Dhaka International University

Department of Human Rights Law

Semester – 4th

Research Monograph

Topic: Family law of Bangladesh: Consequences

Submitted to

Asso. Prof. Dr. Md. Akhtaruzzaman

Course Coordinator

Master of Human Rights Law

Submitted by

Jhuma Halder

Student ID NO: 04

Registration No: 250284

Session: 2011-2012

Batch: 11th

Semester: 4th

Date: 13.07.2012

Table of Index

TABLE OF INDEX.................................................................................................2

CHAPTER – 1.......................................................................................................4

Introduction....................................................................................................................................................4

Purpose of the study:......................................................................................................................................5

Objectives........................................................................................................................................................5

Thematic enquiry............................................................................................................................................5

Methodology....................................................................................................................................................5

Limitations......................................................................................................................................................6

CHAPTER - 2........................................................................................................7

Understanding masculinity in family law and judicial activism:...............................................................7

Restitution of Conjugal Rights....................................................................................................................12

Polygamy.......................................................................................................................................................16

Khula Divorce...............................................................................................................................................18

The Court held:.............................................................................................................................................18

Fatwa Relating to Talaq:.............................................................................................................................20

Maintenance of Wives..................................................................................................................................22

Custody of Children.....................................................................................................................................24

Protection of Pardanashin Women.............................................................................................................28

Existing family court and problems:..........................................................................................................29

CHAPTER - 3......................................................................................................32

Recommendations.........................................................................................................................................32

CHAPTER – 4.....................................................................................................33

Bibliography:................................................................................................................................................33A. Acts:......................................................................................................................................................33B. Articles / Journals:..............................................................................................................................33C. Judicial Decisions:...............................................................................................................................34

2

D. Web link:.........................................................................................................................................35

3

Chapter – 1

Introduction

Establishment of Family Courts was on the one hand an expression of our sophisticated

legal thought, on the other hand, an acknowledgement that our traditional civil courts had

failed to successfully deal with the suits relating to family affairs. Family Courts were

established by the Family Courts Ordinance 19851 to serve the purpose of quick, effective

and amicable disposal of some of the family matters. This purpose, though not

perceptible from the preamble of the Ordinance, is evident in different places of the body

of the Ordinance. The anxiety of the framers of the Ordinance for the said speedy

disposal of the family cases is palpable in fixing only thirty days for the appearance of the

defendant2, in providing that if, after service of summons, neither party appears when the

suit is called on for hearing the court may dismiss the suit3. The purpose is again manifest

in providing a procedure for trial of cases in camera if required for maintaining secrecy,

confidentiality and for effective disposal of some complicated and sophisticated matters

which may not be possible under normal law of the land. Once more, the Code of Civil

Procedure 1908 except sections 10 and 11 and the Evidence Act 1872 have not been

made applicable in the proceedings under the Family Courts which is another sign that

indicates the concern of the lawmakers to dispose of the family matters in congenial

atmosphere of the Family Court, which was proven to be absent in the lengthy procedure

of civil courts.

Unfortunately the noble aim of introducing Family Courts has not been expectantly

achieved though already more than two decades have passed after the courts’ coming into

operation. There are many and diverse type of reasons behind such let down. Given the

socio-economic grounds, the procedural as well as substantive loopholes in the ordinance

and related laws are not negligible. Responding to these loopholes a drastic amendment

was made to the Ordinance in 19894. Yet, the law is not flawless, resulting in giving rise

to some confusions and uncertainties. Besides, there are some misconceptions.

1 XVII of 1985. The ordinance was made by the President of the Peoples Republic of Bangladesh on 28.3.1985 and was published in the Bangladesh Gazette, Extra on 30.3.19852section 7(a)3 Section 9(1) 4 Though there are contradictory opinions on this; see below note 36

4

Purpose of the study:

The purpose of the study is to identify and focus on the ongoing problems in family court

settling the dispute.

Objectives

To obtain recognition legal consequence issues of family maters

Peaceful exercise the rights as personal lives.

Thematic enquiry

We should concern about the traditional practices, domestic violence in woman through

challenges to traditional attitude towards women.

Therefore, the major thematic inquiries are in bellow:

Social issues Negative Image (Violence)

Family lineage, Marriage and divorce, widowhood, Decision

making rights, Social perception, customs, rituals, religious

belief, education, privileged bodies, Issue of hegemony and

masculinity, religious endorsement, rigorous tradition, security

problems

Perception, domestic and no-

domestic violence, persecution,

torture, legislative enactment

Methodology

The work “Family law of Bangladesh: Consequences” the observational and analytical

methodology and only secondary sources have been used.

Limitations

5

The main challenges of this research are patriarchal social structures and religious barrier

enter into the judicial activism that make survival inequalities among the justice seekers.

6

Chapter - 2

Understanding masculinity in family law and judicial activism:

Hegemony, a pivotal concept in Gramsci's Prison Notebooks and his most significant

contribution to Marxist thinking, is about the winning and holding of power and the

formation (and destruction) of social groups in that process. In this sense, it is importantly

about the ways in which the ruling class establishes and maintains its domination. The

ability to impose a definition of the situation, to set the terms in which events are

understood and issues discussed, to formulate ideals and define morality is an essential

part of this process. Hegemony involves persuasion of the greater part of the population,

particularly through the media, and the organization of social institutions in ways that

appear "natural," "ordinary’ normal." The state, through punishment for non-conformity,

is crucially involved in this negotiation and enforcement (Connel. R. P. 107)5.

The vast majority of the approximately 163 million people of Bangladesh are Muslims.

There are, however, exist several other religious communities which demographically

constitute a large and substantial portion of the populace. Hindus are the most important

and significant minority community in Bangladesh. They constitute largest group in

Bangladesh and numerically Bangladesh can boast of the third largest Hindu population

in the world (Huda, Shahanaz, P – 10). In 2011 the much debated Women’s policy

announced by the Government reiterated the State’s desire to ensure gender equality.

Although opposed vehemently and somewhat unnecessary by fundamentalist Muslim

Groups, the policy has implications of the rights of the Hindu women. 6

There is much confusion arises on the subject of interfaith and inter religious marriage in

Christian community in Bangladesh. The reality of multicultural and multi religious

social co-existence means that ways to deal with this reality must be found, rather than

denying the fact that is the reality. Priests, Pastors and Ministers raised genuine questions

as to how deal with the various dimensions of marriage. For example, where one party to

5 R. Connell. Gender and Power: Society, the Person and Sexual Politics (Sydney: Allen and Un-win. 1987), 107; Carrigan. Connell and Lee, 95.

6 Combating gender injustice Hindu Law in Bangladesh, Dr. Shanaz Huda, The south Asian Institute of Advanced Legal and Human Rights Studies - 2011

7

the marriage is minor according to civil law (less than 18 for women and less than 21 for

men), but was of the marriageable age as to religious or canonical law, what would be the

status of the parties, and would the officiating Priest or Pastor be held liable for violating

a statutory law? There are also gray areas in matters of mixed marriage or marriages out

of cult (Pereira, Faustina, P – 11). The questions of inheritance and division of property

appeared to drive many of the concerns surrounding mixed marriages. In general all

participants felt very blatant colonial racial bias in the language of law7.

Everybody will recognize that Family laws, specially marriage and post marriage

problems say Talaq, Hizanat, Dower, etc. are very important aspects of social life which

require peaceful and lawful solution. The inclusion of the Family Courts Ordinance and

the rules thereof, the Muslim Marriage and Divorces (Registration) Act, the Dowry

Prohibition Act and the Cruelty to Women (Deterrent Punishment) Ordinance serve the

purpose of the laws significantly. The purpose of framing such laws is among other

things, to have quick disposal of the Family Court cases8.

Section 5 of the Jurisdiction of Family Courts says that subject to the provisions of the

Muslim Family Laws Ordinance – 1961, a Family Court shall have exclusive jurisdiction

of entertain, try and dispose of any suit relating to or arising out of all or any of the

following matters, namely:

dissolution of marriage

restitution of conjugal rights

dower

maintenance

guardianship and custody of children.

There is different form of dissolution of marriage. The contact of marriage under the

Muslim law may be dissolved in anyone of the following ways:

by the husband at his will, without intervention of the court,

7 Civil laws governing Christians in Bangladesh – A proposal for reform, Faustina Pereira, the South Asian Institute of Advanced Legal and Human Rights Studies, 2011 8 The handbook of Muslim Family Laws, sixth edition, 2005, Dhaka Law Reports,

8

by the mutual consent of the husband and wife, without intervention of a court

by a judicial decree at the suit of the husband or wife.

The wife can not divorce herself from her husband without his consent, expect under a

contract whether made before or after marriage, but she may, in some cases, obtain a

divorce by judicial decree. According to Muslim Family Law when the divorce proceeds

from the husband, it is called talak, when it is affected by mutual consent; it is called

khula or mubara’at according to the terms of the contact between the parties9.

Family court works mainly based on the Muslim Family Laws Ordinance (VIII of 1961),

Muslim Family Laws Rules, 1961, Muslim Marriages and Divorced (Registration) Act

(LII of 1974), Muslim Marriage and Divorces (Registration) Rules, 1975, Dissolution of

Muslim Marriage Act (viii of 1939), Muslim Personal Law (Shariat) Application Act

(XXVI of 1937), the Guardians and Wards Act of 1890. Here is the link with religious

masculinity. In general sense masculinity refers body embodiment, but in respect of

family court the general masculinity refers sense of communalism, referring Muslim

Family Laws. When the occurrence happens within other religious family except Muslim,

Hindus, Buddhists and Christians claim justice to family court through the permission of

the district court under civil procedural law or personal law. It is a great tragedy that time

consumption of religious minority needs double than the Muslim.

In the light of the above discourse on judicial activism, we may now deal with the main

theme of this paper. The classical Shari‘a law on family relations is based on patriarchal

family organization and male privileges, leading to legal and social discrimination against

women and reducing them to an inferior status which is incompatible with present-day

notions of gender equality and social justice. The discrimination against Muslim women

is especially pronounced in such vital matters as marriage, divorce, maintenance and

inheritance and yet, these are the institutions which form the bedrock of security and

stability in family life. So, judicial activism in Muslim family law would, in effect,

denote a conscious effort on the part of the courts to remove the discriminations and

9 ibid

9

disabilities by means of a liberal and creative interpretation of law and secure to women

equality of rights and social justice in keeping with the spirit and goals of the

Constitution. Making out a strong case for reform and regeneration of Muslim family law

through judicial creativity, Aftab Hussain, J., a renowned activist and reformist judge of

Pakistan, contends that static and immutable concepts, doctrines and laws cannot keep

pace with the dynamism of social orders. Change is the law of nature. Changes in values

and transformation of social orders demand reevaluation, reinterpretation and reform of

the rules, regulations and laws governing the legal, political, social and economic

institutions. This is evident from the problems arising, for example, out of the rapid

transformation of family life. These modern problems demand modern solutions which

must be in keeping with the spirit of the time (Hossain, Aftab, P – 81)10. Similarly,

referring to the necessity for removal of gender inequality and discrimination against

women and advocating an activist judicial stance in this regard, Mohammad Fazlul

Karim, J., of the Appellate Division of the Bangladesh Supreme Court observes: “There

are discriminations against women in the society. We will have to come out of this

situation by changing our attitudes. The judges dealing with the cases regarding women

will have to think how to give relief to the victims.”11 Referring to the unbridled, arbitrary

and unilateral power of Muslim husbands to divorce their wives and lamenting the

miserable lot of the wives, in Mohammed Haneefa v. Pathummal Beevi, 1972 KLT 512

at 514, V. Khalid, J., of Kerala High Court asks: “Should Muslim wives suffer this

tyranny for all times? Should their personal law remain so cruel towards these

unfortunate wives? Can it not be amended suitably to alleviate their sufferings? My

judicial conscience is disturbed at this monstrosity. The question is whether the

conscience of the leaders of public opinion of the community will also be disturbed.”

Sabhiuddin, J., takes up the same issue and raises the question, what should be the role of

the Pakistan courts when they are face to face with centuries of injustice and

discrimination against women? He maintains that if the courts decide to be helpless on-

lookers of social inequality and wait for the legislature to enact measures for the benefit

of women, that will not be in consonance with the Constitution of Pakistan which

contains not only provisions of fundamental rights but also Principles of Policy. He 10 Hossain, Aftab – Status of Women in Islam (Lahor – 1987), page – 8111 The Daily Star, 3rd November 2008, Page – 3

10

observes: “When the directive principles commit to participation of women in all spheres

of national life the question of sex discrimination has to be viewed from that angle and

not from the stand point of my individual notions as to the role of women. In purely

political issues the courts have already charted for themselves a broad role, they should

do the same in relation to enforcement of fundamental rights.”12 The observations of

judges quoted here show that if gender discrimination in Muslim family law is to be

removed and genuine equality of rights between the sexes achieved, the courts must take

a pro-active role in deciding questions involving women’s rights.

As we dwell on activist interpretation of Muslim family law, we must take notice of the

fact that there are three distinct approaches to the place of Muslim family law in the

present-day Muslim societies. The traditionalists13, consisting predominantly of the

ulama, advocate strict adherence to the rules of Shari‘a law as prescribed by the classical

jurists. The secularists, numerically rather insignificant and mainly consisting of a small

number of feminists and left-leaning intellectuals, demand that religion-based personal

laws should be abandoned and a uniform civil code of Western secular inspiration,

applicable to all citizens, irrespective of religion, be adopted. The modernists, generally

the upper and middle classes, bureaucrats and professional people advocate a creative

reinterpretation of the Qur’an and Sunnah to bring about social reforms and address the

needs of the modern Muslim society. As the classical Shari‘a law on family relations is

heavily weighted in favour of men and against women, the modernists insist on doing

away with the disabilities and discriminations suffered by women and establishing

equality of rights between the sexes. Needless to say, the traditionalists vehemently resist

the modernist efforts. A modernist Muslim believes that he can be both a believing and

progressive Muslim. The activist role of the courts regarding interpretation of Muslim

family law is close to modernist stance. The judges make conscious efforts to justify their

decisions in the light of the ethos and sources of Islamic law including the Qur’an and

Sunnah. Muslim personal law is a vast field of study; an enquiry into all its areas would

have invited lop-sided treatment and superficiality. Therefore, of necessity, this enquiry

12 see Farida Shaheed, Dohel Akbar Warraich, Cassendra Balchin and Aisha Gazdat (eds.) shaping women’s Lives: Laws, Practices and Strategies in Pakistan (Lahore – 1998) 13 John L. Esposite the Islamic Treats Myth or Reality? (2nd ed, New York, Oxford – 1995) page 7-8

11

has been confined to select areas – i.e., restitution of conjugal rights, polygamy, khula

divorce, fatwa relating to talaq, maintenance of wives, custody of children and protection

of pardanashin women – which have direct bearing on the social status of women and

where judicial creativity has been pronounced.

Restitution of Conjugal Rights

One branch of Muslim personal law, which appears frequently in the pages of the law

reports of Bangladesh, is the issue of restitution of conjugal rights. As in India, there are

also differences of views among Bangladesh judges concerning the constitutional validity

and legal propriety of this law. According to some, it is a reciprocal right; it is neither

discriminatory nor repugnant to the fundamental rights guaranteed by the Constitution. It

helps to protect family values, preserve the sanctity of marriage as an institution and

prevent its break-up. According to others, it is inhuman and repressive, an engine of

harassment of wives and a relic of a by-gone age. More importantly, it is inconsistent

with the provisions relating to fundamental rights of citizens enshrined in the

Constitution; and it should be done away with. A Muslim marriage is a civil contract and,

in principle, a suit for restitution of conjugal rights is nothing more than an enforcement

of the right to consortium under the contract. The court issues an order compelling the

recalcitrant spouse to return to cohabitation with the complainant. But an analysis of

case-law on the subject in Bangladesh shows that in most cases it is the husband who

seeks the remedy against his wife and he does it not out of a genuine desire for restitution

of his conjugal rights and reconciliation but to defeat the claim of the neglected, deserted

or aggrieved wife to maintenance against him.

In Hosne Ara Begum v. Rezaul Karim, 43 DLR (1991) 543, being compelled by her

husband’s conduct to leave the matrimonial home with her children, the wife filed a

petition in the Family Court claiming her prompt dower and maintenance for herself and

the three children. As a counterblast, the husband brought a suit against her for restitution

of conjugal rights. The Family Court found that the husband did not allow his wife to

visit her parent’s house, compelled her to do domestic work, which women of both the

families were not used to, subjected her to physical and mental torture and did not make

12

any attempt to bring her back. The Family Court granted maintenance to her and the

children allowed her claim for payment of prompt dower and dismissed the husband’s

suit for restitution of conjugal rights. The lower appellate court disagreed with the

findings and decision of the Family Court and sent the case back to it for retrial. On

appeal, Kazi Ebadul Hoque, J. giving the judgment of the Division Bench of the High

Court, severely criticized the lower appellate court for its archaic ideas on cruelty and

restitution of conjugal rights:

The court of appeal below, it appears, was guided by the archaic concept of absolute

dominion of the husband over the wife and children when the wife and children were

treated as chattels under the Roman law and could be sold by the husband to pay his debt

to the creditor and they even could be killed by him. Such absolute right of the husband is

known as patria protest as under the Roman law…. But the learned court of appeal below

forgot that even under Muslim law several rights have been recognized to the wife and

she can refuse to subject to the conjugal dominion of the husband if he treats her with

cruelty when it is of such a character as to render it unsafe for the wife to return to her

husband and her prompt dower is not paid on demand14.

The Division Bench held that, in the context of the social realities and norms and the

mode of living of the families of the husband and the wife, who were wealthy

businessmen, compelling the wife to do domestic work constituted cruelty under Section

2 (viii) (a) of the Dissolution of Muslim Marriages Act, 1939, which defines cruelty as

physical assault or making the life of the wife miserable by cruelty of conduct even if

such conduct does not amount to physical ill-treatment. Physical and mental torture by

the husband is not only an offence under Cruelty to Women (Deterrent Punishment)

Ordinance, 1983, punishable with imprisonment and fine, but also a valid ground for

refusing restitution of conjugal rights to the husband and for allowing maintenance to the

wife. This extension of the meaning of cruelty, under Section 2 (viii) (a) of the

Dissolution of Muslim Marriages Act, 1939, to include compelling the wife to do

domestic work in well-to-do families and its application as a defense against a suit for

14 14 (1994) BLD (HCD) at p. 469

13

restitution of conjugal rights has not escaped the notice of a keen researcher who aptly

remarks: “Such an expansive use of the concept of torture to negate the husband’s claim

for restitution of conjugal rights and ordering him to pay maintenance is another

indication of the gradual secularization of the understanding of the terms of marital

relationships by the courts in recent years.”15

The remedy of restitution of conjugal rights is available to both the spouses. But most

textbooks on Muslim law treat it as if the remedy is available to the husband alone and

not to the wife16. Contrary to the tradition of the husband suing for restitution of conjugal

rights, in Chan Mia v. Rupnahar, 51 DLR (1999) 292, the wife filed a suit against the

husband for (i) restitution of conjugal rights, (ii) realization of dower and (iii)

maintenance. As Fyzee states: “A fundamental principle of matrimonial law is that one

spouse is entitled to the society and comfort of the other. Thus where a wife, without

lawful cause, refuses to live with her husband, the husband is entitled to sue for

restitution of conjugal right; and similarly the wife has the right to demand the fulfillment

by the husband of his marital duties.”17 From this the Court concluded that restitution of

conjugal rights is a reciprocal right and it is neither discriminatory nor violative of any

constitutional provision. The right, however, is not an absolute right. It is not desirable to

pass a decree where the marriage has, in fact, broken down or it will be inequitable,

impractical or impossible to implement it. But, in Nelly Zaman v. Ghiasuddin Khan, 34

DLR (1982) 221, Husain, J., had found the right to restitution of conjugal rights

unacceptable for three reasons. First, by lapse of time and social development the very

concept of forcible restitution of conjugal rights against a wife unwilling to live with her

husband has become outmoded. Secondly, there is no mutuality and reciprocity between

rights of the husband and the wife, since it “is not available to a wife as against her

husband apart from claiming maintenance and alimony.” Thirdly, it violates the

fundamental rights recognised under Articles 27 (equality of all citizens before law), 28

(2) (equal rights of men and women in all spheres of the state and of public life) and 31

(right to enjoy the protection of the law and to be treated in accordance with law, only in

15 50 (1998) DLR (HCD) 4716 Ibid., at p. 5317 Ibid., at p. 52

14

accordance with law). Pearl and Menski consider – and quite rightly – the judgment to be

an enlightened statement of modern marriage law with special reference to restitution of

conjugal rights, “reflecting a modern, secular understanding of marital relationships

without explicit reference to Muslim law.”18 It is claimed by another scholar that the

decision refutes the stereotyped conceptions of the wife as property of the husband and

looks upon women as human beings having their own rights in marital relations19. When

the matter finally came up before the Appellate Division of the Supreme Court for

decision in Hosna Jahan v. Md. Shahjahan, 4 BLC (AD) (1999) 117, the Full Bench

refrained from giving any opinion on the constitutional validity of the law of restitution

of conjugal rights. They preferred to base their decision on Section 5B of the Family

Courts Ordinance, 1985 which specifically mentions restitution of conjugal rights as a

subject matter for trial and disposal by a Family Court. They held that the conscious

policy of the legislature would prevail over the decided cases. The result of the decision

is that like India, though not for the same reasons, restitution of conjugal rights is a valid

law.

Here it may be relevant to note the interesting developments in India regarding restitution

of conjugal rights under Section 9 of Hindu Marriage Act, 1955. In 1983 the Andhra

Pradesh High Court held in the case of T. Sareetha v. Venkata Subbaiah, AIR 1983 A.

P. 356, that Section 9 of the Act was a savage and barbarous remedy violating the right to

privacy and human dignity guaranteed by Article 21 of the Constitution and hence

constitutionally void. The following year the Delhi High Court in Smt. Harvinder Kaur

v. Harmander Singh Choudhry, AIR 1984 Del. 66, dissented from the Andhra decision

and held that Section 9 of the said Act is not violative of Articles 14 and 21 of the

Constitution. The Court noted that the object of the restitution decree is to bring about co-

habitation between the estranged parties so that they can live together in the matrimonial

home in amity. The leading idea of Section 9 is to preserve the marriage. In Smt. Saroj

Rani v. Sudarshan Kumar Chadha, AIR 1984 SC 1562, the Supreme Court of India

overruled the Andhra decision and accepted the Delhi view. It held that Section 9 of the

Act could not be said to be violative of Articles 14 or 21 of the Constitution if the 18 Ibid., at p. 5319

15

purpose of the decree for restitution of conjugal rights is understood in proper

perspective. In India conjugal right, i.e., right of the husband or the wife to the society of

the other spouse, is not merely creature of the statute. Such a right is inherent in the very

institution of marriage itself. It serves a social purpose as an aid to the prevention of

break-up of marriage.

Polygamy

The Muslim law of polygamy in Bangladesh is regulated by Section 6 of the Muslim

Family Laws Ordinance, 1961, which provides: “No man, during the subsistence of an

existing marriage, shall except with the previous permission in writing of the Arbitration

Council, contract another marriage, nor shall any such marriage contracted without such

permission be registered under the Muslim Marriages and Divorces (Registration) Act,

1974.” The husband’s application for such permission must state the reasons for the

proposed marriage and whether the consent of the existing wife or wives to this marriage

has been obtained. If the Arbitration Council is satisfied that the proposed marriage is

necessary and just, it may grant the permission requested for. The law is essentially a

compromise between traditionalist and modernist views. It does not prohibit polygamous

marriages; it merely imposes some procedural restrictions on its unbridled exercise and

punishment of the polygamous husband with imprisonment or fine for violation of the

restrictions. A Division Bench of the High Court Division of the Supreme Court has

challenged the very concept of polygamy in a sweeping and bold judgment in the case of

Jesmin Sultana v. Mohammad Elias, 17 BLD (1997) 4. Though the suit concerned a

wife’s claim for dower and maintenance and polygamy was not an issue, the Court

examined the question whether Islam truly approved polygamy, and section 6 of the

Ordinance was valid. The Court was of the opinion that “to be able to deal justly”

between more than one wife, as ordained in the Polygamy Verse20 of the Qur’an: IV; 3, is

a condition precedent to marry more than one wife. According to some commentators,

the Court held, this expression implies equality in love and affection between the wives

and as such equality is impossible, the Verse virtually prohibits polygamous marriages.

According to others, the expression only means equality in maintenance and lodging.

20 Supra note 24, at p. 49-50

16

Having regard to the hadith narrated in the Sahih Al-Bukhari, that the Prophet did not

allow his son-in-law Ali to take a second wife because it would hurt his daughter Fatima

– which the Court interprets as meaning that Ali “shall not be able to deal justly” with

two women – the latter view cannot be accepted. Secondly, after the revelation of

Verse21 XXXIII: 52 in the seventh year of the Hijra, the Prophet did not marry again.

Thirdly, polygamy is prohibited in Tunisia under its Law of Personal Status, 1957 on the

ground that “to be able to deal justly” is a legally enforceable injunction and that, under

modern social and economic milieu, this condition is not capable of fulfillment.

Therefore, the Court held, Section 6 of the Muslim Family Laws Ordinance, which

instead of prohibiting polygamy allows it subject to the previous permission of an

Arbitration Council, “is against the principle of Islamic law”, and legislation should be

enacted prohibiting polygamy altogether. The Court referred the judgment to the Ministry

of Law for taking necessary action. This is, of course, judicial activism in its most

aggressive form.

The observations of the Full Bench of the Appellate Division of the Supreme Court is an

anti-climax of an otherwise promising court decision of far-reaching social consequences.

The Full Bench observed that polygamy was neither an issue in the suit nor required to be

decided in the context of the pleadings of the parties and, therefore, the observations and

recommendations of the High Court Division should be taken as deleted.22 Irrespective of

the observations of the Appellate Division, the fact remains that the judgment of the High

Court is not well-researched, well-documented and well-thought out. Compare this

judgment with that delivered by Dhawan, J., of the Allahabad High Court in Itwari v.

Asghari, AIR 1960 All. 684, and its weakness will be obvious. Incidentally, while the

feminist lobby welcomed the decision with jubilation, the reaction of the traditionalists

was circumspect23.

Khula Divorce 21 Ibid., at p. 5022 Act No. XIX of 1946.23 So far, the aggrieved party under this Act had to take recourse to time consuming civil court. It is decided the Pochon Rikssi case that Family Courts Ordinance has provided a forum for speedy and effective disposal of issues in the Act.

17

The revolutionary decision of the West Pakistan High Court in Mst. Balqis Fatima v.

Najm-ul-Ikram Qureshi, PLD 1959 (W.P.) Lah, 566, held that the courts can allow a

wife judicial khula on the ground that the marriage has irretrievably broken down and in

such cases husband’s consent is not necessary. Mst. Amena Khatun v. Serajuddin

Sardar, 17 DLR (1965) 687, is the first case in Bangladesh, then East Pakistan, where the

Court took notice of the above decision. In this suit, instituted by the wife for dissolution

of her marriage, it was established that the husband had failed to maintain her for more

than two years, contrary to the specific stipulation in the marriage contract, that he failed

to perform his marital obligations for more than three years; that he was unable to offer

equal treatment to her in relation to the first wife, that he had used physical violence

against her, and “that the marriage between the parties was shipwrecked at an early stage

and since then there had been a perpetual state of hostility and antagonism between the

parties.”

The Court held:

There are various other considerations upon which the aforesaid marriage can be

disposed of. For instance, the relationship between the parties as made out by them,

brings it within the ratio of the decision of a Full Bench of the West Pakistan High Court

in the case of Mst. Balquis Fatima vs. Najm-ul-Ikram Qureshi …. The plain fact is that

on a total assessment of the relationship between the parties it would amount to cruelty to

the plaintiff to continue the marital tie. Another important factor in this case is that if the

marital tie is not dissolved it would be impossible for the wife to live within the limits of

the shariat. Islam does not ignore the propensities of human nature.24

This was a good case of khula. The Court, however, preferred to dissolve the marriage on

the ground that the husband had failed to provide for the wife’s maintenance for a period

24 Section 6(1) of the Ordinance provides as follows: “Every suit under this Ordinance shall be instituted by the presentation of a plaint to the Family Court within the local limits of whose jurisdiction (a) the cause of action has wholly or partly arisen; or(b) the parties reside or last resided together:Provided that the suits for dissolution of marriage, dower or maintenance, the Court within the local limits of whose jurisdiction the wife ordinarily resides shall also have jurisdiction.

18

of two years in breach of the terms of the kabinnama Hasina Ahmed v. Syed Abul Fazl,

32 DLR (1980) 294, gives a clear exposition of the law of khula in Bangladesh. In this

case the husband had consistently alleged that his wife had illicit relation with her cousin.

She instituted a suit for dissolution of marriage and expressed her willingness to part with

the dower. Husain, J., well-known for his liberal and activist stance, found that, on the

facts, she was entitled to dissolution of the marriage on the principle of li’an for the

husband’s false charge of adultery against her and also on the ground of cruelty under the

Dissolution of Muslim Marriages Act, 1939. He, however, preferred to base his decision

on the principle of khula. He held that a wife could obtain divorce by way of khula from

the court, even if the husband did not agree and as authority for his decision referred to

the Full Bench decision of the Supreme Court of Pakistan in Mst. Khurshid Bibi v.

Muhammad Amin, PLD 1967 SC 97. His admiration for it was unbounded: “This

judgment of the Supreme Court is a classic and monumental example where the principle

of Muslim law on divorce by consent by way of ‘khula’ has by analogy been made a rule

of the Court, so that an unwilling wife is not forced to live with her husband against her

expressed will.” He further held that while adjudicating on family disputes the courts

should take into account not only the factual and legal positions but also the changing

social milieu.25

In Sheerin Alam v. Captain Shamsul Alam, 48 DLR (1996) 79, the wife prayed for a

khula divorce alleging cruelty and ill-treatment by her husband and agreeing to surrender

the dower money in consideration of khula. The husband filed a counter suit for

restitution of conjugal rights. The two lower courts found that the couple could not live

together as husband and wife “within the limits of Allah” and they had been living

separately following an attempted assault by the husband. They held that as no such

cruelty had been proved as was required for dissolution of marriage under the Dissolution

of Muslim Marriages Act, 1939, she was not entitled to divorce and issued a decree for

restitution of conjugal rights. The High Court held that, for dissolution of marriage

through khula, the question whether the husband treated his wife with cruelty was not of

prime importance. The most important consideration was whether the parties could live 25 The issue was brought by some lawyers from the district Bars of Bogra, Comilla, Jessore, Patuakhali, and Mymensingh; as referred to in the BLAST report, at p. 8.

19

together in peace and amity. Following Mst. Khurshid Bibi’s case, the Court held that if

the wife satisfied the court that there was no possibility of their living together

consistently with their conjugal duties and obligations, the court would have the right to

dissolve the marriage. Accordingly, the Court dissolved the marriage.

In khula cases the courts have established the principle that the consent of the husband is

not required bringing about a divorce. This gives women freedom from oppressive

marriage bondage but often deprives them of their entitlement to dower26. It may also

happen that a man wants to get rid of his wife but does not want to pay her dower, which

a talaq would entail. He may put pressure upon her by cruel conduct or other means to

seek a khula divorce and release him of dower and other financial obligations. However,

the Pakistan judiciary has established the rule that where the fault of the husband is

proved, the wife does not have to restore the benefits received or waive her claim to

dower.

Fatwa Relating to Talaq:

One striking phenomenon of the socio-legal scenario of Bangladesh that will attract

attention of any conscious citizen is the fierce resistance of the traditional religious

leaders of the rural areas to the implementation of the divorce provisions of the Muslim

Family Laws Ordinance, 1961. Editor, The Banglabazar Patrika v. District Magistrate

and Deputy Commissioner, Naogaon27 deals with the serious social problem of

pronouncement of fatwa on divorce matters by people, not properly qualified and having

no legal, religious or moral authority to issue fatwas. Fatwas are specialist opinions of

competent jurisconsults on any legal or religious matter where the rules of law are not

clear, or because the issue or situation is novel the existing rules do not provide an

answer. The person who gives a fatwa is a mufti who must be of an unimpeachable

character, have deep insight into Islamic theology, be well-versed in the original sources

of law, have mastery over the languages of the original works and competence to form an

26 1(1996) BLC (AD) 24; judgment delivered on 23rd October 199327 47(1995) DLR (HCD) 235; judgment delivered on 23rd January 1994; however, it could not be learnt whether the HC Bench was aware of the Appellate Division decision in In Azad Alam Vs Jainab Khatun and others

20

informed, independent judgment28. Fatwas are of advisory and not binding character. As

the rules of talaq and their effects are governed by Section 7 of the Muslim Family Laws

Ordinance, 1961, which codified the Islamic law on the subject, there is no scope for

pronouncement of fatwas in divorce matters. Section 7 virtually makes the revocable

ahsan form of talaq obligatory on any husband who intends to divorce his wife and

unequivocally abolishes the arbitrary and instantaneous talaq-i-bid‘at or triple talaq of the

wife and allows remarriage between the couple after such a talaq without an intervening

marriage with a third person, unless this is the third talaq pronouncement29. If there is any

ambiguity in any statute, it is the court of law which alone has power, competence and

jurisdiction to decide the matter. The court can, of course, seek expert advice on the

matter in arriving at its decision but is not bound by such advice. Court interpretation has

removed whatever ambiguity had existed in the provisions of Section 7 of the Ordinance.

In blatant disregard of this law a class of people have taken it upon themselves (i) to issue

fatwas declaring section 7 of the Ordinance as un-Islamic, talaq-i-bid‘at as dissolving a

marriage irrevocably and hilah30 marriages as absolutely necessary for legalizing

remarriage with the first husband, (ii) to enforce these utterly unlawful acts, and (iii) to

inflict corporal punishment for non-compliance with their directives. These fatwas31 are

mostly issued by semi-literate village maulvis, and the victims are almost invariably the

poor and illiterate village folk. In the present case the husband pronounced a talaq on his

wife in anger and thereafter continued married life with her for about a year. Then one

Haji Azizul Islam issued a fatwa that the marriage had been dissolved and forced the wife

to go through a hilah marriage32. Exercising suo motu jurisdiction a Division Bench of the

High Court heard the case and found that talaq-i-bid‘at is against the injunctions of the

Qur’an and hadith as well as invalid in law under section 7 of the Muslim Family Laws

Ordinance, 1961. The Court also cited an instance to show that the Prophet strongly

disapproved the capricious and irregular exercise of the power of divorce. The Court held

that the fatwa was wrong; the marriage was not dissolved; and assuming that it was, there

was no legal bar for remarriage of the couple without an intervening marriage. The Court

28 Ibid., at p. 23629 Ibid., at p. 23730 Ibid., at pp. 236 - 23731 bid., at p. 23732 Kannan vs Chiruda, AIR 1960 Ker. 93; as referred to in 47(1995) DLR (HCD) 235, at p. 237

21

further held that fatwa means legal opinion of a lawful person or authority. The legal

system of Bangladesh empowers only the courts to decide on all legal questions.

Therefore, fatwas including the instant one are unauthorized and illegal. The Court

recommended that giving a fatwa by unauthorized persons be made a punishable offence

by the Parliament.

Maintenance of Wives

Under Muslim personal law maintenance of the wife is an obligatory duty of the husband.

If he neglects or refuses to maintain her without any lawful cause, she can sue him in a

civil court claiming maintenance. But a serious shortcoming of the Hanafi law of

maintenance which causes great financial hardship to a needy wife, expelled from the

matrimonial home without sufficient cause or living apart from her husband for valid

reasons, is the rule that a court decree awarding maintenance to her is enforceable only

from the date of the decree and not from the day the cause of action arose. The courts

have held that under Muslim personal law maintenance of the wife is an obligatory duty

of the husband and where, for no fault of the wife, the husband has neglected or refused

to maintain her, she is entitled to maintenance from the time the husband neglected or

refused to maintain her33. The mere fact that she has been hesitant in promptly coming to

the court or has been pursuing remedies out of court, e. g., reconciliation with her

husband, shalish or informal settlement by village elders, cannot be construed to deprive

her of her right. The classical law holds that following divorce maintenance is payable to

the wife only for the iddat period of three months. This rule causes great hardship to

divorced women without jobs or other means of support. The Commission on Marriage

and Family Laws appointed by the Pakistan government proposed as early as 1956 that

courts should be vested with power to grant maintenance to an unjustly divorced wife for

life or until her remarriage34. The proposal has not made its way into the statute book of

Pakistan or Bangladesh until now. India solved the problem of destitute, divorced wives

by enacting the Muslim Women (Protection of Rights on Divorce) Act, 1986 and by

33 Supra note 3534 Question regarding camera trial was raised by some lawyers from Jessore, Rajshahi, Chittagong, Pabna Bar, as reffered to in BLAST report, at p.8.

22

activist interpretation of its provisions by the Supreme Court35. Recently, a valiant effort

was made by a Division Bench of the High Court Division of the Supreme Court of

Bangladesh in Hefzur Rahman v. Shamsun Nahar Begum, 47 DLR (1995) 74, to

provide financial security to divorced women in impecunious circumstances by making

their former husbands liable for their maintenance until their remarriage. In a suit by a

wife for her iddat maintenance, the Court took up suo moto the legal query whether the

divorced wife could have claimed maintenance beyond the iddat period. The Court held

that a civil court has the jurisdiction to follow the law as contained in the Qur’an,

disregarding any other law on the subject which is contrary to it, even though laid down

by the jurists and commentators of great antiquity and authority and followed for a very

long time. The Qur’anic Verse, which was applicable to their query, was II: 241,

translated by Abdullah Yusuf Ali, the celebrated modern commentator of the Qur’an, as

“For divorced women maintenance (should be provided) on a reasonable (scale).” The

Court accepted this as the correct translation of the Verse and observed:

Considering all the aspects we finally hold that a person after divorcing his wife is bound

to maintain her on a reasonable scale beyond the period of iddat for an indefinite period,

that is to say, till she loses the status of a divorcee by remarrying another person.

The Court did not refer, perhaps deliberately, to Mohd. Ahmed Khan v. Shah Bano

Begum, AIR 1985 SC 945. The judgment has been hailed by liberal forces of Bangladesh

as courageous and enlightened – a major breakthrough in Islamic jurisprudence. The

leading British scholars of Muslim family law have maintained that the decision confirms

the recently established Indian law that there is actually no real conflict between the

Qur’anic foundations on the husband’s obligations towards a divorced wife and the

modern welfare statutes obligating husbands to look after the future welfare of their

divorced wives36.

35 The issue is raised by some lawyers from Jessore, Tangail and Rajshahi Distrct Bar Association; as referred to in BLAST report at p. 9 36 42 (1990) DLR (HCD) 450

23

As was to be expected, the decision was greeted with widespread protest and

condemnation by the fanatical elements and, perhaps for avoiding a Shah Bano situation,

the Appellate Division of the Supreme Court overruled it. The apex Court held that the

word mataa in the Qur’anic Verse II: 241 has never been understood as maintenance or

provision in the sense of legal, formal and regular supply of necessaries of life and

livelihood to the wife. It is a “consolatory offering” or parting gift to a divorced woman

as comfort and solace for the trauma she suffers from divorce. Being a gift, it has never

been judicially enforceable. But the Court was also of the opinion that statutory

provisions may be made, binding the husband to maintain an unjustly treated and

destitute divorced wife, as has been done in several Muslim countries. Such beneficial

legislation, the Court held, will not be against Muslim personal law. On the contrary, it

will be in consonance with the ideas of justice, tolerance and compassion that the Qur’an

enjoins upon all righteous Muslims37.

Custody of Children

Custody of minor children is a very delicate and sensitive issue and it usually arises when

the spouses are living separately or the marriage has broken down and the parties are

divorced. Like India and Pakistan, the hizana or custody law of minor children is

governed in Bangladesh by a combination of statute laws, i.e., The Guardian and Wards

Act, 1890, Muslim personal law, case-law, and court’s concern for children’s well-being.

Irrespective of what the statute law or Shari‛a law provides, the paramount consideration

is the welfare of the child and it is the court which decides what is in the best interest of

the child. This was emphatically asserted by a Division Bench of the High Court Division

of the Supreme Court of Bangladesh in Ayesha Khanum v. Major Shabbir Ahmed, 46

DLR (1994) 399. In delivering the judgment of the Court, Hasan J., held that the

provisions of personal law of the parties, even those of statute law, are subject to the

“paramount need of the welfare of the child.” In support of this view he cited Smt.

Surinder Kaur Sandhu v. Harbux Singh Sandhu, AIR 1984 SC 1224, where the

Supreme Court of India said: “Section 6 of the Hindu Minority and Guardianship Act

1956 constitutes the father as the natural guardian of a minor son. But that provision

37 14(1994) BLD (HCD) 467

24

cannot supersede the paramount consideration as to what is conducive to the welfare of

the minor. The boy ought to be in the custody of the mother.” In the present case the

personal law and the welfare doctrine were not in conflict; under both the mother was

entitled to custody of the minor boy. But the Judge made it clear that if the personal law

and the welfare doctrine conflicted, the welfare doctrine would have precedence.

In Md. Abu Baker Siddique v. S.M.A. Bakar, 38 DLR (AD) (1986) 106, the Appellate

Division of the Supreme Court of Bangladesh had to deal with the custody of an eight

years old boy. His father divorced his mother and claimed his custody. The boy was

suffering from a serious disease and it was established that the mother, a doctor, would be

able to look after him better. But under Hanafi law the father was entitled to the custody

of a son above seven. The Court considered a large number of earlier cases and found

that these decisions, while recognizing the rules of Islamic law as to who is entitled to the

custody of a minor child with reference to his or her age and sex, simultaneously took

into consideration the welfare of the minor in determining the question. As to the binding

nature of Islamic law regarding custody of a minor child, pleaded by the father’s counsel,

the Court held that “there is absolutely no reason to differ from this position as long as

the particular rule of law to be applied is found either in the Quran or Sunnah, nor is there

any reason to differ from a clear interpretation of any rule of the Quran or formulation of

principle based on Quranic text represented by the dominant opinion of a particular

school of law, such as Hanafi, one of the four major schools of law governing Sunnis in

Bangladesh.”38 But the custody rules are only juristic views and are not based on the

Qur’an or Sunnah. No consensus having been established among the jurists, these rules

differ from school to school. The Court cited with approval the rule laid down in Mst.

Zohra Begum v. Sh. Latif Ahmed Munawwar, PLD 1965 (W. P.) Lah. 695, that, as

there is no Qur’anic or hadith texts on the point, it would be permissible for the present

day courts to differ from the rules of hizana stated in text books like the Hedaya.

Accordingly, the Court decided that the welfare of the child required that his custody

should be given to the mother. The raison d’etre of the decision leads a scholar to

comment:

38 14(1994) BLD (HCD) 467

25

This assumption that an absence of direct Quranic provisions entitles one to discard

norms of Islamic Law can ultimately undermine the authority of a whole range of rules

and norms. Apparently such ramifications were not central to the Court’s concerns in this

particular case. Rather, this assumption ostensibly emboldened the Court to advance and

fortify the “primacy of welfare” as the determining criterion. Such an understanding of

hizanat had already been accepted in Pakistan, and the Bangladesh Supreme Court used

and reaffirmed this position in Siddique v. Baker39.

Is a mother bound by a voluntary agreement surrendering her right of custody of her

minor children to their father? This was the primary issue in Nargis Sultana v. Amirul

Bor Chowdhury, 50 DLR (1998) 532. The mother, a government servant, divorced her

husband by exercising power of divorce delegated to her and, to avoid unpleasantness of

litigation, voluntarily agreed to hand over the custody of the twin sons to their father on

condition that she would have access to them whenever she desired. She filed a custody

suit on the grounds that the father denied her access to them, did not properly look after

them and their health was suffering. The Court held that in custody cases the welfare of

the minor was the dominant consideration, not what the parents had agreed upon. An

agreement between the parents cannot exclude the court’s jurisdiction to decide what will

serve the interest and welfare of the children best. The Court directed the father to hand

over the two sons to their mother.

There is a fundamental distinction between custody and guardianship. As Pearl and

Menski so aptly explain it: “Custody has more to do with practical matters, such as care

and control of the child and therefore the rights and obligations of mothers and persons

who might take their place while, guardianship centres on the legal rights and obligations

of the child’s father and his representatives.”40 In the judgment of the Privy Council in

Imambandi v. Mutsaddi, (1918) 45 I. A. 73, delivered by Syed Ameer Ali, J., it was said

that “the mother is entitled only to the custody of the person of her minor child up to a

certain age according to the sex of the child. But she is not the natural guardian; the father 39 Supra note 24.40 Ibid., at p.54

26

alone, or, if he be dead his executor (under the Sunni law), is the legal guardian.” 41 If

there is no father‘s executor, the grandfather of the children and, if he is dead, his

executor is their legal guardian. In the absence of any legal guardian, it is the duty of the

judge to appoint one. Rehanuddin v. Azizun Nahar, 32 DLR (1981) 139, is a unique and

welcome decision relating to guardianship of a minor in the sense that in the presence of

the grandfather the Court appointed the child’s mother as its guardian. In this case the

grandfather was the natural guardian of the child under Muslim law. The District Judge

found that the mother of the child had not been well treated in the father-in-law’s house

and perhaps apprehended from this that the minor boy might not also get a better

treatment. Accordingly, he held that although the grandfather was the natural guardian of

the minor under Muslim law, “the mother in facts and circumstances of the case was

entitled to be appointed as the guardian.” The High Court agreed with the decision. The

Commission on Marriage and Family Laws, appointed by the Pakistan Government for

reform of Muslim personal law in 1955, had suggested that in the absence of the father it

should be open to the court to appoint any person as guardian of the property of the minor

including the mother, if it was in the best interest of the minor. “To give such a discretion

to the court”, said the Commission, “does not run counter to any injunction of the Holy

Qur’an. In modern times there are a number of mothers who would be in a position

adequately to manage the property of their minor children.”42 Needless to say, their

suggestion was not accepted. In Rehanuddin v. Azizun Nahar, the Bangladesh court has

exactly done what the Commission had suggested in 1956.

The above decision is a good example of judicial activism in Bangladesh. In fact, the

cases discussed above show that in custody matters the higher courts lean in favour of

mothers. It is more so in the lower courts. A study of unreported custody cases of the

Family Courts of Dhaka city has shown this healthy trend43. As the study finds, the

favourable attitude of these courts has encouraged mothers to put forward claims for

custody of children above the age limit, laid down by the classical jurists of the Hanafi

school, and rely on the welfare doctrine of custody. We have discussed the custody cases 41 Id.42 PLD 1969 (SC) 187; 21 DLR (SC) 12343 as referred to in 40 (1988) DLR (HCD) 305

27

of Bangladesh in detail for two reasons. First, custody cases often evoke primordial

emotions and lead to bitterness and litigations the victims of which are the children.

Second, in the unequal fight for custody between the sexes, it is often the women who

lose because of their social disabilities and financial constraints. Favorable court attitude

is not enough; affirmative action is necessary for unhindered access of women to the

courts for justice.

Protection of Pardanashin Women

The role of the Bangladesh courts in giving liberal interpretation, wherever possible, to

the rules of Muslim family law and extending legal protection to women has been

discussed above. One class of women needing special protection of the courts are the

pardanashin women who are excluded from social intercourse and communication except

with very near relations, that too within the four walls of their residence. In suits where

they were parties, special rule of onus was devised by the Privy Council to give them

protection. The rule was subsequently extended to the protection of ignorant and

illiterate, though not pardanashin, women. In Siddique Ahmed v. Gani Ahmed, 33 DLR

(AD) (1981) 1, the Appellate Division of the Supreme Court reiterated the Privy Council

rule that in case of any dispute regarding the validity of a transfer of property by the

pardanashin lady, the onus is always on the donee or transferee to satisfy the court that

she substantially understood the disposition and executed it with full understanding of

what she was doing and of the nature and effect of the transaction. Proof of independent

advice is not essential unless there are special circumstances, e.g., where the donee or

transferee stands in a position of confidence or fiduciary relationship, in which case he

will have to prove that the lady had independent advice from disinterested advisers. In

Rokeya Khatun v. Alijan, 34 DLR (AD) (1982) 266, the son obtained his 90 years old

mother’s thumb impressions on some stamp papers, telling her that he required it for

proper management of her property. He used the documents to transfer her entire

property to him and subsequently transferred it to Alijan, the respondent, depriving his

sister Rokeya, the appellant, of her share of inheritance. The Appellate Division of the

Supreme Court held that, as the son was in a footing of fiduciary relationship with his old

mother, the burden of proof that she had full knowledge and comprehension of the terms

28

of the transaction was upon those who wanted to uphold the disposition. It must be

proved that the disposition was her mental act as its execution was her physical act. As

the subsequent bonafide transferee of the property, the respondent steps into the shoes of

the son and the onus of proof regarding the validity of the transaction is on him. In the

earlier case of Siddique Ahmed v. Gani Ahmed the Appellate Division had held that the

special rule of protection given to the pardanashin lady is confined to her only and is not

available to a person upon whom her property might have devolved in the absence of the

impugned disposition. They revised this view and now held that the person upon whom

the property of the pardanashin lady would devolve by operation of law and who in the

facts represents her can challenge the legality of the disposition44. In other words, the

protection available to the pardanashin lady, on her death may be extended to her

daughter who was deprived of her rightful share of her mother’s property.

Existing family court and problems:

Generally, substantive and procedural custodial issues continue to be governed by the

Family Courts Ordinance of 1985 and The Guardians and Wards Act of 189045.  Family

law courts have jurisdiction for matters related to guardianship and custody of children46. 

Bangladeshi family law courts are directed to consider several factors when considering

the appointment of a guardian of a minor, including: the best welfare of the minor, "the

age, sex, and religion of the minor, the character and capacity of the proposed guardian

and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any

existing or previous relations of the proposed guardian with the minor or his

property."47  Further, courts also may consider the minor's preference if the minor is "old

enough to form an intelligent preference."48 In accordance with this legal framework,

44 Civil Revision No. 273 of 1986; Moqbul Ahmed vs Sufia Khatun and others, 40 (1988) DLR (HCD) 305; Judgment delivered on January 11, 198845

46 14(1994) BLD (HCD) 46747 The Guardians and Wards Act (1890), Section 17 (2), available at: http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=6448 The Guardians and Wards Act (1890), Section 17 (3), available at: http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=64.

29

judges generally follow the personal or religious law of the minor when making

guardianship and custodial decisions.

According to Muslim law, the father is the natural and legal guardian of the person and

property of his minor children49.  Although, under Shari'a law and the classical Hanafi

position, a mother has a right to physical, not legal, custody of her child until age seven

for males and puberty for females50.  However, a mother may lose custody of her children

if she remarries a non-relative or someone not barred to the children by the rule of

consanguinity51.

It is noteworthy that these religious rules do not appear to be absolute.  A mother may

always apply for custody of her child because courts have occasionally diverted from the

traditional religious child custodial rules based the best interests of the minor as provided

in the Guardians and Wards Act52.

49 Sultana Kamal, Law for Muslim Women in Bangladesh, available at: http://unstats.un.org/unsd/vitalstatkb/Attachment390.aspx.; Kristine Uhlman, Overview of Shari'a and Prevalent Customs in Islamic Countries, available at: http://www.lawmoose.com/Documents/UmHaniarticle.pdf.

50 Sultana Kamal, Law for Muslim Women in Bangladesh, http://unstats.un.org/unsd/vitalstatkb/Attachment390.aspx51 Id. at Section 4.52 Id.

30

Chapter - 3

Recommendations

Family court’s Act – 1985 should be amended. Government should amend religious personal laws, such as: Hindu law of

Bangladesh. Government should amend customary hereditary laws which accommodate

women’s property inheritance in personal law. Community people should be united to fight against psycho-social mal-practice. Since the matter is bargaining power to, power over and power of the people, so

voice should be raised with more argumentative. People should sit together and discuss the dispute and decide not to discriminate

women. Parents should give their daughters a share along with the sons. Government should formulate national laws to become strong women community. Assess needs to measure for access to justice at all level and aware about holistic

behavior approach.

31

Chapter – 4

Bibliography:

A. Acts:

1. XVII of 1985. The ordinance was made by the President of the Peoples Republic of Bangladesh on 28.3.1985 and was published in the Bangladesh Gazette, Extra on 30.3.1985, section 7(a), Section 9(1)

2. The handbook of Muslim Family Laws, sixth edition, 2005, Dhaka Law Reports,3. Act No. XIX of 1946.4. Section 6(1) of the Ordinance provides as follows: “Every suit under this

Ordinance shall be instituted by the presentation of a plaint to the Family Court within the local limits of whose jurisdiction

a. the cause of action has wholly or partly arisen; orb. the parties reside or last resided together:

5. The Guardians and Wards Act (1890), Section 17 (2), section 17 (3), Section 4. B. Articles / Journals:

1. R. Connell. Gender and Power: Society, the Person and Sexual Politics (Sydney: Allen and Un-win. 1987), 107; Carrigan. Connell and Lee, 95.

2. Combating gender injustice Hindu Law in Bangladesh, Dr. Shanaz Huda, The south Asian Institute of Advanced Legal and Human Rights Studies – 2011

3. Civil laws governing Christians in Bangladesh – A proposal for reform, Faustina Pereira, the South Asian Institute of Advanced Legal and Human Rights Studies, 2011

4. Farida Shaheed, Dohel Akbar Warraich, Cassendra Balchin and Aisha Gazdat (eds.) shaping women’s Lives: Laws, Practices and Strategies in Pakistan (Lahore – 1998)

5. BLAST report, at p. 8, the issue was brought by some lawyers from the district Bars of Bogra, Comilla, Jessore, Patuakhali, and Mymensingh;

6. BLAST report, at p.8, question regarding camera trial was raised by some lawyers from Jessore, Rajshahi, Chittagong, Pabna Bar,

7. BLAST report at p. 9, the issue is raised by some lawyers from Jessore, Tangail and Rajshahi Distrct Bar Association;

8. Hossain, Aftab – Status of Women in Islam (Lahor – 1987), page – 819. The Daily Star, 3rd November 2008, Page – 3 10. John L. Esposite the Islamic Treats Myth or Reality? (2nd ed, New York, Oxford –

1995) page 7-8 11. Sultana Kamal, Law for Muslim Women in Bangladesh, available at:

http://unstats.un.org/unsd/vitalstatkb/Attachment390.aspx.; Kristine Uhlman, Overview of Shari'a and Prevalent Customs in Islamic Countries, available at: http://www.lawmoose.com/Documents/UmHaniarticle.pdf.

12. Sultana Kamal, Law for Muslim Women in Bangladesh, http://unstats.un.org/unsd/vitalstatkb/Attachment390.aspx

32

C. Judicial Decisions:

1. Mohammed Haneefa v. Pathummal Beevi, 1972 KLT 512 at 514, V. Khalid, J., of Kerala

2. Hosne Ara Begum v. Rezaul Karim, 43 DLR (1991) 5433. Chan Mia v. Rupnahar, 51 DLR (1999) 2924. Nelly Zaman v. Ghiasuddin Khan, 34 DLR (1982) 221,5. Hosna Jahan v. Md. Shahjahan, 4 BLC (AD) (1999) 1176. T. Sareetha v. Venkata Subbaiah, AIR 1983 A. P. 3567. Smt. Harvinder Kaur v. Harmander Singh Choudhry, AIR 1984 Del. 668. Smt. Saroj Rani v. Sudarshan Kumar Chadha, AIR 1984 SC 15629. Jesmin Sultana v. Mohammad Elias, 17 BLD (1997) 410. Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi, PLD 1959 (W.P.) Lah, 56611. Mst. Amena Khatun v. Serajuddin Sardar, 17 DLR (1965) 68712. Hasina Ahmed v. Syed Abul Fazl, 32 DLR (1980) 294,13. Mst. Khurshid Bibi v. Muhammad Amin, PLD 1967 SC 9714. Sheerin Alam v. Captain Shamsul Alam, 48 DLR (1996) 7915. Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945 16. Ayesha Khanum v. Major Shabbir Ahmed, 46 DLR (1994) 399 17. Smt. Surinder Kaur Sandhu v. Harbux Singh Sandhu, AIR 1984 SC 122418. Md. Abu Baker Siddique v. S.M.A. Bakar, 38 DLR (AD) (1986) 10619. Mst. Zohra Begum v. Sh. Latif Ahmed Munawwar, PLD 1965 (W. P.) Lah. 69520. Nargis Sultana v. Amirul Bor Chowdhury, 50 DLR (1998) 53221. Imambandi v. Mutsaddi, (1918) 45 I. A. 7322. Rehanuddin v. Azizun Nahar, 32 DLR (1981) 13923. Siddique Ahmed v. Gani Ahmed, 33 DLR (AD) (1981) 124. Rokeya Khatun v. Alijan, 34 DLR (AD) (1982) 26625. Hefzur Rahman v. Shamsun Nahar Begum, 47 DLR (1995) 7426. 14 (1994) BLD (HCD) at p. 46927. 50 (1998) DLR (HCD) 47, 52, 53, 28. (1996) BLC (AD) 24; judgment delivered on 23rd October 199329. 47(1995) DLR (HCD) 235; judgment delivered on 23rd January 1994; however, it

could not be learnt whether the HC Bench was aware of the Appellate Division decision in In Azad Alam Vs Jainab Khatun and others, p. 236, 237, 236 – 237

30. Kannan vs Chiruda, AIR 1960 Ker. 93; as referred to in 47(1995) DLR (HCD) 235, at p. 237

31. 42 (1990) DLR (HCD) 45032. 14(1994) BLD (HCD) 467 33. 14(1994) BLD (HCD) 46734. PLD 1969 (SC) 187; 21 DLR (SC) 123, 35. 40 (1988) DLR (HCD) 30536. Civil Revision No. 273 of 1986; Moqbul Ahmed vs Sufia Khatun and others, 40

(1988) DLR (HCD) 305; Judgment delivered on January 11, 198837. 14(1994) BLD (HCD) 467

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D. Web link:

1. http://ro.uow.edu.au/cgi/viewcontent.cgi?article=1149&context=artspapers&sei- redir=1&referer=

2. http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=zahid 3. http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=64 4. http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=64 5. http://unstats.un.org/unsd/vitalstatkb/Attachment390.aspx .6. http://www.lawmoose.com/Documents/UmHaniarticle.pdf 7. http://unstats.un.org/unsd/vitalstatkb/Attachment390.aspx

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