This includes the application process for contracting polygamous marriages, the application process itself remaining the same (i.e., requiring the reasons for wanting to contract a polygamous marriage and certification attesting to the existing wifes or wives consent). In all cases, the interests of the ward are paramount. 2022-03-30T09:46:54-07:00 Email: This website remains accessible for archival purposes, and for whatever value or resources viewers may find in it. The tradition of dowry and marriage-money has taken a concrete shape after evolving over time in the Bengalee Hindu and Muslim societies. According to scriptures, a husband can remarry if wife is incapable to deliver any child within eight years of marriage. In Jesmin Sultana v. Mohammad Elias (1997 (17) BLD 4), the Court ruled that Section 6 of the MFLO prohibiting the contracting of a polygamous marriage without the prior permission of the Arbitration Council is against the principles of Islamic law. The 1901 census showed that examples of second wives were very rare except for rich Muslims. 1 0 obj [Bilkis Rahman], The wives can demand the money at any time and it is compulsory for the husbands to make the payment. According to the dictums of Hindu scriptures as well as Kautilya, reproduction was the main job of women. The Repression against Women and Children Act of January 2000 recognizes offenses of sexual assault and sexual harassment. It also authorizes a tribunal to decide to keep a woman in protective custody against her will for her safety. Applications, appeals and conciliation procedures go to the Union Parishad, Pourashava or Municipal Corporation. The Zohra Begum v. Latif Ahmed Munawar (1965 (17) DLR (WP) and PLD 1965 (Lah) 695) case, and other rulings deviating from classical law are also cited. The prospect of a Uniform Family Code has been a subject attracting much lobbying by womens groups in Bangladesh, but there is no equivalent to Indias constitutional directive regarding a Uniform Civil Code. Abdullahi A. An-Na'im %PDF-1.7 % The most notable among the programmes is a game of hide and seek involving ring with flower petals floating on water or milk that fills a small pond.

Amended again in 1988 to insert Article 2(a) declaring Islam official state religion, while reiterating that other religions may be practised in peace and harmony. 361 0 obj 360 0 obj The Court also noted that Tunisia has given legislative effect to this interpretation. The practice of examining the horoscopes of brides and grooms is still in vogue in Hindu society. In Nelly Zaman v. Giasuddin Khan (34 DLR (1982) 221), the Court ruled that, with the passage of time, the husbands suing for forcible restitution of conjugal rights against an unwilling wife is both outmoded and untenable if considered with relation to the principle of equality of men and women enshrined in Articles 27 and 31 of the Constitution. In the second half of the 19th century, a new trend of sanctity and ethics developed due to the spread of education and the Brahma movement. For Muslims, the general rule is that the divorced mother is entitled to custody over male children until the age of 7 (classical Hanafi position) and over female children until puberty. During the British rule, the educated and genteel Muslim class started to hold a negative view about polygamy after becoming influenced by the Western outlook. The 'Koulinya' (aristocracy) tradition introduced by Ballal Sena during the12th century gradually digressed from the religious objectives and became a kind of marriage-business. The Supreme Court overturned the High Courts judgement on 3 December 1998, leaving the classical Hanafi interpretation intact for the moment. 1, 2 & 3, Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages accession 1998 with reservations to Arts. <>/ExtGState<>/Font<>/ProcSet[/PDF/Text]/Properties<>>>/Rotate 0/StructParents 26/Type/Page>> Side by side with religious and state laws, the folk culture has also influenced marital life in different ways. The 'Sanatan' (traditional) marriage was not only between two individuals, its importance extended to the families of both husband and wife. The Family Courts may hear suits in camera at the request of both parties, and the court fees are nominal, but lawyers and notaries fees considerably increase the costs associated with going to court. 1 The fixation of Denmohar is dependent on the socio-economic status of brides and grooms. endobj endobj The Muslim Marriages and Divorces (Registration) Act 1974 enacted to strengthen the inducements for civil registration states that every marriage solemnised under Muslim law shall be registered in accordance with the provisions of this Act and establishes the licensing of Nikah Registrars. Ethics and morality were added to this. The system of marriage has been given institutional shape mainly through religions. <>stream The MFLO also establishes penalties for contracting polygamous marriages in contravention of the law. The reservation to the latter states that the provision will apply subject to the existing laws and practices in Bangladesh. A relationship is established between a male and a female based on this contract and their conjugal life starts in this way. Constitution adopted 4 November 1972. Since ancient times, provisions of religious scriptures formed the basis of social law in Bengal; religious laws have governed the society and family. <>/P 29 0 R/S/Link>> <>4]/P 8 0 R/Pg 344 0 R/S/Link>> The practice of marrying off children based on horoscopic credential was also prevalent in Muslim society because of external influence. Devotion towards husband was considered as the ultimate religion of a virtuous wife. Under the legislation, if the minor is very young or is a female, the courts are directed to give preference to the mother. The British-era legislation applied in Pakistan after 1947 and post-partition legislation enacted in Pakistan continued to form the basis of Bangladeshi personal status laws, but legal developments since 1972 have been distinct. According to Muslim law, Denmohar is a special right of wives. Polygamy was in vogue in this country since the ancient times. The Dissolution of Muslim Marriages Act 1939 also remains in force in Bangladesh, with the amendments initiated in Pakistan by the Muslim Family Laws Ordinance 1961; that is, a polygamous marriage by the husband in contravention of the provisions of the MFLO is included as sufficient grounds for the first wife to obtain a decree of dissolution. 204 0 obj Hanafi majority; Hindu and Christian religious minorities. 331 0 obj [357 0 R] In the 'Charyapada', acceptance of dowry by the groom's side has been described. Cook, Philadelphia, 1994; Mahmood, Bangladesh in Statutes of Personal Law in Islamic Countries, 2nd ed., New Delhi, 1995; Monsoor, From Patriarchy to Gender Equity: Family Law and Its Impact on Women in Bangladesh, Unpublished PhD dissertation, SOAS, University of London; Pearl & Menski, Muslim Family Law, 3rd ed., London, 1998; Redden, Bangladesh in Modern Legal Systems Cyclopedia, vol. Court System: The judiciary is organised at two levels, with subordinate courts and a Supreme Court with Appellate and High Court Divisions. endobj According to the Act, Bangladeshis are subject to local custom and usage in matters relating to wills, legacies or adoption, unless a person declares his or her express preference for being governed by Islamic law. All rules and regulations regarding marriage have been scripted in religious stipulations. Amended in 1977 to remove principle of secularism included in Part II entitled Fundamental Principles of State Policy. The affluent class of Muslims used to have more than one wife. Jurisdiction is limited to civil suits, and any criminal offences that arise in the context of civil cases come under the jurisdiction of Criminal or Magistrates Courts. The patriarchal society imposes certain rules in conjugal life, such as: husband is the master and god in this material world, he has to be shown unquestionable devotion by the wife, etc. According to scriptures, the DAShmins could take four wives, the kshatriyas three wives and the vaishyas two wives. 3 0 obj 14 0 obj It attempted to control the tendency of polygamy among men. Monu also prescribed that if the daughter was not married within three years of her attaining puberty, there would be no bar to the girl selecting her own groom. The issues of maintenance and obedience within marriage continue to be governed by classical law for the most part. HW[o~70" = x/i)hvF4)*=! The dowry tradition in marriage is linked to the social system. The amount is usually divided into two parts: cash and receivable. The Court also directed that a copy of the judgement be sent to the Ministry of Law for consideration. The Act stipulates that the courts are to be guided by the personal law to which the minor is subject. endobj The Bangladeshi Muslim Family Laws Ordinance, based on the Pakistani MFLO of 1961, has incorporated some amendments to the original legislation. It mentions the date and time of marriage as well as debts and receivables. The Family Courts are convened in Assistant Judges Courts and have special procedures and reduced formalities. Those same scriptural provisions also strictly prohibited the taking of more than one husband by a woman. <>]/P 331 0 R/S/Link>> Law/Case Reporting System: Bangladesh Legal Decisions, Dhaka Law Cases, Dhaka Law Reports, International Conventions & Reports to Treaty Governing Bodies: Bangladesh acceded to the CEDAW in 1984 with a reservation relating to Article 2 regarding the elimination of discrimination against women and the Article 16(1)(c) regarding equality of rights in marriage and upon its dissolution; Bangladesh does not consider these provisions binding as they conflict with the sharia law based on (the) Holy Quran and Sunnah.. endobj The growth of the middle class led to the process of developing the family equations, marriage system and the relations between men and women.

Constitutional Status of Islam(ic Law): The Constitution was adopted on 4 November 1972. Food prepared by the bride is consumed the next day, which is usually known as the 'Bou-Bhat'. Please bear in mind that Prof. An-Naim is no longer able to continue updating, revising, or changing the content of this site. endobj The amount of dowry (Mohrana) to be given to the bride by the groom has to be mentioned in the Muslim marriage contract (known as 'Kabin-nama'). Polygamous marriages contracted without the permission of the relevant authorities are not rendered invalid, nor is there a penalty for failing to obtain the existing wifes consent (as long as the Council has permitted the polygamous marriage).

uuid:e7cd3b97-b3c3-11b2-0a00-1014d5020000 Bakar & others (38 DLR (AD) 1986). Both the bride and groom have to keep their fast until the formalities of marriage are completed. The 1921 census mentioned the average age of marriage for girls as 12 years and that for boys as 13 years. It is a social tradition. 205 0 obj On the day of marriage, the bride and groom take bath with 'gila' (seed of a leguminous plant), sandalwood, raw turmeric, milk, butter, honey and pond water. The scriptures supported hundreds of marriages by males. However, apart from the 'Kulins', polygamy was not in vogue in the Hindu society. 2 & 16(1)(c) (3rd periodic report 8 Apr. endstream The Family Courts are the courts of first instance for personal status cases of all religious communities, although different religious communities are governed by their own personal status laws. The framer of Hindu law in ancient India Monu stipulated that a 30 year old male should marry a 12 year old girl; a 24 year old male should marry a 8 year old girl; otherwise, religious prescription would be violated. The girl was married not only to a person, but to his family as a whole. Custody continues to be governed by the Guardians and Wards Act 1890 in Bangladesh. Schools of Fiqh: The Hanafi school is the predominant madhhab in Bangladesh. Notable Features: [see also: Notable Features, Republic of India and Notable Features, Islamic Republic of Pakistan]. 221 0 obj The Hindu marriage is a religious, ritualistic and spiritual matter and no written document is needed for this to happen. Abu Baker Siddique v. S.M.A. endobj 1993; 3rd and 4th periodic reports 1 Apr 1997)CRC signature & ratification 1990 with reservations to Arts. Thus the Court recommended that section 6 of the MFLO should be repealed and replaced by a section prohibiting polygamy altogether. The rate of second marriages started to decline after the provision of seeking permission of first wife for second marriage was incorporated in the family law. The Muslim Personal Law (Shariat) Application Act 1937 continues to govern the application of Muslim family law in Bangladesh. <> <>14]/P 24 0 R/Pg 344 0 R/S/Link>> The Bangladeshi legislation relating to family courts is quite similar to the legislation applicable in Pakistan, however, the Pakistani Family Courts have broader jurisdiction extending beyond civil suits. With respect to arrears of maintenance, in Rustom Ali v. Jamila Khatun (43 DLR (1991) 301), the Court ruled (in accordance with classical Hanafi law) that a wife is not entitled to arrears of maintenance. In the Hindu society, it was considered a religious duty to marry off children, especially girls before their attainment of puberty. endobj Sweeping domination of males in conjugal life has been observed in 19th century families. Although the need for marriage in case of both males and females is recognized, it has been considered as the prime attainment and ultimate justification of life since the Vedic ages in accordance with the scriptures; marriage is essential for women, not for men. 1 & 2. 2022-03-30T09:46:54-07:00 They did not sit, bathe or eat, not even talked to wife at father-in-law's house without getting 'Kul-maryada' or some money. According to this law, marriage of girls below the age of 14 years and that of boys below the age of 18 years was a punishable offence. Even if there is no objection on other counts, lack of synchronisation on account of horoscope halts any progress in matrimonial negotiations. Prince 12.5 ( 14(1) & 21. Various programmes also take place on this day as well. Dowry in marriages is an accepted norm in Hindu religion. Due to the emergence of the middle class and the flourishing of the 'Brahma' religion during the 19th century, new values were generated regarding the position of women in society. 17 0 obj According to the religion of Islam, marriage is a legal, social and religious stipulation. Under the terms of the Ordinance, Family Courts have exclusive jurisdiction to try and dispose of suits relating to the dissolution of marriage, the restitution of conjugal rights, dower, maintenance, and guardianship and custody. 18 0 obj In Hasina Ahmed v. Syed Abul Fazal (32 DLR (1980) 294), the Court ruled that a woman may be granted a khul by a judicial decision without the husbands consent. There are similar arrangements for 'Odhibash' for both the bride and groom. There are administrative differences in terms of the governmental bodies that apply the provisions of the MFLO at the local level. 7 0 obj The responsibility of the female was to please all family-members. Among the eight categories of marriage, the 'Brahma-marriage' has been the most acceptable among the Hindus. The amount of money given by husband to wife is called Denmohar. As there are detailed rules for the division of estates according to classical law, there is little legislation in this area. Background and Sources: Hossain, Equality in the Home: Womens Rights and Personal Laws in South Asia, Human Rights of Women: National and International Perspectives, ed. It should also be noted that, although there is no legislation to this effect, there is a customary trend in Bangladesh towards encouraging the insertion of stipulations relating to delegated divorce in the marriage contract. One of the notable features of the movement, which built up in British India during the 19th century, was opposition to child marriage. Bakar & oths (38 DLR (AD) 1986) classical Hanafi rules ending mothers rights over custody of male children at the age of 7 were deviated from in best interests of the child; mothers name must be included with fathers name in childs documents, Succession: governed by classical law although customary law may predominate under certain circumstances; at times customary law favours women; concept of obligatory bequest in favour of orphaned grandchildren introduced by MFLO 1961 allows for heirs through sons and daughters to inherit the shares their fathers/mothers would have been entitled to had they not predeceased the grandparents, ICESCR accession 1998 with declarations regarding Arts. When the Hindu Marriage Act was passed in 1872, the minimum age for marriage of girls was fixed at 14 years while that of boys 18 years. <> There was widespread practice of polygamy among Muslims even during the second half of the 19th century and the beginning of 20th century. 9, Buffalo, NY, 1990; Robinson, ed. No action is known to have been taken on it. This is balanced against the Constitutional protection of minority rights provided for in Article 41 on freedom of religion and the freedom of every religious community or denomination to establish, manage and maintain its religious institutions (subject to law, public order and morality). 341 0 obj Consequently, the system of giving marriage-money seems to be an ancient one. 19 0 obj This has created some inconsistencies within the legal system with Magistrates still hearing maintenance claims under section 488 of the Criminal Procedure Code while Family Courts are supposed to retain exclusive jurisdiction to try and determine maintenance cases. <>220 0 R]/P 8 0 R/S/Link>> The jurisdiction and functions of these courts are governed by the Family Courts Act 1985. Bangladesh signed the CRC in 1990 and ratified the same year, with reservations to Articles 14(1) on childrens freedom of religion and 21 relating to adoption. A post-independence amendment to the provision relates to the exercise of the option of puberty, entitling a girl contracted into marriage by her father or other guardian before the age of 18 to repudiate the marriage (provided it has not been consummated) before attaining the age of 19. These were: Brahma, Daiba, Aryan, Projapatya, Asur, Rakshash, Poishach and Gandharva; among these, the 'Brahma-marriage' was the most accepted one. Maintenance will only be allowed her from the date the suit is brought before the Family Court until three months from the decree of dissolution of marriage. The jurisdiction of the Family Courts is restricted so that if any criminal offence arises in the context of a civil case, it comes under the jurisdiction of Criminal or Magistrates Courts. The Family Courts Ordinance 1985 governs the application of the personal laws of all Bangladeshis through the state judiciary by the creation of Family Courts. It was not sufficient for a girl to satisfy the husband alone; she had to satisfy everybody in the family. This has been confirmed by a number of judgements, such as Muhammad Abu Baker Siddique v. S.M.A. Emory University A picture of what the relationship was between husband and wife in Bengalee families at the beginning of 19th century can be obtained from an article (1819) titled 'Sahamaran Bishaye Probartak O Nibartaker Ditiya Sambadey' written by raja rammohun roy (1774-1833). Marriage an oldest institution of human society, which has assumed today's shape from its original ancient form over the ages. If the wife delivers only female offspring within ten years and only dead male offspring within twelve years, the husband can remarry for getting a son. This tradition took the shape of a terrible social malady towards the end of 18th century and the beginning of 19th century. 223 0 obj endobj <> The Family Courts have jurisdiction over personal status cases of all communities, though religious minorities are governed by their own personal laws. endobj <>2]/P 8 0 R/Pg 344 0 R/S/Link>> The Kings could marry as many as they liked in accordance with religious prescriptions. Islamic family law is applied through the regular court system. A principal reason for lack of peace in the conjugal lives of women since ancient times has been the existence of other wives in the same household. Hefzur Rahman v. Shamsun Nahar Begum (15 BLD (1995) 34) divorcing husbands responsibility to maintain his divorced wife considered to continue beyond expiry of idda period, husband bound to provide maintenance on a reasonable scale for an indefinite period (judgement was quashed and classical law reaffirmed upon appeal in 1998), Child Custody: general rules is that divorce is entitled to custody until age of 7 for males (classical Hanafi position) and puberty for females, subject to classical conditions, though there is some flexibility as wards best interests are considered paramount under terms of Guardians and Wards Act 1890; in Md. As elsewhere in South Asia, much of the Muslim personal law is unlegislated, the basis for the law being classical Hanafi fiqh except where this has been amended by legislation. According to Bhabadeva, the blood relatives of the bride from the father's side carry out the initial tasks of marriage. The Court stated that Muslim jurists and scholars are nearly unanimous in the view that it is practically impossible to deal with co-wives justly, and so the Quranic injunction that a second wife may be taken under specific conditions is virtually a prohibition. During the 19th century, the 'Kulin' merchants expected one-time marriage-money and additional money on various occasions later on. In the book Daybhag, Jeemutbahan mentioned that Brahma, Daiba, Aryan, Projapatya and Gandharva marriages were flawless. The in-laws and other relatives tried their best to please him when the 'Kulin' son-in-law came to visit them after a long time. It is observed in most cases that 'Konyadan' or the hand-over of the bride takes place after midnight. There was another programme called 'Punar-vivaha in Hindu society when child marriage was in existence. Representatives from both sides finalise the marriage in the presence of a priest with new mat, writing-copy and pen. The Court stated that [i]ndeed, the principle of Islamic Law (in the instant case, the rule of hizanat or guardianship of a minor child as stated in the Hanafi school) has to be regarded, but deviation therefrom would seem permissible as the paramount consideration should be the childs welfare. The Court also pointed out that the rationale for the departure from classical positions is justified as there is no clear and distinct statement of the Quran or sunnah to rely upon, and also because the jurists themselves never reached any consensus. 199 0 obj d_ $"uxP/fh, In Search of Equality: Marriage Related Laws for Muslim Women in Bangladesh. The remaining part is paid later on or when the wife is separated from husband after divorce. Proof of this is obtained from the explanations of Jimootbahan as well as the stone inscriptions. Monu also held the same view: 'Women have been created for reproduction'. <> [see also: Legal History, Republic of India and Legal History, Islamic Republic of Pakistan] Bangladesh seceded from Pakistan in December of 1971. endobj The Mangalik rituals described in the Rig-Veda and Atharva-Veda are still followed. He wrote: 'The wife is recognised as the better half during marriage, but she is treated as something worse than an animal; almost all wives undertake servitude in their husbands' houses, that is, they do all work including cleaning the house early at dawn in all seasons, washing the plates, repairing the floors etc; and she does the job of a cook day and night without any salary, that is, she has to cook and serve food for husband, father-in-law, mother-in-law, brothers and friends of husband routinely at all times; if there is any lapse in cooking or serving, then she is reprimanded by the husband, mother-in-law, brother-in-laws etc; the wives tolerate this as well out of fear of religion; and after everybody finishes eating, whatever little is left, whether the curry is fit for consumption or not, she eats those with contentment and passes her days like this; she collects water from the pond or river in the afternoon, prepares bed for all, which is the job of a servant, does even that, 'but he engages in adultery, in full knowledge of the wife and in her full view and does not talk with her in a single day of the month.'. The courts are also directed to consider the age, gender and religion of the minor and the character and capacity of the proposed guardian, as well as considering the minors own opinion if s/he is old enough to form an intelligent preference. application/pdf The date of marriage is followed by the 'Basi-vivaha'. Awareness against child marriage was created since the middle of the 19th century. 8 0 obj The principal exponent of Hindu religious scripture Monu had stipulated the provision of one husband for women and asked them to maintain their devotion when the husbands had immoral character. An amendment to the Constitution under President Ziaur Rahman in 1977 removed the principle of secularism that had been enshrined in Part II: Fundamental State Policy, replacing it with absolute trust and faith in Almighty Allah. The Eighth Amendment of 1988 inserted Article 2A, affirming that [t]he state religion of the Republic is Islam, but other religions may be practised in peace and harmony in the republic. Some womens groups challenged this move on the grounds that it risked exposing women to discriminatory laws. <>

(The pre-independence legislation that replaced this Act in 1962 only applied to West Pakistan.) )2^,4s9mrSz[uuOvW7~s <>/Metadata 2 0 R/OCProperties<>/OCGs[5 0 R 6 0 R]>>/Outlines 7 0 R/Pages 3 0 R/StructTreeRoot 8 0 R/Type/Catalog/ViewerPreferences<>>> At present, polygamy is very rare among the higher classes of society and can be observed only among lower classes. Child marriage was prevalent among the Hindu families of Bengal since the ancient era. The formalities of marriage continue for a few days in Hindu families. In addition, judicial khul granted by the courts without the husbands consent allows for women to obtain divorce by waiving their financial rights.