Equality Begins at Home
While the fight for gender equality continues on every front, “family laws” continue to discriminate against women within the home, violating some of their basic rights.
Kajalie Shehreen Islam
Sultana Kamal, Executive Director, Ain O Salish Kendra.
The most common perpetrator in cases of violence against women -- many of them dowry-related -- is the husband, a study by International Centre for Diarrhoeal Disease Research, Bangladesh (ICDDR,B) has found. Also according to the study, most of the women did not reveal their sufferings to anyone because they did not think the violence was serious enough to report, they feared social stigma or because they thought it would not bring them any respite. Those who sought help generally did so not from the law but from family and neighbours; the majority did not receive it.
Along with empowerment and financial independence of women -- through the creation of awareness, employment opportunities, etc., by the State -- making changes in the law has been a primary demand of human rights groups. For example, making divorce easier for women, claim human rights activists, would enable them to get out of unhappy, abusive marriages.
In Bangladesh, however, there is a clear demarcation between the “public” and the “private” or “personal”, with family affairs falling under personal laws governed by religion, where the State is reluctant to become involved.
Thus, while Article 28(1) of the Constitution states that “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth”, Article 28(2) immediately follows with “Women shall have equal rights with men in all spheres of the State and of public life.” Consequently, in matters considered to be “personal” by the State, such as marriage, divorce, dower, maintenance, custody and guardianship of children and inheritance, citizens are governed by their respective Muslim, Hindu and Christian, religious-personal laws or “family laws”, the majority of which discriminate against women.
Sanjeeb Drong, General Secretary, Bangladesh Adivasi Forum.
In Muslim law, for example, a dower, or “mohorana” -- a consideration of marriage -- is to be given by the husband to the wife to guarantee the economic security of the latter. But this too is payable in full only upon consummation of the marriage, which suggests that it is against a woman's sexual allowance that it is given. Both the Muslim and Hindu husband have a duty to “maintain” their wives. Neither the Muslim nor the Hindu woman has equal rights of inheritance with her male counterparts. Under Muslim law, women do not have equal rights to initiate divorce, while in Hindu law divorce is not recognised at all.
“A Muslim woman has no inherent right to divorce,” says lawyer and human rights activist Sultana Kamal. “Divorce will invariably have to be given by the husband.”
The only exception is “talaq-i-tafweez”, which is still a delegated right, says Kamal. In this case, when the marriage contract is written, the wife must ask the husband for the right to divorce. Other than this, a couple can also separate by mutual consent, but if the separation is initiated by the wife, she must give some sort of compensation.
Polygamy is another discriminatory practice allowed by Muslim law. Though a husband requires his wife's/wives' permission to remarry, and can be sentenced to six months' imprisonment if he does so without it, it really isn't a practical solution, says Sultana Kamal. “After spending six months in jail, more than his love for his wife growing and bringing him back to her, he is likely to want to take revenge on her for sending him to jail.”
A Muslim mother is never a legal guardian of her child; she can only claim custodianship in limited circumstances. In Hindu and Christian law also, the mother's right to guardianship is secondary to the father's right. Under Hindu law, only men have the right to adopt, that too only a male child who will maintain the family line of succession.
“Under Muslim law,” says Sultana Kamal, also Executive Director, Ain o Salish Kendra, a human rights and legal aid organisation, “the mother is never, under any circumstances, a natural guardian of the child. Whether the father is dead or has deserted the family, in name he will always be the guardian.”
Under Hindu law, divorce is not recognised at all.
Thus, in case of divorce, while the mother gets to have custody of her son until he is seven years of age and her daughter until puberty -- interestingly, the difficult, rearing years -- she has no right over the person or property of her children, says Kamal. “Where they will live, go to school, etc., will all be decided by the father, the guardian. In Hindu families, this right belongs to the head of the household, the “korta” or “lord” of the joint family.”
This guardian, says Kamal, will literally “hand over” a woman to her husband during marriage. The “life interest” or basic needs of the Hindu woman will be fulfilled before marriage by her guardian, and later by her husband. Only if the guardian dies before marrying her off will the woman receive any property, as the responsibilities of the former of settling his ward were not fulfilled. But even this property a woman can only own, with no right of transfer or sale.
In Muslim law, men and women inherit in a ratio of 2:1, that is, men inherit double what women do. Popular logic claims this is so because a woman inherits from both her father and her husband, so she can be given less. Less popular is the fact that men also inherit from their wives, and the 2:1 ratio results in them ultimately inheriting more than women. The only way out of this is to make a “hiba”, or gift a woman any amount of property.
“The underlying assumption of all the personal laws,” says Sultana Kamal, “is that, throughout their lives, women will be economically dependent on men. There is a patriarchal influence on the law, which assumes a social/gender division of labour with women attending to the children and household, and men providing for and 'maintaining' their women.”
In some Adivasi communities, however, the opposite holds true. While each ethnic group falls under their respective religious laws, all groups mostly follow their own oral, customary laws, though, according to Sultana Kamal, these are not recognised by the State.
“Our laws may be unwritten,” says Sanjeeb Drong, General Secretary of Bangladesh Adivasi Forum, “but they have come down from generations and are strictly followed.”
Thus, in the matrilineal Garo community, for example, only women inherit property, and the youngest daughter in a family inherits the most, as she is usually the last to get married and looks after her parents the longest. Husbands living with their wives and in-laws are not looked down upon as is the “ghar jamai” in Bangali society and there is no monetary expectation from either side during marriage. According to Drong, some Adivasi communities influenced by Hindu law are patriarchal, such as the Tripura community, where women do not have any rights of inheritance, but it should not be this way.
More than strict laws and harsh punishment, social and cultural values act as the main deterrents of crime in Adivasi societies, says Drong. Thus, men are fined five taka for insulting a woman, though bigger than the monetary punishment is the shame caused to his whole community. If a man betrays a woman, he must face society, ask for forgiveness, and though there's no punishment, it is a matter of utter humiliation for the whole clan must apologise. If a man has an extramarital affair, the group of village elders get together and try to reach a solution, by which he will leave one of the women, and if he chooses to leave the wife, he loses all property as well as the children with her.
There are no clear provisions for divorce in the Garo community, but the matter is arbitrated and the mother usually gets the children, though the decision is flexible and takes place through discussion.
In all Adivasi communities, women are very active and empowered, says Drong. They participate in “salish” or arbitration, they attend all social functions, they go shopping, work in the fields and hills. “They have a lot of mobility, and even the most rural, illiterate women have the right to voice their opinions.” There is evidence of influence from the mainstream society, says Drong, and these days people sometimes question the freedom and mobility of Adivasi women because of it.
While the demand of human rights organisations has for years been a Uniform Family Code for all Bangladeshi citizens, Drong says this may not be applicable for the Adivasi community. He gives the example of “thu nappa”, a system of marriage in which a couple can, without any formal registration of marriage, live together, and whereby their children are also legitimate.
“Such unique traditions of the Adivasis must be taken into consideration when forming a Uniform Family Code,” stresses Drong. “Though traditional laws should not contradict national laws, a way must be found for them to fit in, and so, before a Uniform Family Code is put in place, the State should have meaningful dialogue with the Adivasis.”
A Uniform Family Code is still a far cry, believes Sultana Kamal. To challenge personal laws is to go against religion and challenge the Constitution of Bangladesh, which declares Islam as the State religion, which will be the basis of all actions.
“But where religion is not a barrier to equality, patriarchy is.” An example, points out Kamal, is the Citizenship Act of 1951, which has nothing to do with religion, but which allows only a man to transmit nationality.
The law is a reflection of a society's sense of justice, says Kamal, but how free and equal is our access to justice where women are protected in public life, but everything from birth to death is governed by personal laws which discriminate against them?
A step towards gender equality, says Kamal, has been taken in Bangladesh's signing of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted by the United Nations General Assembly in 1979. In 1984, Bangladesh ratified CEDAW but with four reservations -- on Articles 2, 13(a), 16(1)(c) and 16(1)(f), on the basis that they conflict with the Quran's Sharia law. In 1997, it withdrew two of these, but continues to maintain reservations on Articles 2 and 16(1)(c).
Of them, in Article 2, States condemn all forms of discrimination against women and vow to pursue all appropriate measures to eliminate it. Article 16(1)(c) pertains to equal rights and responsibilities during marriage and its dissolution.
Human rights groups have been lobbying for full ratification and implementation of CEDAW in order to eradicate gender discrimination, but no government has done so for fear of it being anti-Islamic.
“Many Muslim countries have ratified CEDAW,” says Sultana Kamal. “What is needed is political will and the courage to break tradition. Our lawmakers must make a clear decision about their compliance line, whether it is religion or liberation of people.”
But changes are beginning to take place, she says. Thanks to the contribution of non-governmental organisations (NGOs) and activist groups which raise consciousness and provide legal aid, and the media which create awareness, people have become a lot more analytical, says Kamal. “People have their own personal beliefs but they are also beginning to look for ways around them to be able to exercise their rights.”
“We may not get equality right now,” says the lawyer and activist, “but we can take measures, which will eventually bring equality.”
(R) thedailystar.net 2007