Far from equality

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How does the law discriminate against women?

It’s Women’s Day, 2020. 

Today is a day when we celebrate how far women have come both globally and in this country, in spite of entrenched patriarchy, gender expectations, sexual assault, discrimination, and glass ceilings.

Bangladesh has taken a number of steps to help women achieve parity with men in all spheres of life by introducing various public policies and legislation over the last 50 years. Bangladesh is signatory to a number of international treaties that commit to upholding fundamental human rights and eliminating discrimination, most pertinently The Convention on the Elimination of all Forms of Discrimination Against Women, CEDAW (although it continues to maintain reservations regarding Article 2, and Article 16 (1)(c) of CEDAW). 

The constitution of Bangladesh states that all citizens are equal before law and are entitled to equal protection of law (Article 27). It further guarantees that the state shall not discriminate against any citizen on grounds of religion, race, caste, or sex, and gives women equal rights with men in all spheres of the state and of public life (Article 28). 

The constitution is the supreme law of the land, meaning that if there is a conflict between a provision of the constitution and any other law, that law will be void to the extent of such inconsistency (Article 7 and Article 26). These lofty principles notwithstanding, there remain a number of existing laws that are inherently discriminatory towards women. 

These laws play a fundamental role in the context of their private lives, defining their less-than-equal place and status in society in comparison to men. They are partly responsible for keeping women entrapped within the confines of legal and economic disadvantage that permeates their personal lives. Given, for example, the fact that Muslim women are perpetually being deprived of an equal share of their inheritance, with daughters receiving only half the share of their male counterparts. 

No matter how many commendable new policies we implement and irrespective of the social and economic strides made by women in Bangladesh, it will be impossible for women to achieve equal human rights with men and true gender equality without essential legal reform in the area of personal laws governing family life and our rights to inherit property. 

Unlike many countries where citizens of diverse faiths enjoy equal rights with respect to the laws governing inheritance, marriage, divorce, and custody of children, Bangladesh has a legal system that provides its citizens with different classes of legal rights with respect to these laws, depending on their assumed religious affiliation. 

This, as one can easily imagine, gives rise to a number of complications since it contravenes Bangladesh’s constitutionally enshrined principle of non-discrimination on the basis of sex or religion and of affording all citizens equal treatment before the law. Below is a brief examination of some limited but fundamental areas in which discrimination against women is most apparent in our existing legal framework. 

Marriage and divorce

Muslim men may legally marry up to four times, although polyandry is forbidden for Muslim women. Some legislative efforts have been made to deter this polygamous practice, namely the requirement for seeking consent from the existing wife/wives and obtaining the written permission of the Arbitration Council prior to contracting such marriage (Section 6, Muslim Family Laws Ordinance (MFLO), 1961). 

Failure to comply with this provision is punishable by a fine or a term of imprisonment of up to one year. Crucially, however, this failure to comply will not render such marriage void, meaning that any such subsequent marriage contracted without one’s existing wife’s consent is still a valid one. Any marriage contracted by a Muslim woman during an already existing marriage will be void. 

A Muslim man has an absolute right of divorce that he may choose to exercise on any grounds. Under Muslim law, a woman has no inherent right to divorce unless such right has been expressly delegated to her by her husband. This is known as Talaq-e-Tafweez. 

In practice, this right must be stipulated in writing in the marriage contract or kabin-nama itself, along with the specific conditions or grounds under which she may seek a divorce. Provided she has been delegated the right to divorce, she may file for divorce using the same legal procedure as provided for a husband (Section 8, MFLO). 

Muslim women who have not been delegated such a right may apply to the court for a decree of dissolution of marriage on specified grounds (Section 2, Dissolution of Muslim Marriages Act, 1939). 

Under Hindu law, as practiced in Bangladesh, marriage is a holy union. As such, it is considered an indissoluble bond that does not allow divorce. However, Hindu men in Bangladesh enjoy unlimited polygamy while Hindu women must practice monogamy. 

The only recourse available to a Hindu woman is to apply to the court for a separate residence and maintenance order, provided her claim is based on specified grounds. 

These include a husband who suffers some “loathsome disease not contracted from her”; if he is guilty of such cruelty as renders it unsafe to live with him; if he marries again etc. 

However, she will forsake any right to a separate residence if she is unchaste, changes her religion, or fails without sufficient cause to comply with a decree of a competent court for the restitution of conjugal rights. 

Under Christian law, as applicable in Bangladesh, any Christian husband may seek a divorce on the ground that his wife has committed adultery. However, mere adultery on the part of the husband does not suffice as a ground for divorce for the wife. She can seek a divorce only on specified grounds, including: Her husband has committed bigamy and changed his Christian religion; incestuous adultery; bigamy with adultery; rape, sodomy or bestiality; desertion upwards of two years, etc (Section 10, Divorce Act). 

It is also possible for either party to apply for a decree of judicial separation on the grounds of adultery, or cruelty or desertion upwards of two years. Furthermore, where the court pronounces a decree of dissolution of marriage or judicial separation for adultery of the wife, it has the power to make settlements of the wife’s property as it sees fit for the benefit of the husband or the children of the marriage. 

Guardianship and custody

In Muslim law, the mother is never the natural guardian of the child’s person or property. The father alone, or if he is dead, his legal executor is the legal guardian. A mother is entitled only to the custody of her minor children until her son reaches the age of seven and her daughter reaches puberty. 

A mother may lose her right to custody of her children if she remarries. 

Similarly, under Hindu Law, the father is the natural guardian of the person and property of his minor children. Furthermore, in Bangladesh, a Hindu father may, by Will, appoint any person as the guardian of his minor children’s person as well as property. 

The person he so appoints will have precedence over all others, including the mother. 

The Guardians and Wards Act, 1890 (GWA) applies to Christians and to citizens of all faiths. It states that in appointing or declaring the guardian of a minor, the court shall be guided by what appears to be in the best interests of the child (Section 17, GWA). 

Though there is no bar to a woman applying for guardianship under the act, in the case of other faiths this is rarely done in practice. It should be noted that the fear of losing custody of her children upon remarriage is a very real fear for Muslim women, despite some progressive case law in this area.

Inheritance 

Bangladesh law dictates that property inheritance amongst Muslims must be in accordance with Muslim Sharia law. Normally, the daughter will inherit half of what a son will inherit, ie the share of a son is double that of a daughter. If there are no sons, the daughter will inherit only half, and no more than 2/3 collectively if there is more than one daughter. 

A widowed wife will inherit one-quarter of her deceased husband’s property if she has no children. If there are children, she will inherit one eighth of his property. If there is more than one wife, they will still only collectively inherit one-eighth of the property. 

Meaning, if there is one wife, her share will be one-eighth. If there are two wives, they each inherit one-sixteenth. If there are three wives then they each inherit one-third of one-eighth and so on. 

A widowed husband with children, on the other hand will inherit a quarter of his wife’s property. If there are no children, his share increases to half of his deceased wife’s property.

Women’s property inheritance rights under Hindu law as practiced in Bangladesh are even more limited. Hindu daughters ordinarily do not inherit a share of their father’s property if there is a son. If there is no son, a daughter’s right to inherit depends upon her having a son or being capable of giving birth to a son. 

This is with the exception of Stridhan, which a woman owns absolutely, and which usually comprises of gifts received from relatives such as the father, mother, brothers etc, before the Hindu nuptial fire or at the time of marriage (and in some cases prior or subsequent to marriage).  

Since the passing of the Hindu Widow’s Right to Property Act, 1937 a Hindu widow is able to enjoy only a lifetime interest in her husband’s property, although she typically has no right to sell, gift, or otherwise dispose of the property, and upon her death it will revert back to her husband’s heirs, instead of her own.

Christian inheritance laws in Bangladesh, as governed by the Succession Act of 1925, offer women substantially better inheritance rights as compared to Muslim and Hindu laws of inheritance. A Christian son and daughter inherit in equal shares. 

Upon the intestate death of a spouse, widowed husbands and wives also inherit equal shares: One-third in the presence of children and half in their absence but in the presence of other kindred/relatives (Section 33 and Section 35, Succession Act, 1925).

There can be no doubt these laws evolved out of the best of intentions on the part of the legislature at the time. However that does not negate the fact that they are inadequate in meeting the requirements of the 21st century. 

The Muslim and Hindu laws still followed in Bangladesh today are of ancient origin; most of the codified personal law legislation dates from the time of the British Raj and has undergone no revision since, despite the immense change in women’s educational, social, and economic empowerment in the meantime. 

What was revolutionary in concept 150 years ago, let alone 1500 years ago, is hidebound today. In India, for instance, a number of legal amendments have been made since the 1950s to more accurately reflect the equitable rights of women under Hindu laws, including making provision for divorce and amending the laws of inheritance so that daughters are now granted equal rights with sons. 

This is a monumental shift in the application of modern Hindu law and shows us what is achievable in terms of legislative reform when there is social and political will to do so. 

We talk a lot these days about how far women have come in Bangladesh; we cite statistics on economic development, visibility in the workplace, political participation etc. While these are vital indicators of growth, it is an ironic fact that those same women are economically disenfranchised and legally disempowered by these laws. 

The truth is, no matter what other indicators you use to point to progress, certain social perceptions and abuses will never change until women are, in fact, legally empowered with true equality under the law as is promised by the constitution. It is a shame that in 2020, almost 40 years after CEDAW, so many provisions of our legislations expressly discriminate against women. 

The law must, in a patriarchal society such as ours, play a fundamental role in re-shaping social perceptions of women’s equal rights and equal status as human beings. 

It is change that must begin with a commitment towards legal reform, so that all citizens, irrespective of sex, caste, religion, or creed are afforded inalienable and equal rights under the law. 

Given the distance women have come in the last 100 years, I would like to believe that it is now only a matter of when, not if, change will come. But it’s 2020. How much longer must we wait?

Adita Afrose Hasan is Barrister-at-Law, Advocate, Supreme Court of Bangladesh.