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Family Law and Its Impact on Women in Bangladesh

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Family Law and Its Impact on Women in Bangladesh FROM PATRIARCHY TO GENDER EQUITY: FAMILY LAW AND ITS IMPACT ON WOMEN IN BANGLADESH BY TASLIMA MONSOOR THESIS SUBMITTED FOR THE DEGREE OF DOCTOR OF PHILOSOPHY IN THE FACULTY OF LAW UNIVERSITY OF LONDON DEPARTMENT OF LAW SCHOOL OF ORIENTAL AND AFRICAN STUDIES AUGUST 1994 ProQuest Number: 11010647 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11010647 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 ABSTRACT This thesis constitutes a detailed assessment of the legal position of women in Bangladesh and argues that, despite some recent reforms purporting to improve their status, there is no real change in the situation of patriarchal domination. It is further argued that the dominant patriarchal structures, with the interlinked forces of religion, tradition and seclusion, are sustained not only in family life but also in family law. The thesis illustrates some confusions in the debates about the legal position of women and suggests that the lack of conceptual clarity has handicapped a discussion of the real needs of women in family law within a patriarchally-dominated legal framework. Based on a detailed exposition of family law under the British colonial regime and Pakistani state law, the present study focuses on the more recent Bangladeshi legal developments. These were officially brought about to meet certain social needs and to improve the overall situation of women. However, apart from the reforms concerning the Family Courts Ordinance of 1985, and some glimpses of judicial activism, in reported as well as unreported cases, the existing family law reforms are shown to be mainly procedural. In particular, they appear unable to protect women effectively from violence and economic deprivation. While not arguing for absolute gender equality, although this is apparently provided as a paper right in the Constitution of Bangladesh, the present study proposes that gender equity in family law can be meaningfully developed by better implementation of the existing law, prominently by sensitising the judiciary and society about the particular needs of women. ACKNOWLEDGEMENTS The contributions and encouragement of various institutions and individuals who assisted in the timely completion of this thesis are gratefully acknowledged. In particular, Dr.W.F.Menski supervised and guided the research thoroughly and with supreme patience; he also assisted with books and information of the latest publications. Ms. Jane Connors, Mr. Martin Lau and Dr. Shahdeen Malik made helpful comments on initial drafts and Mr. Muhammad Kafi competently assisted with computer technicalities in the crucial and final stages. Deep appreciation goes to the Commonwealth Scholarship Commission for providing the necessary financial assistance for this research. My employers, Dhaka University, deserve gratitude for giving me the opportunity to do research in London and for generously allowing leave of 3 years. The Legal Research Seminars of the Law Department at SOAS proved helpful in clarifying my perception of various issues in legal research. Attending a national workshop in Bangladesh on ’Uniform Family Code and problems of enforcement of equal rights of women in Bangladesh: Legal policy and social dimension’ in September 1992 gave some practical impact to this thesis. Last but not least, gratitude goes to my husband, Mr. A.I.M.Monsoor, who gave invaluable support and encouragement throughout and our children, Tanzela and Tahmid, who have learnt to be tolerant and understanding, showing that it can be useful for overseas scholarship holders to be accompanied by their families. GLOSSARY 1. Adi Justice 2. Akika Naming ceremony 3. Alims Persons having knowledge in religion 4. Al-hadith Tradition 5. Al-rav Independent personal reasoning 6. Asummat Large amount of dower shown in public while a lesser amount is arranged in private 7. Balikucha An instrument for sharpening knives 8. Bangabandhu Friend of Bengal 9. Barga Share cultivation arrangements 10. Bati Sharp cutting object 11. Bari House 12. Bhodrochito hare In a respectable manner 13. Birangona Rape victims of war 14. Burkha Covering cloak 15. Daabi Demand 16. Dhenki Husking instrument 17. Din Religion 18. Faskh Judicial dissolution of marriage 19. Fakir Holy men or saint 20. Fatwa A religious verdict 21. Fiqh Jurisprudence, study of the sharia 22. Gave holud Purification before marriage 23. Hadith Practice of the prophet 24. Harem Secluded portion of the house 25. Hiba al-mahr Gift of dower 26. Iddat Wife's period of waiting to remarry after death or divorce of husband 27. Iiab Offer 28. Iitihad Personal reasoning 29. Ila Oath of abstinance 30 . Izzat Honour 31. Jamai ador Special affection shown to the bridegroom 32. Kabin nama Contract of marriage 33 . Kazi Religious Judge 34 . Kitabia Women professing a scriptural faith 35 . Khivar al- buluqh Option of puberty 36. Khula Divorce given by the wife iii 37. Khadi ---- locally manufactured cloth 38. Kanyadan ---- Gift of virgin 39. Lakh ---- One hundred thousand 40. Lathi ---- Stick 41. Lian ---- Mutual imprecation 42 . Loj ja ---- Shyness 43 . Madrashas ---- Religious schools 44 . Mahr ---- Dower 45 . Mazar ---- Burial place of holy man or saint 46 . Mendi ---- Beautification before marriage 47. Mubarrat ---- Divorce by mutual consent 48 . Muftis ---- Muslim law officers 49. Mukhe vhat ---- First feeding of solids to a child 50 . Naior ---- Married women's occasional visit to the parental home 51. Nashuzah ---- Disobedient wife 52 . Neshakhor ---- Addicted to alchohol 53 . Nikah ---- Marriage 54 . Nikahnama ---- Marriage contract 55. Panchavats ---- Village court 56 . Parishad ---- Local administrative unit 57. Pir ---- Holy men 58 . Oabul ---- Acceptance 59. Qadi ---- Religious judge 60 . Oawwam ---- Protection 61. Saram ---- Shyness 62 . Sari ---- National dress of Bangladeshi women 63 . Sharia ---- The recommended path 64 . Shahar Committee ---- Local administrative unit 65 . Shalish ---- Extra-judicial mediation or arbitration 66 . Shehrv ---- Late night meal for keeping fast 67. Sinduk ---- Locker or treasure-chest 68 . Stridhana ---- Women/s property in Hindu law 69. Sunnah ---- Practice of the prophet 70 . Sunni ---- A Muslim Sect 71. Tabiz ---- Amulet wherein a verse of the Quran is written 72. Talaa ---- Unilateral dissolution by the husband 73 . Talaa-al-bidah ---- Triple divorce in one sitting 74 . Talaa-al-hasan ---- Three pronouncements of talaq during the period of purity 75. Talaa-e-tahweed ---- Delegated divorce 76. Thakkavur ---- A legislative method to pick and choose between different dictas 77 . Ummah ---- Society 78 . Usool ---- Paid 79. Usui ---- Customary practices 80. Zenana ---- Secluded portion of the house 81. Zihar ---- Impious declaration 82 . Zina ---- Illicit intercourse iv LIST OF ABBREVIATIONS 1. APWA All Pakistan Women's Association 2 . AIWC All Indian Women's Conference 3 . AIR All India Reporter 4 . BCAS Bulletin of Concerned Asian Scholars 5 . BLD Bangladesh Legal Decisions 6. BRAC Bangladesh Rural Advancement Committee 7 . BRDB Bangladesh Rural Development Board 8 . BSCIC Bangladesh Small and Cottage Industries Corporation 9. BSCR Bangladesh Supreme Court Reports 10 . DLR Dhaka Law Reports 11. DM Dowry Murder Cases 12 . HCD High Court Division of Supreme Court 13 . ILR Indian Law Reports 14 . IC Indian Cases 15. MIA Moore's Indian Appeals 16 . MFLO Muslim Familv Laws Ordinance. 1961 17 . NGO Non Governmental Organisation 18 . PLD All Pakistan Legal Decisions .i 19 . PR Privy Council Judgements on Appeals f India 20. PS Police Station Cases 21. SCMR Supreme Court Monthly Review 22 . WID Women in Development V TABLE OF CONTENTS PAGE ABSTRACT .............................................. i ACKNOWLEDGEMENTS ..................................... ii GLOSSARY ....................................... iii-iv LIST OF ABBREVIATIONS................................. v TABLE OF CONTENTS .............................. vi-ix CHAPTER 1 INTRODUCTION ................................... 1 1.1 The central pr e m i s e ......................... 1 1.2 The problem in a wider context .......... 4 1.3 Justification of the s t u d y .............. 13 1.4 Framework of the s t u d y ................... 19 CHAPTER 2 THE SOCIO-CULTURAL SETTING OF WOMEN'S LEGAL STATUS 3 0 2.1 Perceived notions of female subordination . 31 2.1.1 Women in I s l a m .................. 32 2.1.2 The negative impact of traditional cultures ........... 4 0 2.1.3 Patriarchal structures in B a n g l a d e s h ................... 4 6 2.1.4 Seclusion or Purdah .............. 53 2.1.5 The socio-economic and legal sphere .................... 63 2.2 Fores counteracting the perceived notions of subordination of w o m e n ................... 70 2.2.1 Matriarchal sentiments and sexual monopoly of birth .... 71 2.2.2 Socio-economic position of women 75 vi CHAPTER 3 THE DEVELOPMENT OF SOUTH ASIAN FAMILY LAW PRIOR TO THE EMERGENCE OF BANGLADESH ...................... 85 3.1 Women and family law in British India . 87 3.1.1 Women's inequality
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