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.
The Muslim Personal Law (Shari�at) Application Act 1937 continues to govern the application of Muslim family law in Bangladesh. (The pre-independence legislation that replaced this Act in 1962 only applied to West Pakistan.) 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. Thus, estates may validly devolve in proportions favouring women under customary law.
The Child Marriage Restraint Act 1929 has been amended by Ordinance in 1984 so that the minimum ages of marriage are 21 for men and 18 for women. The legislation provides penal sanctions for those who knowingly participate in the contracting of an under-age marriage, but does not invalidate such marriages.
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. The punishment for not registering a marriage is a prison sentence and/or a fine. Failure to register does not invalidate the marriage. 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.
The issues of maintenance and obedience within marriage continue to be governed by classical law for the most part. Much legal development has occurred through case law. In Nelly Zaman v. Giasuddin Khan (34 DLR (1982) 221), the Court ruled that, with the passage of time, the husband�s 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 husband�s unilateral plea for forcible restitution of conjugal rights as against a wife unwilling to live with her husband, there is no mutuality and reciprocity between the respective rights of the husband and the wife, since such plea for restitution of conjugal rights is not available to a wife as against her husband apart from claiming maintenance and alimony. A reference to Article 28(2) of the Constitution of Bangladesh guaranteeing equal rights of women and men in all spheres of the state and public life would clearly indicate that any unilateral plea of a husband for forcible restitution of conjugal rights as against a wife unwilling to live with her husband is violative of the accepted State and Public Principle and Policy" (34 DLR (1982) 221, at p. 222). 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. 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 former wife or the child may not claim past maintenance unless the parties have a previously established agreement. In Muhammad Hefzur Rahman v. Shamsun Nahar Begum (15 BLD (1995) 34) relating to the maintenance of divorc�es, the Court ruled that a Muslim husband�s responsibility to maintain his divorced wife does not cease with the expiry of the �idda. The Court stated that the former husband is bound to provide his divorced wife with maintenance on a reasonable scale for an indefinite period, until her status as a divorc�e changes, that is, if she remarries. The ruling was based on an interpretation of a Qur�anic verse relating to provisions for divorced wives (2:241). The Supreme Court overturned the High Court�s judgement on 3 December 1998, leaving the classical Hanafi interpretation intact for the moment.
The Bangladeshi Muslim Family Laws Ordinance, based on the Pakistani MFLO of 1961, has incorporated some amendments to the original legislation. There are administrative differences in terms of the governmental bodies that apply the provisions of the MFLO at the local level. Applications, appeals and conciliation procedures go to the Union Parishad, Pourashava or Municipal Corporation. 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 wife�s or wives� consent). Legislation introduced in 1974 to encourage and facilitate the registration of marriages has also been used to amend the MFLO and use registration as a method of controlling polygamy. The MFLO also establishes penalties for contracting polygamous marriages in contravention of the law. 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 wife�s consent (as long as the Council has permitted the polygamous 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 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 Qur�anic injunction that a second wife may be taken under specific conditions is virtually a prohibition. The Court also noted that Tunisia has given legislative effect to this interpretation. Thus the Court recommended that section 6 of the MFLO should be repealed and replaced by a section prohibiting polygamy altogether. The Court also directed that a copy of the judgement be sent to the Ministry of Law for consideration. No action is known to have been taken on it.
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. 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. In addition, judicial khul� granted by the courts without the husband�s consent allows for women to obtain divorce by waiving their financial rights. 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 husband�s consent.
Custody continues to be governed by the Guardians and Wards Act 1890 in Bangladesh. The Act stipulates that the courts are to be guided by the personal law to which the minor is subject. 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 minor�s own opinion if s/he is old enough to form an intelligent preference. 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. Under the legislation, if the minor is very young or is a female, the courts are directed to give preference to the mother. In all cases, the interests of the ward are paramount. This has been confirmed by a number of judgements, such as Muhammad Abu Baker Siddique v. S.M.A. Bakar & others (38 DLR (AD) 1986). The Court�s ruling contradicted the classical dictates of Hanafi law according to which the mother�s custody over a boy ends at 7. 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 child�s 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 Qur�an or sunnah to rely upon, and also because the jurists themselves never reached any consensus. 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.
As there are detailed rules for the division of estates according to classical law, there is little legislation in this area. In general, property devolves upon the heirs according to Hanafi or Ja�fari rules of succession. The Muslim Family Laws Ordinance 1961 also introduced obligatory bequests in favour of orphaned grandchildren, allowing them to inherit from their maternal or paternal grandparents in place of their deceased mothers or fathers.
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.
Law/Case Reporting System: Bangladesh Legal Decisions, Dhaka Law Cases, Dhaka Law Reports
0 comments:
Post a Comment