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“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: 302
December 29, 2012

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Law In-depth

Consent-less marriage! Marriage-less consent!

Urge for socio-legal vaccination

M A Sayeed & Wasequzzaman

By nature, the Muslim marriage meets up its Quranic description as “mithaq” which means a “covenant” between the husband and the wife. Though the Quranic description highlights the contractual nature of marriage union, it does not, however, wither away the importance of spiritual stance shaping the heart of a Muslim marriage. Thus in the purely Islamic perspective, marriage remains not merely as a “civil contract”, but a contract with something more -- with some sanctity in its core.

In legal parameter, the contractual nature of a marriage union is highly emphasised and established beyond controversy. Of course, such emphasis on its contractual nature (that is, to term it as a civil contract) presupposes the presence of “free consent” of the parties as an uncompromising requirement of marriage. On the other hand, the spiritual dimension of marriage recognises “the freedom of choice” between the parties to be taken as a supposedly valid condition of forming a lawful wedlock.

Indeed, the right to exercise the “freedom of choice” between the parties becomes an essential corollary to the concept of consent in Muslim marriage. The Islamic principle of “Huquq-wa-al-faraid”, which echoes the ethics of personal liberty and individual responsibility, supports or rationalises the view that such freedom is available not to the men only but both to the men and women equally. Ironically, the ongoing conviction of our Muslim heartland fails to converge with this basic postulate of Islam, especially in recognising the women's individuality in contracting their marriage.

Compared to that of their male counterpart, the women notionally enjoy a little freedom in forming their marital wedlock. Our marriage-related practice, however, shows a total disregard to the requirement of women's consent in marriage, reflecting the gender-oriented focus engraved in the patriarchal pattern of our society. In this write-up, we will try to show the reasons and ramifications of such practice from a somewhat radical angle. In so doing, we will put concentration on the contemporary trend of our socio-cultural transformation affecting the basic fabric of marital institution.

The first part of the title of this writing concerns the cases where the marital wedlock is formed without complying with the basic condition of consent. Traditionally, the women have been the main victims of this malpractice. Being yielded to the socio-cultural milieu, the typical Bangladeshi women usually take it as their fate to agree to a match arranged by her family. By conducting an extensive research in this respect, Dr. Shahnaz Huda, a distinguished Law Professor from Dhaka University, has categorically commented that “[t]he socio-cultural and religious norms which demand seclusion of a woman are at odds with the requirement imposed by religious law of obtaining the consent of the women” (Dhaka University Law Journal: 2005).

This fact undoubtedly signifies the downtrodden or degraded status of the women in our society in one hand, and the socio-cultural distortion of the religious norms on the other. However, the most fatal consequence of such practice relates to our societal outlook of neglecting a clear religious ruling which requires the presence of consent of both the parties to a marital wedlock. Instead of adhering to the legal and religious requirement of obtaining consent, our society unreasonably goes for “validating an invalid marriage.” In most of the cases, our society even does not bother about the backlash to such marriage coming predominantly from the female folk.

The malpractice of the so-called “consent-less marriage” (we use the term to mean all marriage union which lacks “free consent” of the parties, especially of woman) actually grows out of a doctrinal disagreement between the Hanafi and other Madhabs. While the Hanafi madhab believes in the strict adherence to fulfilling the requirement of wife's consent and the exercise of her freedom of choice in forming the wedlock, the other Madhabs (for example, the Hanbali or the Shafi) do not recognise any such requirements to be compulsorily observed.

Interestingly, though our personal laws, by and large, correspond with the ruling of Hanafi Madhab, in the particular field of woman's freedom to contract the marriage, it seems to follow the other Madhabs' view. This piecemeal observance of Hanbali or Shafi Madhab creates double standardisation of the legal norms by paradoxically pushing a Hanafi woman into the legal domain of the Non-Hanafi Madhabs. More pathetically, this deviation from Hanafi view facilitates the patriarchal force, giving it the opportunity of curbing down the women's individuality in contracting their marriage.

Another important reasons contributing to the continuance of this malpractice is the lack of any specific legal regulation regarding the requirement of consent to marriage. In this respect, the Contract Act of 1872 can be referred to as the only relevant legislation governing the incidents of a marriage contract. However, this Act of 1872 does not seem to provide effective redress for all the practical purposes because of the fact that mere declaration of a marriage contract to be null and void on the ground of lack of free consent is virtually irrelevant to the socially complex transaction like marriage. Once a marriage is solemnised, it remains a marriage, valid and effective, in the social eyes, thereby creating a web of consequences independent of its legal effect. Thus prevention of this kind of marriage has become more desirable than seeking redress of invalidating the union.

Probably, such kind of realisation led the 1956 Family Law Commission to reconsider the matter. With a view to ensuring that “marrying parties have freely consented to marry each other”, the Commission recommended a standard form of nikah nama to be prescribed where both the parties will require to sign. In pursuance of this recommendation, Section 5 of the Muslim Family Laws Ordinance of 1961 prescribes such machinery. But we are yet to appreciate the success of this endeavor for the simple reason, as Maulana Ehtishamul-Huq rightly pointed out, that the signature in the nikah nama can be taken even when the parties are forced into the wedlock.

This being the case, the malpractice of “consent-less marriage” continues even at our age when women's edification and emancipation is getting momentum. The implication of the societal and legal tolerance towards such malpractice has not, however, been confined only to threatening the peaceful cohabitation of the couple concerned. Turning to the later part of the title of our writing, we will here try to see that as a reaction to such malpractice, how another “bad standard” becomes emergent as inevitable in the way of our socio-cultural transformation.

This contention can be justified with reference to the popular discourse of “the arranged and love marriage dichotomy”. At present, the marriageable men and women are increasingly leaning to or involving into the so-called relation of love-affairs (which we term as “marriage-less consent” for present purpose). Standing at the other pole of arranged marriage, this practice creates a diametrically opposite standard which also seems to threaten the fabric of the society by other means. The most crucial tension regarding the trend of such relation is that though it meets up the fundamental facet of a lawful wedlock, namely the consent of the parties, it lacks some essential formalities like ceremony or registration of marriage.

Under the Hudud Ordinance of 1979, all relations other than a reported marriage have been defined as fornication in Pakistan (Anis Ahmed: Women and Social Justice, 1991). Though the MFLO and the Muslim Marriages and Divorces (Registration) Act of 1974 embody the rules for compulsory registration of marriage, the status of a non-reported marriage is still left vague in our country. The exposure and appreciation of such relation in the societal context further suggests that the status of such relation stand between fornication and a lawful wedlock.

The growing status and relevance of such relation seems to import some serious ramifications: (i) since no legal status is attached to such relation, the ongoing practice actually creates the scope of cheating and victimising the women, thereby facilitating another form of gender violence; (ii) in the end, it results in the encouragement of fornication, thereby leading the whole generation to an “enduring alienation”; and more importantly, (iii) by allowing excessive freedom to the teenagers, it increases the possibility of conflict between the guardian and parties to the marriage.

At this point, we will argue that our State's role in regulating both kinds of malpractice as we identified above has always been negligible. In the former case, it has failed to ensure the religiously imposed requirement of consent, especially by tolerating the suppression of women's freedom in contracting her marriage. On the other hand, by sponsoring the marginalisation of religious influence in the societal affairs, it has practically encouraged the practice of what we called as marriage-less consent.

It is now the demand of time that the state will come to develop an effective socio-legal mechanism to reconcile the conflict arising out of the consent issue. For the Iranian society, as Mutahhari passionately argues, the solution comes from a “conscious compromise”, where the parties to the marriage are afforded with the opportunity of choosing the partners, but marriage is solemnised through the agency of guardians (Mutahhari: Women's Right in Islam). We can easily approach in this way even by following the rationale of Hanafi Madhab which allows the exercise of option of puberty in one hand, and recognises the rights of the guardian to dissolve an unequal union on the other.

True it is that law alone cannot combat the cross-cultural influences over the marital institution which involves a multitude of layers including the social and moral fabric of the community. A step-wise approach by socio-legal inoculation can thus be an effective way out of getting rid of such problem. Let's go for it right now, otherwise we will fail to stop the landslides of “anti-familism” coming towards us!

The writers are studying law at the University of Dhaka and Eastern University respectively.


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