Rights investigation
Hindu personal law: Is it pro-women?
Advocate Elyus Rahman
In Bangladesh, Muslim personal law such as marriage, inheritance etc. is enforceable through the regular court system but other religious personal laws cannot be enforced. The Family Courts under Family Law Ordinance 1985 are the courts of first instance for personal status cases of all religious communities, although different religious communities are governed by their own personal laws. Hinduism/Sanaton is the second largest religious affiliation in Bangladesh, covering 10.5 percent of the population as of 2001 census. Hindu women's rights are in general overlooked in case of marriage, divorce, maintenance, inheritance etc. After 1947 old Hindu law prevailed and Dayabhaga system of Hindu law remained in East Pakistan, and remained same also after the emergence of Bangladesh.
Marriage: In the Hindu religion, marriage is a religious duty, not a contract. In Bangladesh, Hindu marriage follows no legal proceedings rather social customs. Besides, Hindu marriage rituals or formalities vary from caste to caste. Family Court Ordinance, 1985 aims at resolving legal disputes related to dissolution of marriage, restitution of conjugal relation, dower, maintenance, and guardianship and custody of children. A Hindu woman can seek help from the ordinance only when the marriage is solemnised by Special Marriage Act 1872 and registered. It is amazing that there is no specific Hindu marriage law or no marriage registration system for Hindu people in Bangladesh. But, nowadays to legalise the marriage a Hindu couple can seek help from the court. The couple may notarise their marriage in front of two witnesses (one of the witnesses may be the priest who solemnised the marriage but it is not mandatory) like in Muslim marriage. After that the marriage will be registered. Problems arise when the parties from different religions would like to marry each other without changing their religion. Special Marriage Act 1872 is the preliminary solution of the problem but in case of determining inheritance of their successors it is really an impossible task as no domestic law can resolve the problem.
Divorce: No system of divorce is available in Hindu law. According to Dayabhaga law divorce is not possible except on a very limited ground of chastity of wife. But, what would happen if the husband is of immoral character? Section 10 of the Divorce Act 1869 empowers the wife to present petition to the district court or to the High Court division for the dissolution of her marriage on some reasonable grounds. Then, it is a question why not the Hindu women exercise their rights? Are all Hindu marriages not recognised by Bangladeshi law? All of their marriages are void?
Inheritance: Only five classes of women inherit according to Dayabhaga School of Hindu law. They are according to preference: wife, daughter, mother, father's mother, father's father's mother. But these women inherit only when living, that is they are owners with limited rights and on their death the property would pass to the nearest male heir of the deceased male owner and not to the heirs of the female heirs. The woman or women inheriting when living can sell the property only for limited legal necessity.
Practice in India: After the partition of India in 1947 Hindu law was changed in India. In 1955, new Marriage Act was enacted in India whereby marriage system has totally been changed and polygamy given an end. Divorce system was also introduced. Section 13(1) of Hindu Marriage Act 1955 declares the right of divorce to both the parties on some grounds. In 1956, by the enactment of the The Hindu Succession Act 1956, one law was enacted for all the Hindus of India. Sons and daughters were given equal share on the demise of their father or mother while wife or husband was due for one third share. In 1991, the Indian Succession Act 1925 was amended. The amendment eliminates this discrimination against women and provides that both daughters and sons will receive equal shares in the property of both a female and male intestate.
Constitutional guarantee: Article 19 (1) (2) of Bangladesh constitution states:
“Equality of opportunity
(1) The State shall endeavour to ensure equality of opportunity to all citizens.
(2) The State shall adopt effective measures to remove social and economic inequality between man and woman and to ensure the equitable distribution of wealth among citizens, and of opportunities in order to attain a uniform level of economic development throughout the Republic.”
An analysis of the relevant text of the constitution shows that the guarantees of equal rights between men and women do not extend to the private sector (i.e., the inheritance of parental property and matters concerning the family).
UNCEDAW: UNCEDAW is considered as the ultimate protection of women internationally but Bangladesh Government reserved Articles 2 & 16(1)(c) of UNCEDAW. It is noted that it is signed in 1984 and till now the government declines to withdraw the reservation. It is mentionable that already 25 Islamic countries assented to all sections of UNCEDAW including the sections-2 and 16.
Concluding remark
The government can proclaim an ordinance regarding the registration of the existing Hindu marriages with the support of the local government like birth registration side by side sophisticate the Muslim Family Law Ordinance to be supportive to the other religious community. It will be a remarkable act and will put an end to the applications of religious personal laws. I think it is high time to withdraw the reservation for the full implementation of the international instrument and it is also necessary to change the domestic laws as a complement. A unitary personal law codification is very much necessary.
The writer is human rights defender.
