|
Article Excerpt
Abstract
The problem of inequality for women in Bangladesh is more social than legal. As regards to the law, except for personal matters, inequalities in the provisions of law are hardly found. Personal matters, however, are regulated by religious laws or customs. In the legal system of Bangladesh though these laws or customs are incorporated separately under the head of Personal Law, these are not, however, as a whole derived from religious laws or customs. Some changes through introducing enactments or promulgating ordinances were made in their application. Still, these have been insufficient to establish equality between women and men. This paper shows how Muslim women are being treated with regard to their Personal Law, in particular marriage and its related law applicable in Bangladesh. Prevailing social constructions of gender are still a fundamental obstacle in realizing the demands of existing law. In order to remove inequalities and impose justice, particularly in marriage-related matters, for both Muslim and non-Muslim women living in Bangladesh, this paper suggests the importance of adopting the Uniform Family Code. At the same time it emphasizes the need for social education and awareness programs through government and non government institutions.
Key Words: Islamic Marriage Contracts, Talaq, Family Law in Bangladesh
Introduction
The legal system of Bangladesh is based on common law, which was applied during the colonial regime of British-India. Still, some special parts of law applied during the British period remained untouched. This special area of law is called personal law, and it is shaped by religious law or customs. This personal law includes: marriage, divorce, dower, maintenance, guardianship, inheritance and so on. In 1947 India was partitioned in two, Hindustan--the present India--where the majority of the population is Hindu, while the other is Pakistan--a Muslim state. India had declared itself a secular country, whereas Pakistan had claimed to be an Islamic country. Interestingly, both the countries had upheld their religious rules in the case of personal law matters. Bangladesh was at that time part of Pakistan, the then East Pakistan, only because the majority of its population had been Muslim when India was divided on the basis of the Two-Nation theory--Hindu and Muslim. In 1971 Bangladesh achieved independence after a nine-month bloody war. A constitution was adopted stating "secularism" as one of the policies in the preamble which was eventually changed by an amendment. All the citizens, however, were put as equal before the law. Nonetheless, no uniform code for family matters were adopted, and personal law were still existed on the basis of religious rules and customs. The majority of the population in is Muslims, but there are also religious minorities including Hindu, Christian and Buddhist. In the case of family matters, everyone is ruled by his or her own religious law.
A careful examination of this religious law shows that women are not equal to men. This truth is not only applicable in Muslim personal law, but also equally true with regard to other religious law, for example, Hindu personal law. My concern here is to look at only a narrow area of marriage related personal law for Muslim women applied in Bangladesh. This would include: marriage, divorce and post-divorce situation of a woman. I will show that Muslim personal law is not the same as in other Muslim countries, nor is it completely similar to the classical Muslim tradition. Therefore, I will present a comparative analysis in which I will examine the present status of Marriage related laws for Muslim women and at the same time I will look into progressive developments achieved thus far.
Marriage
In Islamic Law, marriage is a contract--a social contract--as distinct from a commercial transaction. It is sometimes also termed a 'civil contract' between a single man and a single woman of sound mind who have attained puberty. (1) These contracts must be understood by the parties in order to ensure that the marriage has been performed in the proper manner and the rightful effects of the marriage are granted to each of the participating partners. Also, it is considered best if the contract is executed in spoken form. (2) However, due to need or necessity, it may be done through writing or signing.
In Islam, marriage involves sharing between the two halves of society. Its objectives, besides perpetuating human life, are emotional well-being and spiritual harmony. Its bases are love and mercy. It also indicates legalization of sexual intercourse, and provides a license to produce children. Therefore, in Islam extra-marital sexual relations are prohibited, let alone reproduction. According to Shia law marriage in Islam can be of two kinds: first, marriage through a regular contract which is called "permanent", and second muta marriage--a non-permanent marriage for a fixed term. (3) Muta is distinguished from regular, permanent marriage on the basis of its nature. As it is temporary it does not reflect any far-reaching consequences. For example, Muta marriage does not create mutual rights of inheritance between the man and the woman, but children conceived while it exists are legitimate and capable of inheriting from both parents. All that is needed for Muta is a valid contract with a mention of the specified period accompanied by a fixed amount of dower. What is also important to note is that for a valid Muta two witnesses are required as is also required for the permanent marriage. In the remainder of the paper, I illustrate some basic existing elements of Muslim regular marriage, rather than Muta that discriminate against women in Bangladesh.
The legal effects of marriage depend on the validity of marriage. For example, a marriage can be classified as sahi (full valid), fasid (irregular) or batil (void). There are no legal consequences for a batil or void marriage since according to Islamic law, it is not a marriage at all. Limited legal consequences are, however, found in an irregular or fasid marriage.
Limitation on Age
As earlier stated, the marriage agreement is a contract between two persons beating sound mind. Since the idea of 'sound mind' is quite broad, in order to avoid any confusion it only excludes "insane" or "lunatic" from the contract of marriage.
Attaining puberty is very important for a marriage contract. It demonstrates that parties to the contract are mature enough to independently express their consent. It is, however, confusing as to when one gets puberty. There are many dissenting opinions on this issue among the different schools of thought. Under Muslim Law a child becomes an adult upon attaining puberty which varies with gender. An average female child ceases to be a child upon attaining puberty at the age of 12 years and an average male child on reaching 15 to 16 years of age. According to the Hanafi school a girl attains her puberty at the age of 15, which in other schools are even lower. The Hanafi school, nevertheless, does not rule out a marriage contract written before the age of 15. But in that case the girl has the right to repudiate the marriage once she attains puberty. In this case the marriage contract is arranged by their guardians.
According to prevailing laws puberty is determined on the basis of one's attaining majority. As a matter of fact, the term puberty is no longer relevant. What is relevant for a marriage contract is whether one has crossed the age of minority. Laws regarding majority were enacted at different times and in response to different situations. The concept of minor or child has, thus, been given varied definitions by different acts and statutes in force in Bangladesh. The Bangladesh Majority Act of 1875 defines a person below the age of 18 years to be a child. The Guardians and Wards Act of 1890 states that if a child is made a ward of court then he/she will remain a ward until 21 years, thus defining him/her as a child up to that age. The Children (Pledging of Labor) Act of 1933 regards a person below the age of 15 years as being a child. The Bengal Vagrancy Act 1943 considers a person below the age of 14 years as a child. The Factories Act of 1965 defines a child as a person who has not completed 16 years of age. The Children Act of 1974 states that a child is a person below the age of 16 years. The legal system in the country also makes a distinction between boys and girls in defining a child. This is especially apparent in the Child Marriage Restraint Act of 1929. In this Act the age of majority, defined in terms of contracting a valid marriage has been placed at 21 years for boys but 18 years for girls. It does not, however, contemplate that marriage contract under that...
|
