Home | Back Issues | Contact Us | News Home
“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 181
March 13, 2005

This week's issue:
Human Rights Analysis
Star Law Analysis
Law Alter Views
Star Law History
Human Rights Advocacy
Rights Column
Human Rights Monitor
Fact File
Law Event

Back Issues

Law Home

News Home


Women's Day Special

Law alter views

Some laws do not consider women as an adult

Barrister Sadia Arman

Section: 155 of the Evidence Act 1972 of Bangladesh states:

1. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:
(4) When a man is prosecuted for rape of or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.

Consider the meaning of this extant law. Firstly think of the first line of defence that naturally springs to the mind of a lawyer when defending a man charged with committing rape, and consider what the conduct of that defence entails in relation to the victim. Think of the victim. She has been raped. Then, struggling with the burden of the agony and the shame, she has finally summoned enough courage to confront him who has wronged her. Then the defending counsel shouts in front of the court: "My lord, the truth is that this woman is a whore. She pursued my client for money. My client is a man of upright character, who has been wrongly seduced by this woman". The woman hears, and her first reaction is to hide her face in utter agony, then, she starts crying with sobs: a perfect pathetic spectacle of shame for all the world to condemn.

I have just potrayed the scene as described to me by a young female advocate, who had joined the profession a few months back. She said that on witnessing this she felt that if she were to conduct such a defence, her nature would rebel against her to such an extent that she might fall prey to some serious physical disorder. So she left the profession for good.

Consider the insinuation of bad character within the construction of the sentence for any victim. But consider also the purport of the provision for a woman of 'immoral character'. The legal provision suggests that such a woman may be raped with impunity.

The legal provision in question which was drafted in 1872 during the British regime reflects the social attitudes towards women that were reflected in the law. What kind of a woman lets herself be raped? What kind of a woman lets herself fall into such a situation that she gets raped? She can't be a lady of the upper classes who is travelling with a male escort in a carriage. She is of the wrong sort, who mixes with all kinds of men, and certainly she is from the lower classes. This kind of woman deserves little legal protection, if any, from the court.

In England the law against rape evolved, and had a major overhaul in the case of RvR, (1992), in which the House of Lords held that if a man has forcible sexual intercourse with his lawfully wedded wife, that shall amount to rape.

This created ripples even in England because although English law had slowly been developing to grant woman increasing protection, it had mandated since Blackstone's time that since a man by marriage is entitled to enjoy a woman's body, he is not capable of raping her: the benefit of the delights of the body being incorporated within the marriage contract itself.

RvR stripped the husband of any such guarantee, and moved the mind's focus to another place: the issue of consent. If a woman does not consent to sexual intercourse, she is being raped. Full Stop.

This resulted from a major development in social perceptions. Woman's body was at last recognised as a sacred entity over which she alone should have supreme control.

This development in relation to rights over the body occurred parallel to other developments, relating to marital status and property. Before 1882, a woman, upon marriage, gave a gift of her person and property to her husband: she therefore had no separate personality, and she could not dispose of any real or personal property that she owned. By the Married Women's Property Act 1882 a married woman acquired the right to own and dispose of personal and real property, but only if she had been married before 1882!

At about the time of RvR, if only some thirty before, an interesting development had been taking place over the property rights of the unmarried woman who had been living together with a man, sharing a home. The married woman had a right over the matrimonial home, and could claim half the value upon divorce, but not so the unmarried woman, who had not concluded a formal contract of marriage. But England at the time had a very dynamic and humanitarian judge heading the Court of Appeal, a man who was never afraid of molding the law to suit the needs of justice. This wonderful Judge, Lord Denning, when faced with some cases where woman had to separate after spending the major part of a life-time with an unmarried man, decreed, that even though she may not have paid for the value of the house in economic terms, yet she was entitled to half the value of the home in an appropriate case where she taken care of the home and the children. It was by virtue of her services that the man was able to work and earn, and her work had thus a corresponding economic value to which she was entitled in the shape of a share in the matrimonial home. The abolition of this distinction between the rights of the married and unmarried in relation to the matrimonial home was consolidated by the Family Law (Maintenance of Spouses and Children) Act 1976.

In fact most of the conceptual changes with respect to a woman's body and property took place in the 20th century. Woman was not till then recognised as a full-fledged citizen, because, as Ruskin argued, her proper place was in the domestic, not the public sphere. Only in the 20th century did woman gain the right to vote at Parliamentary elections, the culmination of many years' campaigning by the female suffragettes.

These social conceptions regarding woman can be said to relate to the fact that she was not considered fully adult: her physical and mental powers, her judgement, were all considered inferior. It followed that she was in some way or the other the ward of a man: her father, her husband, or even her son. But although the Occident has gone a long way from such ideas now, in Bangladesh we understand too well the implication and meaning of these. Can an unmarried woman or a divorcee rent a flat of her own and stay? Few hotels in the country will let in such a woman. May a single unmarried woman adopt a child? May she even ride a bicycle in the streets? In business, in travel, in finding a shelter for herself, she must find a male counterpart for legitimacy. And legitimacy is a very powerful concept. The single woman, or, the woman who likes to do things alone as an adult in her own right finds her very identity, her very existence coming into question.

The law refuses to accept that woman is an adult. Where a Bangladeshi woman marries a foreigner, she cannot pass citizenship to her husband. Neither the Muslim nor the Hindu laws of inheritance allow daughters to inherit family property like sons. The Muslim religion dictates that a woman giving evidence in court is the equivalent of half a man. So woman is half an adult.

Interestingly, the issue of women's emancipation is not really like any other human rights issue; such as ethnic minority rights, the right to practise a religion, or the right of a people to their language. Nor is it like any single category of right that concerns a whole nation, like freedom of assembly, freedom of thought and expression. Woman is not a minority, and neither are we concerned here with a single category of rights. The issue of women's rights is easily the most important human rights issue of all simply because women constitute half the population of the human race.

And here we come to the stalwart Convention on the Elimination of all Kinds of Discrimination against Women (CEDAW), which came into force in 1981, and to which Bangladesh is a signatory, which declares effusively and stridently in its Preamble:

The State Parties to the present Convention,
"... Convinced that the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields,Have agreed on the following:"

And here we have the wonderful CEDAW. You are invited to take a look at it.

The author is currently Capacity Cultivating Coordinator in Action on Disability and Development.



© All Rights Reserved