Bangladesh – Family Laws for Muslims, Hindus, Christians, Give Men More Power
Author: Womens UN Report Network
Date: October 15, 2012
WUNRN
Human Rights Watch
BANGLADESH – FAMILY LAWS FOR
MUSLIMS, HINDUS, CHRISTIANS, GIVE MEN MORE POWER
By Aruna Kashyap – Published in: Forum – The Daily Star –
October 3, 2012
Each one of the women interviewed had a story of
suffering directly related to these laws. They told of being trapped in violent
marriages because they had nowhere else to go, or struggling to cope
financially after their marriages broke down.
“I am old — maybe in my 50s — there is no one to even give me a
glass of water. I live all alone.” Those were Mehbooba’s first words to me. I
met Mehbooba last year when she visited a local NGO office to follow up on a
maintenance case long pending in a family court in
Mehbooba was one of 120 women I interviewed in
last year about their experiences regarding family laws on marriage, divorce
and separation, and how they fuel poverty and marital violence.
Bangladesh‘s
family laws for Muslims, Hindus and Christians, some dating to the 19th
century, grant men far greater powers than women in marriage and accessing
divorce. They do not recognise women’s many contributions to marital homes,
husbands’ businesses and other family property. They give virtually no guidance
to courts for determining maintenance amounts when marriages break down. Yet
these laws have remained frozen in time for decades, and in some cases more
than a century.
Each one of the women I interviewed had a story of suffering
directly related to these laws. They told of being trapped in violent marriages
because they had nowhere else to go, or struggling to cope financially after
their marriages broke down. Where there was no family support, many women ended
up in shoddy housing or on the street until they found help. Some women and
their children went hungry or begged for food. Some also pulled their children
out of school to work. Many faced ill health and could not afford treatment.
The laws’ meagre protections of their rights failed them time and again.
Mehbooba struggled her whole life due to inadequate Muslim family laws. Her
father remarried without telling her mother, and abandoned them. As a result,
Mehbooba spent much of her childhood as a domestic worker. Her mother was too
poor to raise her alone. Mehbooba’s employer married her off at puberty to a
much older man, whom she later discovered was already married. His first wife
was horrified to see the new bride — she had not consented to the remarriage.
“On some days she starved me, sometimes she beat me, she insulted me,” said
Mehbooba. Her husband joined in the beatings too. After years of abuse, she
mustered the courage to run away and divorce her husband. Mehbooba left the
marriage penniless, with none of the marital property and no maintenance. She
earned a living in
work.
Years later she married another Muslim man, hoping for a second chance at
happiness. But the love soured quickly. Her new husband demanded that she give
him her earnings, beating her if she did not. She fought to save and hide
money. One day she woke up to find her husband and her life savings of 60,000
takas gone. She searched for him and learned in his village that her husband
was already married, and further, that he had recently purchased land in his
name.
Mehbooba filed a case in the family court several years ago to try to
recover her mahr (the contractual amounts promised by her husband in
the Muslim marriage contract) and maintenance, but the case was still pending
when I spoke to her in 2011.
“I had saved enough money to survive in my old age but now I have nothing,”
she told me. “I got nothing from him — not even laalsuta [‘red
thread’]. Do you know what I eat now-a-days? I eat left over panthabhath
[fermented white rice] in the houses where I work,” she said, fighting back
tears.
Polygamy fuelling female poverty and domestic violence
Of the 71 Muslim women I interviewed, at least 40 of them were in
polygamous marriages. In all cases, polygamy had an adverse impact on women and
their rights. Many said their husbands abandoned them after taking additional
wives, leading to loss of housing and economic support. Some, like Mehbooba,
drew a link between polygamy and domestic violence, saying that their husbands
beat them when they voiced opposition to taking another wife. Sometimes other
wives joined in the beatings.
None of the 40 women had given informed consent to be in a polygamous
marriage or experienced local government arbitration council reviews as
required under the Muslim Family Laws Ordinance. In fact, several union
parishad members I interviewed seemed completely unaware of their duties under
the Muslim Family Laws Ordinance. The ordinance has been in place for over 50
years.
Many women told me their husbands misrepresented their marital status in
their kabin-nama, saying they were single when they were actually
married. Because there are no digitised marriage records accessible throughout
the country, qazis complained that they had no way of verifying men’s
marital status.
Barriers to divorce
Indeed, none of
personal laws provides women and men equal access to divorce. Muslim and
Christian laws erect higher barriers for women to access divorce than men.
Hindu family laws are more problematic — they do not permit divorce at all but
allow Hindu men to remarry without restriction. Polygamy for Hindus makes the
absence of divorce almost irrelevant to Hindu men — they can leave their wives
when they want to and remarry. But it is devastating for many Hindu women.
One of the most horrific cases I came across was that of Namrata N., a
Hindu woman in her 20s who had given her life savings — 2,00,000 takas — to
her husband to set up a business. He misused the money and beat her when she
demanded that he return it. One night, when Namrata was sick and wanted some
water, her husband gave her acid to drink, then absconded. Since that day,
Namrata has not had so much as a sip of water because she does not have a food
pipe. She cannot even swallow her saliva — she uses a spittoon. She is fed
ground up food poured into a feeding tube attached to her intestine. Even the
smell of food makes Namrata sad. Justice, Namrata said, means two things — she
wants to see her husband behind bars and also wants to divorce him. But Hindu
family laws make the latter impossible.
Hindu leaders are divided on the idea of reform. Some Hindu scholars joined
with women’s groups in 2011 to organise consultations across
on changes to Hindu marriage and divorce laws, but other conservative Hindu
leaders oppose any reform. Meanwhile, law reform has stalled, and women like
Namrata go unheard. Even the most reasonable demands of Hindu women and women’s
rights activists — for example, allowing divorce at least on a few grounds
including cruelty and abandonment — have gone nowhere.
Married women can go to court and seek separate maintenance and residence.
But this is difficult too. Hindu family laws have no provision for mandatory
registration of Hindu marriages, making it convenient for husbands to dispute
the very existence of a marriage when their wives go to court.
Ironically, some of the very Hindu leaders who oppose personal law reform
and mandatory marriage registration in fact need proof of marriage for other
purposes. Kajal Debnath, the President of the Bangladesh Hindu, Buddhist, and
Christian Unity Council last year, told me that some Hindu leaders came to the
Dhakeshwari mandir and asked for marriage certificates in order to
apply for visas for their children to live abroad. The Dhakeshwari mandir,
he said, issues four or five marriage certificates every week. Yet, when
women’s rights activists asked for a simple system of mandatory marriage
registration to be made available across the country, they opposed it citing
religious grounds. The government had moved forward with a bill on Hindu
marriage registration, but under pressure from these leaders, it was watered
down to an optional registration system. This was passed in parliament
just last month.
While Muslim and Christian personal laws do allow divorce, they make it
more difficult for women to get a divorce than men. Under Christian law, men
can seek a divorce on the ground of adultery alone. Wives, on the other hand,
must prove adultery and one or several other acts. These include : conversion to
another religion, bigamy, incest, rape, sodomy, bestiality, desertion for two
years, or cruelty.
Muslim family law also makes it far easier for men than for women to
divorce. All Muslim men have an absolute right to unilaterally divorce at will,
whereas Muslim women may only do so if men “delegate” them this right in the kabin-nama.
While men’s right to divorce is supposed to be subject to arbitration council
review, this rarely happens. Women may seek divorce by mutual consent,
including through a khula divorce, but many say they have to pay a
consideration to their husbands (usually foregoing mahr).
Alternatively, women can divorce through the Dissolution of Muslim Marriages
Act, but only on specific grounds, involving a lengthy process in family
courts.
No recognition of women’s right to marital
property
Muslim, Hindu, and Christian family laws are discriminatory in different
ways. But common to all these laws is their failure to recognise women’s right
to property and assets acquired during marriage or whose value is enhanced
during marriage through women’s efforts. Women have a right to property that is
separately owned by them, but as the 2006 World Bank Survey shows, less than
10% of married women have their names on any property, owned or rented.
All the women I spoke to had contributed to their families’ property in
many ways. Every one of them performed unpaid housework, enabling their
husbands to participate in paid work. Some handed over savings to their
husbands who bought property in the husband’s or in-laws’ names. Some worked
for their husband’s grocery shops or tailoring businesses. A few women paid for
additional rooms to in-laws’ homes. Some cultivated family fields. All cared
for children and elderly in-laws. At least one study in
shows that married women spend far more time than men on unpaid household work,
which reduces women’s capacity to undertake paid work. A 2007 study in
found that 57% of men and 55% of women surveyed estimated that women spent
between 16 and 20 hours every day performing household work. More than 40% of
both men and women surveyed reported that men do no household work whatsoever.
But when marriages ended, despite these contributions, many women are left
with virtually nothing.
For Muslim women, the kabin-nama, which has a standard format, has
terms that women can negotiate to better protect their rights, including
property rights. But the women I spoke to either said they were too young at
the time of marriage to be able to negotiate better terms, or were unaware of
how the kabin-nama clauses could be adapted to protect their rights.
Some women were not even aware of the mahr amounts that were fixed at
the time of marriage. Older women had miniscule mahr amounts — 2.5
takas, 500 takas, 600 takas — which had little or no value when their
marriages broke down after years. Even larger mahr amounts in no way
substitute for an equal right to marital property.
No clear maintenance criteria
laws do not have any clear criteria for maintenance that recognise the wife’s
financial and non-financial contributions. Other countries have specific legal
criteria for awarding maintenance. The criteria include : contributions made by
the dependent spouse to realise the other’s career potential; the duration of
the relationship; the impact of household responsibilities on the earning
capacity of the dependent spouse; the effect of childcare responsibilities on
the earning capacity and career development of the dependent spouse; current
and likely future income of the dependent spouse and respondent; the dependent
spouse’s capacity to support him or herself; mental and physical health and age
of the spouses; the dependent spouse’s needs and standard of living; and other
means of support.
Family court judges who heard cases on maintenance told me they felt
women’s contributions should be recognised, but they had no legal mandate to do
so. One judge recalled a case where a wife had spent all her savings to put her
husband through medical school. As soon as the husband graduated and became a
doctor, he divorced his wife. The wife sought maintenance, and her contribution
to her husband’s career was undisputed. Yet, the judge did not take it into
account while awarding maintenance.
Family court delays
Women on the brink of poverty after marital breakdown need to be able to
rely on quick family court proceedings to rule on maintenance or mahr
claims. Instead, family courts often take years to decide and enforce such
cases. A lawyer told me of one case in which a maintenance order took 18 years
to be executed.
Sitara S. was seeking legal assistance to claim maintenance from her
husband after he divorced her, but she told me she had little hope of success.
“After he left me he didn’t give me anything. Not even one piece of cloth,” she
said. “I am begging [for food] all the time. When I told him I’m going to court
he laughed, saying, ‘Go to court. You will get nothing.’ When will I get
anything from court?”
The
government has proposed much-needed amendments to the Code of Civil Procedure
to improve summons procedures, a notorious source of delay. But these
procedural changes should be accompanied by better oversight and infrastructure
support for the summons department staff. These staff members, who say they do
not get travel allowance for serving summons, sometimes take bribes, making the
entire system corrupt and inefficient.
Momentum toward reform
has a strong women’s rights movement that has advocated for law reforms for
decades. The Awami League government has pushed through the groundbreaking law
against domestic violence and has taken a small step towards family law reform.
In 2010,
enacted a landmark piece of legislation — the Domestic Violence (Prevention
and Protection) Act — which gives women a right to reside in the marital home.
In 2012, the law ministry supported the Bangladesh Law Commission research to
recommend family law reforms. The Planning Commission of Bangladesh has
resolved to develop a cohesive social protection strategy, which will hopefully
address poverty among female-headed households.
The government of
and certainly the women of
— cannot afford any more inertia on family law reforms. On September 17, seven
leading women’s and human rights groups made it perfectly clear that they are
not going to stand by and let women like Mehbooba, Namrata and Sitara suffer
under these laws any longer. After a national conference, these groups issued a
powerful statement calling for an overhaul of family court procedures, for fair
and just laws on marriage and divorce, and for other measures to ensure that
the government lives up to its commitments on equality and poverty reduction.
Mehbooba deserves far more than left-over pantha bhath. She and
all women in
deserve basic rights, including equality within marriages and at the time of
dissolution, access to timely justice, and social protection.
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