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The issue of a common family code  

Sadia Afrin Kona   | Published: December 30, 2019 21:45:44 | Updated: January 10, 2020 21:21:10


All men have a supreme right to divorce at will, according to Muslim law. Under Talaaq-e-Tafwid, the husband can delegate the right to divorce the wife to the wife under column 18 of Kabin Nama (marriage registration).

If the husband does not delegate, the wife cannot exercise the right. For a wife, divorce is recognised by the Muslim law, which is regulated by the Dissolution of Muslim Marriages Act 1939. However, the procedure is too complicated.

Woman can seek an alternative option to divorce using a lengthy process. They can only do so on specific grounds. One of the grounds that the wife may take for dissolution of marriage is 'cruelty' which may or may not be 'physical'.

The court held in the case of Hosne Ara Begum vs. Rezaul (3 DLR 543) that compelling a wife coming from a well-to-do family to do household chores, which she is not accustomed to do, will be tantamount to 'cruelty'.

When a husband intentionally does not give the notice of divorce to his wife or register it, the wife cannot register it without her husband's consent. The wife cannot marry again and if she marries again, both her new husband and she herself will be charged for adultery as there is no evidence of divorce. Wife has to go to court again for divorce under Dissolution of Muslim Marriage Act 1939.

In a Hindu marriage, the concept of equality is missing and the wife considers her husband a semi-god to be worshipped and taken care of. The right to divorce is not recognised under the Hindu personal law.

A Hindu woman can however apply for separate residence and maintenance from her husband but even in such cases, the rights can be invalidated if the court finds the woman to be 'unchaste'.

Divorce is also discriminatory and complicated for women under Christian personal law, as a man can divorce if he alleges that his wife has committed adultery. A wife, on the other hand, must prove adultery and some other grounds like conversion to another religion, bigamy, rape, sodomy, bestiality, desertion for two years, or cruelty.

There are a number of religions practised in Bangladesh, such as Islam, Hinduism, Christianity and Buddhism. They all have separate personal laws and statutory laws. But there is certain amount of discrimination in case of enjoying some rights.

A series of laws relating to women's rights have largely promoted their position, but as Hindu women, they are deprived of them. Generally, there is no divorce law for Hindu women. However, in other laws, especially those of Muslims and Christians, there are provisions for a wife divorcing her husband. But in Hindu law, a woman can only want for separation which does not have the effect like divorce. Here most of Hindu women follow Shastric Hindu law. Whereas a woman cannot divorce her husband, no matter whatever the situation she faces, husbands can marry many times as they wish. It is cruel for Hindu women and it creates discrimination for them.

The Family Courts Ordinance 1985 was a significant step towards establishing legal rights of women in Bangladesh. Family Courts have exclusive jurisdiction for expeditious settlement and disposal of disputes in only suits relating to dissolution of marriage, restitution of conjugal rights, dower, maintenance, guardianship and custody of children. Soon after the court began functioning there was a controversy about whether the Family Courts would deal only with the family matters of Muslim community or of all communities.

In case of Krishnapada Talukder Vs Geetasree Talukder [14 (1994) BLD 415] the question was whether a woman, Hindu by faith, could file a suit in a Family Court for maintenance against her husband. The honorable judge of the High Court Division held that as per provisions of the present Ordinance, all the sections of the statute have been made available only for the litigants who are Muslim by faith.

Later in case of Nirmal Kanti Das Vs Sreemati Biva Rani [14 (1994) BLD (HCD) 413], the High Court Division expressed the opposite view. Thus, any person professing any faith has a right to bring a suit for settlement and disposal of disputes relating to dissolution of marriage, restitution of conjugal rights, dower, maintenance, guardianship and custody of children. A Hindu wife is entitled to bringing a suit for maintenance against her husband in a Family Court.

Hence in Pochon Rikssi Das Vs Khuku Rani Dasi and others [50 (1998) DLR (HCD) 47] the special bench of the High Court Division upheld that Family Courts Ordinance applies to all citizens irrespective of religion. The issue of jurisdiction of family court for the citizens of Bangladesh irrespective of religious belief was in ambiguity until the decision of this case in 1997.

There was no exclusive exclusion of any community and unless there is any specific exclusion otherwise, the law will have general application, that is, it will apply to citizens of all faiths. So it cannot be said that this is only for the Muslims. Accordingly, there is no confusion regarding the jurisdiction of the Family Courts.

Henceforth, a Family Court can try suits under The Hindu Married Women's Right to Separate Residence and Maintenance Act 1946. By implications, matrimonial issues of Christian marriage, if it coincides with the matters under section 5, will be decided by the family court.

The proposition follows from the section where it is said that after the enactment of Family Court Ordinance any other provisions inconsistent with provision of the Family Court ordinance will not have any effect.

The core argument of this article is that there are anomalies and inconsistencies regarding marriage and divorce-related legal provisions. Any recommendation that may be made in this backdrop can be adoption of a single statute providing provisions for marriage and divorce that apply to all citizens. The Law Commission reviewed a similar proposal jointly placed by the United Nations Educational, Scientific and Cultural Organisation (UNESCO) and Women for Women, non-governmental organisation (NGO). They prepared a report in 2005 titled 'Marriage, inheritance and family laws in Bangladesh: towards a common family code', which attempts to explore possibility of framing a uniform family code for all religious communities of Bangladesh.

However, such a possibility was negated by the Law Commission after conducting a vigorous study. The commission expressed its view that such an effort is ambitious for a country like Bangladesh, where the righteous beliefs of citizens are significantly different from each other. Hence, the issues have still remained unaddressed on the ground of religious sensitivity. Bangladesh has yet to bring equality in the matter of marriage and divorce enshrined in international instruments as well as in the country's Constitution into laws and practices.

 

Sadia Afrin Kona is a National Fellow at BLAST.

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