Bangladesh: Is the Law Fair towards Women?

South Asia Citizen's Wire
Taherunnessa 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 cannot.

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.

So 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.

"The 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.

The 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.

Even 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," adds Pereira.

There 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.

Pereira 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 6a.m."

There 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.

But 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.

Domestic 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.

The 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.

One 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.

The 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.

A 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.

Pereira 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" issue."

The 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 benefits.

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 of men.

-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 Code.

-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.

Bangladesh 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.

What 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 related persons.

Has the access of women to the legal system improved over the years?

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 violence.

In 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.

Can 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 for BNWLA.

Is it difficult for women lawyers to work in a sexist society as ours?

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 and privileges.

What 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.

--The 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 of CEDAW.

--There 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 lengthy procedure.

-- The practice of appointing lawyers simply considering their political views has to be eliminated.

--There has to be a procedure of accountability of law enforcing agencies.

-- Victim and witness protection services have to be more effective.

--Training of youth groups besides police, investigation officers, Kazi, and Imams have to be conducted.

--There 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.

by Aasha Mehreen Amin
Original Source: Star Weekend Magazine/The Daily Star (Bangladesh)
March 5, 2004