics. Her field of specialization has broadly been international development, gender relations and South Asian politics. She is well published in migration trends in Partition histories, peace-building

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in post conflict societies and minority rights in South Asia. She is also A ­ ssociate Editor of the Journal of Social Studies published from the Centre for Social Studies in Dhaka. Meghna is currently Member of the National Human Rights Commission, Bangladesh and advisor to the International Chittagong Hill Tracts Commission, an advocacy watch dog, and has been project coordinator of rib’s project in the official Rohingya camps as implementing partner of unhcr since 2011. Cécile Insinger read Arabic and Law at Leiden University, The Netherlands and has worked for three academic publishing companies in The Netherlands, Martinus Nijhoff Publishers, Kluwer Law International and Brill Academic Publishers from 1985 until 2007. From 2007 until 2012 she lived in Dhaka, Bangladesh where she helped set up the South Asian Institute for Advanced Legal and Human Rights Studies (sails), lastly as a research coordinator working on the ‘Combating Gender Injustice’ research project. As per her return to The Netherlands in 2012 she led the editorial process for ‘Revisiting Personal Laws in Bangladesh—Proposals for Reform.’

Introduction The People’s Republic of Bangladesh is centrally located in South Asia and one of the eight countries that constitute the South Asian Association of Regional Cooperation (saarc). To the west, north and east, Bangladesh borders with India and to the southeast, it shares a 200-mile long border with Myanmar (formerly Burma). According to the World Bank,1 the present population of Bangladesh is approximately 164,438,782 with ten million of the inhabitants living in greater D ­ haka, the capital and largest city. Chittagong is the largest port city of the country and is the gateway to the Bay of Bengal in the south. This entire region was once a part of the Islamic Moghul Empire. After the latter’s defeat by the East India Company in the 18th century, they were forced to hand over their right of tax collection in Bengal, Bihar and Orissa to the English traders. The British Raj (Crown) took over the rule of the entire province of Bengal in 1858. After decades of British rule, in 1947 India gained independence from the British Crown and was partitioned into India and Pakistan. Bengal was divided into two, with the predominantly Hindu West Bengal becoming a province of India. On the other hand, the predominantly Muslim East Bengal, along with West Pakistan, constituted the State of Pakistan. In 1956 East Bengal was renamed East Pakistan. In 1971 East Pakistan, after a hard fought war of liberation, gained independence and emerged as the new and sovereign People’s Republic of Bangladesh. The Constitution of the People’s Republic of Bangladesh was adopted on November 4, 1972. The Preamble2 enunciates the four fundamental principles of the Bangladeshi republic: nationalism, socialism, democracy and secularism. Although not judicially enforceable, they constitute the basic principles of state policy. In 1988 an article 2A was added to the Constitution declaring Islam as the state religion.3 Out of a total of 164.4 million Bangladeshis today, roughly 89% are (Sunni) Muslim, 9% are Hindu and the remainder of the population largely belong to the Buddhist (mainly Theravada-Hinayana) and the Christian (mainly Roman Catholic) minorities. In the Chittagong Hill Tracts (cht) which lies to the southeast of the country, as well as in the northern regions, ethnic minorities practice their own marginal religions. The Constitution is the supreme law of Bangladesh. Article 28(2) of Part iii of the Constitution, which deals with fundamental rights, stipulates 1 World Bank. Bangladesh – Country snapshot. Washington, DC, 2016: http://documents .worldbank.org/curated/en/654391476782032287/Bangladesh-Country-snapshot. 2 Preamble to the Constitution of the People’s Republic of Bangladesh. 3 Article 2A - Constitution of the People’s Republic of Bangladesh http://bdlaws.minlaw.gov .bd/sections_detail.php?id=367§ions_id=24549. © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357273_002

2

Introduction

that women shall have equal rights with men in all spheres of the State and of public life.4 Article 41(1) of Part iii guarantees freedom of religion to all citizens including religious minorities and it allows each religious community the freedom to live according to the separate personal laws that have governed their communities since before independence.5 Such religious personal laws govern the institutions of marriage, divorce, dower, maintenance, guardianship, custody and inheritance as well as all other family matters. These laws, which are important to the daily lives of the men, women and children of Bangladesh who belong to various religious denominations, reflect the perception of gender inequality. The laws seem inconsistent with the universal human rights as are laid down in the international human rights treaties ratified by Bangladesh, including, most particularly, the Convention on the Elimination of All Forms of Discrimination against Women (cedaw), as well as the International Covenant on Civil and Political Rights (iccpr) and the International Covenant on Economic, Social and Cultural Rights (icescr). Discriminatory treatment of citizens in their day-to-day lives also adversely impact on their right to individual and collective development, as envisaged in the Sustainable Development Goals framework. In April 2010, the South Asian Institute of Legal and Human Rights Studies in Dhaka (sails) initiated the ‘Combating Gender Injustice’ research study which consisted of three studies initiated to investigate how the Christian, Hindu and Muslim communities in the country are affected by the laws and customs governing their personal lives. The aim of the study was to engage in a dialogue with relevant stakeholders; the results of which would provide a basis to formulate recommendations for law, policy and procedural reform. The study received full support from the Bangladesh Law Commission. The reports of the research efforts containing proposals for law reform were published in July 2011 and were taken into consideration when law reforms were proposed for the Christian and the Hindu communities. For instance, the report on Christian law was specifically referred to as a basis for the Bangladesh Law Commission’s Final Report on its Recommendations for the Amendment of the Divorce Act of 1869 (regarding the divorce of Christian couples) and the enactment of a new law on adoption by Christians.6 In 2012, the Hindu Marriage Registration Act came into force providing for the registration of Hindu marriages in Bangladesh. Although this may be construed as a first step towards taking concrete steps to improve the position of 4 Part iii Art 28 (2) Constitution of the People’s Republic of Bangladesh, http://bdlaws.minlaw .gov.bd/sections_detail.php?id=367§ions_id=24576. 5 Ibid. Art 41(1) b, http://bdlaws.minlaw.gov.bd/sections_detail.php?id=367§ions_id=24589. 6 https://www.google.nl/webhp?sourceid=chromeinstant&ion=1&espv=2&ie=UTF#q=Dr.+Sh ah+Alam%2C+Bangladesh+law+commission%2C+christian+family%2C.

Introduction

3

married Hindu women in Bangladesh, its scope is limited since the requirement for registration is only optional. The debate on making marriage registration mandatory is still ongoing as this publication is going to press. The SAILs initiated reports contained in the abovementioned ‘Combating Gender Injustice’ series which dealt with the family law issues of the Christian, Hindu and Muslim communities in Bangladesh have been updated, revised and collected into this present volume that now lies before you. To give a more complete overview of situation of the ethnic and religious minorities in the country an additional chapter has been added with a recount of the personal laws of the Buddhist community which, after the Hindu community, is the third largest religious community in the country. Another important addition is the chapter on the laws and customs of the indigenous peoples of the Chittagong Hill Tracts—communities following traditional rules and customs in the remote and hilly region of country. The Christian community makes up around 0.25% of the total population of the country. Most Christians in Bangladesh are members of the Roman Catholic Church. Catholicism was introduced in the region by Portuguese merchants in the 16th century through the port of Chittagong or “Porto Grande,” as it was referred to then. As of 2017, Bangladesh has eight dioceses including two archdioceses. The only Cardinal resides in Dhaka. A variety of Protestant denominations also call Bangladesh home. The Protestant missionary William Carey established the first Baptist Missionary Society in Calcutta in 1793. The first chapter of this book contains findings of the field study conducted within the Christian community in Bangladesh carried out by Dr Faustina Pereira and her team between April of 2010 and May of 2011. The prime focus of this particular research study was to review the legal areas relating to women’s rights within the family and in what way the personal religious laws govern the lives of Christian families. The research team conducted interviews with members of the Christian communities throughout the country and organized consultations with the stakeholders of these communities. The chapter concludes with recommendations for legal reform to help improve the lives of the Christians of Bangladesh. The consultations which were held with the leaders and members of the Christian community on the proposals for reforms were led by the (then) Archbishop of Dhaka, Patrick D’Rozario, who is now Cardinal. The proposals laid out in this publication have also been referred to in the Law Commission Report. The Report refers to its own consultations with the Archbishop of ­Dhaka, who echoed the need to look at how these laws affect Christian families in their everyday lives in greater detail. In April 2016 Pope Francis’ document entitled Amoris Laetitia (Joy of Love) came as a welcome paradigm shift in the Church’s approach to dealing with the everyday challenges of family life

4

Introduction

especially where there are issues of abuse, rejection, violence and discrimination. This is a landmark document which ought to be taken into account when determining how to rectify historical wrongs committed against certain groups of people. The second chapter by Dr Shahnaz Huda deals with the Hindu community that constitutes the largest religious minority in Bangladesh. Immediately after the partition in 1947, when the region that is now Bangladesh emerged as East Pakistan, a significant portion of the middle-class, urban Hindu population left the region. During and after the Liberation War with Pakistan in 1971, this exodus continued. After 1971, the Hindu population in Bangladesh has continued to decline and currently they form only 9% of the population. According to a study by the Pew Research Center, the percentage of Hindus will shrink to 7% of the population of Bangladesh by 2050.7 Despite such dire prognosis, Hindus continue to be the largest minority group of the country. Given the fact that the Buddhist community also follows the Hindu personal family laws, Hindu laws have a major impact on the lives of a substantial portion of the population of Bangladesh. The chapter contains the findings of field studies conducted by Dr Shahnaz Huda and her research team from April 2010 to May 2011 investigating the prevailing laws that govern the family matters of the Hindu community in the country. In May and June of 2016, further research was carried out for the purpose of validation as well as to discover new information. In view of the fact that since the partition of the Sub-continent there has been no significant reform of Hindu personal laws in Bangladesh, apart from the recent introduction of provisions for the optional registration of Hindu marriages, the present study focuses on identifying the scope and possibilities for necessary and holistic reforms in this area. The third chapter is of a different nature in the sense that the authors widen the focus to include the review of court cases and procedures affecting the personal lives of citizens, especially of women and children. The pages of this chapter present the findings of the research team led by Dr Nowrin Tamanna, Advocate Muhammad Amirul Haq and Barrister Sara Hossain. It examines the application of the Guardians and Wards Act of 1890 which is applicable to all citizens and its specific impact in relation to disputes where one or both parties are Muslims. With particular focus on the issue of custody and guardianship of children under Muslim law, the aim of this part of the study was to review the ­applicable 7 http://www.globalreligiousfutures.org/countries/bangladesh#/?affiliations_religion_id= 0&affiliations_year=2050®ion_name=All%20Countries&restrictions_year=2014.

5

Introduction

laws, mechanisms and procedures and accordingly frame recommendations for law, policy and procedural reforms. The study also reviewed the best practices developed by the higher courts and examined whether these are duly complied with by the lower courts ensuring the paramount consideration of the child’s welfare. As empirical research that examined documentary materials and interview data from the stakeholders and practitioners from four districts, this study was expected to address the gap in literature that currently exists in this particular area. The key developments in this area, as revealed from the examination of the statutory provisions and case law, have been oriented around developing and applying the principle of the child’s welfare. As such, progressive engagements from the higher courts in such cases with the issue of women's equal rights or entitlement issues have essentially been indirect, a consequential by-product of developing child welfare jurisprudence. Accordingly, the strategy of the study has been to explore gender parity in matters related to custody and guardianship through the lens of ‘child welfare’ concerns and practices addressed by the courts. The fourth chapter, also authored by Dr Shahnaz Huda, gives an overview of the history of Buddhism in the region and the laws and customs which are practiced by the Barua Buddhists of the plains also known as the ‘Bengali’ Buddhists. After Hinduism, Buddhism is the third largest minority religion in the country. In the final chapter Raja Devasish Roy and Rani Yan Yan, the leaders of the Chakma people give a detailed overview of the laws and customs of the indigenous peoples living in the hills south east of Chittagong bordering Myanmar, the Chittagong Hill Tracts (cht). Eleven indigenous groups live in these hills divided over three Districts, Bandarban, Rangamati and Khagrachhari. They differ from the Bengali’s in language, culture and religion. The authors review the gender prevalence in the personal laws and customs of the indigenous peoples and suggest ways how to implement international standards of women’s rights into their culture while retaining their unique culture, identity and selfgovernment at the same time. The Chakma people largely practice Buddhism. The gender-sensitive personal laws which are prevalent in South Asian societies will continue to be debated for generations to come. This volume is unique in so far that is manages to give a voice to members from each separate religious community in the country who are affected by the current laws and practices in force in Bangladesh. The reader will get an overview and gain understanding of the legal issues pertinent to each of the communities that need to be addressed. We wish you an interesting read and hope that the following pages have succeeded in giving a voice to women and children in Bangladesh. The Editors

The Hague/Dhaka, 2019.

Chapter 1

Civil Laws Governing Christians in Bangladesh A Proposal for Reform

Faustina Pereira

FIGURE 1.1 The Holy Rosary Church at Tejgaon, Dhaka. Photo by Mohamad ASAD/DRIK



Introduction: Research Study Objectives and Methodology

The existing civil laws governing Christians in Bangladesh are obsolete, discriminatory and insufficient. To identify the defects of these laws and suggest possible reforms, a research study entitled ‘Christian Family Laws: Problems, Prospects and an Attempt towards Reformation’ has been undertaken. This publication is the result of this research study. This research exercise has been conducted under the Combating Gender Injustice project undertaken by the South Asian Institute of Advanced Legal and Human Rights Studies (sails). What is unique about this particular study is that it brings to life the voices of those who suffer the consequences of laws which are archaic, discriminatory and defective. These voices provide us with the necessary context to find ways to overcome defective laws and put forward workable solutions. © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357273_003

7

Civil Laws Governing Christians in Bangladesh

The ­anguish emerging from these voices also urge concerned individual actors, human rights activists, institutional and faith-based bodies, civil society organizations, and above all the State, to take urgent steps towards reform of personal laws governing religious minorities. In other words, this study is meant to be action oriented, with a clear objective of going beyond desk research to being a think piece for all stakeholders involved in the process of law reform. These stakeholders range from individual victims and survivors, law reform activists, legal and social service providers, and Church bodies and faith-based groups to the Law Reform Commission, relevant Parliamentary Standing Committees, relevant Ministers and wider civil society groups. This study captures, through case studies, the voices of individuals within the Christian community in Bangladesh—the primary stakeholders in a law reform process. The case studies have been derived from field-based interviews. The field trips were conducted in localities with a concentration of the Christian community. Interviews with sixteen individuals were included in this study. The interviewees reside in five districts of Bangladesh, namely Gopalgonj, Khulna, Netrokona, Chittagong and Dhaka. The selection of interviewees has been based on different profiling factors such as age, sex, ethnicity, denomination, demographic location, educational qualification and p ­ rofession. All interviewees provided written consent to have their stories included in this study and they were given a chance to correct or modify their narrative, where necessary. An overview of the profile of the interviewees is as follows: Sex

Female

Male

14

2

Bengali

Indigenous

12

4

Catholic

Protestant

6

10

Demography

Urban 7

Rural 9

Level of Education

Literacy level to below secondary level

Secondary level and upwards

10

6

Ethnicity Denomination

The case studies maintain a simple format. Each case provides the profile of the interviewees, a summary of their incident and an articulation of the relief sought—as closely as possible in their own words. At the bottom of each

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Pereira

case is a box which identifies: (a) legal issues emerging from the case; (b) measures taken by the individual towards remedy, and; (c) an observation on what ­existing remedy as recognized by law could have been taken. Care has been taken to protect the identity of the interviewees, although in almost every case the interviewee had granted the research team permission to reveal their identity. As such, pseudonyms have been used throughout this study: all female i­ nterviewees are called “Anamika” and all male interviewees are called “Sudip.” Besides this, for additional reference, other female characters in each case study are called Shima and Kona, while the additional male character is called Shopon. Prior to moving on to the Case Studies, it would be necessary to have a broad overview of the civil laws that govern the Christian population in Bangladesh and the chronological background of efforts towards reforms of these laws.

What Are the Civil Laws Pertaining to Christians in Bangladesh?

Civil laws are part of that branch of law, simply put, which seek to resolve noncriminal disputes such as contracts, property ownership, divorce, child custody, adoption and damages for personal and property matters. They deal with the individual, as opposed to a collective or the State. For the purposes of this study, civil laws are those laws which govern the private or family life of individuals and range from issues of marriage, annulment, prenuptial agreements, matrimonial property, alimony, divorce, guardianship and custody of children, and inheritance. Due to historical reasons, in the Subcontinent, these civil laws are also known as religious-personal laws. These civil or religious-personal laws are recognized within the Constitution.1 One of the reasons the religious-personal laws entered official parlance was that British colonial administrators noticed the inter-relation between customary rituals, religious beliefs and personal practices.2 The civil laws governing Christians which were passed in Parliament are as follows, in chronological order: a) b)

The Divorce Act, 1869 (Act No. iv of 1869) The Christian Marriage Act, 1872 (Act No. xv of 1872)

1 It is recognized under Part iii of the Bangladesh Constitution, which provides for the fundamental rights of individuals and groups. 2 These rights are specifically found in Article 41 of the Constitution.

Civil Laws Governing Christians in Bangladesh

c) d)

9

The Married Women’s Property Act, 1874 (Act No. iii of 1874) The Succession Act, 1925 (Act No. xxxix of 1925)

There are certain other laws which are applied uniformly to all citizens in their personal matters irrespective of their religion. These laws include: a) b) c) d) e) f)

The Domestic Violence (Prevention and Protection) Act, 2010 (Act No. 58 of 2010) The Nari-o-Shishu Nirjatan Daman Ain, 2000 (Act No. viii of 2000) (The Suppression of Violence Against Women and Children Act) The Dowry Prohibition Act, 2018 (Act No. xxxix of 2018, repealing and replacing Act No. xxxiv of 1980) The Family Courts Ordinance, 1985 (Ordinance No. xviii of 1985) The Family Courts Rules, 1985 The Guardians and Wards Act, 1890 (Act No. viii of 1890)

As evidenced in the list above, these laws encompass important areas of a person’s life, such as birth, marriage, death and property rights. However, although the grievances that an individual suffers under these laws affect all similarly, the remedies available and the consequences of those remedies are not the same for all—the distinction is based on the religion and sex of the sufferer. When the remedies available are antiquated, defective and insufficient, the suffering of parties increases manifold. Women are the greatest victims of this discriminatory distinction. The anguish experienced by Christian women and men in Bangladesh, caught up in the tangled web of archaic civil-religious-personal laws, bolstered by patriarchal notions of benevolence, is the subject of scrutiny in this study.

Christian Personal Law Reform—The Long and Winding Journey

The process to reform and update the civil laws relating to Christians in the Subcontinent precedes the birth of Bangladesh by several decades, going back at least to the early 1930s.3 In 1930, an initiative was taken by the Churches of India, Pakistan, Burma and Ceylon, to review and update the laws governing Anglicans, laws which by then were already sixty years old. Simultaneously, records indicate that Mr. Krishna Mohan Banerjee of the then Christian 3 Based on a conversation in 2004 with Mr. Sudhir Adhikari, then President of the Jatiya Church Parishad of Bangladesh (nccb—32 National Council of Churches).

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Pereira

­ ssociation of Bengal advocated the reform of Section 10 of the Indian Divorce A Act.4 Such forward thinking activism did not come in isolation but from within a larger consciousness of nation building and nationalism. The role of Christians in nationalist and secular movements in our social and legislative history is well documented. A snapshot of this can be captured in the following words of Mr. Sardar Patel, leader of the Indian National Congress and later Home Minister and Deputy Prime Minister of India, after a Resolution had been passed by the All India Conference of Indian Christians (aicic) in 1943 to surrender their privilege of a separate electorate in the legislature on the basis of their religious belief in the interest of national unity, … the Christian minority with its good gesture laid the foundation for a truly secular, democratic state where everyone is equal in every way to everyone else … may God give us the courage and wisdom to do the right thing to all manner of people as our Constitution provides.5 Unfortunately, however, despite the rich legacy of early Christian thinkers in the nation building process, not much progress (or at least not much sustained progress) continued in the field of legislative reform as far as Christians in India, Pakistan and Bangladesh were concerned. There are a number of historical and political reasons for this. But the primary reason, at least in the case of Bangladesh since 1971, can be identified as the sporadic nature of reform efforts and the lack of a clear and recognized stand on these efforts by the Catholic Church. A bold initiative to revamp the efforts was spearheaded by the Jatiya Church Parishad Bangladesh (nccb-National Council of Churches Bangladesh) in September 2002. This attempted to bring about similar change in Bangladesh to that which had occurred in India the previous year through the amendment of the Indian Divorce Amendment Act 2001.The progress in India was a culmination of many years of struggle by the Joint Women’s Programme, a platform of women’s and human rights organizations throughout India. A Press Release that was issued immediately after the Act was passed, states that the amendment to the Indian Divorce Act was … a milestone in the long struggle of the Community, especially the Joint Women’s Programme, the Catholic Bishops’ Conference of India (cbci)

4 Ibid. Also, The Religions of the World, Vol. i, The Ramakrishna Mission Institute of Culture, Calcutta, 1938, at http://www.archive.org/stream/religions. 5 Pothacamury, T., Church in Independent India (Bombay: Examiner, 1961).

Civil Laws Governing Christians in Bangladesh

11

and the National Council of Churches in India (ncci) that came together on their own to update its outdated laws relating to marriage, divorce, adoption and succession. The legislation by way of amendment of the Indian Divorce Act is also unique as an ecumenical effort to the entire community, including women’s groups within the community.6 The Jatiya Church Parishad of Bangladesh (nccb) law reform initiative was supported by a significant number of individuals in the Christian community and also some faith-based organizations, notably the ywca (Young Women’s Christian Association). The initiative proceeded with a three-fold perspective in mind. First, to make the Christian community more aware of the civil laws and norms that govern them in terms of their relationship to the state and their wider society. Second, to examine the existing civil laws and norms that govern the Christian community in Bangladesh and engage the community in an effective exercise to find out the gaps and deficiencies in these laws, and to explore ways to overcome the shortcomings of the laws in light of the present realities of community life. Third, to move together, as a community, to effectively reform and update the laws so that they achieve social justice within the community while effectively responding to the needs and realities of the individual members of the community in their personal and family life. These exercises initiated by nccb involved many rounds of meetings and study groups on the various aspects of the Christian civil laws, where members of all denominations of the Christian community participated. Some of the more significant findings of these exercises are outlined below. Lack of Awareness: Very early into the process, it was found that most members of the Christian community are unaware of their rights and obligations as citizens of the country. They see themselves in isolation from national life and locate their respective Churches as their first points of reference for any issues, concerns or problems. Many do not know that there is a separate and distinct set of civil laws that govern them as Christians in their daily personal lives,

6 “Christians Hail the Indian Divorce Amendment Act 2001,” New Delhi, 2 September 2001. Joint Press Statement by the Catholic Bishops’ Conference of India (cbci), National Council of Churches in India (ncci) and Joint Women’s Programme. It was signed for each organization respectively by Archbishop Oswald Gracias, Mr. A. Francis Julian and Mrs. Jyostna Chatterjee.

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Pereira

such as in case of marriage, dissolution of marriage, guardianship of children or inheritance. Confusion over Dual Application of Canon Law and Civil Law: It was also found that there is widespread confusion about the application of these civil laws vis-à-vis religious or spiritual or canonical laws. Christians do not always understand how and to what extent they are governed by these dual or multiple sets of laws. Moreover, the active resistance of the Canon lawyers at the time to recognize the role of civil law and to engage meaningfully in an exercise to distinguish between civil and canonical laws, further entrenched confusion and even fear among Christian sufferers seeking redress under civil law. Procedural Uncertainty: Those who resorted to the legal process in cases of civil marriage, annulment or judicial separation, shared their experiences and explained how difficult it was to obtain proper remedy due to the archaic nature of the existing Christian civil laws. They also mentioned facing obstruction by their faith leaders, who warned them against resorting to civil authorities like the police or courts or secular organizations that provide mediation or legal aid services. Moreover, it was found that because the existing Christian personal laws have not been updated for nearly 150 years, there have arisen many confusing, illogical and sometimes unlawful practices. For example, some Ministers who are licensed marriage registrars do not know how to obtain and renew marriage licenses; neither are they certain how to accept or reject solemnization of certain marriages. Much confusion arises on the subject of inter-faith and inter-religious marriages. The reality of multicultural and multi-religious social co-existence means that ways to deal with this reality must be found, rather than denying the fact that it is the reality. Priests, Pastors and Ministers raised genuine questions as to how to deal with the various dimensions of marriages. For example, where one party to the marriage is a minor according to civil law (less than 18 for women and less than 21 for men), but was of the marriageable age as per religious or canonical law, what would be the status of the parties, and would the officiating Priest or Pastor be held liable for violating a statutory law? There are also grey areas in matters of mixed marriages or marriages out of cult. The questions of inheritance and division of property appeared to drive many of the concerns surrounding mixed marriages. Racial and Other Bias: In general all participants felt very strongly on the need to remove the very blatant colonial-racial bias in the language of the law. Overall, the nccb law reform study exercises have shown that the existing civil laws in general are useful and valid for the Christian community, but their shortcoming is in their ineffectiveness to respond to present day realities and complexities. For example, some of the real life complexities the laws need to

Civil Laws Governing Christians in Bangladesh

13

answer but are unable to in their present form, emerge through the following questions: (a) What is the status of Christian parties where they swear an affidavit before a notary public and believe in good faith that they are married—not knowing that marriage by “affidavit” is in fact of no effect under the law? (b) When a husband or wife commits bigamy under various false identities or through religious conversion, what is the status of the Christian party? (c) What happens when either one or both of the parties to a marriage are minor in terms of the Child Marriage Restraint Act of 2017? (d) What happens when one party to the marriage is non-Christian or converts to a different religion from Christianity? How does this affect inheritance rights of the parties? How does it affect the status of the children? (e) What happens where adoption of a child takes place between a couple, and then one party converts to another religion? (f) What is the effect of permitting the widow or widower to receive the entire property in the absence of lineal descendants to the exclusion of the kindred? These questions are but a sampling of many such questions—but they all indicate the reality of the present day complexities and how urgent it is that the laws that are to address them updated and operational. The participation of Catholic Bishop Theotonius Gomes, csc, Auxiliary Bishop of Dhaka, in some of the nccb proceedings is of significant importance. Further visible participation by the Catholic Church in this exercise will be of great assurance to the wider Christian community and most importantly those who suffer and will continue to suffer until the laws are reformed. Similarly, the establishment in 2010 of the Bangladesh Christian Lawyers’ Association (bcla) was a very welcome step. It is noteworthy that one of the objectives espoused in bcla’s Constitution is to work in the area of law reform governing personal lives of Christian citizens—once again this being a reflection of the present day needs of the community. The two most significant drivers for reform of civil laws for Christians lie in increasing disputes in matters of land and family matters. These two drivers are of course symptoms of more deeply embedded causes. Like the rest of the population dealing with push and pull factors of the 21st century, Bangladeshi Christians too are faced with issues of increased mobility, participation in the market sphere including through migration flows, and the accessibility of information, choices and plurality of power structures. One can only hope that Church bodies, thought leaders and opinion makers within the Christian

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Pereira

community in Bangladesh will demonstrate recognition of the fact that isolationism is not the answer—that solutions within the community are interconnected to the national, local, economic, technological, environmental and geopolitical realities within which the community functions. Reforming laws, updating tools to deal with the changing needs of the community, and a forward looking strategy are necessary tools for survival in the 21st century. Apart from the inter-community exercise as elaborated above, several Bangladeshi women’s and rights-based organizations have been working in the area of reform of religious-personal laws and have conducted in-depth studies of the laws relating to the various religious communities of Bangladesh including the minority Hindu, Christian and Buddhist laws.7 We also note the developments in civil laws pertaining to Christians globally. In early 2011, a Bill had been put forward in the Philippine Congress making violence, infidelity and abandonment grounds for annulment. The objective of the Bill is to remove the existing discrimination against poor people who wish to have their marriages annulled. According to a bbc report, whether the Bill ultimately succeeds or not, it does highlight “a glaring disparity - while poor people can be trapped for years in abusive marriages, it is not uncommon for the rich to have more than one marriage annulled.”8 Similarly, we see the results of a referendum in another Catholic majority country, Malta, where in May 2011 an overwhelming majority of the population voted in favor of legalization of divorce. Malta is one of only two countries in the world (with the Philippines) to ban divorce—apart from the Vatican. Chile was the last country to legalize divorce in 2004 after overwhelming public pressure.9 Previously, couples could only apply for a legal separation through the courts, or seek a Church annulment—a complex process that can take up to nine years. A third option was to get divorced abroad, and the divorce would then be valid in Malta. This last option is again similar to the Philippines case, which is an anti-poor alternative, being open only to those who have the financial means to travel abroad.

7 Such as the work of Bangladesh Mahila Parishad on a Uniform Family Code; or “Paribarik Ain e Bangladesh er Nari” (Women in Family Law in Bangladesh) by Ain o Salish Kendra, or research and documentation on the issue by Women for Women, Dhaka. 8 “Philippines eyes easier marriage annulment” by Kate McGeown, bbc News, Manila, 18 January 2011 at http://www.bbc.co.uk/news/world-asia-pacific-12217090. 9 “Malta Votes ‘Yes’ in Divorce Referendum,” bbc News Europe, 29 May 2011 at http://www.bbc .co.uk/news/world-europe-13588834.

Civil Laws Governing Christians in Bangladesh



Case Studies



Case Study 1 Background of Respondent

Age Sex District Marital Status Denomination Ethnicity Profession Academic Qualification

15

: 47 years : Male : Natore : Married : Catholic : Bengali : Garbage collector and caretaker of a local community chapel : Class iii

Summary of the Incident On 17th January 1987, I married Anamika by signing an affidavit. She was then 17 years old. However, although after a few days we were accepted into our family, the villagers didn’t accept it. My parents then went to the Priest for advice. The Priest advised us to live apart for three months, after which we were to live together for 6 months to see if we were mentally compatible. If we were found to be compatible only then would he have us married in the Church. We followed his advice, and got married in the Church 8 or 9 months later. We had two sons. Between 1989 and 1993 my wife left home a number of times. The last time she ran away, it was to Dhaka. In Dhaka, she started to sublet and worked in a garments factory. I tried very hard to convince her to come home and after a few attempts, she finally agreed. In 1993, our entire family moved to Dhaka. Before I found work at the Church, I used to work as a rickshaw-puller. By this time, Anamika was talking on the phone with Shopon, who was a friend of her sister’s husband. In 2009, Anamika quarreled severely with my mother and ran away. I filed a General Diary complaint with the police. After ten days’ time, Anamika came back. On the 24th July, Anamika left the house, saying she was going to the hospital, but she didn’t come back. I sought help from police, but they did not help in any way other than making an inquiry. On 8th November, I finally found her at Shopon’s home and brought her back. On 13th December, 2009 after a fight between us, she left the house and after that I did not see her. When I sought the assistance of rab [Rapid Action Battalion] to talk to Shopon, he denied everything.

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Pereira

Life is becoming intolerable for me with two children and a sick mother. Everytime Anamika left the house; I have had to take care of the two children. Should I work or run the house? I’m getting ill as well. As I am a Catholic, I went to the Church where I was told that I cannot divorce her and was told that if I would get remarried, the Parish Council will isolate me from the community. But more than anything else what bothers me is that I don’t even know where she is. Identified issue

Measures taken

Available legal remedy

• Child marriage. • A General Diary • Initiate out of court • Flawed advice by c­ omplaint was made settlement through Priest. in the police station mediation for • Ground for divorce but they didn’t take separation. by adultery exists further steps beyond • File a suit for divorce but no avenue to inquiry. on the grounds of exercise it, plus wilful adultery as per Section ­obstruction by Parish 10 of Divorce Act 1869. Council. • File a suit for judicial separation on the grounds of Anamika’s unknown whereabouts for two years or more. • File a suit for bigamy.

Case Study 2 Background of Respondent

Age Sex District Marital Status Denomination Ethnicity Profession Academic Qualifications

: 37 years : Female : Netrokona : Married : Protestant : Garo : Works in a Church-based organization ­handicraft artist : Class v

Civil Laws Governing Christians in Bangladesh

17

Summary of the Incident When I was 14 years old I was married to Sudip. My parents assumed that he would look after our family property and me, but instead he tried to sell the properties. He was addicted to alcohol and gambling. He spent a lot of money on these addictions although he had no source of income, except my family property. He often forced me to tell my parents to divide our family property and give me my share; I went there with his maternal uncle and aunt and lived with them as he refused to return home. But I couldn’t live there more than a month, as he would rarely come to visit me at his Uncle and Aunt’s house. I did not even know what he was doing in Sylhet. I wanted to live with him, but he did not let me. After three or four months, he returned and arranged a meeting with relatives from both sides, and claimed that I wanted my portion of the property from my mother. He also said that he wanted to sell the property, take me to Sylhet and cultivate jum. I refused to go with him because I had no trust in him. My parents did not divide the property; as a result he became agitated and threatened me in many ways. Being frightened, my parents sent me to my Aunt’s house in Dhaka. My husband was living with his sister. The Pastor of the local Church and some of our relatives tried to make him understand, but he did not come back to our house. The Pastor or Church did not enquire about us after that. Around 1990, he suddenly went to India. I have heard that he is now in Sylhet. Since 1990, he has never tried to maintain any contact with me. In reality, we lived as a husband and a wife for only one year. He never took any responsibility as a husband, but legally he is my husband. I don’t want him back in my life. But I want to be free of this artificial marital relationship.

Identified issue

Measures taken

Available legal remedy

• Child Marriage. • Living separately ­without legal separation. • Silent role of the Church.

• No measures were taken except family discussion.

• Arranging Salish with the help of Church, local ngos or Union Parishad. • Can file a suit in the Court for judicial ­separation on the ground of desertion for more than two years.

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Case Study 3 Background of Respondent

Age Sex District Denomination Marital Status Ethnicity Profession Academic Qualification

: 59 years : Female : Netrokona : Protestant : Married : Garo : School Teacher : Higher School Certificate, p.t.i.

Summary of the Incident I am a school teacher. Around 1998, I was introduced to Sudip through one of my colleagues. He was a follower of Hinduism. When he introduced himself, he said he was from a renowned family. One day, he came to our home with his sister and proposed marriage to me. I refused because of his religion. Afterward, he converted to Christianity and sent another marriage proposal to my family. My family members and my colleagues found him eligible for me and convinced me to marry him. We got married according to Christian rites. Gradually, after we married, his real character was revealed. He was in fact illiterate and belonged to a very poor family. He married me for the property I had inherited from my mother. He often insisted that I sell the property. When I refused, he started torturing me, physically and mentally. He had already received money from several people based on a verbal sale agreement of transferring my property. Afterwards, the buyers harassed me by coming to my home. They forced me to sign the sale deeds. Thus, I was compelled to transfer most of my property without getting a single penny for it. Sudip told me that he had bought a shop with ten lakh taka from the market situated in Mymensingh. He had withdrawn 40,000 taka from my bank account by forging my signature and also took a loan from Agrani Bank by mortgaging my property. We had a paying guest named Shima. An extra marital affair developed between Shima and my husband. One day, I saw them in an intimate situation. Whenever I protested, my husband beat me. I forbade her from my house. On 27th November 2005 my husband went to Shima’s home and didn’t come back for 5 days. When I asked him about where he was, he became very angry. He beat me viciously and was about to hit me with a large sickle before my neighbors saved me. Later that day, my husband left home. On 2nd February 2006, I filed a case with the local Commissioner and Chairman against my husband alleging adultery and misappropriation of property.

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His abettor, “Thotkata” Razzak, and his subordinate hooligans used to threaten me often. For this reason, on 8th march 2006, I filed a GD against them in the police station. I have also sought justice from rab, but no one has helped me. I have heard he married a Hindu woman and is living in Mymensingh. But our marriage is not void yet. Once I had a lot, now I have nothing. I am ruined because of him. I want him punished. Identified issue

Measures taken

• Adultery. • Domestic Violence. • Bigamy and Fraud. • Misappropriation of property.

• On 6th February, • Can file a case for 2006, Anamika Bigamy under the applied to the Penal Code, 1860. Chairman of • Can file a case for Durgapur against her attempt to murder husband for adultery, under Section 307 of physical torture and the Penal Code, 1860. misappropriation • Can file a case for of property. On 8th judicial separation. March, 2006, she filed GD in the police station against her husband and his abettors. She also has sought relief from rab on 2nd July, 2007. No one was able to give her adequate relief.



Available legal remedy

Case Study 4 Background of Respondent

Age Sex District Marital Status Denomination Ethnicity Academic Qualifications Profession

: 40 years : Female : Dhaka : Married : Catholic : Bengali : Bachelors’ Degree : Service Holder, un organisation

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Summary of the Incident I got married to Sudip in September 1988 by signing an affidavit and without the consent of parents from either side. I was 18 years old and Sudip was 19 years. We lived in a rented house. After one or two months, we moved to Sudip’s father’s house. In 1989, in a local church, our marriage was solemnized in the presence of both of our families. That year, we had our first son. Before our marriage, Sudip used to take Phensedyl. I thought he would lose the habit once we were married, but he couldn’t. He went to a rehabilitation centre 8 or 10 times to get rid of his addiction, but even then he couldn’t. He would come home drunk, quarrel with me and throw me out of the room. In 1991, my second son was born. My in-laws had a good financial status, but Sudip never worked. After marriage, I was allowed to study until I earned my h.s.c, but was not permitted to seek employment. For all family-related expenses, even the milk for the children, I had to ask my mother-in-law or brother-in-law for money. The situation deteriorated further when Sudip started to have an extramarital affair with his distant maternal cousin, Shima. Sudip used to go for drinks at her house, or would go fishing out of the city with Shima’s brothers for two or three days. He started a new business and gave her brothers jobs in his office. But I was never allowed to ask anything about Shima. Because of these terrible circumstances, in 2001, I took my two sons and went to my mother’s house. Sudip would visit the boys but would not speak to me. A few months later, Sudip stopped paying school fees for the boys. Having no source of income, I was unable to pay the fees myself, and looked for a job. Afterwards, he took the boys with him. In the meantime, he visited Shima more and more frequently. I started working around December 2001. Sudip called me sometimes and asked me to return to him, but placed the condition that I would have to cut off all contact with my mother, leave my job, and never ask about Shima. Out of hope that our marriage could still work, I went back to my in-laws’ house in 2004. I left my job. But Sudip did not talk to me and his behavior with me was erratic and inconsistent. He would not give me money for expenses. We didn’t even live in the same room. He scolded me for no reason. And he still kept seeing Shima. I couldn’t tolerate it anymore, so I ran away and never returned. Sudip sometimes used to phone and ask me to send him divorce papers. Finally, I was so irritated by him that I sent him an affidavit claiming that I divorced him on 11th September. He told everybody that I divorced him, as if it is my fault. He doesn’t let me see my sons, except once a year at Christmas. The boys can’t visit me on their own for fear of their father. I want to see my sons, even if it was just once a month. I went to the Church several times to find a solution to this problem. I spoke to the Parish Council members and Priests several times. But every time they recommended that I try to improve the relationship with Sudip. Other than

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this, I have received no advice nor have I been shown any other steps. Through my own effort, I have completed my Bachelor’s degree and have a respectable job at present. I don’t want to be stuck in this nightmare relationship anymore. I just want to see my sons and breathe freely. Identified issue

Measures taken

• Child Marriage. • Sought assistance • Adultery. from local Church • Domestic violence. and Priest. • Substance abuse. • Assistance given: • Restriction of advice to try to freedom of improve relations movement and with husband. profession. • Parallel relationship and habitation with another outside of marriage. • No formal separation or divorce. • No effective help from church. • Mother not being allowed to meet her children.

Case Study 5 Background of Respondent

Age Sex District Marital Status Denomination Ethnicity Occupation Academic Qualifications

: 51 years : Male : Gazipur : Married : Catholic : Bengali : Accountant : Graduate

Available legal remedy • Can go to Family Court for custody and guardianship of children. • Can file a case for judicial separation or divorce under the Divorce Act of 1869. • Can file a case under Nari-o-Shishu Nirjatan Daman Ain, 2000 for assault and battery.

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Summary of the Incident We got married in a Church in 1984. After marriage, my wife completed her graduate and post-graduate studies. Our only son was born in 1986. Our conjugal life was happy enough. But soon after she started her job, we used to quarrel with each other on different issues. She used to torture me mentally. Sometimes I lost my temper and I hit her. She left home frequently after quarrelling. She never told me where she used to go then. I looked for her at our at relative’s house. After some days, she would return home willingly. Our family members tried to settle our problems through family discussion. They forbade me to beat her. I also promised not to beat her again. One day at a point of quarrel she hit me with a bottle. Angrily, I hit her back. During 22 years of our marital life she left home six or seven times without informing anybody. Sometimes she took our son with her. Once she was gone from our home for one month. I had a good relationship with my son. But these quarrels between his mother and myself created a distance between us, because he believed his mother’s words that the fault was all mine. In December 2006, she permanently left our home. After that we sat in the local Church three or four times to resolve the problem. But my wife refused to return. She applied to Christian Marriage Tribunal under Archbishop for separation of marriage. I tried to bring her back, but failed to do so. On August 2008, I got married again by executing an affidavit. When my first wife found out about this, she filed a case against me for torture and bigamy under section 498 of the Penal Code. I was sent to jail as a result of this case. I was in jail for 29 days, but was enlarged on bail during the appeal proceedings. During this time my second wife gave birth to a child. On the final appeal hearing, I was Identified issue

Measures taken

• Domestic violence. • • Irreparable breakdown of marriage. • Bigamy. • Misleading application of affidavit to formalize bigamy. • Uncertainty on legal status of second union and child born of the bigamous union.

Consultation with Priest towards reconciliation. Defended criminal proceedings of bigamy in Court.

Available legal remedy • Can file a case for judicial separation or divorce under the Divorce Act of 1869. • Steps to recognize legitimacy of second child.

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acquitted. All I want now is for my first wife to live in peace and to let me live in peace.

Case Study 6 Background of Respondent

Age Sex District Marital Status Denomination Ethnicity Academic Qualifications Profession

: 48 years : Female : Dhaka : Married : Protestant : Bengali : Graduate : School Principal

Summary of the Incident I was married in 1981 according to Christian rites. We knew each other before marriage. My husband worked for an airline. After the marriage, we lived in my sister-in-law’s house for some days, and then moved to my brother-in-law’s house in Savar. My husband was very apathetic in family matters. He used to come home very late at night. My brother-in-law, being much older, watched out for our welfare. In 1982, my daughter was born. My husband was negligent towards her also. I even had to ask my brother-in-law to buy milk for her. My husband would never keep one job for too long. He contacted me once in six months. He spent all his earnings on playing cards and drinking. Whenever I protested, he treated me badly and sometimes beat me, which was becoming a regular phenomenon. My son was born in 1986. Then I got a job at a school run by a faith-based organization. I was commuting between Dhaka and Savar everyday, which was difficult for me. So, in 1991, we moved to my mother’s house. However, this was on a rental scheme. In Dhaka, my husband started a travel agency business. In 1996, my husband told me that he would be going abroad for two years. At first I didn’t agree, but I conceded under his insistence. After he left, people from the travel agency would come by my house asking for money my husband owed them. At that time, I had no idea that my husband had collected so much debt. The creditors would scream and shout outside my house. With a lot of difficulty I paid off the debt. My husband was living abroad illegally. He contacted once every six months. In the beginning, he sent some money, but then slowly all communication

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from him became more and more infrequent. When he did call and if I asked him about coming home, he would get angry and hang up. The relative he lived with abroad informed me that my husband was reckless. He drank alchohol and lived with other women. When the relative objected to my husband’s lifestyle, my husband left his house. He lived abroad like this for ten and half years. In the last five years, he has spoken to me on the phone just twice. In November 2006, he came home without informing me. When I got the news, I sent my younger brother to receive him at the airport. But instead of coming to my house, my husband went to stay at his sister’s. From there, he went to their house in their home district. He phoned once or twice from there, Identified issues

Measures taken

Available legal remedy

• Domestic violence. • Anamika instituted a • She may file a case • Adultery. suit for maintenance under section 498 • Inadequate or nonin the Family Court of the Penal Code of maintenance of wife and the Court gave a 1860 on the ground and child during judgment in favour of bigamy. marriage. of Anamika. • Bigamy. • Her husband is giving her maintenance through the Courts in the prescribed manner. • Anamika has one unmarried daughter; the Court has ordered the husband to provide two and half thousand taka each for her and her daughter. • In addition, the maintenance will increase at a rate of 10%. • The husband’s appeal is ongoing.

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but only to hurl abuse at me. His elder sister used to come to my office and complain against me to my colleagues. They wanted to talk with me at the office, but I wanted to do a shalish (mediation) at a more neutral place, such as a Church. However, they didn’t show any eagerness to do this. In 2007, my husband came to Dhaka and bought a flat in the north of the city. In Dhaka, he lived together with a woman named Shima. In April 2008, he sent me a legal notice announcing divorce. I didn’t answer that notice. I instituted a suit for maintenance against him in the Family Court. In 2009, the Court dismissed my husband’s petition for divorce and awarded me a monthly maintenance of 5,000 taka. This amount will be increased at the rate of 10% per year. In addition, the Court awarded me two lakh and twenty thousand taka as past maintenance. Accordingly, my husband gave me that amount. My husband appealed against the dismissal of the divorce petition. The suit is continuing. In the meantime, my husband called a Christian marriage registrar at his home and married Shima. They are now living in his flat. I want him to be punished for what he has done to my children and me.

Case Study 7 Background of Respondent

Age Sex District Denomination Marital Status Ethnicity Profession Academic Qualifications

: 27 years : Female : Dhaka : Protestant : Married : Bengali : Unemployed : Class ix

Summary of the Incident I got married in November 2000. I was around 19 years old then. When we got married, my father was made to pay dowry to my husband. After our marriage, my husband demanded more dowry and often physically and mentally tortured me for not being able to give more dowry. Physical torture included actions such as punching, slapping, hitting, pinching, kicking, pulling my hair out, pushing, and shoving. In 2002, my son was born. Even after that he continued torturing me. He often claimed money from my father. My father was unable to give him the money, so my husband compelled me to file a false theft case against my father. When my son was one and a half years old, I left the house because I could not stand the intolerable physical and mental torture. Later, I sent him a legal

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Pereira

notice professing that I do not want to continue marital relations with him. Thus our conjugal life came to an end. I never went to the Court for divorce. After a few days, he even ended all communication with his son. Now my son is 8 years old, and my husband never paid for any financial expenses of our son. I don’t even know where he is. I am living in my father’s home. Identified issue

Measures taken

• Domestic violence. • Presuming legal notice to be a tool of obtaining divorce. • Living separately indefinitely. • The husband is not providing maintenance to her and their son.

• No measures were • Case can be filed taken against the under Nari-o-Shishu physical torture. She Nirjatan Daman Ain, is living separately by 2000 (amended in sending just a legal 2003) against the notice. She did not physical abuse. take any legal steps to • Case can be filed get maintenance for under the Dowry herself and their son Prohibition Act, 2018. from her husband. • Case can be filed in the Family Court under the Family Courts Ordinance, 1985 for maintenance of the child. • Can seek permanent separation or dissolution under the Divorce Act of 1869.



Available legal remedy

Case Study 8 Background of Respondent

Age Sex District Marital Status Denomination Ethnicity Profession Academic Qualifications

: 46 years : Female : Netrokona : Married : Protestant : Garo : Housemaid : Class viii

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Summary of the Incident I am protestant, but my husband is Catholic. We got married in 1982. As I was protestant, I had to fulfill some formalities of the Catholic Church before marriage. According to Garo practices, after marriage a husband resides with his wife at his in-law’s house. But I resided at my husband’s house. He was an employee of bdr. After 4 years of marriage, I gave birth to our daughter. By this time, my husband resigned from his job and came back home. After returning, he used to stay out most nights. He was an alcoholic. He used to drink frequently and beat me. I heard people say that he had illicit relations with other women. My mother-in-law and other relatives tried their best to convince him not to beat me but they failed. I was pregnant in 1987 when I returned to

Identified issue

Measures taken

Available legal remedy

• Adultery. • Physical torture. • Grievous injury to the wife’s parents. • Living separately indefinitely. • Not providing the maintenance of the wife and the children.

No steps were taken to resolve the issues.

• Can file a case in the District Court or High Court Division for divorce on the ground of adultery coupled with desertion without reasonable cause for two years or upwards under Section 10 of the Divorce Act, 1869. • Can file a case under the Penal Code, 1860 for hurt and grievous hurt, specially under Section 323 and Section 325. • Can arrange Salish with the help of relatives, Priest of the Church, Union Parishad. • Can seek the help of organizations which work for the protection of women rights. • Can file a suit in Family Court seeking maintenance for children and herself.

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my parent’s home. Our second child was born at my parent’s house. After some days, my husband came to take me back, but being aware of his presence, I ran away from my parents’ home. Being unable to find me, my husband brought a group of people and beat my parents. No measures were taken against this. Since then, we have lived separately. I have no contact with him. He does not provide maintenance for my children or me. I have been bearing my children’s expenses by working as a maid in people’s homes.

Case Study 9 Background of Respondent

Age Sex District Marital Status Denomination Ethnicity Profession Academic Qualifications

: 42 years : Female : Gopalgonj : Judicially Separated : Protestant : Bengali : Unemployed : Class viii

Summary of the Incident I got married at the age of 13 or 14 years. As I was a minor, two Pastors from the nearby Churches refused to conduct my marriage. Later, the Pastor of another Church conducted my marriage. I was the second wife of my husband; his first wife was dead. We had two sons. From the very beginning of my marriage, my husband used to torture me physically. He used to beat me with logs, and once he tried to drown me in the pond. Other times, he hit me on the head with heavy metals. He had relationships with a number of other women in our locality. One day, I found my husband with a woman in an intimate situation. When I protested, my husband and the woman together beat me severely. I went to the Church to seek redress. The Pastor of the Church advised my husband to be aware of God and lead his family life in the way that God had directed. But the situation remained unchanged. Then the Chairman and the Member of the Union Parishad and the Pastor arranged a Salish. Sudip agreed in the Salish that he would maintain our family life properly, but his promise was fake. I came back to my father’s home. My husband filed a GD entry against me alleging that I had stolen 50,000 taka and gold jewelry.

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Finding no other alternative, I filed a case against him under Nari-o-Shishu Nirjatan­Daman Ain, 2000 for physical torture. He was arrested and was in police custody for some days. Later, he begged me for forgiveness. To give him another chance, I forgave him, withdrew the case and went back to him. I took him to the Church several times. But all my endeavors to change his mentality failed. He used to torture me frequently, and more than once I bled badly from my wounds. My husband instituted a suit for separate living in the Judge Court. The suit continued for a year. After a year, the Court decreed for judicial separation and ordered him to pay me 50,000 taka as alimony. My children wanted to stay with me and the Court ordered as per their will. Many years have passed; until now my husband has only given me 10,000 as alimony, and has never paid anything for the maintenance of the children.

Identified issue

Measures taken

Available legal remedy

• Child marriage. • Church and Pastor • Suit can be instituted • Domestic violence assisted by way in the Family Court including attempt to of mediation and for the maintenance murder. advise. of the children. • Improper execution • Case was filed by • Case can be filed of Court’s judgment Anamika under under Section 307 of alimony. Nari-o-Shishu of the Penal Code, • Adultery. Nirjatan Daman Ain, 1860 for attempt to • Non-payment of 2000 (amended on murder and under maintenance of their 2003) but afterwards Section 325 of the sons. she had withdrawn Penal Code, 1860 the case. against causing • Sudip instituted grievous hurt. a suit for judicial separation. • Court decreed for judicial separation and ordered Sudip to give her 50,000 taka, but it was not properly executed.

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Pereira

Case Study 10 Background of Respondent

Age Sex District Marital Status Denomination Ethnicity Profession Academic Qualifications

: 39 years : Female : Netrokona : Married : Protestant : Garo : Nursing Home Attendant : Class ix

Summary of the Incident I had a relationship with Sudip when I was in class ix. I became pregnant with his child. Then my parents pressured us to get married. With the consent of the members of both the families, we got married by signing an affidavit in 1993. We had our first son that year. Sudip went to Dhaka in 1995. He worked in a buying house of a garment factory. The Minister of the nearest Church used to tell me to get married in a Church. But after going to Dhaka, my husband seldom came home. For this reason, we could not get married in Church. I went to Dhaka twice to bring him back home, but failed. He said that it was  not possible for him to live with me. He came and went whenever he pleased. In 1997, we had our second son. In the year 2000, he came to Netrokona for the last time. After that, I never saw him again and have had no contact with him. Nobody knows where he is. We never had any fights and he never Identified issue

Measures taken

• Execution of affidavit as • No legal measures a marriage document. have been taken • Desertion by husband except discussion for more than 10 years. within the family. • Not providing the maintenance for Anamika and children.

Available legal remedy • Can institute a suit in the Family Court for the maintenance of the children under Family Court Ordinance, 1985. • Institute steps to verify location of husband and initiate mediation.

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tortured me, but he also never told me why it was impossible for him to live with me. I will accept him if he comes back to me now. But I will never a­ ccept him if he has remarried.

Case Study 11 Background of Respondent

Age Sex District Marital Status Denomination Ethnicity Profession Academic Qualifications

: 37 years : Female : Rangpur : Married : Baptist : Bengali : Hostel Superintendent : Higher School Certificate

Summary of the Incident My husband was Hindu. He converted to Christianity and began working at the Bangladesh Bible Society. We got married in June 1989, according to Christian rites. Within five or six days of marriage, he started to beat me. The first five months of our marriage, we lived in Dhaka. Afterwards, we went to my in-laws’ house in Khulna. Though my husband was Christian, he kept in contact with his father’s family. My husband built a home there and we lived in that house. In 1991, my son was born. We lived in Khulna, but since my husband worked in Dhaka, he only used to come home on holidays. I lived in my in-laws’ house for five years. My mother-in-law used to complain about me to my husband. They were little things, but my husband would then beat me. Once, he came towards me to try to set me on fire. I got scared and went to my father’s house with my son. In 1997, I signed an affidavit and sent a notice to my husband stating that I wanted to live separately from him. We lived separately for 2 and a half years. One day, during this time, my husband took my son from school to his home. I tried very hard to get my son back. I went to the Church. They told me to get help from the Court. For two and a half years I didn’t see my child, nor my husband. My husband tried very hard to make me return to him. I never did. Finally, in 1999, with a promise to never torture me again and with the aid of my relatives, he brought me back. From then on, we lived in Dhaka. In Dhaka, I took a job with the ­Nazarene Mission. After only two months of peace, my husband started

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t­orturing me again. The Nazarene Mission tried to help us reach an understanding, but they were unsuccessful. And so it continued. My husband was diagnosed with liver cirrhosis in 2007. At this time, due to his treatment costs, my son’s schooling came to a stop. Six months later, my husband and son left for my in-laws’ house because I was unable to pay their living expenses in Dhaka. His condition got worse. When I received the news that it was really bad, I started towards his home. On the way, I heard that he had passed away. He died on 6th December 2007. They buried him according to Hindu customs. My son and I then returned to Dhaka. They didn’t let me take anything back to Dhaka from the house, even though my husband had bought everything. The properties at my in-laws’ house still haven’t been divided between us; everything is with my brotherin-law. I went to Khulna a couple of times to see the Chairman. I collected the necessary papers. I even collected the succession certificate, but I don’t know what I can do so my son can get his share of the properties. I want my son’s inheritance rights to his property and I want the house built by my ­husband back. Identified issues

Measures taken

Available legal remedy

• Does a Christian child have inheritance rights within a Hindu Family?

• Determination of her legal status. Advice provided to her: As her husband was converted to Christianity neither he nor his son are entitled to any property from his father’s Hindu undivided family. The property which he acquired during his lifetime will be inherited by his son and his wife.

• Arrange a shalish for an equitable distribution of that portion of property which was acquired by her husband during his lifetime. • She may file a suit in civil Court for that portion of the property which was self-acquired by her husband.

Civil Laws Governing Christians in Bangladesh



33

Case Study 12 Background of Respondent

Age Sex District Marital Status Denomination Ethnicity Occupation Academic Qualification

: 38 years : Female : Gopalgonj : Married : Protestant : Bengali : Handicraft artist : Class viii

Summary of the Incident I got married in 1991, following the Christian rituals. My husband was much older than I. My parents-in-law were not living then. My husband was the eldest among his siblings. We were living in a joint family. They have four brothers and two sisters. One day, my husband suffered a stroke and became ill, and, after a few days, he died. But his family property has been not partitioned. I have no children. After the death of my husband, his brothers, their wives, and my sister-in-law Identified issue

Measures taken

• Inability to • No steps have exercise rights as been taken yet. widow under the • No shalish has Succession Act of been conducted. 1925. • Where intestate leaves no lineal descendants the widow inherits the full property. • Psychological torture and threat by in-laws.

Available legal remedy • Property can be partitioned by the help of local administration. • A GD can be filed against the member of the in-laws house for threatening her. • Can arrange a Salish with the help of church and local administration. • Suit can be instituted in the District Court to divide the family property.

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started to ill-treat me. They tried to throw me out of my husband’s house. Whenever I go outside for any reason, they try to take possession of my house. They throw my belongings outside of the home. In fear of them I cannot go outside at night. They tell me that my husband has no property left as everything was spent to bear the cost of his treatment. As I have no children I am entitled to the whole of his property. This is the very reason they want to throw me out of my home. All the documents related to the property are in their possession. So I don’t know what portion is my husband’s within his family property. I now have to spend the days in fear. I still live in my husband’s house, but am gripped with uncertainty.

Case Study 13 Background of Respondent

Age Sex District Marital Status Denomination Ethnicity Profession Academic Qualification

: 58 years : Female : Chittagong : Married : Catholic : Bengali : Unemployed : Higher School Certificate

Summary of the Incident I was a nurse in a missionary hospital. I had the obligation to take care of my mother and nephew. From the hospital, I went to Middle East to work as a nurse and lived there for 22 years. After returning, I rejoined the same Missionary hospital. Kona, the daughter of Sudip, was a patient in that hospital. Her mother died in 2002. She asked me to be her new mother. She convinced her father to marry me. And thus I was married to Sudip in April, 2005. I started a happy married life with my husband. Sudip’s ex-mother-in-law, a niece of Sudip’s ex-wife and Kona also lived in that house. But gradually everything changed. Due to instigation by the niece, everyone in the family began to misunderstand me and thus bickering started. I was mentally disturbed. At 1 a.m. on 30th April 2008, Sudip beat me severely and I fainted. The next morning, I left home and went to the Priest of the nearest Church. He was also my relative. He knew everything about our family problems, since I always went to him for advice. He used to give solace and would advise me to find a way to compromise with the situation. On that

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35

­ articular day, he had to go to ­Khagrachari for work. He told me to be patient. p I was frustrated and then went to a member of the ‘Peace and Justice Committee’ and the Chairman of the ‘Parish Committee’ for help. The Chairman of the Parish committee took me to a member of a religious organization, and with that member, I went to a legal aid organization and applied for Mediation. On 11th May 2008, Sudip filed a complaint case in the Chief Metropolitan Magistrate Court, alleging that I had threatened to kill him. On the 23rd of July 2008, the legal aid organization arranged a Salish. A representative of the legal aid organisation, a member of the Peace and Justice Committee, the Bishop’s Secretary, Sudip, his lawyer and I were present at the Salish. There Sudip complained that Kona became sick because of me, but the fact was that she was sick before our marriage. He said that he and Kona wanted to live separately from me. For the sake of Kona’s mental peace, I agreed. It was also decided that Sudip would give me 10,000 taka per month as maintenance. He was told to keep in touch with me by telephone and to try to improve our relationship. Sudip gave the money regularly for 6 months through the Bishop’s Secretary, but he never contacted me. In August 2008, I received a legal notice which informed that in June, Sudip instituted a suit for separation. The legal aid organization appointed a lawyer on my behalf. For some reason, the lawyer never contacted me and did not submit a written statement to the Court. The case is about to be decreed ex parte against me. Sudip has changed his residence; I don’t know where he is now. I am 58 years old; I don’t want to go to Court now. I am unemployed, but I have to look after my sick mother. Legally I am Sudip’s wife. Or am I not? Do I have any right to get maintenance from my husband? Identified issue

Measures taken

Available legal remedy

• Domestic violence. • Non effectiveness of Salish. • Non-performance of the appointed lawyer. • Non-payment of maintenance of the wife.

• Steps taken by Church • Application for to resolve situation. Judicial ­Separation • A Salish was held by the or divorce and also legal aid organisation. for alimony by • Sudip filed a suit for ­contesting the suit. separation, but no effective steps were taken. • Suit decreed ex parte against Anamika.

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Case Study 14 Background of Respondent

Age Sex District Marital Status Denomination Ethnicity Occupation Academic Qualification

: 25 years : Female : Madaripur : Married : Protestant : Bengali : Unemployed : Class iii

Summary of the Incident I got married when I was 11 years old. As I was a minor, the Pastor of the Church refused to conduct my marriage. Later, through false documents showing an increase in my age, a marriage was conducted by another Pastor. After the marriage, I lived at my in-laws’ house for the first two months. After that, I came to my father’s house and stayed here for four to five years. Later, I returned to my in-laws’ house and lived there for six months. When I got married, the age of my husband was 30 years. At that time, he was having sexual relations with his niece. After her marriage, he started having a sexual relationship with his nephew’s wife. At present, he has married his nephew’s wife but he has not separated from me. In 2001, I got pregnant. During my pregnancy, I got seriously burnt while cooking at my in-laws’ house. Even then I was not taken to a hospital; rather, they applied “kabiraji” (herbal) medicines to the injured part of the body, which made my condition worse. Seeing my distress, one of the Priests of a local Church came forward to take the responsibility for my treatment. Then the members of my in-laws’ household told him that they would take care of me. But I was not treated. When the Priest came to visit again, he saw my condition and had me admitted to the local hospital, and gave one of my brothersin-law 20,000 taka for my treatment. My brother in law spent only 5,000 taka for my treatment and misappropriated the rest of the money. When the Priest found out, he became angry and stopped bearing my medical expenses. I stayed for six months in the local hospital and, after that, I was transferred to the Barisal General Hospital. At the end of six months, I gave birth to a child. I did not see my child, but later I came to know that my mother-in-law sold the child. When I was in the Barisal General Hospital, neither my husband nor any members of their family, except my mother-in-law, ever came to see me. I was

Civil Laws Governing Christians in Bangladesh

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in the hospital for almost one and a half years. The members of my family did not know about the accident. Besides this, my parents were quite old. Seeing my miserable condition, one of the Sisters of Catholic Mission took pity on me and arranged for better treatment. She arranged to have me transferred to Dhaka Ganoshasthya Hospital. I stayed there for another six months, and then I returned to my parents’ home. I have no contact with my husband. No Salish was arranged to settle the problem, nor have I taken any other legal steps. I do not have the economic solvency or power to institute or continue a suit. I am still at my parents’ home.

Identified issue

Measures taken

• Child marriage. • Until now, no • Adultery. measures have been • Incestuous adultery. taken. • Physical torture by husband. • Bigamy. • Criminal negligence. • Non-payment of maintenance.

Available Legal Remedy • Under Section 10 of the Divorce Act, 1869 a suit for dissolution can be instituted in the District Court or High Court Division on the ground of adultery, or incestuous adultery, or of adultery coupled with desertion without reasonable excuse for two years or upwards. • Under the Family Courts Ordinance, 1985 a suit can be filed for maintenance of wife and child. • Measures under the Penal Code for ­grievous hurt and criminal negligence.

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Case Study 15 Background of Respondent

Age Sex District Marital status Denomination Ethnicity Academic Qualification Profession

: 29 years : Female : Chittagong : Divorced : Catholic : Bengali : Post Graduate : Student

Summary of the Incident In accordance with Christian rites, I was married to Sudip on 29th December 2003 at a local Church. On my wedding night, Sudip misbehaved badly and hurled abuse at me. I became mentally disturbed and upset upon being mistreated on my wedding night. But I never told my parents. Sudip had a strong desire to go abroad and he told my father about it. He expected that my father would send him abroad. After getting married, I went with my husband to his grandparents’ house. He hardly talked with me and always mistreated me. I heard from my husband’s neighbors that he was in a relationship with his maternal aunt. His maternal uncle was paralyzed. I had been living with him for 40 days and during this time I had not had any physical relations with him. At last, I told my parents about my plight and said I did not want to stay with him anymore. My parents tried their best to solve the problem and approached Sudip several times, but could never find a resolution. One of Sudip’s uncles, who is a Priest of the local Church, had married us. I have reason to believe that he, the Uncle, knew of his nephew’s abusive personality. We went to the local Church many times and sought a divorce, but were always turned away because we were told that as Catholics, we are not allowed to get divorced. Finally, a local women’s organization helped me file a suit for separation. The Assistant Judge’s Court acting as Family Court, passed an ex parte decree in my favour. After that, I had no relationship with Sudip. My family and I thought that the problem was solved. But at a program on women’s rights arranged by ywca in Dhaka, I met a lawyer who told me that although I obtained an order to live separately, my marriage still persisted in the law. A complete separation from

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the marital bond would only come through divorce. Then I met a Canon law expert and told him my whole story. He said that there was a contradiction in my plaint. He said that my claim that Sudip did not cohabit with me and my claim that he was in a relationship with his aunt were contradictory. For this reason, the annulment of marriage is not possible on the ground of impotency. Then, the Priest arranged a shalish. Sudip refuted every allegation and claimed himself innocent. Later, we found out that Sudip married again. On this new ground, we filed a suit again for divorce. On 6 July 2009, the Court of Senior Assistant Judge acting as Family Court, passed an ex parte decree of divorce on my behalf. I returned to my parents in 2004. It took me 5 years to get the divorce properly finalized. I wasted 5 years of my life trying to solve my problem.

Identified issue

Measures taken

Available legal remedy

• Adultery. • Anamika filed a • Relevant legal steps • Mentally tortured by case for judicial were taken and husband. separation, assuming remedy obtained. • No ground for it had the same result ­annulment of as divorce. marriage. • Suit decreed in her • Distinction between favour. legal separation and • Decree of divorce divorce. granted in her favour.

Case Study 16 Background of Respondent

Age Sex District Denomination Ethnicity Marital Status Profession Academic Qualifications

: 26 years : Female : Gopalgonj : Protestant : Bengali : Married : Housewife : Class viii

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Summary of the Incident I was in a love with Sudip. I ran away from home in 1997 and got married to him in Dhaka by signing a stamp paper brought from the Court. We didn’t get married in Church. Afterwards, the Pastor did not agree to marry us in the Church. After our marriage, we lived for five months at our in-laws’ house, and then moved to Dhaka. At first, Sudip did wood-work, but afterwards, he did all sorts of different work. There were many times when he wouldn’t come home and didn’t pay the rent. If I asked him where he went he would beat me. Once he cut me with a cutter (boti) for asking. Even before we got married, I had heard people say that he had sexual relations with another woman from our area. I thought that once we got married, he would stop and change. But he didn’t. He had sexual relations with several other women after we were married, especially at the places where he worked. If I ever tried to talk with him about this, I would be beaten and he would leave the house for several days at a time. It continued like this from 1997 until 2009. I have a daughter who is now ten years old. On 17th December 2009, my husband took 50,000 taka and gold ornaments from me and, without mentioning a word, he simply left. From then onwards, I had no contact with him. No matter how hard I tried, I couldn’t get in touch with him. He would not take my calls and would frequently turn his phone off. My husband forged my signature and withdrew all the money I had earned over many years. After my husband left, I received a notice that contained my signature and which said that I had divorced him. He had forged my signature on those too, and had falsified the divorce papers. According to the Talaq (divorce) notice, I had divorced him on 6th May 2008, when in fact, our family was together till December 2009. Currently, my husband has married another woman. Through the ywca, we brought this incident to the attention of a legal aid organization. On 16th May 2010, that legal aid organization sent a notice to my husband, brother-in-law and sister-in-law. They didn’t respond to that notice. Upon sending the second notice, on 29th May 2010, my brother-in-law came alone to the organization’s office and to show us the divorce notice. Later, we scheduled a shalish for the 5th June 2010, with the church and other leaders. At first, my husband agreed to accept any decision about our child’s maintenance, but after a while, he refused to do so. I also found out at the shalish that his second marriage was a “court marriage.” When the legal aid organization’s lawyer said that the second marriage was not legal because no marriages are performed in Court, then his lawyer quickly pointed out that our marriage was also not legal.

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Civil Laws Governing Christians in Bangladesh

In the end there was no agreement in that shalish; we simply set the date for the next shalish. Right now, I am under the legal aid organization’s guidance. I want to get my family back. If not, I don’t want to live anymore. Identified issue

Measures taken

• Wrongful understanding • The two ­parties that an affidavit signed were brought between parties ­together for a constitutes marriage. shalish through • Creating a divorce letter the legal aid through fraud. ­organization, • Physical and mental which is torture. ­providing the • Forgery and theft of money ­necessary with forged signature. guidance. • Responsibility for child maintenance.

Available legal remedy • Anamika can file a case under the Women and Child Torture Restraint Act 2000 on grounds of physical torture. • Anamika can file a case under the Penal Code for fraud.

It cannot be said with any certainty that the figure below depicts the full scale or scenario facing the Christian community. This study was not meant to report on such a survey. It is to be treated as a representation of real life situations facing this particular segment of the population in matters of interaction between their civil and religious laws. However, the partial picture emerging from this figure could be treated as an urgent call to look more closely and systematically, both by the State and by concerned Church bodies, into the existing conditions so as to determine areas of necessary intervention. What can be claimed from this figure, however, is that it provides significant indicators for where concentrated efforts could be undertaken. Furthermore, the high incidence of domestic violence emerging from this very small sample set, tells us that the conditions persisting in Christian homes correspond to the national figures of domestic violence as well, and must be therefore be treated as an issue of national concern rather than through an isolationist perspective. For example, according to the 2007 Bangladesh Demographic and Health Surveys (dhs),10 53% of women experienced sexual 10

Bangladesh Demographic and Health Survey 2007, National Institute of Population Research and Training (niport), Mitra and Associates, and Macro International (Dhaka,

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or physical violence from husbands. The most common act was slapping (46%), followed by pushing, shaking and having something thrown at them (30%), punching with fists or something that can hurt (17%), kicking, dragging or beating (15%), and choking or burning (5%). One must bear in mind that these are conservative numbers, given the reluctance to publicly report on domestic incidents, especially cases involving sexual violence. Nevertheless, 18% reported some form of forced sexual intercourse or rape within marriage. Security of tenure in the household does not correlate to any improvement in the situation. Fifty-four percent of those married more than 10 years reported violence, compared to 30% of those married less than 5 years. A 2001 dhs survey also

Catholic: no optio n for divorce, 3.92%

Polygamy, 1.96% or tion f No op e, 3.92% rriag rema

%

88

, 5.

ud

Fra

N ma on-pa int y chi enan ment ldr en, ce of of 7.8 the 4%

M thr arriag oug e a h a nd ffid Div avi orc t, 9 e .80 %

Domestic Violence, 16%

Ch

ild

Silent Absence or h 11.76% role of churc

ore for m .92% n o rti s, 3 Dese o year ly w t te n tha ara al p e s leg % ing out 5.88 v i L ith on, w ati ar sep

e

ult

Ad

Non provision of maintenance of the wife, 7.84%

%

.73

13 ry,

Ma

rri

ag

e,

7.8

4%

FIGURE 1.2 Recurring problems emerging from sixteen case studies. Bangladesh and Calverton, Maryland, usa: 2009) at p. 198. Available online: www.unicef .org/bangladesh/BDHS2007_Final.pdf

Civil Laws Governing Christians in Bangladesh

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showed very little difference between urban (59%) and rural (60%) women, telling us that domestic violence is widespread irrespective of class or economic mobility. According to a 2008 Study by icddrb titled “Spousal Violence Against Women and Suicidal Ideation in Bangladesh” the prevalence of lifetime suicidal ideation among reproductive aged married women in Bangladesh was high (11%–14%) compared with other countries in the world. About 5%–6% of the married women in the rural and urban sites reported having suicidal ideation. Compared with emotionally non-abused women, suicidal ideation was twice as likely among rural women and 3 times more likely among urban women reporting emotional violence by their husband during the last 12 months. Rural women who were severely physically abused by their husband during the last 12 months were 4 times more likely and urban women twice as likely to report suicidal ideation compared with women who were not exposed to such violence.11

Recommendations for Law Reform

A Amendment to the Divorce Act, 1869 Amend Section 10: Remove discriminatory provisions between men and w ­ omen. Expand the grounds for relief to include: adultery, bigamy, or rape, or such physical, sexual, psychological or economic cruelty or imminent threat or such cruelty as would have entitled the petitioner to live separately from the respondent; or desertion, without reasonable excuse, for two years or upwards immediately preceding the presentation of the petition, or been suffering from insanity or ­addiction to alcohol, drugs, pornography or other harmful influences; or incapacitating disease which renders cohabitation with the respondent impossible; or where the union has so irreparably broken down that a continuation of the union injures one or both parties. Amend Sections 17 and 20: Remove hardships of parties by removing procedural requirement of obtaining confirmation from the High Court in respect of a decree of dissolution of marriage or decree of nullity of marriage. Delete Sections 34 and 35: Neither husband nor wife to claim damages or cost from the co-respondent adulterer. The liability of the adultery should be 11

Women’s Health Issues 18 (2008) 442–452, available online: http://www.hu.liu.se/ike/forskning/genus_medicin/vaw_global_network/publication/ruchira/1.54378/SpousalViolenceAgainst Women andSuicidalIdeationinBangladesh20.pdf.

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placed with the adulterer husband or wife, and the person with whom such adultery was committed should not be impleaded as a party to the divorce proceedings as a co-respondent. Delete Section 39: This is a discriminatory provision against women in the matter of settlement of property for the benefit of her husband and children of the marriage when she is found to have committed adultery; but no corresponding liability is placed on husband when he has committed adultery. Section 39 should be replaced or amended to include a provision for settlement of property to protect the rights of the children, if any, of parties to cases of divorce or nullity. Alimony: Remove the provision for payment by husband the upper limit of one-fifth of his income towards alimony. The quantum of alimony is to be decided by the Court taking into account the circumstance of each case and capability of each party. Jurisdiction and Forum for Relief: The Family Court should be recognized as the Court of First Instance. District Court should be the Court of Appeal. Effect and Operation: To have retrospective effect and to operate throughout Bangladesh. B Enactment of a Law on Adoption The demand for a law on adoption amongst Christians in Bangladesh has existed for some time, even if this demand has not found full or vigorous articulation by recognized bodies from within the community. There is no civil law in Bangladesh to bar Christians from adopting, but at the same time, there is no enabling statutory provision which allows such adoption either. The provisions for guardianship under the Guardians and Wards Act of 1890 are limited to the custody of the child and do not provide the full and complete rights of adoption. Moreover, the law of guardianship is further fettered by conditions placed by Guardianship and Wards Amendments Ordinances of 1982, further restricting the rights of citizens to take children in adoption. This lacuna must be addressed, especially since Christians, by tradition, custom and their ­religious personal law, are allowed to take children in adoption. The provision of Canon 110 of the Code of Canon Law is clear on this point: Children who have been adopted according to the norm of civil law are considered the children of the person or persons who have adopted them. As the Code of Canon Law has no mechanism or procedure in place to secure or institute adoption, the Church defers to civil legislation—which is why a statutory law which allows adoption, is needed. Also, it is noteworthy from the language of the above-mentioned Canon that the Church ­allows for single parent adoptions. A proposed draft Christian Adoption Act has been provided below for consideration for enactment.

Civil Laws Governing Christians in Bangladesh

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C Amendment to the Succession Act, 1925 In general the laws of inheritance governing Christians in Bangladesh are equitable from a gender and human rights perspective and can therefore be largely left untouched. Nevertheless, a full examination of the law keeping in mind national economic mobility and migration, and demographic shifts that also impact Christians, can be undertaken. There are, however, at least two provisions which need to be examined for reform. i.

The inheritance of the adopted child: At present, as there is no statutory recognition for adoption by Christians in Bangladesh, an adopted child cannot claim the right to succession. This position must be rectified, especially since adoption is recognized within the religious personal law of Christians.

ii.

The mother is to be placed on an equal footing with the father: Following the existing provisions, the father of an intestate succeeds to the property to the exclusion of the mother. This is discriminatory and must be rectified.

D Amendment to the Special Marriage Act, 1872 From a human rights point of view, this is one of the more equitable civil laws governing the personal lives of citizens. It provides a special form of marriage  for the people of Bangladesh and all Bangladeshi nationals in foreign ­countries, irrespective of the religion or faith followed by either party. On application, the law is found wanting of certain desired reforms which are as follows: i.

Renunciation of Faith: Currently, the law only legitimizes marriages for those willing to renounce their profession of faith altogether. This provision must be removed, as being discriminatory on the basis of Constitutional guarantees of freedom of belief, thought and expression.

ii.

Discrepancies between religious personal laws and the Special Marriage Act, 1872: The parallel regimes of Christian, Muslim and Hindu religious personal laws, the laws and customs of the ethnic minority communities, and the Special Marriage Act are in conflict and must be addressed. For example, what would be the effect of the renunciation of the profession of faith on matters of succession and devolution of property either upon the death of the renouncing party or on the party as heir to her or his parents’ property? Similarly, what is the status of the marriage when, according to the Special Marriage Act, 1872, a marriage solemnized was void if either of the parties to the marriage had not attained the requisite age, but such a marriage solemnized under the Muslim, Hindu or ­Christian

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personal laws would not be void (though punishable under the Child Marriage Restraint Act 2017)? Enactment of a Consolidated Law on Registration of Marriage and Divorce Although Bangladesh has a 130 year-old law called the Births, Deaths and Marriages Registration Act, 1886, in reality, only “Births and Deaths” are to be registered under the Act by the Registrars of Births and Deaths appointed by the State. There is in fact no provision for registration of marriages, making the title of the Act somewhat misleading. Under the Act, the Registrar-General of Births, Deaths and Marriages is only to keep proper Indexes of the certified copies of Marriage Registers received by him under the provisions of the Special Marriage Act, 1872 or the Christian Marriage Act, 1872. The enactment of the Birth and Death Registration Act 2004 further consolidated the provision for registering births and deaths of citizens, but left unanswered the need for a similar provision on marriages and divorces. This inconsistency must be remedied, as the record on the status of marriage is intricately linked to important civil rights and obligations of citizens, such as custody of children or inheritance. Even for matters of financial transactions or immigration, the evidentiary value of marriage and divorce documents is critical, not to mention its role in minimizing abuse of law and hardship for innocent parties. E



Recommendations for the Government of Bangladesh

This segment contains a set of elementary recommendations by which necessary legislative reform measures can be addressed for the Christian community of Bangladesh. An examination of the reports of the Law Commission of Bangladesh and the Law Commission of India on the subjects of law reform for religious minorities is recommended as a starting point. The two recommended reports, amongst others, are: i.

The Final Report of the Law Commission of Bangladesh, titled “a final report on the proposed amendment of the divorce act, 1869 (act iv of 1869) along with a draft of the divorce act, 1869 (amendment) bill, 200— ” —dated 19 February, 2006. ii. The Ninetieth Report of The Law Commission of India, titled “the grounds of divorce amongst christians in india: section 10 ­d ivorce act 1869”—dated 17 May, 1983.

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Address Law Reform for Religious Minorities within a justice and ­development paradigm It is recommended that the Law Commission of Bangladesh, together with the Ministry of Law and Parliamentary Affairs, and the Parliamentary Committee on Justice and Parliamentary Affairs, approach the issue of law reform for minority communities from a point of accountability not only under the Constitution and international treaties, but also under a development framework such as the sdgs (Sustainable Development Goals) to which Bangladesh is a Member State. Advocacy Measures It goes without saying that there are important roles to be played by various actors in this process of reform. The role of the Church (Catholic and Protestant and other denominations), both as initiator and participant in the dialogue towards reform, is of critical importance. Of significant importance are the o­ pinion makers within the Christian community and the individuals and organizations concerned with this issue from a human rights and justice perspective. In order to take forward these roles responsibly, it is urgent that the following happens: 1. 2.

3. 4. 5.

Acknowledgement and recognition by the Church and faith leaders from a legal, pastoral and pragmatic perspective, of the recurrent problems faced by Christian citizens in their civil and ­personal lives. The Church to take effective and visible efforts to play its role to address the needs of Christians who suffer the burden of legal defects and insufficiencies, including to dispel confusion between the roles of the Church and the State in the lives of Christian citizens—in order to emphasise that the roles are complementary to each other and not in conflict. The Church to invite dialogue among those who assist Christians in need, including human rights and legal aid service organizations that facilitate redress to Christians. More efforts by organizations and institutions in the Christian community to create awareness among Christian citizens about their concerns and rights. Efforts to build the capacity and skills of social service providers, paralegals and lawyers, including civil and canon lawyers, to deal with the needs of Christian clients more timely, effectively, professionally and appropriately.

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A Sample Law Reform Exercise Matrix: Divorce Act of 1869 Section

10

Current Provision

Proposed Changes

This Act may be called the Divorce Act, and shall come into operation on the first day of April 1869. When husband may petition for dissolution— Any husband may present petition to the District Court or to the High Court Division, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery. When wife may petition for dissolution— Any wife may present petition to the District Court or to the High Court Division, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman; or has been guilty of incestuous adultery, or of marriage with another woman with adultery, or of rape, sodomy or bestiality, or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro, or of adultery coupled with desertion, without reasonable excuse coupled with desertion, without reasonable excuse, for two years or upwards.

This Act may be called the Divorce Act and shall come into operation on the first day of January 20… To be substituted by the following— When husband or wife may petition for dissolution— Any person may present a petition to the Family Court praying that his or her marriage maybe dissolved on the ground that his wife or her husband has, since the solemnization thereof, been guilty of adultery, or bigamy, or rape, or such physical, sexual, psychological or economic cruelty or imminent threat to such cruelty as would have entitled the petitioner to live separately from the respondent; or desertion, without reasonable excuse, for two years or upwards immediately preceding the presentation of the petition, or been suffering from insanity or an incapacitating disease which renders cohabitation with the respondent impossible; or where the union has so irreparably broken down that a continuation of the union injures one or both parties. Contents of petition— Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.

Civil Laws Governing Christians in Bangladesh Section

Insertion of new Section 10A

Current Provision Contents of petition— Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.

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Proposed Changes

Section 10A to be added and to read as follows: 10A. Dissolution of marriage by mutual consent— (1) Subject to the provisions of this Act and the rules made there-under, a petition for dissolution of marriage may be presented to the Family Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Divorce (Amendment) Act, 20… on the ground that they have been living separately for a period of two years or more, and that they have not been able to live together and they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than three months after the date of presentation of the petition referred to in sub-Section (1) and not later than six months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree.

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Section

Current Provision

Proposed Changes

11

Adulterer to be co-respondent— The following text to substitute the Upon any such petition presented by a present section 11. husband, the petitioner shall make the Section to be deleted. alleged adulterer a correspondent to the said petition, unless he is excused from so doing on one of the following grounds, to be allowed by the Court:— 1) t hat the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the adultery has been committed; 2) t hat the name of the alleged adulterer is unknown to the petitioner although he has made due efforts to discover it; 3) t hat the alleged adulterer is dead.

The Christian Adoption Act 20… (Proposed) Preamble

An Act to codify the law relating to adoption and maintenance among Christians. Whereas it is expedient to provide for adoption for persons professing the Christian faith be it enacted as follows:— Section 1: 1. This Act may be called the Christian Adoptions and Maintenance Short Title and Extent Act, 20… 2. It extends to the whole of Bangladesh. 3. It shall come into force at once. Section 2: This Act applies to all Christians domiciled in the territories in which Application of Act this Act extends. Section 3: In this Act, unless the context otherwise requires: Definitions a. “Adoption” means the admission of an outsider by birth to the privileges of a child by a legally recognized form of affiliation, whereby the adoptee becomes the legal heir of the adopter and terminates any legal rights then in existence with the natural parents.

Civil Laws Governing Christians in Bangladesh

Chapter ii: adoption by christians Section 4: Right to Adopt

Section 5: Requisites of a Valid Adoption

Section 6: Capacity of a Male Christian to Take in Adoption

51

b. “Child” means a person who has not completed eighteen years of age. c. “Christian” means a person who professes the Christian religion. d. “Maintenance” includes in all cases, provision of food, clothing, residence, education, medical attendance and treatment, recreation and where necessary, the reasonable expenses of an incident of marriage. e. “Guardian” means a person having the care of the person of a child or of both his or her person and property and includes a guardian appointed by the will of the child’s father and mother, and a guardian appointed or declared by a Court. f. “Court” means the Family Court within the local limits of whose jurisdiction the child to be adopted ordinarily resides. g. “Father and Mother” mean, the biological father and mother of the child respectively, and do not include the adoptive father and mother. 1. No adoption shall be made by a Christian except in accordance with the provisions contained in this chapter, and any adoption made in contravention of the said provisions shall be void. 2. An adoption which is void shall neither create any right in the adoptive family in favour of the person adopted which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth. No adoption shall be valid unless— i. the person adopting has the capacity and the right, to take in adoption; ii. the person giving in adoption has the capacity and the right to do so; iii. the person adopted is capable of being taken in adoption; iv. the adoption is made in compliance with the other conditions mentioned in this chapter. Any male Christian who is of a sound mind and is above 21 years of age has the capacity to take a son or daughter in adoption. Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife is dead or has ceased to be a Christian or has been declared by a Court of competent jurisdiction to be judicially separated, or has lived separately from the wife for two years prior to the date of adoption or to be of unsound mind.

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Section 7: Capacity of a Female Christian to Take in Adoption

Section 8: Person Capable of Giving in Adoption

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Any female Christian who is of a sound mind and is above 21 years of age has the capacity to take a son or daughter in adoption. Provided that, if she has a husband living, she shall not adopt except with the consent of the husband, unless the husband is dead or has ceased to be a Christian or has been declared by a Court of competent jurisdiction to be judicially of competent jurisdiction to be judicially separated, or has lived separately from the husband for two years prior to the date of adoption or to be of unsound mind. 1. No person except the natural father and mother or the guardian or orphanage institutions or Adoption Agency legally in-charge of a child shall have the capacity to give the child in adoption. 2. Subject to the provisions of Section 10, the father, if alive, shall have the right to give in adoption, but he shall not exercise such right save with the express consent of the mother, unless the mother is dead or has ceased to be a Christian, or cannot be found, or has been declared by a Court of competent jurisdiction to be judicially separated or to be of unsound mind and incapable of giving consent. The Court must be satisfied that the consent to give in adoption is freely given with full understanding of the situation and is unconditional. 3. Subject to the provisions of Section 10 the mother, if alive, shall have the right to give in adoption, but she shall not exercise such right save with the consent of father, unless the father is dead or has ceased to be a Christian, or cannot be found, or has been declared by a Court of competent jurisdiction to be judicially separated or to be of unsound mind and in capable of giving consent. The Court must be satisfied that the consent to give in adoption is freely given with full understanding of the situation and is unconditional. 4. Where both the father and the mother are dead or have abandoned the child or have been declared by a Court of competent jurisdiction to be of unsound mind, or where the parentage of the child is not known, the guardian of the child may, with the prior permission of the Court, give the child in adoption to any person, including the guardian himself or herself.

Civil Laws Governing Christians in Bangladesh Section 9: Grounds for Dispensing with Parental Agreement to Give in Adoption

Section 10: Persons Who May Be Adopted

Section 11: Other Conditions for a Valid Adoption

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The Court may dispense with parental agreement to give in adoption when one or more parent or guardian; 1) Cannot be found or is incapable of giving agreement. 2) Is withholding his or her agreement unreasonably. 3) Has persistently failed without reasonable cause to discharge his or her parental responsibility towards the child. 4) Has abandoned or neglected the child. 5) Has seriously or persistently ill-treated the child, physically or mentally or both. In reaching any decision in relation to the adoption of a child a Court or Adoption Agency or orphanage or social welfare organization must be satisfied that: a) the adoption will be for the welfare of the child, due consideration for this purpose being given to the wishes of the child, having regard to the age and understanding of the child; and b) the applicant for permission to adopt has not received or agreed to receive, and that no person has made or given or agreed to make or give to the applicant, any payment or other reward in consideration of the adoption. No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely; 1) He or she has not already been adopted; 2) He or she has not been married; 3) He or she has not completed the age of eighteen years. In every adoption the following conditions must be complied with: (i) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least 21 years older than the person to be adopted; (ii) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least 21 years older than the person to be adopted; (iii) the intention to transfer the child from the family of its birth, or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption, is clearly expressed by an agreement executed by the parent or guardian giving and the parent taking in adoption and duly registered.

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Chapter iii: consequences of adoption Section 12: Effect of Adoption

Section 13: Determination of Adoptive Father and Mother in Certain Cases

Section 14: Cancellation/ Renunciation Not Permitted Section 15: Right of Adoptive Parents to Dispose of Their Property

Pereira

A child adopted under this Act shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of adoption and all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adopted family. Provided that— (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth; (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives, in the family of his or her birth; (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption. Where a Christian who has a spouse living and with whom he or she has not been judicially separated, adopts a child, that spouse shall be deemed to be the adoptive father or mother, as the case may be of the child. (1) Where a widower or an unmarried man adopts a child, any wife, whom he subsequently marries, shall be deemed to be the adoptive mother of the adopted child. (2) Where a widow or an unmarried woman adopts a child any husband, whom she subsequently marries, shall be deemed to be the adoptive father of the adopted child. No adoption, which has been validly made under this Act, may be cancelled by the adoptive father or mother or any other person, nor can the adopted children renounce his or her status as such and return to the family of his or her birth. Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her own property by transfer inter vivos or by will.

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Section 16: If in the opinion of a police officer, social worker, social, legal or Protection of Adopted human rights organization or representative of local Church, any Child adopted child is treated with cruelty or is subjected to physical or mental abuse or undue verbal abuse or exploited in any other way by the adoptive parent or parents, such police officer, social worker, or representative of local church may make a report to the Court for initiating an inquiry regarding the conditions of the child. On receipt of a report under sub-section 1, the Court may call upon the parent to produce the child before it and show cause why the child should not be removed from the custody of such parent and placed in the care of a fit person or institution. Chapter iv: Whenever any document registered under any law for the time miscellaneous being in force of the nature referred in this Act is produced before Section 17: any Court, purporting to effect an adoption made under this Act Presumption as and signed by the person giving and the person taking the child in to Registered adoption, the Court shall presume that the adoption has been made Documents Relating in compliance with the provisions of this Act, unless and until the to Adoption contrary is proved. Section 18: 1) No person shall receive or agree to receive any payment or other Prohibition of reward in consideration of the adoption of any Person under this Certain Payment Act and no person shall make or give or agree to make or give to any other person any payment or reward, the receipt of which is prohibited by the section. 2) If any person contravenes the provisions of the sub-section 1 of this section, such person shall be punishable with imprisonment, which may extend to six months, or with fine or with both. Section 19: Any person aggrieved by an order made by the Court under any Appeals section may within thirty days from the date of such order, prefer an appeal to the District Court within the local limits of whose jurisdiction the adopted child ordinarily resides. Provided that the District Court may entertain the appeal after the expiry of the said period of thirty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

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Section 20: Revision



Pereira

The High Court may, at anytime, either of its own accord or an application received in this behalf, call for the record of any proceeding in which the Family Court or District Court has passed an order for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it thinks fit; Provided that the High Court Division shall not pass an order under this section prejudicial to any person without giving such person a reasonable opportunity of being heard.

Conclusion

When there are different remedies for one and the same injury, based merely on sex and religion, it constitutes blatant discrimination and cannot pass the Constitutional test of equality and equal protection of the law. Such discriminatory civil laws must change. All citizens must be recognized as equal claimants of Constitutional guarantees of equality and human dignity. This is particularly poignant in the context of the tremendous economic, social and cultural progress in Bangladesh which is directly attributed to the significant contribution of women. When it comes to meaningful legal and political changes for women, we see a reluctance and in some cases backtracking by the State in the name of maintaining patriarchal norms of ‘dignity’ ‘culture’ and ‘religious sensitivity.’12 The State however, need not disturb the core customary norms within each religious group. Values, customs, traditions, rituals and rules revolving around religion must be accorded their due value. However, it is imperative to distinguish where religious dictate ends and legal consequence ensues. The State has no place in restricting purely spiritual aspects of its citizens’ lives. But when religious exercises or practices in the name of religion fall short of or patently violate universal standards and Constitutional guarantees of human rights, the 12

http://www.thedailystar.net/frontpage/child-marriage-act-rights-bodies-decry-special -provision-1368946.

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State has a duty to intervene and protect each and every citizen, irrespective of their religion or their sex or age. It is for the State to determine what amounts to public morality, religious freedom and freedom of expression. On matters affecting all citizens equally, the State is duty-bound to provide a uniform system of justice for all its citizens, particularly those who find themselves adversely affected in the name of customs and rules imposed upon them by their religious community. Just as there are uniform civil, criminal, penal, evidentiary and other laws that apply to every citizen equally, so must the State provide its citizens with a platform through which they can peaceably exercise their rights regarding their personal lives.

Chapter 2

Combating Gender Injustice: Women and the Hindu Law of Personal Status in Bangladesh A Comparative Analysis Shahnaz Huda

figure 2.1 A newly married Hindu couple. Photo by Abu Ala Russel/DRIK © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357273_004

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Abbreviations ad Appellate Division air All India Reporter blc Bangladesh Law Commission bld Bangladesh Law Digest bmp Bangladesh Mahila Parishad Bom Bombay cedaw Convention on the Elimination of All Forms of Discrimination Against Women dlr Dhaka Law Reports fgd Focus Group Discussion GoB Government of Bangladesh hma Hindu Marriage Act hrcbm Human Rights Congress of Bangladesh Minorities iccpr International Covenant on Civil and Political Rights icescr International Covenant on Economic, Social and Cultural Rights Kar Karnataka LJ Law Journal LW Law Weekly mflo Muslim Family Laws Ordinance mia Moore’s Indian Appeals mjf Manusher Jonno Foundation mlr Miscellaneous Law Reports Nag Nagpur ngo Non-Government Organization prip Private Rural Initiatives Program Raj Rajasthan sails South Asian Institute of Advanced Legal and Human Rights Studies sc Supreme Court ufc Uniform Family Code ufl Uniform Family Law

1 Introduction The Bangladesh Constitution of 1972, Government policy documents as well as the State’s commitments under international law impose upon it a duty to strive to achieving justice for all its citizens. The Constitution specifically places women on an equal footing with men in all spheres of State and public life. At

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the same time it guarantees freedom of religion to all citizens of the country and allows each religious community to live according to the separate personal laws that have governed their communities since much before the partition of the Indian Sub-continent. These laws govern the issues of marriage, divorce, dower, maintenance, guardianship, custody, adoption and inheritance. The distinct personal laws which till today govern the family lives of the men, women and children of Bangladesh reflect the perception of gender inequality that remain prevalent in the current Bangladeshi society. The laws are, in many instances, inconsistent with the norms of universal human rights as laid down in the international human rights treaties ratified by Bangladesh including, most particularly, the Convention on the Elimination of All Forms of Discrimination against Women (cedaw), the International Covenant on Civil and Political Rights (iccpr) and the International Covenant on Economic, Social and Cultural Rights (icescr). The vast majority of the approximately 163 million people of Bangladesh are Muslims. There however exist several other religious communities which demographically constitute a large and substantial portion of the populace. Hindus constitute the largest (about 9.2%) and the most significant minority community in Bangladesh and numerically Bangladesh can boast of the third largest Hindu population in the world. Given the fact that the Buddhist community also follow the Hindu personal family laws, such laws have a major impact on the lives of a substantial portion of the population of Bangladesh. As part of the human rights discourse and the State’s guarantees of equal protection of law for all citizens and non-discrimination on any ground such as gender, caste, race etc., the need for law reform is being continuously debated in Bangladesh. The present study is based on extensive research aimed at investigating how the rules and regulations of family law affect the lives of the members of the Hindu community in Bangladesh and the possibility of reform. The study which was initially conducted in 2011 was further followed up and updated in 2016 and 2017. The main purpose of the research on Hindu personal laws is to review specific legal areas relating to women’s rights within the Hindu family and the wider Hindu community in Bangladesh. 2 Methodology In order to investigate the effect of prevailing Hindu laws on the lives of the Hindu population in Bangladesh, as well as to elicit their opinion on possible reforms, an empirical study was conducted.

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Bangladesh is at present divided into eight Divisions, each of which is again divided into Districts of which there are sixty-four in total. In-depth field investigation was conducted nationwide in seven of the eight Divisions of Bangladesh since the last Division was only formally created in 2016. Questionnaire surveys were conducted on Hindu respondents in two Districts each of the abovementioned seven Divisions. The Districts which were identified were amongst the three with the largest Hindu populations. These areas are as follows:

(1) (2) (3) (4) (5) (6) (7)

Division

Districts

dhaka chittagong sylhet khulna barishal rajshahi rangpur

Madaripur Comilla Maulvibazar Khulna Patuakhali Rajshahi Rangpur

Kishoreganj Brahmonbaria Habiganj Jessore Barishal Bogra Dinajpur

105 Hindu males and 70 Hindu females responded to the questionnaire survey—in total 175. Amongst them 95 were married, 77 single and 3 were widows/widowers. In addition, in order to ascertain the opinion of the younger generation of Hindus who are the future policy makers, fifty Hindu students (aged 21 on average) at the university level, both public and private, were also involved in the process and took part in the questionnaire survey. In the case of the students, the questions were self-administered whereas in the case of the general population, they were administered by me or my research assistants. The universities include Dhaka University, Eastern University, Northern University, North South University, Jahangirnagar University, South East University, National University and Stamford University. Out of the fifty students, four were married and forty-six were single. They were given a shorter questionnaire which, as mentioned, they completed by themselves. One question referred to their caste, and interestingly the majority did not respond to that particular question. Four specifically mentioned that they did not want to indicate their caste. These students represented all the castes: 4 were ­Brahmin; 4 Kshatriya; 4 Vaishya and 13 within the broad range of the Sudra caste (6 mentioned they were from the Schedule caste; 2 Sudras; 4 Kayasthas

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and 1 Namasudra). Two stated simply that they were Hindus, one that he was a Sarkar whilst another said he followed Vishnuism. As part of the validation process, in May and June of 2016, a short random questionnaire survey was conducted on 31 respondents from amongst different segments of the Hindu society. They included 19 (10 female and 9 male) students from different Departments of the Dhaka University such as Bangla, History, Engineering, Tourism and Hospitality Management, Geography and Environment, Philosophy and so forth. Other respondents included service holders, employees of ngos and gos. The respondents represented different districts of Bangladesh, having come to Dhaka for education or employment purposes. Apart from the questionnaire appraisal, fourteen Focus Group Discussions (fgd), one in each of the fourteen Districts, were also conducted. Additionally, in-depth qualitative interviews were taken of individuals who have knowledge of the prevailing application of Hindu laws in the country. These included lawyers, activists, judges of both higher and lower courts, eminent Hindus, academics and learned members of the Hindu community. A consultation meeting was also held at the sails office, attended by individuals (mainly representing the Hindu community) with wide experience and knowledge about Hindu law, its application in Bangladesh and the realities at the ground level. Telephonic interviews, recognized as acceptable methods of data collection, were conducted with four Hindu Marriage Registrars appointed under the Hindu Marriage Registration Act of 2012. 3

The State’s Obligation to Ensure Gender Justice under the Constitution of the People’s Republic of Bangladesh, Policy Documents and International Instruments

As in many other countries, formal equality is explicitly enshrined in the Bangladeshi Constitution and various Articles reiterate the principle of nondiscrimination based on sex, caste, race and other motives. Article 7 declares the supremacy of the Constitution over all other laws and states that any existing law of the State which is inconsistent with any provision of the Constitution shall be void. Furthermore, the principles of equality before the law and equal protection of the law are also incorporated as fundamental rights (Article 27). Articles 28 and 29 of the Constitution of Bangladesh declare the principles of nondiscrimination on the basis of sex, caste, race etc. Article 28 enunciates that the State shall not discriminate against any citizen on the grounds only

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of religion, race, caste, sex or place of birth [28(1)] and that women shall have equal rights with men in all the spheres of the State and of public life [28(2)]. Although the latter leaves out the personal domain from protection, Article 28(4) empowers the State to make special provisions in favour of women or children, or for the advancement of any backward section of the society. In 2011, the much debated Women’s Policy announced by the Government reiterated the State’s desire to ensure gender equality. Although opposed vehemently and somewhat unnecessarily by fundamentalist Muslim groups, the policy has implications for the rights of Hindu women. The objectives of the Women’s Policy of 2011 are varied and aim to establish, ‘in the light of the Bangladesh Constitution, equality for men and women in all spheres of state and public life [16(1)] and women’s human rights’ [16(4)]. For the latter purpose, i.e., the establishment of women’s human rights, the reform of existing laws and, to the extent necessary, enactment of new laws are pledged [17(3)]. Clause 25.2 of the Policy guarantees the absolute control of women over property earned through work, inheritance, credit, loan, and land and market management. Absolute control over property, as envisaged under the Policy, would potentially and positively represent huge progress for Hindu women since, as far as their rights to inherited property under the Hindu law of Bangladesh is concerned, women in any relationship (widow, daughter, mother, or grandmother)—always inherit in a limited manner. As a party to a variety of international instruments, Bangladesh is also committed to ensuring equality on the basis of gender, caste and other grounds. It ratified the Convention on the Elimination of All Forms of Discrimination Against Women (cedaw), adopted in 1979, on November 6, 1984. Apart from the cedaw, which is indubitably the most important international instrument relating to women, Bangladesh is also a party to several other treaties which reiterate the principle of gender equality such as the International Covenant on Economic, Social and Cultural Rights (icescr) of 1966 (Bangladesh acceded to the treaty on 5 October 1998); the International Covenant on Civil and Political Rights (iccpr) of 1966 (Bangladesh acceded to the treaty on 6 September 2000) and the Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriage of 1962 (Bangladesh acceded to the treaty on 5 October 1998). Bangladesh has entered reservations to certain articles of all of the above treaties. For example, in the case of the cedaw, Bangladesh registered reservations to Articles 2 and 16(1)(c). Reservation to Article 2 is based on the fact that the “Government of the People’s Republic of Bangladesh does not consider as binding upon itself the provisions of article 2, as they conflict with sharʿia law based on [the] Holy Koran and Sunna.” On a grammatical interpretation of the

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above, it may not be incorrect to say that in the case of the laws of other communities, Article 2 remains binding. Regarding the above reservation, it is alleged that it defeats the purpose of the entire Convention. Article 16 (1)(c), to which Bangladesh also has a reservation provides that the State shall ensure “(t)he same rights and responsibilities during marriage and at its dissolution.” Bangladesh has no reservations to the other clauses of Article 16. Under Article 16, State Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations. This article thus deals with issues which may be pertinent in view of the present study. These include Article 16 (1)(b) dealing with free and full consent to marriage; 16(1)(d) relating to (t)he same rights and responsibilities as parents and 16(1)(f) (to which Bangladesh previously had reservations that it later removed) which provides that both men and women shall have: “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.” Bangladesh is also obliged, under Article 5(a) of the cedaw, to take all appropriate measures: To modify the social and cultural patterns of conduct of men and w ­ omen, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. In the case of the icescr, Bangladesh has reservations to Articles 2 and 3 amongst others. These articles deal with the effective implementation of the treaty. Article 3 obligates State parties to “ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.” Bangladesh’s reservation reads as follows: The Government of the People’s Republic of Bangladesh will implement­ articles 2 and 3 in so far as they relate to equality between man and woman,­in accordance with the relevant provisions of its Constitution and in particular, in respect to certain aspects of economic rights viz. law of inheritance. In case of the Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriage of 1962, to which Bangladesh acceded in 1998,

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reservations were put forward to Articles 1 and 2 which deal with the free ­consent of parties and the minimum age of marriage. Article 3, to which no reservation exists, states clearly that “(a)ll marriages shall be registered in an appropriate official register by the competent authority,” thereby placing ­Bangladesh under an obligation to provide mechanisms for the registration of all marriages, including Hindu marriages which before 2012 was absent. In the case of the International Covenant on Civil and Political Rights, ­Bangladesh, although expressing reservation to several Articles, has not (as far as could be determined) denied Article 23 which states: 1. 2. 3. 4.

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. The right of men and women of marriageable age to marry and to found a family shall be recognized. No marriage shall be entered into without the free and full consent of the intending spouses. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

Following from the above, Bangladesh is bound by its international commitments to ensure full consent of the parties to a marriage as well as equality connected to marriage and its dissolution. 4

Hindu Religion, Sources and Schools

The Hindu religion or dharma is referred to as sanatan dharma or eternal law. Broadly speaking, a Hindu is any person who follows the Hindu religion in any of its forms and developments. Although the Hindu religion is replete with various rituals and ceremonies, non-observance of any such ritual relating to lifestyle, food habits and so forth does not operate to strip a person of her/his status as a Hindu. Hindu law is credited as being one of the most ancient systems of law. Hindu law is defined by Mayne as “the law of the Smritis as expounded in the Sanskrit Commentaries and Digests which, as modified and supplemented by custom, is administered by the Courts” (Mayne, 1995:1). The primary source of such law is considered to be the divine Veda or Sruti, which are the words of the Gods themselves, eternal, immutable and unchangeable.

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However, as a source of lawyers’ law, more importance is given to the second source of Hindu law which are the Smritis, literally that which was heard from the lips of Gods and remembered by the Rishis or Sages who ­proceeded to record them in their own words. The Smritis, better known as the Dharmashastras, contain many laws which can be used and utilized by the legal profession. There are innumerable Dharmashastras written by different Rishis and consequently the need to interpret and decipher the inconsistencies and confusions inherent in them arose. As a result, Commentaries and Digests, i.e. interpretation of Dharmashastras by erudite Hindu scholars, continued the expansion of Hindu law. Apart from these, Hindu law recognizes custom or usage as an acceptable source of Hindu law. In fact, it has been firmly established by precedents of Courts that custom, if proved, can outweigh the written text of the law.1 As with all systems of law, Hindu law also has more modern sources which complement, clarify, reform and modify the law such as legislation and precedent. Factum valet, i.e., the principle that a fact when done may be considered as valid although initially not so accepted, is also acknowledged in Hindu law, as is a unique blend of Hindu and English sense of justice, equity and good conscience. There are two main schools of Hindu law: the Mitakshara and the Dayabagha. The latter school, which is also known as the Bengal School, differs from the former on mainly the questions of joint family and inheritance. The Dayabagha school prevails in the Bangla speaking areas of the Sub-continent, including Bangladesh. The Hindu social structure is based on Verna Vyavstha, i.e., a caste system (Agarwala, 2005:1). Hindus are divided into four castes: (1) the Brahmans, or priestly caste; (2) the Kshatriyas, or warrior caste; (3) the Vaishyas, or agricultural caste; and (4) the Sudras (Desai, 1990:67). The first three castes are also known as the twice born, since those belonging to these castes are believed capable of rebirth. The second birth or regeneration consists in the study of the Vedas or sacred literature and in the performance of samskara or sacrament (Desai, 1990:67). 5

Hindu Law in British India and after Partition

Postcolonial states responded differently to the group-specific personal laws that governed family life in many societies under colonial rule (Subramanian 2008:1). Immediately after the departure of the British colonial rulers, the then 1 Collector of Madura vs. Mootoo Ramalinga, 12 mia (1868) 397.

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two post colonial States of the Indian sub-Continent, i.e., India and Pakistan, elected to continue in more or less the same mien as before as regards the operation of personal laws. The three major religious communities continued to be governed by their own personal laws as regards family matters including succession. Although during the British reign, several enactments affecting the personal laws of all major religious communities had been made, there was no attempt to introduce any sort of uniformity as regards family matters. Especially in the case of Hindu personal laws, legislation by the British ­mainly related to practices which the rulers found particularly abhorrent such as child marriages, the practice of sati (widow immolation) and so forth (Huda, 2003:4). The other notable Statutes relating to Hindu personal law during the British reign include (only some of those dealing with the Dayabagha School are mentioned here): The Hindu Widows Remarriage Act, 18562 The Hindu Women’s Right to Property Act, 19373 The Hindu Married Women’s Right to Separate Residence and Maintenance Act, 19464 Unlike in India, after the partition of 1947, no legislative changes or developments regarding Hindu family laws were made in Pakistan or later in Bangladesh until 2012, 2016 and 2017 respectively. The trend was broken in Bangladesh when in 2012 a law was enacted related to the registration of Hindu marriages in Bangladesh. In Pakistan, the Hindu law of marriage was codified and reformed in 2017 with the enactment of the Hindu Marriage Act and earlier in 2016 with the enactment of the Sindh Hindus Marriage Act of 2016. In effect Bangladeshi Hindu law broadly continues to be, what may be referred to, as Anglo-Hindu law. Unlike Bangladesh, within a couple of years of independence, India introduced wide-ranging reforms and transformed the religious laws of the majority of the population, i.e. of the Hindus, whilst the laws of the minority remained mainly untouched. Similarly, in Pakistan (of which Bangladesh was then a part) legislative endeavours took place, albeit not so extensive, in the 1960’s and Muslim law was reformed to a certain extent but the Hindu personal laws remained intact, unreformed and uncodified until 2016 and 2017.

2 Act No. xv of 1856. 3 Act No. xviii of 1937. 4 Act No. xix of 1946.

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After the independence of Bangladesh from Pakistan in 1971, no attempts were made in the former, until very recently, to modernise the personal laws of the Hindus. They continue to be governed by Shastria laws which are almost completely different from the applicable Hindu laws in India where four laws, enacted during the 1950s, addressed what was considered the most important issues requiring reform. The process of introducing such overarching reforms in the Indian context was contentious to say the least and the negotiations were long and protracted. In 1941 and 1944 the first and second Hindu Law Committees was appointed which debated a number of issues related to Hindu law reform. The latter presented its report in February of 1947 in the form of a Hindu Code Bill. However, political events overtook this bill. India was declared an independent State on 15 August 1947 but was also partitioned into India and Pakistan (Parashar, 1992:80). After independence, the process and debate over Hindu law reform continued. Eventually in 1952 after the first elected Parliament took office, the Government split the Hindu Code Bill and presented it as several separate bills (Parashar, 1992:81). Parashar notes that the codification and reform of Hindu law was not taken up in response to public demand; rather the state assumed the responsibility for reform on its own initiative (Parashar, 1992:81). With regard to Pakistan, the Hindus constitute a small minority as compared to the overwhelming Muslim population. Nevertheless the need for the reform and codification of Hindu law was deemed necessary in the first quarter of the new millennium. Although not quite as contentious as the process in India since issues such as inheritance remain unaltered, the introduction of codified laws of marriage took quite a few years. 6

Hindu Personal Laws in Bangladesh

In Bangladesh the legal system may be considered to be pluralistic, in the sense that there exists an uniform and secular system of law applicable to all ­Bangladeshis, e.g. criminal laws, land laws etc., while on the other hand personal and private matters such as marriage, its dissolution, custody of children and so forth fall within the ambit of the personal law of each community (Huda, 2004:103). Hindu law is the personal law of the Hindus of Bangladesh. They follow, as mentioned earlier, the Dayabagha School or what is also known as the Bengal School. The issues of marriage, dissolution of marriage, guardianship, maintenance, adoption and succession, amongst others, are the most significant issues relevant to and affecting the lives of the Hindu population, especially

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the women. If one is to identify the most crucial portions of the Hindu law of Bangladesh which may be considered to have the most serious implications on gender justice, the applicable laws relating to the above issues need to be comprehended. Below is a brief discussion of the relevant Hindu laws in Bangladesh regarding marriage, guardianship, adoption, maintenance and succession. As mentioned earlier, this law is basically the Hindu Shastra based or sacramental law and remains uncodified except for certain legislative changes made during the British rule and more recently in Bangladesh. Findings of the empirical investigation have been mentioned where applicable. 6.1 Marriage Hindu marriage is primarily a sacrament, samskara or religious duty which is considered to be a sacred indissoluble union. Under the traditional Hindu Law, marriage is a holy union. Especially for Hindu women, marriage is considered to be their most significant duty. The Appellate Division of the Supreme Court of Bangladesh defined Hindu marriage as following: Marriage under the traditional Hindu Law is a holy union for the ­performance of religious duties. It is a sacrament for the purification of the body from inherited taint. It is not a contract. Of course the (sic) marriage is necessarily the basis of social organization and the foundation of important legal rights and obligations.5 The primary and sacramental object of marriage is to give birth to a male issue, thus leading to discrimination from the very beginning against the girl child. A son is “essential” in order to continue the family lineage and participate in the shraddha or funeral ceremony in order to confer spiritual benefit on the father and other ancestors. The marital union is perceived to be everlasting—­ continuing even after the death of the parties. Following from the ideal of marriage as a holy indissoluble union, dissolution of marriage is not legally permissible in Bangladesh, whatever may be the cause. As can be imagined, lack of provision for divorce causes immeasurable misery for women and in some cases for men. At the sails Consultation on Hindu law, Major Shudhir Saha of the Kalyani Foundation, an ngo, spoke about his own experiences with Hindu clients: A marriage was arranged between a Bangladeshi Hindu girl and a ­Canadian immigrant. Three days after the wedding, the boy returned to 5 Ramesh Chandra Adhikari vs. Bulbuli, 66 dlr (2014) (ad) 104.

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Canada and from there he informed his wife that it was impossible for him to continue the marriage. The girl tried her utmost to convince him to change his mind. She was in a predicament—her husband refused to accept her but she did not have the legal option of divorcing him and starting afresh. After four long years, he was finally persuaded to reconsider. Imagine the humiliation of the girl—she had no choice but to go to a man who did not want her. All these personal accounts have to be taken into account when we discuss reforms. Under the Hindu religious law, a wife cannot ever remarry, even after the death of her husband. This inflexible rule was however changed as the consequence of a social movement participated equally by zealous British and Indian social reformers which resulted in the enactment of the Hindu Widow’s Remarriage Act of 1856. This law allowed Hindu widows in all three countries of the Subcontinent to marry although upon remarriage they had to relinquish any rights obtained to the property of their deceased husbands. It may be relevant to mention that within the orthodox Hindu communities of Bangladesh, such remarriage, although legal, continues to be socially unacceptable. Polygamy Unlike a woman, a Hindu man, although unable under applicable law to seek divorce, has the option of entering into polygamous marriages. Hindus in Bangladesh continue to enjoy the discretion of unlimited polygamy (Menski, 2001a:46). There are no limits to the number of wives a Hindu man may have, whilst, since there is no polyandry, a Hindu woman must practice monogamy. The practical consequence of this is that in Bangladesh, a Hindu man may potentially abandon or desert his wife/wives and marry several times. The wife/wives however continue(s) to be married to that one man and cannot dissolve the marital tie. Many respondents claimed that polygamy, even if permitted, is unusual, mainly because of the financial inability to take care of more than one wife. However, financial reasons may by themselves be the reason for polygamy. Indeed, the man entering into several marriages collects many dowries. Aroma Dutta,6 for example, opines that in particular areas of Bangladesh such as Gopalganj and other similar poverty-stricken areas, polygamy is rampant. At the fgd in Dhaka, one respondent described the situation of a Hindu­ man known to him who had married six times and how because of one 6 Personal interview with Aruma Datta, Executive Director, prip Trust and Former Member, National Human Rights Commission of Bangladesh.

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person’s greed, the lives of several women had been compromised. In Chittagong Division, 22 out of the 25 respondents thought that polygamy should be banned. Women are becoming more and more educated and independent and if a husband marries again or tortures his wife, she should have the option of getting out of the marriage, one respondent added. Some respondents thought that the Muslim law requirement of consent of existing wife/ wives should be made applicable to Hindus. Other reactions to the question as to whether they supported polygamy or not elicited mostly negative answers such as: “Polygamy cannot be a part of modern society.” “Polygamy leads to torture of the woman.” “If polygamy is prohibited, the wife and children will be at peace.” The field work also showed that amongst many Hindus there exists a lack of awareness regarding many issues connected to family matters. In some cases, they confuse the laws applicable to Muslims and Hindus and believe the formers to also be applicable to the latter. For example, in Maulvibazar, Sylhet, one woman was under the impression that like Muslim men, Hindu men were also under a legal duty to take permission before taking a second wife. In answer to the question as to which School of Hindu law they belonged to (Dayabagha or Mitakshara), the majority were clueless as to the existence of different Schools. In the Dhaka Division, 3 of the respondents said that polygamy is no longer in practice amongst Hindus. Among the justifications put forward as to why the practice should not continue, respondents cited economic reasons, unhappiness within the family, family conflict and increase of incidents of violence against women. As regards polygamy, the majority of the students of the universities questioned were in favour of a ban (41). Only 12 supported its continuation and three had no comments. There are certain essential conditions necessary for the validity of a Hindu marriage in Bangladesh. The first of these is that the proper guardian must give in marriage. The mother is very low on the list of approved guardians for marriage. However, a marriage without the consent of the approved guardian may be validated by the principle of factum valet. Ceremonies of Marriage Hindu marriages are replete with a variety of ceremonies and rites which are scrupulously followed although they differ from caste to caste, different social groups and so forth. However, it had been established by the Supreme Court

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of Bangladesh7 that for the validity of a Hindu marriage, only two ceremonies were absolutely essential. These were (a) Invocation before the sacred fire and (b) Saptapadi. Invocation before the holy fire is also referred to as Viva-Homa or Joggo. Saptapadi involves the taking of seven steps around the holy nuptial fire. Until the seventh and last step is taken, the marriage is revocable and incomplete. Although judicial precedent had clearly established the requisite ceremonies, field work showed wide divergence amongst the Hindus of Bangladesh as to what they considered essential ceremonies. According to Menski, the topic of traditional marriage solemnization is in itself an ocean of diverse beliefs, rituals and practices (Menski, 2003:277). Confusion as to exactly which ceremonies were essential for a legally valid Hindu marriage persisted all over Bangladesh. The ceremonies seem to include pre-marriage and post-marriage ceremonies. The various responses received as to what the respondents believed to be the essential ceremonies of a valid Hindu marriage include: Gaye holud: The turmeric ceremony. Adhibash/dodhimangal: At dawn, on the day of the wedding, the bride is adorned with the traditional red and white bangles. She and groom are fed sweets, yogurt and so forth at their own homes. This is their last meal before the solemnization of the marriage, after which they eat together as husband and wife. Kanyadan: The gift of the daughter by her father to the groom. Shampradan: The bride is handed over ceremoniously to the groom by an elderly male member of her family. Presence of Brahmin/Purohit/priest: To solemnize the marriage and bless the couple. Joggo: Invocation before the holy nuptial fire or agni. This rite had been recognized by Bangladeshi law as essential. Saptapadi: Also known as Shaat Paak; this was held to be another legal requirement. Mala badal: Exchange of garlands between the couple. 7 Amulya Chandra Modak vs. The State, 35 dlr (1983) 160.

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Shakha and shidur: Conch bracelet and vermillion. Both these adorn a woman and signify her married status from then onwards. The red vermillion or shindoor is sprinkled on the parting of the bride’s hair. Fourteen steps around the sacred fire: This involves the taking of seven steps at the wedding ceremony and later, the taking of seven more steps under the banana tree. Bashi biye: The morning after the wedding, the couple returns to the mandap (temple) to pray to the Sun God. Vriddhi Shraddha: Because marriage is a sacramental occasion, the bride’s father or other male relations offer oblations to the departed souls of the ancestors to get their blessings. The Hindu Marriage Registration Act of 20128 appears to have intervened cleverly to make the requisite ceremonies less particular than what the High Court had authoritatively declared necessary for the validity of a Hindu marriage in Bangladesh. The Act defines a Hindu marriage as a marriage solemnized between Hindus and performed according to the customary rites and practices approved by the Hindu scriptures.9 Such marriage may be registered under the above Act. The law in Section 6(1) states that “after a Hindu marriage has been solemnized according to the Hindu religion, customs and rituals, for the purpose of preserving documentary evidence of such Hindu marriage, on the proper application of either party to the marriage, the Hindu Marriage Registrar shall register the marriage.” Section 6(2) allows persons who were married according to the Hindu religion, customs and rituals before the law became effective to also register their marriages under the Act of 2012. This effectively signifies the acceptance of any ceremony as being sufficient for a valid Hindu marriage. Hindu Marriage Registrars confirmed that they do not seek particulars of the ceremonies performed. Identity of Caste—Prohibition on Inter-caste Marriages Under Bangladeshi Hindu law, based as it is on traditional Shastric laws, there has always been a formal ban on marriage between different castes. This prohibition is more serious when a girl of a higher caste marries a man of a lower caste (Anuloma) since upon marriage a wife becomes part of her husband’s 8 Act No. 40 of 2013 (for detailed discussion of this law see later). 9 All English translations of the Act are mine.

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family and is no longer a member of her own. Parties belonging to different castes could legally marry under the Special Marriage Act of 1872.10 Despite such prohibition, and as will be seen throughout the study, the reality is that inter-caste marriages have been taking place in Bangladesh and have been solemnized by Purohits or priests. Most respondents conceded that the ban on such marriages have actually no practical effect in modern society. In a detailed personal interview, Rana Dasgupta, General Secretary of the Hindu, Buddha and Christian Oikya Parishad, said that not only are inter-caste marriages taking place, they are being accepted by society: if legalized, although there will be initial opposition, eventually such marriages will be accepted. According to him, there was a time when caste differences were mainly determined by economic factors, but now that point of view has evolved since persons belonging to lower castes may be better educated and occupy higher positions in various types of employment. Conversely, persons belonging to the highest caste may be engaged in the most menial of jobs. In several fgds, participants gave examples of inter-caste marriages that have taken place and opined that unlike before, when most marriages were arranged by guardians, nowadays it is usual for members of the younger generation to choose their own spouses. As long as the marriage is within the broad range of the Hindu religion, it is generally accepted. There are of course those who opined that for marital and cultural harmony there should be no overlapping of castes and the system of intra-caste marriages should be left alone. As regards the ban on inter-caste marriages, 8 out of the 9 fgd participants in Brahmonbaria, Chittagong, were united in concluding that such marriages should be allowed since in their opinion, according to the Shastras, caste depends on personal qualities and good work. In the modern world, ideas about the Hindu caste system are changing and most people believe that how a person is to be treated should not depend on his/her birth but rather on other qualities and skills. The opinion in general was that despite caste being important for marriage, education is having an effect on people’s attitudes and they have become more tolerant. At the time of marriage modern parents are more concerned about their children’s happiness than about the caste of their partners. The one participant at the Brahmonbaria fgd who disagreed with all the above was a Brahmin and of the opinion that the caste culture of Hindu marriage should be maintained since the Hindu caste system is of ancient origin. Lower castes and higher castes belong to different classes and when they intermingle it causes chaos, he believed. However, despite believing in the importance of family traditions, he also conceded that there are some 10

Act No. iii of 1872.

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traditions which are contrary to human nature and therefore will not survive for long. In Khulna, the participants of the fgd were all generally against the caste system since according to them “all are humans made of flesh and blood.” As regards inter-caste marriages, the view was expressed that the law should remove such prohibition. Nevertheless, they questioned the efficiency of such a measure and opined: “even if the law is made, it is doubtful whether people will follow it; the superstitions will continue to remain” (fgd, District: Jessore, Division: Khulna). They concluded: “However, even then attempts to improve the system have to be made.” One participant explained: If the law is changed, at first there will be problems. The elders of our community will create problems. However, once a law is made and the people become aware of it, in the end the law will be followed. One respondent stated that in the sixty-four districts of Bangladesh and the over four hundred Upazilas, Hindu law is based on customs and family traditions. A marriage should take place in such a manner that the families have the same outlook in life and have the same level of education rather than being based on caste considerations. Even though a suitor of a higher caste may be less educated, unemployed or not have a good job, a girl is forced to marry him, despite his unsuitability, just to stay within her caste (Sree Dutta, Khulna). At another fgd, some of the participants, explaining the ban, said that caste-based marriages had certain purposes and mostly were related to family culture. For example, amongst Shudras, during the Bangla month of Kartik, which is damodor month or niam mash, certain religious rites are forbidden. On the other hand, in the case of the higher Brahmin caste, some religious customs may be forbidden for the entire year. Under different castes, when a child is born or a person dies, different things are forbidden and various customs are followed to please the Gods and Goddesses (fgd Brahmonbaria, Chittagong). In the Chittagong Division as a whole (Brahmonbaria and Comilla Districts), amongst the respondents of the questionnaire survey, eight of the respondents were in favour of the caste based prohibition while seventeen were against such ban. Amongst the students of the questionnaire survey (see Table 2.2), 40 (80%) of the students were against the bar to inter-caste marriage whilst 7 were for it and 3 refrained from commenting. Several respondents mentioned that their sisters or other female family members were not able to get married simply because a boy from the same caste could not be found. The general consensus was that there should not be any discrimination ­regarding caste so long as the boy and the girl were suitable for each other.

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One female respondent from Barishal narrated her cousin sister’s experience: “My cousin had a relationship with a boy for eight years. He later became an engineer. Only because of caste differences she was not allowed to marry him and as a result she committed suicide.” A 23 year old respondent from Barishal, a bachelor, shared his own experience: “I am in love with a girl who is from a different caste; we don’t know what to do and we are both very concerned.” There were of course those who thought that the ban on inter-caste marriages was for a particular purpose— “caste ensures that there is continuation of the family tradition and pride. The caste system is our tradition and should continue.” According to one respondent: “if we abolish the caste system we will be disregarding religion.” Yet another opined, “it is a great sin to go out of one’s caste; social and religious prohibitions should be followed otherwise there will be chaos.” Anamika, a 26 years old married Hindu girl, opined: I have seen since childhood that marriage out of caste causes many ­problems—especially at my in-laws—one does not even eat from the others hand. In general however, there was consensus on the fact that caste-based prohibitions have no place in the modern world (see Table 2.1). Opinions included: “there should be no caste bar forbidding marriage. We will not be able to give value to human beings this way”; “we have to treat everyone the same way; as long as the person is good, religion or caste is immaterial.” Additionally several respondents believed that the prohibitions no longer existed in Bangladesh; or even if it did, they were not followed: “most of the people do not maintain the caste difference. The mentality of the people has changed over time and intercaste marriages are now taking place.” Several respondents appeared to resent the fact that they had to behave respectfully, even spend money on purohits or Brahmins, who actually did not deserve such reverence but only expected and demanded it based on accidents of birth.

Table 2.1

For

General responses to removal of prohibition against inter-caste marriages

Against

104 (59.43%) 65 (37.14%)

No response

Other

Total

4 (2.29%)

2 (1.14%)

175

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Combating Gender Injustice Table 2.2 Student responses to removal of prohibition against inter-caste marriages

For

Against

No response

Total

40 (80%)

7 (14%)

3 (6%)

50



Bar of Caste Removed by the Hindu Marriage Registration Act of 2012 The above Act has imposed validity on inter-caste marriages without overtly legalizing them. The Act imposes certain conditions before a marriage can be registered. Registration operates as proof of the existence of a marriage. The requirements or conditions for registration include that the parties must belong to the Hindu religion and must be above certain ages, but does not mention identity of caste. The requisite form ‘D’ (see later) does not require the mention of the caste of the bride and the groom. From discussions with Hindu Marriage Registrars in Bangladesh, it was confirmed that questions of caste do not arise or are not asked at the time of registering a marriage, and therefore it may be construed that such marriages are now given validity through the process of registration. A care study had mentioned that caste did not come up much among Hindus in Bangladesh except for reference to the time it takes to find a spouse when they are intent on marrying within caste.11

Proof of Marriage—Lack of Provision for Compulsory Registration of Marriage Before 2012, one of the foremost practical problems faced by Hindu couples related to the proof of marriage. Bangladeshi Hindu law did not provide for registration of marriage and consequently questions as to the existence of marriage arose in various cases including those where one party, usually the husband, denied the fact of marriage. In the case of Amulya Chandra vs. The State,12 mentioned earlier, the question of proof became crucial for the woman. Kalpana Rani was 17/18 years old and alleged that she had been induced into believing that she had married Amulya Chandra by the secret exchange of garlands. On her becoming pregnant Amulya Chandra denied the married and after failing to get any remedy from the village Shalish she instituted a crimi11

care (2016). The Cultural Context of Child Marriage in Nepal and Bangladesh: Findings from CARE’s Tipping Point Project Community Participatory Analysis. care, Dhaka et al. at p. 4. 12 35 dlr (1983) 160.

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nal suit under Section 493 of the Penal Code of 1860 on the grounds of deceit. The lower Court held in favor of Kalpana Rani and imposed punishment on Chandra—5 years of imprisonment and a fine of Taka 1,000. Amulya Chandra appealed successfully and was acquitted by the Higher Court who refused to believe that a 17/18 old girl would be naïve enough to believe that without such ceremonies as Saptapadi and Viva Homa a valid marriage could be solemnized. The Court went on to add that it is customary amongst the H ­ indus of Bangladesh that some relations remain present and the bride is made to put on new clothes, bangles and vermillion mark on her forehead and in the absence of all of these Kalpana Rani could not have possible believed that by a mere exchange of garlands the accused had become her husband. Without any document or registration therefore questions regarding proof of marriage continued to confound the judiciary. As Menski (2001a:9) notes in the Indian context, in social reality and therefore in legal practice cases often come up “where one party claims that a particular Hindu marriage does not exist or, more precisely, there is or was no legally binding marriage between two particular spouses. Such cases may come up many years after the death of a particular spouse, often when succession is contested.” Sharma in an article published in 2004 in the Daily Star entitled ‘Hindu Women in Bangladesh Suffering for Absence of Marriage Registration,’ gave examples of how lack of registration violated the rights of women. 23 year old Kajali Rani Das who worked as a day-labourer in her village married her neighbour, Sanjoy Madhu after he proposed to her. They lived with Kajali’s parents. After Kajali became pregnant Sanjoy was asked to take her to his own house. He delayed doing so by making excuses and finally denied his marriage to her. Pregnant and helpless Kajali was disbelieved by society since she has no documents to prove her marriage (Sharma, 2004). At the sails Consultation, Major Shudhir Saha of the Kalyani Foundation had shared his personal experiences regarding problems which arose before 2012 due to the absence of provision for Hindu marriage registration. For example, even for something as simple as applying for immigration to the usa, Canada or the UK, proof is required that a couple is married. Couples earlier had to often submit notarized documents, photographs and/or even invitation cards as proof that the marriage had actually taken place. Question often arose regarding how to prove that the sacrament of marriage had indeed taken place. Foreign missions required proof that the necessary rites, including the Sapatpadi, had been completed which was problematic to establish. At the fgd in Dhaka, all the participants had agreed that there was no need for a written document to prove that a Hindu marriage had taken place,

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although sometimes the couples did sign a white piece of paper. Normally most marriages take place in the presence of assembled guests who can attest to the marriage having taken place. The field work had shown that although the majority of the respondents did not face any personal problems due to any lack of written proof of marriage, some had done. Usually, if any problem arose it would be solved internally and discreetly. Many of the respondents opined that overall problems within the Hindu community connected to the marital relationship seldom occurred. Whether this is due to lack of options remain unclear. It can however be asserted that the absence of any formal proof of marriage deprived Hindu women of the few rights they formally possessed. For example, although divorce is not permitted, a Hindu woman may ask for separate residence and maintenance before the Family Court (further details in the section on maintenance), but to be able to make such a demand, her married status would need to be established first. The participants of the Dhaka fgd gave further examples of cases where registration as a proof of marriage might be necessary. One narrated the incident of a husband who left his wife to marry another woman and forced the first wife to go back to her father’s house with their child. It should also be mentioned that the father has no legal obligation to maintain his married daughter under Hindu law. Even though by and large people did not have any use for a written document, the fgd participants had all agreed that these modern times demand that there should be a mechanism to prove Hindu marriages. Due to the appreciation of most of the Hindus respondents that in the globalized and modernized age, written documents are crucial and may be needed at any time, the general consensus had been for the introduction of a system of marriage registration amongst the Hindus (see Table 2.3). The media at various times had focused on the difficulties faced by Hindu women due to lack of facilities to register their marriages. The Daily Prothom Alo, for example, on the 27th of August 2006, in a news item on ‘Hindu Marriage Registration—Demand of the Times’ reported that proof of a marriage may be required when a Hindu widow, upon her husband’s demise, wants to claim pension; when the guardianship of a child is contested or when a wife abandoned by her husband wants to claim rights of inheritance for herself and her children. In Brahmonbaria District under Chittagong Division, the fgd was held at Anandamoyee Kalibari, Shree Ram Krishana Ashram. All nine participants were in agreement about the need for registration of Hindu marriages. This group acknowledged that many problems arise due to the lack of proof of marriage. One respondent shared his relative Shuvra’s experience:

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Shuvra, 21, had married 28 year old Bidhan without knowing about his addiction to drugs. After her marriage, she and her family became aware of his addiction and tried their best to help him. Eventually it became impossible for Shuvra to continue living with him and so, with the intervention of the local Shalish, her family tried to broker a separation but failed since Bidhan’s guardians refused to accept it. She could not go to Court for separation and maintenance since there is no legal/written documents/evidence of the marriage. Even if it were possible for Shuvra to prove her marriage through other means, she could not end the union since Hindu law does not allow divorce. She had to continue living at her father’s house without receiving any maintenance from her husband. Initially, several respondents denied the need for Hindu marriage registration, calling it artificial and warning that if a law on Hindu marriage registration was implemented it may have negative implications. For example, families may break up. They however ultimately acknowledged that for proof of marriage and other official requirements registration had become necessary. In the Khulna fgd also, all the participants had agreed upon the fact that in Bangladesh there should be provision for the registration of Hindu marriage “births are required to be registered and there is provision for the marriage registration of other communities; therefore, definitely provision should be made for Hindu marriage registration.” It was clear from this study that differences of opinion existed in different parts of Bangladesh regarding registration of Hindu marriages. At the Habiganj (Sylhet Division) fgd, none of the participants had any documents to prove their marriage. Marriages were solemnized by the Purohit at the house of the bride as is the custom. None of those present at the discussion faced any problem themselves due to non-registration or lack of documents and neither had they heard of anyone else facing any problems. All were in agreement that there is no necessity for marriage registration. In Jessore District under the Khulna Division, the fgd was arranged at Dohakula village under the Bagharpara Upazila. Regarding registration of marriage or written document to prove a marriage, the respondents held divergent views, although by and large they had agreed that like other religions, under Hindu law there should also be provision for marriage registration. One male participant himself pointed out: “If I leave my wife she can access the law if she has a document and she will have no problems.” The problems which had been identified before the law was enacted included:

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Difficulty in proving the marriage in cases of: • • • •

Husband denying the marriage Proving legitimacy of children Establishing the right of the wife and child/children to maintenance Establishing the fact of marriage in cases of criminal offences such as dowry13 related cases etc. • Proving the marriage when both husband and wife were Government ­servants and wished to be posted in the same District or area • Obtaining pension upon the death of a Hindu husband • Obtaining visa/immigration for spouses In a personal interview, Sree Dutta from Khulna explained various aspects of a Hindu marriage. Hindu marriages take place based on social rather than religious rules and in different areas there are different customs. Some think exchange of garlands is the most important. In some cases, couples, mostly teenagers who do not have their parents’ consent, get married before the idol (Debota) and the girl puts on shakha shidur. Thereafter, the boy may deny the marriage and in the absence of documentary proof or witnesses, the marriage may be difficult/impossible to prove. Registration or a written document is extremely necessary, especially if the husband denies the marriage. In simpler times, there was no need to prove a marriage but now people have become more shrewd as well as conniving and so now proof is required. There are many cases, he said, where, even if the wife is much more capable than the husband, because of the latter’s feelings of insecurity on one hand and on the other his feelings of superiority as a male, he prevents her from working or having a career. The main purpose is to live together as a family and if that aim is frustrated then the parties should part ways through divorce which is not possible for Hindus in Bangladesh. Hindu parents tell their daughters that marriage is their last and only resort: “Your husband’s home is your home,” they tell them, “whatever the husband does or does not do; however much he 13

Dowry is a sum of money or other property demanded from the bride’s family by the husband and/or his family. Demands for dowry may continue even after marriage and is responsible for many types of violence against women. Even though Bangladeshi law (the Dowry Prohibition Act, 2018) prohibits the taking and giving of dowry, the practice continues unabated. The Women and Children Repression Prevention Act (Nari-o-Shishu Nirjatan Daman Ain) 2000 deals with dowry related violence including murder, attempt to murder, simple and grievous hurt. For more on dowry, see Huda, Shahnaz (2006).

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may torture you, you cannot leave him; your heaven and hell is both with him” (personal interview with Sree S.K. Dutta, Khulna). There are not many reported cases in the Law Reports related to Hindu ­marriages—in all probability because they do not reach the higher courts. Several Judges at the district level have however said that they do come across many cases related to Hindu marriages where the need to prove a marriage arises. In personal interviews, both the District Judge of Khulna and the Additional District Judge, Moinul Huq had reiterated the need for marriage registration. Example may be given of a case related to the maintenance of a Hindu wife and son instituted at the Family Court of Khulna.14 In the plaint the plaintiff attempted to prove the existence of her marriage to the defendant based on the fact that they had had a son together since at that time there had been no system of marriage registration under Hindu law. The Plaintiff’s marriage, it was stated had been held at the Kali Mandir. There had been no participation or agreement of their parents and neither had other social rites been followed. The defendant appealed to the Additional District Judge, Khulna on the grounds that the decree of the Family Court granting the wife maintenance was incorrect since the wife’s marriage to the appellant husband has not been proved. The husband also claimed that since they were within the prohibited degrees, marriage was not permitted between them and further that no proof of cohabitation existed.15 The Additional District Judge Moinul Huq dismissed the appeal on different grounds. Due to the lack of provision for registering Hindu marriages the Courts had to, in many cases, waste valuable time concentrating on the question as to whether the marriage existed at all. From the discussion it is clear that registration of marriages will mainly benefit the wives since they are the ones who often find it necessary to prove the existence of their marriage to access many of their rights. On the contrary, non-registration would potentially benefit many husbands wishing to avoid their duties under the marriage. Table 2.3 General responses to introducing provision for Hindu marriage registration

Yes

No

No response

Total

118 (67.42%)

29 (16.58%)

28 (16%)

175

14 15

Onita Goldar vs. Bikash Goldar; Family Court, Rupsha, Khulna; Family Case No. 456/04 (unreported). Bikash Chandra Goldar vs. Onita Goldar; Family Appeal No. 47/09, 26 May 2010 (unreported).

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Combating Gender Injustice Table 2.4 Student responses to introducing provision for Hindu marriage registration

Yes

No

No response

Total

34 (68%)

2 (4%)

14 (28%)

50

As the above Table, based on the questionnaire survey showed, the majority of Hindus had been in favour of marriage registration as had been the majority of the students questioned (Table 2.4). One student narrated how her cousin had faced difficulties due to non-registration. The cousin had had an affair with a boy and married him by performing saptapadi and his putting vermillion mark on her forehead. After she became pregnant he abandoned her and denied the marriage which she had no way of proving. The Hindu Marriage Registration Act, 2012 The House of the Nation or the Parliament, i.e., the Jatio Sangsad, enacted the Hindu Marriage Registration Act in 2012 and introduced provisions for registration of Hindu marriages in Bangladesh. Except for minor changes brought in by amendments to existing statutes, this was the first major piece of legislation after the birth of Bangladesh which dealt with the personal law of the Hindus. The State Minister for Law, Justice and Parliamentary Affairs presented the relevant Bill, the purpose of which was to protect the rights of married Hindu women, many of whom were being deprived of their rights due to their lack of ability to prove the existence of their marriages. In 2013 the Hindu Marriage Registration Rules were framed. Given the variety of provisions which clearly discriminate against women under the Hindu laws of Bangladesh, introduction of provision for Hindu marriage registration has been clearly the least contentious of issues. Despite the demand for more expansive reforms from a portion of the Bangladeshi Hindu society, rights activists and researchers; the Government only agreed on the introduction of a law relating to registration or marriages. However, it stopped short of legislating for the compulsory registration of marriages and settled for only optional registration. The Hindu Marriage Registration Act of 2012 applies to all Hindus in Bangladesh, irrespective of citizenship. For the purpose of preserving documentary evidence of a Hindu marriage and on the proper application of either party to the marriage, the Hindu Marriage Registrar can register a Hindu marriage after it has been solemnized according to the Hindu religion, customs and

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rituals.16 Under Section 4(1) the Government may appoint Hindu Marriage Registrars for the purpose of registering Hindu marriages for areas under city corporations and for every Upazila. The primary purpose of the Act is, as mentioned earlier, the preservation of documentary evidence of Hindu marriages as well as protection of the rights of married Hindu women. However, the latter intention is somewhat negated since the law is optional and given the lack of decision making powers of a woman and her family at the time of marriage, a marriage will be registered only if the groom wishes it to be. Section 3(1) of the above Act states: Notwithstanding anything contained in any other law, custom and practice, for the purpose of preserving documentary evidence of a Hindu marriage, such marriage may be registered according to the procedure prescribed in the rules. The optional nature of the Act is further elucidated by Section 3(2) which states: Whatever may be contained in sub section (1) the validity of marriage performed according to the Hindu Shastras will not be affected by its not being registered under this Act. If we compare the procedure available for the registration of Muslim marriages in Bangladesh under the Muslim Marriages and Divorces Registration Act of 1974, we see that although registration of Muslim divorces is optional, the registration of Muslim marriages is compulsory.17 Due to its optional nature, it appears that Hindus are registering their marriages only when they need to, for example when applying for immigration or for purposes related to their work. The lack of mandatory provisions, and therefore the compulsion to register, fails to protect and empower Hindu women which was one of the purposes of the legislation. A care study, published in 2016, found no case of Hindus registering marriages despite the enactment of the Act of 2012 (care, 2016:25). The study was conducted in 13 villages of Sunamganj District which 16 17

Section 6(1). See Section 3 of the Muslim Marriages and Divorces Registration Act, 1974 (Act No. lii of 1974). Please note that although every Muslim marriages must be compulsorily registered, non-registration does not affect the validity of such marriage—it only renders the persons responsible liable to punishment.

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are “­particularly economically marginalized and physically isolated” and in which one criterion was the proportional representation of Hindu and Muslim majority populations. According to Komol Majumdar,18 a Hindu Marriage Registrar for the Dhaka South City Corporation, people come to register their marriages to access the rationing facilities in the Armed Forces or other benefits connected with their work or when they are trying to go abroad. Other Hindu Marriage Registrars opined that the law should have been made compulsory and shared that there are procedural delays in their receiving the necessary updated volumes for registration. Mridula Saha, Hindu Marriage Registrar, Chandpur Sadar under the Chittagong Division, said that Hindus only come to register their marriages when they have to do so—when they are being transferred or for any other employment related reason. Ordinarily, they do not register their marriages and therefore it is necessary that Hindu marriage registration should be made compulsory.19 ‘When I ask them to register,’ she said, ‘they say the law is not mandatory and therefore they are not interested.’ One notable feature of the appointment of Hindu Marriage Registrars is that many of them are women. Before the enactment of the law, Hindu hard-liners strongly opposed any move to make the law compulsory. A spokesperson of Bangladesh Minority Sangram Parishad firmly affirmed in August of 2012 that they “strongly oppose the reformation in the name of women empowerment by violating the sacred religious precept and manner. We’ll wage a mass movement if the government does not refrain from formulating such law,”20 Human and women rights activists blame not only such hard-liners but also the Government for pandering to them. According to Nina Goswami of Ain O Salish Kendra the government law on registration of Hindu Marriages was only a token gesture to placate mainstream Hindu women without angering Hindu men, who generally vote for the current ruling party. “Unfortunately, these women don’t exist in the government’s eyes and ears,” she said. “To our politicians, the Hindu community is a big vote-bank, made up of only males.”21 The Hindu Marriage Registration Rules were made by the Division of Law and Justice of the Ministry of Law, Justice and Parliamentary Affairs, GoB on the 30th of January of 2013. The Rules mainly deal with the appointment of Hindu Marriage Registrars and matters pertaining thereto. Rule 5 deals with 18 Personal telephonic interview. 19 Personal telephonic interview with Mridula Saha. 20 https://alalodulal.org/2012/08/25/hindu/. 21 Ibid.

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the qualification of Marriage Registrars. A person must possess the following qualifications: a) b) c) d)

S(h)e must have, at the minimum, passed the hsc examinations. S(h)e must be within the ages of 25–50. S(h)e must be a resident of the relevant area. S(h)e must belong to the Hindu Shanatan religion.

Persons interested in becoming Hindu Marriage Registrars must apply according to Rule 6 by Form ‘A’ of the Rules. Rule 17 fixes the fees for the registration of marriages at Taka 1,000/- and for obtaining a copy thereof at Taka 100/-. The parties need to fill in the particulars contained in Form ‘D’ (Gha) of the Rules. The essential information which must be mentioned in the Form for a marriage to be registered, include the following: • • • • • • • • • •

Names and addresses of the groom, his father and mother Names and addresses of the bride, her father and mother The ages of the bride and the groom Whether the groom is a widower or already married Whether the bride is single or a widow The date of the marriage blessing or the ashirbad Special conditions if any Name of the Brahmin who solemnized the marriage Name of the shil/barber present Name and address of the person who is giving or bestowing the bride in marriage, as well as his relationship to the latter • Names of eminent persons from the groom’s, as well as the bride’s sides present at the ceremony • Date on which the marriage was solemnized and the date of registration • Signatures of the bride, the groom and the Brahmin A validation survey was conducted, after the Act came into force, on 31 Hindu respondents between the ages of 19 to 38. 16 of them were female and 15 male; 19 were unmarried and 12 married. The latter were all married after 2012, i.e. after the enactment of the law relating to registration. 28 of the 31 respondents had some knowledge about the law. Of these, 25 were aware that the law was optional while 3 thought it was compulsory. The 28 respondents, who knew about the law one way or other, all opined that registration of Hindu marriages, should be compulsory or mandatory instead of optional. However, one 21 year old unmarried male respondent, a student, did not believe that registration of Hindu marriages was particularly important since:

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Hindus in Bangladesh maintain their own culture under which there is no need to register marriages. Certain rites such as recital of mantras, sath paak, sampradan etc. are important and if we want to continue maintaining our cultural identity we do not need registration of marriages. Of the 12 married respondents, only one reported that his marriage had been registered. Of these 12, 7 knew about the new law whilst 4 said they had heard about the possibility of such a law being made but were not aware that there was already a law. One had no knowledge whatsoever. The last, 23 year Shukla was married in 2015 in her village home in Keraniganj District. She knows nothing about the law and has not heard of any Hindu marriage being registered. In fact when asked whether any of the respondents had heard of the registration of marriages of their family and friends, only two replied in the affirmative. The married respondents, who had not registered their marriages but had some knowledge of the law, said they would like to have their marriages registered but were not sure where the office of the Marriage Registrar was. One respondent, working for an international non-governmental agency, was married at the Dhakeswari Mandir and as was the custom, at a particularly auspicious time, which in his case was at dawn. There was no facility for registration in the Mandir or temple which is the national temple of Bangladesh. This shows the necessity of awareness building amongst religious priests/purohits who solemnise marriages. However, it is also true that as far as many of the above are concerned, registration is irrelevant and not required under the Shastric law. Indissolubility of Marriage—Lack of Provision for Divorce As discussed earlier, due to the sacred sacramental nature of Hindu marriages, there is no divorce or dissolution of marriage amongst the Hindus of Bangladesh. One respondent gave an example of her sister having to go to India to take advantage of the more liberal Indian Hindu laws in order to dissolve her marriage. A woman or a man cannot, even in the direst of circumstances, end her/ his marriage. However, unlike a man who can re-marry and make a life with another woman, a woman cannot. Although permanence of the marital tie is wished for amongst all communities, the reality is that situations arise when it is no longer possible to continue in a marriage. Even in the case of Christians in Bangladesh, who belong primarily to the Roman Catholic Church which is vehemently opposed to divorce, civil law (the Divorce Act of 1869) allows dissolution of marriage. Christians of all denominations can avail of this law to end unhappy unions. Hindus, married under their religious law, do not even have an alternative option in Bangladesh. Thus, a Hindu wife has no ­remedy

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Table 2.5 General responses regarding introducing a system of dissolution of marriage in Bangladeshi Hindu law

For

Against

No response

Total

125 (71.43%)

45 (25.71%)

5 (2.86%)

175

and cannot opt out of her marriage even if she is cruelly treated, severely tortured or abandoned. She cannot in any circumstance seek dissolution of her marriage. On the other hand, Hindu husbands may simply desert one wife and marry another, and due to the lack of access to the legal system, a Hindu woman has little recourse, in reality, of getting maintenance and other benefits. The majority of the respondents agreed that there should be a provision within the law to opt out of the marital union (see above, Table 2.5). However, it was stressed that such option should only be made available in certain specifically mentioned situations. It was conceded that in reality marriages do break down and that if things reach a point where the woman cannot bear it any longer, she should be able to dissolve the marriage. There should therefore be the opportunity to divorce in very serious and in certain limited cases, i.e. conditionally, for instance when the couple cannot even stay in one place (fgd, District: Jessore, Division: Khulna). In the fgd at Maulvibazar, Sylhet, one young female participant opined that the system of divorce ought to be introduced so that a couple may make a clean break: “now the males are in overall control.” Contrary to the above support for introducing the concept of divorce, there were others who believed in the sacramental permanence of the marital tie. “Why will the marriage be broken,” asked one lady, “is it something one should break; in any case this is rare amongst us.” Many held the view that it would be against the Shastras to introduce the concept of divorce. One respondent who was against introducing the system said: “There is no need for change; women will become too brazen (beshi shahosh hoye jabe)”. Table 2.6 Student responses regarding introducing a system of dissolution of marriage in Bangladeshi Hindu law

For

Against

No response

Total

38 (76%)

5 (10%)

7 (14%)

50

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As regards the younger generation, the responses were as follows: Field work has also shown that, even if disallowed by the Hindu law followed in Bangladesh, in practice many people devise ways to get out of a marriage, usually by swearing an affidavit. Rana Dasgupta, of the Hindu, ­Buddha and Christian Oikya Parishad, a veteran lawyer, describes how Hindu couples in reality opt out of a marriage: “the husband and the wife, as first and second parties, enter into a written agreement stating that their marriage has broken down due to irreconcilable differences and that they have reached a compromise and have mutually agreed to end their marriage. The parties then get married to others.” There have been situations when such agreements have been challenged and one or either of the parties has been accused of adultery or bigamy. Therefore, in reality, there are many cases where the prohibition on Hindu divorce is not being followed. The lack of necessity of a consenting mind whether due to minority or insanity; the right of unlimited polygamy for the male; the indissolubility of marriage in all circumstances—however dire and lack of mandatory marriage registration are the characteristics of the Bangladeshi Hindu law of marriage which contribute to gender injustice. 6.2 Guardianship of Children Under Hindu law in Bangladesh there may be four types of guardians. (a) Natural guardian—The father is the natural guardian of the person and property of his minor children. The mother comes next but the father in Bangladesh has the power to exclude the mother by appointing, by will, another person who supersedes her. The Bangladesh High Court, in the 2010 case of Nirmal Chandra Shaha vs. The State and Others held that in “case of married Hindu girl the natural guardian is the husband.”22 (b) Testamentary guardian—In Bangladesh a Hindu father may, by will, appoint any person as the guardian of his minor children’s person as well as property. The person he so appoints will have precedence over and exclude all others, including the mother. This means that the mother has to give up her right to guardianship even after the death of the father to anyone else the father has selected. (c) De Facto guardian—Hindu Law recognizes the rights of a person who has no rights in law but has nevertheless shown and acted in the interests of a minor to deal not only with the person but also, like a natural guardian, with the property of a minor. 22 30 bld (2010) 584.

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(d) Court appointed guardian: The Family Court may under the Guardians and Wards Act of 1890 appoint a guardian for a minor when he or she has no suitable guardian. Under the law, as well as under established precedent, the best interests of the child will have priority and must be given paramount consideration. From the above it is abundantly clear that the Hindu father has complete dominance to act as guardian of the minor even to the extent of taking away the mother’s right upon his death, by way of will. 6.3 Maintenance Since there is no divorce under Hindu law, there is no question of post divorce maintenance. The only relief is provided by the Hindu Married Women’s Right to Separate Residence and Maintenance Act of 1946, which allows for separate residence and maintenance of the wife. The Hindu male is in certain cases over-burdened by his responsibilities to provide maintenance for specific members of his family. He has the personal legal obligation to provide maintenance to certain persons based on his relationship to them, irrespective of whether he has inherited any property or not. This duty extends to the wife, infant children and aged parents. A Hindu wife has the right to be maintained by her husband and this right is based on the very existence of the marital relationship. The Hindu wife is however obliged to live and co-habit with her husband in order to be entitled to such maintenance and if she lives separately for no justifiable reason, her right is suspended. Since divorce is not allowed, a Hindu wife cannot permanently escape an unhappy or even unsafe marriage. On the other hand, a Hindu husband can abandon or desert his wife/wives and marry again since Hindu law, as mentioned earlier, permits polygamy but prohibits polyandry. A Hindu man is not obliged to treat his concurrent wives equally, unlike a Muslim husband. In order to provide relief in such cases, in 1946 provisions were made for a Hindu wife to leave her marital home and claim maintenance (Huda, 2003:14). The Hindu Married Women’s Rights to Separate Residence and Maintenance Act, 1946 states: Notwithstanding any custom or law to the contrary a Hindu married woman shall be entitled to separate residence and maintenance from her husband on one or more of the following grounds: (1) If he is suffering from any loathsome disease not contracted from her; (2) If he is guilty of such cruelty towards her as renders it unsafe or undesirable for her to live with him;

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(3) If he is guilty of desertion, that is to say, of abandoning her without her consent or against her wish; (4) If he marries again; (5) If he ceases to be a Hindu by conversion to another religion; (6) If he keeps in the house or habitually resides with a concubine; (7) For any other justifiable cause. A Hindu wife’s right to live separately and demand maintenance is made dependant on several factors such as her chastity, her being a practicing Hindu and her compliance with a Court’s decree for restitution of conjugal rights. This law continues to be in force in Bangladesh and Pakistan while in India it has been superseded by the Hindu Adoption and Maintenance Act of 1956. In the case of Gopal Chandra vs. Mitali Rani Chandra23 it was held that: Hindu marriage is a sacrament and inseparable. If the husband tortures and neglects his wife and her living with her husband is not safe, she is entitled to separate residence and maintenance. Family Court has exclusive jurisdiction to decide the suit for maintenance of the parties irrespective of their faith.24 A Hindu wife is not debarred from bringing a law suit for her maintenance against her husband under this Ordinance.25 Under the Hindu Law, a daughter on marriage ceases to be a member of her father’s family and becomes a member of her husband’s family and she is entitled to maintenance by her husband and after the husband’s death out of the husband’s estate, but if the husband leaves no estate, then her father-in-law, if he has sufficient property of his own is morally, though not legally, bound to maintain her.26 When the participants at the fgd at Brahmonbaria, Chittagong, were asked whether it is reasonable and right to expect that a Hindu wife should support and maintain her husband if he was ill or for any other reason unable to maintain the family, most respondents opined that this naturally happened in the ordinary course of events. One explained: “during the marriage ceremony, the groom promises in front of the holy fire that he will maintain his wife. So if a husband is incapable of maintaining his wife or family then the wife should 23 15 mlr (2010) (ad) 23. 24 Jibon Sharma (Sree) vs. Sree Subasini Sharma and another, 15 mlr (2010) (ad) 167. 25 Nirmal Kanti Das vs. Sreemati Biva Rani, 47 dlr (1995) 514. 26 Satish Ch. Pal vs. Mst. Majidan Begum, 10 dlr (1958) 271.

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take responsibility.” The women were all in agreement and opined that when their husbands are unable, naturally they maintain the family—“it is our culture helping each other, we are one unit.” As regards parents, there was general consensus that a Hindu daughter should also be given the legal responsibility of maintaining her aged or ill parents. However, it was emphasized that she should only be given this duty provided she had the financial means to undertake it and also if she was given wider rights of inheritance as a daughter. Most agreed that maintaining parents is the mandatory duty of sons since they remain in their fathers’ houses and inherit absolutely, whereas daughters, upon marriage leave and become members of their husbands’ families. After marriage, a Hindu daughter’s primary duty is to her husband and his family. It may be pertinent to mention here that the Parent’s Maintenance Act of 201327 applies to the Hindu community also and both the son and daughter have the duty to maintain their parents under this Act. 6.4 Adoption Considering the importance given to having a male issue, Hindu law allows for the adoption of a son. A daughter cannot be legally adopted under the orthodox law followed in Bangladesh. In ancient times many types of substitute sons were recognized. Now however the main form in existence is the dattaka, where the son of one family is formally handed over to an adoptive family who accepts him. He then becomes, for all purposes, the child of that family. The Appellate Division of the Supreme Court of Bangladesh held in the case of M/S Anath Bandh Guha vs. Sudhangsu Sekhar Dey28 that Hindu law does not make any distinction between a natural son and an adopted son in the matter of inheritance: “(w)hether it is in the adoption of personal law or secular law, the adopted son has the same status with the natural son.” Under the law of Hindu adoption practiced in Bangladesh, blatant discrimination against women is apparent at every step of the process. The father has the primary right to take and give in adoption. A Hindu male can adopt irrespective of the fact that he is a bachelor or a widower; he need not even be a major as long as he has reached the age of discretion. It is immaterial that his wife, if he is married, disagrees with the adoption or even if she is, to his knowledge, pregnant. He can however only adopt if he does not already have a son, grandson and so forth— either natural or adopted. On the other hand, a single Hindu woman in Bangladesh has absolutely no right to legally adopt. In the case of a married woman, she can only adopt with her husband’s permission and for him. Under the 27 Pita Matar Bhoronposhon Ain, 2013 (Act No. 49 of 2013). 28 31 dlr (ad) (1979) 312.

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­ engal School, a widow can only adopt with the direct or indirect permission B of her husband given before his death. The parties involved in the adoption must belong to the same caste i.e. inter-caste adoption is forbidden. The law of adoption also prohibits the adoption of a boy with physical or mental disabilities. As mentioned earlier only a son, not a daughter can be validly adopted. In the case of Abdul Mannan alias Kazi vs. Sultan Kazi29 it was clarified that an orphan cannot be given or taken in adoption, unless established by custom. The Hindu law of adoption in Bangladesh is therefore characterized by a bar on inter-caste adoption, lack of legal right to adopt a daughter or an orphan and the dominance of the male to take in adoption whatever his status. The most discriminatory provisions by far include the prohibition to validly adopt a daughter/girl as well as the bar on inter-caste adoption. The constitutionality of such provisions is questionable since they quite clearly contradict the Constitutional guarantees of non-discrimination on the basis of caste and sex. Despite the constitutional right to freedom of religion guaranteed by Article 41 of the Constitution of Bangladesh, the Hindu law of adoption may nevertheless be considered to be blatantly discriminatory against the girl child and on the basis of caste. Research has shown that even though legally disallowed, informal adoption of girl children is widely practiced in Bangladesh among all communities (Huda, 2008). In the case of Bimal Chandra Chowdhury vs. ­Subramanya Krishna Chowdhury30 it was held that “if anyone wants to challenge any adoption in Court, the limitation for the action is six years from the date of taking adoption.” The issue of adoption does not fall within the jurisdiction of the Family Court established under the Family Courts Ordinance of 1985. Respondents participating in the field work were more or less all aware about the fact that adoption was legal under Hindu law, although they were unsure about the details or what the religious precepts on adoption were. 3 students said that there was no adoption in Bangladesh; 22 said they knew that it was allowed amongst Hindus while 25 were completely ignorant about the system itself. Many were unaware that females and orphans cannot be adopted. Those who knew explained that according to Hindu Shastras, sons are necessary to participate in the essential shraddha ceremony and therefore it is extremely important to have a son: That is why we see that couples who do not have sons prefer to adopt sons. However, our mentality is changing every day and nowadays people 29 34 dlr (1982) 236. 30 46 dlr (1994) 90.

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adopt girls as well as orphans. According to Hindu religion, one must hand over (as guardian) the child to its possible parent, at the time of adoption. Since people are more aware now about their rights, usually a written deed is maintained, which ensures some sort of safeguard for the adopted child. Otherwise, it may be very difficult to claim property if somebody denies the adoption. As far as girls who are adopted are concerned, they get all rights and facilities except property rights. Adopted girls are handed over by their adoptive parents during marriage as their own daughters. According to Hindu religion, as Hindu daughters, in the presence of sons, do not get any rights to property in normal circumstances, adopted daughters do not either. However, even in the absence of nearer heirs, an adopted daughter cannot inherit, unlike a natural daughter. If a person wishes, he or she can give the informally adopted daughter property by way of will. (fgd—Chittagong Division). In Khulna, the entire group agreed that girl children should be legally adoptable and that single women and widows should also have the right to adopt. There was general agreement that the child to be adopted should be below the age of 18. Even in Habiganj, Sylhet, where the respondents were quite conservative, all were in agreement that a girl child should be capable of being adopted and a single woman and widow should have the right to adopt. Rana Dasgupta, General Secretary of the Hindu, Buddha and Christian Oikya Parishad, agreed that there should not be any problem or objection from the community if legislation is adopted to allow for the adoption of a girl. However, “when it comes to the question of giving them rights to inherit property, controversy will arise.” 6.5 Succession Under the Hindu law in Bangladesh, a Hindu woman may have two types of property: (1) Inherited property over which she has limited rights only; and (2) Stridhan property over which she exercises absolute control. Inherited Property Under the classical Dayabagha law there are primarily five female heirs and they include: a) widow b) daughter

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c) mother d) father’s mother and e) father’s father’s mother. Limited interest, as opposed to absolute interest, gives the holder the right to enjoy the property during her lifetime but no power of alienation. A Hindu widow enjoys life interest in the estate of her deceased husband. Her right to her husband’s property is subject to restrictions regarding the transfer of such property by sale, gift, will etc. The transfer by a Hindu widow of the property of her husband without legal necessity is not valid and the reversioner can get its restoration.31 Limited interest also signifies that after her death, the property shall go to the heirs of her husband and not to her own heirs. At the woman’s death, such property devolves upon the next heir of the deceased owner, i.e. the reversioner. Although as a rule a widow cannot alienate property inherited from her husband, in exceptional circumstances she has the right to alienate such property on grounds of “legal necessity.” Legal necessity may include but is not limited to payment of husband’s debts, for performance of acts beneficial to the spiritual welfare of her husband, marriage of daughters, maintenance of the family, benefit of the estate and so forth. The case of Nurunnabi vs. Joynal Abedin32 demonstrates the right of a Hindu widow in Bangladesh over the property of her deceased husband, as well as her right to alienate such property only in limited cases: The sole reason for giving her right of inheritance to her husband’s property, according to the Texts of Hindu Law is the spiritual benefit she may render to the departed soul as his wife. Acts of unchastity by a woman, which may be of different grades, may not amount to disavowal of her marital relationship and de facto abandonment of her character as the widow of the deceased husband. Unchastity of the widow is a ground to render her incapable to confer spiritual benefit on her late husband thereby barring her right to inherit husband’s property. Remarriage of widow disentitles her from inheriting her late husband’s property. Although reported cases on other Hindu family matters are few and far between, questions of widow’s right to alienate property inherited from her 31 Sekandar Ali Shaikh (Md.) and others vs. Sree Dilip Kumar, 3 mlr (1998) (ad) 69. 32 29 dlr (1977) 137.

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­ usband has been the subject of much judicial scrutiny. The courts have in h many instances dealt with the question of whether a Hindu widow’s transfer of property was on the grounds of legal necessity. In the 2002 case of Jitendra Mistry vs. Abdul Malek Howlader and others33 for example, it was held that: To repay the debts and to perform religious rituals for the salvation of the departed soul are recognized legal necessity. The legal necessities have to be established by cogent and consistent evidence. Under the Shastric law, a Hindu widow faced discrimination as regards her right to inherit her husband’s property and was excluded in the presence of a son. The widow’s right to inherit simultaneously with the son/s is a statutory innovation introduced by the Hindu Women’s Right to Property Act of 1937 which in Section 3(1) states: When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together, shall, subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son …. The above also applies to the widow of a predeceased son as well as to the widow of a predeceased son of a predeceased son. Although extending the widow’s right to inherit along with the son/s, the law continues to limit her rights over the inherited property. Section 3(3) of the Act of 1937 provides that: Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Woman’s estate, provided however that she shall have the same right of claiming partition as a male owner. The Hindu daughter in Bangladesh is completely excluded from inheritance in the presence of a son. When a man dies leaving only one or more daughters and no male issue, such daughter(s) right to inherit is solely dependent on her/their having a son or being capable of giving birth to a son. In all cases, if and when a female inherits, she gets a limited estate. In the Bangladeshi case 33 7 mlr (2002) (ad) 174.

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of Abdul Gani Khan vs. Tamijuddin Howlader34 it was clearly stated that in no circumstances is a daughter who is barren, or widow without male issue or mother of a daughter entitled to succeed. It was further held that: “(U)nder the Bengal School all daughters cannot succeed to the property of their fathers but some of them may and can; and it enumerates that the first to inherit is the unmarried daughter and then a married daughter having a male child succeeds and she excludes married but barren daughters and married widowed daughters.” Stridhan Property Stridhan property is property over which a Hindu woman has absolute control as opposed to property over which her rights are limited. Derived from the two words “stri,” i.e. woman, and “dhan” which means property, stridhan generally comprises of gifts received by a woman. For example, gifts made before the nuptial fire and at the bridal procession, gifts from relatives such as the mother, father, brother, parents-in-law constitute stridhan. Firstly, over such property, a woman has full power of disposal and secondly, upon her death, it devolves on her own heirs. The three things which determine whether a property is stridhan or not are the source of acquisition, the School to which the woman belongs to and her status (whether she is single, married or widowed). Her rights over such property are absolute as opposed to property inherited by her (as discussed above), over which her rights are limited. Field work shows that the majority of Hindus are aware about the daughter’s lack of inheritance rights in the presence of son/s and women’s limited rights over inherited property. Different views exist starting from the more radical, i.e. the giving of equal and absolute rights to daughters in all circumstances and cases, to more moderate views that Hindu daughters should, like daughters under Muslim law, inherit half of their brothers share. Again, many expressed their abhorrence for the dowry system which according to them is the bane of Hindu society and results in many families becoming penniless. Dowry is construed to be a sort of “pre-mortem” inheritance based on which women are often deprived of rights to inheritance. fgd participants in Dhaka Division observed: Since Hindu women get all the necessities of life at the time of their marriage, they do not get the right to inherit property absolutely. Even though nowadays, in exceptional cases, widows and daughters are g­ etting ­property rights, the majority of women continue to be deprived of such 34

Abdul Gani Khan vs. Tamejuddin Howladar, 5 dlr (1953) 440.

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rights. A wife should get absolute rights to her husband’s property. The State can take initiatives to ensure equal inheritance for men and women. One religious leader who participated in the above fgd was of the view that the dowry system of Hindu marriage comes from demand of inheritance rights of women. The fear that giving Hindu women absolute rights to property and rights to inheritance will tempt greedy Muslim boys into seducing them into marriage and forcing them to convert to Islam was expressed over and over again. One respondent, an advocate of a District Court, expressed his concern that conversion will harm the Hindu population. “What will happen if a Hindu man or woman converts and ceases to be a Hindu? Will s(h)e inherit property?” he asked. The participants came to the consensus that in case of conversion from Hinduism, a person should not inherit property and that this should be made into law. They also opined that the State should deal with the question of vested property before introducing any changes.35 35

Law relating to Vested Property: The precursers to the Vested Property Act or vpa [i.e. the Vested and Non-Resident Property (Administration) Act of 1974, (since repealed), popularly known as the Vested Property Act or vpa], were several pieces of legislation enacted by the erstwhile Pakistani State which resulted in the consistent and continuous misappropriation of the property of Hindu families who had been displaced and forced to flee from the then East Bengal (later East Pakistan) as a result of the partition of the Indian Sub-continent and thereafter in 1965, the war between India and Pakistan. These include: the Requisition of Property Act, 1948; the East Bengal Evacuees (Administration of Immovable) Property Act of 1951, the East Pakistan Disturbed Persons Rehabilitation Ordinance 1964; the Enemy Property (Custody and Registration) Order, 1965 (popularly referred to as the Enemy Property Act); the Defence of Pakistan Ordinance 1965; the Defence of Pakistan Rules 1965; and the Enemy Property (Continuance of Emergency Provisions) Ordinance 1969. By virtue of these laws, the properties of so-called “enemy” aliens were vested temporarily in the Government. After the independence of Bangladesh by virtue of the Bangladesh (Adaptation of Existing Bangladesh Laws) Order 1972, all Pakistani laws were declared as continuing to be in operation. On the 26th of March 1972, the Bangladesh government enforced the Bangladesh Vesting of Property and Assets Order 1972 (since repealed). In 1974, the Vested Property Act or vpa, mentioned above, was enacted giving the Government the right to the management of properties of non-resident Bangladeshis etc., with the supposed intention of dealing with properties abandoned by Pakistani owners, who had left due to the war of 1971. However, in 1976, by the Enemy Property (Continuance of Emergency Provision) (Repeal) (Amendment) Ordinance (since then repealed), the State permanently took over the ownership of such properties instead of returning them to the owners and/or heirs, as promised. Thus, the vpa succeeded the epa and significantly, since Hindus were the “enemy” for purposes of the epa, this new Act implied that Hindus

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The participants were clearly divided in their opinion as to whether there should be changes made to the system of Hindu inheritance. Those against were concerned that women would convert, while others thought the law should be in accordance with religious rules only. One respondent opined: “giving daughters the right to inherit in all circumstances and cases goes against the Shastras. If we do anything against religion, we will lose our religion.”

would remain the primary target of such legislation, and it was accordingly used by the government to continue appropriating so-called enemy properties of Hindu migrants to India. The Government thus became not only the custodian, but also the owner of such properties and had the right to manage, administer, control and most importantly dispose of such property. In 2001, the Vested Properties Return Act, i.e., the Arpita Sampatty Protapyan Ain (amended later in 2002) was passed with the main purpose of returning certain types of properties vested in the Government to their owners; under this Act the Government was to publish a list of returnable properties. By this law, the sale, gift, mortgage or any other type of alienation of such properties was prohibited. Most of the properties which were declared as enemy/vested had been leased to individuals and in some cases organizations. In the case of individuals, it is alleged that the beneficiaries were people having connections with whichever Government was in power. Barkat quoting analysis made estimates that 536,950 grabbers/beneficiaries throughout the country have been occupying a total of 2.6 million acres of vested land which lawfully belongs to 1.2 million Hindu households (Barkat et al., 2008:108). In 2012 by amendment to the Vested Properties Return Act of 2001, provisions were inserted containing two Schedules. Schedule ‘A’ listed properties which could be returned, since they fell within the definition of returnable properties. On the other hand List ‘B’ contained properties which were not within the possession of the State and therefore could not be returned. Due to massive irregularities in preparing Schedule ‘B,’ which triggered protests from different activist groups, it was repealed by a further amendment in 2013 by the Vested Property (Second Amendment) Act, 2013 (Act No. 46 of 2013) which scrapped Schedule ‘B.’ (For more, see Yasmin, 2015.) The process of return of properties under the Act has become mired in tangles so complicated that as a consequence Courts are swamped with cases related to such claims. Yasmin writes that the entire process of hearing applications for return of vested properties is clogged with so many provisions that they almost amount to civil suits for declarations of title. Separate vested property tribunals have been created for hearing these claims (Yasmin, 2015:24). The vpa has been criticized as a major violation of the rights of citizens, especially minorities, whose property seized in the past, simply on leaving the country. Under the still applicable laws related to vested property, Hindu citizens continue to be deprived of property by certain interested quarters that are politically or economically empowered, with the patronage of the Government. The continuation of this law has been mentioned over and over again by respondents as a reason for their feeling insecure in Bangladesh. (For more on the above, see also Islam, 2013.)

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Despite the above, many of the respondents were strongly in favour of granting daughters the right to inherit even in the presence of brothers. In Khulna, the view was expressed that since both sons and daughters are the children of their parents and have the same rights and duties towards them, the father should also have the same responsibilities towards his sons and daughters. However, if a daughter converts into another religion there should be certain prohibitions to her inheriting. Participants at the fgd in Habiganj, Sylhet, agreed that daughters should have rights to inherit property, but one person opined that a brother’s son who participated in his uncle’s shraddha (funeral) should also get a portion of his uncle’s property. The participants were therefore divided in their opinion as to whether Hindu inheritance laws should be changed. As regards giving absolute rights of inheritance to women, Sree S.K. Dutta of Khulna said he had spoken to many Hindus who were in favour of such change. However, many were concerned that Muslim men will not only marry and take over their wives’ portions, but also force the other members (maybe the brothers of the deceased), with adjoining properties, to leave: Supposing a man has five brothers and his daughter gets a part of his property through inheritance or by will or gift (if she has a brother who inherits, excluding her). She then marries a Muslim man and becomes a Muslim herself. Socially, it may become impossible for the other family members to continue to live next to a Muslim; and in many cases they are forced to leave. Sree Dutta opined: “my sister will not inherit anything but a Muslim sister will get half of her brother’s share.” His opinion, quite logically, is that in all cases, both under Muslim and Hindu law, daughters and sons should get equal shares. As regards acceptance by the Hindu community of reforms, he gave the example of the laws against the sati system or for widow remarriage and how difficult it was for social reformers like Raja Ram Mohan Rai and others to introduce them. “Many will be against changes or reforms”—“but once a law is enacted, even if they are opposed to it at the beginning, eventually it will be accepted.” Women respondents were generally in agreement that Hindu daughters should get rights of inheritance even in the presence of sons. “However,” they opined, “It has to be ensured that the practice of dowry is strictly banned.” According to one person, “in many cases a father spends more on dowry for his daughter at the time of her marriage than the valuation of the property which the son/s eventually gets.” When asked individually, most agreed that sons and daughters should get equal shares. However one respondent said that since

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it is the son/s duty to take care of the parents, daughters should have fewer rights. The participant however conceded that in many cases it is actually the daughters who look after aged parents and not sons. Although the agreement was that both should inherit, there was disagreement as to the share daughters should get. Like many others elsewhere, a few were of the opinion that daughters should at least get something, “perhaps like under Muslim law, half of their brother’s share.” (fgd, Jessore District, Khulna Division). In the Rangpur Division, 24 out of the 25 respondents were in favour of reform and the granting of wider rights of inheritance in favour of daughters. There appears to be widespread agreement that daughters ought not to be left out of inheritance. Despite overall agreement that a change allowing for wider rights of inheritance of daughters was necessary (see Tables 2.7 and 2.8), there was discrepancy as to what the share of a daughter ought to be when inheriting together with a son. Responses included: Both equally Son 2/3 and daughter 1/3 Son 4½ and daughter 1½. There is general consensus that it is unjust for Hindu daughters to be completely excluded from inheritance in the presence of male siblings, but also that there are potential problems in legislating change in this regard. If we are to identify the major hurdles from the empirical investigation, the concerns are: firstly, and most importantly, the feeling of insecurity of the ­minority Table 2.7 General responses as to whether daughters should inherit along with sons

For

Against

No response

Total

142 (81%)

30 (17%)

3 (2%)

175

Table 2.8 Student responses as to whether daughters should inherit along with sons

For

Against

No response

Other (not sure/ do not know)

Total

35 (70%)

9 (18%)

3 (6%)

3 (6%)

50

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c­ ommunity which is even more pronounced in the case of daughters and which prompts many Hindu families to send their female children to India; secondly, the thorny issue related to vested property which has time and again been mentioned as a major cause of insecurity. The third concern is the escalating practice of dowry demands which means that parents oftentimes end up paying more than the daughter would have inherited, so much so that it is considered to be a kind of pre-mortem inheritance, but which in reality belongs to the husband and his family and not to the daughter. Rana Dasgupta,36 has some suggestions which may be more acceptable: firstly he suggests the giving of absolute rights to the Hindu widow who are sometimes treated badly by sons and daughters-in-laws and therefore whose well-being should be ensured. Secondly, giving temporary rights to a portion/share of the property to unmarried daughters—after marriage such property should revert back to the brothers. It is relevant to mention that a brother, inheriting property from the father, is under a legal obligation, arising out of his possession of such property, to maintain all those whose maintenance it was the father’s duty to ensure, which includes unmarried sisters. However in many cases sisters are neglected and deprived of such maintenance. 7

Hindu Law in India: Comparisons, Contrasts, Contradictions and Thoughts

As discussed in some detail earlier, despite the fact that the majority of the population of the Republic of India are Hindus, in the 1950s’s major reforms were introduced to Hindu personal laws in India. It should not be assumed that such reforms were accepted without strong and vociferous protest from orthodox Hindus. After the Indian Constitution came into effect in 1951, the Hindu Code Bill was debated, vehemently opposed and eventually lapsed. Eventually in the mid-50’s, four separate acts37 dealing with various issues were enacted. These include: The Hindu Marriage Act, 1955 The Hindu Adoption and Maintenance Act, 1956 The Hindu Succession Act, 1956 The Hindu Minority and Guardianship Act, 1956 36 37

General Secretary of the Hindu, Buddha and Christian Oikya Parishad. Act No. 25 of 1955 and Acts No. 30, 32 and 78 of 1956.

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7.1 Marriage The Hindu Marriage Act of 1955 of India deals with a variety of marriage related matters including dissolution of marriage, a hitherto unacceptable phenomenon, as far as Hindu marriages were concerned. The Act now supersedes the personal Hindu law in India as far as they relate to matters covered under the Act. The major changes introduced into the law of marriage included the distinction between sacramental and civil Hindu marriages, conversion of Hindu marriage into a monogamous union and a provision for the dissolution of marriage (Parashar, 1992:113). The most significant change brought about by the Act was the transformation of the Hindu marriage from a sacramental to a contractual union. The Act: was based on a formal concept of equality where the spouses were deemed equal and had equal rights and obligations towards each other. Both men and women were granted equal rights to matrimonial ­remedies and ancillary reliefs. (Agnes, 2004:83) Section 5 of the Act put forward certain conditions for the validity of a Hindu marriage in India. Although worded simply, each portion significantly addresses and changes the requirements of Hindu marriage which continue in Bangladesh. Section 5 details the required conditions for a Hindu marriage. It states: A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:— (i) neither party has a spouse living at the time of the marriage; (ii) at the time of the marriage, neither party— (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity or epilepsy; (iii) the bridegroom has completed the age of [twenty-one years] and the bride the age of [eighteen years] at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

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(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two. By discussing each portion of Section 5 and each sub-section separately we hope to not only shed light upon the reforms made to the Shastric law of marriage in India, but also to compare the position of the law in Bangladesh. Caste Considerations At the very beginning of the Hindu Marriage Act, 1955, applicable to Indian Hindus, the phrase “any two Hindus” is by itself very significant as it deals head on with the issue of inter-caste marriages which are prohibited by religious law. It effective validates marriage between different castes. Section 29(1) clarifies that: A marriage solemnized between Hindus before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra or pravara or belonged to different religion, castes or sub-divisions of the same caste. The Act retrospectively makes valid the above marriages. The necessity that the parties should belong to the same caste was until recently a legal requirement in Bangladesh under Hindu personal laws. However, as discussed earlier, in the case of registration of marriages under the law of 2012 enacted in Bangladesh, caste considerations have not been included within the necessary conditions for such registration. Thus, inter-caste marriages may validly be registered and therefore may be construed to be now valid in Bangladesh. Before 2012, inter-caste marriages in Bangladesh could be solemnized ­under the Special Marriage Act of 1872. Arguably, such caste-based disparity has always been ultra vires the Constitution of Bangladesh which pledges and r­ eiterates the principle of non-discrimination based on caste. Field work however showed that despite the prohibitions regarding inter-caste marriages, in reality such marriages have been taking place and not only under the Special ­Marriage Act of 1872, but also with religious approval and solemnized by priests or purohits. Monogamy The next requirement of the Indian law is that neither party should have a spouse living at the time of the marriage, which clearly imposes the ­condition

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of monogamy. The Indian Act deals strictly with cases of polygamy and imposes punishment under the Penal Code. Section 17 states: Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal (45 of 1860) Code shall apply accordingly. Thus, a marriage contracted during the subsistence of an existing marriage is void in India. According to some, this is in keeping with the ideal view of a Hindu marriage as a holy union between two persons. It is alleged that in India, polygamy was not generally permitted and a second marriage was only allowed in particular cases and under strict conditions. Thus: Monogamy was the rule and ethos of the Hindu society which rejected the second marriage altogether. The influence of religion in all marriage did not allow polygamy to become a part of Hindu culture. Therefore noting the various enactments which dealt with the marriage throughout the length and breadth of this Country, it became necessary for the parliament to amend and codify the law relating to marriage among Hindus and that is how the enactment of Hindu Marriage Act 1955 was passed.38 Thus in post-colonial India, Hindu males who did not previously come under the purview of the Sections related to bigamy under the Penal Code were by virtue of the hma so brought. In terms of civil consequences, under Section 11, a marriage in contravention of Section 5(i) will be null and void.39 Contrary to the above and whatever may be the real interpretation of religious law, under the classical law followed in Bangladesh, not only polygamy but unlimited polygamy for men has been and continues to be considered as legal under Hindu law and the children born out of such marriages are considered as legitimate. Thus, although polyandry is prohibited in Bangladesh and a Hindu woman may be prosecuted under the Penal Code; polygamy for males is permitted. In India, Section 5(i), 11 and 17 deals with the offence of polygamy. A bigamous marriage in India is void ab initio without a declaration by a Court to that effect although the Court may so declare at the behest of a party.

38 39

2008 (6) air Kar R 267. For more see Menski, Werner (2001b: 189–223).

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Age of Marriage and Guardianship One of the conditions prescribed under Section 5 for a valid Hindu marriage in the law in India is that the bridegroom must have completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage. Hindu Shastriya law not only allows child marriages but encourages underage marriages, especially for girls. The Act of 1955 thus takes a big step by not only delineating a minimum age but also declaring marriages below such ages as invalid. In Bangladesh, the newly enacted Child Marriage Restraint Act of 2017, which applies to all communities, also prescribes the same minimum ages but merely makes the persons connected to such marriages punishable whilst the marriage continues to be valid. Therefore in Bangladesh, child marriages amongst Hindus (and Muslims) are legal albeit punishable. The Hindu Marriage Registration Act of 2012 of Bangladesh by Section 5 bars the registration of a marriage where the parties are below certain ages. It states: Notwithstanding anything contained in any other law, if a Hindu man, under the age of 21 (twenty-one) years and a Hindu woman, under the age of 18 (eighteen) years enter into a marriage, such marriage cannot be registered under the Act. The law does not go as far as to outlaw underage marriages but imposes a ban on the registration of such marriages. In cases of minority, Dayabagha law prescribes a list of requisite guardians, as does the Mitakshara law, applicable in most parts of India. Although initially the Indian Act of 1955 provided a new list of guardians applicable for both Schools, giving the mother priority after the father and before other relatives, in 1978 Section 6 was omitted. Under the prevailing Dayabagha law in Bangladesh, a guardian may presumably still validly give a ward into marriage. In the list of acceptable guardians under this School, the mother’s name comes much later. Muslim law (and the codified Indian Hindu law of 1955) allows a child, who is married under a certain age, an option (referred to loosely as the ‘option of puberty’) to opt out of the marriage upon reaching maturity or a certain age. There is no such option under Bangladeshi Hindu law. Consent, Mental and Physical Capacity Under Section 5(1)(ii) of the Indian Act, at the time of the marriage, neither party must be incapable of giving a valid consent to it due to unsoundness of mind or insanity even if recurrent; or even if capable of giving a valid consent, neither must suffer from a mental or a physical disorder which renders her/ him unfit for marriage or the procreation of children. Capacity to consent has

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therefore been made a condition of the marriage and in pursuance of this the concept of guardianship of marriage has been made obsolete in India. The uncodified law in Bangladesh, as it stands, does not bar a marriage on the grounds of incapacity to consent. Ceremonies of Marriage As discussed in some detail earlier, Hindu marriages are celebrated with various elaborate ceremonies and rituals. In India, the Hindu Marriage Act addresses the question of ceremonies and simplifies them. In Section 7 the law lays down the ceremonies for a Hindu marriage: (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. There appears to be some confusion as to whether saptapadi involves the taking of seven steps before or around the sacred fire but the word satpaak used in Bengali seems to signify that it means ‘around’ instead of just in front of the fire since the word ‘paak’ means circling. Mulla uses the word ‘before’ while Mayne referring to the Indian cases of Sitabai vs. Vittabai40 and Bhorilal vs. Kanshaliya41 states, somewhat confusingly, that the ceremony of saptapadi consists of the taking of seven steps and it is not necessary to go around the fire seven times. That the ceremonies are important is agreed by all. According to Mayne, the status of husband and wife is the result of the performance of the marriage rites, whether prescribed by the sastras or by custom (Mayne, 1995:135). However, as evidenced by field research and case law, in Bangladesh wide deviation and discrepancies exist as to what is considered to be essential ceremonies that are necessary to establish a valid marital relationship. This led to problems relating to the proof of marriages as was evidenced by the case of Amulya­ Chandra (discussed earlier). Many respondents questioned as to whether the ceremonies should be simplified agreed, although most on grounds of expense and time. Another Bangladeshi case may be referred to for the purpose of showing the kinds of problems that arose due to a lack of settled procedure 40 41

(1959) Bom 508: 1959 Nag LJ 10. (1970) Raj 83: 1969 (2) Raj LW 427.

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to prove a marriage and the confusion as to what are the required ceremonies. In the case of Utpal Kanti Das vs. Monju Rani Das,42 the parties were both Shudras. The wife Monju Rani had started a claim initially in the Family Court, Saturia, claiming maintenance from Utpal Das on the basis of their having been married “according to the Hindu Shastra” at a Kalimandir “in presence of several persons,” and later having confirmed the marriage by affidavit. Subsequently, Utpal Das abandoned Monju Rani after she allegedly refused to accede to dowry demands, and he remarried. Utpal denied being married to Monju. The court disbelieved that there was a marriage between them and dismissed Monju Rani’s claim, upon which she appealed to the Additional District Judges Court of Manikganj. The latter Court reversing the decision, held that there was in fact a marriage between them and issued a decree for maintenance. This was again confirmed by a single bench of the High Court Division. The propriety of the hcd’s decision was thereupon called into question before the Appellate Division. The council for the appellant husband argued that the marriage was bad in law because the essential ceremonies of Hindu marriage, namely, a) saptapadi and b) invocation before the sacred fire had not been performed and since there exists no evidence that these two ceremonies were performed ‘the marriage even if performed was not completed.’ The findings in the lower courts neither denied that these rites had been performed nor positively affirmed the contrary. The Highest Court however held that there had been in fact a valid marriage and that, once the celebration of a marriage in fact is established there shall be a presumption of there being a marriage in law and observance of the ­essential ceremonies. The Court also added that ‘nuptial rituals in Hindu Shastras are so complicated that an exact observance of their details is not easy and is beyond the comprehension of their details by the ordinary participants or the attendants of the ceremony.’ The above case confirmed the necessity for two things—one is the registration of Hindu marriages in Bangladesh and secondly the simplification of the ceremonies both of which appears to have been somewhat achieved by the Hindu Marriage Registration Act of 2012. As has been discussed in some detail in the section on marriages, in Bangladesh, the abovementioned law has in effect simplified the ceremonies required for a valid Hindu marriage. The Act of 2012 defines a Hindu marriage as a marriage solemnized between Hindus 42 50 dlr (ad) (1998) 47.

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and performed according to the customary rites and practices approved by the Hindu scriptures—without specifying any particular ceremonies. Any Hindu marriage therefore which has been solemnized according to the Hindu religion, customs and rituals may be validly registered.43 Provision has therefore been made for the registration of Hindu marriages but because of the optional nature of such law it provides little realistic protection for wives since husbands can easily refuse to register. Provision for Registration of Hindu Marriages in India For the purpose of facilitating the proof of Hindu marriages, the hma makes provision for marriage registration. Under Section 8, the State Government, through the State Legislature, may make rules providing for the parties to a marriage to voluntarily have the particulars relating to their marriage entered in a Hindu Marriage Register. The Section makes it optional for the State Government to decide whether or not to make registration compulsory. In cases where it is so made, punishment in the form of a fine is to be imposed for noncompliance. However, the validity of any Hindu marriage shall in no way be affected by non-registration [17(5)]. Who Cannot Legally Marry: Prohibited and Sapinda Relationships As in all other family laws, in Hindu law also there are certain degrees of prohibited relationships within which a marriage is void. The parties must neither be within the degrees of prohibited relationship nor sapindas to each other, unless custom or usage permits. The Hindu Marriage Act of 1955 defines in Section 3(f)(i) and(ii) what prohibited relationship and sapinda means, thereby simplifying the concepts in a manner. Under classical law, a difference is made regarding the sapinda relationship under the Mitakshara and the Dayabagha Schools. Although both Schools agree that marriages cannot take place between sapindas, there is dissimilarity between the two Schools as to what the term connotes. Under the Dayabagha School “pinda” means the ball of rice which is offered to a deceased person by his relations at his last rites or shraddha ceremony. Therefore, under the Bengal School, sapindas are those who are competent to offer pinda to a person and those to whom he is competent to offer pinda to upon death. In Bangladesh which follows the Dayabagha School, sapinda relationship is thus dependent on the efficacy to participate in the funeral or shraddha ceremony so as to confer the most religious advantage upon the deceased person and other ancestors. Those who are within the prohibited degrees of relationship include a 43

For more see Sections 3(1) and 6(1) of the Hindu Marriage Registration Act, 2012.

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host of relatives and in some cases the courts find it difficult to unravel the relationships. Under the Mitakshara School, sapindas are generally persons related by body, blood or consanguinity. It is to be noted that the definition of sapinda relationship under the Indian Act is different from what is understood under the ordinary Hindu law. Under this definition, it extends only as far as the third generation in the line of ascent to the mother and the fifth in the line of ascent to the father, the person concerned being counted as the first generation (Mayne, 1995:164). The Act of 1955 defines sapinda relationship. Section 3(g) states that two persons are said to be within the “degrees of prohibited relationship” (i) if one is a lineal ascendant of the other; or (ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or (iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother of the ­other; or (iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters; (v) Explanation.—For the purposes of clauses (f) and (g), relationship includes (i) relationship by half or uterine blood as well as by full blood; (ii) illegitimate blood relationship as well as legitimate; (iii) relationship by adoption as well as by blood; and all terms of relationship in those clauses shall be construed accordingly. 7.2

Nullity of Marriage, Judicial Separation and Dissolution of Marriage (T)raditionally a Hindu Marriage is a sacrament (samskara) which leads to the life-long union of the spouses. The modern Indian Hindu law, however, has emphasized the contractual aspects of marriage and has legislated away the expectation that a Hindu marriage should be a supernaturally sanctioned, indissoluble union. (Menski, 2001a:25)

The dominant view among scholars has been that classical Hindu law did not permit divorce, mainly because it infringed the ideal of sacramental marriage, seen as the central foundation of Hindu family law. Menski however goes on to add that despite the latter, there exists much evidence of various ancient customary forms of divorce among Hindus (Menski, 2003:427). Breakdown of marital relations is a fact of life and in acknowledgement of this and unlike the Bangladeshi Hindu law, Indian Hindu law has incorporated concepts of

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• Judicial Separation; • Divorce; • Nullity of Marriage; and later on • Divorce by mutual consent. Judicial Separation Under Section 10 of the Act of 1955, either party may petition the court for a decree of judicial separation on certain grounds. The consequence of such separation is that it no longer becomes obligatory for the petitioner to cohabit with the respondent. In Bangladesh, the law recognizes the right of a Hindu wife on certain grounds to live separately from her husband and demand maintenance. The Hindu Married Women’s Right to Separate Residence and Maintenance Act of 1946 provides grounds which are similar to the grounds provided in the Hindu Adoption and Maintenance Act, 1956 applicable in India (see earlier). Divorce In Bangladesh, divorce under Hindu law is not permitted unless custom, which may be very difficult to prove, allows it. Indian Hindu couples may now permanently dissolve their marital tie on a variety of grounds. Section 13 of the Hindu Marriage Act of 1955 provides that either party to the marriage may petition the Court to obtain a decree of divorce on the grounds provided in the Act. These include the commission of adultery, cruelty, desertion, conversion to another religion, unsoundness of mind, mental disorder whether continuous or intermittent, certain diseases such as leprosy and venereal disease and so forth. Renunciation of the world and presumption of death are also grounds for divorce, as is the non-resumption of cohabitation for a year or more after a decree of separation or the failure to comply with a decree for restitution of conjugal rights. Section 13 also allows the wife additional grounds upon which she may petition for dissolution of the marriage and these include the husband’s polygamy, rape, sodomy and bestiality. The Indian Act also incorporates the principle of Option of Puberty which has always been recognized under Muslim law. A wife married below a certain age may, upon attaining a certain mature age, repudiate the marriage contracted by her guardian. Under Bangladeshi law, although child marriages are allowed and practiced under Hindu law, no such option exists. In 1976 by the Marriage Laws (Amendment) Act, a further ground of divorce, i.e. divorce by mutual consent, was introduced by Section 13B in India. Attempts to incorporate a further ground for divorce, i.e. irretrievable breakdown of marriage, were made with the Marriage Laws (Amendment) Bill of 2010 and went as far as gaining the approval of the cabinet, but have not, for a variety of reasons, been successful.

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The introduction of the concept of dissolubility of what has for centuries been considered as a sacramental union was of course rigorously opposed. However, proponents pointed out that not only has such dissolution been practiced amongst the lower classes of Hindu society, but that the religious texts themselves allow divorce in certain circumstances.44 Menski convincingly argues the existence of customary Hindu divorces despite the traditional view of marriage as indissoluble and states that: (T)raditional Hindu divorce law was much more liberal and flexible than many writers admit. The apparent contradiction could be resolved by recognizing that divorce is evidently a violation of the shastric highcaste ideal of Hindu marriage as a samskara, but has always been a part of Hindu social life as a whole. Most authors, however, prefer simple dogmatic statements relying on—and in turn reinforcing—the axiom that traditional Hindu law did not permit divorce, nor even knew such a concept. (Menski, 2003:430) Not only customarily, but also through legislation, several States in India had, before the adoption of the all-encompassing Hindu Marriage Act of 1955, statutorily recognized Hindu divorce. This and the fact that customary dissolution has long existed have been conceded by the Act of 1955 in Section 29(2) which states that “(n)othing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.” Field work in Bangladesh showed that although by and large the belief exists that Hindu marriage is indissoluble, when faced with certain situations where one or the other party to the marriage wishes desperately to end it, the simple mechanism of declaring the end of the marital tie through an affidavit has been resorted to and accepted. Some respondents report that when this has the chance of being contested by the opposite party they have to resort to the complicated route of going to India to avail of the more liberal laws there. So far no evidence could be unearthed as to any legal challenge or consequence of such a divorce. Some women, after dissolving their ­marriages through a­ ffidavits have even subsequently married other men and as the law now stands in ­Bangladesh, the validity of such marriages could be legally challenged. 44

For more on the background and arguments of the Hindu Law Commissions for, as well as against, incorporating provisions for divorce in Hindu law see Parashar, Archana (1992).

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Nullity of Marriage In India, Section 11 of the Act of 1955 provides that any marriage solemnized after the enactment of the Act shall be null and void and may, on a petition by either party thereto, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5. These include bigamy and parties being within the prohibited degrees or being ­sapindas to each other. Under Section 12, a marriage shall be voidable and may be annulled by a decree of nullity on the grounds of lunacy or idiocy, consent obtained by force or fraud and pregnancy by some other person. 7.3 Maintenance The Hindu Adoption and Maintenance Act, 1956 deals with the issue of Hindu adoption and maintenance in India. Section 18 imposes a duty upon a Hindu husband to maintain his wife during her lifetime. On certain grounds, similar to those under the Act of 1946 under which a Hindu woman in Bangladesh may claim separate residence and maintenance, in India now a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance on certain grounds specified in Section 18(2) of the Act of 1956. These include: desertion or abandonment, such cruelty which causes a reasonable apprehension in her mind that it will be harmful or injurious to her life, the fact that he is suffering from a virulent form of leprosy, has another wife or keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere, or has converted to another religion. However, under the law, chastity is a condition precedent to such maintenance [18(3)]. The Act of 1956 imposes a legal duty on a father-in-law to maintain his widowed daughter-in-law if she is unable to maintain herself from any other source. Another innovation made by the Act is that it imposes a duty not only on a son, as is the case under the orthodox law followed in Bangladesh, but also on a daughter to maintain aged or infirm parents (Section 20). Both parents of illegitimate children are also responsible for the child’s maintenance. In all of the above cases, such obligation extends so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property. In cases of the husband being incapable of maintaining the wife, the law makes the wife who is capable, also responsible for maintenance. Menski notes that modern “Hindu law in its gender-focused enthusiasm (Sections 24 and 25 of the hma) has even gone as far as granting Hindu men the right to be maintained by the wife after divorce” (Menski, 2003:485).

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In order to obtain maintenance, whether after divorce or within the marriage, as well as to establish many other claims related to marriage, proof of marriage is essential. Menski (2003:485–486) opines that a woman’s claim to maintenance after divorce needs to be supported by evidence of her relation to the man through whom, or from whose estate she wishes to claim. Effective ­financial protection of women and children is sought to be achieved by holding men, primarily husbands and fathers, responsible for the maintenance of female family members, both within marriage and after its termination (­Menski, 2003:485–486). 7.4 Adoption The Hindu Adoption and Maintenance Act of 1956 of India has clearly steered away from all the religious and sacramental aspects of adoption, transforming it into a secular institution for which a religious ceremony is not necessary (Diwan, 2003:217). Under Section 7, any male Hindu who is of sound mind and not a minor has the capacity to take a son or a daughter in adoption with the proviso that if he has a wife living who is capable of consenting, he cannot adopt without her permission. Unlike the classical law followed in Bangladesh, under Section 8 of the Indian Act, any sane Hindu female who is a major can adopt a son or daughter provided she is single, widowed or divorced and has not completely and finally renounced the world or ceased to be a Hindu. As regards who may be validly adopted, Section 10 of the Act states that the adoptee must be a Hindu who has not already been adopted, is unmarried and has not completed the age of 15 years. In the case of age and marital status, dispensation may be obtained if custom permits. A daughter may be legally adopted in India unlike Bangladesh. Other conditions include that in the case of a female adopting a son or of a male adopting a daughter, the adopting parent must be at least 21 years older. Orphaned, illegitimate children as well as children, boys and girls, with physical and mental disabilities may now be adopted (Kumar, 2003:103), unlike in Bangladesh. 7.5 Succession The Hindu Succession Act of 1956 codified the law of succession of Hindus in India and introduced a uniform law of succession, applicable irrespective of the School. The new law is based on the Mitakshara principle of nearness of blood, consanguinity or proximity of relationship and not on the Dayabagha principle of religious efficacy. Thus, the modern Hindu law of succession is e­ ssentially a secular law. Religious or spiritual considerations are absent (Diwan, 1993:371). The Act of 1956 gives women (i) the right to hold property as absolute owners; (ii) the status of coheirs with their brothers in the father’s property; and

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(iii) makes a daughter’s inheritance share equal to that of sons (Mukhopadhyay, 1998:98). The debate over awarding daughters and sons equal and absolute shares in inheritance was heated at every step. It was alleged that it would result in the destruction of the Hindu joint family which is patrilineal in orientation (Mukhopadhyay, 1998:98). By comparison, under the mainly uncodified Hindu law followed in Bangladesh, women, whether widow (or widows, when there are more than one) or daughter(s), continue to have limited rights of inheritance or what is referred to as ‘limited estate.’ Abolition of the limited estate of females in India is one of the most significant changes brought about by the Act of 1956. Under Section 14 of this Act, in the Indian context: (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act shall be held by her as full owner thereof and not as a limited owner. Section 14 declares the absolute ownership of a female over all types of property except those about which there is any instrument prescribing limited right. In the explanation to Section 14, the meaning of the term property is clarified. Property over which a woman now has full rights “includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.” Section 14 has been given retrospective effect and converts an existing woman’s estate into stridhan or absolute estate subject to two conditions, possession and ownership (Diwan, 1993:361). Indeed, the most important reforms which, despite initial opposition, were eventually made into law were those related to women’s property rights. Unlike in Bangladesh, a Hindu female in India inheriting property in any capacity whatsoever, has absolute rights over such property and can dispose of such property in any manner she wishes whether by sale, gift or otherwise. She therefore becomes full owner of such property and upon her death the ­property devolves on her own heirs and not on the reversioners, i.e. the heirs of the deceased person from whom she inherited the property. By virtue of the Act of 1956, the property of a Hindu male is divided equally between his sons, daughters, mother and widow. As mentioned earlier, the Act did away with the difference in the rules of succession amongst the two Schools and lays down

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four Classes of heirs for a male Hindu contained in Schedule i of the Act. All the heirs belonging to the first Class take simultaneously, i.e., all have a share in the property. Earlier (and even now in Bangladesh) heirs would take according to precedence excluding heirs who followed later. The female heirs of a male who have a place in the first Class under the Act of 1956 include: Daughter; Widow; Mother; Daughter of a predeceased son; Daughter of a pre-deceased daughter; Widow of a pre-deceased son; Daughter of a pre-deceased son of a predeceased son; Widow of a pre-deceased son of a pre-deceased son. The male heirs include: Son; Son of a pre-deceased son; Son of a predeceased daughter; Son of a pre-deceased son of a pre-deceased son. Female heirs predominate in Class i. All the heirs within Class i, if in existence at the time of the death of the propositus, inherit together. So if a male Hindu in India dies leaving behind widow, daughter, mother and son, they would all inherit together, each getting one share. Heirs of a Hindu female: The Act propounds a definite and uniform scheme of succession to the property of a female Hindu who dies intestate (Desai, 1990: 819). The Act, in Section 15, makes it therefore very clear that the property of a female Hindu dying intestate shall devolve: (a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother. 7.5.1

Position of Hindu Widows in India after the Act of 1956 and Bangladeshi Hindu Widows—Comparative Analysis A Hindu widow in India, after the enactment of the Act of 1956, now inherits her deceased husband’s property together with her son, daughter and anyone else from Class i who may be in existence. There is no widow’s estate anymore and a Hindu widow inherits absolutely, unlike a widow in Bangladesh. Under Section 10 of 1956 however, when there are more than one widow, they ­together inherit one share. Unchastity of widow is no longer a bar to her inheriting property. In Bangladesh, as mentioned earlier, by virtue of the Hindu

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Women’s Right to Property Act of 1937, a widow (or if there is more than one widow, all of them together) take the same share at the same time as one son but she or they take as limited owner. 7.5.2

Position of Indian Hindu Daughters after the Act of 1956 and Bangladeshi Hindu Daughters—Comparative Analysis In Bangladesh, unlike a widow, in the presence of a son, a Bangladeshi daughter is excluded from inheritance. In the absence of son/s, the daughter inherits but only in default of the widow or widows. The situation is different in India where, by the Act of 1956, a daughter inherits simultaneously with any heirs under Class i including the son and the widow. To reiterate, daughters and sons thus inherit equally in India, which is a major shift from the traditional law, and they get absolute rights. Moreover, all daughters, irrespective of their capacity to give birth to a son, take property and no difference is made between married and unmarried daughters, or any priority given to daughter(s) who have or may have a male issue. In Bangladesh, as mentioned earlier, the daughter’s right to inherit from her father is based on her having a son or having the capacity to give birth to one, and when she does inherit, her rights are that of a limited owner. Under the Dayabagha School in Bangladesh, the grounds under which a ­female may be excluded from inheritance include unchastity. In India h ­ owever, unchastity is no longer a ground under which a female, including a daughter, may be deprived of a share. After the adoption of a daughter was legalized by the Hindu Adoption and Maintenance Act, 1956, the adopted daughter was also included within the definition of daughter under Class i heirs. To sum up the present Hindu law of intestate inheritance in India, male and female Hindu heirs are now treated as equal without any distinction. Other notable changes, especially considering the practice in Bangladesh, is that disease, deformity or defect are no longer grounds for exclusion from inheritance (Section 28); neither is unchastity in the case of female heirs. In Bangladesh, a Hindu suffering from mental defects such as idiocy or insanity, or physical defects such as deafness or dumbness may be excluded from inheriting property she/he would have normally inherited. 8

Alienation of Property through Wills and Gifts by Hindus in Bangladesh

Unlike Muslims, who can make a bequest of or will away only a third of their property and that also not to an heir (unless the other heirs consent), any ­Hindu who is a major and of sane mind can make a will of his entire property, if he should so desire, to anyone he wishes. It naturally implies that a Hindu father

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wishing to give property to his daughter or otherwise enhance the shares of females can use the provision of will. In the case of making a will the incidental costs are high. Hindus in Bangladesh also have the right, during their lifetime, to make a gift of their entire property. By the Registration (Amendment) Act of 2012, sections were inserted into the Registration Act of 190845 pertaining to the right of a Hindu to make a gift of his property. Sub-section (aaa) was inserted within Section 17(1) of the Act of 1908 requiring the registration of declaration of gifts under the Hindu, Christian and Buddhist Personal Laws. Clause (bb) was also added to Section 78A which deals with the registration fees required for certain transfers of property. Section 78A(bb) states that the “registration fee payable for registration of a declaration of gift of any immovable property made under the Hindu, Christian and Buddhist Personal Law, if such gift is permitted by their Personal Law, shall be one hundred taka irrespective of the value of the property, provided such gift is made between spouses, parents and children, grandparents and grandchildren, full brothers, full sisters and, full brothers and full sisters.” So a Hindu can, after 2012, make a gift of his property to close relatives at a minimum fee, irrespective of the valuation of the property. In 2005, a minimum fee was fixed for Muslims making gifts of property to family members and by the amendment of 2012 the same benefit has been extended to members of other communities. 9

Hindu Law of Marriage in Pakistan—Comparative Analysis

Pakistan is divided mainly into four provinces—Balochistan, Khyber Pakhtunkhwa, Punjab and Sindh. The Hindu population of Pakistan makes up a small minority of about 1.96 million, or 1.2% of the total population. An overwhelming majority of the Hindus (96 per cent of the total Hindu population in Pakistan) live in rural areas of Sindh.46 Despite their being a small and not too significant or powerful a minority, or maybe because of this, the Hindus of Pakistan are allegedly subjected to discrimination, exploitation and abuse. Hindu women are reportedly even more vulnerable with reports of their being harassed and intimidated. It has been contended that due to the lack of mechanism to regulate their birth and marriage registration, minorities have been subjected to exploitation, neglect, and non-acceptance by hardliner groups, which has led to terrible incidents such as kidnapping, rape and forced religious conversions and marriages of 45 46

Act No. xvi of 1908. http://minorityrights.org/minorities/hindus-2/.

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women belonging to the Hindu community.47 Hindu women faced problems even in claiming the bodies of their deceased husbands. Inheritance, adoption and other marriage-related issues became complicated as there were no legal documents or marriage certificates to identify the wife or the children as legal heirs.48 Decades after independence, Pakistan began contemplating the need to codify the law relating to Hindu marriage. It was contended that: A large section of the Hindu community, particularly women, does (sic) not have basic documentation to prove their marital status or identity. They are also deprived of legal rights such as inheritance, remarriage, separation, adoption of children and annulment of marriage.49 Despite the purported intention to codify the Pakistani Hindu law of marriage, the process was circuitous and lengthy. Surprisingly the reason for the delay was not widespread or successful opposition50 by orthodox Hindu groups such as the case of Bangladesh, but to a large extent, fears of opposition from conservative Muslims, especially influential clerics, in Punjab and Sindh provinces.51 The latter State is also said to have the highest rate of forced conversions of Hindu women to Islam. Analysts say the root cause of such conversions is the absence of legal cover, which is then exploited by conservative vested interests.52 The Province of Sindh in 2016 finally enacted the Sindh Hindus Marriage Act which is limited in its application to the Sindh Province only. In 2017 a more encompassing Act—the Hindu Marriage Act of 2017 was passed which applies to the Hindus of Balochistan, Khyber Pakhtunkhwa and Punjab. At present therefore, it may not be incorrect to assume that all Hindus of

47

https://hinduexistence.org/2015/07/17/to-cease-the-minority-rights-pakistan-is-notpassing-hindu-marriage-bill/; see also http://minorityrights.org/minorities/hindus-2/. 48 https://hinduexistence.org/2015/07/17/to-cease-the-minority-rights-pakistan-is-notpassing-hindu-marriage-bill/. 49 Statement of Objects and Reasons to the Hindu Marriage Bill of 2014. 50 Hindu groups have also demanded that clauses allowing for divorce not be included in any law related to Hindus, since they iterate that there is no concept of divorce in their religion. See https://tribune.com.pk/story/272193/divorce-remains-sticking-point-in-hindu -marriage-act/. 51 https://hinduexistence.org/2015/07/17/to-cease-the-minority-rights-pakistan-is-not -passing-hindu-marriage-bill/. 52 Ibid.

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­ akistan, irrespective of their province of origin, are subject to codified laws P related to marriage. 9.1 Conditions, Ceremonies and Registration of Hindu Marriages As discussed earlier, in India the Hindu Marriage Act of 1955 lays down the conditions required for a valid Hindu marriage (see 7.1.). Such conditions include monogamy, capacity to give valid consent including mental and physical capacity, not being within the prohibited degrees or Sapinda relationship as well as the requirement of being above the minimum ages of 18 and 21 respectively for the bride and the groom. The Act validates inter-caste marriages. The Hindu Marriage Act of 2017 of Pakistan (hereinafter referred to in places as the Act of 2017) imposes similar but not exactly the same conditions. Section 4 states that a marriage may be solemnized if the following conditions are fulfilled: (a) at the time of the marriage, the parties are of sound mind and capable of giving a valid consent; (b) both the parties are not below the age of eighteen years; (c) the parties to the marriage are not within the degrees of prohibited relationship; (d) neither party has a spouse living at the time of marriage. Provided that condition in clause (d) shall not apply where a living female spouse cannot conceive a child and medically declared to be so. The above proviso thus allows polygamy for a Hindu male when his wife is barren or unable to conceive. This exception is absent in the Indian law of 1955 as well as in the Sindh Hindus Marriage Act of 2016. Bangladesh however continues to allow unlimited polygamy for Hindu males. The Sindh Marriage Act of 2016 also requires that at least two witnesses be present at the time of the solemnization and registration of marriage.53 Pakistan has also done away with the requirement of intra-caste marriage. As regards registration of marriages, Bangladeshi law provides for the ­optional registration of Hindu marriages, India allows different States to determine its laws on registration and Pakistan requires mandatory marriage registration of all Hindu marriages.

53

Section 4(f) of the Sindh Hindus Marriage Act of 2016.

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In Pakistan, a marriage may be solemnized in accordance with the customary rites and ceremonies of either party to the marriage.54 The same applies to India except that the Act of 1955 makes a special mention of the Saptapadi ceremony. If this is one of the rites and ceremonies of a marriage, then the marriage become complete and binding only when the seventh step is taken. It is pertinent to mention that in India different States have included tailored amendments to their laws regarding Hindu marriage. In Bangladesh as has been discussed earlier, the necessity of certain essential ceremonies being performed have been covertly overtaken by no mention of any particular ceremony being required for registration of a marriage under the Hindu Marriage Registration Act of 2012. Judicial Separation, Nullity of Marriage and ‘Termination of Marriages’ Under Bangladeshi Hindu law, marriage is still an indissoluble union and divorce continues to be unrecognized. India in 1955 introduced the concepts of judicial separation, nullity of marriage and divorce. Mutual divorce is also recognized by the law of 1955 (see 7.2). In Pakistan, the Sindh law of Hindu marriage “belies its title; it is not about marriage, it is merely about the registration of marriage.”55 It deals with the conditions, ceremonies and registration of Hindu marriages but is silent on the issue of divorce and so forth. The Hindu Marriage Act of 2017 is an expansive law and does deal with the issue of dissolution of marriage etc. As mentioned earlier, this law applies to Balochistan, Khyber Pakhtunkhwa, and Punjab but leaves Sindh out of its ambit. According to one author it is “truly absurd that the law applies to all of Pakistan except Sindh, where a whopping 96% of Pakistan’s roughly five million Hindu citizens actually reside!”56 Under Section 10 of the Act of 2017, a marriage may be declared void if the parties to the marriage are within the degrees of prohibited relationship or either has a spouse living at the time of marriage. In the case of India, existence of an earlier spouse, parties being within the prohibited or Sapinda relationship are grounds for nullity of marriage under Section 11 of the Hindu Marriage Act of 1955. In Pakistan a marriage may now be declared voidable due to lack of consummation owing to the impotence of the respondent; if either party is 9.2

54

Section 5 of the Hindu Marriage Act of 2017 and Section 5 of the Sindh Hindus Marriage Act of 2016. 55 https://scroll.in/article/819841/two-laws-govern-hindu-marriages-in-pakistan-but-neither-addresses-divorce-adequately. 56 Ibid.

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below the age of 18; if consent of the petitioner has been taken by force, coercion or fraud and if the respondent was at the time of marriage pregnant by some other person (Section 11 of the Act of 2017). Similar grounds are available in India under Section 12 of the Act of 1955. In the case of dissolution of marriage, the Pakistani Act of 2017 shies away from using the term “divorce.” The term “divorce” is both a legal and social construct; the law instead prefers the (strictly legal) term “decree of termination of marriage,” which is reflective of the involved parties’ disdain for the very concept of divorce.57 Nevertheless, unlike in Bangladesh the Pakistani Hindu law now recognizes the capacity to end the marital relationship. However, in Sindh which is home to the largest population of Pakistani Hindus, marriage continues to remain indissoluble and they are deprived of the benefits of the reforms made by the Act of 2017. Sindhi Hindu women can only take advantage of the Hindu Married Women’s Right to Separate Residence and Maintenance Act of 1946. Under Section 12 of the Act of 2017, either party to a marriage may petition the Court for the marriage to ‘be terminated by decree of termination of marriage’ on the grounds of cruelty, desertion, conversion to another religion, unsoundness of mind or mental disorder, virulent and incurable form of leprosy, entering into any religious order by renouncing the world and non-resumption of cohabitation for more than one year after a decree of judicial separation or restitution of conjugal rights. Further grounds are allowed to the wife—if the husband has an existing wife, if he fails to maintain her for a period of two years or he is imprisoned for a period of two years or more. She can also exercise her right to the Option of Puberty if she was married before the age of eighteen and repudiated the marriage before that age. Under the Act there is also provision for termination of a Hindu marriage by mutual consent under Section 15. In India under the Act of 1955, the grounds for divorce include adultery, ­cruelty, conversion, desertion, unsoundness of mind or mental ­disorder, ­venereal disease, incurable diseases such as leprosy, renouncement of the world and so forth. Both the Acts clarify what “mental disorder” and “psychopathic d­ isorder” means (Section 12 of the Hindu Marriage Act of 2017 and Section 13 of the Hindu Marriage Act, 1955). Pakistan also adds hiv aids as one of the grounds for which termination of marriage can be sought (Section 12(1)(a)(vi)). 57 Ibid.

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Hindu Law in Bangladesh: Possibilites for Reform

The need for introducing reforms in the Hindu law of Bangladesh, whether extensive or limited is undeniable. The question is the way to go about introducing such reforms that will be acceptable to the Hindu community. There are several methods which can be adopted but the most feasible need to be targeted. The various possibilities are discussed below. 10.1 Uniform Family Law As mentioned earlier in the study, although uniform laws exist in most matters, in the case of personal and family matters each religious community by and large continues to follow its own laws. In Bangladesh some laws pertaining to personal matters are uniform, for example, the Guardianship and Wards Act, 1890, Child Marriage Restraint Act, 2017, the Dowry Prohibition Act, 2018, the Family Court Ordinance, 1985—but most are not. This state of affairs is replicated in all three countries of the Subcontinent. For several decades, many women’s rights groups in Bangladesh have persistently demanded the enactment of a uniform family code or law which would apply to all, irrespective of religious affiliation, with the purpose of reforming existing family laws and removing discriminatory provisions related to women. Different organizations such as Ain O Shalish Kendra and Mahila Parishad (bmp) have drafted Uniform Family Codes (ufc) or Uniform Family Laws (ufl) (bmp, 2006). In a personal interview, Ayesha Khanam,58 President of the bmp, described how they came about working on a uniform family code. When addressing women’s rights, the issue of family law reform became inevitable. Since without equality it is impossible to promote women’s rights, the bmp mulled over a uniform family law: We consulted regional and international instruments as well as relying on our personal experiences with women. bmp has been promoting the idea of a uniform family code for several decades now and the effect of our endeavours have been positive. Progress has been made, for example now by law, unlike earlier, Bangladeshi women married to foreigners can transmit their Bangladeshi citizenship to their children; again for the identification of a child the name of the mother must also be mentioned along with the father’s. 58

President, Bangladesh Mahila Parishad (bmp).

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As regards changes in Hindu personal laws, Ayesha Khanam noted that there were pro-change and anti-change groups within the Hindu community itself and the latter’s hesitation was due in part to the lack of security felt by the minority communities. She advised caution and suggested that in order to change Hindu law one should proceed strategically. The ufl deals with, amongst others, the following issues: • Obligatory marriage registration; • Monogamy; • Essential requirement of consent of both parties to a marriage; • Minimum age requirement for marriage; • Dissolution of marriage available for both parties on usual and new grounds; • Compulsory registration of divorce; • Maintenance: providing for compulsory maintenance for divorced women for life or until their remarriage. Imposing the duty upon the wife to maintain her husband when the husband is incapable of earning a living due to illness, etc.; • Adoption: allowing all communities to formally adopt children of both sexes and extending the jurisdiction of the Family Court to address questions related to adoption; • Succession: providing for the equal rights of males and females to inheritance, recognizing the Doctrine of Representation and giving jurisdiction to the Family Courts. Although the demand for the adoption of a uniform family code has in no way disappeared, even its most enthusiastic supporters have to a certain extent been faced with the realization that by and large such radical changes are not feasible at the present time for social, cultural and political reasons. The reality is that a vast number of people from all religious communities are not favourably disposed to such laws given their strong commitments to their respective religions.59 Given the patriarchal and paternalistic context of Bangladeshi society and the strong belief in personal laws being the epitome of religious identity, the attempt to enact a uniform law appears to be too risky for any political Government to attempt at present, especially with the resurgence of religious fundamentalism. Even in India, where the Constitution specifically provides for the enactment of a uniform code, personal laws still continue to govern family matters. Article 44 of the Constitution of India provides that: “The State shall endeavour 59

See report of the Bangladesh Law Commission on Uniform Family Law at http://www .lawcommissionbangladesh.org/reports/69.pdf.

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to secure for the citizens a uniform civil code throughout the territory of India.” This essentially means that even though there is a constitutional mandate to introduce a civil uniform family law irrespective of religion, it has so far proved impossible. Thus, with the rise of Hindu nationalistic politics and despite constitutional directive, the idea of a uniform civil code has collapsed in political rhetoric and as a consequence, the uniform civil code has become a suspect idea. The debate on this issue has more or less died as a scholarly concern and feminists have quietly withdrawn from arguing for a uniform civil code as a means of gender-justice laws (Parashar and Dhanda, 2008:xi). In the Indian case of Pannalal Bansilal Patil vs. State of Andhra Pradesh60 it was held that: Uniform law for all persons may be desirable. But its enactment in one go may be counter-productive to the unity of the nation. However, the proponents of a uniform family law have not given up, but ­merely postponed their battle. For example, Verghese (2003) opines in favour of a uniform code and states that it has been wrongly posited as an assault on religion and religious identities. What it essentially aims at is secular reform of property relations in respect of which all religious traditions have grossly discriminated against women. A uniform civil code is, therefore, foremost a matter of gender justice. But male chauvinism and greed have joined with religious conservatism to forge an unholy alliance to perpetuate a major source of gender discrimination, thereby impeding the modernisation of social relations and national integration (Verghese, 2003). According to him, the need for the enactment of a uniform family code is also necessary given the globalization, diversification and multiculturalism which have become the norm in all societies. Verghese notes that “with growing education, migration and economic and social mobility, unknown and earlier socially prohibited relationships (for example, inter-caste, interregional, inter-community marriages and divorce and the acquisition and disposal of self-acquired property by women) are becoming increasingly common.” (Verghese, 2003) The field work for the present research also shows clearly that within the Hindu community in Bangladesh the ground level reality is that marriages are breaking down, mandatory registration is becoming more and more necessary and inter-caste marriages are no longer considered an abomination. Thus, A liberal, forward-looking uniform civil code may be expected to win many adherents, especially from those with cross-cultural backgrounds. This could in time induce custodians of faith to look inwards and seek to 60

air (1996) (sc) 1023.

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codify and reform age-old personal laws in conformity with current modernising and integrative tendencies or risk losing their flock. (Verghese, 2003) There are two options regarding the enforcement of a uniform family code, either an optional code or a law which mandatorily replaces all personal family laws. There are proponents both for and against either of the above. Some seek a middle ground and support the enactment and enforcement of a uniform family code, but only as an option available for those who want to abide by it. Verghese (2003) holds that uniform civil code and personal laws do not represent an either/or choice and that one does not mandate the obliteration of the other, it only makes available an option. On the other hand, according to Parashar (1992:261), at face value it is “eminently desirable that the State provides a law that incorporates sex-equality but if any individual does not want to give up their religious personal laws they can continue to be governed by religious personal law.” However making such a law optional may not have the desired effect since most South Asian women have little or no voice and decisions affecting their rights and lives are taken by men, whether fathers, husbands or sons, who are considered to be the decision-makers. If the Code is made “optional, then it is almost certain that the majority of women will not be able to take advantage of the enhanced legal rights which it provides” (Parashar, 1992:261). A case in point is the law related to optional marriage registration in Bangladesh, i.e., the Hindu Marriage Registration Act of 2012. Field work clearly shows that the purpose of the Act to protect women is negated by the fact of its being optional; the exercise of the option dependant on the will and whim of the husband and his family. Irrespective of the debates regarding the most suitable type of uniform family law, it has generally been agreed that until the time is right for its adoption, there should be attempts made to reform the laws of the different communities. Holding out in the hopes of uniform laws and not making any changes at all would be like throwing the baby away with the bath water. The general agreement is that redress and reform is immediately necessary. The Special Marriage Act, 1872 (Applicable in Bangladesh) and the Special Marriage Act of 195461 (Applicable in India) In 1872, the Special Marriage Act was enacted to facilitate the marriage of persons marrying outside of their respective religions or in the case of Hindus, outside of one’s caste. It continues to apply to Bangladesh and Pakistan but 10.2

61

Act No. 43 of 1954.

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India in 1954 enacted a fresh and more liberal law related to the issue. The Act of 1872, which continues to be the law in Bangladesh and Pakistan, applies to marriages between persons neither of whom professes the Hindu, Sikh, Christian, Parsi, Buddhist, Jain or Muslim religion, or between persons each of whom professes any of the following religions namely Hindu, Buddhist, Sikh or Jain. The Act of 1872 allows mixed marriages or inter-religious marriage. When a Muslim, of either gender, wishes to marry a person of another religion under this Act, he or she [as well as the person (s)he wishes to marry] must declare that they do not profess any religion (Huda, 2003:15). Two persons, unless they are both members of the Hindu or associated religions, who wish to marry under this Act, are forced to renounce their religion (Pearl and Menski, 1998:15). If they do not give such declaration their marriage will be void (18 dlr 509). India in 1954, as part of its attempts at modernization, enacted a new Special Marriage Act, which extended the scope of who could marry under the Act. It did away with the requirement, under the Act of 1872, of persons belonging to certain religions having to declare non-adherence to any religion. The Special Marriage Act of 1954 is a secular law of marriage and divorce applicable to those parties to a marriage who voluntarily chose to be governed by it. Any two Indians, irrespective of what religion they profess can voluntarily choose to be governed by the provisions of this act (Mahmood, 1978:28–29). An existing marriage solemnized under any of the prevailing personal laws can be turned into a secular marriage by registering under the Act. A couple married under the Special Marriage Act of 1954, or whose marriage is registered under the provisions of the said Act, will be governed in the matters relating to intestate and testamentary succession by the Indian Succession Act of 1925 (Mahmood, 1972:178–179). The Act was passed with ease in 1954 and with comparatively little controversy (Menski, 2003:216). The Act of 1954 is a self-contained law which in itself provides provisions for the registration of marriages, the restitution of conjugal rights, judicial separation, nullity of marriage, divorce and maintenance—all of which are gender friendly. It also deals with the issues of legitimacy and custody of children. Most importantly, succession to the property of any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the Indian Succession Act of 1925. Under the Indian Succession Act, sons and daughters get equal shares. The main objective behind enacting the new Special Marriage Act in India was to provide a special form of marriage available for the people of India (and all Indian nationals in foreign countries), irrespective of the religion or faith followed by either party to the marriage. The parties may observe any ceremonies for the solemnization of their marriage, but certain formalities are

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­ rescribed before the marriage officer can register the marriage. The necesp sary requirements for a legal marriage under the Special Marriage Act of 1954 include: • Monogamy—It makes the offence of bigamy punishable under Section 44; • Both parties must be capable of giving a valid consent to the marriage; • Neither party must suffer from any mental disorder of such a kind or to such an extent as to be unfit for marriages and the procreation of children nor be subject to recurrent attacks of epilepsy or insanity; • The Act lays down minimum ages of marriages at twenty-one for the groom and eighteen years for the bride; • The parties must not be within the degrees of prohibited relationship; unless allowed by custom. As mentioned earlier, all marriages, even those after the fact, may be registered under the Act so that the couple may opt to be governed by the secular regime provided under the Act rather than religious laws. This provides a viable option for parties to be governed by uniform and equal laws regarding succession and other matters. In the case of Bangladesh, enactment of a new law relating to Special Marriage or modification of the law of 1872 may be more easily achievable rather than either a uniform family law or major reforms to personal laws considered contrary to religious precepts. A new Special Marriage Act for Bangladesh, consistent with the specific context of the country, may be a less tenacious way out of the whole debate about reforms in personal laws. It can also take into account the preferences of the parties to a marriage, rather than imposing either a mandatory uniform, non-religious law or by forcing people to abide by antiquated ­religious norms against their wishes. It may also be a way to avoid the contentious debate about whether the State has the moral authority to meddle in religious matters. Providing an option to parties may by far be the best and most comprehensive solution to problems of discrimination. This law will not only potentially obviate the problems related to polygamy and succession for both Muslims and Hindus but also, in the case of Hindus, introduce the process of divorce. 10.3 Reforming Personal Laws Reforming particular aspects of the Hindu personal laws to make them less discriminatory and more in consonance with the principles of human rights and justice will go a long way towards addressing some of the more crucial problems faced by women and others of the Hindu community in Bangladesh.

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It is pertinent to point out that reforms are necessary not only for women but for Hindu men as well. Lack of mandatory marriage registration, inability to dissolve the marital tie and the lack of inheritance rights of daughters also affect men, as was made evident from the field work. Many forward-looking Hindu men support the reform of Hindu laws. Although uniform family laws, according to many, can ensure equality and justice, the time may not be right and the solution may lie in keeping within the framework of Hindu laws and making the necessary reforms. An endeavour to widely reform the laws of a minority population is problematic to say the least, as evidenced clearly by the Indian situation. Although statutory enactments have redressed many of the problems contained in Hindu law in India, the Indian Muslim law continues to be backward. Unlike Bangladesh, where the Muslim Family Laws Ordinance of 1961 introduced reforms, there have been no changes made to the applicable Muslim law in India. Indian Muslim men still continue to have greater rights regarding dissolution of marriage (although in the latter part of 2017 the Indian Supreme Court declared the practice of triple irrevocable ­talaq as unconstitutional), an intervening marriage is necessary before a couple can remarry and a husband can commit polygamy without any sort of intervention. Again, the Muslim law in Bangladesh gives grandchildren of predeceased parents the right to inherit from their grandparents whereas in India they are excluded. A substantial portion of the Indian Muslim community has, by and large, been vehemently opposed to any interference with their personal laws as demonstrated by the Shah Bano fiasco. On the other hand, the reforms made to the law of the majority, i.e. Hindu law, in India are much wider in scope than the changes made by the mflo 1961 to the Muslim law in Bangladesh. It is also true that any attempt to introduce bold changes to the law of the Muslim majority in Bangladesh is fraught with acute problems. These issues must be kept in mind when advising reforms to the Hindu law in Bangladesh since they are concerns which are in the minds of the community. 11

Initiatives for Reform of Hindu Law in Bangladesh

Several organizations and bodies have expressed their concern regarding the discriminatory provisions of the Hindu laws of Bangladesh and their impact on women. As part of their commitment to fight for reforms, several have proposed draft legislation based on their research and understanding of the situation.

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Bangladesh Law Commission The Hindu Marriage, Adoption, Maintenance and Succession Related Codified Act, 200662 (PROPOSED) The Bangladesh Law Commission (blc) is a statutory body established by the Law Commission Act of 1996.63 The Commission drafted a comprehensive Hindu law Bill addressing the most pertinent issues requiring reforms in 2006. Although basically similar to the enactments made in India, there are certain differences and additions. The Bill deals with the following: Marriage Section 5 of the Hindu Bill of the blc lays down certain conditions which must be fulfilled before a valid marriage can take place, for example, monogamy, consenting mind, absence of disease, lack of existence of prohibited degrees or sapinda relationship between the parties and so forth. Additionally, the proposed Bangladeshi law clarifies in Section 5(g) that: “A marriage can take place between a male of any caste and a female of any caste. This means that there is no bar to inter-caste marriage.” Another difference, in comparison to the Act of 1955, is that unlike the Indian Act, the Sections related to guardianship in marriage which have been deleted in India are included, giving the mother preferential rights after the father unlike the presently applicable law of Hindu guardianship in Bangladesh. Section 7 of the two laws are exactly the same, stating that the ceremony of any party may be observed to validate the marriage and where saptapadi is a rite, the marriage becomes valid upon the taking of the seventh step. Section 8 of the Bill proposed provisions for the optional registration of Hindu Marriages which in the meantime has been achieved by the Hindu Marriage Registration Act of 2012. Judicial Separation Section 10 of the Bangladesh Law Commission Bill deals with judicial separation of the spouses. Proposed grounds allowing parties to petition for separation are similar to those mentioned in the Indian Act of 1955 such as adultery and cruelty but give a list of additional and more detailed grounds. Either party can claim separation on the grounds that the other party: • Often beats up the petitioner [10(c)];

62 63

Translated from Bangla to English by the author. Act No. xix of 1996.

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• Under the influence of alcohol enters the home and beats the petitioner mercilessly [10(d)]; • Without any justifiable cause, often curses the petitioner, is cruel and tortures her/him mentally [10(e)]; • For petty reasons gets into arguments with the petitioner so that she/he ­expresses that she/he is in fear for her/his life [10(f)]; • Misbehaves with the petitioner in front of their children in such a manner which causes acute mental distress [10(g)]; • If the husband keeps another wife or concubine at the place of residence of the wife or habitually lives with another wife or concubine at another place [10(h)]; and • Any other justifiable cause [10(i)]. Void and Voidable Marriage A marriage is declared by the Law Commission Bill to be void on the grounds of bigamy and the parties being within the prohibited degrees or sapindas to each other (Section 11). Under Section 12, a marriage is to be voidable on the grounds of non-consummation of marriage due to the inability of the defendant, lack of consent, coercion or the wife having become pregnant by someone else. Divorce By Section 13, the Bangladesh Law Commission proposed inclusion of the right to dissolution of marriage on the grounds of conversion, incurable mental disorder, asceticism, disappearance and husband’s polygamy. Like Section 13B of the Indian Act, Section 15 also introduces ‘divorce by mutual consent.’ The draft Hindu Law Bill also deals with the issues of remarriage after divorce, legitimacy of children born of void and voidable marriages and other issues. Although, addressing many issues in a gender neutral manner, the proposed law appears to revert to inherent patriarchal ideals in certain cases. For example although Section 18(1) prescribes punishment under the Penal Code for bigamy, the proposed law grants the Hindu husband the right to marry again if the wife is unable to give birth within 10 years of the marriage. The latter does not take into account that adoption is valid, or the fact that the husband may be responsible for the couple’s inability to have children. It also does not, like the Hindu Marriage Act, 2017 of Pakistan require medical declaration of the wife’s inability to bear children. Adoption (Sections 24 to 35) In Bangladesh, as discussed above in some detail, the adoption system is exceptionally patriarchal and discriminatory. Hindu males possess the primary and superior prior right to give and take in adoption. Only sons can be adopted whilst orphans can be adopted only if permitted by custom. The Hindu Law

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Bill of 2006, drafted by the Bangladesh Law Commission, gives both males and females the right to adopt. Both must be sane, above the age of 40 and neither must have already adopted. A married man cannot adopt without the consent of his wife or wives (Section 26). A woman can adopt if she is single, divorced or a widow or if her husband has permanently retreated from all worldly affairs. Both female and male children below the age of 15 and unmarried can be adopted unless custom provides otherwise. Under Section 28, the primary right to give in adoption is the father’s, but he has to take the mother’s permission. In the absence of the father, either in reality or legally, the mother, and in her absence, the guardian can give in adoption. An orphan, a deserted or abandoned child or one whose parents are unknown can, with the permission of the Court, be adopted by someone suitable, including the guardian herself or himself (Section 28(4)). Maintenance The proposed Bangladeshi law seeks to give the wife the right to lifelong maintenance from the husband (Section 36). A wife is entitled to separate residence and maintenance on certain grounds specified in Section 36(2), which are more or less the same as those contained at present under the Act of 1946 relating to such matters. Section 37 imposes the duty upon the wife to maintain the husband if due to any accident or illness the husband is physically or mentally disabled and has lost his capacity to earn while the wife is capable. If a widowed daughter-in-law has no other means of maintaining herself, Section 38 makes her father-in-law responsible for her maintenance. This right ceases upon her remarriage. The Bill gives details as to who has the right to maintenance and who has the duty to maintain. It also imposes a duty upon both females and males to maintain aged or ill parents, children, whether legitimate or not, unmarried daughters, grandchildren and so forth, when they are unable to maintain themselves (Sections 36 to 45). Succession under Hindu Law (Sections 46 to 55) Under Section 46 of the draft Bill, the property of a male Hindu will devolve firstly on his heirs contained in the First Schedule of the Act. Such heirs will all inherit simultaneously and will exclude the heirs contained in the second class and so on. Property will be divided amongst the heirs of the first class in the prescribed manner. These heirs include: 1. Son; 2. Predeceased son’s son; 3. Son of predeceased son of a predeceased son;

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4. Widow; 5. Widow of predeceased son; 6. Widow of predeceased son of predeceased son. All of the above are to take the property together, after providing for the maintenance of unmarried daughters. The proposed law puts daughters within the second group of heirs, so that they inherit only in the absence of any of the abovementioned persons, which is clearly different from the rights of the Hindu daughter in India who inherits together with a son and equally. Section 46(3) of the Bill states that: (a) Each son will get one share. (b) A widow or if there are more than one widow all of them together will get an absolute share, equal to that of one son. (c) The heirs of the father’s predeceased son will together get one share. (d) The property will be divided amongst the children of the predeceased son in such a manner that each son gets one share and his widow or widows get one share. The Bill details the heirs and the manner in which other heirs in the absence of heirs of the first class are to inherit. Under Section 49, a major reform is suggested to the Hindu law of succession in Bangladesh. The section deals with absolute property of females and states: Whether before or after this law becomes effective, any property, whether movable or immovable (including agricultural property), obtained or earned by a woman, before or after marriage, by way of inheritance, will, gift, sale or from any other source or acquired from any person or earned, will be her absolute property and there will be no bar on her disposing of such property by way of sale, gift, mortgage or will. The heirs of a Hindu female are to be the following: (a) Firstly, the sons and daughters (including children of predeceased sons or daughters) and husband; (b) Secondly, husband’s heirs; (c) Thirdly, mother and father; (d) Fourthly, father’s heirs; and lastly (e) Mother’s heirs.

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Apart from the Law Commission, several other organizations have drafted ­Hindu Law bills addressing the main concerns. Human Rights Congress of Bangladesh Minorities (hrcbm) The Hindu Personal and Family Laws Ordinance, 2008 (PROPOSED) hrcbm is an international campaigning movement dedicated to protecting the human rights of people in Bangladesh, in particular the religious minorities. It is a non-profit Organization and holds a consultative status with the United Nations. The organization drafted the above relating to Hindu personal law since it was considered “expedient to frame the Hindu Laws to give equal rights to women in respect of property, marriage and adoption” and because of what is contained in article 28(c) of the Constitution of the Peoples’ Republic of Bangladesh. The proposed law in the form of Ordinances64 is divided into three parts dealing with several issues separately. Succession The Hindu Succession Ordinance, 2008, as it is termed, deals with the question of succession. The major points contained in this proposed law are briefly discussed below. Under Section 8, priority is given to those heirs of a Hindu male who are mentioned in the Schedule of the Act as being Class i heirs. These heirs exclude heirs belonging to succeeding classes. The Ordinance includes the daughter as heir of the first Class and gives widow/s, sons, daughters and mother of the intestate one share each and states that “(t)he heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.” Section 13, like the proposed Bill by the blc, also gives Hindu women absolute rights over all types of property. The heirs of a Hindu female dying intestate are specified in Section 14. The proposed law in Section 16 also deals with “(s)pecial provisions respecting persons governed by Adibashi and tribe Customs.” Marriage The second part of the Ordinance, the Hindu Marriage Ordinance, 2008, deals with the issue of marriage and is similar to the Indian Act of 1955 and the proposed Law Commission Bill of 2006. The same conditions apply for a valid marriage (Section 5) and ceremonies of marriage (Section 6). The 64

In 2008, a Caretaker Government was in charge and the Parliament stood dissolved and therefore the proposed law was in the form of Ordinances.

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projected Ordinance also deals in the same manner with judicial separation, void and voidable marriages and divorce (including divorce by mutual consent under Section 12B). Additionally, in Section 18, it specifies that the District Court will have jurisdiction to deal with matters under the Ordinance. With the establishment of family courts in Bangladesh to make the disposal of family matters easier, it is confusing as to why this should be so. It should also be pointed out that the Bill of 2006 by the Law Commission does not clarify which Court will have jurisdiction over matters mentioned therein. Adoption and Maintenance The Hindu Adoption and Maintenance Ordinance, 2008 (proposed) mirrors the provisions contained in the Bill of the Law Commission except in a few cases. It does not specify an age as regards who can take in adoption but does state in Section 11 (iii & iv) that in the case of a male adopting a female, or vice versa, there must be at least 21 years difference between the adoptee and the adopting parent, while the age difference is specified as 25 years in the 2006 Bill. In the case of maintenance, the hrcbm document, the blc Bill and the Indian Act of 1956 contain the same provisions. Coalition for the Preparation of a Draft Hindu Marriage Law Hindu Marriage Act, 201065 (PROPOSED) Under the initiative of the Manusher Jonno Foundation (mjf) and Bachte Shekha, a coalition of 17 ngos was formed to propose reforms to the law relating to Hindu marriages in Bangladesh. The coalition arranged a series of meetings to discuss the issue and formulate a draft law. The majority of the individuals connected with this coalition are Hindu women. In July of 2005, Bachte Shekha and mjf arranged several activities at Narail which included roundtable meetings, processions and rallies. At the Consultation on Hindu law reforms arranged by sails, Rina Roy of Manusher Jonno Foundation and a member of Naripokkho for over two decades spoke about how she and others were active in the demand for a uniform family code. However, for practical reasons, it was decided that it was now more appropriate to opt for separate reforms within personal laws applicable to each religion. A working group committee named “Hindu Bibaho Ain Pronoyone Naree Jot” (Women’s coalition for the preparation of a Hindu marriage law) was formed. The coalition considered the introduction of provisions for Hindu marriage registration to facilitate proof of marriage as well as provisions for divorce. Said Roy, “after having 65

Translated from Bangla to English by the author.

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listened to the complaints of Hindu women separately, then from men and finally from the Purohits, i.e. the Hindu priests, we drafted a proposal for reforms.” She opines that “any reform of Hindu law should be Hindu ­community oriented; the demand should come from the community as citizens of the country.” The Coalition collected 3,000 case studies on the sufferings of Hindu women and it became clear that there was no point in sticking to demands for marriage registration only and that the issue of dissolution of marriage should also be covered. This proposed law deals with the issue of Hindu marriages. It defines the terms Joggo and saptapadi, the former being the recitation of Vedic verses according to the Shastra before the holy nuptial fire and the latter the taking of seven steps by the couple together around the sacred fire. The draft law also defines sapinda and prohibited degrees of relationship. The ceremonies considered necessary for the validity of a marriage include Joggo (or invocation) and saptapadi; there must be full consent of the parties; the bride and groom must be at least 18 and 21 respectively and they must not be within the sapinda or prohibited degrees of relationship. According to Rina Roy, a member of the Coalition, there are many religious and social formalities for a Hindu marriage, such as the exchange of garlands. It was discussed that by giving a precise definition of the marriage ceremony, the validity of many practices would be affected. Therefore, the draft was altered to cover any ceremony, including other social and religious rites. The draft thus states that “customary rites and social festivals may be performed.” Later on, the Committee decided to incorporate sanity as one of the conditions of a valid Hindu marriage. The draft law, unlike the Indian law, does not make monogamy one of the conditions of marriage in Section 5. However, it makes bigamy a punishable offence under Section 13. The husband has a limited right to take another wife in certain cases such as her incurable physical or mental illness or barrenness. In such cases, the husband may marry again subject to the consent of the wife and with the permission of the court given after it is satisfied from medical and other evidence that such second marriage is justifiable. Under Section 9 provision is made for divorce, available to both parties on the grounds of cruelty—whether physical, mental, economic or sexual; conversion to another religion, incurable mental illness; communicable disease which is incurable or almost so; and for the wife, if the husband does not give maintenance for two continuous years. The law formulated by the Committee for reform includes several other issues, all related to marriage and dissolution of marriage under Hindu law.

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12 Conclusion The personal laws of the Hindus of Bangladesh need immediate reforms. That much is evident from the above. How to proceed is however another ­matter and whether one should be satisfied with only small changes or hold out b­ efore the entire gamut of Hindu family laws are addressed in their totality is debatable. As it so happened, the Legislature confined itself to relatively innocuous reforms such as the introduction of optional registration of marriages. The Government is justifiably hesitant to interfere excessively with the religious laws of the minority, just as the British had been. One of the justifications put forward against reform is that they would be in contradiction to the Shastra based law and therefore against the Hindu religion itself. Professor Shah Alam (2004:18) however finds ample evidence within the Hindu religion and philosophy itself that supports reforms. He (2004:31) criticises the British colonial powers for not being more enthusiastic in incorporating changes to Hindu law. According to him, dynamics of change in Hindu law as it had developed during the period of commentaries give ample reason to believe that had such development continued it would have achieved a higher level of reforms by the time the British quit India. He opines: Some of the existing provisions of Hindu marriage, more specifically legal status of a married woman, differential treatment of man and woman in respect of inheritance, guardianship, adoption and the restrictions imposed by the caste system are not in tune with the broader outlook of Hindu philosophy which is one of the richest spiritual and cultural heritages of mankind. Hindu philosophy presupposes fullest growth of human person for the fullest bloom of divine qualities latent in her/him, irrespective of sex, caste, creed, colour, time and place. This is not possible without according equal rights and opportunities to all. (Alam, 2004:18) According to Jhabvala (1981:2), Hindu law “was not static or staid, but empiric and progressive.” Jhabvala cites other authors according to whom the laws contained in the texts only reflected the ideal picture of that “which, in the opinion of the Brahmins, ought to be the law” (1981:2). The realization that reforms are absolutely essential is not impulsive neither unexpected. The demand initially came from the Hindu community itself 25 years ago. Rana Dasgupta (2002) recalled the first initiatives taken in 1986, after the partition of 1947, by the Bangladesh Puja Ujjabon Parishad. On the 31st of January of that year, a discussion meeting was held at the Dhaka

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Dhakeshwari Mandir. Many participated and the discussion was spearheaded by Justice Debesh Chandra Bhattacharya. Many aspects of the personal laws of Hindus were discussed and such discussion included (a) polygamy; (b)  ­inter-caste ­marriage; (c) right to separate residence and dissolution of ­marriage; (d)  ­maintenance and guardianship; (e) prohibited relationship in marriage; (f)  marriage registration; (g) maintenance of dependants; (h) daughter’s ­inheritance; (i) transforming limited rights to property into absolute rights; (j) equal rights of sons and daughters; (k) adoption and (l) Dharma, temple and Debutter, property (Dasgupta, 2002:139–140). Shubroto Chowdhury, Advocate, Supreme Court Bar Association, reiterated the communities, support for reforms and stated at the sails Consultation that: The canvas for reform is very wide and the obstacles are also clear. We, the members of the Mahanagar Puja Committee with the active participation of Justice Debesh Bhattacharya and many others representing the wider Hindu community, began our quest for reforms in the 1980’s. Even though we were all very active, our initiatives for reform were met with severe protest. The problems and challenges in incorporating reforms are also quite obvious from the research. One of the other major objections or concerns raised was related to the laws on vested properties. The majority of Hindus of Bangladesh regard such laws as a major violation of their rights as citizens of the country. The issue of vested property came up time and again and it is clearly regarded as a cause of insecurity for the Hindu population. Many questioned the justification of even talking about reforms to family laws with such an issue remaining unsettled. Widespread scepticism exists as to whether the recent changes brought about by the Government will benefit the community and therefore the demand was that changes should be well thought out and not hurried. Although the fears regarding the vested property laws may be true, individual sufferers of unjust family laws cannot afford to wait until such time as the matter is settled and the fight for reforms should not be kept pending. There are strong claims that the Hindu population of Bangladesh is dwindling day by day and migration of Hindus from Bangladesh to India is increasing. Official statistics provide ample evidence about the gradual decline in the size of the Hindu population in Bangladesh. Since 1961, the relative share of the Hindu population has declined from 18.4 percent of the total population in 1961 to 12.1 percent in 1981, to 10.5 percent in 1991, and further down to 9.2 in 2001 (Barkat and Khan, 2008:165). At the sails Consultation, Rana Das Gupta said that the Hindu population of Bangladesh is declining, whereas the ­Muslim population in India is increasing and the reason for this is the ­widespread sense of insecurity felt by

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Bangladeshi Hindus. According to him, “Hindus have been made to feel disempowered due to changes in the Constitution and the process of Islamization.” J.L. Bhomick on the other hand was not so sure that the Hindu population has decreased. He impressed upon the fact that organizations that are involved and direct the policy making of the minority communities have to be actively proreform. According to him, the Sanatan religion has no last word and the Hindu dharma believes in quality and not quantity (sails Consultation Meeting). Although communal violence and other types of oppression are very often related to property rather than any systematic State-sponsored ethnic cleansing, there have been allegations of political repression on minority populations. Hindus have also been targeted by extremist Islamic groups. Whatever may be the cause, it is evident that portions of the minority community, mostly those who are economically and politically disempowered, suffer from feelings of insecurity. The general lack of women’s rights under the Bangladeshi Hindu law also contribute to the feeling of vulnerability of the female Hindu population. In many cases, even where they are legally entitled to rights under Hindu law, the patriarchal Hindu society deprives them of enjoying such rights. At the Maulvibazar fgd, an elderly Hindu widow described how her husband’s brothers had deprived her of the share to her husband’s portion of undivided property after his death. Deprivation of helpless widows by brothers-in-law and other members of the husband’s family is a common occurrence in Bangladesh. Ahmed and Mohsin opines that there is a gendered element in the organization of the minority community and Bengali Hindu women suffer a double-edged layered domination which is from both the points of religion and gender (Ahmed and Mohsin, 2005:57). There are two broad levels at which religion intersects with society and consequently impinges on the rights of women (Silva, 2004:177). First it plays a definitive role at the level of culture. At this level, religion informs societal notions of sexuality, marriage and family. Second, at the level of national polity, religion can also inform policy formation, dissemination and implementation (Silva, 2004:177). One aspect regarding reforms was made abundantly clear during the research and that is that any demand for changes or reforms must necessarily and primarily come from the Hindu community itself. Thus, rather than the State imposing changes, changes must be based on the needs of the Hindu community. Otherwise, they will have little effect in practice. In India, despite the manifold changes made to the Hindu system of law in an attempt to achieve some sort of secularism, in practice the modern Indian Hindu family law within the judicial system incorporates the principles and spirit of traditional Hindu law (Menski, 2003:265). It mirrors “the continuing concern for the

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relativities of justice” which “are not controllable by state law” (Menski, 2003:265). The purpose was not: “to reinstate Hindu traditions, but to serve an alternative sophisticated modernist agenda, focused on developing culturespecific form of family law that suits today’s common Hindus and their circumstances of life, rather than to strive towards a system of modern legal rules that resemble the laws of England, or modern ‘filmstar law’” (Menski, 2003:265). Most importantly, in the context of a background where the Hindus do not constitute the majority of the population, reforms must not be, nor seem to be, just paying lip-service to issues of non-discrimination and gender equality with the purpose of only appeasing certain pro-change groups. Changes must be based on demands of the community. Justice Gobinda Chandra Thakur, in a personal interview, also stressed this and said that reforms have to be based on what the Hindu community considers necessary and should not be ngo driven: Before any changes are introduced, the community has to be made aware of the consequences—more importantly, there needs to be wide opinion polling. For example, if divorce is to be introduced, it is necessary to establish by empirical evidence the problems faced by lack of divorce rights. Rana Dasgupta poses the question as to who will take the initiative for the reform of Hindu law—will it be the ngos, the Government or the conscious portions of the Hindu society, he asks (Dasgupta, 2002:139). He believes that it is the last, i.e. that Hindu society which must take the primary responsibility: ‘ngos can assist and the State can be in charge of overall supervision.’ Rana Dasgupta at the Consultation meeting was of the opinion, echoed by most others, that only those reforms which are acceptable to the community should be made. For example, there should be no disagreement as to the need for compulsory registration of marriage and to the adoption of a daughter. The problems regarding dowry oppression should be considered and the concepts of dowry and stridhan also need to be clarified. Aroma Dutta, Executive Director of the prip Trust and former Member of the Bangladesh National Human Rights Commission, in a personal interview said that the way to go forward is to ask for everything. There will be ­problems regarding the introduction of absolute inheritance rights of females as well as divorce rights. In case of the former, i.e. absolute right of inheritance, fears were expressed several times that if a Hindu woman possesses property, unscrupulous men of other religions (mainly from the Muslim majority community)

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will seduce them into getting married and converting. As can be seen from the above research, this fear has been expressed over and over again by respondents. Any attempt at law reform must endeavour to address the issues that concern the community with a view to finding the best solution possible in order to ensure implementation of a law. The reforms introduced in India have been discussed in some detail above. However, it must be remembered that the contexts of the two countries are not the same. As Dasgupta says: Although it is necessary to keep in mind the changes/reforms made in India, they cannot be completely followed or copied. The realities of the country specific social problems and how much the existing laws are ­capable of solving such problems must be considered first, then the gaps must be identified and the necessary changes and reforms r­ ecommended. (2002:139) In the case of recent reforms to the Pakistani Hindu Law, demands came from mainly liberal non-Hindus. Additionally given their precarious existence in Pakistan, unlike Bangladeshi Hindus who are much more vociferous in their opposition to changes in their religious laws, the Hindu community in Pakistan may have less voice. This may be the reason that changes or reforms have been less problematic. As discussed in some detail above, many organizations as well as the Government has been seriously contemplating Hindu law reform, as a consequence of which the Hindu Marriage Registration Act of 2012 was enacted. However, there are many more issues that need to be brought within the agenda of reform. Many of the more crucial issues such as divorce rights have not been addressed. It is now upon the Government and the Hindu community to agree to further acceptable changes. It is not a question as to whether further reforms are necessary but when they are to be made and how wide the scope is going to be. The apex Court of Bangladesh, the Appellate Division of the Supreme Court, in the 2014 case of Ramesh Chandra Adhikari vs. Bulbuli,66 reiterated the need to introduce reforms in the Hindu Law of Bangladesh. The Court held: Time has come for the legislature to think about this burning issue to find out correct solution to the problem by proper enactment or codification of Hindu law of marriage and succession. If the codification of the Hindu 66

Ramesh Chandra Adhikari vs. Bulbuli, 66 dlr (2014) (ad) 104.

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Law is made, most of the matrimonial problems now being faced by both parties can be resolved or minimized with least trouble. The Court went on to add: An (sic) uniform and comprehensive system governing all Hindus containing a series of coherent provisions carefully considered after having gone through by eminent pundits and researchers and law commission a codification of Hindu Law of marriage and succession should be enacted. Time has come for the legislators to think about the codification of the Hindu law of Marriage and Succession in Bangladesh. References Agarwala, R.K. Hindu Law (Allahabad: Central Law Agency 2005). Agnes, Flavia. Law And Gender Inequality—The Politics of Women’s Rights in India (New Delhi: Oxford University Press 2004). Alam, Dr. M. Shah. “Review of Hindu Personal Law on Bangladesh: Search for Reforms,” Bangladesh Journal of Law 2004 (1&2) June and December, 15–52. Barkat, Abul. “Solution is possible: Why, Where, How” in Abul Barkat, Shafique uz Zaman, Md. Shahnewaz Khan, Avijit Poddar, Saiful Hoque and M. Taher Uddin, Deprivation of Hindu Minority in Bangladesh—Living with Vested Property (Dhaka: Pathak Samabesh 2008a), 163–182. Barkat, Abul and Shahnewaz Khan. “State of Deprivation: Official record Based Analysis” in Abul Barkat, Shafique uz Zaman, Md. Shahnewaz Khan, Avijit Poddar, Saiful Hoque and M. Taher Uddin, Deprivation of Hindu Minority in Bangladesh—Living with Vested Property (Dhaka: Pathak Samabesh 2008b), 77–109. care. The Cultural Context of Child Marriage in Nepal and Bangladesh: Findings from CARE’s Tipping Point Project Community Participatory Analysis (Dhaka: care 2016). Dasgupta, Rana. Inequality—In Behaviour, in Rights (Oshamya—Achoroney Odhikarey) (Chittagong: Rita Dasgupta 2002). Desai, Sunderlal T. Mulla Principles of Hindu Law (Bombay: N.M. Tripathi Private Ltd. 1990). Diwan, Paras. Modern Hindu Law (Allahabad: Allahabad Law Agency 1993). Huda, Shahnaz. A Child Of One’s Own—Study on Withdrawal of Reservation to Article 21 of the Child Right’s Convention and Reviewing the Issues of Adopton/Fosterage/­Kafalah in the Context of Bangladesh (Dhaka: Bangladesh Shishu Adhikar Forum 2008). Huda, Shahnaz. “Dowry in Bangladesh: Compromising Women’s Rights,” South Asian Research 2006 (26) (3), 249–268.

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Huda, Shahnaz. “Personal Laws in Bangladesh: the need for substantive Reforms,” The Dhaka University Studies Part-F; Journal of the Faculty of Law 2004 (15) (1) June, 103–126. Huda, Shahnaz. “Anglo-Mohammedan and Anglo-Hindu Law—Revisiting Colonial Codification,” The Bangladesh Journal of Law 2003 (7) (1&2) June and December, 1–22. Huda, Shahnaz. “Double Trouble: Hindu Women in Bangladesh.—A Comparative Study,” The Dhaka University Studies Part-F; Journal of the Faculty of Law 1996 (7) (1) June, 49–66. Islam, Towhidul. Lectures on Land Law (Dhaka: Northern University 2013). Jhabvala, Noshirvan H. Principles of Hindu Law (Bombay: C. Jamnadas & Co. 1981). Kumar, Vijendra. “Emerging Trends in Sonship and Adoption under Hindu Law,” nalsar Law Review 2003 (1) (1) October, 96–111. Mahmood, Tahir. Family Law in the Muslim World (New Delhi: N.M. Tripathi Pvt. Ltd. 1972). Mahmood, Tahir. “Indian Legislation on Muslim Marriage and Divorce” in K.D. Gangrade (ed.), Social Legislation in India Vol. ii (New Delhi: Concept Publishing Co. 1978), 16–27. Mayne, John D. Mayne’s Hindu Law (New Delhi: Bharat Law House 1995). Menski, Werner F. “Marriage: inability to handle tradition, or skill in abusing it?” in Werner F. Menski (ed.), Modern Family Law (Surrey: Curzon 2001a), 9–46. Menski, Werner F. “No Continuing favours for men? The post-modern reconstruction of Indian laws on Polygamy” in Werner F. Menski (ed.), Modern Indian Family Law (Surrey: Curzon 2001b), 189–223. Menski, Werner F. “Hindu Law—Beyond Tradition and Modernity (Oxford: Oxford University Press 2003). Mukhopadhyay, Maitrayee. Legally disposed—Gender, Identity and the Process of Law (Calcutta: Stree 1998). Nussbaum, Martha C. “Religion, Culture and Sex Equality” in Indira Jaising (ed.), Men’s Laws Women’s Lives—a constitutional perspective on religion, common law and culture in South Asia (New Delhi: Women Unlimited 2005), 109–137. Parashar, Archana. Women and Family Law Reform in India—uniform civil code and gender equality (New Delhi: Sage Publications 1992). Parashar, Archana and Amita Dhanda. “Introduction” in A. Parashar and A. Dhanda (eds.), Redefining Family Law in India (London: Routledge 2008), ix–xxix. Sharma, Shanchita. “Hindu Women in Bangladesh Suffering for Absence of Marriage Registration,” http://www.thedailystar.net/law/2004/06/04/index.htm. Subramanian, Narendra. “Making Family and Nation: Hindu M ­ arriage Law in Early Postcolonial India,” Journal Of Asian ­Studies 2008, http://nsubramanian.files .wordpress.com/2010/04/making-family-and-nation-hindu-marriage-law-in-early -postcolonial-india1.

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Verghese, B.G. “Who’s afraid of a uniform civil code?,” The Hindu, 13 August 2003. Yasmin, Taslima. “The enemy property laws in Bangladesh: grabbing lands under the guise of legislation,” Oxford University Commonwealth Law Journal 2015, doi: 10.1080/14729342.2015.1101226.

Chapter 3

Muslim Women’s Rights under Bangladesh Law

Provisions, Practices and Policies Related to Custody and Guardianship Nowrin Tamanna, Muhammad Amirul Haq and Sara Hossain

FIGURE 3.1 A mother and daughter celebrating Bengali New Year, Dhaka. Photo by Md Main Uddin/DRIK



List of Legislation

The Children Act, 2013 The Code of Civil Procedure, 1908 The Code of Criminal Procedure, 1898 The Constitution of the People’s Republic of the Bangladesh, 1972 The Court of Wards Act, 1879 The Domestic Violence (Prevention and Protection) Act, 2010 The Evidence Act, 1872 The Family Courts Ordinance, 1985 The Guardians and Wards Act, 1890 The Majority Act, 1875 The Muslim Personal Law (Shariat) Application Act, 1937 The Penal Code, 1860 © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357273_005

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List of Cases

Abdul Jalil and Others v. Sharon Laily Begum Jalil [1998] 50 dlr (ad) 55 Abdul Quddus v. Syed Moniul Ahsan Sajjan [2011] 16 mlr (hcd) 3 Abdul Salam v. Mst. Razia Begum [1969] 21 dlr 237 Abu Bakar Siddique v. S.M.A. Bakar [1986] 38 dlr (ad) 106 Ahmed Nawaz v. State [1968] 20 dlr (wp) 45 Aktar Masood v. Bilkis Jahan Ferdous [1998] 50 dlr (ad) 145 Ali Akbar v. Mst. Kaniz Mariam [1956] 8 dlr (wp) 43 Amirul Bor Choudhury v. Nargis Sultana [1993] 19 bld (hcd) 213 Anika Ali v. Rezwanul Ahsan [2012] 32 bld (ad) 107 Anika Ali v. Rezwanul Ahsan [2013] 2 lnj (ad) 25, see also 21 blT (ad) 85 Archana Prasad v. Miss Chilia Randolph [1980] 32 dlr (hcd) 118 Atia Waris v. Sultan Ahmad [1959] pld (Lahore) 205 Ayesha Khanam and Others v. Major Sabbir Ahmed and Others [1993] 13 bld (hcd) 186 Bhakti Bhusan Shaha v. Moulana Ruhul Amin [1986] 38 dlr (hcd) 396 Dr. Rashiduddin Ahmed v. Dr. Quamarunnahar Ahmed [1978] 30 dlr (hcd) 208 Eugenia Archetti Abdullah v. State of Kerala [2004] (3) klt 1025 Fahitmuddin Khokhar v. Mst. Zaibunnessa [1968] 20 dlr (wp) 297 Farhana Azad v. Samudra Ejazul Haque and Others [2008] 60 dlr (hcd) 12 Hossain Muhammad Ershad v. State [2001] 21 bld (ad) 69 Imambandi v. Mutsaddi [1919] l.r. 45 i.a. 73 Johara Begum v. Maimuna Khatun [1964] 16 dlr (hcd) 695 Khandaker Abdul Halim and Others v. State and Others [2016] 21 blc 768 Krishna Pada Dutta v. Secretary Ministry of Home Affairs [1990] 42 dlr (hcd) 297 Manju Tiwari v. Rajendra Tiwari [1990] air (sc) 1156 Md. Kamruzzaman @ Ratan (Minor) v. Md. Dulal Mia (Civil) [2017] 69 dlr 503 Md. Khorshed Alam v. M.A. Ali Haider [1981] 33 dlr (hcd) 245 Md. Nurul Islam v. Nur Ayesha Begum [2011] 16 blc (hcd) 10 Md. Rahamatullah v. Mst. Sabana Islam [2003] 8 MLR (hcd) 242 Md. Rashidul Islam v. Morsheda Parveen [2014] 4 alr (ad) 179 Md. Riazul Islam alias Raju v. Jannat Ara alias Rimmi Civil Revision No. 4349 of 2010 Meherun Hossain v. Nuzul Islam [1994] 46 dlr (hcd) 1994 86 Ms. Louise Anne Khan v. Sajjad Ahmed Rana [2007] pld (Lahore) 293 Mst. Hurabai v. Usman [1964] 16 dlr (wp) 237 Mst. Rubia Ayaz Khan v. State and Another [2001] pld (Karachi) 197 Mst. Siddiqunnisa Bibi v. Nizamuddin Khan and Others [1932] air (All.) 215 Mst. Sultana Begum v. Muhammad Shafi [1965] 17 dlr (wp) 119 Mst. Tahera Begum v. Saleem Ahmed Siddiqui [1970] pld (Karachi) 619 Muhaiminul Hasan Khan v. Md. Nurul Islam Khan [2002] 54 dlr (hcd) 156 Muhammad Bashir v. Ghulam Fatima [1953] pld (Lahore) 73

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Munawar Jan v. Mohd. Afsar Khan [1962] pld (Lahore) 142 Mvi. Rehanuddin v. Azizun Nahar [1981] 33 dlr 139 Nargis Sultana v. Aminul Bor Chowdhury [1998] 50 dlr (hcd) 532 Nazeer Begum v. Shab Din [1963] pld (Karachi) 465 Niaz Bi v. Fazal Ilahi [1953] pld (Lahore) 442 Rahela Khatun v. Ramela Khatun and Another [1970] 22 dlr (hcd) 608 Rahimunnessa v. Ashraf Mia [1973] 25 dlr (hcd) 167 Rahimullah Chowdhury v. Mrs. Sayeda Helali Begum [1968] 20 dlr (sc) 1 Rahmatullah (Md) and Others v. Sabana Islam and Others [2002] 54 dlr (hcd) 519 Rayana Rahman v. Bangladesh [2011] 63 dlr (ad) 305 Renu Begum v. Khandaker Enamul Mawla [2011] 63 dlr (ad) 791 Rumana Afrin v. Fakir Ashrafuddin Ahmed and Others [1996] 1 blc (hcd) 517 Saleha Begum v. Dilruba Begum [2001] 53 dlr (hcd) 346 SAMM Mahbubuddin v. Laila Fatema [2017] 61 XIV ADC (AD) 147 Sefina Ferdousi Shimla v. Jaohar Kabir [2009] 61 dlr (hcd) 86 Shah Mohd. Quasem Rizvi v. Johar Kabir [1970] 61 dlr (hcd) 86 Shamsun Naher v. Dilip Kumar Roy [2010] 15 blc (hcd) 48 Sheikh Ibrahim v. Nazma Begum [1992] 44 dlr (ad) 276 Shukhendra Chandra Das v. the Secretary, Ministry of Home Affairs [1990] 42 dlr (hcd) 79 State v. Metropolitan Police Commissioner [2008] 60 dlr (hcd) 660 Sumati Begum v. Rafiqueullah [1992] 44 dlr (hcd) 500 Suruzzaman v. Farida Yasmin [2013] 10 adc 346 Syeda Shamsunnahar v. Morshed Anwar Khan [2005] 10 mlr (hcd) 148 Veena Kapoor v. Varinder Kumar Kapoor [1982] air (sc) 792 Zahida Ahmed (Liza) v. Syed Noor Uddin Ahmed and Another [2009] 14 mlr (hcd) 465 Zahirul Hasan v. State of Uttar Pradesh [1988] Cr. L.J. 230



Introduction

In Bangladesh, disputes arising in the personal sphere, for both Muslim men and women, are governed by Muslim Family Law which is largely reflective of Shariʿa1 principles as propounded by its four major sources. Applicable ­personal laws in Bangladesh have gone through a series of procedural and, to a degree, gender-equality enhancing reforms over the past fifty plus years. These reforms, both in the pre- and post-independence eras, have benefited w ­ omen in a ­number of areas such as divorce, marriage, and inheritance. Unfortunately, the area of custody, and guardianship of children under personal laws has ­remained 1 The terms Shariʿa and Islamic Law have been used in this paper interchangeably.

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mostly untouched by amending legislation, although there have been, on occasions, a number of progressive trend-setting judgments from the Apex Courts, which may serve as guidelines while adjudicating disputes in the area. Orthodox interpretations of Muslim law maintain a distinction between custody and guardianship of the minor. These interpretations hold that a ­Muslim mother, despite being acknowledged as the primary care giver of her children, is not entitled to the legal guardianship of her children. With regard to custody, she does have a prima facie claim of custody, although it is of limited nature, that is, in the case of her male child, until the age of seven years, and in the case of her female child, till the attainment of puberty. But even during this period, the mother cannot be the child’s legal guardian or maintainer. The issue of legal guardianship of the child continues to remain a sensitive one, exacerbated by the property rights and control issues often seen as a part of legal guardianship. This involves gaining authority to dispose of minor’s ­property. The Guardians and Wards Act, 1890 (gwa), which is applicable to all citizens of the country, provides some relief to the mother as it provides that it is the Court’s duty to consider the welfare of the children over the rights of the parents. This in a way brings some level of balance in the gender-centred entitlements which otherwise lean favourably towards the father, and concomitantly disfavour the mother, as a result of patriarchy that is deeply embedded in society. In addition, there has been a discernible change in recent judicial trends in the higher Courts in matters related to custody, indicating a gradual but not consistent replacement of previous orthodox and narrow positions to one which is more in favor of the rights of mothers, by way of upholding the “best interests” of the children. Broadly there are two approaches to the issue of custody and guardianship. In one, a gender equality-based approach, women’s equality to men, both in formal and substantive terms, is recognised. In the other, a c­ hildren-centric approach may be taken, where regardless of the positions t­ aken with resort to narrow interpretations of the personal law, Courts take on the role of protecting the welfare and well-being of the children. This study finds, even when the Courts are increasingly favouring mothers’ custody rights, they do so by deploying an approach which foregrounds children’s rights, or sees mother’s rights as synonymous with the latter, particularly in the case of very young children,2 but not necessarily in acknowledgement of women’s equal legal status under personal laws. 2 For example, in a recent judgment the High Court Division declared that the mother be treated as the best custodian and gave her custody of her minor daughter despite the fact that she had married a ‘stranger.’ See: Civil Revision No. 4349 of 2010 between Md. Riazul Islam alias Raju v. Jannat Ara alias Rimmi. Judgment was passed by Mr. Justice Mamnoon

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The aim of the study titled ‘Combating Gender Injustice’ was to engage in a dialogue with stakeholders to formulate recommendations for law, policy and procedural reforms in order to further women’s right to equality within the family, as mandated by national and international legal and human rights instruments. Objectives of the Study This chapter aims first, to examine whether the best practices laid down by the higher Courts are followed by the lower Courts; second, to examine whether the principle of best interest of the child is being implemented by the Courts and how children’s representation in the decision making process is facilitated and finally to explore the available procedures within the existing legal regime that may enable greater representation of the child’s interest. Methodology The researchers consulted both primary and secondary sources, reviewing substantive and procedural laws applicable to custody and guardianship3 and academic commentaries as well as reported and unreported judgments of higher Courts as well as of lower Courts. The socio-legal approach that guided this enquiry acknowledges the salience of the following: the construction of legal rules, policies, and judicial decisions matter; institutions and their interventions matter; backgrounds, attitudes, prejudices and perceptions of elite actors matter; capabilities, motivations and willingness of both networked actors (such as women’s groups and community actors) and redress seekers ­matter. Attention was given during empirical data collection to both top-down4 and bottom-up5 perspectives of the actors and stakeholders to reach and, in some instances, confirm the findings.

Rahman on 16.5.2011. In the case of Farhana Azad v. Samudra Ejazul Haque and Others, [2008] 60 DLR (HCD) 12, the High Court praised the role of mother despite her being a working­ woman. In the case of Amirul Bor Choudhury v. Nargis Sultana, [1993] 19 bld (hcd) 213, although the Court considered the father’s remarriage a disqualification, the mother’s legal right was not acknowledged. 3 The Guardians and Wards Act, 1890, the Family Courts Ordinance, 1985, the Majority Act, 1875, the Constitution of the Peoples’ Republic of the Bangladesh, 1972, the Code of Criminal Procedure, 1898, the Code of Civil Procedure, 1908 and the Penal Code, 1860. 4 Views of actors who are involved in implementation of existing laws and policies, such as judges. 5 Views of stakeholders who are users of remedies laid down by existing laws and policies (e.g. litigants, case workers, etc.) including activists and campaigners belonging to various women’s and human rights groups.

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To examine the laws and procedures in action, the research focused on a number of forums. Although the Family Courts established in 1985, have exclusive jurisdiction on guardianship and custody related matters, a number of others forums are also used by litigants to seek remedies. These include the High Court Division (hcd) which may consider such issues in petitions seeking orders in the nature of habeas corpus, the Courts of Executive Magistrates and the Courts of Judicial Magistrates.6 The Guardians and Wards Act, 1890 (gwa) includes the hcd in its definition of the term “District Court” with regard to entertaining guardianship applications, thus conferring it with original jurisdiction in such matters. Considering this diversity of forums, the research extended beyond the most significant reported judgments and all reported judgments of last 10 years in law reports published in Bangladesh, examined five unreported judgments of the High Court Division, and forty judgments including court orders delivered by the Family Courts and by Executive and Metropolitan Magistrates’ Courts from four7 Districts (Chittagong, Dhaka, Khulna and Manikganj). The team also interviewed six lawyers practicing in the Family Courts, six Family Court Judges, six litigants, two children and one psychotherapist,8 all voluntarily sampled9 due to problems associated with access negotiation. The interviews were semi-structured in nature facilitated by questionnaires customised according to the respondents’ respective roles, associations and engagements to the process. Interviews were transcribed, and in most cases audio-recorded, negotiated by express guarantees of confidentiality where the respondents preferred so. Findings of the interviews, at a secondary stage, were followed by a focus group discussion (fgd) with the litigants and case workers being presented with the initial findings for feedback and comments. In addition to considering the applicable laws and procedures relating to custody and guardianship in the forums mentioned, certain issues insufficiently addressed by statutes (such as the right to access, consideration of the wishes of and agreements between parents, representation of children and mobility of parents and minors), were also explored in interviews and focus group discussions. 6 Under Section 100 of the Code of Criminal Procedure (CrPC). 7 Keeping in mind the necessity of geographical sampling, efforts were made to even out the coverage by examining Court practices in both city/capital areas and in the peripheral districts. 8 The interviewees were drawn from Dhaka, Manikganj, Gazipur, Chittagong, Noakhali, R ­ ajbari and Faridpur. 9 For reasons mentioned, interviewees were not selected randomly.

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The Legal Regime

The Laws Related to Custody and Guardianship The Guardians and Wards Act, 1890 (gwa) is the core law which addresses guardianship and custody disputes in Bangladesh. The Family Court Ordinance, 1985 (fco), almost a century later, made a few changes, insignificant in respect of substantive legal provisions. However, these changes established a new forum, the Family Court, with exclusive jurisdiction over almost all family matters, including guardianship and custody disputes.10 Although the fco is a procedural law, it did not provide any different/separate procedure regarding suits relating to guardianship and custody under the GWA except conferring Family Courts with the status of District Courts while entertaining such matters.11 The gwa is not a self-contained law; it provides that the Court’s power to appoint guardians must be exercised in accordance with the personal law applicable to the minor.12 Section 17 of the gwa further strengthens this ­requirement by stipulating that Courts be guided by considerations of the minor’s­welfare as consistent with the personal law to which s/he is subject.13 The factors for consideration include the age, sex and religion of the minor and 10

11

12

13

According to Section 5 of the fco, a Family Court shall have “exclusive jurisdiction” to entertain, try and dispose of any suit relating to, or arising out of, all or any of the following matters, namely: (a) dissolution of marriage; (b) restitution of conjugal rights; (c) dower; (d) maintenance; (e) guardianship and custody of children. Section 24 of the fco states: “(1) A Family Court shall be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890 (viii of 1890), and notwithstanding anything contained in this Ordinance, shall, in dealing with matters specified in that Act, follow the procedure specified in that Act. (2) Notwithstanding anything contained in the Guardians and Wards Act, 1890 (viii of 1890), an appeal from an order made by a Family Court as District Court under that Act shall lie to the Court of District Judge, and the provisions of Section 17 shall apply to such appeal.” Section 6 of the gwa provides: “Nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of person or property, or both, which is valid by the law to which the minor is subject.” Section 17 reads: “(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent,

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her/his capacity to form intelligent preferences and the character and capacity of the guardian, among others. Unlike Muslim personal law, the gwa does not differentiate between custody and guardianship and it charges the guardian with custody of the minor. In practice, the father being the guardian of the child under Muslim personal law is entitled to his/her custody, and the mother has little scope to apply for custody of the minor under the gwa. However, the definition of ‘guardian’ in the gwa, if read independently, includes any person having the care of the person or property of a minor. It has been decided in a significant number of cases14 in Courts across South Asia (at least in India and Pakistan, as well as in Bangladesh) that a mother may file a petition for return of her minor child to her custody when the child is removed from her custody. Forums Dealing with Custody and Guardianship (1) Civil Remedies Pursuant to the gwa, District Courts have jurisdiction to decide guardianship cases. For this purpose a “District Court” is defined in the gwa to include the High Court Division. Subsequently, through the fco, the Family Courts were afforded the status of District Courts and also given exclusive jurisdiction to decide guardianship and custody cases. In practice, as demonstrated by a review of the daily cause lists of the High Court Division in 2010, guardianship cases are solely decided by Family Courts.15 Our research suggests that family suits relating to guardianship are usually filed after death of the father of the minor. Although it is common in these applications to seek both guardianship of person and property of minor, most guardianship cases are followed by separate ‘permission suits’ in the form of petitions for permission to sell the property of the minor. Interestingly, a significant number of guardianship cases are filed in the Family Courts, especially in Dhaka, for guardianship of children abandoned by their biological parents. Couples who wish to adopt often file this type of case,

14 15

and any existing or previous relations of the proposed guardian with the minor or his property. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference. … (5) The Court shall not appoint or declare any person to be a guardian against his will.” Such as Mst. Siddiqunnisa Bibi vs. Nizamuddin Khan and Others, [1932] air (All.) 215. It needs to be noted, Section 7 of the gwa gives the District Court power to make orders as to guardianship. Persons who are entitled to apply for such an order may apply to the Court having jurisdiction (under Section 9) following the form of application set out in Section 10 of the gwa.

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as an alternative to adoption. The scope for such applications has opened up due to the manner in which Section 7 of the gwa is being construed. Liberal interpretation and application of this provision has allowed individuals within a broad category to file such guardianship applications.16 Such practices can be seen as an example of creative application and extension of existing legal provisions to cover real needs, in the absence of express provisions to deal with such matters. However, it needs to be mentioned that these processes do not amount to adoption per se, because they do not provide the child with the same legal security or rights. Muslim personal law as applied in Bangladesh does not yet permit adoption. We consider that a lasting solution to this issue would be to enact a separate secular law on adoption similar to the law adopted in the immediate post-war period17 to fill up the gap that currently exists in this area. (2) Criminal Remedies There are two sets of remedies for obtaining custody of a minor under the Code of Criminal Procedure (CrPC). The first are orders under Section 100 of the CrPC by judicial, metropolitan and executive magistrates, and the other are orders made under Section 491 of the same Code by the High Court Division. When there is any reason to believe that any person is unlawfully confined under circumstances that amount to a criminal offence, the Court may issue a search warrant addressed to both the person allegedly confined and the alleged captor. Although opinions are often divided as to whether or not removal of the custody of a minor from one parent’s custody by another amounts to unlawful confinement, the magistrates’ Courts frequently issue search warrants in such cases under Section 100 of the CrPC facilitating speedy recovery of minors. The High Court Division under Section 491 of the CrPC also has the power to issue directions similar to habeas corpus to achieve the same results. Our findings indicate that there has been a noticeable increase in the number of custody disputes being entertained by the writ Courts in the form of habeas corpus under Article 102 of the Constitution instead of under Section 491 of the CrPC.

16

17

By an amendment brought in the gwa in 1982 it has been provided that no person other than a citizen of Bangladesh shall be appointed or declared to be a guardian of a minor who is a citizen of Bangladesh (Section 7). The Bangladesh Abandoned Children (Special Provisions) Order, 1972 (p.o. No. 124 of 1972) repealed on 7 June, 1982 by promulgation of the Bangladesh Abandoned Children (Special Provisions) (Repeal) Ordinance, 1982 (Ordinance No. v of 1982).

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Additionally, the Domestic Violence (Prevention and Protection) Act, 2010 (“DV Act”) also provides certain remedies. As per Section 17 of the Act, the Court may: “at any stage of hearing of the application for a protection order or for any other relief under this Act grant order for temporary custody of any child or children of the victim to the victim or to any applicant in favour of the victim and if necessary, the arrangements for any visit to such child or children by the respondent.” Although this remedy carries overriding effect over “any other law for the time being in force,” it is applicable only to domestic violence cases, and is rarely invoked by the legal practitioners as found in course of the study. (3) Constitutional Remedies The High Court benches which have constitutional (writ) jurisdiction may decide matters regarding custody and access or unlawful detention of a minor for an interim period. Though the maintainability of writs regarding custody disputes between private parties is well established, by decisions of the Apex Court, this remedy is still unknown to many litigants. Upon an application by any person under Article 102(2)(b)(i) of the Constitution, usually referred to as a habeas corpus writ petition, the High Court can issue an order against a respondent directing him/her to produce before the Court any other person in his/her custody so that the Court may satisfy itself whether or not such a person is held in custody “without lawful authority” or “in an unlawful manner.” While disposing of such applications, the High Court often inquires whether suits have been filed in the Family Court or not. In cases where they have not, it often directs the petitioner to file a suit in the Family Court as well, since custody and guardianship disputes are ultimately to be decided by the latter on consideration of evidence. In habeas corpus applications, it is common for the High Court to issue interim custody or access orders18 in favour of the petitioner involving the minor. Our study found mixed opinions among practitioners regarding such use of habeas corpus. While some felt that this type of writ should be maintainable only when the minor (i.e., the detenu) is removed from one parent by force or through illegal means, others felt that the remedy should not be applied to custody related matters in the manner being sought by some litigants. They felt that custody cases involve disputed questions of facts and therefore should not be decided under the writ jurisdiction of the High Court Division, but only on evidence by a trial Court. 18

A petition for custody at times results in granting the petitioner only access to the minor. A bench, however, denied access to the petitioner when he prayed for access only holding that this writ petition is not maintainable in Kazi Fariduzzaman v. Farzana Hossain alias Mipu (Writ Petition No. 8667 of 2009, Date of judgement: 09.8.2010).

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Some legal practitioners also expressed access to justice concerns regarding the scope for seeking justice from such a high judicial forum for ordinary litigants of limited means. ‘Best Practices’ Laid Down by the Higher Courts The Supreme Court has delivered a number of judgments in the area of custody and guardianship applying the ‘welfare of child’ doctrine in a range of ­situations. Many view these judgments as ‘best practices.’ These cases, through applying the current statutory provisions, have contributed progressively ­towards clarifying the law. In this study, the term ‘best practices’ refers to these cases as a body of positive decisions from the superior Courts. The key contribution of these cases to the jurisprudence is perhaps their negotiation of the tension between secular general law and the religious personal laws applicable in the area. As highlighted in the previous section, Courts are required to apply the welfare doctrine in custody and guardianship cases, keeping the m ­ inor’s best interest in mind. But such a determination is linked to other considerations as well, such as the age, sex and importantly the religion of the minor. Among these factors, the consideration of minor’s religion, that is, the personal law applicable to her/him, plays a central role in the matter. The religion factor is of central importance as it influences the other two factors as well, namely, the ‘age and sex rule’—as in the case of a child who is Muslim. The following discussion highlights these ‘best practice’ cases on custody and guardianship. The key feature of these cases, as we see it, lies in their critical engagement with earlier more orthodox interpretations of the personal law and their departure, in certain cases, from such positions in order to prioritise children’s welfare. 1.

Where the Personal Law and the Welfare Doctrine Are in Conflict, the Welfare Doctrine Is to Have Precedence It is clear from earlier discussions that welfare issues are determined according to the personal law applicable to the minor. What would happen if upholding the orthodox position under personal law were to conflict with the minor’s welfare? The Court’s interpretation of the applicable law in Ayesha Khanam v. Major Sabbir Ahmed19 made an important contribution in clarifying policy priorities. The case involved a petition under Art. 102(2)(b)(i) of the Constitution. The child had been living with his mother since birth at the maternal grandfather’s home. The parties were divorced in 1992 after the petitioner 19

[1993] 13 bld (hcd) 186 per Justices Anwarul Haque Chowdhury and K.M. Hasan at paras. 9 and 15.

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no. 2 sent a notice of divorce. In December 1992 when the mother went to collect her son from school she discovered that her child was taken away by her former husband (the respondent no. 1). The petitioner attempted to reach an amicable solution by contacting the respondent’s family members but failed. The High Court directed the son to be handed over to the mother and allowed the father visitation rights only. The Court, in its judgment, made a very important observation: The personal law and the welfare doctrine is not in conflict here as to custody and even if they were, the welfare doctrine would have precedence. (Para. 15) 2.

Question Regarding hizanat of a Minor Daughter or Son Is not Solely Dependent on His or Her Age. The Determining Factor Will Be the Welfare of the Minor Irrespective of the Opinions of Muslim Jurists The age and sex of the minor, commonly depicted as the ‘age and sex rule,’ plays a determining role while applying the traditional rules of hizanat under personal law. The Apex Court, in Abu Bakar Siddique v. S.M.A. Bakar,20 observed that the question of hizanat (also pronounced as hidanat) of minors is not solely dependent on their age or sex but on considerations of their welfare as the determining factor. In this case, the father (appellant) filed an application under Section 25 of the gwa in the Court of the District Judge for custody of his minor son, aged eight years. He had married the mother (respondent no. 3) who was a doctor. Upon getting a job in Saudia Arabia, the mother left the minor with the appellant. The appellant also went and lived with the mother in Saudi Arabia, but then came back to Bangladesh, leaving their minor son with her. The mother filed a suit for dissolution of marriage and the son was sent to Bangladesh to live with her relations (as she could not look after him on her own). In the meantime the child developed some medical complications for which his mother and maternal aunts took him abroad for treatment. The mother bore his entire medical expenses and ultimately left her job to come back to Bangladesh and take care of her child. The District Court rejected the father’s application for custody of the minor. The father then went to the High Court Division with an appeal which was also dismissed. Then the Appellate Division while dismissing the appeal of the father against the judgment of the High Court observed that the welfare of the minor son required that his 20

[1986] 38 dlr (ad) 106 per Chief Justice F.K.M.A. Munim, Justices B.H. Chowdhury and Shahabuddin Ahmed at para. 10.

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c­ ustody should be given to the mother or she should be appointed his guardian. It held: Question[s] regarding hizanat of a minor boy or daughter [are] not solely dependent on his or her age but the consideration is welfare of the minor and this has to be the determining factor even though the opinion of well-known Muhammadan jurists may not be followed. (head note and para. 10) 3.

A Mother Remarried to a Stranger21 Does Not ipso facto Lose Her Right to Custody and May Be Declared the Guardian of Her Child, Depending on the Facts and Circumstances A Muslim mother’s remarriage to a stranger may work against her in disputes involving custody and guardianship of her children. The Court’s interventions, in five such ‘best practice’ cases, helped clarify the legal position on this disputed issue. It is now established that a mother remarried to a stranger does not automatically lose her right to custody of her children, and can also be declared the guardian of her children depending on the facts and circumstances of individual cases. In Johara Begum v. Maimuna Khatun,22 an appeal before the High Court Division had arisen out of the order of the Additional District Judge appointing the paternal grandmother (the respondent) as guardian of the person and property of the minor. The appellant was the mother of the minor and the respondent was the mother-in-law of the appellant. When the mother remarried the child’s paternal grandmother filed an application to be appointed as guardian of the person and property of the minor contending that the mother was not fit to take care of the child. The High Court Division allowed the appeal, modifying the order of the District. Judge appointing the appellant as the guardian of the person of the minor and the respondent as guardian of property of the minor and held: Under Mahomedan Law, having regard to how the minor’s welfare and interest will be protected, a table has been given according to which preference would go first to the mother if she is not otherwise disqualified. That does not necessarily mean that the duty imposed upon the Court to protect the minor’s interest has been over-ridden by such provision. The Court having regard to the provision of Mahomedan Law and also the 21 22

A person who does not belong to the prohibited degree of marriage with her daughter. [1964] 16 dlr (HC) 695 per Justice Hasan at para. 13.

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welfare of the minor, should appoint a guardian and not blindly merely because a mother has lost her preferential right after having taken a second husband and not related to the minor within the prohibited degrees. (Para. 13) [emphasis added] Again, in Rahela Khatun v. Ramela Khatun and Another,23 Ramela Khatun (the respondent no. 1), the mother, filed an application before the District Court to be appointed as guardian. Rahela Khatun (the petitioner), a distant paternal aunt of the minor, was in possession of the properties left behind by the deceased father of the minor. The mother’s application was contested on the ground that she had remarried. The District Judge allowed the application and appointed the mother guardian of person and property of minor. Respondents, i.e. a distant paternal aunt and a uncle, appealed. It was held in appeal that: Section 17 of the Guardian and Wards Act provides that in appointing or declaring guardian of a minor the court shall be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. In considering what will be for the welfare of the minor the court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor. Since the marriage of a female with a stranger does not annul her right to the custody of the minor, the appointment of a female who marries a stranger, as the guardian of the minor under the provisions of the Guardian and Wards Act, would be quite consistent with the personal law of the Muslim minor, provided the female in question is found to be the best of all the persons to whose charge care of the minor may be given. (Para. 10) [emphasis added] In Rahmatullah (Md) and Others v. Sabana Islam and Others,24 a Civil Revision was preferred by the paternal uncles and aunts of the minor against the mother, who had successfully made an application before the Court of A ­ ssistant Judge to be appointed the guardian in respect of the minor’s person and property. There were some contentions as to the inheritance of the property of the deceased husband of Sabana Islam and proceedings before the Artha Rin Adalat as well. As a result of these complications, the petitioners prayed to be appointed as guardian of the minor and contended that Sabana Islam had remarried 23 24

[1970] 22 dlr (hcd) 608 per Justice A. Hye Chowdhury at para. 10. [2002] 54 dlr (hcd) 519 per Justices Md. Abdur Rashid and Hasan Foez Siddiqui at para. 14.

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a ‘stranger’ and thereby forfeited her right to custody. The Family Court rejected their application and allowed the mother’s application. The hcd also upheld the judgment of the Family Court and discharged the Rule. It was held: A mother who [is] married to a stranger loses her preferential right of custody over a minor child but that will not totally exclude her from being considered fit for guardianship if she is otherwise held on a consideration of all circumstances in a particular case to be competent to be the guardian of such minor. (Para. 14) In Sefina Ferdousi Shimla v. Jaohar Kabir,25 the matter arose out of a Civil Revision. Jaohar Kabir (plaintiff-petitioner), filed a family suit stating that he was married to Sefina (defendant-respondent-petitioner), and a son was born to them a year after their marriage. About three months after the birth of their son, Sefina went to her father’s house for a visit. When Jaohar went to bring her back she refused to come back and told Jaohar that she wanted a divorce. ­Jaohar at several times attempted reconciliation but Sefina refused and sent a divorce notice. A talaq (divorce) was ultimately executed due to non-­appearance of petitioner (Sefina). Sefina remarried before the divorce became effective. In such a situation Jaohar filed a suit for custody of their son. Sefina, in the meantime, divorced her second husband before she brought the revision petition. The Family Court Judge awarded custody to Sefina which was reversed by the Appellate Court. The High Court Division upheld the judgment and order of the Appellate Court directing the petitioner to hand over custody to the father of the child. However, the Court observed: A mother who is married to a stranger loses the preferential right of custody over a minor child but that will not totally exclude her from being considered fit for guardianship if she is otherwise held on a consideration of all circumstances in a particular case to be competent to be the guardian of such minor. (citing Rahela Khatun v. Ramela Khatun [1970] 22 dlr (HCD) 608) Finally, in Rumana Afrin v. Fakir Ashrafuddin Ahmed and Others,26 the Court went to the extent of highlighting the relevant religious texts and held:

25 26

[2009] 61 dlr (hcd) 86 per Justice Md. Abu Tariq at para. 19. [1996] 16 bld (hcd) 487.

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Thus, the Islamic law of hidanat is that the mother has absolute right against the father over the minor child till she remarries. It is to be noticed that the hadith quoted does not specifically state that the right of hidanat will cease if she remarries. The hadith indicates that the right of hidanat of the mother then will be at par with that of the father and the case of the mother versus the father is to be decided vis-à-vis the minor’s welfare. (Para. 9) 4.

The Rule of hizanat Does Not Give Any Right to the Father to Remove a Minor Son from the Custody of His Mother at Will Forceful or deceitful removal of minors from their mother’s custody is another common practice, which appears to result from the fathers’ assertion of their unfettered right to effect removal of minors at will from the custody of mothers. The Court’s intervention, in Zahida Ahmed (Liza) v. Syed Noor ­Uddin Ahmed and Another,27 will undoubtedly help counter such notions that are reinforced by patriarchy. This case involved a habeas corpus writ petition which was followed by a family suit. The petitioner was the mother of a ten year old boy (the detenu). She had been living in London for the preceding six years along with her son and husband. After their arrival in London, the child was diagnosed with significant psychological and physical health problems. ­Following a breakdown in the relations between the father and mother, the child was wrongfully removed by his father from the mother’s custody and brought to Bangladesh without her knowledge. The mother, being aggrieved by the d­ eceitful removal of her son from her custody, filed a writ petition before the High Court Division. It was held: According to Mohammedan law of hizanat, [there] is no doubt that the father is entitled to the custody of his minor son when he attains the age of seven years. But the law relating to the custody does not permit deceitful removal of the detenu from the custody of his mother while he was in a foreign country where such removal is not at all permissible. The rule of hizanat has not given any unfettered right to the father to remove a minor son aged about 10 years from the custody of his mother at will. By resorting to deceptive means, respondent no. 1 took the temporary custody of the detenu from his mother on pretext of going to a family visit to Ireland and then brought the detenu to Bangladesh. By doing so, respondent no.1 has taken law in his own hand without waiting for adjudication of the custody and welfare of the child in an appropriate forum. (Para. 10) 27

[2009] 14 mlr (hcd) 465.

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The Family Court will look into the cases referred to above and come to a finding in whose custody the welfare of the detenu will be better protected. In short, the child’s welfare is the supreme consideration, irrespective of the rights and wrongs of the contending parties. (Para. 15) [emphasis added] Any delay in determining the question of custody is likely to prejudice the welfare of the child. Therefore, we are of the view that the Family Court should dispose of the Family Suit within a specified time. Till disposal of the suit, we would like to ensure that the mother shall remain in Bangladesh and she must deposit her passport with the concerned Family Court. (Para. 17) [emphasis added] The detention of the detenu Syed Shafin Ahmed (Ayon), aged about 10 years in the custody of respondents is declared to be unlawful and he is being held in their custody in an unlawful manner. Respondent no.1 is ­directed to hand over the detenu to the custody of the petitioner … During pendency of the suit in the Family Court, the father (respondent No. 1) shall have the right to visit his son at a conveniently agreed time, place and period twice in a week. 5.

The Issue of Minor’s Welfare to Take Precedence over the Legal Rights of Disputing Parties The issue of the minor’s welfare must be treated with paramount importance regardless of the disputing parents’ legal rights or entitlements. In Abdul Jalil and others v. Sharon Laily Begum,28 the Court made this important observation. In this case, the father divorced the mother in 1995, and removed the children from her custody. The mother filed a habeas corpus petition, first in the United Kingdom, and then under Art. 102(2)(b)(i) of the Constitution for recovery of the children. She was a Christian British/Bangladeshi dual citizen and engaged full-time in bringing up her children. The children were also British/­Bangladeshi citizens. In 1993 the father brought his wife and children to Bangladesh on the pretext of a visit and when in Dhaka he took the passports of the children. In 1995 the father, the respondent No. 1 on the pretext of taking the children to a park, deceitfully and illegally removed the children including the youngest one, who was a breast-feeding infant at that time, from the mother’s custody and took them from their home in Dhaka to his paternal home in a village. The Court directed that the children should remain in the custody of their mother and granted the father visitation rights and directed the Family 28

[1998] 50 dlr (ad) 55 per Chief Justice A.T.M. Afzal, Justices Mustafa Kamal, Latifur Rahman, Md. Abdur Rouf and B.B. Roy Chowdhury at paras. 15, 28, 32, 33.

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Court to dispose of the matter within six months. The Court made an important observation with regard to conflicting priorities between a minor’s welfare and the parties’ legal rights, deciding in favour of the former. C ­ iting the decision of the Indian Supreme Court in Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor,29 the Court observed: It is well settled that in matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party. (Para. 28) The Court relied on the submission of the learned counsel of the mother regarding her religion that a mother who is a Kitabia (‘of the book,’ i.e. Christian or Jewish) is entitled to the same rights as a Muslim mother in relation to custody. Her counsel, referring to Mohammedan Law by Syed Ameer Ali Vol. ii (1976) 288, submitted: “The milk of a Muslim mother is not more nutritious than the milk of a Christian mother.” In addition to engaging with the substantive law in the area of custody and guardianship, from time to time, the Court also established some procedural practices. In the following paragraphs, some of these procedural developments have been illustrated. (a)

Affirmation of the Power of the High Court Division under Art. 102 of the Constitution to Direct Recovery of a Minor Who Has Been Removed without Lawful Authority from the Custody of Its Mother and to Restore Such Custody In Abdul Jalil and Others v. Sharon Laily Begum,30 discussed above, the Court directed that the children remain in the custody of their mother and only granted the father visitation rights. The Supreme Court also directed the Family Court to dispose of the matter within six months. In the judgment, the Court acknowledged that: Normally the minor child should be with their mother as long as she does not earn any disqualification for such custody and if there is a breach of this normal order brought about by a unilateral act of the father or anybody on his behalf, the aggrieved mother has the right to move the High Court Division under Article 102 of the Constitution for immediate custody of the children which may be ordered in the interest and for the welfare of the children. (Para. 33) 29 [1982] air (sc) 792. 30 [1998] 50 dlr (ad) 55.

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The Court also observed: If the mother had disqualified herself for any reason for the custody of her children, it was open for the father to claim their guardianship in a Court of law. But he could not present a fait accompli by his unilateral act of holding back the children because of his stronger position and better resources. (Para. 32) (b)

Habeas Corpus Petitioners Not Be Sent Back to the Lower Court to Exhaust Remedies if Such Remedies Are Deemed Inexpedient or not Equally Efficacious Exhaustion of other equally efficacious remedy by the petitioner is a general requirement in writ cases under Art. 102 of the Constitution. However, in Ayesha Khanam and Others v. Major Sabbir Ahmed and Others,31 the Court observed that in cases where the lower Court remedies are not equally efficacious or it is not expedient to avail of them, requiring the petitioner to exhaust such remedies may not serve the interest of justice. In this case the Court made this important procedural observation: A petition in nature of habeas corpus for the custody of a minor would also be equally competent without sending the petitioner to exhaust his or her remedy before the Family Court or under the Guardian or Wards Act or other Criminal Court which is neither expedient nor an equally efficacious remedy in situation like one in the instant case. (Para. 9) (c)

Till the Custody of the Minors Is Decided by a Competent Court, the Mother Is Legally Entitled to Retain the Custody of Her Minor Children. Before Adjudication of the Custody of the Minors by a Competent Court, if They Remain in the Custody of Anybody Other Than the Mother, That Custody Will Be without Lawful Authority The High Court, in Farhana Azad v. Samudra Ejazul Haque and Others,32 provided an interim remedy, enabling the mother to retain custody of minors until the matter could be disposed of by a competent Court. In this case the father (respondent) was living abroad and divorced the petitioner, mother, while their children (a minor daughter and a son) were allegedly detained by the paternal grandfather and grandmother. The mother claimed that she and 31 32

[1993] 13 bld (hcd) 186. [2008] 60 dlr (hcd) 12 per Justices Syed Mahmud Hossain and Quamrul Islam Siddiqui at para. 7.

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her brothers had been made to put their signatures to blank paper which was later used to forge a deed of “handing over minors” in favour of the paternal grandparents. Subsequently, the mother tried several times to visit her minorchildren but was not allowed to do so. In the meantime, the father remarried in the usa and returned to Bangladesh with his new wife. He was about to hold a wedding reception when the petitioner came to know about the forged deed and his remarriage. Upon receiving a petition from the mother, the High Court held: Till the custody of the minors is decided by a competent Court, [the] mother is legally entitled to retain the custody of her minor children. ­Before adjudication of the custody of the minors by a competent Court, if they remain in the custody of anybody other than the mother, that custody will be without lawful authority. The Family Court will take care of all legal aspects of the case and will come to a definite finding as to who is/are entitled to the custody of the minors taking into consideration the paramount question of welfare of the minors but till then the minors shall remain in the custody of the mother as provided under the law. In this connection reliance may be placed on the case of Abdul Jalil and others v. Sharon Laily Begum Jalil [1998] bld (ad) 21. The case referred to is almost identical with the facts and circumstances of the instant case where the legal fight was between the father and the divorced mother over the custody of their minor children. In that case although serious allegations, including illicit relationship with a man, were leveled against the mother, the Appellate Division found that till final adjudication of the question of guardianship by the Family Court, the custody of the minors would remain with the mother. (Para. 7) (d)

Matters Such as Custody of Children Must Always Remain Fluid since Change in Circumstances May at Any Time Require the Terms of the Custody to Be Varied upon a Fresh Application The Appellate Division of the Supreme Court of Bangladesh in the case of ­Anika Ali v. Rezwnul Ahsan33 affirmed the High Court’s decision to entertain a civil revisional application by a father against a judgment and order of the lower Appellate Court as well as the Family Court dismissing his family ­execution case for breach of conditions of a compromise decree (solenama) 33

[2012] 32 dlr (ad) 107 per Justice Muhammad Imman Ali.

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on the ground of limitation. In this case both the mother and the father of a male child, after their divorce, went to the Family Court with their cases, one for recovery of dower money and of maintenance and another for custody of the son. Both the Family Suits were disposed of when two compromise deeds were executed between the parties regarding payment of dower and maintenance and regarding custody and visitation of their son. The mother of the child took him out of the country. The father could not see his child and allegedly did not know of his whereabouts. In these circumstances, and given that the mother had married again, he filed a writ petition with prayers in the nature of habeas corpus. The High Court Division, upon hearing both the parties, discharged the Rule on finding that since the minor boy had been staying with his mother pursuant to the order of the Court it could not be said that he was illegally detained. However, the High Court observed that since the deed categorically stated that the mother would send the child to his father’s house two days every week the father could take proper steps for enforcement of terms of this deed. The Court further directed that if the petitioner files any such petition before the lower Court for enforcement of the terms of the solenama, the Court concerned shall dispose of such application within two months from the date of filing the same. Accordingly the father filed a family execution case which was dismissed by the Family Court which was affirmed by the lower Appellate Court. The father of the child filed a Civil Revision in the High Court Division of the Supreme Court against the judgment of the lower Appellate Court. A single bench Judge of the High Court Division on entertaining the revisional application passed direction upon the parties to strictly follow the terms and conditions of the solenama. Being dissatisfied with the judgement of the High Court, the mother filed a civil petition for leave to appeal where the Appellate Division refused to interfere, discarding petitioner’s grounds of legal bar for limitation and for moving another application previously on the same matter, holding that: … the custody of the child … is a matter that can be redressed by the Family Court, should there be any default in implementing the Court’s order. Moreover, the order in relation to custody of a child should never be presumed to be inscribed in stone. Matters such as custody must always remain fluid since change in circumstances may at any time require the terms of the custody of the child to be varied upon a fresh application in order to comply with the age-old principle that the welfare of the child is a paramount consideration and in modern parlance ‘the best interest of the child’ must be given due consideration. (Para. 13)

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6.

It Is Wise for the Judges to Allow the Child to Express His/Her Will Freely and Consider the Same Accordingly to Make a Decision in Respect of the Custody of a Child The Appellate Division of the Supreme Court of Bangladesh in the Anika Ali case further held: … within the modern concept of custody and other matters concerning children, there is a requirement that the child should be allowed to ­express his views (see Article 12 of the Convention of the Rights of the Child (crc) quoted below). This is a small progression from Section 17(3) of the Guardians and Ward Act 1890, which provides that if the minor is old enough to form an intelligent preference, the Court may consider that preference. The Court when considering any matters relation to the custody of the child should also keep in mind the provision of Article 3 of the crc, which provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (Para. 15) 7.

Unless Provisions of International Instruments Are Contrary to Our Domestic Laws, the Beneficial Provisions May Profitably Be Referred to and Implemented in Appropriate Cases The Supreme Court of Bangladesh with regard to the applicability of provisions of international instruments, which have not been incorporated into municipal law, referring to the judgments in Hossain Muhammad Ershad v. State, [2001] 21 bld (ad) 69, Abdul Jalil v. Sharon Laily Begum, [1998] 50 dlr (ad) 55, and the State v. Metropolitan Police Commissioner, [2008] 60 dlr (HCD) 660, held in the case of Anika Ali that the beneficial provisions of international instruments may profitably be referred to and implemented in appropriate cases unless the same “are contrary to our domestic laws.”

Findings and Recommendations

As discussed earlier, the gwa is applicable to all citizens regardless of the faith or belief of the litigants, or the community to which they are taken to belong. However, it provides that judges should take personal laws into consideration while deciding guardianship matters. Thus, Section 17 of the gwa makes the welfare of the child the paramount consideration in guardianship matters, but in conformity with the law to which the minor is subject. As a result of these

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r­ equirements, the Courts are often reluctant to depart from the more rigid or orthodox interpretations of Muslim law since the mother is considered to be neither the natural nor the legal guardian of her children under Muslim personal law. The higher Courts usually uphold the prevailing rules of personal law, permitting on occasion a limited departure for the sake of the welfare of the child, in decisions which we have identified as containing ‘best practices.’ In the previous section, we have discussed some of these ‘best practice’ cases providing interpretation of current law along the following lines: • Where the personal law and the welfare doctrine is in conflict, the welfare doctrine will have precedence. • Questions regarding hizanat of a minor son or daughter are not solely dependent on her or his age. The determining factor will be the welfare of the minor irrespective of the opinions of Muslim Jurists. • A mother remarried to a stranger does not ipso facto lose her right to custody and may be declared the guardian of her child, depending on the facts and circumstances. • The issue of minor’s welfare will take precedence over the legal rights of disputing parties. • The rule of hizanat does not give any right to the father to remove at will a minor son from the custody of his mother. • Judges may allow the child to express his/her will freely and to consider that while making their decision. • Applying relevant provisions of international instruments in decision-­ making, if found compatible with provisions of domestic law. Findings of the Study 1. Meaning of “Welfare of the Child” Despite the frequent references to the phrase “welfare of the child” by the Court, there still remains a gap as to what this entails in practical and normative terms. On occasions, the Courts indeed gave some directions to effect children’s welfare on a case by case basis, nonetheless, the current understanding of “children’s welfare” appears to be a result of inferences drawn from those directions. This may have resulted from the gwa not addressing the issue of welfare of the child comprehensively, leaving scope for inconsistent interpretations and wide exercises of judicial discretion. There have also been instances where lack of clarity in the normative framework has led to positions that may be considered contradictory to a child’s overall wellbeing. Family Court Judges hear family suits regarding guardianship which appear to be commonly filed to obtain permission from the Court to sell the ­properties

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of the minor. Although litigants make applications for guardianship of property and of person, they often pursue applications for guardianship of property, as applications for permission to sell the property of minors always follow such applications for guardianship of person. Considering this trend, it is important that the Courts are very clear about what minor’s welfare actually entails and how possible proprietary incentives of a minor’s relatives may affect such welfare. According to a number of judges interviewed, in deciding such custody cases, the opinion of the children are taken into account while assessing their “welfare.” The concern however remains regarding the minors’ actual capacity to form sound decisions in terms of assigning guardianship of property to a particular relative. 2. Engagement with Orthodoxy In the ‘best practice’ cases mentioned, it has been acknowledged34 that custody decisions are not to be solely dependent on ‘age’ and that welfare of the child should be assumed to be the determining factor even when such positions are in conflict with the opinions of well-known Mohammedan jurists. The same goes for the ‘sex rule.’ However, empirical data gathered in course of this research illustrates that the lower Courts, in most cases, are not following ‘best practices’ as developed by the High Court. In practice, rather, Family Courts rarely deviate from the so-called ‘age and sex rules’ while determining outcomes that would further the welfare of the child. It is obvious that strict adherence to this rule can potentially operate contrary to welfare/best interests. For example, separation of siblings of different ages and their placement in the custody of different persons cannot, in any common sense understanding, be in the best interests of a child. Inconsistencies and at times contradictory explanations co-exist, leading to uncertainty for lower Courts seeking to apply the principle of ‘best interest of the child’ upheld by the higher Courts. Due to asymmetries in the decisions of the higher Courts, matters are often left to the discretion of the Judges of the Family Courts whether or not to follow the higher Courts’ ‘best practice’ decisions. For example, the determination of the personal law i.e. ‘the law to which the minor is subject’ is one such area riddled with difficulties and there are conflicting decisions on the issue35 which in turn makes application of these decisions uncertain at times. 34 For instance in Md. Abu Bakar Siddique v. S.M.A. Bakar and Others, [1986] 38 dlr (ad) 106. 35 In Bhakti Bhusan Shaha v. Moulana Ruhul Amin, [1986] 38 dlr (hcd) 396, the petitioner Shaha’s son aged sixteen converted to Islam and was in custody of Moulana Ruhul Amin, as entrusted by the Court. Conversely, in Shukhendra Chandra Das v. the Secretary, Ministry of Home Affairs, [1990] 42 dlr (hcd) 79, when the petitioner’s daughter converted to Islam and got married, her custody was given to her father. In Shamsun Naher v. Dilip

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Traditional interpretations of Muslim law by jurists provide that a mother who remarries a stranger, i.e., a person who does not belong to the prohibited degrees of marriage of her daughter, cannot retain custody of her children. But this rule does not apply to fathers. Further, the best interest of the child is often not secured through application of this rule. Such provisions are blatantly discriminatory to women. There is also no evidence to suggest that a mother’s remarrying is any more disruptive to a child’s welfare compared to a father’s remarriage. Contrary to this position, it has been consistently held by the Courts that a mother married to a stranger may nevertheless be awarded custody36 of her minor child or even be declared the guardian.37 In the case of Amirul Bor Choudhury v. Nargis Sultana38 the Court, interestingly, held the father’s remarriage to be a disqualification. While all these decisions have been taken in relation to matters being heard under the Court’s civil appellate/revisional jurisdiction it is submitted that they are equally, or perhaps more, relevant in determining whether a minor should be restored to the custody of a mother from whom he/she has been removed without lawful authority, and that the marital status of the mother should not be a bar to the issue of restoration of her rightful custody. 3. Forums and Remedies It was found that cases before Family Courts take a long time, in most cases two to three years. While the delay in disposal of cases is a problem common to judicial administration in Bangladesh generally, our data indicates that the Family Courts fail to deliver efficacious and speedy remedies. As a consequence, ­Kumar Roy, [2010] 15 blc 48, the petitioner converted to Islam, but failed to secure custody of her minor son due to application of ‘age and sex rule’ under Muslim law (in effect the mother’s religion was applied). 36 See: Johara Begum v. Maimuna Khatun, [1964] 16 dlr 695 (hc) per Justice Hasan at para. 13; Rahela Khatun v. Ramela Khatun and Another, [1970] 22 dlr (hcd) 608 per Justice A. Hye Chowdhury at para. 10; Abu Bakar Siddique v. S.M.A. Bakar, [1986] 38 dlr (ad) 106 per Chief Justice F.K.M.A. Munim, Justices B.H. Chowdhury and Shahabuddin Ahmed at para. 10; Rahmatullah (Md) and Others v. Sabana Islam and Others, [2002] 54 dlr (hcd) 519 per Justices Md. Abdur Rashid and Hasan Foez Siddiqui at para. 14; Sefina Ferdousi Shimla v. Jaohar Kabir, [2009] 61 dlr (hcd) 86 per Justice Md. Abu Tariq at para. 19. 37 In Syeda Shamsunnahar v. Morshed Anwar Khan, [2005] 10 mlr (hcd) 148, it was held, a mother becomes unfit to be guardian of her minor child on the ground of her remarriage and other grounds affecting the welfare of the minor when she can be removed from guardianship. In contrast, in Md. Rahamatullah v. Mst. Sabana Islam, [2003] 8 mlr (hcd) 242, it was held that when no better claimant is found the mother despite her remarriage may be appointed guardian of the minor child having regard to the welfare of the child as paramount consideration. 38 [1999] 19 bld (hcd) 213.

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litigants who have the option prefer custody disputes to be decided before the writ and criminal benches of the High Court Division or the Courts of the Judicial and Executive Magistrates, instead of Family Courts. However, such options are usually available only in cases of wrongful removal from custody or abduction and domestic violence related scenarios or where very young children are involved. Our findings indicate that rather than filing custody cases before the Family Court, litigants typically initiate proceedings in the Court of the Executive Magistrate under Section 100 of the Code of Criminal Procedure. This Court has the power to issue search warrants for children allegedly held in ‘illegal confinement.’ This results in a child being traced quicker and the ruling being issued promptly, often in one or two sentences. Litigants appear to have more confidence in the Executive Magistrates’ Courts due to their speedy disposal of cases. The weakest aspect of the diversion of custody issues from the Family Courts to the Courts of the Executive Magistrates is that the latter pass judgments without any reasoning, and, it appears, without the need to adhere to the best practices of the Supreme Court. One respondent commented that most lawyers and Family Court Judges are unaware of the fact that Family Courts also have the power to issue search warrants just like the Courts of ­Executive Magistrates. 4. International Instruments There is no question that Bangladesh has shown considerable legislative progress in incorporating principles of international instruments in its national laws especially after the enactment of the DV Act, 2010, the Children Act, 2013, the Rights of Persons with Disabilities Act, 2013 and the Torture and Custodial Death (Prevention) Act, 2013 etc. However, the principles incorporated in these new laws are not yet well known to many lawyers or judges, and have not yet significantly permeated the decision-making process of the lower judiciary. For instance, internationally recognized best interest principles such as that ‘siblings cannot be divided’ have failed to get acceptance in the Courts of Bangladesh. Interestingly, during the interviews, a number of lower Court Judges indicated that they considered the crc and cedaw as incompatible with the socio-cultural norms of Bangladesh. 5. Decision-Making Perusal of lower Court decisions collected in the course of our investigations revealed that there is a common trend in the lower Courts,39 especially in the 39

Among the judgments perused, only three of the Family Court decisions referred to ­ igher Courtsʼ decisions. h

Statistics on disposal of cases in three Family Courts of Dhaka, 2014–2015

345 315

Guardianship and custody suits 1000 1040

Total family suits

327 302

Guardianship and custody suits 710 1012

Total family suits

259 312

Guardianship and custody suits

Total Civil Suits 4724 from Manikganj Courts Total 507 Family Suits Other than 4217 Family Suits

7225

1063

6162

2081

565

1516

331

97

428

68

20

88

212

119

331

114

40

154

40

11

51

376

277

653

1138

564

1702

Pending Filing suit Total suits Contesting Mediation Ex parte Withdrawal Solenama Discharge Total suit from in 2010 in 2010 discharge 2009

Table 3.2 Manikganj Court statistics, 2010

2014 919 2015 961

Total family suits

5025

545

5570

Pending cases

Year Court of 12th Assistant Judge and Family Court Court of 13th Assistant Judge and Family Court Court of 15th Assistant Judge and Family Court

Table 3.1

Muslim Women’s Rights under Bangladesh Law

171

172

Tamanna, Haq and Hossain

Magistrates’ Courts, to determine custody and guardianship matters without recording any reason supporting the decisions. This not only creates a perception of arbitrariness inherent in the decision-making process, but also makes it difficult to assess the extent to which these decisions are influenced by the ‘best practice’ judgments, if at all. Such practices are also unhelpful with regard to following up, reviewing or monitoring decisions as the reasons for the original decisions remain unexplained and unrecorded. In the course of this study, a number of procedural and practice related issues came to light. For instance, it was found that in lower Courts most guardianship cases are decided ex parte, which has been attributed by a number of case workers to non-service of notice to the opposite party allegedly with the help of corrupt Court officials. 6. Guardianship through Other Instruments Appointment of a guardian by will or other instrument is permitted under the gwa, therefore the wishes of the deceased parent/guardian may become a relevant factor in certain custody matters. Agreement between parents is also used to settle guardianship and custody matters both in and out of Court. ­Under the fco, the Family Court may pass a decree or judgment based on compromise reached between the parties.40 However, a number of respondents during the interviews expressed their concern that sometimes these agreements overlook the best interests of the child, and indeed of the mother. In one case, we found that a Family Court Judge prevented enforcement of an out-of-court-agreement by the mother who was trying to handover a child aged one and half years to his father. We also found that most custody disputes examined were settled outside the Courts, often by means of mediation/negotiation by the Court. In the social context of Bangladesh, where women’s capacity to fight legal battles is in most cases very limited, given that they are far from being on a level playing field in terms of costs and capacity to conduct the proceedings, alternative modes of dispute resolution could be advantageous for women, and allow them greater opportunities to voice their concerns, and to negotiate fairer outcomes. However, it needs to be borne in mind that these procedures are also not free from disadvantages for women, as pressures, both express and implied, influencing community and family interactions can play a determining role in the matter.

40

However, in the case of Farzana Azad v. Samudra Ejazul Haque, [2008] 60 dlr (hcd) 12 the Court negated enforceability of private agreements, i.e., agreements concluded between the parties outside the Court.

Muslim Women’s Rights under Bangladesh Law

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7. Participation of Children in the Proceedings The gwa, the fco and the Evidence Act41 facilitate representation of children in custody and guardianship proceedings. Under the gwa, the Court may consider the opinion of a minor who is old enough to form an intelligent preference. The opinions of children are often heard by the Courts although they are not always taken into consideration in their final rulings. However, there is no uniform rule or official norm nor standard practice to obtain the viewpoint of children. In practice, children are often treated inappropriately in the Courts. Our study finds that the environment in the Court premises or the rooms is not child friendly. One Family Court Judge of Manikganj, when interviewed, said that he takes children’s views into account and regards them as regular witnesses,42 enabling the lawyers of the opposing party to cross-examine them. Another Family Court Judge in Dhaka informed us that the opinion of the child is usually requested and considered in the Judges’ chambers. In our view, though taking the opinion of the child in the Judge’s chambers is comparatively a better practice, both situations can be unfavourable for children as they are placed in an intimidating environment and may feel they are inhibited in expressing their opinions to the Court.43 Children’s opinions may be taken in a child friendly place by a person who is expert in child psychology or alternatively the Judges themselves could receive some orientation on the best approaches and also some background on child psychology. 8. Access and Visitation Rights With regard to parents’ rights to access the minor, there is no statutory provision dealing with the issue of ensuring access of one parent to the child while in custody of another. It was held by the hcd in Aktar Masood v. Bilkis Jahan Ferdous44 that a father cannot be denied access to his minor son while the latter is in the custody of the mother. In almost all custody cases the parent 41

42

43 44

The Evidence Act is not applicable in the proceeding before the Family Court. The gwa has its own procedure to be followed. However, Section 118 of the Evidence Act provides scope for children to testify where they are able to give rational answers. Some Family Courts hear children’s’ statements as witnesses, e.g., in one case under study a child was given to custody of the mother for one week and to the father for the following week by the High Court Division and so on, based on the preference of the child. However, the Family Court in this case later on provided custody of the minor to the father according to the preference made by the minor. In Re: Mahua Haque Writ Petition No. 7379 of 2009. Re: Mahua Haque Family Suit No. 84 of 2009, 2nd Assistant Judge and Family Court, Chittagong. [1998] 50 dlr (ad) 145.

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to whom custody is denied is given access to visit the child. Express rights to visitation have also been awarded by orders of the Executive Magistrates in a few cases. 9. Cross-jurisdiction Disputes In today’s world, mobility has increased dramatically and there are a large number of non-resident Bangladeshis living abroad. Several of our respondents noted that the applicable laws have not been shaped according to the needs of time. Under Section 44 of the gwa, removal of the child from the jurisdiction of the Court is considered as misconduct for which a penalty may be imposed. The question regarding jurisdiction is therefore crucial, since many individuals are increasingly encountering these problems. If children are removed from Bangladesh to other jurisdictions, we believe that action for recovery of the child should lie in the other jurisdiction. In the case of children who are brought into Bangladesh having been removed from other jurisdictions, petitions for orders in the nature of habeas corpus may be moved before the hcd, seeking directions for them to return to the country from which they have been removed. While such prayers were made in the Sharon Jalil case before the High Court, no such orders have been given (except in a different context—of child marriage—in the Dr Shipra Chowdhury case) and thus no standard practices have developed in the area. However, we may consider the Judicial Protocol agreed between superior Court Judges from Pakistan and the UK as an example which could perhaps be adopted in our jurisdiction.45 This Protocol has no binding force and yet appears to have operated as a memorandum of understanding among judges from the respective countries enabling the passage of orders to ensure the return of the detainee to the country from which s/he has been removed. A notable case here can be cited is of Misbah Iram Ahmed Rana also known as Molly Campbell.46 45

46

UK-Pakistan Judicial Protocol on Children Matters agreed between the President of the Family Division of the High Court of England and Wales and the Hon. Chief Justice of Pakistan in consultation with senior members of the family judiciary of the United Kingdom and the Islamic Republic of Pakistan in January 2003 in the Royal Courts of Justice, London. Misbah Iram Ahmed Rana, also known as Molly Campbell, a girl of mixed Scottish-­ Pakistani heritage, was at the centre of an alleged child abduction case in ­August 2006. Misbah/Molly was born in Glasgow, Scotland to Sajad Ahmed Rana and Louise who eventually divorced in 2001, when Misbah was seven, and all four Rana children initially stayed with their father, as requested by their mother. He eventually relocated back to his homeland of Pakistan; the children accompanied him for the first few months before returning to their mother in Scotland. In 2005 two children chose to return to Pakistan to live with

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Bangladesh may benefit by ratifying the Hague Convention of 1980 on the Civil Aspects of International Child Abduction and also signing other bilateral treaties. Particularly in cases involving cross-border abduction of children, the regime of obligations set out by these instruments extend consular and other protections. However, leave of the Court can be obtained under Section 26 of the Guardians and Wards Act to remove the ward/minor from the limits of the jurisdiction of the Court. Case law and principles relating to the issue are yet to be developed. 10. Women’s Entitlement and Children’s Welfare It is important that women’s entitlement issues are addressed separately as stand-alone issues and not as a by-product incidental to minor’s welfare doctrine.47 The progressive positions so far adopted by the higher Courts largely centre on the child and not on the woman, which in essence do not represent any significant departure from the stereotypes with regard to women’s role being a care-giver.48 For example, the Court’s position on giving custody of boys their father while Misbah remained in her mother’s custody. Misbah and her mother, in November 2005 moved to Stornoway. On 25 August 2006, Molly was met by her sister Tahmina outside the gates of her high school. The sisters then met up with their father, who had been staying in a hotel on the Western Isles, and took a flight from Stornoway to Glasgow before boarding a flight to Lahore, Pakistan. By the time her mother realised what had happened, they were already on their way to Pakistan. The following day, after Interpol launched a search for the missing twelve-year-old, Louise Campbell made an emotional plea to the media, claiming her former husband had abducted Misbah, against the child’s wishes, with the intent to marry her off to a twenty-five-year-old cousin. On 29 November 2006, the Judge at the Lahore High Court ruled that Misbah should be handed over to the British High Commission “within seven days.” Misbah’s father had also lodged a complaint to the Federal Shariat Court, which can overrule any decisions the High Court makes on the case. The High Court Judge decided to follow the protocol between Pakistan and the UK on the handling of custody cases. (For more, see https:// en.wikipedia.org/wiki/Misbah_Rana). 47 In Abdul Jalil v. Sharon Laily Begum Jalil, [1998] 50 dlr (ad) 55 the rights of the child were at issue rather than rights of the parties. See also: Md. Abu Bakar Siddique v. S.M.A. Bakar and Others, [1986] 38 dlr (ad) 106. 48 For a feminist perspective on the implications of current ‘welfare of child’ standard and the ‘caregiver’ concept for Muslim women, see Tamanna, N., “The ‘welfare of the child’ in Shariʿa law: an analysis of child custody law and practices in Bangladesh from a feminist perspective,” Child and Family Law Quarterly 2014 (26(3)), 283. Tamanna argues that even when mothers are occasionally favoured by the Bangladeshi Courts on the grounds of children’s welfare, the premise still remains a discriminatory one as it is often based on stereotypical assumptions regarding women’s role in the family and in society.

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over eight years old to the mother can be considered a departure from the orthodox age and sex rule where custody of boys over seven years old are given to father. The fact remains that such preferences are prompted by considerations of the child’s welfare, and not as an acknowledged entitlement of the mother. The study did not find any evidence to suggest that upholding children’s best interest in Court necessarily advances women’s position from an entitlement perspective. 1.

2.

3.

4.

49

Recommendations and Proposed Solutions On Law Reform There is a need and scope to reform the law to enable both parents to be legal guardians of their child. The gwa ensures the right of the father as the guardian of the child during his lifetime and it prevents others from becoming guardians of his children (Section 19). Amendment of this section may be considered as it currently impedes progressive development. Interestingly the gwa provides for both parents to be legal guardians only where they are both ‘European British subjects of British India,’ a now historically defunct category. The High Court may consider introducing procedural rules pursuant to Section 50 of the gwa in order to ensure proper representation of children in guardianship and custody cases prescribing the manner of asking their opinion and also the environment in which they can be examined. In line with the position adopted in the ‘best practice’ judgments r­ egarding remarriage and mother’s entitlement to legal and natural guardianship alongside the father, reforms in the gwa may be considered to ­ensure greater certainty and also gender equality of outcomes. As has been pointed out, despite a number of decisions by the higher Courts and the gwa placing paramount importance on the “welfare of the child” criterion in deciding custody and guardianship cases, there remains a gap as to what this entails in practical and normative terms. There is scope to develop more comprehensive guidelines, perhaps through incorporation of explanatory examples in the Act, or through a Practice Direction49 as to how to interpret the issue of welfare of the child and what factors may be taken into account.

Under Chapter-iiib of the Supreme Court of Bangladesh (High Court Division) Rules, 1973.

Muslim Women’s Rights under Bangladesh Law



177

On Court Procedures and Institutional Reforms

1)

There is scope to alter current Court practices in order to ensure that Family Courts work separately from civil Courts. Such reforms would aim at altering the current practice of civil Courts performing on occasion as Family Courts. A District Judge has in certain cases passed a general order that all family suits filed according to their respective territorial jurisdictions before different Assistant Judge’s Court may be forwarded to the Court of a designated Assistant Judge, who will then perform as the Family Court Judge. To our knowledge, this approach has been adopted in a few districts (eg Dhaka and Faridpur). Adopting such a practice across the system could lead to an improved response, as Family Court Judges developing greater specialization and expertise in Family Suits. However, law reform may be required for this as it is at times argued that jurisdiction of a Court is a creature of statute50 and it can not be altered by an order of a Judge. Alternatively, Assistant Judges may proactively manage their own caseloads, and allocate one or two days a week for hearing family suits, making it easier for litigants and their children to attend the Courts. 2) A system should be put in place to check abuse of process and corruption, and to ensure speedy and effective service of summons and processes from Family Courts. Introducing greater transparency in the Court procedures would benefit this process. 3) Steps need to be taken to ensure child-friendly Court premises. As Judges receive the daily cause list (list of cases to be heard on any day prepared by bench officer/peshkar as per the direction of the Judge) in advance, they could instruct their respective Bench Officer to ensure that custody cases are heard separately from others. In practice, it is seen children often have to wait in a busy and crowded Court room for long hours, and may find the situation quite distressing. Marking and separating a waiting place for children in the Court premises may resolve this to an extent. In the well known case of Abdul Jalil, the children held initial meetings with their mother in the Registrar’s room.51 4) Training or orientation on how to communicate with children can be provided to Judges and other Court officials. 5) Taking into account the current trend of custody cases being often coupled with applications for guardianship and control over minor’s property, 50 51

Md. Omar Faruk v. Government of Bangladesh and Others, [1999] 19 bld (hcd) 70. According to Barrister Sara Hossain, who represented the mother in the case.

178

6)

7)

52

Tamanna, Haq and Hossain

designation or appointment of an officer of the Court may be considered in some cases to check financial statements of income and expenditure relating to minor’s property as handled by the assigned Guardian. Such appointments would essentially involve post-judgment monitoring of compliance. In exercise of its rule making power, the Supreme Court of Bangladesh may frame rules to enable such a practice. Alternatively, such an officer may be appointed on a permanent basis as a salaried personnel to oversee matters related to child protection after disposal of custody cases. Alternatively, on a case by case basis, members of the Bar (who too are officers of the Court) may be assigned by the Court with the mandate to investigate into and reporting on individual cases as to whether and how a minor’s property has been used towards his/her financial welfare. Alternative Dispute Resolution (adr) may be encouraged, wherever appropriate, by the Court, without compromising the interest of the child or the mother. adr can be effective in reducing the tensions attendant in adversarial proceedings, and also lead to better outcomes for all, and of course reduce the burden on the Courts, thus leading to speedier outcomes. However, it is critical to ensure that those facilitating the adr take into consideration the societal underpinnings inherent in patriarchy that tend to disadvantage women, and that adr does not become a means for mothers to be compelled into accepting outcomes that are disadvantageous to them or deny their interests with regard to access to or custody of children. If children are removed from Bangladesh without the consent of ­either parent to another jurisdiction, provision should be made for initial ­action to be taken in the other jurisdiction. Similarly, if any child of a non-­resident Bangladeshi, or a foreign national, is brought to Bangladesh without the consent of the other parent, effective remedies need to be made available with respect to any disputes on custody or guardianship. In this respect, the following steps may be useful to consider: • Family Court orders under Section 26 gwa may be made in favour of the guardians and wards allowing them to move beyond the jurisdiction of the Court as appropriate. • Procedures under Section 44A read with Section 13 of the Civil Procedure Code may be considered to develop a mechanism to seek enforcement of a foreign judgment in Bangladesh where such a judgment with respect to custody or guardianship is passed by the Court of any reciprocating country. At present such orders will not be considered final and Bangladesh does not have declared any country or territory as reciprocating territory for the purpose of this section.52 A diplomatic officer of the Ministry of Foreign Affairs of the Government of Bangladesh informed one of the authors on 08.5.2016.

Muslim Women’s Rights under Bangladesh Law

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• Steps may be taken towards developing a Memorandum of Understanding to be adopted between Judges of different jurisdictions to ensure that a child who has allegedly been abducted and removed from one country be returned to the country from which s/he has been removed to enable proceedings to be held there regarding the dispute. • Consular protection may be offered to the children who are victims of abduction by one of their parents from one country to another. • Signing and ratification by the state of the Hague Convention of 1980 on the Civil Aspects of International Child Abduction may facilitate greater protection of children in cases of cross-border removals by their parents for recovery of children as well as deciding their custody.

Conclusion

The findings of this research are grounded in empirical data obtained as part of engaging with various actors involved in custody and guardianship matters, including litigants, legal aid and other Family Court lawyers, case workers, Judges, experts and other civil society actors. Although the coverage of inquiry was limited in scope and range, certain general patterns emerged which could not be ignored and were, accordingly, incorporated in the report. The recommendations that followed were also gathered in the same manner. Strictly adhering to the scope of the study it was not possible in some cases to trace interesting issues that emerged during the field study, which although not directly relevant to this study could be the subject of future research in the area. An example of one such area is adoption of children for Muslims. There is also scope to conduct a more thorough inquiry into other related areas of Muslim personal laws and practices to explore possibilities of advancing gender-equality enhancing reforms. It is expected, and hoped, that this study will inform both policy and practices in the area of custody and guardianship, in addition to supporting specific law reform initiatives that may be undertaken.

Bibliography

Articles

Ali, A.N.M.A., and Z. Andaleeb, “Concept and Practice of Laws Relating to Adoption in Different Religion and Modern Societies: Special reference to the Law of Islam,” Journal of Islamic Law & Judiciary 2008–2009 (3&4), 27–40.

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Fraidin, M.I., “Stories Told and Untold: Confidentiality Laws and the Master Narratives of Child Welfare,” Maine Law Review 2010 (63), 1–60. Hassan, R., “Equal before Allah? Woman-Man Equality in the Islamic Tradition,” Harvard Divinity Bulletin 1987 (17(2)), 2–4. Krähenbühl, S., “Interviewing young children: protocol, practice and perception in police interviews,” available online at: http://www.childhoodstoday.org/download .php?id=16 (last accessed 19 May 2011). Pereira, F., “Writ Remedies for Private Parties: An Expanding Horizon,” Law Review Journal 2003, 79–82. Sinha, S.K., “Writ of Habeas Corpus - Its Scope,” Bangladesh Legal Decisions 2001 (21), 59–64. Tamanna, N., “Personal Status Laws in Morocco and Tunisia: A comparative exploration of the possibilities for equality-enhancing reform in Bangladesh,” Feminist Legal Studies 2008 (16(3)), 323–343. Tamanna, N., “The ‘welfare of the child’ in Shariʿa law: an analysis of child custody law and practices in Bangladesh from a feminist perspective,” Child and Family Law Quarterly 2014 (26(3)), 283–300.



Books, Chapters, and Other Research Papers

Al-Hibri, A., “Deconstructing patriarchal jurisprudence in Islamic law: A faithful approach” in A.K. Wing (ed.), Global Critical Race Feminism: An International Reader (nyu Press: New York, 2000). Appleton, S.F., Gender and Parentage: Family Law’s Equality Project in our Empirical Age [Paper no: 10-06-10] (Legal Studies Research Paper Series, School of Law, Washington: University in St Louis, 2010). Bhuiyan, R., Gender & Tradition in Marriage & Divorce: An Analysis of Personal Laws of Muslim and Hindu Women in Bangladesh (United Nations Educational, Scientific and Cultural Organization: Dhaka, 2010). Cotterrell, R., The Sociology of Law: An Introduction (Butterworths: London, 1992). Galligan, D., Law in Modern Society (Oxford University Press: Oxford, 2007). Halim, M.A., Women’s Crisis Within Family in Bangladesh (Bangladesh Society for the Enforcement of Human Rights (bsehr): Dhaka, 1995). Hidayatullah, M. and A. Hidayatullah, Mulla Principles of Mohamedan Law (LexisNexis Butterworths: Bombay, 1990). Hossain, S., “Equality in the home: Women’s rights and personal laws in South Asia” in J.C. Rebecca (ed.), Human Rights of Women (University of Pennsylvania Press: Philadelphia, 1994). Hoque, M.E., Best Interest of The Children (Academic Press and Publishers Library: Dhaka, 2009).

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Huda, S., “Custody and Guardianship of Minors in Bangladesh” in T. Ahmad and M.M.A. Khan (eds.), Gender In Law (Adtam Publishing House: Dhaka, 1998). Kamal, S., Her Unfearing Mind: Women and Muslim Laws in Bangladesh (Ain O Salish Kendro: Dhaka, 2001). Khan, M.M.A., “Women’s Right in Islam,” in T. Ahmad and M.M.A. Khan (eds.), Gender in Law (Adtam Publishing House: Dhaka, 1998). Khan, M.M.A., The Guardians and Wards Act, 1890: dlr, bcr, blt, MLR, blc, adc, pld, Others Up to Date Rulings (Sarfuddin Law Book Company: Dhaka, 2009). Mahmud, S. and N. Shaukat, The Guardians and Wards Act with The Majority Act: Provincial Court of Wards Acts and Other Relevant Statutes (Legal Research Centre: ­Lahore, 2006). Marrus, E. and L. Oren, Introduction: Feminist Jurisprudence and Child-Centred Jurisprudence: Historical Origins and Current Developments [Paper no: 2010-1-14] (Public Law and Legal Theory Series: University of Houston, 2010). Monsoor, T., Judiciary and Gender on Trial: Reported and Unreported Decisions of the Family Courts (Nymphea: Dhaka, 2001). Pereira, F., The Fractured Scales: The Search for a Uniform Personal Code (The University Press Limited: Dhaka, 2002). Schacht, J., Introduction to Islamic law (Clarendon Press: Oxford, 1964). Sobhan, S., Legal Status of Women in Bangladesh (Bangladesh Institute of Law and International Affairs: Dhaka, 1978). The Mainstream Law Reports, mlr on the Family Court Laws (Mainstream Printing & Publication: Dhaka, 2009).



Reports and Guidelines

Child Guardianship, Custody and Access (Family Law Project, Alberta Law Reform Institute, 1998). Gender Equity and Equality: Laws and Issues Relating to Women Affairs in Bangladesh (Manual) (Ministry of Women and Children Affairs, Government of Bangladesh: Dhaka, 2008). Interviewing Children and Young People (esomar World Research Codes and Guidelines, 1999). Marriage, Inheritance and Family Laws in Bangladesh: Towards a Common Family Code (Women for Women, 2005). Report on a Reference by the Government Towards the Possibility of Framing Out of A Uniform Family Code For All Communities of Bangladesh Relating to Marriage, D ­ ivorce, Guardianship, Inheritance etc. (The Law Commission, Government of the People’s Republic of Bangladesh, 2005). Uniform Family Code (Bangladesh Mahila Parishad: Dhaka, 1993).

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Annex TABLE 3.3 Reported judgments of the Supreme Court of Bangladesh on guardianship and custody Year 2003 Journal

Names of the Parties

Reference

Held

bld Vol. 23

1

Md. Rahmatullah (hcd) 2003 & Ors. Page 165 v. Most. Sabana Islam & Ors.

mlr Vol. 8

1

Ditto

The Guardians and Wards Act, 1890 Section 17 The rule, which is of tradition, is based upon the reason that if a woman marries a man, not closely related to the child, that will not totally exclude her from being ­considered fit for guardianship if she is otherwise held on consideration of all circumstances to be competent. In the appointment of a guardian of a ­Mohammedan minor under Section 17 of the Act, the Court is obliged to consider the application of the above rule of ­Mohammedan Law in a given fact and circumstances of the case. (hcd) 2003 The Guardians and Wards Act, 1890 Page 242 Section 17 Mother of the main child when she remarries a second husband who is a stranger to the minor becomes disqualified for appointment as guardian of the minor. But when no better claimant is found the mother, despite her marriage, may be appointed guardian of the minor child having regard to the welfare of the child as paramount consideration. Year 2004

Journal

Names of the Parties

Reference

Held

mlr Vol. 9

1

(ad) 2004 Page 71

Family Court Ordinance, 1985 Section 5(e) Custody of the minor involves the ­question of the welfare and the best interest of the child.

Karatul Ain alias Rita & Ors. v. Md. Salimullah Khan

Muslim Women’s Rights under Bangladesh Law

183

Year 2004 Journal

Names of the Parties

Reference

Judgment: 14.08.2002

Held Court has to take into consideration the ­welfare and best interest of the minor while deciding custody of the child. In that consideration the paternal grandfather of the child is appointed guardian and given custody of the minor in preference to the claim of the mother when she is ­married to a second husband. Year 2005

Journal

Names of the Parties

adc 1 (The Lawyers) Vol. 2

mlr Vol. 10

1

bld Vol. 25

1

Reference

Dr. Md. Rashidul (ad) 2005 Islam Page 357 v. Morsheda Parveen

Held

The Guardians and Wards Act, 1890 Section 25 The declaration of the High Court Division that the minor sons on attaining the age of 16 years would be at liberty to live with their father and they would be ­allowed to go to their father forthwith is maintained. Syeda Shamsun- (hcd) 2005 The Guardians and Wards Act, 1890 nahar Page 148 Section 39: Removal of Guardianship. v. Removal of person from guardianship when the Md. Khorshed ­welfare and best interest of the minor is not properly Anwar Khan served. Judgment: In appointing guardian of the person and property of 30.10.2004 the minor the court must have regard to the welfare and best interest of the minor. Mother is considered as the best person to be appointed the guardian of the minor. But she ­becomes unfit to be the guardian of her minor child on the ground of her remarriage and other grounds affecting the welfare of the minor when she can be removed from guardianship. Syed Azharul (hcd) 2006 Guardians and Wards Act, 1890 Amin Page 505 Section 19 v. Crucial to any process of dislodgement as sanctioned The Court of in section 19(b) is the Court’s express finding of fathers Senior Assistant incapacity. That is in turn premised in a Court’s satisJudge, 2nd Court faction of facts of incapacity pleaded and established & Family Court like any other fact by evidence. There is nothing in the impugned order to show that exercise has been undertaken in this case.

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TABLE 3.3 Reported judgments of the Supreme Court of Bangladesh on guardianship and custody (cont.) Year 2006 Journal

Names of the Parties

Reference

Held

No Judgment has been reported on guardianship and custody. Year 2007 Journal

Names of the Parties

bld Vol. 27

1

adc 1 (The Lawyers) Vol. 4

Farhana Azad v. Samudra Ezazul Haq

Reference

Held

(hcd) 2007 Constitution of Bangladesh, 1972 Page 384 Article 102: Right of mother to custody of infant children. The mother is entitled to the custody (Hizanat) of her male child until he has completed the age of seven (7) years and of her female child until she has attained puberty. The right continues although she is divorced from the father of the child unless she marries a second husband in which case the custody belongs to the father. Till the custody of the minor is decided by a competent Court, the mother is legally entitled to retain the custody of her four minor children. Abdul Jalil & Ors. (ad) 2007 Muslim Family Law Ordinance, 1961 v. Page 8 Section 7, 25(1) Mrs. Sharon Laily See also Family Court Ordinance, 1985 Begum Jalil 50 dlr Section 5(e) (ad) Admittedly appellant No. 1 Abdul Jalil of Civil Appeal Page 55 No. 56, 57 and 58 of 1995 and appellant Mrs. Sharon Laily Begum Jalil of Civil Appeal No. 59 of 1995 were man and wife and the latter having been divorced by the former in the month of May, 1995 following a breakdown of marital relations. The question of custody of their four minor children.

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Year 2007 Journal

Names of the Parties

Reference

Held It is now settled that the term ‘welfare’ must be read in the largest possible sense as meaning that every circumstance must be taken into consideration and the court must do what under the circumstances a wise parent acting in the true interests of the child would do or ought to do. The moral and religious welfare of the child must be considered as well as its physical well-being. Year 2008

Journal

Names of the Parties

Reference

Held

bld Vol. 28

1

Nadia Khalil v. Rudess Karim

mlr Vol. 13

1

Sefina Ferdousi @ Shimla v. Jaohar Kabir Judgment: 03.02.2008

(hcd) 2008 Family Court Ordinance, 1985 Page 599 Section 5(e) & 16(a): Guardianship and custody of children. A Court must not rely upon any untested allegation, especially when the same has the effect of depicting a woman with unchastely coupled with interference with her modesty. (hcd) 2008 Family Court Ordinance, 1985 Page 434 Section 5(e): Custody of Minor Child; Entitlement of divorced mother when she is remarried to a second husband. Law is well settled that a mother even after her ­divorce, is entitled to custody of her male child until he completes the age of seven years and a female child until she attains puberty. Mother loses her right to the custody of such child when she is remarried to a second husband. In determining the custody of a minor child, the best interest and welfare of the child shall be the paramount consideration.

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TABLE 3.3 Reported judgments of the Supreme Court of Bangladesh on guardianship and custody (cont.) Year 2008 Journal

Names of the Parties

Reference

dlr Vol. 60

1

(hcd) 2008 Guardians and Wards Act (viii of 1890) Page 12 Section 25

Farhana Azad v. Samudra Ezazul Haq

Held

See also: 27 Nowadays, working women having children not only bld perform duties at their place of work but also look after Page 384 their children. In the twenty-first century, it cannot be said that a working woman divorced by her husband is unworthy of the custody of her minor children being the minor, the petitioner should have the sense of ensuring the safe journey of the children to and from their school. Year 2009 Journal

Names of the Parties

Reference

Held

dlr Vol. 61

1

Bangladesh Jatiyo Mohila Ainjibi Samity (bjmas) v. Ministry of Home Affairs, Government of Bangladesh

2

Sefina Ferdousi @ Shimla v. Jaohar Kabir

(hcd) 2009 Article 102 of the Constitution of Bangladesh Page 371 The rule was not issued in the terms of Article 102(2) (b)(i) of the Constitution, but this Court can exercise such power when somebody is detained without any lawful authority or in an unlawful manner. In a proceeding like this, it is not the right of the parties but the rights of the children that are at issue. The General Assembly of the United Nations adopted a proclamation on November 20, 1959, The Declaration of the Child. (hcd) 2009 Guardians and Wards Act (viii of 1890) Page 86 Section 17 See also: Section 17 of the said Act is a clear pointer to the 13 mlr 434 central consideration in appointing a guardian of a minor child. It is the welfare of the child which will be of paramount consideration.

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187

Year 2009 Journal

Names of the Parties

Reference

Held A mother who is married to a stranger loses the preferential right of custody over a minor child but that will not totally exclude her from being considered fit for guardianship if she is otherwise held on a consideration of all circumstances in a particular case to be competent to be the guardian of such minor. This contention will find support from the case of Rohel Chaloon v. Ramele Khatoon reported in 22 dlr 245.

mlr Vol. 13 mlr Vol. 14

1

Ditto

2

Zahida Ahmed (Liza) v. Syed ­Nooruddin Ahmed & another Judgment: 16.03.2009

bld Vol. 29 blc Vol. 14

1

Ditto

(hcd) Ditto Page 434 (hcd) 2009 Constitution of Bangladesh Page 465 Article 102: Power to direct restoration of custody of minor. Family Court Ordinance, 1985 Section 5: Custody of minor; Best welfare of the child shall be the paramount consideration. According to the Mohamedan Law and also the Guardians and Wards Act, 1890, the father is entitled to the custody of his minor son after he has attained the age of seven (7) years. But this seven years factor as held, is not the only criteria to determine the custody of a minor boy. It has now been consistently held by the Apex Courts, that in deciding the custody of the minor boy the seven years age factor shall not be the only criteria. The welfare and best interest of the child shall be the paramount consideration. In that view of the matter the learned judges of the High Court Division directed the boy though aged 10 years to be restored to the custody of the mother during the pendency of the Family Court Suit. (hcd) 375 Ditto

1

Ditto

(hcd) 488

Ditto

188

Tamanna, Haq and Hossain

TABLE 3.3 Reported judgments of the Supreme Court of Bangladesh on guardianship and custody (cont.) Year 2009 Journal

Names of the Parties

Reference

blt Vol. 17

1

(hcd) 2009 Muslim Family Law Page 22 Custody of a Minor Girl. Admittedly the daughter has been brought up by her father in his own residence since her age of 3 months when the parents become separated from each other and the father appears to be careful about the education of his daughter and even today the daughter appears happy with the company of her father. In such situation I hold the view that the daughter Amena Begum will remain under the custody of her father as usual, but the father should allow Mst. Ratna Begum to see her daughter on the occasions convenient to both of them and the father will not be detrimental to the mental and physical health of the daughter and to develop her character.

Md. Nurul Huda Moulavi v. Mst. Ratna Begum & Ors.

Held

Year 2010 Journal

Names of the Parties

Reference

Held

blc Vol. 15

1

Jaymala Baroy @ Shamsun Naher v. Dilip Kumar Baroy

blt Vol. 18

1

Ditto

(hcd) 2010 Family Court Ordinance, 1985 Page 48 Section 5(e): Guardianship and custody of children. It is well settled that the mother is entitled to the custody of her male child until she has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of child, unless she marries a second husband in which case custody belongs to the father. (hcd) 2010 Ditto Page 15

Muslim Women’s Rights under Bangladesh Law

189

Year 2011 Journal

Names of the Parties

Reference

Held

MLR Vol. 16

1

Abdul Quddus v. Syed Moniul Ahsan Sajjad

BLC Vol. 16

1

Md. Nurul Islam v. Nur Ayesha Begum

BLC Vol. 16

2

Renu Begum v. Khandaker Enamul Mawla

DLR Vol. 63

1

Rayana Rahman v. Bangladesh

(hcd) 2011 Family Courts Ordinance, 1985 (Vol. XVII) Section 16A: Power of the family court to pass order relatPage 1–3 ing to custody of child. … the father of the children killed his wife and he and his second wife are accused in criminal case. The minor son and daughter are witness in the criminal case. In the circumstances the maternal grandfather filed a case for custody of the children in favour of the plaintiff. Meanwhile there is no allegation misusing the temporary custody. The learned judge of the High Court Division ordered to maintain statusquo and directed the Family Court to dispose of the suit within three months. (hcd) 2011 Mohamedan Law. Page 10 Sections 352 and 370. According to the Mohammedan Law father is bound to maintain his sons. … So the mother is the custodian of the minor son till he has completed the age of seven years. The maintenance of the child must be paid by the defendant (the father)… (hcd) 2011 Guardians and Wards Act (VIII of 1890) Page 791 Section 27 In view of the provisions of section 359 of the Mohammedan Law and Section 27 of the Guardians and Wards Act the father is entitled to sell the property of the minor for its benefit as a legal Guardian. (Ad) 2011 Constitution of People’s Republic of Bangladesh Page 305 Article 102: Custody. Custody–The detenu, we are inclined to direct that the detenu will stay with the father five days a week and two days a week, with his mother. The weekly two days will be from Thursday at 6.00 PM of Saturday, Respondent No. 3 will ensure handing over the detenu at the parent’s house of the petitioner and will collect the detenu from there according to the time. The petitioner shall stay with her son on those two days in her parent’s house. However, the parties will be at liberty to change the time and day by mutual agreements.

190

Tamanna, Haq and Hossain

TABLE 3.3 Reported judgments of the Supreme Court of Bangladesh on guardianship and custody (cont.) Year 2012 Journal

Names of the Parties

Reference

BLD Vol. 32

1

Anika Ali (Ad) 2012 v. Page 107 Rezwanul Ahsan

MLR Vol. 17

1

Ditto

(Ad) 2012 Page 49

BLC Vol. 17

1

Ditto

(Ad) 2012 Page 77

Held Guardians and Wards Act (VIII of 1890) Section 17(3): Custody of children. Within the modern concept of Custody and other matters concerning children, there is a requirement that the child should be allowed to express his views. This is a small progression from Section 17(3) of the Act, which provides that if the minor is old enough to form an intelligent preference, the Court may consider that preference. Welfare of the Child. The order in relation to custody of a child should never be presumed to be inscribed in stone. Matter such as custody must always remain fluid since charge in circumstances at any time require the terms of the custody of the child to be varied upon a fresh application in order to comply with the age-old principle that the welfare of the child is a paramount consideration and in modern parlance ‘the best interest of the child’ must be given due consideration. Convention on Right of the Child. Unless provisions of international instruments are contrary to our domestic laws, the beneficial provisions may profitably be referred to and implemented in appropriate cases. Ditto

Ditto

Muslim Women’s Rights under Bangladesh Law

191

Year 2013 Journal

Names of the Parties

Reference

Held

10 ADC

1

2013 Page 346

Family Courts Ordinance (XVIII of 1985) Section 5 The order passed by the Family Court directing the plaintiff No. 1 to make arrangement to take minor plaintiff No. 2 to see her grandmother, has lost its factual and legal impact. It also appears from the judgment and order of the Appellate Court that plaintiff No. 1 divorced the present petitioner and in the meantime, she has taken a second husband and is now living with her second husband. Since the grandmother of the minor plaintiff No. 2 died, we do not see any reason to interfere in the matter, although we feel very sad that the grandmother could not see her minor granddaughter, plaintiff No. 2 during her life time due to the consumption of time in the legal process already resorted to by the parties. However, the petitioner who is the father of the minor child, if so advised, may apply to the Family Court to see his daughter and if such application is filed the Family Court would consider the same keeping in mind that he, being the father, has every right to see his daughter. Family Court will not be out of its jurisdiction to allow the father to see his daughter in a suit filed by the plaintiffs for dower and maintenance. It is true that the instant suit has been filed by the plaintiffs for dower and maintenance; even then the Family Court will not be out of its jurisdiction to allow the father to see his daughter. We like to further observe that since divorce has already taken place between plaintiff No. 1 respondent and the defendant-petitioner, arrangement to see the minor plaintiff No. 2 can be made at neutral place, either at chamber or residence of any of the learned Advocate of the respective parties or at any other place at which parties may agree.

Suruzzaman v. Mrs. Farida Yasmin

192

Tamanna, Haq and Hossain

TABLE 3.3 Reported judgments of the Supreme Court of Bangladesh on guardianship and custody (cont.) Year 2013 Journal

Names of the Parties

Reference

LNJ Vol. 2

1

Anika Ali (Ad) 2013 v. Page 25 Rezwanul Ahsan

BLT Vol. 21

1

Ditto

(Ad) 2013 Page 185

Held Family Courts Ordinance (xviii of 1985) Sections 5 and 16(3) The parties have agreed to the amount of dower money, maintenance for the wife and child. They also agreed, though by application that the child who was at that time about two years and three months old, should remain in the custody of his mother and a schedule of access/visit was agreed upon since both the parties to the ill-fated marriage amicably agreed to abide by certain terms and conditions regarding to the payment of dower maintenance and custody as stipulated in the solenama, there is no illegality in the essence of the impugned judgment and order. Article 12 read with the Guardians and Wards Act (viii of 1890) Section 17(3): The applicability of provisions of international instruments. Unless provisions of international instruments are contrary to our domestic laws, the beneficial provisions may profitably be referred to and implemented in appropriate cases. Year 2014

Journal

Names of the Parties

Reference

Held

ALR Vol. 4

1

(Ad) 2014 (2) Page 179

Guardians and Wards Act (viii of 1890) Section 25 Custody of the son over 7 years of age, the father is not entitled to get custody of that son, the welfare of the minors would be better protected in the custody of the mother as she did not take a second husband and she took service in a school where the first son was admitted for proper education. If the father is interested to support his sons for better education and maintenance

Dr Md. Rashidul Islam v. Morsheda Parveen

Muslim Women’s Rights under Bangladesh Law

193

Year 2014 Journal

Names of the Parties

Reference

Held he may send the required amount of money to the present guardian i.e. the mother of the sons. She is bound to receive the said money for the benefit of the sons and for the satisfaction of her sons’ father. Further if the sons, after attaining the age of 16 years, desire to live with the father they may be allowed to go with the father forthwith. Year 2015

No Judgment on guardianship and custody has been reported. Year 2016 Journal

Names of the Parties

Reference

BLc Vol. 21

1

(hcd) 2016 Code of Criminal Procedure (V of 1898) Page 768 Section 100: Search for persons wrongfully confined. The question of guardianship cannot be decided under Section 100 of the Code and there is no scope to determine the guardianship of any minor child without having a proper suit to file.

Khandaker Abdul Halim & Ors. v. State & Ors.

Held

Year 2017 Journal

Names of the Parties

Reference

Held

adc Vol. XIV

1

(Ad) 2017 Page 147

Custody of Minor Considering the fact and circumstances, especially the facts that minor SAMM Zohailbuddin has already attained the age of almost seven years and is now residing along with his ailing elder brother in his father’s house and is being taken good care of by his father, grandfather and grandmother, we are inclined to retain the custody of his minor son SAMM Zohailbuddin until disposal of the family suit.

SAMM Mahbubuddin v. Laila Fatema

194

Tamanna, Haq and Hossain

TABLE 3.3 Reported judgments of the Supreme Court of Bangladesh on guardianship and custody (cont.) Year 2017 Journal

Names of the Parties

Reference

DLR Vol. 69

1

(Civil) 2017 Mohamedan Law Page 503 Section 352 A mother is the custodian of a minor son until he attains the age of seven years and of a minor daughter until she attains the age of puberty. However, on the second marriage of the mother, the father, by operation of law, becomes custodian. For such a custody no declaration by Court is necessary. The father has the right to maintain his minor child. Besides him, nobody may claim custody of his minor children.

Kamruzzaman (Md) @ Ratan (minor) v. Md. Dulal Mia.

Held

Chapter 4

Gender, Personal Laws and Practices of the Bengali Barua Buddhists of Bangladesh Shahnaz Huda

Figure 4.1 Celebrating Vesak at the Dharmarajik Buddhist Monastery in Dhaka. Photo by Mohamad Asad/DRIK

1 Introduction In Bangladesh, where the population is overwhelmingly Muslim, Buddhists, even though they number even less than one percent of the population, form the second largest religious minority group after the Hindus. By virtue of the Fifteenth Amendment, Article 2A of the Constitution of the People’s Republic of Bangladesh was substituted and religions other than that of the majority (i.e. the Muslims) were named for the first time in the document which is the apex law of the country. Although Islam continues to be recognized as the ‘state religion,’ other religions are also mentioned. Article 2A reads:

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357273_006

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The state religion of the Republic is Islam, but the State shall ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian and other religions. Bangladeshi Buddhists follow the Theraveda School of Buddhism and may be grouped into two—the tribal or indigenous Buddhists from the hill tract areas and the Bengali Buddhists (mainly Baruas) from the plains of Chittagong. The inhabitants of the Chittagong Hill Tracts (cht) region—i.e. the indigenous community (or what is referred to after the Fifteenth Amendment, under Article 23A of the Constitution, as tribes, minor races, ethnic sects and communities’), which include the Chakma, Marma, Tanchangya and other Jumma people, are primarily and almost entirely Buddhists. The cht includes the three districts of Rangamati, Khagrachhari and Bandarban, and is ‘surrounded by the Chittagong and Cox’s Bazar plains stretching along the bay of Bengal on the West, by the Indian States of Tripura and Mizoram on the North and East and by the Arakan region of Myanmar on the South and Southeast.1 The remaining Buddhists of Bangladesh are descendants of the ancient Chittagonian Bengali Baruas. Individual Buddhists, Buddhist families and communities are not necessary confined to the above areas only but have a presence, however small, in other parts of Bangladesh where they have migrated, either temporarily or permanently, for a variety of purposes such as education and employment. The Baruas Buddhists are those ethnic Buddhists who are Bengali speaking and are, as mentioned previously, primarily concentrated in the plains of the Chittagong region of Bangladesh. Their uniqueness lies in the fact that whilst most Bengalis are followers of the Muslim and Hindu religions, ‘for historical reasons that are not clear, the Barua have survived as a Buddhist enclave in the midst of the two giants of Islam and Hinduism.’2 The Baruas Buddhists are said to be of ancient origin and in fact the origin of the name Chittagong, is Chaitya-Grama which means ‘town with Buddhist shrines.’3 Magh was the general term used for Buddhists and the Baruas were sometimes termed as Rajbansi, i.e. of royal descent.4 The word ‘Barua’ came from ‘Baru’ meaning great and ‘Arya’ meaning noble ones.5 Another authority explains the etymology of the name Barua as being derived from two words, 1 Human Rights Summer School & Community Law Reform (hrssclr). Tying the Knot: ­Community Law Reform & Confidence Building in the Chittagong Hill Tracts; Rahman, Dr. Mizanur and Shawon, Tanim Hussain (eds.); (Dhaka: hrssclr 2001) at p. 4. 2 http://joshuaproject.net/people_groups/16535/INIdentity. 3 http://www.digplanet.com/wiki/Barua_%28Bangladesh%29. 4 Ibid. 5 Ibid.

Practices of the Bengali Barua Buddhists of Bangladesh

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bara meaning ‘renowned,’ and ua meaning ‘ruler.’ In ancient times, the most highly ranked military ruler of Chattagram under the king of Arakan was a man called Barua.6 Originally followers of Mahayana Buddhism, now the Buddhists in ­Bangladesh (similar to the Buddhists of Myanmar, Sri Lanka and Thailand) follow Theravada Buddhism whose sacred literature is the Tripitaka. According to Banglapedia, in the cht and Chittagong, “a Buddhist minority has been practicing Theravada Buddhism long before the Moghuls and the British arrived in Bengal. In course of time, these Buddhists reformed their Sangha7 and in 1887 founded the Chittagong Buddhist Association, believed to be the first Buddhist society to be formed in the sub-continent.”8 2

Buddhists and the Law in Bangladesh

The original cannons of Buddhism, the most important of which is the Tripitaka, are hardly remembered. In the course of its chequered voyage within the sub-continent, Buddhism had lost much of its original characteristics and has assumed local variations, which have sometimes been distorted beyond recognition. It is sweepingly declared that the Buddhists in Bangladesh (as well as in India) follow the Hindu law. On closer scrutiny it appears that in Bangladesh, while Hindu law is applicable and is applied to certain family matters of the Buddhists, in other cases it is not. In case of the latter issues, such as those related to the solemnization of marriage and other ceremonies, customary practices continue to prevail. According to Professor Shukomol Barua, from the very beginning Bengali Buddhists have been following the Hindu law of undivided India.9 Unlike the Buddhists of other Asian countries such as Sri Lanka, Myanmar and Thailand, in most personal family matters such as marriage and the devolution of property of husband and wife to son /daughter, Bengali Buddhists do not follow their own particularized law even though they may have their own customs and rituals. On the contrary, they follow the inheritance laws followed by the Bangladeshi Hindus.10 6 7

http://joshuaproject.net/people_groups/16535/INI. Sangha refers to the community of Buddhists. The term may be used to signify monks and nuns but can be used also to refer to Buddhists in general. 8 Asiatic Society of Bangladesh. Banglapedia Vol. 2; (Dhaka: Asiatic Society of Bangladesh 2003) at p. 299. 9 Barua, Professor Dr. S­ hukomol. Buddhodharme Narir Adhikar O Morjata ebong Bortoman Shamajik ­Obostha (The Rights and Status of Women under the Buddhist Religion and the ­Present Social Situation); (Unpublished version; manuscript with the author: No Year). 10 Ibid.

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Huda

Legally, the formal law of the Bangladeshi Buddhists is the law which is followed by the Hindus of the Dayabagha School. Renowned authors of Hindu jurisprudence and law have been unanimous in their agreement regarding the applicability of Hindu law to the Buddhists of the Sub-continent. At present there appears to be no disagreement that, in the case of personal family matters, Hindu law governs not only the Hindus but also Buddhists, Jains and Sikhs. Rakshit cites authorities specifically including the ‘Chittagong Buddhists or Baruas of Chittagong’ within the ambit of Buddhists.11 In the case of Karatala Lakshmi Bihar represented by Dharmadarshi Bikshu being dead Sreemat Amrita Nanda Mahathero (Appellant) vs. Hriday Ranjan Chowdhury & Ors. (Respondent),12 the Appellate Division of the Supreme Court of Bangladesh weighed in to support the proposition that the Buddhists fall within the scope of Hindu personal laws. Leave was granted to consider whether the Buddhists in Bangladesh are governed by the Hindu Law in matters of succession. The fact was that the plaintiffs and the defendants, both Barua Buddhists, accepted the proposition that the Buddhists of Bangladesh are governed by Dayabagha Hindu Law in matters of succession. The Appellate Division disagreed with the earlier decision of the High Court Division in the case of Ajitananda Vikshu vs. Aggrbangsha,13 terming its decision as ‘very sweeping.’ In the latter case, the hcd had declared that “… it cannot be said that the Buddhist of our country are governed by Hindu Law with regard to succession.” The learned Judge of the Appellate Division noted that in that case, the decision was based ‘on Indian amendments of 1956 which have not been made in the Succession Act in Bangladesh.’ In 2011, the Law Commission of Bangladesh suggested the enactment of a law to provide for the validity of marriages between Hindus, Brahmos, Buddhists, Jains and Sikhs and their different castes, sub-castes and sects. In this proposed law, entitled the Hindu Marriages Validity Act of 2001, it is clearly defined that the word “Hindus” include persons professing the Brahmo, Buddhist, Jain or Sikh religion. In the statement of reasons given by the ­Commission it is again clearly mentioned that “Hindus, Brahmos, Buddhists, Jains, and Sikhs and their different castes, sub-castes and sects are governed by the existing principles of Hindu law.”14 11

Rakshit, Sreemridulkanti. The Principles of Hindu Law—Personal Laws of Hindus in Bangladesh and Pakistan; Fifth Edition; (Dhaka & Chittagong: Kamrul Book House 2005) at p. 66. 12 40 dlr (1988) (ad) 137. 13 32 dlr (1980) 187. 14 http://www.lc.gov.bd/reports/36.pdf.

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Apart from the Buddhists of the plains, the eleven tribes of the cht have their different languages, traditions, customs, usages, systems of social justice and also judicial systems, which have been recognized formally and informally by the Constitution of Bangladesh, statute laws and rules.15 Though the indigenous people have no written provisions on personal laws, the Bawm indigenous community has recently obtained a formal written code, and the Marma follow a set of written laws on inheritance of immovable property, such as the Digest of Buddhist law and Law of Menoo recognized by the Myanmar State. Chakma, Tanchangya and Tripura also tried to compile their customary laws and principles but failed to do so.16 3

Barua Buddhists of Bangladesh

The Barua Buddhists have been demanding separate laws to govern their own family matters which will be discussed in some detail below. From ancient times, Bengali Buddhists have followed their unique ritualistic practices with regard to the important events of their lives such as birth, marriage and death. Although some practices have naturally been affected by the changing times, modernization and globalization, Buddhists continue to follow many of their own ancient social practices. This adherence to customs and usages is not a new phenomenon. For example, even though the British, during their reign of Burma, legislated on ‘Buddhist law,’ Professor Rhys Davis contended that the term Buddhist law was based on the ignorance of the English or their lack of understanding of the relationship between law and the Buddhist religion. According to him, No Buddhist authority, whether local or central, whether lay or clerical, has ever enacted or promulgated any law. Such law as has been ­administered in countries ruled over by monarchs nominally Buddhist has been custom rather than law.17 15

Manusher Jonno Foundation (mjf). Traditional Personal & Family Laws of Chittagong Hill Tracts Indigenous People; (Dhaka: mjf 2007) at p. 803. 16 Ibid. 17 Davids, T.W. Rhys. “Buddhist Law” in vii Encyclopedia of Religion and Ethics; 2nd ed. (Edinburg: T. & T. Clark 1932) at p. 82, cited in Hla, Aung U. “The Effect of Anglo-Indian ­Legislation on Burmese Customary law,” Family Law and Customary Law in Asia: A Contemporary Legal Perspective, Buxbaum, David C. (ed.); (The Hague: Martinus Nijhoff 1968) at p. 82

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Thus, observance of customary rites and ceremonies are part and parcel of the Buddhist social system. Such rites and ceremonies have not remained static or unaltered through the decades. Undoubtedly, within various Chittagonian Barua Buddhist social ceremonies and occasions, many Hindu, Muslim, ­Arakanese and English customary practices have been assimilated.18 From the beginning of the new millennium the demand for a separate law for Buddhists began to gain momentum. A committee was set up to draft a law intended mainly for the Barua Buddhists and eventually after many discussions and meetings a draft was drawn up. Attempts to involve the relevant organ/s of the State to take steps to formally codify the draft legislation also reached a certain stage. For various reasons the process somewhat stalled or slowed down. Below is a brief discussion on the customs and rites followed by the community, any applicable law as well as on the draft on Buddhist Law drawn up by the Buddhist Law Drafting Committee. 3.1 Marriage of Barua Buddhists and Related Issues According to the draft by the abovementioned Committee, the concept of marriage amongst the Buddhists is different from that which is generally recognized as Bibah. Instead of the common term ‘bibah/bibaho’ used to generally connote marriage, Buddhists prefer the term ‘abah’ (abaha/aboho). The latter word, i.e. abaha, means going forward and therefore marriage is the social union of a man and a woman, the purpose of which union is to go forward/ towards the future, according to socially recognized processes, for the purpose of the procreation/creation of the next generation. Amongst the most important ceremonies of the Buddhists in Bangladesh, are those connected to the institution of marriage. The various ethnic groups of Bangladesh have their own systems and customs of marriage.19 The general custom is that marriages are arranged by the parents. However, in modern day Buddhist families, the bride and the groom usually have the final say in the matter and in some cases chose their own partners and have ‘love marriages,’ Even in the case of the latter, the formality of proceeding through a proposal is nevertheless maintained. Like the Hindus, consulting of horoscopes is customary: 18

19

Barua, Dr. Dipankar Shrigyan. Bangali Buddhoder Itihas Dharma O Sangskriti (­History, Religion and Culture of Bengali Buddhists); (Chittagong: Bangladesh Pali Shatiya Shamiti 2007) at p. 223 (translation mine). Barua, Dr. Dilip Kumar and Ando, Dr. Mitsuru. Syncretism in Bangladesh ­Buddhism—The Role of Hindu Mythology and Ritual in Buddhist Popular Practices; (Nagoya: Dilip Kumar Barua and Mitsuru Ando 2002) at p. 183.

Practices of the Bengali Barua Buddhists of Bangladesh

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For a suitable match both parties consult horoscopes as well as examine the prospective spouse’s physical and mental condition, social status, pecuniary circumstances and the like. Horoscope is consulted for every aspect of the marriage.20 According to Barua and Ando … astrology plays an important customary and social role in all aspects of marriages of Barua Buddhists and assimilation with Hindu practices is apparent. This use of horoscope by the Barua Buddhists is identical with their Hindu neighbors. In fact, Barua Buddhists often consult Hindu Brahman priests for horoscope readings related to the marriage partner. The wedding date and every detail of the marriage are also fixed according to advice from these Brahmin.21 Buddhist marriages are solemnized by their own customs and rituals which may in some cases be similar to Hindu customs but not always identical. Here we see a clear divergence between what is required from the legal point of view, given that Buddhists follow the Hindu law, and the practice on the ground. Like the Hindu community, residence after marriage is patrilocal and married Barua women also wear vermilion in the parting of their hair and conchshell bangles to signify their married status.22 As mentioned earlier, social practices have infiltrated into Buddhist customary practices. For example, nowadays, the practice of paying bride-price in cash is being replaced by that of dowry.23 For Barua Buddhists, among the life cycle rites and rituals, marriage is no doubt the most significant one.24 Even though unlike Hindu marriages, Buddhist marriages are not considered to be sacramental unions, amongst the Barua Buddhists community it is nevertheless considered to be an extremely important, even a sacred union. One author maintains that in his own survey of Baruas in rural areas of Chittagong District, respondents overwhelmingly

20 Ibid. 21 Ibid. at p. 184. 22 https://joshuaproject.net/people_groups/16382/IN. 23 http://joshuaproject.net/people_groups/16535/IN. 24 Chatterjee, Aparna. “From Bangladesh to India: A Study on Syncretism and Distinctiveness through the present Marriage System of Theravada Buddhists of North Bengal.” International Research Journal of Human Resources and Social Sciences (irjhrss), Associated Asia Research Foundation (aarf) 2015 (2) (11) Nov. pp. 41–61 at p. 44.

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maintained that marriage is a sacred vow for them and that therefore in the popular belief of Barua Buddhists, it is considered to be a sacrament.25 The role of Buddhist monks or Bhikkhu in marriage is not only extremely important but in fact the presence of Bouddha Bhikkhus (vante) is considered essential.26 The Bhikkhu recites mangal-sutra in Pali. Unlike a Hindu marriage, “there is no role of Brahmin priest in Barua marriage.”27 The blessings of the Bhikkhu, before the actual marriage, is considered vital to validate the ceremony. Such blessings are seen as not only necessary to ensure a happy life for the new couple but also essential to give religious validity to the union. Social beliefs and rites have an important role in Barua weddings. The draft Buddhist law28 of 2011 focuses mainly on the Buddhist Baruas, since it is primarily referred to as being applicable to “those followers of the Buddhist religion who are the permanent residents of the plains of the country.”29 According to the proposed law, any male and female can be united in marriage provided there is no living spouse of either; they do not suffer from any mental or physical defect; are not below the age of eighteen years of age if female and below twenty one years of age if male and have given their unqualified consent to the marriage. It also requires that the parties not be within the prohibited degrees of relationship according to consanguinity or kul, bongsho or gaiti (words which in various ways mean lineage, kinship etc.). Section 5 gives a list of 16 persons who can give consent to the union other than the bride and groom which appears to be inconsistent with the above provision regarding consent and age. The essential stages of the ceremonies related to the marital union as mentioned in the draft are discussed below.30 The first stage deals with the religious ceremonial requirements (Section 6). In the presence of the family members of both the bride and groom, the invited Buddhist Bhikkhu will have all those gathered ‘take refuge’ in the Pancasila

25

Barua, Dilip Kumar. Marriage Ceremony of Barua Buddhist in Bangladesh—A Study on Popular Rites and Rituals; http://echolab.ddo.jp/Libraries/パ ー リ 学 仏 教 文 化 学 / パ ー リ 学 仏 教 文 化 学 (16)%20(20021220)/パ ー リ 学 仏 教 文 化 学 %20(16)%20 %20005Barua%20Dilip%20Kumar「 Marriage%20Ceremony%20of%20Barua%20 Buddhist%20in%20Bangladesh%20:%20A%20Study%20on%20Popular%20Rites%20 and%20Rituals」 .pdf at p. 44. 26 Op. cit. Chatterjee (2015) at p. 55. 27 Ibid. 28 English translation of the Bangla version of the draft law by Huda, Shahnaz—author. 29 Section 1(3). 30 In translating the draft Buddhist law, which is in Bangla, the study on the marriage ceremony and the rites pertaining thereto, as explained in Barua and Ando (2002), have been used.

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(i.e. the five precepts) and thereafter recite the Mangala Sutta or the blessings [Section 6(1)]. After such instructions, the bride and groom will themselves be blessed and given advice regarding life. In many cases, the above religious rites are performed at the Buddhist temple although they may also be performed at home. At the second phase, after the above religious rituals are performed by the Bhikkhus, a lay priest will perform the necessary social ceremonies and will address the couple, seated upon their designated seats, and utter the Buddhist nuptial mantras in Pali, calling upon them to live their lives in accordance with the precepts of the Buddhist religion. According to Barua and Ando, the lay priest is any ‘competent man selected from the community’ and the individual is usually an adult male who can recite Pali scriptures well, but he may be from any group or locality of the Buddhist society.31 This non-professional priest of the community or mantra data performs the actual rites for the ceremony.32 The draft law for Barua Buddhists also provides, in Section 7, for the registration of Buddhist marriages for the purpose of proof of such marriages. With the enactment of the Hindu Marriage Registration Act of 2012 of Bangladesh, it is to be assumed that Buddhists can also avail the provisions of this Act to register their marriages. However, there appears to be some confusion about this, both amongst Buddhists as well as Hindu Marriage Registrars, one of whom confirmed that they do not register Buddhist marriages. The Act of 2012 in its preamble clearly states that it is a law “enacted for the purpose of providing for the registration of Hindu marriages with the aim to preserve documentary evidence of sacramental marriages of Hindus.” It omits to mention Buddhists, Sikhs etc. as coming under the purview of the Act and further creates confusion since it uses the phase ‘sacramental marriages’ whereas essentially Buddhism does not recognize marriage as a religious duty or a sacrament. In India, the four laws related to the family matters of Hindus codified in the 1950’s33 specifically mentions that the laws will apply not only to Hindus but also to persons who are Buddhists, Jainas or Sikhs by religion. Unlike Hindu marriages in Bangladesh, which are essentially indissoluble unions, the draft family law proposes for ways to dissolve the marital tie, for which application may be made to the Family Court by either the husband or the wife. At present it may be presumed that, like the applicable Hindu law of Bangladesh, there is no dissolution of marriage amongst Buddhists since the former disallows such termination. 31 32 33

Op. cit. Barua and Ando (2002) at p. 184. Op. cit. Chatterjee (2015) at p. 55. The Hindu Marriage Act, 1955; The Hindu Succession Act, 1956; The Hindu Adoptions and Maintenance Act, 1956; The Hindu Minority and Guardianship Act, 1956.

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The draft includes provisions for the declaration of a marriage as void or voidable on certain grounds as well as for judicial separation and divorce (see Sections 8 and 9). Section 11 provides for divorce by mutual consent while Section 10 deals with the right to seek restitution of conjugal rights. In all cases the decree/order of the Family Court is required and therefore no extra-judicial processes are allowed or recognized. Widow Remarriage is allowed under the Act (Section 13). An examination of the draft provisions shows that in many cases, but not all, there a­ ppears to be similarity with the applicable Indian Hindu law of marriage, separation and dissolution as codified under the Hindu Marriage Act of 1955. At present the Hindu Widow’s Remarriage Act of 1856 legally applies to Buddhists. 3.2 Succession under Buddhist Law In case of intestate succession, the draft law in Chapter iii (Section 15) divides the heirs into three classes. Each class will take before and exclude the later classes. Within the first class of heirs of a male Buddhist, according to Schedule 1, the inclusion of the following heirs are proposed: Child/children (male or female) Widow Husband (appears to be included by mistake) Mother Pre-deceased son’s son Pre-deceased son’s daughter Pre-deceased daughter’s son Pre-deceased daughter’s daughter Widow of pre-deceased son Pre-deceased son’s pre-deceased son’s son Pre-deceased son’s pre-deceased son’s daughter Widow of pre-deceased son’s pre-deceased son According to Section 17(a) of the proposed law, if there is more than one widow, they will together inherit one share and the son, daughter and mother will each get the same share [17(b)]. In the case of a deceased female Buddhist, the list of heirs is also given in the draft (Chapter iv). Departing completely from the Hindu concept of ‘­widow’s estate’ or the limited rights over inherited property of any Hindu ­female whether daughter, mother and so forth; the draft states that:

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A Buddhist woman shall have absolute rights over all types of property, whether movable or immovable, in whatever manner it may have been acquired (Section 21). In case of the deceased being a female, the following persons will be her heirs under Section 22 of the draft: (a) (b) (c) (d) (e)

Son; daughter; son of pre-deceased son; daughter of pre-deceased son In the absence of the persons mentioned in (a), her husband’s heirs In the absence of heirs mentioned in (a) and (b), mother and father In the absence of heirs mentioned in (a), (b) and (c), father’s heirs In the absence of heirs mentioned in (a), (b), (c) and (d), mother’s heirs

Chapter vii deals with Wills and Gifts. In the preliminary draft, the power of a Buddhist to make wills was denied since under Buddhist belief, after death the wishes of the deceased do not have any consequences. However, in the draft of 2011, Section 25 clarifies the right of a Buddhist to make a will. A Buddhist can, under the proposed law, make a gift of his/her property and the necessary conditions are laid down in the draft. 3.3 Adoption In Chapter viii, the draft law deals with adoption and maintenance. Section 27 (1) states that any adult Buddhist, who is physically and mentally competent (which may be construed to include both male and female Buddhists), whether married or single, can adopt any Buddhist child (which may again be construed to include both male and female child, i.e. son or daughter). If a married couple wish to adopt, the consent of both husband and wife is necessary. The voluntary consent of the natural parents is also necessary when a minor is taken into adoption. In the case of an adult being taken in adoption, the adoptees consent is required. The intention of the adoption may, under the draft, include any of the following reasons: a) For the purpose of creating an heir b) Through altruistic feelings towards a child abandoned by the father/ mother c) Through compassion for a extremely poverty stricken and deprived child (Section 28) Section 29 includes an unusual provision related to adoption which does not exist in the applicable law related to Hindu adoption in Bangladesh, nor in the

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Indian context. It provides for the return, before the attainment of majority, of the adoptive ‘child’ to the natural parents by their repaying all that has been spent by the adoptive parents for the upbringing of the child (Section 29). The adopted child will become an heir to the adoptive parent(s) like a natural son but only if the child has been taken in adoption for the purpose of creating an heir. The inheritance right of an adopted child appears to be dependent upon the purpose or intention of the adoption (Section 31). If the person taking in adoption has no natural child, has not taken in adoption for the above purpose i.e. to create an heir, and if he adopts for altruistic reasons, then such adopted child will get half of the adoptive parent(s) property and the remainder will go to the other heirs of the deceased according to the laws of inheritance [31(2)]. Again, if the person adopting has no natural child; has not taken any child in adoption for the purpose of creating a heir and neither does s(h)e have any other heir and the purpose of the adoption is based on charity or compassion for a child who is ‘extremely poor’ and deprived, then such child shall inherit the entire estate of person adopting [31(3)]. An earlier draft had done away with the necessity of any religious ceremony for the validity of adoption but Section 30 of the present draft lays down the social and/or religious ceremonies required for adoption. 3.4 Maintenance According to the proposed legislation, the wife of a Buddhist will be entitled to lifelong maintenance from her husband. This right depends upon her remaining a Buddhist [Section 32(a)]. Her right will also be lost if she is of ‘bad character or quarrelsome’ or if she has abandoned her kul (here probably signifying clan or lineage) [32(b) and(c)]. The draft of the family law gives a Buddhist wife the right, under specific conditions, to seek separate residence and maintenance. Even though a Hindu wife (and therefore a Buddhist wife) is entitled to similar rights under the Hindu Married Women’s Right to Separate Residence and Maintenance Act of 1946 applicable in Bangladesh, lawyers and even Family Court Judges are often unaware of this.34 The proposed law of the Barua Buddists also deals with the issue of maintenance of aged parents. As regards such maintenance, the secular Parent’s Maintenance Act,35 enacted by the Bangladeshi Parliament also formally a­ pplies to the Buddhist community and under this law, both the son and daughter have the duty to maintain their parents.

34 35

Personal interview with Barrister Jyotirmoy Barua, Advocate Bangladesh Supreme Court. Pita Matar Bhoronposhon Ain, 2013; Act No. 49 of 2013.

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The projected law for Barua Buddhists also imposes a duty upon a predeceased husband’s parents, in case of necessity of their son’s widow and their own financial solvency, to provide maintenance to their widowed daughter-inlaw. Here, we see a divergence with the prevalent law pertaining to Hindus and Buddhists under which in-laws have no such legal obligation, unless they have in their possession property belonging to their deceased son. Even though the draft mentions that Buddhist marriages will be dissoluble, it does not appear to deal with the question of post-divorce maintenance. 3.5 Minority and Guardianship A minor is a person who is below the age of 18. Guardians of a Buddhist minor, according to the draft, include the following: • The natural guardian • The guardian appointed through a document executed by the father and/or mother of the minor • Guardian appointed by the Court with competent jurisdiction • Person empowered by the ‘Court of Wards’36 The natural guardian of both the person and property of a Buddhist minor include: a)

b)

In the case of a son or an unmarried daughter, firstly the father and in the absence of the father, the mother. In the case of a child below five years of age, the right of custody will generally be with the mother. In the case of illegitimate son or illegitimate unmarried daughter, firstly the mother and in the absence of the mother, the father. In the case of a married female, her husband.

Only a Buddhist can be the guardian of a Buddhist child; a Buddhist who has become an ascetic cannot be a guardian. In the case of adopted child, the father shall be the guardian and in his absence the mother. The draft law clarifies that the guardian of the minor can take all steps which may be legally necessary for the benefit of the minor or her/his property.

36

Lack of clarity as to which Court this refers to.

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4 Conclusion Although small in number, the Buddhists have an ancient history in Bangladesh and unsubstantiated legend even has it that Gautama Buddha himself spread the religion in the area. Probably due to their precarious position as a minority community within Bangladesh, and due to natural integration within the largest religious minority group of Bangladesh, i.e. the Hindus, many Barua customs and practices have been subsumed within the social and cultural practices of the Hindu community. Inter-marriages between Baruas with non-Buddhist Hindu communities are not uncommon. Such marriages may take place under the Special Marriage Act of 1872. Despite the proposal of the Law Commission of Bangladesh for the enactment of a law entitled Hindu Marriages Validity Act of 2001 (mentioned earlier) to give validity to such inter-religious marriages, it has not yet been enacted. Although Hindu law is generally considered to encompass the Buddhists of Bangladesh, such law in fact applies only to certain sections of and not the entire Buddhist community. It is accepted that the Bengali Barua Buddhists of the plains follow the Dayabagha Hindu law. On the other hand, the authority of established usages and tribal customary law has been acknowledged as source of law for certain sections of the Buddhist population who are neither Bengali, nor plain dwellers. This has been well recognized by the Constitution, Regulation37 as well as by established precedents. The law followed by Bangladesh Buddhists may therefore differ depending upon their place of origin and factors such as ethnicity and language. The latter trait is one which, from the very beginning, has been a generally recognized pre-requisite of the Dayabagha School; i.e. ever since the two main Schools of Hindu law came into existence after the Smriti texts became the subject of interpretation by Hindu scholars. The existence of the Dayabagha School of Hindu law (also known as the Bengal School), is based on the interpretation of the sacred texts by the ancient Hindu pundit Jimutavana which was accepted in those areas of the Subcontinent inhabited by the Bengali speaking populations such as West Bengal, East Bengal (now Bangladesh) and Assam. Buddhists, who are not Bengali, do not live in the plains and are also ethnically exclusive, do not come within the purview of the Hindu Dayabagha law. The highest Court of the land has in several instances upheld and reiterated the contention that the social and customary practices of particular groups of varying ethnicity, language and in particular their place of abode will determine the law they are to be governed 37

Chittagong Hill Tracts Regulation, 1900.

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by. For instance in the 1998 case of A.S. Prue Chowdhury vs. K.S. Chowdhury38 and the later case of Rajkumari Unika Devi vs. Bangladesh and others,39 the Appellate Division clarified unequivocally that with regard to particular issues such as succession, the indigenous communities of the Chittagong Hill Tracts who are not Bengalis can and do follow their own unique ‘law’ based on their own socio-cultural norms. The decision of the Appellate Division, in the case of Karatala Lakshmi Bihar vs. Hriday Ranjan Chowdhury & Ors.,40 (discussed above) reiterating that the ‘Buddhists of Bangladesh are governed by Dayabagha Hindu Law,’ was cited by certain of the parties in two cases—Aberchai Mog vs. Joint District Judge, Khagrachari41 and Chailapru Marma vs. Land Appeal Board and others42 disposed of in a single judgment43 and involving three generations of a Marma family relating to the succession of the property of one Dogya Mog. The Court in the above matters opined that the findings of the Court in Karatala L. Bihar vs. H.R. Chowdhury44 should be confined to the facts of the said case: … where the contending parties belonged to the Buddhist (Bengali) Barua community (who are not members of any non-Bengali ethnic groups including Marma, Chakma, Tanchangya, etc.). and such findings cannot be the ratio decidendi in the instant case (i.e. ­Aberchai Mog et al.) … where social customs are to apply. It was established that “considering the role of social customs being played in all spheres of the respective tribes of the (3) three districts of the cht the legislature has duly given recognition to it having force of law.” From the above discussion, it appears that one can safely assume that, ­unlike non-Bengali Buddhists, the Bengali Baruas, who are the followers of Buddhism, clearly follow the Hindu Dayabagha law. However, as should be apparent from the discussions above, it is far from being so straightforward and clear cut. In reality, Barua Buddhists of Bangladesh follow their own customary practices regarding many aspects of their family life which are culturally, 38 6 blt (1998) (ad) 109. 39 12 blt (2004) (ad) 141. 40 40 dlr (1988) (ad) 137. 41 Writ Petition No. 3285 of 2009. 42 Writ Petition No. 2829 of 2006. 43 Since common questions of law and fact were involved in both the Rule Nisi, they were heard together and disposed of by a single judgment. 44 40 dlr (1988) (ad) 137.

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socially and spiritually important to them. Most of such ceremonies unique to Baruas (and to other Buddhists also, although they may differ in details as to the rites and rituals), are those related to birth and childhood, including for example the way a pregnant woman is to be treated and how she is to be fed; the naming ceremony of the baby; his/her first tasting of rice and so forth. There are ceremonies related to the funeral of a Barua Buddhist and of course those related to marriage as has been discussed earlier. Consequently, although there appears to be adherence to Hindu Dayabagha law as far as the issues of inheritance to property is concerned; in other cases Buddhists continue to follow their own customs. Even in those cases where the Hindu law is followed, as well as in almost every other aspect of family and personal laws, the Buddhist community feel the need for the enactment of a separate law of their own which would adequately express the rules, laws and customs of the Buddhist (mainly Barua) population, thereby recognizing them as an entity, quite distinct from the Hindus of Bangladesh. As a first step towards fulfilling this ambition, the draft of Buddhist law was prepared. The draft law, in several cases, has tried to introduce more gender parity within the family law of Barua Buddhists than the applicable Hindu law of Bangladesh. Examples include the introduction and formal inclusion of the concept of various forms of dissolution of marriage, which would thereby allow a woman to end an unhappy union, as well as the concept of monogamy for both males and females. Under the Bangladeshi Hindu law, Hindu males and therefore Buddhist males legally have the right to commit ‘unlimited polygamy’ whist a Hindu wife has no way to end an unhappy or dangerous union. Again, the projected law addresses some of the gender discriminatory provisions of the law relating to adoption allowing for the adoption of a daughter as well as giving a single woman the right to adopt. These are undoubtedly laudable efforts, but in certain matters patriarchal notions of ‘unchastity,’ i.e. ‘the character’ of the woman and so forth persist to the detriment of the rights of women. Again, the husband continues to be regarded as ‘guardian’ of his wife even if, presumably, the wife is an adult. It is hoped that the drafters of the law will reconsider the aspects of the draft which are gender discriminatory in the present context of society and consider the views of their female counterparts. The circumstance of Bangladesh Buddhists being under the jurisdiction of Hindu law was/continues to be somewhat less clear than that of the Buddhists in India. The Hindu law of personal matters, which legally applies to Buddhists, remains virtually and almost completely uncodified in Bangladesh, unlike in the Indian context, where through various enactments which have clearly codified the Hindu laws relating to marriage, adoption, maintenance, succession and so forth, Buddhists (as well as Sikhs and Jains) are specifically

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included within the definition of Hindus. Despite such clarity, even in India questions have arisen regarding the justification of such inclusion. A law suit has in India exemplified the feelings of frustration felt by communities such as Sikhs, Buddhists and so forth for being treated as ‘Hindus’; thereby denying them their individualistic and separate worldview. Sikh scholar Birendra Kaur accessed the Punjab and Haryana High Court45 “questioning the constitutional and past legislative attempts to obliterate identities of separate faiths by recognizing them under the broad religious connotation of Hindus.” Although rejected summarily by the latter Court, the Supreme Court bench of Chief Justice Altamas Kabir, Justices S.S. Nijjar and J. Chelameswar not only entertained Kaur’s appeal but also framed the question for adjudication.46 This author has not been able to access the Indian Government’s response to the above. Coming back to Bangladesh, the movement to introduce a separate law for the Buddhist community has failed to gain sufficient momentum. Recent horrendous and shameful incidents of violence against Buddhist communities, including desecration of their holy places, have perturbed and alarmed the community and understandably may have shifted the focus to the more immediate and pertinent questions of their security and safety. However, it is still the hope of the Buddhist citizens of Bangladesh that at some point in the future, the community will be recognized as an entity separate and distinct from the Hindus of Bangladesh and as such entitled as of right to their own distinct legal regime.

45 46

Writ Petition No. 18634 of 2011. http://timesofindia.indiatimes.com/india/Can-Hindu-law-cover-Sikhs-Jains-asks-SC/ar ticleshow/17201306.cms.

Chapter 5

Personal Laws of the Indigenous Peoples of the Chittagong Hill Tracts, Bangladesh: A Gender Perspective Rani Yan Yan and Raja Devasish Roy

figure 5.1 Winter in a Mro village, Chittagong Hill Tracts, Bangladesh. Photo by Mahmud/DRIK

1 Introduction In Bangladesh, somewhat like several other former British colonies in Asia— including India, Pakistan and Malaysia—a form of legal pluralism is practised. This is particularly true in the context of personal laws, which govern marriage, divorce, maintenance, child custody, inheritance and so forth. Thus, personal laws of Bangladeshi citizens depend upon the religious or ethnic affiliation of the people or community concerned.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357273_007

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Formal statutes regulate certain aspects of personal laws, particularly in the case of Muslim, Hindu and Christian Bengalis. However, a large part of most communities’ personal laws are based upon custom. This is almost exclusively true in the case of the indigenous peoples where religious traditions are at best a secondary or tertiary factor, unlike in the case of the Bengali communities.1 The overwhelmingly singular source of the indigenous peoples’ p ­ ersonal laws is custom. This is clearly manifested when we have regard to the fact that different indigenous peoples, who adhere to the same religious faith, are governed by diverse personal laws unique to the customs of the peoples concerned. Similarly, peoples professing different religious faiths from within the same ethno-linguistic group nevertheless practice identical or substantively similar personal laws. It needs to be noted that “Custom or usage having the force of law” is ­included within the definition of law in the Constitution of Bangladesh (at ­article 152). Personal laws of the indigenous peoples have been the subject of several cases in the Supreme Court of Bangladesh. While some unresolved ­questions still remain in the case of Bengali-speaking Buddhists, who are generally ­regarded to be within the fold of the majority “Bangali” community, the question of the application of custom-based personal laws to indigenous peoples may be ­regarded as substantively settled.2 The personal laws of the eleven indigenous peoples (IPs) in the Chittagong Hill Tracts (cht) vary from one people to another, with the variations being substantial or minor. In some cases, indigenous peoples belonging to the same ethnic group, but residing in different jurisdictions of the three administrative circles, are seen to be governed by different sets of personal laws. Moreover, since the personal laws of the indigenous peoples of the cht are regulated largely by their unwritten customs, there can be both certainty (e.g., where village elders feel confident about their knowledge of ancient traditions) and confusion and discrepancy (e.g., where the practices vary among and within sub-groups and locales and, occasionally in conflict with each other). 1 Indigenous peoples are referred to as “tribes, minor races, ethnic sects and communities” in the Constitution of Bangladesh (Article 23A). In other laws and policies, the Bengali equivalent of the terms “tribe,” “small ethnic groups,” “ethnic minorities,” etc. occur. However, the English terms “indigenous” and “aboriginal” also occur in some valid laws (cht Regulation 1900 and East Bengal State Acquisition & Tenancy Act 1950), as does “adibashi” the Bengali equivalent of indigenous (Small Ethnic Groups Cultural Institutions Act 2010). 2 See, e.g., Aung Shwe Prue Chowdhury v. Kyaw Sain Prue Chowdhury & Others, 50 dlr, ad (1998), 73, 18 bld (1998), 33, Rajkumari Unika Devi v. Bangladesh & Others, 9 blc, ad (2004), 181 and Abrechai Mog & Others v. Joint District Judge, Khagrachari & Others, 19 blc (2014), 258.

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An added complication comes from the variance between the verdicts of the traditional institutions, particularly at the level of Village Karbari, followed by the Mauza Headman. This depends on the knowledge, experience and understanding of the laws in their application to different contexts and circumstances, on a case-to-case basis. While the contents of the personal laws of only a few IPs of the cht have been subjected to gender analyses in the recent past, the application of the laws by the traditional courts and communities concerned, which may have even deeper gender implications, has been entirely disregarded. Documenting customary laws without taking into account the operational contexts ­inevitably results in a collection of inaccurate and incomplete information with substantive distortions, and at worst, misleading information. Some of the recent compilations in this regard have drawn controversy and conflicting claims on the contents of personal laws.3 The purpose of this study is to analyse the personal laws of IPs in the cht from a gender perspective. However, as noted above, the sheer volume of ­information that is required to conduct an in-depth analysis of the contents of personal laws with their manifold variants is beyond the scope of the current study. Hence, this study outlines general trends on each of the categories of marriage, divorce, child custody and guardianship, and inheritance, for all of the eleven IPs. To mitigate the risk of over-generalisation and over-simplification, exceptions from the general trends will be mentioned, where contextual. More ­importantly, this study focuses not only upon an analysis of the contents of the personal laws, but also places emphasis on the application or operationalization of the laws. The first section provides an overview of the legal and administrative system of the cht in relation to the justice systems and other redress mechanisms. The following section outlines and subsequently analyses gender implications of the general trends on the contents of personal laws of all the IPs, including on marriage, divorce, child custody and inheritance. Based on the accumulative analyses, several suggestions are put forward with a view to ­catalysing ­promotional and remedial measures that may be undertaken by the most ­important actors concerned towards a more equal and non-­discriminatory manner of implementing personal laws.

3 For instance, the series of eleven Indigenous peoples’ personal and family laws researched and compiled by Chakma, Roy and De 2007, cites various information that have been ­rejected by some traditional leaders from several IPs communities.

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Legal and Administrative System of the Chittagong Hill Tracts

2.1 An Overview As in other parts of Bangladesh, the personal laws of the inhabitants of the cht are determined according to religious or ethnic affiliation. In the case of non-indigenous or “non-tribal” inhabitants of the cht who belong to the ­Muslim, Christian or Hindu faith, the applicable personal laws are the same as for the rest of the country. In the case of the indigenous peoples of the hill region, the application of personal laws are determined by membership of one of the eleven recognised “tribes,” and the same personal law applies to the concerned people, whether they reside in the cht or elsewhere in the country, but some clan or locational variations are present. While the applicable laws for the indigenous peoples of the cht and the rest of the country are the same, the cht has a legal system that is unique to the region. Several laws that apply to the rest of the country have no manner of application in the cht, while some laws apply specifically and solely to the hill region. Thus, the Code of Civil Procedure 1908, which regulates the manner of civil litigation in the plains, has no application in the cht. The same is the case with the most important land administration law, the East Bengal State Acquisition and Tenancy Act 1950 and a number of fiscal, tax and penal laws. In the region, “special regional statutes—such as the cht Regulation 1900—and customs, recognised expressly or implicitly in statutes, co-exist with national laws, albeit not without tension and conflict” (Roy 2011: 108). As with its legal system, the region’s unique semi-autonomous status is also reflected in its political and administrative system. In an article on customary law, one of the present co-authors has described the cht administrative system in the following words: “Formally, Bangladesh has a unitary system of government as opposed to a federal system of government. However, the legal and administrative system in the cht is nevertheless separate and distinct from those in other parts of the country. Administrative authority in the r­ egion is shared by the central government—through its district and sub-district ­officers—the traditional institutions of the chiefs, headmen and karbaries, and elected councils at the district and regional levels. All of these institutions are supervised by a new ministry, the Ministry of Chittagong Hill Tracts Affairs. The officials of the district and sub-district civil administrations are almost exclusively of non-indigenous origin. In contrast, the majority of the members of the regional and district councils are members of the indigenous peoples. Therefore, the cht may be said to have a semi-autonomous self-government system that is quite “pluralistic,” in that it combines traditional, bureaucratic, and elective regional authorities with separated, and sometimes concurrent, responsibilities” (Roy 2004: 124).

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The application of different aspects of the personal laws of the indigenous peoples of the cht is regulated by different institutions: (a) the district-level judiciary, (b) national government functionaries at the district and sub-district (Upazila) levels; (c) the cht Regional Council and the Hill District Councils; and (d) the traditional authorities of Circle Chief (hereafter “Chief”), Mauza Headman (generally “headman”) and Village Karbaris (“karbaries”). Some of the most important aspects of personal law, as administered and regulated by the aforesaid four types of cht-specific institutions, are briefly described below. 2.1.1 The District Level Judiciary Except in the rare cases where otherwise personal law matters also ­constitute crimes involving offences that in some jurisdictions would be regarded as “­felonies”—like abduction, assault involving lethal weapons and such ­matters—the criminal courts in the cht have little to do with personal law ­matters of the indigenous peoples.4 Likewise, the civil courts too generally have little to do with the indigenous peoples’ customary laws, as their jurisdiction is barred on account of the operation of the traditional courts of the Chiefs and ­Headmen. Section 8(3) of the cht Regulation 1900, while laying down the jurisdiction of the cht civil courts of first instance clarify the matter in the following manner: “The Joint District Judge as a court of original jurisdiction, shall try all civil cases in accordance with the existing laws, customs and usages of the districts concerned, except the cases arising out of the family laws and other customary laws of the tribes of the districts of Rangamati, Khagrachari and Bandarban respectively which shall be triable by the Mauza Headmen and Circle Chiefs.” Two matters are noteworthy here. Firstly, the Joint District Judges are obliged to follow “customs and usages,” in addition to “laws,” while exercising civil jurisdiction. Secondly, the aforesaid civil courts may not try cases on “family laws and other customary laws of the tribes,” which are triable by the Chiefs and Headmen.5 4 According to Rule 40 of the cht Regulation 1900, some offences, including offences against State or public justice, serious offences against a person such as murder, culpable homicide, rape, abduction, kidnapping, extortion, robbery and forgery, are expressly excluded from the jurisdiction of the Chiefs and Headmen. Thus implicitly, the rule accounts for the exercise of judicial authority of the traditional courts for matters involving lesser crimes. As a matter of practice too, the traditional courts do try minor crimes, whether or not they involve personal law or other customary law matters. 5 Although the district civil courts do not have jurisdiction at first instance matters, the decisions of the Circle Chiefs may be appealed against (Section 66(3), Hill District Councils Acts, 1989) or revised (Rule 40, cht Regulation 1900). Appeals against the District Judges is not mentioned in the 1900 Regulation, but they do take place, as does judicial review by the High

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Unlike in the plains districts, where District Judges are vested ­authority to ­issue “succession certificates” on the basis of the Code of Civil Procedure of 1908, succession certificates in the cht are issued by the Deputy ­Commissioners (DCs). The process of granting such certificates are initiated at the sub-district level by the Assistant Commissioner (Land), or “AC-Land,” and in her/his absence, the Upazila Nirbahi Officer (uno), but this is done in consultation with the head of the concerned elected local government unit (Union Council chairperson or mayor) and the Mauza Headman. The Headman’s role ensures that the succession certificate issuing authority is correctly advised about the applicable customary personal law, of which the headmen and other traditional institutions are the custodians and upholders. Of course, the ­jurisdiction of the Joint District Judge, and through appeals, that of the District Judge, can, and are, invoked, particularly where the legality of a succession certificate (­issued by the DC) is challenged, as was done in the case of Abrechai Magh v. Joint District Judge & Others,6 referred to in more detail, hereafter. 2.1.2 District and Sub-district Level Government Functionaries The district and sub-district level government functionaries—personified through the DCs and unos—generally have little to do with the administration of personal law, except where the issue of succession certificates is involved, as mentioned in Chapter 3.1.1 below. In addition, the district and Upazila officials may have an indirect role in the exercise of personal laws, such as when p ­ artition of inherited land is concerned. 2.1.3 The Hill District Councils and the cht Regional Council The concerned laws that provide administrative mandates to the district and regional councils, namely, the Hill District Councils Acts 1989 and the cht Regional Council Act 1998 respectively, refer to the aforesaid councils’ jurisdictions over customary law. Additionally, the regional council has authority to “supervise and coordinate” the functions of the hdcs and that of the district administration and the local government bodies. In addition, the hdcs are to exercise authority over the functions of lower-level land administration functionaries (AC-Land, Kanungo, Chainman) and that of the Mauza Headmen, ­according to the hdc Acts 1989 (at Section 64). However, in practice, despite the passage of more than one a half decades since the establishment of the

Court Division of the Supreme Court (under Article 102, Constitution of Bangladesh). During the early part of British rule in the region (1860–1947), the Chiefs and Headmen’s jurisdiction included more serious crimes (Roy 2013). 6 Abrechai Mog & Others v. Joint District Judge, Khagrachari & Others, 19 blc (2014), 258.

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chtrc and the strengthening of the hdcs in 1998, the role of the aforesaid councils in the administration of personal law is yet to be felt. In a few cases, the chtrc has forwarded personal law disputes to the Court of the Chakma Chief, and perhaps to the other two Chiefs as well, but other instances of the chtrc and the hdcs’ interventions in this regard are not known about. 2.1.4

Overview of the Role of the Traditional Institutions of Chief, Headman and Karbari in Adjudication on Personal Laws of the Indigenous Peoples Of the aforesaid traditional institutions of three tiers,7 it is clearly the Headman who exercises the most important day-to-day functions that concern the administration of personal law. The sub-headman chiefs known as Karbaris have less formalized functions and essentially act as deputies to the Headmen. The Karbaris “arbitrate” or “mediate” rather than “adjudicate” in the formal legal sense. The Karbaris are generally the most knowledgeable officials regarding land and other natural resources of their villages, but formal land and revenue administration authority can only be exercised by the Headman. The Circle Chiefs in turn play a supervisory role over the administrative, ­revenue and j­udicial functions of the Headmen and Karbaris (Martin 2004). In the case of personal laws of the indigenous peoples, the Chiefs’ most vital role is in acting as appellate authorities over the Headmen’s courts and in providing authoritative opinions on the substance of personal laws and other customary laws. Among the most important functions of the Headmen with regard to personal law is their authoritative advice tendered to the DC, through the ACLand or uno, regarding the issuance of succession certificates. Although such prerogative of advice is shared with the elected union council or municipality chairpersons and mayors, there is no doubt that in the case of differences of opinion between the elected and the traditional authorities, especially in the case of IPs, the district officials give priority to the opinions of the traditional

7 In the period before British annexation of the cht into Bengal (1860), many chiefs held ­political powers in the hills (Van Schendel et al. 2000, Qanungo 1998, Serajuddin 1968). Various princes, chiefs and sub-chiefs exercised varying degrees of authority over their subject peoples, clans and sub-clans (Van Schendel et al. 2000; Van Schendel 1992, Roy 2010). After the advent of British rule in 1860, and clearly by 1920, the heterogeneity of the principalities, chiefdoms and chiefships, was done away with, and only the major rajas’ offices were recognized, and territorialized (hitherto they primarily exercised “tribal” and clan jurisdictions, except as “tributary” heads of smaller tribes and clans), and only three identical categories of institutions, Chief, Headman and Karbari, were retained, which continues to this day.

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authorities.8 The role of the Headman is also important in her or his capacity as a judge at the mauza level, and her or his decisions are final until and unless overruled by the Circle Chief or higher appellate or revisional authorities. In addition, no land title grants or land title transfers are generally allowed by the DCs without the consent of the concerned Hill District Council, or in the absence of a recommendation from the Headman concerned. This is a longstanding practice and usage, rather than a formal requirement of statutory law, except in some circumstances. Finally, Headmen also play a vital role in managing untitled lands within mauzas for use as homesteads, forests, pastures and swiddens (lands used for jum or “shifting” cultivation). 2.1.5

The Circle Chiefs’ Authority on Principles of Customary Personal Laws The three heads or Chiefs of the three traditional circles (Chakma Circle, Bohmong Circle and Mong Circle) may be regarded as the highest authorities on the subject of the personal laws of the different peoples of their respective circles, subject to the appellate and revisional jurisdiction of the superior courts and the cht administrative system (including the Ministry of cht Affairs). The Chiefs try matters as original courts where they act as Headmen of Khas Mauzas (such as the Chakma and Bohmong Chiefs), hear appeals against the d­ ecisions of the Mauza Headmen, advise each other and the Deputy ­Commissioners and district-level courts on personal law matters, and also provide ­advisory guidelines to the Headmen and Karbaris. Having said that the Headmen’s role on personal laws is the most important with regard to administrative matters and dispute resolution at primary levels, it is the courts of the Chiefs that have the final say on contents of customary personal laws. Prior to the passage of the Hill District Council Acts of 1989, which introduced the provision of appeal from the Chiefs’ decisions (to the Divisional Commissioner),9 the Chiefs’ decisions could be reviewed (by the DC),10 but not appealed against. It has been said that “this was a clear departure from the existing practices whereby the chiefs’ courts were regarded as the highest authority on indigenous customary law matters, whose decisions were not to be unduly interfered with in the interest of maintaining “tribal integrity” (Roy 2004). In the 1940s and 50s, under British and Pakistani rule, in a number of cases against the decisions of the Chakma Chief that ended up in the court of 8 9 10

At one time, succession certificates were issued by DCs solely on the basis of the concerned headman’s advice. The opinion of the UP chairperson was a far more recent addition. Section 66(3), Rangamati Hill District Council Act, 1989. Rule 40, cht Regulation, 1900.

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the Divisional Commissioner,11 and that of the Board of Revenue,12 the chiefs’ ­decisions were upheld.13 More recently, in personal law cases in the Appellate Division of the Supreme Court, similar sentiments were expressed, while upholding principles of customary personal laws of the cht.14 Although the exact nature of the process of reforms to customary personal laws has never been addressed by formal legislation, the Circle Chiefs have reformed customary personal laws through their judicial decisions and authoritative opinions.15 These decisions have not been compiled in formal law reports; however, copies are available to the public upon demand. Personal Laws, Regional Authorities and the Supreme Court of Bangladesh 2.2.1 Oral Customs, Practices and Usages, and Written Compilations on Customary Personal Laws As mentioned above (Chapter 1 above), the personal laws of the indigenous peoples of the cht are regulated largely by the unwritten customs of the peoples concerned. However, a number of written compilations on the substance 2.2

11 12 13

14

15

Until the cht Regulation (Amendment) Act, 2003 came into effect (in 2008), the Divisional Commissioner exercised the powers of a High Court for civil matters. Until the aforesaid amendment to the 1900 Regulation by the 2003 amendment, the Board of Revenue exercised appellate authority over the Divisional Commissioner. In Misc. Revision Case No. 13 of 1947, through an order dated 31.03.1947, the Commissioner of the Chittagong Division is on record as having ordered the following: “Read petition, Chakma Raja’s judgment and the order of the Deputy Commissioner. This is essentially a tribal matter and I consider that the Chief’s order should prevail. I, accordingly, set aside the order of the learned Deputy Commissioner and direct that the order of the Chakma Raja dissolving the marriage restored.” Similarly, in Resolution No. 4374-j dated 02.10.1951, the Secretary to the Governor of the Province, one H.G.S. Biver, wrote: “With a view to preserving the social structure of the tribal people, the Governor has been pleased to set aside the order of the Board of Revenue dated 2.3.48 and direct that the order of the Chakma Chief dated the 24th September, 1946 dissolving the marriage of Lakshmi Mohan Chakma and Sm. Pramila Chakma shall stand.” The aforesaid case references have been cited from Dewan (2003: 15). The learned presiding judge, Mustafa J., in the landmark case of Aung Shwe Prue Chowdhury v. Kyaw Sain Prue Chowdhury and Others (Civil Appeal No. 8 of 1997), 50 dlr, ad (1998), 73–80 at p. 80, stated that “the susceptibilities of the tribal people should not be ignored.” See also, bld 1998 (Vol. xviii), p. 41). Over the past decade or so, the Court of the Chakma Raja has provided some important judgments on Chakma personal law, including on (a) the issue of consent of the bride before marriage; (b) child custody in the case of divorce; and on (c) court procedure for headmen and karbaries (discussed in more detail in the section on the Chakma people).

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of the laws concerned, occasionally supplemented with case law, are available.16 These compilations do not have any formal status, but they are being increasingly cited in litigation, both at the district level and in the Supreme Court, and are therefore a vital source of information on the contents of the laws concerned. However, it is increasingly seen among a number of peoples, foremost being the Bawm, among whom the written compilations of the rules and resolutions of the Bawm Social Council have acquired a quasi-formal status of a Code of Law. To a lesser extent, among the Usui Tripura and the Riyang Tripura, written compilations, particularly on inheritance principles and rules, have a high status. 2.2.2

The Mandates of the cht Regional Council and the Hill District Councils on Customary Personal Laws The mandate of the cht Regional Council includes the supervision and coordination of “tribal customs, practices and customary law,”17 but in practice, it is yet to be seen what that this mandate actually means, since apart from referring disputes to the Chiefs’ courts, the Regional Council has not involved itself in the matter of customary law and adjudication. In any case, the substance of the council’s role is to “supervise” and “coordinate” (“shomonnoy shaadhon o tottabodhaan”), and hence, a simple interpretation of the clause, following legal principles of statutory interpretation, would suggest that this does not amount to legislative prerogatives to address the substance of the laws concerned. The three Hill District Councils’ mandates are somewhat more extensive, including the determination of the “procedure of litigation” and the “[court] fees” payable by litigants.18 As in the case of the cht Regional Council, the Hill District Councils’ mandated list of subjects and departments includes the administration of justice involving “social, cultural and tribal” disputes in accordance with “tribal practices/usages” (“upojatiyo ritiniti onushaare”), but for the same reasons as mentioned for the cht Regional Council, such mandate concerns the process of litigation rather than the substance of the laws concerned. 16

17 18

Publications on personal laws of the indigenous peoples of the cht are scarce. Of the few publications available, most concern the Chakma people, including the following: Dewan [2003 (1985)], Roy (2004, 2005), Chakma (2013); and the series of publication by Chakma, Roy and Dey (2007). Section 22(e), cht Regional Council Act, 1998. Section 66(4), Rangamati Hill District Council Act, 1989. The mandate of the other two district councils on this matter, as in the case of all other matters, is identical.

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2.2.3 Customary Personal Laws in the Supreme Court of Bangladesh In about a dozen or so instances, matters of personal laws of the indigenous peoples, including from the cht, have ended up under appeal or revision in the Supreme Court of Bangladesh (both High Court Division and Appellate Division). The general trend has been to provide protection to the integrity of customary personal law, following the tradition of the superior courts of the Divisional Commissioner, Board of Revenue and Provincial Governor during British and Pakistani rule. Some of these are briefly mentioned below. In the case of Abrechai Magh v. Joint District Judge & Others,19 a High Court divisional bench of the Supreme Court court declared that Hindu Dayabhaga law does not apply to the Marma people of Khagrachari district, since they were governed by their own customary laws. The court ordered the district authorities to issue fresh succession certificates in consultation with the Circle Chief and Mauza Headman, and in accordance with Marma customary law. This judgment not only upheld the special status of the customary laws of the Marma people, and by implication, the customary laws of other “tribes,” but also upheld the rights of indigenous women to inherit, albeit in a limited manner, as Dayabhaga Hindu law did not permnit inheritance of property by women. In three other cases in the Appellate Division of the Supreme Court, the status of customary laws of the cht was upheld. These are Aung Shwe Prue Chowdhury v. Kyaw Sain Prue Chowdhury & Others,20 Rajkumari Unika Devi v. ­Bangladesh & Others,21 and Wagachara Tea Estate Ltd. v. Muhammad Abu ­Taher & Others.22 In the Aung Shwe Prue case, which concerned disputed claims over the succession to the chiefship of the Bohmong Circle between two members of the chief’s family, while deciding that the Government’s recognition of one ­member of the family was unlawful for not having been in accordance with the customary laws of the Bohmong circle, the Supreme Court declared: … The office of Bohmong Chief is a customary office and both the ­Government and the Court have to recognize the custom and not to introduce any other criterion or factor that will add to the customary ­requirements of that office. The High Court Division was manifestly wrong in holding that the office of Bohmong Chief is a political office and 19 Writ Petition No. 3285 of 2009, Supreme Court of Bangladesh (High Court Division). 20 50 dlr, ad (1998), 73. 21 12 blt, ad (2004), 141. 22 36 bld, ad (2016), 193.

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that the claimant is nominated by the Government on politico-administrative considerations. This finding is not based on any authority. It is an innovation which is an alien criterion contrary to the established usage and custom of the Bohmong Circle … Government will also not deny that the susceptibilities of the tribal people should not be ignored …23 In the Wagachara case the Appellate Division laid down several crucial and landmark guidelines and observations on legal pluralism and customary law, including the following: … If we read the scheme of the Regulation of 1900, the three Hill Zilla Parishad Ains and the Chittagong Hill Tracts Regional Council Ain, 1989, we notice that though Bangladesh is a unitary form of Government, a major form of legal pluralism is being practiced in the three hill districts. [The] administration of the [cht] includes, in addition to the special local government system, the traditional self-government institutions such as, Rajas [or] Circle Chiefs, Headmen and Karbaries (Village Chiefs). The system of administration of justice in those districts is different from other parts of the country with regard to disputes between indigenous people, except for civil litigation involving commercial suits and criminal offences of a serious nature, the normal courts of the country are barred from adjudicating them and they are being adjudicated by Circle Chiefs [and] Mouja Headmen. 3

Provisions of Personal Laws of the Indigenous Peoples of the cht

Laws on Marriage Marriage Rituals and Ceremonies, and the Status of Unregistered Marriages There is no system of registration of marriages among the indigenous p ­ eoples of the cht. Nor is there any legal requirement that marriages of members of the  indigenous peoples or “tribes” be registered in order to be valid. The ­option of registration under the Special Marriage Act, 1872 (Act 3 of 1872) is ­theoretically available, but it is not known whether any members of the cht ­indigenous peoples have taken recourse to the system available under this law. 3.1 3.1.1

23

Mustafa J. in Aung Shwe Prue Chowdhury v. Kyaw Sain Prue Chowdhury and Others (Civil Appeal No. 8 of 1997), Supreme Court of Bangladesh (Appellate Division), 50 dlr, ad (1998), 73–80 at p. 80 (see also, bld 1998 (Vol. xviii), p. 41.).

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It is said that a very few members of the indigenous peoples of the cht, who belong to the Christian faith, and particularly in the case of “mixed marriages” (involving a marriage with a Bengali of the Christian faith), have resorted to registration in accordance with the Christian Marriage Act, 1872 (Act 15 of 1872), but these may be regarded as very rare occasions. In general, marriages among the indigenous peoples are regulated by the concerned people’s customary law, necessitating the conduct of rituals and ceremonies demanded by custom, tradition, practices and so forth. In the case of marriages between members of two peoples, the customs of one or both peoples is followed. The significance of conducting rituals and ceremonies in solemnising a marriage lies in several respects. Firstly, it fulfils the legal ­requirements, which are based on the practice of the rituals and ceremonies. Secondly, it provides safeguards for both husband and wife, as it functions as evidence of marriage where no other documentary evidence is available. The concerned rituals and ceremonies are of necessity public events that generally involve community elders and the concerned families among others. The fact of such occurrences can be certified by the authorities concerned, the Mauza Headman or the Circle Chief. The question of documentary evidence of the marriage having actually ­taken place usually occurs in a few situations, such as when a spouse of an indigenous person wishes to apply for a visa to travel to a foreign country, along with her/his spouse, or for claims to property in jurisdictions outside the cht. In such cases, it is common for the couple to acquire a certificate from the Mauza Headman or the Circle Chief, certifying that the couple has indeed been married in accordance with applicable customary law. The Office of the Chakma Chief, for example, regularly issues certificates on marriage of indigenous couples within the Chakma Circle, usually for those who travel to foreign countries. Such certificates inevitably contain the phrase: “such marriages are fully valid, according to Bangladeshi law, as long as the same are formalized in accordance with the customary law of the people or tribe concerned.” They clarify that “such marriages need not be registered in order for the same to be fully valid, according to Bangladeshi law.”24 It is not uncommon for monks, priests and other religious or spiritual officeholders or leaders of different religious or spiritual communities among the indigenous peoples to play roles in formalizing marriages, and in some cases, of validating marriages that would otherwise be socially, and hence legally, invalid. However, the extent of legal validity of such acts is not known and an 24

Interview of Subrata Chakma, Secretary to the Chakma Raja, Chakma Raj Office, Rangamati (12/9/2015).

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enquiry into such instances would constitute a subject of detailed research which is beyond the scope of this study. Among the Chakma people, and to a lesser extent among some of the other peoples too, it is not uncommon to find that couples resort to a “kyangmarriage,” i.e., a marriage conducted in a “kyang” or monastery officiated by a Buddhist monk. This is especially so when the couple is a “runaway” couple that has eloped where parental or societal consent, whether on account of the nature of their relationship—of prohibitive degree or otherwise—has propelled them to flee from the community. While the couple seeks to attain a degree of validity to their “marriage” through such acts, the legal validity of such cases is often of questionable value. In the case of the Chakma people, the Court of the Chakma Raja has ruled that such “kyang marriages” have no legal validity. Rulings of this court, supplemented by formal guidance memoranda to the mauza headmen have clarified that such unions have no legal validity.25 Another not too uncommon occurrence among urban-dwelling indigenous peoples, usually ‘runaway’ couples, is to affirm affidavits before Notaries Public or other officials with magisterial authority, purporting to obtain legal validity to their union. In the case of the Chakma, the apex tribal court has ruled that such certification through affidavits do not, by themselves, provide validity to a proposed intention of marriage.26 3.1.2 Polygamy and Polygyny Polygamy, which means ‘many marriages,’ includes both Polygyny—a man having more than one wife at the same time—and Polyandry—a woman having more than one husband at the same time. There is no evidence of the existence of Polyandry among indigenous peoples in the cht. However, Polygyny does exist among all the indigenous peoples of the cht and is, in most cases, legal. However, the changes in the above practice needs to be noted. With regard to religious affiliation, the tolerance for polygyny seems to be generally lower for those from Christian denominations. Despite such perspectives and even written rules prohibiting such unions, polygynous marriages are not unheard of, although they constitute the exception rather than the rule. With the Christianization of several of the hill peoples, including the Pangkhua, Bawm, ­Lushai, Khyang (part) and Tripura (part), polygyny is strongly discouraged. In several instances, there is conflict and tension between the traditional indigenous customs and the practices adopted under religious tenets. 25 26

Misc. Case No. 1 of 2016 of the Court of the Chakma Raja. Misc. Case No. 1 of 2001 of the Court of the Chakma Raja.

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It is generally provided in personal law of most of the IPs that polygyny is to be restricted to cases where the wife is physically incapable of co-habitation, is of unsound mind, incapable of conceiving, is guilty of the social offence of “adultery” and so forth. Such “grounds” are sometimes cited for polygynous marriages. In practice, however, such “grounds” are often invoked without sound basis and lead to polygynous marriages that would, in the stricter sense, have been disallowed. In such cases, the first or the other earlier wife is stranded with two choices: (a) to carry on in her marriage; or (b) to lodge a divorce, citing grounds other than polygyny (though the grounds may be related to her estranged relations with her husband or conflict with the newer/wife/wives). In most cases, the first option is exercised, especially where the woman is economically dependent on her husband. Since polygyny is considered legal, it cannot be cited as the main ground for divorce. Moreover, if the first/second wife who is seeking divorce cannot prove the husband’s fault, even if she gets a divorce, she may not be entitled to maintenance from her former husband. Thus, many indigenous women, who have little or no financial independence, or opportunities of inheriting anything substantial from their parents’ families in the event of divorce, may get stranded in a marriage that they would have terminated if they had a choice. Some advocates and rights activists have advocated, rather erroneously, that if an indigenous man marries without the consent of the first wife or if he conceals his first marriage to his second wife, the respective wives can seek penal remedies (entailing 7 to 10 years of imprisonment) in accordance with the Bangladesh Penal Code (Section 494 and 495).27 The essence of this provision is that, where a polygamous marriage has taken place that is unlawful according to the personal law concerned, then the act of the polygamous marriage amounts to a penal offence. Where, however, the polygamous—in our case polygynous—marriage is not void under the personal law, this penal provision cannot be invoked. Returning to the issue of polygynous marriages, based upon basic principles of non-discrimination and women’s rights as recognised by Bangladeshi law (fundamental right to equality and non-discrimination) and international law (the provisions of cedaw), this particular provision of personal law is discriminatory towards women. Although polygyny is clearly on the decline, particularly in urban areas and among the higher educated section of the rural population irrespective of ethnic affiliation, the personal laws themselves do not expressly outlaw polygyny (except to an extent in the case of the Bawm and some other Christianized peoples). Consequently, women involved in 27

Chakma, Roy and Dey 2007 series.

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­ olygynous marriages are left with little or no legal redress. However, the rep cent rise of awareness on the ills of polygyny has led to the growth of social pressure that acts as a deterring factor against such marriages. Whether and if such social dynamics can actually lead to the total de-legalization of polygyny among the indigenous peoples remains to be seen. And the dynamics vary between people to people, urban and rural settings and so forth. 3.1.3 Mixed Marriage Traditionally, exogamy or marriage outside the community or tribe was expressly forbidden. However, with manifold demographic and social changes caused by migration, urbanization, education, commerce and so forth, exogamy has seen a steady rise among almost all the hill groups. Although still an exception rather than the rule, exogamy is increasing among the higher educated sections of indigenous society. Intra-indigenous marriages are more common than marriages involving non-indigenous communities except in some situations involving intra-faith (intra-religious) alliances, which are largely restricted to the Christian groups. Severe problems can arise where indigenous persons (who are non-Muslim) wish to marry Christian and Muslim persons, particularly the latter, as traditional practices among the latter prohibit marriages with people not from the same faith. Likewise, indigenous communities too are intolerant of inter-ethnic, intercommunity and inter-faith marriages. Indigenous persons marrying outside the people or tribe, particularly to non-indigenous persons from a different religious background (even more so if it involves conversion), are often excommunicated or ostracized. However, as in other aspects of social practices, gender relations tend to affect the repercussion of the mixed marriages for the couples in the society. In almost all the cases of mixed marriages known about, the cultural and religious identity of the male dominates. The woman is expected to embrace her husband’s religious faith, forsake her pre-marital ethnic and religious identity and be fully integrated into her husband’s community. Since such is the norm, an indigenous man marrying an indigenous woman from another tribe, or a non-indigenous woman from a different faith, can generally retain his identity and hence, the social persecution for such marriages is quite relaxed, given that the woman be fully assimilated into her husband’s community. The one exception here is if the female is a Muslim and the male is a nonMuslim. In such cases, the marriage would face severe social and even security problems, except where in the rare cases the marriage was conducted under the Special Marriage Act of 1872, in an urban setting, or where the couple resides in a non-Muslim majority locality, such as a remote village.

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Following the same principal, an indigenous woman marrying outside her tribe, particularly to a non-indigenous man from a different religious background, is regarded as no longer to belong to her original community and, is often ostracized from the family and society. The question of what personal law would govern such a marriage is an unsettled one, particularly where written personal law is pitted against oral customary law. However, it is safe to assume that in most cases, the husband’s law would prevail, especially if it is codified law. 3.1.4 Dowry and Bride Price There is no evidence of the practice of dowry among any cht peoples at the present time or historically. Conversely, almost all the indigenous peoples have a practice of paying ‘bride price,’ whereby the groom’s family pays a certain sum of money to the bride’s family. In addition, some of the peoples have a custom of the groom’s family providing a gift of jewellery to the wife. Some of the peoples also pay a token ‘milk price’ to the mother of the bride for breastfeeding the bride during her infancy. The practices vary from strong to nominal, and ‘bride price’ is clearly on the decline among urban-dwelling hill people. While such practices may seem congruent with women’s rights, an insightful analysis may indicate otherwise, at least in some instances. The fact that the ‘bride price’ is paid, not to the bride, but to her parents, betrays that there may be an element of “purchasing” the bride in such cases. In cases of divorce, where ‘fault’ is found on the part of the bride, the ‘bride price’ may have to be returned to the ‘wronged’ groom’s family; which reinforces the previous observation. In the same vein the ‘milk price’ that is paid to the mother for nursing her daughter may be explained in several ways. On one hand, this may be interpreted as gratitude and respect paid to the bride’s mother. On the other hand, from an economic perspective, this can be viewed as payments for the services of the mother (nursing her daughter), facilitating the acquisition of a wife/daughter-in-law/mother, who would serve the groom’s family. While such practices do not have any direct gendered impact, the implicit message they carry may have a role in reinforcing and sustaining gender inequality in society. 3.1.5 Consent of Parties to Marriage In the case of all the tribes, a matrimonial alliance cannot be forged without the consent of the bride’s father. The exceptions are where the couple has ‘eloped,’ i.e., ‘run away.’ On occasions, even where the paternal consent is missing, or obscure, society may allow a runaway couple to marry through the i­ntervention

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of traditional leaders and elders. Amongst the Chakma, it has been a longstanding custom whereby a couple, if it elopes successfully for the fourth time, may marry even in the absence of paternal consent (Dewan 2003: 8). However, this does not apply in prohibitive decree relations, where the bride and groom have a relationship of, or in the nature of, uncle and niece, aunt and nephew, etc. (this generally excludes great grand uncle-niece and grand aunt-grand nephew relationships). In the case of the Chakma, in a ruling by the Chakma Chief, it was declared that the father was not entitled to provide consent to a marriage unless the daughter agreed to it, thus providing formal recognition to the changed practice as a reform of the customary principle itself.28 3.2 Laws on Dissolution of Marriage Dissolution of marriage is allowed amongst all the indigenous peoples, notwithstanding affiliation to religious faiths that disallow divorce (e.g., ­Christianity and Hinduism). However, among the Christian groups, dissolution of marriage is only allowed very sparingly. In the case of the Tripura who follow the Hindu faith, the restrictions are generally less stringent than in the case of the Christian groups. Despite principles to the contrary, it is not uncommon to come upon unilateral pronouncements of divorce (called “sur kaagoch” among the Chakma), sometimes through an affidavit. There is a fairly widespread belief that a unilateral declaration of divorce through such a “sur kaagoch” actually has the effect of terminating or dissolving the marriage. Although women too resort to issuing such “sur kaagoch,” it is far more common in the case of men. However, such unilateral pronouncements have no validity either under personal law or other laws. 3.2.1 Separation and Divorce Apart from the case of the Pangkhua, both men and women can initiate divorce on valid grounds. Among the Pangkhua, only the men can initiate a divorce proceeding. Separation exists among the Bawm, Lushai and Pangkhua. Divorce was hitherto absent among the Bawm and Lushai, especially after their acceptance of Christianity in the late 19th and early 20th centuries, but is now allowed sparingly.

28

Misc. Case no. 1 of 2010 of the Chakma Raja’s Court, cited in the Chakma Chief’s Advisory Memo/35/Ad, dated 18/02/2015, as circulated to Mauza Headmen and Village Karbaries.

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3.2.2 Re-marriage Among all the tribes, there is no restriction on re-marriage after divorce or death of the spouse, including among the Christian and Hindu groups. Both men and women hold the right to remarry. In the case of women, they will forfeit all rights to maintenance from the family of the deceased or divorced husband. In such cases, the necessity of obtaining the consent of the father prior to marriage, which applied to women before their first marriage, ceases to apply. 3.2.3 Child Custody and Guardianship 3.2.3.1 “Illegitimate” (sic!) Children Generally, children born outside of marriage cannot inherit property according to the laws of inheritance of all the indigenous peoples. However, this will not apply where a will is involved, or where the child has been adopted by foster parents (adoptive children may inherit among all the tribes). In some cases, evidential matters on whether a marriage was conducted legally or not may not be regarded as a concern (e.g., where the couple has eloped). No inheritance by so-called illegitimate children is generally allowed among all the hill peoples. However, there are exceptions. For example, among the Khyang, even if the child was born outside of marriage, if the paternity of the child can be proven to the community, the child will be regarded by the community as a legitimate child of the biological father and will inherit his property. But in such a case, the father will obtain the custody of the child. Similar situations prevail among the Mro, Bawm and Tanchangya, among others. In the case of the Chakma, in one particular case where a child was born outside of the marriage and the paternity was established by circumstantial evidence, it was held that the biological father was responsible for maintenance of the child, who could formally claim to be a “legitimate” child of the biological father, even though there was no marriage before or after the birth of the child.29 In the case of inheritance of hereditary offices, there are no known instances where “illegitimate” children have succeeded to a hereditary office. In the case of the Chakma Chief-ship, although the present incumbent is not the eldest son, his elder, but “illegitimate” (sic!) brother, failed to inherit the Chief-ship, and the incumbent succeeded to the office.30

29 30

Interview with Subrata Chakma, Secretary, Chakma Raj Office (12/9/2015). One of the co-authors of this study is the incumbent Chief of the Chakma Circle.

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Although the exceptions appear to provide a small measure of justice to the mother of the child, the general principles are clearly discriminatory against the rights of women. The woman who gives birth to such “illegitimate” child (sic!) generally bears a heavy burden of proving paternity, rearing the child on her own, dealing with social stigma and so forth. 3.2.3.2 Custody and Guardianship of Children As a general rule, amongst all the tribes, the father is regarded as the natural legal guardian of the child. In case of divorce or separation, the mother gets custody only if the child is still dependent on mother’s milk, or is less than 3 years of age. In such cases, the father is obliged to provide maintenance until the child has passed 3 years of age. After that, the father is entitled to the custody of the child. The mother can obtain the custody of the child only if the father or the father’s family is reluctant to raise the child. However, the stringency of such rules varies from tribe to tribe. A Bawm, Khumi or Mro mother has to give up her children, even against her will, to her estranged husband at the time of separation or divorce.31 Among the Chak, in some cases, the mother obtains the custody of the female children, while the father gets the custody of the male children, since a male child is regarded as an heir in the family.32 In cases where the son’s custody is retained with the father, the son may inherit, but such right to inheritance may be revoked if the son stays in the custody of his mother. In a case among the Chakma, the Court of the Chakma Raja has ruled that the custody and guardianship of a child will depend upon the welfare of the child notwithstanding hitherto prevailing customs, including a father’s “preeminent” right over a child that has been weaned. The ruling also clarified that the predominant trend in current practices saw mothers obtaining custody, indicating a reformed or new custom, which it was the duty of the court to formally recognise.33 However, although the mother was given custody of the child in this case, the guardianship was retained by both parents.34 31

32 33

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Information obtained during separate interview sessions with Lina Lushai (5/6/2015), and Theo Lang Khumi and Saang King Khumi (23/5/2015) and during fgd session with social workers (23/3/2015). Information obtained during interview session with Kirti Lonkar Chak, Aung Thowai Ching Chak, Sanu Aung Chak and Kyaw Zai Hla Chak (23/5/2015). Misc. Case No. 01 of 2010 of the Chakma Raja’s Court cited in the Chief’s Advisory Memo No. cr/35/Ad, dated 18/02/2015, issued to Headmen and Karbaries and copied to concerned governmental and regional authorities. Misc. Case No. 01 of 2010 of the Chakma Raja’s Court.

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Under this provision of the customary law, the rights of the mother have been severely violated. Though the cases of mothers obtaining custody of their children have increased in recent years, the instances are largely confined to urban/semi-urban areas where access to women’s rights groups or rights advocacy groups is easier than remote areas. 3.2.4 Maintenance of Spouse and Minor Children Generally, for most of the tribes, where there is a divorce, the wife loses all right to maintenance, though there can be exceptions. For example, where the divorce proceeding was initiated by the husband, and there was little or no “fault” on the part of the wife, she may be entitled to maintenance. However, in a male-dominated society, where wives are expected to abide by the husband’s instructions in family affairs, it is not difficult to avoid paying such maintenance by filing for divorce based on grounds of the wife’s “disobedience,” “neglect of household duties” or adultery. In such cases, a woman has to go to great lengths to prove her ‘innocence’ to secure her right to maintenance. The practices on the relative ‘burden’ and ‘standard’ of proof, i.e., the question of which party has to bear the ‘burden’ of proving or disproving which element of her/ his claim, or the other party’s counter-claim, and the ‘standard’ or weightage of proof required, can vary from circumstance to circumstance. In many cases, the adjudicators are male, and are often related by kinship or locality ties to the male (as most wives move to the husbands’ locality after marriage), which results in bias against the woman. In a Guidance Memo issued to Headmen and Karbaries of the Chakma Circle, the Court of the Chakma Raja advised the Headmen and Karbaries to include women among the adjudicators or advisers (similar to jurors in Common law jurisdictions), including from the original locality of the woman, to prevent bias.35 The maintenance may amount to a share of the landed property, a one-time payment in cash, or less occasionally, a monthly payment. However, maintenance is more common where the divorced mother retains physical custody of the child or children, whosoever may be the legal guardian.36 Among the Lushai, the wife is entitled to one-third of the property if the husband initiates the divorce for no justifiable reasons. The problems related to maintenance encompass several aspects, including the content of the principles of law, the process of litigation and providing evidence to obtain a decree on maintenance and the process of executing a 35 36

Memo No. cr/36/Ad, dated 18/02/2015, of the Office of the Chakma Raja to Headmen and Karbaries of the Chakma Circle. Example, grant of land and monthly payment, to divorced wife.

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decree. Where a monthly maintenance payment is involved, unless the order or decree is imposed upon the employer, the defaults are difficult to monitor; since the traditional courts do not possess executive authority (although they may apply to the Deputy Commissioner for assistance, as provided in the cht Regulation). It is easier if a one-time payment or a share in landed property is involved, which is possible only where the wronging spouse owns such property. However, problems of such nature are not unique to the traditional justice system but are also faced by state courts where the wronging spouse has no tangible assets from which maintenance payments may be made to the wronged. The advantage of the traditional systems is that such disputes inevitably include social leaders. Therefore, where social consensus is there, the combined knowledge of the community leaders can devise ingenious ways to obtain maintenance payments where a modern legal system of court bailiffs and other officials would fail. The major challenge here is to forge such social cohesion in a non-discriminatory way. 3.3 Laws on Adoption Members of all the indigenous peoples may adopt one or more children.37 Interestingly, among the customary law principles of the tribes, there are no formal restrictions against the adoption of a child by an unmarried man or woman, childless widow or widower. Similarly, there seem to be no restrictions on the ethnicity or religious affiliation of the adopted child (although he or she would in all likelihood be assimilated into the adoptive parents’ tribe or clan, in regards to ethnicity, language and religious affiliation). In most cases, adopted children inherit equally with biological children, following the rules of entitlement. Default in failing or refusing to conduct registration of the adoption does not seem to prevent inheritance by such adopted children, although the cht Regulation 1900 provides for the registration of adoption, although this procedure is seldom invoked.38 In the case of inheritance of hereditary offices, there seems to be no hard and fast rules. In the case of succession to the office of the Mong Raja, an adopted daughter of the previous Chief, who had no biological children (who also happened to be biologically a non-tribal), was not allowed to inherit the chiefship.39 In the case of Headmen, however, a number of adopted sons have 37 The cht Regulation, 1900 provides for registration of adoption arrangements, but generally the Regulation’s provisions on registration are ignored and are not known about, including by the registration authorities. 38 Rule 12(e), cht Regulation 1900. 39 Rajkumari Unika Devi v. Bangladesh & Others, 9 blc, ad (2004), 181.

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been seen to inherit the office of their departed adoptive father. In the case of the Chakma Raja, historical records suggest that adopted children have inherited the Chiefship.40 3.4 Laws on Inheritance 3.4.1 General Trends As per the customary practices, the general trends of inheritance among all the cht tribes are as such: upon death of the father, only the sons, including adopted sons, inherit equal share of their paternal property, while the daughters, including adopted daughters, are merely entitled to maintenance till marriage. Like the daughters, the widow is entitled to maintenance until her death or unless she re-marries. Generally, there are no distinctions between the first and a subsequent wife, or in the case of their respective children while distributing the property. In the absence of sons who are the sole heirs of their paternal properties, daughters (in some cases, daughters and the wife) inherit equally. Another major trend applying to most of the tribes is that while the sons solely inherit the father’s property, the mother’s property is inherited by both sons and daughters after her death. In some cases, which apply to several of the tribes, the son who cares for his parents and lives in the same house with them inherits a larger share than that of his other siblings. Yet another general trend for the hill peoples is that the pre-marital property of the wife along with individually-acquired property of the wife after her marriage belongs to her alone. Similarly, widows may inherit some portion of the moveable property of the husband. Inheritance of a deceased spouse’s pensions, gratuities and other superannuation payments are often determined by the regulatory framework of the employer organization (government, semigovernment or corporate entity), and in some cases, the voluntary identification of a spouse as the beneficiary. The law and practice in such contexts has so far received little attention from both policy-makers and rights activists alike. 3.4.2 Exceptions to the General Trend However, there are exceptions. The most important general exceptions concern the case of the Southern Marma,41 the Usui Tripura of the Chakma and 40 41

Roy 1971. The “Southern Marma” includes sub-groups of the Marma, including the Regretsa, who inhabit the Bohmong Circle (in Bandarban and southern Rangamati districts), and in the southern part of the Chakma Circle within the Reingkhyong Reserved Forest (southern Rangamati district). Conversely, the “Northern Marma” are the Marma living in the Chakma and Mong Circles within Rangamati and Khagrachari districts, including the Palengsa

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Bohmong Circles, and the Riyang Tripura of the Chakma Circle, which will be discussed in reasonable detail at the end of this sub-chapter. The other exceptions are discussed below. In the case of Laitu Khyang (the “Laitu” clan among the Khyang tribe), the wife and daughters received one-third of the property, while the sons inherit two-thirds. Among the same clan, where adopted children are involved, they inherit less than that of the biological children.42 Where a husband dies without having any issue, the wife obtains half of the property while the husband’s relatives (brothers and brothers’ children) receive the remaining property. In the case of the Pangkhua, Khumi and Lushai, where there are no sons, brothers and brothers’ sons inherit, to the exclusion of the daughters.43 Moreover, Pangkhua widowers inherit the property of their deceased wife, but the converse, a widow inheriting her deceased husband’s property, does not hold true.44 Among the Bawm, the rules used to be similar to that of the Pangkhua. Nowadays, particularly after reforms initiated by the Bawm Social Council, the wife and the daughters receive one-fourth each and the sons inherit half of the property.45 While the wife of a deceased Tripura man, regardless of the clan he belongs to, does not inherit her husband’s property, the right of the deceased man’s daughters to inherit his immovable property varies from clan to clan. In the case of the Tripura belonging to the Usui clan, the daughters inherit paternal properties alongside their brothers.46 The Tripura belonging to the Fadung, Dendaw and Gabing clans, the daughters inherit their mother’s properties.47 However, in recent days, the incidences that involve daughters receiving a portion of their father’s property are becoming more common. In the case of Tripuras of the Hindu faith, the situation varies considerably. In the case of the Naithangya, the tendency is to clearly exclude women from

42 43 44

45 46 47

and Lunduksa sub-groups. The term “clan” is intentionally avoided, unlike in the case of the Chakma, as these sub-grouping traditions vary from people to people. Information obtained during an interview session with Kyaw Sa Maung Khyang (6/4/2015). Chakma, Roy and Dey (2007d: 65). Chakma, Roy and Dey (2007a: 62), Chakma, Roy and Dey (2007f: 54), Chakma, Roy and Dey (2007e: 54). Information obtained during an interview session with Chiyal Jol Pangkhua (Headman of Bosonto Mauza) and Tomptay Pangkhua (23/5/2015), and fgd with Pangkhua participants (26/12/2015). Chakma, Roy and Dey (2007g: 60). unesco and Women for Women (2005: 42). Chakma (2013: 53), Tripura and Tripura (2010: 321).

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inheritance.48 In the case of the other Tripuras that follow Hindu tenets, the tendency is to exclude women, but where there is consensus, women may also inherit, particularly where there are no male issues.49 This is one of the exceptions to the general trend of religious tenets overriding customary traditions based on indigenous spiritual traditions or secular customs. Among the Southern Marma, the wife and daughters jointly inherit onefourth, while the remaining three-fourths are inherited by the sons. Where there are two wives, the first wife and her children together inherit foursevenths, while the second wife and her children together inherit the remaining three-sevenths.50 Another source states that the sons inherit 10/16th of their father’s property while the daughters are entitled to 6/16th.51 The above information has been sourced from written compilations of personal laws of the Marmas, which the incumbent Bohmong Chief rejects.52 He asserts that the Marma people under his jurisdiction usually determine the share of inheritance through consensus of the family members of the deceased. Hence, the share may vary from one case to another. However, one provision which is stringently followed is that Marma women (wife and, daughters regardless of their marital status) will inherit property. The Bohmong Chief confirms that the Marma customary leaders follow (or, at the least, are meant to follow) the Digest of Burmese Buddhist Law, which is an intricate set of detailed and specific rules regulating various possible combinations of succession, and is used as a legal document in Myanmar.53 The complexity of the laws has seen the Marma people being led to formulating their own version of the Digest based on its principle pillars over the years. However, when a dispute is 48 49

50 51 52 53

Interview with prominent Tripura leader, 5 March 2016. The interviewee wishes to keep his identity undisclosed. Various interviews with prominent Tripura leaders, in February and March 2016. The identities of the interviewees have been recorded but withheld here with a view to avoiding unnecessary intra-group and other debates and controversies. Chakma (2013: 46); Chakma, Roy and Dey (2007c: 62). unesco and Women for Women (2005: 40). Interview with the Bohmong Chief, U Chaw Prue (23/9/2015). Despite the nomenclature, it can be stated firmly that there is no such law as Buddhist Law since Buddhist teachings have little to say on secular affairs. According to Barrister E. Maung (1970: 5), “[the Code of Burmese Law’s] roots are sunk deep in the soil of national history and … the law is the product of age-long growth of national life.” The Burmese Law came to be described as Buddhist Law which is applicable to Burmese Buddhists only after some Acts were enacted in 1870s and 1890s “to be in uniformity with the provisions which made Hindu law applicable to Hindus and Mohammedan Law applicable to Mohammedans in similar circumstances” (1970: 6).

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brought forth to the Court of the Circle Chief, the Bohmong Chief stringently follows the detailed tenets contained therein, except one. Under that provision, a person cannot will his or her property, though s/he can donate shares of both movable and immovable property in his/her lifetime. A Marma woman or man can will away her/his property, in part or in its entirety as she or he so wishes. The principle pillars of the Burmese Buddhist Law on succession are as follows: • Husband and wife are the joint owners of all property acquired by their joint efforts during marriage. Hence, the surviving spouse will inherit the deceased’s entire property. • The estate of a deceased person devolves upon those entitled to it under the Burmese Buddhist Law. Though both male and female children are entitled to inherit their parents’ property, not all children are deemed fit to claim the right, i.e., ‘the disobedient child’ who has failed to perform duties towards his/her parents during their lifetime in a manner that is expected of from a responsible child. • The youngest son, who is responsible for looking after his elderly parents till their death, receives the homestead. The ‘Orasa’ child, i.e., the first born who is of age and has been competently assisting in the family affairs including in the accumulation of wealth, receives a larger share than any of his/ her siblings. The rest of the property is equally inherited by other sons and daughters of the deceased. • If the surviving parent re-marries, the children from the first marriage can claim one-half of their parent’s properties. • If the deceased was not married at death, the main principles are that the inheritance shall not ascend when it can descend; that it shall not ascend more than is necessary; and that the nearer excludes the more remote. 3.4.3 Women in Laws of Inheritance Seen from a holistic perspective, it appears that gender inequality is present in varying degrees within indigenous society in the cht in terms of inheritance rights of women, barring the limited exceptions referred to above. Practices with regard to inheritance by the different IPs of the cht have no doubt evolved over the centuries, adopting subtle or substantive changes in tandem with major socio-economic changes. Among such changes are the transitions from largely subsistence-oriented economies to market-oriented ones (particularly from about the 1900s onwards), the introduction of private title (starting in the 1800s and accelerating in the 1950s) and the expansion of nonfarm and non-forest based occupations (service, trade, small industries, etc.).

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Judged from a gender perspective and with a focus upon the impacts, if not the intents, it appears that inheritance laws were less discriminatory against women where private titled land was absent or insubstantial. This is manifested, among others, in the inheritance practices concerning movable property in which case women inherited along with men. In addition to it, the differences were not so sharp. However, with the advent of titled land, the inherent undermining attitude towards women in increasingly patriarchalised societies came to shape the inheritance laws, which has seen the formulation of principles that seem to be more discriminatory against women than before. Another important distinction may be made with regard to inheritance of land. This is the question of whether the land concerned, which applies ­largely but not exclusively to titled land, was meant more for use and transmission to future generations or for exchange. As land came to be regarded more and more as a piece of property that could be bought and sold like other properties, the restrictions against inheritance by women tended to become stricter. Since it is the custom that women will move to their husbands’ homes and will adopt the identity of their husbands’ families after marriage, the dominant notion came to be that in such cases inheritance by women would be against the spirit of maintaining integral landholdings by families, clans and other groups. The problem became even more acute where an ­indigenous woman had an endogamous marriage, particularly to a non-­indigenous man. The cht Administration, involving the Hill District Councils (hdc; in land administration), and the Mauza Headmen (in both land and justice administration), provides some opportunities to deal with the issue of discrimination while nevertheless providing checks and balances to maintain tribal, clan or other group integrity. In the first place, succession certificates and land transfers are generally not granted without the recommendation of the Headman concerned. Secondly, land transfers (along with land titling and compulsory land acquisitions) may not be allowed without the prior consent of the hdcs. Therefore, the Headmen and the hdcs can exercise their discretion to allow or disallow such successions or transfers, as the case might be. The problem lies in that there are no clear guidelines or principles based on which the hdcs and the Headmen would exercise their discretions in this regard. Even if the personal laws of the IPs of the cht were reformed to allow inheritance of land by all women, as of right, the potentially negative consequences it may have in retaining tribal or other sub-group identity and integrity may nevertheless have to be guarded against through the legally-mandated roles of the Headmen and the hdcs in land administration. However, what is the crying need of the day is to formulate such guidelines that ought to be followed by the aforesaid institutions to respect women’s equal rights and yet maintain

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and safeguard IPs’ identity and integrity. Nonetheless, there will still be tension in particular cases. However, the advantage of the cht system and the unwritten status of the personal laws is that exceptional circumstances can be ­accommodated, unlike in more regulated, uniformized and bureaucratized systems dependent upon immutable legal principles that apportion fixed shares in landed properties to family members irrespective of gender, age, economic status, and so forth. A necessary challenge in this regard is to ensure transparent and effective monitoring of the roles of the hdcs and the traditional institutions and the raising of their administrative and other capacities to attain the desirable goals. The desired reforms to the substance of personal laws (to enable women to inherit equally) and facilitation of capacity-raising of the cht institutions can only be effected if broad agreements can be brought forth in this regard. In other words, human rights activists will need to be strategic in demonstrating that the right of women can be protected without disrupting indigenous identity and integrity. Proactive campaigns and dialogues with all major stakeholders, particularly the chtrc, the hdcs, the traditional institutions and the regional political parties of the IPs are a must in this regard. 4

Challenges, Opportunities and Ways Forward

The foregoing discussion has demonstrated that there are several challenges with regard to the prevalence of gender discrimination in the personal laws of the IPs of the cht. However, the opportunities therein in comparison with several non-indigenous communities in Bangladesh should not also be disregarded. This chapter discusses some of these opportunities and challenges, and possible ways to go forward to eliminate or reduce gender discrimination. There are two major aspects of the aforesaid challenges. Foremost is the content of the personal laws and, the other major aspect concerns the execution of the laws. 4.1 Reforms to Personal Laws There is no generic civil law of uniform application in Bangladesh. The chances of such an eventuality does not seem to be very high in the near future, both on account of resistance from majority religious community sentiments and on account of the indigenous peoples’ own concerns over the retention of their distinct political and cultural identities and integrity. Moreover, the nature of indigenous peoples’ struggles to retain their separate identity and integrity do not indicate that they are ready to forego their struggles to forge a

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generic indigenous civil law, let alone join the mainstream women’s struggles for a uniform family code, despite some support from indigenous women’s groups within the cht. Under the circumstances, while following its own path to progress each indigenous peoples of the cht, albeit in ways distinct from that of others, should yet open its doors to pan-indigenous and mainstream women’s rights groups’ agenda, to bring forth equality, if not uniformity, and forsake discrimination. This should not be blindly blocked just because of its external origin. In order to facilitate the desired changes, it is important to seize the opportunities and avenues that are available. Generically, the personal laws of the cht indigenous peoples have an advantage over the religious-oriented laws of the mainstream Bengali population, in three important aspects among others. Firstly, in the case of inheritance, indigenous peoples are free to determine dispositions through a will even where such is at variance with the general principles of the personal law of the people concerned. Secondly, concerning an intestate estate (where there is no will involved), where there is consensus within the family, women may inherit equally or otherwise, irrespective of the principles of the personal law concerned regarding the respective shares of inheritance. Thirdly and most importantly, the personal laws of the indigenous peoples of the cht are not rooted in a formalized written code. Hence, gradual changes in practice may well be brought in as it has occurred over the decades or even centuries. Contrary to traditionalists’ beliefs, or as they so proclaim, customs are never static and are not immune to change. The gradual changes in practice in a broad scale become the norms of a society which are eventually elevated to the principles of customary law. The changes or reforms to customary laws can be brought in through quasijudicial or administrative practices (such as Headmen’s roles in certifying succession rights), through judgments of the traditional courts by setting precedents, and by conscious consensual decisions of the community (through formal assemblies or other methods). For example, if the concerned communities were to forge formal consensus to outlaw polygyny, such as through the traditional institutions, it is unlikely that the Government of Bangladesh would stand in the way, particularly on account of the strong status accorded to such law in rulings of the Supreme Court of Bangladesh and a number of statutory provisions. The prime example of such reforms is the reforms undertaken by the Bawm Social Council on inheritance in Bawm customary law.54 Through attaining a 54

The Khyang people have also reformed similar provisions in their customary law.

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consensus among the leaders of the Bawm community, the reform has seen Bawm women gaining a right to inherit a portion of their parents’ property.55 Such practice of the Bawm people, holding annual and other councils with formal proceedings, may be regarded as a precedent of quasi-formal reform. Judicial pronouncements by the Chiefs’ courts are another possible way.56 The Headmen and Karbaris from different ethnic groups may play a crucial role in this respect, provided they “own” the cause, whose situation at the present time is quite pluralistic. 4.2 Capacity Building of Traditional Institutions Both in the case of formal or quasi-formal legal reform and in the case of the judicial, quasi-judicial and administrative roles played by Headmen and Karbaris, it is absolutely crucial to raise the capacities of the traditional institutions and to sensitize them on women’s rights. Since Headmen and Karbaris are also regarded as social leaders, their persuasive leverage of individuals and families can have the effect of a catalyst, such as in encouraging families to include women in succession certificates. Thereby, with the accumulation of a critical mass of such practices, principles of personal laws can be reformed more easily than before. Therefore, efforts need to be focussed upon both the rights-holders, women’s groups, for example, and the major duty-bearers, the Headmen and Karbaris. Raising awareness for both groups needs to go hand in hand. In many cases, women’s rights activists themselves are unaware of the strengths and weaknesses in personal law and the cht administrative system. Efforts in this regard need to be expanded, deepened and further “mainstreamed.” The appointment of over 150 women Karbaris in the Chakma Circle and nearly 100 women Karbaris in the Mong Circle over the last few years is a positive development in this regard. Efforts need to be concentrated in the Bohmong Circle, which too, has started to break the barriers against the appointment of women Karbaris. Women Karbaris may act both as rights-holders and as duty-bearers, and their insights into both these dimensions are crucial tools in this regard that needs to be seized upon.

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Though the share of the inheritance is yet not equal to their male counterparts, it can be considered as a positive change. The fact that the Council was comprised of only men may have been the reason for such discrepancy in determining the share of inheritance between men and women. Had the Council have included women representatives; the result could well have been otherwise. Examples have been provided in previous sections.

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Similarly, efforts need to be focussed upon increasing the number of women Headmen. There are precedents of daughters and widows of former Headman succeeding to headmanship. The cht Regulation 1900 may be reformed to make the priority given to a “son” of a Headman to also include daughters. In the event where the line of succession is broken, women can be given priority in appointments by the Chiefs and DCs, who play the pivotal role in the appointment of Headman. A related difficulty is the absence of execution powers of the Chief’s and Headmen’s courts. This is partly offset by the cht Regulation provision that enables them to seek the executive support of the Deputy Commissioner, who is also the District Magistrate.57 In a future opportunity for reform, this role of executing the traditional court’s judgments and orders can also be added to the responsibilities of the courts of the District & Sessions Judges in the cht. The powers of fine of the traditional courts have not been reformed since the Pakistan period. While the fining powers that were bestowed upon them at the concerned time were equivalent to that of magistrates, the inflationary changes have not been accounted for. Related matters of court fees, administrative and logistical shortcomings and other matters also deserve attention from the government and development partners of the government. Ideas may be borrowed from other comparable jurisdictions where traditional authorities exercise civil, criminal and other judicial roles that are sanctioned by formal statutes, and are officially recognized, such as in Northeast India (e.g., Nagaland and Meghalaya), Malaysia (Sabah and Sarawak) and Africa. The logistical constraints faced by the Circle Chiefs in monitoring and regulating the work of Headmen and Karbaris in administering personal laws is yet another critical challenge that needs to be addressed. Only a small fraction of disputes are brought forward to the Courts of the Circle Chiefs, with most of the cases being adjudicated by headmen and karbaries with no further appeal or revision. While the Headmen and Karbaris are certainly the major repositories of knowledge and wisdom on customs, and are the custodians of the continuation of such customs, the extent and depth of knowledge on their part may vary from individual to individual. More importantly, how the traditional leaders interpret specific elements of the law while adjudicating on various cases with different circumstantial aspects needs attention, since their individual perceptions or biases may interfere in providing just verdicts. Hence, it is imperative to reinforce existing efforts in coordinating and raising the capacities of the institutions—Chief, Headmen and Karbari—through an objective analysis of their respective strengths, weaknesses and potentials. 57

cht Regulation 1900, Rule 40.

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The task of supervising and monitoring the work of nearly 400 Headmen and 3000 Karbaris of the three Circles by the Circle Chiefs would require immense financial and other assorted resources which are of no avail so far. In this regard, cht-specific state institutions, especially the Ministry of Chittagong Hill Tracts Affairs and the Hill District Council should come forward with monetary and other support. Finally, there is no alternative other than to build and raise awareness on women’s rights in the wider society, coupled with focussed attention on the roles and functions of the major actors in this regard, the traditional institutions and the human rights and women’s rights organizations and networks. A strategic approach needs to be adopted whereby women’s rights can be ­protected and promoted while at the same time giving due regard to the struggles of the cht indigenous peoples to retain their identity, integrity and selfgovernment, particularly in tandem with the letter and spirit of the cht ­Accord of 1997 and international human rights and women’s rights norms and standards. Bibliography Chakma, Advocate Susmita (2001). “Inheritance & Customary Laws,” Annexe to Social Dimension Report, Chittagong Hill Tracts Region Development Plan, Asian Development Bank, Rangamati, February, 2001. Chakma, Advocate Susmita (2013). Status of Indigenous Jumma Women in Customary Law, edited by Mangal Kumar Chakma, Bangladesh Nari Progati Sangha, Dhaka. Chakma, Gyanendu Bikash; Roy, Advocate Protim and Dey, Shoilen (2007a). Khumi Byaktigoto o Paribarik Ain (Khumi Personal and Family Laws), Kopo Sheba Shangho, Rangamati and Manusher Jonyo Foundation, Dhaka. Chakma, Gyanendu Bikash; Roy, Advocate Protim and Dey, Shoilen (2007b). Chakma Byaktigoto o Paribarik Ain (Chakma Personal and Family Laws), Kopo Sheba Shangho, Rangamati and Manusher Jonyo Foundation, Dhaka. Chakma, Gyanendu Bikash; Roy, Advocate Protim and Dey, Shoilen (2007c). Marma Byaktigoto o Paribarik Ain (Marma Personal and Family Laws), Kopo Sheba Shangho, Rangamati and Manusher Jonyo Foundation, Dhaka. Chakma, Gyanendu Bikash; Roy, Advocate Protim and Dey, Shoilen (2007d). Khyang Byaktigoto o Paribarik Ain (Khyang Personal and Family Laws), Kopo Sheba Shangho, Rangamati and Manusher Jonyo Foundation, Dhaka. Chakma, Gyanendu Bikash; Roy, Advocate Protim and Dey, Shoilen (2007e). Pangkhua Byaktigoto o Paribarik Ain (Pangkhua Personal and Family Laws), Kopo Sheba Shangho, Rangamati and Manusher Jonyo Foundation, Dhaka.

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Chakma, Gyanendu Bikash; Roy, Advocate Protim and Dey, Shoilen (2007f). Lushai Byaktigoto o Paribarik Ain (Lushai Personal and Family Laws), Kopo Sheba Shangho, Rangamati and Manusher Jonyo Foundation, Dhaka. Chakma, Gyanendu Bikash; Roy, Advocate Protim and Dey, Shoilen (2007g). Bawm Byaktigoto o Paribarik Ain (Bawm Personal and Family Laws), Kopo Sheba Shangho, Rangamati and Manusher Jonyo Foundation, Dhaka. Chakma, Gyanendu Bikash; Roy, Advocate Protim and Dey, Shoilen (2007h). Tripura Byaktigoto o Paribarik Ain (Tripura Personal and Family Laws), Kopo Sheba Shangho, Rangamati and Manusher Jonyo Foundation, Dhaka. Chakma, Gyanendu Bikash; Roy, Advocate Protim and Dey, Shoilen (2007i). Mro Byaktigoto o Paribarik Ain (Mro Personal and Family Laws), Kopo Sheba Shangho, Rangamati and Manusher Jonyo Foundation, Dhaka. Chakma, Mangal Kumar; Khokshi, James Ward et al. (eds.) (2010). Bangladesher ­Adivasi: Ethnographio Gobeshona, Prothom Khondo (Adivasis of Bangladesh: Ethnographic Research, first Part), Utsho Prokashon and Bangladesh Adivasi Forum, Dhaka. Dewan, Bankim Krishna [2003 (1985)]. Chakma Jatiyo Bichar Poddhoti O Chakma Uttoradhikar Protha (Chakma National Adjudication System and Chakma Inheritance Law), Rangamati. Ishaq, Muhammad (ed.) (1971). Bangladesh District Gazetteers: Chittagong Hill Tracts, Ministry of Cabinet Affairs, Establishment Division, Government of Bangladesh, Dhaka. Martin, Paul A. (2004). Institutional Capacity Building: A review of the cht Institutions of Governance, Chittagong Hill Tracts Development Facility, undp, Rangamati. Maung, Barrister E. (1970). Burmese Buddhist Law, Daw Than Tint, Rangoon. Qanungo, Suniti Bhushan (1998). Chakma Resistance to British Domination (1772–1798), Qanungopara, Chittagong. Roy, Raja Bhuvan Mohan (1971). ‘History of the Chakma Raj Family’ in Muhammed Ishaq (ed.), Bangladesh District Gazetteers: Chittagong Hill Tracts, Ministry of Cabinet Affairs, Government of Bangladesh, 1971, pp. 33–36. Roy, Raja Devasish (2000). “Administration” in Philip Gain (ed.), The Chittagong Hill Tracts: Life and Nature at Risk, sehd, Dhaka, pp. 43–57. Roy, Raja Devasish (2004). “Challenges for Juridical Pluralism and Customary Laws of Indigenous Peoples: The Case of the Chittagong Hill Tracts, Bangladesh” in Arizona Journal of International and Comparative Law, Vol. 21, No. 1, Spring, 2004, pp. 113–182. Roy, Raja Devasish (2005). Traditional Customary Laws and Indigenous Peoples in Asia, Minority Rights Group International, London, March, 2005. Roy, Raja Devasish (2010). “The Chittagong Hill Tracts Regulation, 1900” in Raja Devasish Roy & Pratikar Chakma (eds.), The Chittagong Hill Tracts Regulation, 1900, Association for Land Reform and Development (alrd), pp. 9–20.

Personal Laws of the Indigenous Peoples

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Roy, Raja Devasish (2011). “Asserting Customary Land Rights in the Chittagong Hill Tracts, Bangladesh: Challenges for Legal and Juridical Pluralism” in Marcus ­Colchester & Sophie Chao (eds.), Divers Paths to Justice: Legal Pluralism and the Rights of Indigenous Peoples in Southeast Asia, Indigenous Peoples Pact (aipp), Forest Peoples Programme (fpp), The Centre for People and Forests (recoftc), Rights and Resources Initiative (rri), Chiang Mai, pp. 106–125. Roy, Raja Devasish (2012). ‘Adjudication of Family Disputes and Indigenous Women’s Rights in the Chittagong Hill Tracts’ in Sanjeeb Drong (ed.), Solidarity, 2012, Bangladesh Indigenous Peoples Forum, Dhaka, pp. 82–93. Serajuddin, A.M. (1968). “The Rajas of the Chittagong Hill Tracts and their Relations with the Mughals and the East India Company in the Eighteenth Century,” in Journal of the Pakistan Historical Society, Vol. xix, Part 1, Pakistan Historical Society, Karachi, pp. 53–60. Tripura, Shaktipodo and Tripura, Sontosh Bikash (2010). “Tripura” in Bangladesher Adivasi: Ethnographio Gobeshona, Prothom Khondo (Adivasis of Bangladesh: Ethnographic Research, first Part), Mangal Kumar Chakma, James Ward Khokshi et al. (eds.), Utsho Prokashon and Bangladesh Adivasi Forum, Dhaka. unesco and Women for Women (2005). Marriage, Inheritance and Family Laws in Bangladesh: Towards a Common Family Code, Women for Women, Dhaka, March 2005. Van Schendel, Willem (ed.) (1992). Francis Buchanan in Southeast Bengal (1798): His Journey to Chittagong, Chittagong Hill Tracts, Noakhali and Comilla, University Press Limited, Dhaka. Van Schendel, Willem, Wolfgang Mey & Aditya Kumar Dewan (2000). The Chittagong Hill Tracts: Living in a Borderland, White Lotus Press, Bangkok.

ANNEX 1

Hindu Marriage Registration Act, 2012 (Act No. 40 of 2012)

[24 September, 2012]

Law* enacted for the purpose of providing for the registration of Hindu marriages with the aim to preserve documentary evidence of sacramental marriages of Hindus Since it is timely and expedient to make provisions for the registration of Hindu marriages for the purpose of preserving documentary evidence of sacramental marriages of Hindus it is hereby enacted as follows: Short title, application and commencement

Definitions

1.  (1) T  his Act may be called the Hindu Marriage Registration Act, 2012. (2) It shall apply to all Hindus resident in Bangladesh, irrespective of citizenship. (3) It shall come into effect on the day the Government, by notification in the official Gazette, declares it to be so effective. 2. Unless there is anything repugnant in the subject or context, in this Act, (a) “Hindu” means any Bangladeshi citizen professing the Hindu religion. (b) “Hindu Marriage Registrar” means a Hindu Marriage Registrar appointed under Section 4; (c) “Hindu marriage” means a marriage between Hindus solemnized and performed according to the customary rites and practices approved by the Hindu scriptures; (d) “Prescribed” means prescribed by the rules; (e)  “Rules” means the rules made under this Act; (f) “District Registrar” means the Registrar appointed under the Registration Act, 1908 or any officer authorized by him.

* Unofficial translation by Prof. Shahnaz Huda. © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357273_008

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Hindu Marriage Registration Act, 2012

Registration of Hindu 3. (1)  Notwithstanding anything contained in any law, custom marriage or practice, a Hindu marriage may be registered in accordance with the prescribed rules for the purpose of preserving documentary evidence of such Hindu marriage. (2) Notwithstanding anything contained in Sub-section (1), the validity of any marriage solemnized in accordance with Hindu scriptures will not be affected because it has not been registered under this Act. Appointment of 4. (1)  For the purpose of registering Hindu marriages under Marriage Registrars this Act, the Government shall appoint Hindu Marriage Registrars for City Corporations in areas determined by it from time to time and in the case of areas outside of City Corporations, in each Upazila. (2) Any person appointed under Sub-section (1) for the purpose of this Act shall be designated as a Hindu Marriage Registrar. (3) Qualification required for appointment of a Hindu Marriage Registrar, his jurisdiction, the fees to be charged by him and other ancillary matters relating thereto shall be determined by law. Restrictions as 5.   Notwithstanding anything contained in any other law, if regards registration any Hindu male under the age of 21 (twenty one) years or of Hindu marriage any Hindu female under the age of 18 (eighteen) years enters into marriage, such marriage cannot be registered under this Act. Procedure for 6. (1)  After a Hindu marriage has been solemnized according marriage registration to the Hindu religion, customs and rituals, for the purpose of preserving documentary evidence of such Hindu marriage, on the proper application of either party to the marriage, the Hindu Marriage Registrar shall register the marriage. (2)  A marriage solemnized according to the Hindu religion, customs and rituals before the commencement of this Act may, on the application of either party to the marriage, be registered according to the provisions of this Act. Fees for marriage 7.   The Government may, from time to time, by rules deterregistration etc. mine the necessary fees for registration of Hindu marriages, inspection of Registers and supplying of copies.

Hindu Marriage Registration Act, 2012 Duties of Marriage Registrar not government service Restriction on gainful employment Inspection of registers Maintenance of registers etc.

Copies of entry to be given to parties

Superintendence, control etc.

249

8.  The appointment as a Hindu Marriage Registrar under Section 4 or performance of the duties of a Hindu Marriage Registrar shall not be deemed to be government service. 9.  A  Hindu Marriage Registrar cannot be employed in any service for emolument other than in any institution prescribed by the rules of that area. 10.  Any person, subject to the payment of the prescribed fee, may inspect the Hindu Marriage Register or obtain a copy of a marriage registered therein. 11. (1) Every Hindu Marriage Registrar shall maintain registers in the prescribed form and procedure. (2) At the beginning of each year, every Hindu Marriage Registrar shall register marriages in the register mentioned in Sub-section (1) under new serial numbers. (3) Every Hindu Marriage Registrar shall keep safely each register maintained by him until the same is filled and shall, if he leaves his jurisdiction and his appointment is terminated or suspended, immediately deposit such register and other relevant documents to the District Registrar for safe custody. 12. (1) For the purpose of Hindu marriages registered under this Act, upon application of the parties to the marriage or their representatives, the Hindu Marriage Registrar may, within the time prescribed by the rules, supply copies of the marriage registration. (2) The prescribed fees shall be payable for the receipt of copies under Sub-section (1). 13. (1) Every Hindu Marriage Registrar shall perform the duties of his office under the superintendence and control of the District Registrar. (2)  The Inspector-General of Registration shall exercise a general superintendence over offices of all Hindu Marriage Registrars. (3)  The District Registrar may at any time inspect the offices of any Hindu Marriage Registrar under the local limits of his jurisdiction. Explanation: For the purposes of this section, “Inspector General” means any Inspector General Registration appointed under the Registration Act, 1908 or an officer authorized by him.

250 Revocation or suspension of an appointment

Power to make rules

Hindu Marriage Registration Act, 2012 14. If the Government is of the opinion that a Hindu Marriage Registrar is guilty of any misconduct in the discharge of his duties or has become unfit or physically incapable of discharging his duties, it may, by order in writing, revoke or suspend his appointment for a period, not exceeding two years. Provided that no such order shall be made unless the Hindu Marriage Registrar has been given a reasonable opportunity of showing cause why that order should not be made. 15.  The Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Act.

ANNEX 2

The Guardians and Wards Act, 1890 (Act No. viii of 1890)

[21st March, 1890] An Act to consolidate and amend the law relating to Guardian and Ward.1 WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward; It is hereby enacted as follows: Chapter i: Preliminary Title, extent and 1. (1) This Act may be called the Guardians and Wards Act, 1890. commencement (2) It extends to the whole of Bangladesh; and (3) It shall come into force on the first day of July, 1890. [Repealed] 2. [Repealed by section 2 and Schedule of the Repealing Act, 1938 (Act No. i of 1938).] [Omitted] 3. [Omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. viii of 1973).] Definitions 4. In this Act, unless there is something repugnant in the subject or context,(1) “minor” means a person who, under the provisions of the Majority Act, 1875, is to be deemed not to have attained his majority: (2) “guardian” means a person having the care of the person of a minor or of his property, or of both his person and property: (3) “ward” means a minor for whose person or property, or both, there is a guardian: (4) “District Court” has the meaning assigned to that expression in the Code of Civil Procedure, and includes the High

1 Throughout this Act, except otherwise provided, the words “Bangladesh,” “Government” and “High Court Division” were substituted, for the words “Pakistan,” “Provincial Government” and “High Court” respectively by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. viii of 1973).

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357273_009

252

ANNEX 2

Court Division in the exercise of its ordinary original civil jurisdiction: (5) “the Court” means(a) the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian; or (b) where a guardian has been appointed or declared in pursuance of any such application(i) the Court which, or the Court of the Officer who, appointed or declared the guardian or is under this Act deemed to have appointed or declared the guardian; or (ii) in any matter relating to the person of the ward the District Court having jurisdiction in the place where the ward for the time being ordinarily resides; or (c) in respect of any proceeding transferred under section 4A, the Court of the officer to whom such proceeding has been transferred. (6) “Collector” means the chief officer in charge of the revenue-­ administration of a district, and includes any officer whom the Government, by notification in the official Gazette, may, by name or in virtue of his Office, appoint to be a Collector in any local area, or with respect to any class of persons, for all or any of the purposes of this Act: [ * * *]2 (8) “Prescribed” means prescribed by rules made by the [Supreme Court]3 under this Act. Power to confer [4A. (1) The High Court Division may, by general or special order, jurisdiction on empower any officer exercising original civil jurisdiction subordinate, subordinate to a District Court, or authorise the Judge of judicial officers any District Court to empower any such officer subordinate and to transfer to him, to dispose of any proceedings under this Act transproceedings to ferred to such officer under the provisions of this section. such officers (2) The Judge of a District Court may, by order in writing, transfer at any stage any proceeding under this Act pending in his

2 Clause (7) was omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. viii of 1973). 3 The words “Supreme Court” were substituted, for the words “High Court” by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. viii of 1973).

the Guardians and Wards Act, 1890

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Court for disposal to any officer subordinate to him empowered under sub-section (1). (3) The Judge of a District Court may at any stage transfer to his own Court or to any officer subordinate to him empowered under sub-section (1) any proceeding under this Act pending in the Court of any other such officer. (4) When any proceedings are transferred under this section in any case in which a guardian has been appointed or declared, the Judge of the District Court may, by order in writing, declare that the Court of the Judge or officer to whom they are transferred shall, for all or any of the purposes of this Act, be deemed to be the Court which appointed or declared the guardian.]4

Chapter ii: Appointment and Declaration of Guardians [Omitted]

5. [Omitted by Section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. viii of 1973).] Saving of power 6. [ * * *]5 nothing in this Act shall be construed to take away or to appoint in derogate from any power to appoint a guardian of [ * * *]6 perother cases son or property, or both, which is valid by the law to which the minor is subject. Power of the 7. (1) Where the Court is satisfied that it is for the welfare of a miCourt to make nor that an order should be madeorder as to (a) appointing a guardian of his person or property, or guardianship both, or (b) declaring a person to be such a guardian, the Court may make an order accordingly [ : Provided that no person, other than a citizen of Bangladesh, shall be appointed or declared to be a guardian of a minor who is a citizen of Bangladesh.]7 4 Section 4A was inserted by section 8 of the Guardians and Wards (Amendment) Act, 1926 (Act No. iv of 1926). 5 The words and comma “In the case of a minor who is not an European British subject,” were omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. viii of 1973). 6 The word “his” was omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. viii of 1973). 7 A colon was substituted for the full-stop at the end of sub-section (1) and thereafter the proviso was added by section 2 of the Guardians and Wards (Amendment) Act, 1982 (Act No. l of 1982).

254

ANNEX 2

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court. (3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act. Persons entitled 8. An order shall not be made under the last foregoing section exto apply for order cept on the ­application of(a) the person desirous of being, or claiming to be, the guardian of the minor, or (b) any relative or friend of the minor, or (c) the Collector of the district or other local area within which the minor ordinarily resides or in which he has property, or (d) the Collector having authority with respect to the class to which the minor belongs. Court having 9. (1) If the application is with respect to the guardianship of the jurisdiction person of the minor, it shall be made to the District Court to ­entertain having jurisdiction in the place where the minor ordinarily application resides. (2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property. (3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction. Form of 10. (1) If the application is not made by the Collector, it shall be application by petition signed and verified in manner prescribed by the Code of Civil Procedure for the signing and verification of a plaint, and stating, so far as can be ascertained,(a) the name, sex, religion, date of birth and ordinary residence of the minor; (b) where the minor is a female, whether she is married, and, if so, the name and age of her husband;

the Guardians and Wards Act, 1890

Procedure on admission of application

255

(c) the nature, situation and approximate value of the property, if any, of the minor; (d) the name and residence of the person having the custody or possession of the person or property of the minor; (e) what near relations the minor has, and where they reside; (f) whether a guardian of the person or property, or both, of the minor has been appointed any person entitled or claiming to be entitled by the law to which the minor is subject to make such an appointment; (g) whether an application has at any time been made to the Court or to any other Court with respect to the guardianship of the person or property, or both, of the minor, and, if so, when, to what Court and with what result; (h) whether the application is for the appointment or declaration of a guardian of the person of the minor, or of his property, or of both; (i) where the application is to appoint a guardian, the qualifications of the proposed guardian; (j) where the application is to declare a person to be a guardian, the grounds on which that person claims; (k) the causes which have led to the making of the application; and (l) such other particulars, if any, as may be prescribed or as the nature of the application renders it necessary to state. (2) If the application is made by the Collector, it shall be by letter addressed to the Court and forwarded by post or in such other manner as may be found convenient, and shall state as far as possible the particulars mentioned in sub-section (1). (3) The application must be accompanied by a declaration of the willingness of the proposed guardian to act and the declaration must be signed by him and attested by at least two witnesses. 11. (1) If the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof, and cause notice of the application and of the date fixed for the hearing(a) to be served in the manner directed in the Code of Civil Procedure on-

256

ANNEX 2

(i) the parents of the minor if they are residing in Bangladesh, (ii) the person, if any, named in the petition or letter as having the custody or possession of the person or property of the minor, (iii) the person proposed in the application or letter to be appointed or declared guardian, unless that person is himself the applicant, and (iv) any other person to whom, in the opinion of the Court, special notice of the application should be given; and (b) to be posted on some conspicuous part of the courthouse, and of the residence of the minor, and otherwise published in such manner as the Court, subject to any rules made by the [Supreme Court]8 under this Act, thinks fit. (2) The Government may, by general or special order, require that, when any part of the property described in a petition under Section 10, sub-section (1), is land of which a Court of Wards could assume the superintendence, the Court shall also cause a notice as aforesaid to be served on the Collector in whose district the minor ordinarily resides, and on every Collector in whose district any portion of the land is situate, and the Collector may cause the notice to be published in any manner he deems fit. (3) No charge shall be made by the Court or the Collector for the service or publication of any notice served or published under sub-section (2). Power to make 12. (1) The Court may direct that the person, if any, having the interlocutory custody of the minor shall produce him or cause him to be order for produced at such place and time and before such person as production it appoints, and may make such order for the temporary cusof minor and tody and protection of the person or property of the minor interim protection as it thinks proper. of person and (2) If the minor is a female who ought not to be compelled to property appear in public, the direction under sub-section (1) for her

8 The words “Supreme Court” were substituted, for the words “High Court” by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. viii of 1973).

the Guardians and Wards Act, 1890

257

production shall require her to be produced in accordance with the customs and manners of the country. (3) Nothing in this section shall authorise(a) the Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or (b) any person to whom the temporary custody and protection of the property of a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property. Hearing of 13. On the day fixed for the hearing of the application, or as soon evidence afterwards as may be, the Court shall hear such evidence before making as may be adduced in support of or in opposition to the of order application. Simultaneous 14. (1) If proceedings for the appointment or declaration of a Proceedings in guardian of a minor are taken in more Courts than one, each different Courts of those Courts shall, on being apprised of the proceedings in the other Court or Courts, stay the proceedings before itself. (2) [Each such Court]9 shall report the case to the High Court Division and the High Court Division shall determine in which of the Courts the ­Proceedings with respect to the appointment or declaration of a guardian of the minor shall be had. (3) In any other case in which proceedings are stayed under sub-section (1), the Courts shall report the case to, and be guided by such orders as they may receive from, their respective Government. Appointment of 15. (1) If the law to which the minor is subject admits of his having two or more joint guardians of his person or property, or declaration both, the Court may, if it thinks fit, appoint or declare them. of several [ * * *]10 guardians

9 10

The words “Each such Court” were substituted, for the words and comma “If the Courts are both or all subordinate to the same High Court, they” by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. viii of 1973). Sub-sections (2) and (3) were omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. viii of 1973).

258

ANNEX 2

(4) Separate guardians may be appointed or declared of the person and of the property of a minor. (5) If a minor has several properties, the Court may, if it thinks fit, appoint or declare a separate guardian for any one or more of the properties. Appointment or 16. If the Court appoints or declares a guardian for any property sitdeclaration of uate beyond the local limits of its jurisdiction, the Court having guardian for jurisdiction in the place where the property is situate shall, on property beyond production of a certified copy of the order appointing or declarjurisdiction of ing the guardian, accept him as duly appointed or declared and the Court give effect to the order. Matters to be 17. (1) In appointing or declaring the guardian of a minor, the Court considered shall, subject to the provisions of this section, be guided by by the Court what, consistently with the law to which the minor is subin appointing ject, appears in the circumstances to be for the welfare of the guardian minor. (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference. [ * * *]11 (5) The Court shall not appoint or declare any person to be a guardian against his will. Appointment 18. Where a Collector is appointed or declared by the Court in virtue or declaration of his office to be guardian of the person or property, or both, of of Collector in a minor, the order appointing or declaring him shall be deemed virtue of office to authorise and require the person for the time being holding the office to act as guardian of the minor with respect to his person or property, or both, as the case may be. Guardian not 19. Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is to be appointed under the superintendence of a Court of Wards, or to appoint or by the Court in declare a guardian of the personcertain cases 11

Sub-section (4) was omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. viii of 1973).

the Guardians and Wards Act, 1890

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(a) of a minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person, or (b) subject to the provisions of this Act with respect to European british subjects, of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor, or (c) of a minor whose property is under the superin-tendence of a Court of Wards competent to appoint a guardian of the person of the minor.

Chapter iii: Duties, Rights and Liabilities of Guardians General Fiduciary relation of guardian to ward

20. (1) A guardian stands in a fiduciary relation to his ward, and, save as provided by the will or other instrument, if any, by which he was appointed, or by this Act, he must not make any profit out of his office. (2) The fiduciary relation of a guardian to his ward extends to and affects purchases by the guardian of the property of the ward, and by the ward of the property of the guardian, immediately or soon after the ward has ceased to be a minor, and generally all transactions between them while the influence of the guardian still lasts or is recent. Capacity of 21. A minor is incompetent to act as guardian of any minor except minors to act his own wife or child or, where he is the managing member of as guardians an undivided Hindu family, the wife or child of another minor member of that family. Remuneration 22. (1) A guardian appointed or declared by the Court shall be enof guardian titled to such allowance, if any, as the Court thinks fit for his care and pains in the execution of his duties. (2) When an officer of the Government, as such officer, is so appointed or declared to be guardian, such fees shall be paid to the Government out of the property of the ward as the Government by general or special order, directs. Control of 23. A collector appointed or declared by the Court to be guardian Collector as of the person or property, or both, of a minor shall, in all matguardian ters connected with the guardianship of his ward, be subject to the control of the Government or of such ­authority as that

260

ANNEX 2 ­ overnment, by notification in the official Gazette, appoints in G this behalf.



Guardian of the Person



Guardian of Property

Duties of 24. A guardian of the person of a ward is charged with the custody guardian of the of the ward and must look to his support, health and education, person and such other matters as the law to which the ward is subject requires. Title of 25. (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for guardian to the welfare of the ward to return to the custody of his guardcustody of ian, may make an order for his return, and for the purpose of ward enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian. (2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by Section 100 of the [Code of Criminal Procedure, 1898].12 (3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship. Removal of 26. (1) A guardian of the person appointed or declared by the Court, unless he is the Collector or is a guardian appointed ward from by will or other instrument, shall not, without the leave of jurisdiction the Court by which he was appointed or declared, remove the ward from the limits of its jurisdiction except for such purposes as may be prescribed. (2) The leave granted by the Court under sub-section (1) may be special or general, and may be defined by the order granting it.

Duties of guardian of property

12

27. A guardian of the property of a ward is bound to deal therewith as carefully as a man of ordinary prudence would deal with it if it were his own, and, subject to the provisions of this Chapter, he may do all acts which are reasonable and proper for the realisation, protection or benefit of the property.

The words, comma and figure “Code of Criminal Procedure, 1898” were substituted, for the words, comma and figure “Code of Criminal Procedure, 1882” by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. viii of 1973).

the Guardians and Wards Act, 1890 Powers of testamentary guardian

261

28. Where a guardian has been appointed by will or other instrument, his power to mortgage or charge, or transfer by sale, gift, exchange or otherwise, immoveable property belonging to his ward is subject to any restriction which may be imposed by the instrument, unless he has under this Act been declared guardian and the Court which made the declaration permits him by an order in writing, notwithstanding the restriction, to dispose of any immoveable property specified in the order in a manner permitted by the order. Limitation of 29. Where a person other than a Collector, or than a guardian appointed by will or other instrument, has been appointed or depowers of clared by the Court to be guardian of the property of a ward, he guardian shall not, without the previous permission of the Court,of property (a) mortgage or charge, or transfer by sale, gift, exchange or othappointed or erwise, any part of the immoveable property of his ward, or declared by (b) lease any part of that property for a term exceeding five years the Court or for any term extending more than one year beyond the date on which the ward will cease to be a minor. Voidability of 30. A disposal of immoveable property by a guardian in contravention of either of the two last foregoing sections is voidable at the transfers made instance of any other person affected thereby. in contravention of section 28 or section 29 Practice with 31. (1) Permission to the guardian to do any of the acts mentioned respect to in section 29 shall not be granted by the Court except in case permitting of necessity or for an evident advantage to the ward. transfers under (2) The order granting the permission shall recite the necessity section 29 or advantage, as the case may be, describe the property with respect to which the act permitted is to be done, and specify such conditions, if any, as the Court may see fit to attach to the permission; and it shall be recorded, dated and signed by the Judge of the Court with his own hand, or when from any cause he is prevented from recording the order with his own hand, shall be taken down in writing from his dictation and be dated and signed by him. (3) The Court may in its discretion attach to the permission the following among other conditions, namely:(a) that a sale shall not be completed without the sanction of the Court; (b) that a sale shall be made to the highest bidder by public auction, before the Court or some person specially

262

ANNEX 2

appointed by the Court for that purpose, at a time and place to be specified by the Court, after such proclamation of the intended sale as the Court, subject to any rules made under this Act by the [Supreme Court],13 directs; (c) that a lease shall not be made in consideration of a premium or shall be made for such term of years and subject to such rents and covenants as the Court directs; (d) that the whole or any part of the proceeds of the act permitted shall be paid into the Court by the guardian, to be disbursed therefrom or to be invested by the Court on prescribed securities or to be otherwise disposed of as the Court directs. (4) Before granting permission to a guardian to do an act mentioned in section 29, the Court may cause notice of the application for the permission to be given to any relative or friend of the ward who should, in its opinion, receive notice thereof, and shall hear and record the statement of any person who appears in opposition to the application. Variation of 32. Where a guardian of the property of a ward has been appointed powers of or declared by the Court and such guardian is not the Collector, guardian the Court may, from time to time, by order, define, restrict or of property extend his powers with respect to the property of the ward in ­appointed or such manner and to such extent as it may consider to be for the declared by advantage of the ward and consistent with the law to which the the Court ward is subject. Right of 33. (1) A guardian appointed or declared by the Court may apply by Guardian so petition to the Court which appointed or declared him for appointed or its opinion, advice or direction on any present question redeclared to ­apply specting the management or administration of the property to the Court of his ward. for opinion in (2) If the Court considers the question to be proper for summamanagement of ry disposal, it shall cause a copy of the petition to be served property of ward on, and the hearing thereof may be attended by, such of the persons interested in the application as the Court thinks fit. (3) The guardian stating in good faith the facts in the petition and acting upon the opinion, advice or direction given by the Court shall be deemed, so far as regards his own 13

The words “Supreme Court” were substituted, for the words “High Court” by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. viii of 1973).

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263

r­ esponsibility, to have performed his duty as guardian in the subject-matter of the application. Obligations on 34. Where a guardian of the property of a ward has been appointed guardian or declared by the Court and such guardian is not the Collector, of property he shall,­appointed or (a) if so required by the Court, give a bond, as nearly as may declared by the be in the prescribed form, to the Judge of the Court to enCourt sure for the benefit of the Judge for the time being, with or without sureties, as may be prescribed, engaging duly to account for what he may receive in respect of the property of the ward; (b) if so required by the Court, deliver to the Court, within six months from the date of his appointment or declaration by the Court or within such other time as the Court directs, a statement of the immoveable property belonging to the ward, of the money and other moveable property which he has received on behalf of the ward up to the date of delivering the statement and of the debts due on that date to or from the ward; (c) if so required by the Court, exhibit his accounts in the Court at such times and in such form as the Court from time to time directs; (d) if so required by the Court, pay into the Court at such time as the Court directs the balance due from him on those accounts, or so much thereof as the Court directs; and (e) apply for the maintenance, education and advancement of the ward and of such persons as are dependent on him, and for the celebration of ceremonies to which the ward or any of those persons may be a party, such portion of the income of the property of the ward as the Court from time to time directs, and, if the Court so directs, the whole or any part of that property. Power to [34A. When accounts are exhibited by a guardian of the property of a ward in pursuance of a requisition made under clause (c) of award Section 34 or otherwise, the Court may appoint a person to audit remuneration the accounts, and may direct that remuneration for the work be for auditing paid out of the income of the property.]14 accounts 14

Section 34A was inserted by section 2 of the Guardians and Wards (Amendment) Act, 1929 (Act No. xvii of 1929).

264

ANNEX 2

Suit against 35. Where a guardian appointed or declared by the Court has given guardian where a bond duly to account for what he may receive in respect of administrationthe property of his ward, the Court may, on application made by bond was taken petition and on being satisfied that the engagement of the bond has not been kept, and upon such terms as to security, or providing that any money received be paid into the Court, or otherwise as the Court thinks fit, assign the bond to some proper person, who shall thereupon be entitled to sue on the bond in his own name as if the bond had been originally given to him instead of to the Judge of the Court and shall be entitled to recover thereon as trustee for the ward, in respect of any breach thereof. Suit against 36. (1) Where a guardian appointed or declared by the Court has not given a bond as aforesaid, any person, with the leave of guardian where the Court, may, as next friend, at any time during the continadministrationuance of the minority of the ward, and upon such terms as bond was not aforesaid, institute a suit against the guardian, or, in case of taken his death, against his representative, for an account of what the guardian has received in respect of the property of the ward, and may recover in the suit, as trustee for the ward, such amount as may be found to be payable by the guardian or his representative, as the case may be. (2) The provisions of sub-section (1) shall, so far as they relate to a suit against a guardian, be subject to the provisions of [Order xxxii, rules 1 and 4(2), in Schedule i to the Code of Civil Procedure, 1908,]15 as amended by this Act. General 37. Nothing in either of the two last foregoing sections shall be liability construed to deprive a ward or his representative of any remof guardian edy against his guardian, or the representative of the guardian, as trustee which, not being expressly provided in either of those sections, any other beneficiary or his representative would have against his trustee or the representative of the trustee.



Termination of Guardianship

Right of survivorship among joint guardians 15

38. On the death of one of two or more joint guardians, the guardianship continues to the survivor or survivors until a further appointment is made by the Court.

The words, commas, figures and brackets “Order xxxii, rules 1 and 4 (2), in Schedule 1 to the Code of Civil Procedure, 1908,” were substituted, for the words and figure “section 440 of the Code of Civil Procedure” by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. viii of 1973).

the Guardians and Wards Act, 1890 Removal of guardian

Discharge of guardian

265

39. The Court may, on the application of any person interested, or of its own motion, remove a guardian appointed or declared by the Court, or a guardian appointed by will or other instrument, for any of the following causes, namely:(a) for abuse of his trust; (b) for continued failure to perform the duties of his trust; (c) for incapacity to perform the duties of his trust; (d) for ill-treatment, or neglect to take proper care, of his ward; (e) for contumacious disregard of any provision of this Act or of any order of the Court; (f) for conviction of an offence implying, in the opinion of the Court, a defect of character which unfits him to be the guardian of his ward; (g) for having an interest adverse to the faithful performance of his duties; (h) for ceasing to reside within the local limits of the jurisdiction of the Court; (i) in the case of a guardian of the property, for bankruptcy or insolvency; (j) by reason of the guardianship of the guardian ceasing, or being liable to cease, under the law to which the minor is subject: Provided that a guardian appointed by will or other instrument, whether he has been declared under this Act or not, shall not be removed(a) for the cause mentioned in clause (g) unless the adverse interest accrued after the death of the person who appointed him, or it is shown that, that person made and maintained the appointment in ignorance of the existence of the adverse interest, or (b) for the cause mentioned in clause (h) unless such guardian has taken up such a residence as, in the opinion of the Court, renders it impracticable for him to discharge the functions of guardian. 40. (1) If a guardian appointed or declared by the Court desires to resign his office, he may apply to the Court to be discharged. (2) If the Court finds that there is sufficient reason for the application, it shall discharge him, and if the guardian making the application is the Collector and the Government approves of his applying to be discharged, the Court shall in any case discharge him.

266 Cessation of authority of guardian

ANNEX 2

41. (1) The powers of a guardian of the person cease(a) by his death, removal or discharge; (b) by the Court of Wards assuming superintendence of the person of the ward; (c) by the ward ceasing to be a minor; (d) in the case of a female ward, by her marriage to a husband who is not unfit to be guardian of her person or, if the guardian was appointed or declared by the Court, by her marriage to a husband who is not, in the opinion of the Court, so unfit; or, (e) in the case of a ward whose father was unfit to be guardian of the person of the ward, by the father ceasing to be so or, if the father was deemed by the Court to be so unfit, by his ceasing to be so in the opinion of the Court. (2) The powers of a guardian of the property cease(a) by his death, removal or discharge; (b) by the Court of Wards assuming superintendence of the property of the ward; or (c) by the ward ceasing to be a minor. (3) When for any cause the powers of a guardian cease, the Court may require him or, if he is dead, his representative to deliver as it directs any property in his possession or control belonging to the ward or any accounts in his possession or control relating to any past or present property of the ward. (4) When he has delivered the property or accounts as required by the Court, the Court may declare him to be discharged from his liabilities save as regards any fraud which may subsequently be discovered. Appointment 42. When a guardian appointed or declared by the Court is disof successor to charged, or, under the law to which the ward is subject, ceases guardian dead, to be entitled to act, or when any such guardian or a guarddischarged or ian appointed by will or other instrument is removed or dies, removed the Court, of its own motion or on application under Chapter ii, may, if the ward is still a minor, appoint or declare another guardian of his person or property, or both, as the case may be.

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267

Chapter iv: Supplemental Provisions Orders for 43. (1) The Court may, on the application of any person interested regulating or of its own motion, make an order regulating the conduct or proceedings of any guardian appointed or declared by the conduct or Court. proceedings of (2) Where there are more guardians than one of a ward, and guardians, and they are unable to agree upon a question affecting his welenforcement of fare, any of them may apply to the Court for its direction, those orders and the Court may make such order respecting the matter in difference as it thinks fit. (3) Except where it appears that the object of making an order under sub-section (1) or sub-section (2) would be defeated by the delay, the Court shall, before making the order, direct notice of the application therefor or of the intention of the Court to make it, as the case may be, to be given, in a case under sub-section (1), to the guardian or, in a case under sub-section (2), to the guardian who has not made the application. (4) In case of disobedience to an order made under sub-section (1) or sub-­section (2), the order may be enforced in the same manner as an injunction granted under [Order xxxix, rules 1 and 2]16 of the Code of Civil ­Procedure, in a case under subsection (1), as if the ward were the plaintiff and the guardian were the defendant or, in a case under sub-section (2), as if the guardian who made the application were the plaintiff and the other guardian were the defendant. (5) Except in a case under sub-section (2), nothing in this section shall apply to a Collector who is, as such, a guardian. Penalty for 44. If, for the purpose or with the effect of preventing the Court removal of from exercising its authority with respect to a ward, a guardward from ian appointed or declared by the Court removes the ward from jurisdiction the limits of the jurisdiction of the Court in contravention of the provisions of Section 26, he shall be liable, by order of the Court, to fine not exceeding one thousand Taka, or to imprisonment in the civil jail for a term which may extend to six months. 16

The words, comma and figures “Order xxxix, rules 1 and 2” were substituted, for the words and figures “section 492 or section 493” by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. viii of 1973).

268 Penalty for contumacy

Reports by Collectors and Subordinate Courts

ANNEX 2 45. (1) In the following cases, namely:(a) if a person having the custody of a minor fails to produce him or cause him to be produced in compliance with a direction under section 12, sub-section (1), or to do his utmost to compel the minor to return to the custody of his guardian in obedience to an order under section 25, sub-section (1), or (b) if a guardian appointed or declared by the Court fails to deliver to the Court, within the time allowed by or under clause (b) of section 34, a statement required under that clause, or to exhibit accounts in compliance with a requisition under clause (c) of that section, or to pay into the Court the balance due from him on those accounts in compliance with a requisition under clause (d) of that section, or (c) if a person who has ceased to be a guardian, or the representative of such a person, fails to deliver any property or accounts in compliance with a requisition under section 41, sub-section (3), the person, guardian or representative, as the case may be, shall be liable, by order of the Court, to fine not exceeding one hundred Taka, and in case of recusancy to further fine not exceeding ten Taka, for each day after the first during which the default continues, and not exceeding five hundred Taka in the aggregate, and to detention in the civil jail until he undertakes to produce the minor or cause him to be produced, or to compel his return, or to deliver the statement or to exhibit the accounts, or to pay the balance, or to deliver the property or accounts, as the case may be. (2) If a person who has been released from detention on giving an undertaking under sub-section (1) fails to carry out the undertaking within the time allowed by the Court, the Court may cause him to be arrested and re-­committed to the civil jail. 46. (1) The Court may call upon the Collector, or upon any Court subordinate to the Court, for a report on any matter arising in any proceeding under this Act and treat the report as evidence. (2) For the purpose of preparing the report the Collector or the Judge of the Subordinate Court, as the case may be, shall

the Guardians and Wards Act, 1890

Orders appealable

Finality of other orders

Costs

17

269

make such inquiry as he deems necessary, and may for the purposes of the inquiry exercise any power of compelling the attendance of a witness to give evidence or produce a document which is conferred on a Court by the Code of Civil Procedure. 47. An appeal shall lie to the High Court Division from an order made by a Court,(a) under section 7, appointing or declaring or refusing to appoint or declare a guardian; or (b) under section 9, sub-section (3), returning an application; or, (c) under section 25, making or refusing to make an order for the return of a ward to the custody of his guardian; or, (d) under section 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court or imposing conditions with respect thereto; or, (e) under section 28 or section 29, refusing permission to a guardian to do an act referred to in the section; or, (f) under section 32, defining, restricting or extending the powers of a guardian; or, (g) under section 39, removing a guardian; or, (h) under section 40, refusing to discharge a guardian; or, (i) under section 43 regulating the conduct or proceedings of a guardian or settling a matter in difference between joint guardians, or enforcing the order; or, (j) under section 44 or section 45, imposing a penalty. 48. Save as provided by the last foregoing section and by [section 115]17 of the Code of Civil Procedure, an order made under this Act shall be final and shall not be liable to be contested by suit or otherwise. 49. The costs of any proceeding under this Act, including the costs of maintaining a guardian or other person in the civil jail, shall, subject to any rules made by the High Court Division under this Act, be in the discretion of the Court in which the proceeding is had.

The word and figure “section 115” were substituted, for the section and figure “section 622” by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. viii of 1973).

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ANNEX 2

Power of High 50. (1) In addition to any other power to make rules conferred expressly or impliedly by this Act, the High Court Division may Court Division from time to time make rules consistent with this Actto make rules (a) as to the matters respecting which, and the time at which, reports should be called for from Collectors and Subordinate Courts; (b) as to the allowances to be granted to, and the security to be required from, guardians, and the cases in which such allowances should be granted; (c) as to the procedure to be followed with respect to applications of guardians for permission to do acts referred to in sections 28 and 29; (d) as to the circumstances in which such requisitions as are mentioned in clauses (a), (b), (c) and (d) of section 34 should be made; (e) as to the preservation of statements and accounts delivered and exhibited by guardians; (f) as to the inspection of those statements and accounts by persons interested; (ff) as to the audit of accounts under section 34A, the class of persons who should be appointed to audit accounts, and the scales of remuneration to be granted to them; (g) as to the custody of money, and securities for money, belonging to wards; (h) as to the securities on which money belonging to wards may be invested; (i) as to the education of wards for whom guardians, not being Collectors, have been appointed or declared by the Court; and, (j) generally, for the guidance of the Courts in carrying out the purposes of this Act. (2) Rules under clauses (a) and (i) of sub-section (1) shall not have effect until they have been approved by the Government, nor shall any rule under this section have effect until it has been published in the official Gazette. [Omitted] 51. [Omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. viii of 1973).] [Repealed] 52. [Repealed by section 2 and Schedule of the Repealing Act, 1938 (Act No. i of 1938).] [Repealed] 53. [Repealed by section 156 and Schedule v of the Code of Civil Procedure, 1908 (Act No. v of 1908).]

Index Abduction 170, 174–175, 179, 216 Abuse of process 177 Access to children/the minor 150, 154, 173–174, 178, 192 Access to the law/justice 80, 88, 155 Administration of Justice 221, 223 Adoption 2, 8, 11, 13, 44, 45, 50, 51–56, 60, 64, 68, 69, 91–94, 102, 110–114, 117, 119, 124, 126, 130–132, 134, 135, 137, 138, 140, 153, 179, 203, 205, 206, 210, 233 Adultery 16, 18, 19, 21, 24, 27, 29, 37, 39, 42–44, 48, 50, 89, 111, 122, 130, 226, 232 Adversarial proceeding 178 Advocacy 47, 232 Affidavit 13, 15, 20, 22, 30, 31, 41, 89, 108, 112, 225, 229 Age and sex rule 155–156, 168–169, 176 Age of seven years 148, 160, 176, 185, 187–189, 193–194 Agreement between parents 172 Alienation 95, 99, 117 Alimony 8, 29, 35, 44 Alternative Dispute Resolution (adr) 178 Amendment 2, 10, 11, 44–46, 49, 83, 98, 99, 111, 118, 121, 153, 176, 195, 196, 198, 220, 269 Amicable solution 156 Annulment 8, 12, 14, 39, 119 Appeal 22, 24–25, 44, 55, 59, 78, 82, 108, 151, 156–158, 165, 184, 209, 211, 216–217, 219–220, 222–223, 242, 267 Appellate Division 69, 92, 108, 141, 156, 164–166, 198, 209, 220, 222–223 Arakan 196–197, 200 Arbitrariness 172 Assistant Commissioner 217 Assistant Judge 38–39, 158, 171, 173, 177, 183 Authority 65, 128, 148, 154, 162–164, 169, 186, 196, 199, 208, 215–220, 223, 225, 233, 254, 260, 265–266 Awareness 11, 47, 71, 87, 227, 241 Bandarban 5, 196, 216, 234 Bangali 213

Bangladesh Law Commission 2, 3, 46–47, 59, 112, 124, 130–132, 134–135, 142, 198, 208 Barua 5, 196–203, 205–211 Bawm 199, 221, 225–226, 229–231, 235, 240–241 Bawm Social Council 221, 235, 240 Best interest 90, 148–149, 155, 165–166, 168–170, 172, 176, 182–183, 185, 187 Best practices 5, 149, 155, 157, 167–168, 170, 172, 176 Bhikkhu 202–203 Bigamy 13, 16, 19, 22, 24, 37, 43, 48, 89, 105, 113, 128, 131, 136 Biological children 233, 235 Biological parent 152 Board of Revenue 220, 222 Bohmong Chief 219, 222, 236–237 Bohmong Circle 219, 222–223, 234–235, 241 Brahmin 61, 72, 74–76, 86, 136, 137, 201, 202 Bride price 201, 228 Buddhist 1, 3–5, 14, 60, 118, 127, 195–211, 213, 225, 236–237 Burden 47, 90, 178, 231–232 Burmese Buddhist Law 236–237 Canon law 12, 39, 44, 47, 61 Capacity building of traditional institution 241 Caste 60–63, 66, 71, 73–77, 93, 104, 112, 120, 125, 126, 130, 137, 138, 198 Ceremonies 65, 69, 71–73, 78, 86, 91, 93, 107–109, 114, 120, 121, 127, 130, 134, 136, 197, 200, 202, 203, 206, 210, 223, 224, 263 Chakma 5, 196, 199, 209, 214, 220–221, 225, 229–231, 234 Chakma Circle 219, 224, 230, 232, 234–235, 241 Chakma Raja 220, 224–225, 229, 231–232, 234 Child friendly 173, 177 Child Marriage Restraint Act, 2017 13, 46, 106, 123 Child psychology 173 Child to express his/her will 166–167

272 Children Act, 2013 170 Children centric approach 148 Children’s opinion 173 Children’s representation 149 Chittagong 3, 5, 7, 34, 38, 61, 71, 74–75, 79, 85, 91, 94, 150, 196–198, 220 Chittagong Hill Tracts (cht) 1, 5, 196–197, 199, 209, 213–225, 228, 233–234, 237–243 Chittagong Hill Tracts Accord of 1997 243 Christian 2–3, 6–15, 17–19, 21–23, 25, 27, 29, 31–33, 35, 37–39, 41, 43–57, 74, 87, 89, 94, 102, 118, 127, 161–162, 196, 213, 215, 224–227, 229–230 Christian Marriage Act, 1872 8, 46, 224 cht Regional Council 216–217, 221, 223 cht Regulation 1900 213, 215–216, 219, 233, 242 cht Regulation Council Act 1998 217, 221 Circle Chief 216, 218–220, 222–224, 237, 242–243 Civil law 1, 8–9, 11–14, 44–45, 56, 87, 239–240 Civil Litigation 215, 223 Civil Procedure Code (cpc) 149, 178, 215, 217 Civil remedies 152 Civil society 7, 179 Clan 206, 215, 218, 233, 235, 238 Code of Criminal Procedure (CrPC) 149, 150, 153, 170, 193 Commercial Suit 223 Compromise 34, 71, 89, 164–165, 172 Conflict 45, 47, 63, 71, 155–156, 162, 167–168, 213–215, 225–226 Consensus 75–76, 79, 92, 98, 101, 233 Consent 7, 20, 30, 49, 51–52, 63–65, 71, 81, 89, 91, 103, 106–107, 111, 113–114, 117, 120, 122, 124, 128, 130–132, 135–136, 178, 202, 204–205, 219–220, 225–226, 228–230, 238 Consent of either parent 178 Constitution of the People’s Republic of Bangladesh 1, 8, 59, 62, 63, 64, 93, 104, 134, 149, 153, 154, 155, 161, 162, 163, 184, 186, 187, 189, 196, 199, 213, 217 Constitutional remedies 154 Consular protection 179 Convention of the Rights of the Child (crc) 166, 170

Index Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriage 63, 64 Convention on the Elimination of All Forms of Discrimination against Women (cedaw) 2, 60, 63, 64, 170, 226 Conversion 13, 91, 98, 103, 111, 118, 119, 122, 131, 136, 227 Convert 13, 18, 31–32, 98–100, 113, 115, 141, 168–169 Coordinate 217, 221 Corruption 177 Court fees 221, 242, 254 Court of the Chakma Raja/Chakma Chief 218–220, 229 Criminal remedies 153 Cross border removal 179 Cross jurisdiction dispute 174 Cruelty 9, 43, 48, 56, 90, 111, 113, 122, 130, 136 Culture 5, 10, 56, 74–75, 87, 92, 105, 139–140, 200 Custody 2, 4–5, 8, 21, 29, 44, 46, 55, 60, 68, 98, 127, 147–179, 182–190, 192–194, 207, 212, 214, 220, 230–232 Custody dispute 151, 153–154, 169, 172 Custom 2, 3, 5, 32, 44–45, 56–57, 65–66, 73, 75, 80, 81, 83–84, 87, 90, 93, 103–104, 107, 109, 111, 112, 114, 128, 131–132, 134, 197, 199–201, 208–210, 213, 215–216, 220–225, 228–229, 231, 236, 238, 240, 242 Customary Law 96, 199, 208, 214–219, 221–224, 228, 232–233, 240 Daughter 23, 24, 27, 34, 40, 51–52, 63, 72, 79, 81, 91–97, 99–102, 113–118, 127, 129, 132–134, 138–140, 148, 156–157, 163, 167–169, 188, 189, 191, 194, 197, 204–207, 210, 228–229, 233–237, 242 Dayabagha 66–68, 71, 94, 106, 109, 114, 117, 198, 208–210 Deceitful removal 160 Deed of handing over minors 164 De-legalization 227 Dendaw 235 Denomination 2–3, 7, 11, 15–16, 18–19, 21, 23, 25–26, 28, 30, 31, 33, 34, 36, 38, 39, 47, 87, 225 Deputy Commissioner 217, 219–220, 233, 242

273

Index Desertion 17, 27, 30, 37, 42–43, 48, 91, 111, 113, 122 Detenu 154, 160–161, 189 Dharmashastra 66 Dialogue 2, 47, 149, 239 Dignity 56 Discriminatory 2, 6, 7, 9, 43–45, 56, 93, 123, 128–129, 131, 169, 175, 210, 214, 226, 231, 233, 238 Disobedience 232 Disparity 14, 104 Disqualification 149, 157, 162, 163, 169, 182 Dissolution of marriage 12, 43, 49, 68, 69, 87–88, 103, 110, 121–122, 124, 129, 131, 136, 138, 151, 156, 203, 210, 229 District Judge 82, 108, 151, 156–158, 177, 209, 213, 216–217 Divisional Commissioner 219–220, 222 Divorce 2, 8, 10, 11, 14, 16, 20–22, 25–27, 35, 37–44, 46, 48–50, 60, 69–70, 79–81, 84, 87–90, 110–114, 119, 121–122, 124–125, 127–128, 131–132, 135–136, 140–141, 147, 155–156, 159, 161, 163–165, 174, 184–186, 188, 191, 204, 207, 212, 214, 220, 226, 228–232 Documentary Evidence 73, 83–84, 203, 224 Domestic violence 9, 19, 21, 22, 24, 26, 29, 35, 41–43, 154, 170 Domestic Violence (Prevention and Protection) Act, 2010 (DV Act) 9, 145, 154, 170 Dowry 9, 25–26, 81, 97–98, 100, 102, 108, 123, 140, 201, 228 Efficacious remedy 163 Elope 225, 228–230 Endogamous marriage 238 Entitlement issue 5, 175 Equal legal status 148 Equality 56, 62, 64–65, 103, 123, 126, 129, 140, 142, 147–149, 176, 179, 226, 240 Ethnic affiliation 212, 215, 226 Ethnic group 200, 209, 213, 241 Evidence Act, 1872 145, 173 Ex parte 35, 38–39, 171–172 Exclusive jurisdiction 91, 150–151 Execution power 242 Executive Magistrate 150, 153, 170, 174 Existing practice 219

Exogamy 227 Extra marital 18 Fadung 235 Faith-based 7, 11, 23 Family Court 21, 24–27, 29–30, 37–39, 44, 48–49, 51, 56, 79, 82, 90, 91, 93, 108, 123–124, 135, 149–152, 154, 159, 161, 163–165, 167–173, 177–179, 182–185, 187–189, 191–192, 203–204, 206 Family Court Ordinance 1985 (fco) 30, 123, 151–152, 172–173, 182, 184–185, 187–188 Family suit 152, 159–161, 165, 167, 171–173, 177, 193 Father 20, 25–26, 28, 31–32, 34, 36, 38, 45, 51–54, 69, 72–73, 79–80, 86, 89–92, 95, 97, 100, 102, 106, 110, 113–114, 116–117, 123, 126, 130, 132–133, 148–149, 152, 155–156, 158–165, 167–169, 172–176, 183–184, 187–189, 191–194, 205, 207, 228–231, 234–236 Female child 102, 148, 184–185, 188, 205, 231, 237 Forceful or deceitful removal of minors 160 Foreign judgment 178 Foreign national 178 Gabing 235 Gender centred entitlements 148 Gender Equality 63, 140, 147–148, 176, 178–179 Gender equality-based approach 148 Gender inequality 2, 60, 228, 237 Gender perspective 212, 214, 238 General trend 214, 222, 234, 236 Generic Civil Law 239 Gift 72, 95, 97, 99–100, 115, 117–118, 133, 205, 228 Guardian of property 157 Guardian of the person 157, 183 Guardian/Guardianship 2, 4–5, 8–9, 12, 21, 44, 51–53, 60, 64, 68–69, 71, 74, 79–80, 89–90, 94, 102, 106–107, 111, 123, 130, 132, 137–138, 147–155, 157–159, 162–164, 166–169, 171–173, 175–179, 182–190, 192–194, 203, 207, 210, 214, 230–232

274 Guardians and Wards Act, 1890 (gwa) 4, 9, 44, 90, 145, 148–153, 156, 166–167, 172–176, 178, 182, 183, 186, 187, 189, 190, 192, 253 Guardianship application 150, 153 Guidelines 148, 176, 219, 223, 238 Habeas corpus 150, 153–154, 160–161, 163, 165, 174 Hague Convention of 1980 on the Civil Aspects of International Child Abduction 175, 179 High Court Division (hcd) 27, 37, 48, 56, 108, 148–150, 152–160, 162–163, 165–166, 168–170, 172–174, 176–177, 182–189, 198, 222 Hill District Council 216–217, 219, 221, 238, 243 Hindu Adoption and Maintenance Act, 1956 91, 102, 111, 113, 114, 117, 203 Hindu Law 4, 60, 62–63, 65–69, 71, 73, 75, 77, 79–80, 82–83, 87–96, 100, 102–103, 105–106, 109–115, 117–119, 121–124, 129–137, 139–142, 197–198, 201, 203–204, 208–211, 222, 236 Hindu Marriage Act, 1955 67, 102, 103, 104, 105, 107, 109, 111, 112, 120, 121, 122, 203, 204 Hindu Marriage Act, 2017 119, 120, 121, 122, 131 Hindu Marriage Registration Act, 2012 2, 62, 73, 77, 83, 106, 108, 109, 121, 126, 130, 141, 203 Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946 67, 90, 111, 122, 206 Hindu Minority and Guardianship Act, 1956 102, 203 Hindu Succession Act, 1956 102, 114, 203 Hindu Widows Remarriage Act, 1856 67 Hindu Women’s Right to Property Act, 1937 67, 96 Hizanat/Hidanat 156–157, 160, 167, 184 Illegal confinement 170 Illegitimate 110, 113–114, 207, 230–231 Immediate custody 162 India 1, 9–11, 17, 46, 59, 60, 66–68, 70, 78, 87, 91, 98–99, 102–107, 109–117, 120–122, 124–127, 129–131, 133–139, 141–142, 152,

Index 162, 176, 196–199, 201, 203–204, 206, 210–212, 242 Indigenous Civil Law 240 Indigenous People (IP) 3, 5, 199, 213–225, 227–231, 233, 235, 237, 239–241, 243 Inheritance 2, 8, 12–13, 32, 45–46, 60, 63–64, 66, 68, 79, 92, 95–102, 115, 117, 119, 124, 129, 133, 137–138, 140, 147, 158, 197, 199, 206, 210, 212, 214, 221–222, 230–231, 233–234, 236–238, 240–241 Inherited property 63, 94, 96–97, 204 Innocence 232 Intelligent preference 152, 166, 173, 190 Inter-caste 73–77, 93, 104, 120, 125, 130, 138 Inter-community 14, 125 Inter-ethnic 227 Inter-faith marriage 227 Interim custody 154 Interim remedy 163 International Covenant on Civil and Political Rights (iccpr) 2, 60, 63 International Covenant on Economic, Social and Cultural Rights (icescr) 2, 60, 63, 64 International instruments 62–63, 123, 166–167, 170, 190, 192 Intestate estate 240 Intra-faith 227 Judicial discretion 167 Judicial pronouncement 241 Judicial protocol 174 Judicial review 216 Judicial separation 12, 16–17, 19, 21–22, 29, 35, 110–111, 121–122, 127, 130, 135, 204 Judicial trend 148 Jumma 196 Jurisdiction 44, 51–52, 55, 91, 93, 124, 135, 150–152, 154, 169, 174–175, 177–179, 191, 207, 210, 213, 216–219, 224, 232, 236, 242 Khagrachhari 5, 196 Khumi 231, 235 Khyang/Kyang 225, 230, 235, 240 Kindred 13 Law reform 2, 7, 9, 11–13, 43, 46–48, 50, 60, 68, 123, 135, 141, 176–177, 179, 196 Lawful authority 154, 162–164, 169, 186

275

Index Legal Aid 12, 35, 40–41, 47, 179 Legal pluralism 212, 223 Legal system 68, 88, 215, 233 Legitimate 105, 110, 113–114, 132, 207, 230–231 Liberal interpretation 153 Limited interest 95–96 Locational Variation 215 Lower court/Subordinate court 5, 62, 78, 108, 149, 163, 165, 168, 170, 172 Lushai 225, 229, 231–232, 235 Mahomedan Law 157, 187, 194 Maintenance 2, 24–30, 35, 37, 40–42, 50–51, 60, 67–69, 79–82, 88, 90–92, 95, 102, 108, 111, 113–115, 117, 122, 124, 127, 130, 132–133, 135–136, 138, 151, 165, 189, 191–192, 203, 205–207, 210, 212, 226, 230–234 Male child 97, 102, 132, 148, 165, 184–185, 188, 205, 231, 237 Marma 196, 199, 209, 222, 234, 236, 237 Marriage 2–4, 8–9, 11–14, 16–25, 27–31, 35–46, 48–49, 51, 56, 60, 62–65, 67–92, 94–95, 97–98, 100, 102–115, 118–142, 147, 149, 151, 156–159, 164, 169, 174, 176, 182–183, 192, 194, 197–204, 207–208, 210, 212, 214, 220, 223–230, 232, 234, 237–238 Mauza Headman 214, 216–217, 222, 224 Mediation/shalish 12, 14, 16, 25, 29–30, 35, 171–172 Memorandum of Understanding to be adopted between judges of different jurisdiction 179 Metropolitan Magistrate’s Court 35, 150 Milk price 228 Minor 1–5, 7, 10, 12–14, 28, 36, 45–47, 60, 67–68, 83, 85, 89–90, 99, 101–102, 106, 114, 118–119, 124, 129, 134, 137, 139, 148, 150–169, 173, 175, 177–178, 182–197, 203, 205, 207–208, 213, 216, 232 Minor’s property 148, 177–178 Misconduct 174 Mixed marriage 12, 127, 224, 227 Mobility 13, 43, 45, 125, 150, 174 Mong Circle 219, 222–223, 234–235, 241 Monogamy 70, 104–105, 120, 124, 128, 130, 136, 210

Mother 15–18, 20–23, 27, 31, 34–36, 45, 51–54, 63, 71, 86, 89–90, 95, 97, 106, 110, 115–116, 123, 130, 132–134, 148–149, 152, 155–165, 167, 169, 172–178, 182–185, 187–189, 191–194, 204–205, 207, 228, 231–232, 234–235 Mro 212–213, 230–231 Muslim Family Law 129, 147, 184, 188 Muslim jurists 156, 167 Muslim law 4, 67, 71, 97, 101, 106, 111, 129, 148, 167, 169 Myanmar 1, 5, 196–197, 199, 236 Naithangya 235 National Council of Churches, Bangladesh (nccb) 9–13 Neglect of household duties 232 Non-discrimination 60, 93, 104, 140, 226 Non-resident Bangladeshis 98, 174 Non-service of notice 172 Nullity of marriage 43, 110–111, 113, 121, 127 Office of the Mong Raja 233 Opinion of children 168, 173 Oral Custom 220, 228 Out-of-court-agreement 172 Pakistan 1, 4, 9–10, 67–68, 91, 98, 118–122, 126–127, 131, 141, 152, 174–175, 198, 212, 219, 222, 242 Pangkhua 225, 229, 235 Pan-indigenous 240 Paramount consideration 5, 90, 162, 165–166, 169, 182, 185–187, 190 Parish 9–11, 14, 16–17, 20, 27–28, 35, 74, 85, 89, 94, 102, 123, 137 Parties’ legal rights 162 Patriarchal 9, 56, 124, 131, 139, 210, 238 Pension 79, 81, 234 Permission suit 152 Permission to sell 152, 168 Personal law 2–5, 7–9, 12, 14, 44–46, 60, 66–68, 83, 92, 102, 104, 118, 124, 126–129, 134–135, 137–138, 147–148, 151–153, 155–156, 158, 166–168, 179, 198–199, 210, 212–223, 225–226, 228–229, 236, 238–242 Pluralistic 68, 215, 241 Polyandry 70, 90, 105, 225

276 Polygamy 42, 70–71, 89–90, 105, 111, 120, 128–129, 131, 138, 210, 225 Polygyny 225–227, 240 Post-judgment monitoring 178 Precedent 66, 72, 90, 113, 208, 240–242 Preferential right 130, 158–159 Pre-marital 227, 234 Priest/Pastor 12, 15–16, 20–22, 27, 34, 36, 38–39, 66, 72, 74, 87, 104, 136, 201–203, 224 Priority 90, 106, 117, 134, 218, 242 Proactive campaign 239 Procedure of Litigation 221 Prohibited 55, 71, 82, 99, 103–105, 109–110, 113, 120–121, 125, 128, 130–131, 136, 138, 157–158, 169, 202 Proof of marriage 77–80, 107, 114, 135 Quasi-formal 221, 241 Rangamati 5, 216, 219, 221, 234 Reciprocating country 178 Recovery of a minor 162 Reform 2–14, 43, 45–48, 50, 60, 63, 66–68, 70, 83, 85, 100–102, 104, 115, 122–123, 125–126, 128–130, 133, 135–142, 147, 149, 176–177, 179, 181, 196–197, 220, 229, 231, 235, 238–242 Registration 2–4, 46, 62–65, 67, 73, 77–87, 89, 98, 104, 106, 108–109, 118, 120–121, 124–127, 129–130, 135–138, 140–141, 203, 223–224, 233 Religious affiliation 123, 225, 233 Religious conversion 13, 118 Religious law 3, 41, 67, 70, 87, 104–105, 128, 137, 141 Religious tradition 125, 213 Remarriage 42, 67, 70, 95, 100, 119, 124, 131–132, 149, 157, 164, 169, 176, 183 Remarriage of widow 95 Removal of the child 174 Representation of children 150, 173, 176 Restitution of Conjugal Rights 91, 111, 122, 127, 151, 204 Right to access 150 Right to custody 157, 159, 167 Right to equality 149, 226 Right to maintenance 132, 232 Right to property 67, 96, 117

Index Right to visitation 156, 161–162, 165, 173–174 Rights of mother 232 Rights of Persons with Disabilities Act, 2013 170 Riyang Tripura 221, 235 Rules of hizanat 156 Runaway couple 225, 228 Sacrament/samskara 66, 69, 73, 78, 87–88, 91, 103, 110, 112, 114, 201–203 Sale 18, 95, 99, 115, 133 Schools 65–66, 71, 106, 109, 115, 208 Search warrant 153, 170 Secular Law 92, 114, 127, 153 Self-government 215, 223 Semi-autonomous 215 Separation 12, 14, 16–17, 19, 21–22, 26, 29, 35, 38–39, 42, 80, 110–111, 119, 121–122, 127, 130, 135, 168, 204, 229, 231 Service of summons 177 Seven years 148, 160, 176, 185, 187–189 Sindh Hindus Marriage Act, 2016 67, 119, 120, 121 Smriti 65–66, 208 Social Dynamics 227 Social Leaders 233, 241 Social Structure 66, 220 Solemnized/solemnisation 12, 20, 45, 48–49, 72–74, 78, 80, 83, 86, 103–105, 107–109, 112–113, 120–121, 127, 197, 201 Solenama 164–165, 171, 192 Sources 65–66, 147, 149, 163, 201, 218, 243 South Asia 1–2, 5–6, 126, 152 Southern Marma 234, 236 Special Marriage Act, 1872 45, 46, 74, 104, 126, 208, 223, 227 Special Marriage Act, 1954 126, 127, 128 Sruti 65 Standard of proof 232 Standard practice 173–174 State 1–2, 7–8, 10–11, 33, 35, 41, 45–49, 51, 54, 56–57, 59–60, 62–68, 72–73, 75, 77, 82–84, 89–91, 95–99, 103, 105–107, 109–110, 112, 114–121, 123–128, 133–136, 138–140, 151, 160, 165–166, 173, 178–179, 193, 195–196, 198–200, 203–206, 213, 215–216, 220, 222, 233, 236–237, 240, 243 Stranger 148, 157–159, 167, 169, 182, 187 Stridhan 94, 97, 115, 140

277

Index Sub-headman 218 Succession 9, 11, 32–33, 45, 67–69, 78, 94, 102, 114–116, 124, 127–128, 130, 132–134, 141–142, 198, 203–204, 209–210, 217–219, 222, 233, 236–238, 240–242 Succession certificate 32, 217–219, 222, 238, 241 Supervise 215, 217, 221 Supreme consideration 161 Supreme Court of Bangladesh (sc) 69, 71–72, 92, 141, 155, 162, 164–166, 170, 176, 178, 182, 184, 186, 188, 190, 192, 194, 198, 213, 217, 220–223, 240 Sur Kaagoch 229 Tanchangya 196, 199, 209, 230 Temporary custody 154, 160, 189 Tension 155, 178, 215, 225, 239 Theraveda 196 Torture and Custodial Death (Prevention) Act, 2013 170 Traditional Court 214, 216, 233, 240, 242 Traditional Institution 214–215, 217–218, 239–241, 243 Tribal integrity 219 Tribe 134, 196, 199, 209, 213, 215–216, 218, 222–224, 227–228, 230–235 Tripura 196, 199, 221, 225, 229, 234–236 Uniform Family Law 123–126, 128–129 Union Council 217–218 Unlawful confinement 153 Unlawful detention 154

Unlawful manner 154, 161, 186 Unwritten custom 213, 220 Upazila Nirbahi Officer (uno) 217–218 Usage 66, 103–104, 109, 199, 208, 213, 216, 219–221, 223 Usui Tripura 221, 234 Veda/Sruti 65–66 Verdict 214, 242 Village Karbari 214, 216, 229 Welfare of child 155, 175 Widow 13, 33, 54, 61, 63, 67, 70, 79, 86, 92–97, 100, 102, 113–117, 132–134, 139, 204, 207, 233–235, 242 Wife 13, 15, 17, 22–24, 27–28, 32, 34–37, 39, 42–44, 48, 51, 54, 70–73, 79–82, 87–92, 95, 98, 105, 107–108, 110–111, 113–114, 119–120, 122, 124, 131–132, 136, 161, 164, 184, 189, 192, 197, 203, 205–206, 210, 224–226, 228, 232, 234–237 Without lawful authority 154, 162–164, 169 Woman 19, 25, 28, 40, 48, 54, 64, 70–71, 73, 77, 79, 84, 87–88, 90, 92, 94–98, 105–106, 113–115, 132–133, 137, 140, 149, 175, 182, 185–186, 200, 205, 210, 225–228, 231–233, 237–238 Women’s entitlement 175 Women’s policy 63 Women’s rights activist 241 Writ jurisdiction 154