Dossier 14-15: More Crumbs for Women?
Publication Author:Hameeda Hossain
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number of pages:183
Editor, Women On the Move.
It is not often that legislation in Bangladesh concerns itself with women’s rights. This explains why Farida Rahman’s Private Member’s Bill to amend the procedure for polygamy under clause 6 of the Muslim Family Laws Ordinance 1961 (MFLO) has created such a ripple. Procedural objections raised by the Law Ministry and by members in the committee may lead to further amendments. Outside the house, women have expressed their concern on two counts: that the proposed amendment, as it stands, is not likely to realise its intention of “restricting polygamy in order to alleviate violence against women”; that the bill was not drafted through consultation with women’s groups and organisations involved in the women’s movement, to make this impact more comprehensive. There is a strong feeling that the bill is offering us crumbs when we need bread.
Farida Rahman’s bill does not address the issue of polygamy. As long as a man’s superior rights in marriage and divorce are not challenged, women will remain vulnerable to oppression and violence. What we need to question is the effectiveness of procedural laws stop far short of de-legitimalising polygamy. If such laws are meant to be a deterrent, how effectively can women use the court system, given their social and economic dependency? And is the woman expected to abdicate her marital decisions to the Court?
The proposed amendment to section 6 of the MFLO requires a man contemplating a second marriage during the life time of his first wife, to seek the permission of the Court (the Assistant Judge) instead of that of the Arbitration Council (constituted by the Chairman of the Union Parishad or Municipal Ward, Mayor of Municipal Corporation). The bill seeks to deter violence against women merely by allowing her the right to appeal to court, if her husband marries without her permission.
Although the MFLO may have been a step ahead of existing laws, it did not meet all of women’s demands, which included a ban on polygamy. It was meant to discourage rather than de-legitimise polygamy. Therefore the practice continued unabated. Loopholes in the laws itself allowed men to violate its intent. To recall, section 6 requires a husband contemplating a subsequent marriage to apply for permission to the Arbitration Council “where his previous wife is resident”. It is assumed that a nearby location would increase access by the women plaintiff or her representatives; it envisages mediation to permit the woman or her family to be heard. It has been argued that the Arbitration Council, being inefficient and susceptible to influence and power, concedes permission all too easily and sometimes without proper reasons. The grounds for permitting remarriage, included a wife’s inability to have children, her physical handicap, mental derangement and her refusal to maintain conjugal relations.
The MFLO requires a written application to be made by the husband confirming that he had obtained his previous wife/wives’ consent has been open to abuse. There are grounds to believe that wives are coerced to give their consent. In other cases they pretend to have obtained consent, in the full confidence of woman’s reluctance to create a public scandal. An affidavit or direct statement from a wife is not a current requirement. The man’s liability in marrying without permission has not been a sufficient deterrent, being restricted to financial measures (immediate payment of dower and fine) or imprisonment of one year. Since there was no stipulation for annulment of the marriage, both marriages remained operative. It became a continuing cause for gender violence.
Farida Rahman in an interview with Bhorer Kagoj on 19 July has rationalised her amendment on several grounds: first, the need to modernise society; second that the court’s jurisdiction would act as a greater deterrent against polygamy. Third, it would stop marital violence provoked by a wife’s refusal to give permission for her husband’s remarriage. Fourth, it would lead to the realisation of full equality in the public sphere as articulated in the Constitution of Bangladesh.
The methods by which the proposed amendment is likely to fulfil its professed intention is unclear. If modernisation presumes equal rights for women and men, the Bill does not even question the inequality inherent in polygamy. The argument that recourse to a formal judicial structure is likely to provide a greater deterrent to polygamy may seem appealing, but the social reality needs to be examined before partial changes are introduced. If a woman’s subordination is based on systemic inequalities, will it make a world of a difference to change the forum for obtaining permission from an Arbitration Council to an Assistant Judge? For middle class women and their families this may indeed be possible, but how will the overwhelming number of poor rural and urban women find access to courts? The cost incurred in travelling to distant courts is in itself discouraging. If the court appears a forbidding institution for a man, it is even less approachable for a woman whose life is circumscribed by her neighbourhood and her village. In spite of its susceptibility to power and influence it could be argued that the local arbitration council located in the place of residence of the first wife, would be more accessible to both parties. Weak enforcement mechanisms are evident in all levels of governance not only in local government. What surety is there that a formal structure could be more effective in detecting deviations, unless proper procedures are instituted to ensure the woman’s participation at the hearings.
Many marriages in Bangladesh are not registered (a proper census would indicate the frequency) in ignorance of the requirement of the Muslim Marriage and Divorces (Registration) 1974 or even in full awareness. Without registration it may be difficult even to trace the number of marriages a man may have entered into. Desertion is more common by men when the marriage is unregistered because it makes it more difficult for the wife to sustain charges of desertion against him. Yet there is no machinery to guard against this.
The third argument that obtaining permission from Court would deter violence against women is hypothetical. Violence is perpetrated for more than one reason, and what logic suggests that men would not beat their wives if the court refuses permission? For that matter there are frequent reports to suggest that polygamous men are also violent. Violence implies more than physical injury and women are frequently exposed to neglect, both physical and emotional, threats, oppression, whether it is over the triviality of a pot of unsalted rice or over more serious maters such as property or maintenance.
Legislators must realise that this exploitative situation has prevailed because of the economic dependence of women, added to their lack of awareness. Ignorance and lack of social support has led to a non-application of the law, both in registering their marriage or in filing objections against the husband’s second marriage. Would they be more likely to appear before the court than an Arbitration Council?
Farida Rahman asserts that her bill conforms with the equality provision of Article 28 of the Constitution of Bangladesh. The sanction of polygamy and arbitrary divorce by itself violated this principle. As long as men are able to enter into polygamous relationships, with or without permission, as long as their subsequent marriage remains valid, and women have no means to assert their independence, the equality clause will remain ineffective.
The member of Parliament has spoken as the representative of the women of Bangladesh. If this is so, she should consult with women’s organisations, lawyers and other activists who have been engaged in the struggle to defend women’s rights. If she can elicit their opinion she will realise that a major plank of her struggle for legal equality is the abolition of polygamy and enactment of a uniform personal code for all communities.
Tunisia, Turkey and Iraq as Muslim countries have not hesitated to abolish polygamy. Even when it proposes to deal with only a particular aspect of the MFLO, the Bill needs to be far more rigorous, particularly by incorporating protective clauses relating to maintenance, payment of dower, a woman’s unilateral right to divorce in polygamous marriages.
Farida Rahman may have done a service by drawing the attention of the parliament to the glaring inadequacies of the MFLO. The answer, however, does not lie in cosmetic changes alone. What we need is a more serious and collective consultation to eliminate the sources of gender discrimination. A National Commission for Women needs to be established to identify the bases of inequality and exploitation of women more comprehensively, rather than referring to only one single aspect of their lives; constitutional guarantees should extend to all citizens. The present amendment is applicable only in the case of Muslim women, and makes no pretence of extending its provision for women of other communities. It is high time that the government set up such a commission, perhaps as part of their Law Reform Commission.
To be meaningful it should not remain an exercise in partisan politics. It should draw upon women activists, lawyers, researchers and others who have had years of experience in working with women. Affirmative efforts need to be made to hear the voices of women at the grass roots, both urban and rural. The purpose of these consultations with women of all classes and religious communities would allow for more representative participation in formulating the principles of law as well as the means for their enforcement. This is the true test for democracy.
The process needs to be more participatory and at the same time more specific. There are indeed precedents for popular methods of evaluation in other countries, from which we can learn. Before it enters the statute books the Bill needs to be expanded and discussed both in and out of parliament. Unfortunately women lack effective representation in the parliament. Therefore, it is all the more necessary for women to articulate their concerns through the press, through meetings and other forums. The women’s movement is also on test here to stop accepting crumbs and then complain that little has changed in their lives.
The writer is a freelance writer and member of Ain O Salish Kendra, a legal aid and mediation centre. The views expressed here are those of the author alone.
Women on the Move Section Daily Star (Dhaka), 22 August 1993.
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