the Law Fair towards
AASHA MEHREEN AMIN
Begum was only sixteen when she was married off to small
time trader Sattar Mia twice her age. At the wedding
Taherun's father, a poor vegetable vendor, gave Sattar
ten thousand Taka as half payment of the twenty thousand
Taka dowry demand. Soon after the wedding, Taherun's
father became ill and the possibility of giving the
remaining portion became doubtful. Thus began Taherun's
nightmare. Sattar started to regularly beat her, sometimes
punching her unconscious and leaving her with cuts and
bruises all over her body. Often he would force her
to have sex with him. Taherun conceived and gave birth
to a son but this did not stop the beatings. One day
Sattar came home and just drove Taherun out of the house
without her son. The deal was that if she could cough
up the rest of the money she could come back and live
with her son again. If she couldn't she would get the
customary 'tin talak' (verbal divorce) and consequently
lose her son. Taherun was forced to go back to her parents
home and soon was given a divorce.
What if Taherun decides
to take the help of the law to get back her son? According
to Muslim Law which is the law that is relevant to her
as she is a Muslim, if she is successful in gaining
custody of her child it will be a temporary right that
will expire when the child reaches seven years. Even
this temporary right translates into a mere 'custodianship'
over her child since the law dictates that the father
is the legal guardian of the child. Her husband, therefore,
can take all decisions on behalf of the child but she
If this is not unfair
enough, even if Taherun is given a divorce and granted
custody of her child, she cannot remarry a person of
her choice. If she is to remarry as well as retain custody
of the child she must marry the child's uncle or immediate
blood relative. Otherwise, she stands to lose her child.
how can such injustice be legitimised by law? The Bangladesh
Constitution declares equal rights for men and women
in all spheres of public life. So where lies the contradiction?
The word 'public' seems to be a major clue to solving
this riddle. It is only in the spheres of state and
public life that equality is guaranteed through the
Constitution. This means that in the private or personal
sphere women are pretty much on their own. So even if
her husband for whatever reason continuously tortures
a woman, until she is killed, the state is unlikely
to intervene, as it is too shall we say, gentlemanly
to invade the privacy of the individual. The result
is that women continue to be treated as inferior human
beings by their husbands and by a society that tends
to victimise victims instead of help them.
Trying to understand
the dichotomy of public and private spheres of our legal
system is like squirming around in quicksand-- the more
you want to get out the deeper you get stuck in the
muck. According to Faustina Pereira, a Supreme Court
Advocate and author of the book 'Fractured Scales' that
deals with this very issue, the legal system of Bangladesh
is categorised into two distinct branches. One is Constitutional
Law and the other is General Law or those that are not
directly governed by the Constitution. The Constitution
being the supreme law of the land demands that any law
inconsistent with its provisions is void. Thus laws
considered under the General Law must technically conform
to the Constitution. Sounds pretty reasonable so far.
But try getting a firm grip on what 'General Law' consists
of and it becomes clear why so many women prefer to
suffer in silence rather than take legal help.
General Law consists of civil and criminal laws,"
says Pereira who is also Director, Advocacy, Research
and Legal Aid at Ain O Shalish Kendra, "which are
governed respectively by the Code of Civil Procedure
of 1908, the Penal Code of 1860 and the Criminal Procedure
Code of 1898. The Personal or Family Laws are under
the General Law but mostly are governed by the civil
law: What's more, matters which directly affect women
such as marriage, divorce,
dower, maintenance, guardianship, custody, inheritance
and restitution of conjugal rights are separately governed
by each religious community's "religious personal
law” system. For example, take marriage. Muslim parties,
says Pereira, are regulated by, among others, the Muslim
Family Ordinance 1961 or the Muslim Marriages and Divorce
(Registration) Act 1974. Hindu parties are regulated
by (among others) the Hindu Marriages Disabilities Removal
Act 1946 or the Hindu Widow's Remarriage Act 1856. Christian
parties to marriage meanwhile, come under the Christian
Marriage Act 1872.
existence of separate laws for each community means
that the kind of justice meted out to a woman is determined
by the religious community she belongs to. Most of these
laws are antiquated and originate from patriarchal mindsets
and therefore do little to change the status of women
as helpless, inferior citizens.
some of the articles in the Constitution are patronising
towards women. Article 28 (1) states: The State shall
not discriminate against any citizens on the grounds
of religion, race, cast, sex or place of birth. But
then Article 28 (4) states: Nothing in this article
shall prevent the State from making special provisions
in favour of women and children or for the advancement
of any backward section of citizens. Lumping women with
'any backward section of the citizens', says Pereira,
indicates a "prejudicially protective, paternalistic
attitude". "The language of the law, all law,
till now, has been the language of patriarchs,"
are also constitutional laws that directly discriminate
against women. The Citizenship Act of 1951, for example,
states that only a man can transmit nationality. A woman
does not have the right to transmit her nationality
to her children or husband. Strangely this prejudicial
law has existed for decades in other parts of South
Asia such as India, Pakistan and Sri Lanka. In 1992
however, the Citizenship Act of India 1955, was amended
to allow both men and women equal right to transmit
their nationality to their children and spouses. In
Bangladesh the Citizenship Act, says Pereira, relegates
women to second class citizenship.
gives a few examples of what she terms ultra-protective
laws. "The Factories Act 1934, The Tea Plantation
Labour ordinance 1962 and The Shops and Establishments
Act 1965, gravely restrict women's right to movement
or choice of employment. These laws prohibit employment
of women and children between the hours of 8p.m. and
have been some attempts in recent years by governments
to safeguard women's legal rights and improve their
social status. The Dowry Prohibition Act of 1980 forbids
anyone from giving or receiving dowry although the practice
is still very prevalent in our country which indicates
the lack of enforcement. The Nari-O- Shishu Nirjatan
Daman Ain 2000 (Law on the Suppression of Violence Against
Women and Children 2000), has for the first time expanded
the definition of rape considerably although it does
not acknowledge marital rape. Sexual assault and sexual
harassment have been made punishable offences under
this Act. "The overall character of this new law
is reflective of same level of participatory effort,"
says Pereira. "The law on children is one of the
best examples of the workings of a clear distinction
between religion as a private matter and the area of
personal welfare of citizens as subject to state intervention.
The laws on children and personal disputes relating
to children such as the Guardians and Wards Act, the
Majority Act and the Child Marriage Restraint Act, are
all applied uniformly to all children and citizens of
Bangladesh, irrespective of gender or religion despite
these areas being clearly within religious-personal
sphere of citizen's lives," she continues.
religious attitudes, explains Pereira, make many such
progressive laws ineffective. The growing power of religious
fundamentalist groups has had great influence in thwarting
the evolution of laws that give equal rights to women.
Deep-seated cultural practices that form the basis of
patriarchy and male dominance often take precedence
in governing people's lives rather than existing laws.
Women being in powerless positions have little access
to information about the laws and how they can get help
from the legal system.
abuse is a taboo subject and considered by society and
State as being in the 'private sphere of the family'.
The biggest flaw of “Nari O Shishu Nirjatan Daman Ain
2000” is that it does not acknowledge the concept of
domestic violence, says Pereira. Dowry related violence
is governed by the Nari O Shishu Nirjatan Daman Ain
2000 but in order for it to be effective, says Pereira,
incentives have to be given to women and their parents
to resist the demands and to come forward to bring the
perpetrators to justice. "Men and their families
too have to be brought into the scheme of dowry resistance
programmes," says Pereira.
issue of sexual harassment, a crime that continues to
plague women and has often led to them taking their
own lives, is still treated with apathy in the legal
system. "It is unfortunate," she says, "that
the sliver of law that was provided in the “Nari O Shishu
Nirjatan Daman Ain 2000”, has been taken away in the
Amendment (2003) recently. Whereas in India there are
several levels of safeguards available for women in
the workforce, especially after the landmark Vishaka
judgement which provided a detailed outline as to how
to ensure such protection, no such mechanism exists
in Bangladesh. The whole concept of harassment seems
to be resisted by lawmakers. Thus if a woman is forced
to commit suicide or suffer physical harm due to provocation
and harassment, only that death or harm will be taken
into cognizance not the harassment which preceded it.
solution Pereira offers in her book, 'Fractured Scales',to
the incongruities of family personal laws with the laws
of the land, is a coherent, uniform system of governance
or a code of law, something women's rights organisations
have been harping about for years. In 1996 the Bangladesh
Mohila Parishad and Ain O Shalish Kendra jointly brought
out an improved version of the original draft of the
Uniform Family Code of 1993 (by the former organisation).
Since then the draft has been improved upon further
with the help of other organisations. The Code encompasses
a wide range of rights for women. For instance, under
the code a husband and wife has equal status and responsibility.
Men and women would be treated by an equal standard
in the matters of marriage, divorce, custody and guardianship
of children as well as inheritance. All marriages must
be registered under civil law. Child marriage would
be abolished. The minimum age for marriage of both men
and women would be 18 years. Polygamy would be abolished.
Both spouses would equally participate in matters of
finance. An unemployed spouse (whether husband or wife)
would be entitled to the maintenance from the employed
spouse. Both parents would be the natural and legal
guardians of children.
Code among other things also provides equal inheritance
rights, the right to adopt by both men and women and
maintenance of children from each parent on the basis
of his/her financial capability.
uniform system of individual justice concludes Pereira
in her book “Fractured Scales” depends on the role of
law to sustain tolerance and mutual respect among citizens
and between state and citizen.
has great faith in the women's movement in making the
legal process more equitable. " Since 1972, women's
engagement with policy, institutions and process has
been consistent, persistent and sincere. Substantive
issues such as women's direct election in Parliament
and at least a one third seats for women in Parliament
has been consistently demanded as part of the women's
agenda since 1972. The women's movement can and will
continue to invest its time, energy and intellect to
materialise women's legitimate claims as a matter of
national interest and not just a "women's"
strongest instruments of change in society are the laws
that it is governed by. There are existing laws in the
country, which guarantee many rights for women. But
many of them are archaic and need immediate reform or
amendment. Discriminatory laws need to be abolished
and replaced with more progressive ones. New laws have
to be formulated to reflect Bangladesh's concurrence
with international laws such as the Universal Declaration
of Rights and CEDAW. While religion and culture have
to be respected, violations of basic human rights in
the name of religion or tradition must be categorically
condemned and shunned by the laws of the land. Most
importantly laws that govern both public and personal
spheres must be compatible to the Constitutional laws
and be equally applicable to all citizens irrespective
of sex, religion or the community they belong to.
The Convention on Elimination of All
forms of Discrimination Against Women (CEDAW) was adopted
on December 19, 1979 and came into force as a treaty
on September 3, 1981 following its ratification by twenty
countries. Ratification obligates governments to pursue
a policy of eliminating discrimination against women
and to report on progress in that effort to the UN Committee
on the Elimination of Discrimination. Article 1 of the
Convention defines discrimination as:
‘Any distinction, exclusion or restriction
made on the basis of sex, which has the effect or purpose
of impairing or nullifying the recognition, enjoyment
or exercise by women, irrespective of their marital
status, on the basis of equality of men and women, of
human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field.’
Under Article 2, states are required
to domestically enforce CEDAW, adopt appropriate legislation
and other measures to prohibit all discrimination against
women, modify or abolish existing laws, regulations,
customs and practices which constitute such discrimination.
Other articles of the Convention deal
with many of the pressing issues that concern women
such as women's right to determine their own and their
children's nationality and removal of discrimination
in education, employment, healthcare, social and economic
Part IV of CEDAW calls for equality
before the law and equality within marriage and family
law. Articles under this component for example guarantees
the same legal capacity as men to contract, administer
property, appear in courts or before tribunals; freedom
of movement the right to choose where they will live;
equal rights and responsibilities of women with men
in marriage; the right to choose when they will have
children, to choose their family name or occupation;
and equal rights and responsibilities regarding ownership,
management and disposition of property.
The good news is that more than half
of the world community has ratified CEDAW. The bad news
is that a large number of countries-- 168 states--have
submitted reservations. Seventeen of these countries
have a majority Muslim population and includes Bangladesh.
Bangladesh continues to maintain reservations Articles
2 and 13(a). In September 2000, Bangladesh became the
first country to ratify the Optional Protocol to CEDAW
which ensures the implementation of the tools to eradicate
discrimination. Maintaining such reservation to the
very pledge to eradicate such discrimination is therefore
contradictory and makes the sincerity of the state to
remove gender discrimination, questionable.
Source: The Fractured Scales
by Faustina Pereira
Did You Know…
-Under Muslim Law, women's capacity
to stand as witness at a marriage is one half than that
-Giving or Taking Dowry is punishable by law.
-Child marriage is punishable by law but the marriage
is legally valid!
-Polygamy is punishable under Section 494 of the penal
-Under Muslim Law women are entitled to maintenance
as of right.
-While Muslim Law does not allow adoption, under Hindu
Law only men have the right to take a male child for
adoption. Hindu women are not allowed to adopt.
-Under both Muslim and Hindu laws women do not enjoy
equal rights of inheritance with men.
National Women Lawyers Association (BNWLA) has been
actively involved in rescuing women and children from
violent and exploitative situations and enabling them
to get greater access to the legal system. The organisation's
Executive Director Advocate Salma Ali speaks to SWM
about the primary loopholes in the legal process that
adversely affect women and how this process can be reformed
to make it work for women.
are the main drawbacks in the legal system that undermine
the rights of women as equal citizens?
Some of the main drawbacks are:
a. A woman victim is liable to prove the case by herself.
b. There are many laws such as laws of inheritance,
family law-- distinctively guardianship, custody and
divorce that are discriminatory towards women.
c. Too much emphasis on medical test reports and certificate
of injury during legislation which is not always practically
possible to obtain
d. Lack of eye witnesses in case of domestic violence.
e. Lengthy legal procedure.
f. Corruption among the law enforcing agencies and other
the access of women to the legal system improved over
Though some gaps still exist within the present legal
procedure, women's access to the legal system has improved
over the years. Some laws have been enacted which have
widened the way to establish women's rights in all spheres
of life. In fact establishments of the mediation court,
enactment of the Acid Throwing Act and the formation
of Women and Children Repression Prevention Tribunal
has been treated as great steps of Bangladesh Government
in this regard. At the Government NGO joint level, especially
from BNWLA's side, initiation of One Stop Crisis Centre
(OSCC) in different government medical colleges has
also secured the greater access of women who become
victims of violence or abuse.
Some issues, which are still lagging
behind in law making and need immediate attention such
as domestic violence /wife abuse. According to BNWLA
official sources, nearly 75-85% of clients regularly
seek legal assistance to save themselves from different
forms of domestic violence. Most domestic violence occur
when the woman's family cannot fulfil dowry demands,
when the wife is reluctant about giving approval for
second marriage and because of the general lack of moral
values of the husband and other family members. There
is also an urgency to form new laws to prohibit domestic
our view in spite of the Speedy Trial Act initiated
by the Goverment the sufferings of the women have not
been reduced due to political pressure and the case
error related stay order of the High Court. Apart from
that, the absence of any clause regarding 'eve teasing'
or sexual harassment in the recent Women and Children
Repression (Prevention) Act 2003, has curtailed the
rights of women. Defective F.I.R. (First Information
Report) also causes unnecessary agony for women and
creates obstacles in getting justice in time. In view
of that there is an exigency to strengthen the infrastructure
for the proper implementation of laws.
you cite a successful case study where BNWLA have helped
a woman through the legal system?
In one case Anika and Salam (not their real names) were
in love. One day when Anika was ill and her mother had
left her home to get medicine, Salam entered the house
and raped Anika. Anika's screams for help alerted the
neighbours . Later Anika and her mother contacted BNWLA
through its hotline service to seek legal assistance.
BNWLA filed a case against her boyfriend Salam. Finally
BNWLA with testimony from Anika's neighbours won this
case and the accused person received lifetime prison
and fined five thousand Taka (or imprisonment for three
months) against his charges.This was a major achievement
it difficult for women lawyers to work in a sexist society
It is challenging for women lawyers to work in a male-centred
society. After getting recognition from the Bar Council,
a lawyer has to work with a senior lawyer. Sometimes
it is difficult to do chamber work and practice in court
with male colleagues, who always consider themselves
superior. In a sexist society as ours, clients think
it is better to hire a male lawyer. Sexual harassment
of women lawyers by their male colleagues is not uncommon.
This includes indecent teasing, obscene gestures and
sexist remarks. In most cases it is impossible for women
lawyers to maintain chamber at night. They also face
insecurity while conducting investigations. They hardly
get any support from politically biased public prosecutors.
Family members of women lawyers also do not encourage
her to struggle her in this field. Individually it is
very difficult for a woman lawyer to pursue her career
and it is better if she is part of a larger group such
as BNWLA which can provide a certain amount of security
do you think needs to be changed to make the legal system
accessible and beneficial for women?
-- Though the Bangladesh Constitution, contain several
articles (10, 27, 28, 29 etc) for the protection of
women rights, in practice there are many inconsistencies
with Personal Law.
Bangladesh Government is yet to sign a few of the articles
of CEDAW. Due to that the sufferings of women has increased.
It is very urgent to complete signing all of the articles
is a need to amend Muslim law of inheritance and family
laws Evidence Act, Birth Registration Act , Child Marriage
Restraint Act and Hindu Personal Law as well as the
Suppression of Immoral Trafficking Act 1933.A new law
on domestic violence has to be enacted.
--In cases where women are victims of domestic violence
or torture by the husband, priority should be given
to circumstantial evidence and procedure should be changed
accordingly. In cases of physical torture, circumstantial
evidence should be given preference over medical evidence.
--A new injunction procedure needs to be initiated to
establish the right of the wife to stay at the husband's
home after filing a suit against husband.
--The Criminal Procedure Code must be amended to avoid
-- the practice of appointing lawyers simply considering
their political views has to be eliminated.
--There has to be a procedure of accountability of law
-- Victim and witness protection services have to be
--Training of youth groups besides police, investigation
officers, Kazi, and Imams have to be conducted.
is an urgency to reform some of the sections of the
Penal Code. There is also a need to have clear definitions
of Rape, Sexual Harassment and others.