Problems and Prospects of the Uniform Family Law in the Pluralistic Society: The case of Bangladesh.

CONCEPT, DEFINITION AND NATURE OF UNIFORM FAMILY CODE

1.1 Introduction

The main purpose of uniform family code is to remove discrimination as regards to justice. As our supreme law ensured the equal Justice for all citizen irrespective of their religion, race, sex, tribe and if there is a separate citizen as to religion, the principle of due process of has to be fallen down. And discrimination will anise which hazardous the principle of natural justice.

2.1: Conception about uniform family code:

As human beings every man has equal rights to enjoy various privileges regarding family matters without discrimination. The constitution of Bangladesh has ensured equal status of male and female. The two articles of our constitution strictly say about the some status of male and female. Which are enumerated into fundamental rights. The concerned articles are that.

Article 27 Says that.

All citizens are equal before law and are entitled to equal protection of law and Article 28 (1) Says that. The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, or place of birth.

In Bangladesh every citizen has a fundamental law and court which are applicable for the citizen irrespective of religion, caste, race, sex, or place of birth and as the male and female.

Inspire of fundamental law for every religion has a personal law prescribe the procedure of marriage, personal law prescribe the procedure of marriage, dissolution of marriage, inheritance, clawer which create division among the people of society and that is totally against of fundamental rights and universal declaration of human rights.

Because of different personal laws has taken religious discrimination among the citizens of state. This personal laws do not bring discrimination not only for various religion but also for same religion which clearly opponent of the government. declared women development policy.

For the difference of personal law among four religions the citizen of our country are suffering various circumstances.

So it is neat to be reformed of personal laws so that very person of different religions netballing to Muslim, Hindu, Christian, Buddhist get some solution of same problem. In this regard our country should have uniform family code which will ensure natural justice among the citizen irrespective of religion, race, sex, caste or birth place.

2.2. Definition of uniform family code:

General view: There is no exhaustive definition of uniform family code. But for the purpose of different actions uniform family code is the systematic codification of family laws applicable to all communities and all classes of people with a view to removing discrimination exist with in the communities.

Uniform family code is a modern codification made for different citizens to ensuring natural equal justice and removing hazardous regarding personal laws irrespective of religion, race, sex, caste, birth place. Uniform family code is a term referring to the concept of an overarching civil low code.

A uniform civil code administers the same se of secular civil laws to govern all people irrespective of their religion, costae and tribe. This supersedes he right of citizens to be governed under different personal laws based on their religion caste on tribe. such codes are in ;pace in most modern nations. The common areas convened by a civil code include laws related to acquisition and administration of property, marriage, divorce and adoption.1

A uniform family code is a codified legislation adopted by hole communities as regard to remove discrimination irrespective of their religion, sex, race, colour and tribe, and there shall be no separate personal laws and which is applicable to all. 2

So above the discussion we can say that uniform family code is a systematic codification which is a universal document for hole communities to solve the personal family heated problem without discrimination. Form the discussion of above definition of uniform family code the following characteristics should be mentioned. such as

1. No separate personal laws 2. It is applicable to all. 3. Select to remove discrimination. 4. Consistent with different international and domestic lows.

2.3 Nature of uniform family code:

Uniform family code is a systematic codification of family laws applicable to all communities irrespective of their religion, race, sex, caste, tribe. All the people of the country are bound to follow the same code for removing hazardous of Justice. When there is uniform code of low for every citizens. No one will be discriminated by the various special laws. The uniform family code recognize the principle of equality. So if there is uniform family code for any communities, no one will not discriminate as regard of equality before law because every person of the country is to enjoy some privileges regarding equal justice.

When there is a uniform family code, there is no separate personal lows. Every citizen is supposed to try under codified systematic lows. If there is a separate personal lows. here is discrimination as to religion, race, sex, tribe. Uniform family code creates principle of non-discrimination. Every citizen equal before law and are entitled equal protection of law. If there are separate personal laws there aim of uniform family code has to be failed so the main propose of Uniform family code is to try under some lows to ensure same justice for all citizens irrespective of their religion, race, sex, tribe etc.

The Uniform family code must be consistent with international and domestic laws. The Universal declaration of human rights postulates that every citizen of the world is equal before law. So the uniform family code should not be inconsistent with international law. If the uniform family code is inconstant with any universal law, the main purpose of uniform family code has to be destroyed. And the uniform family code must be consi8stent with the fundamental low of our country. As our constitution the supreme law of the country has ensured the due process of law and says that every citizen of the country is equal before the law one equally protected by the law. so if there is a uniform family code. so in order to ensure natural justice which is not discriminatory there must be a uniform family code.

DISCUSSION OF EXISTING LAWS ABOUT FAMILY RELATED MATTERS AS REGARDS TO MARRIAGE, DIVORCES, INHERITENCE, MAINTENANCE

Muslim Law:Marriage: Marriage (Nikah) among Muslims is a civil contract and though solemnized with recitation of certain verses from the Quran at the wedding ceremony, does not prescribe any service peculiar to the occasion. The object, therefore, are the promotion of a normal family life and procreation and legalization of children.3There are three aspects of marriage in Islamic Law, Which are necessary to understand the institution of marriage as a whole, namely (1) Legal (2) Social (3) Religious.

Registration: In Bangladesh every marriage solemnized under Muslim Law shall be registered in accordance with the provisions of the MusIim Mariiage and Divorces (Registration) Act 1974. Before marriage according to the existing Law, the girl must be of 18 years of age and the bridegroom must be 21 years of age.

Divorce (Talaq) or Dissolution of Marriage:Any Muslim male of sound mind who has attained puberty can divorce his wife whenever he desires without assigning any cause of divorce. Any husband can divorce at his will without intervention of a court. any man who wishes to divorce his wife shall, as son as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice writing of his having done so, and shall supply there of to the wife. Section 7(3) of the Muslim Family Laws Ordinance, 1961 stipulates that the Talaq pronounced shall not take effect for a period of 90 days commencing from the day on which notice is delivered to the chairman. 4Sub section (5) makes an additional provision to the effect that if the wife be pregnant, talaq will not be effective until the birth of the child, if it takes a longer time then stipulated in sub section

(3).Under sub-section (4) the chairman within 30 days shall constitute Arbitration Council, which shall try to bring about reconciliation between the estranged spouses. Irrevocable talaq under the .Ordinance, sub section (6 postulates, will come about when three talaq each covering a period of 90 days plus the time taken to deliver notice to the Chairman are effected.

Maintenance: Muslim wife is entitled to maintenance from her husband although she may have the means to maintain herself and although her husband may be without means. If the wife has a just ground for refusal to live with her husband she can claim separate maintenance from him where he has taken a second wife or keeps a mistress under the Muslim personal law. The husband is bound to maintain his wife so long as she remains faithful to him and obeys his reasonable orders. if a husband refuses to pay maintenance, the wife is entitled to sue for it. The wife’s right to maintenance commences. on marriage and ceases on divorce or when she comes to know of the divorce, and on the death of her husband, for her right of in heritance supervenes.A father is bound to maintain his sons until they attain puberty and his daughters until they are married. The father is not bound to provide separate maintenance for a minor son who refuses to live with him without reasonable cause, nor is an unmarried daughter entitled to separate maintenance unless the circumstances are such as to justify her in staying away. But the child being in the custody of the mother does not lessen the father’s obligation.

Inheritance:The Muslim Law of Inheritance as stated in the Quran has been recognized for adjusting the

completive claims of all the nearest relations.The Islamic scheme of Inheritance discloses three characteristics, such as, the Quran gives specific shares to certain Individuals, the residue goes to agnaticeirs, and failing them to uterine heirs and bequests are limited to one third of lee state.

No distinction is made in Mohammedan Law between movable or immovable property, joint or separate property, realty or personality. Males and females have equal rights over property. For example, a Muslim dies leaving a son and a daughter. The estate will be divided into three equal portions, the son obtaining two and the daughter one. The daughter does not, however, by reason of her sex suffer from any disability to deal with her share of the property. She is the absolute master of her Inheritance. The same rule applies to a widow or a mother.)According to Hanafi Law the following relations constitute the Quranic heirs.1. Heirs by Affinity (Husband, Wife)2. Blood relations (Brother, The grandfather how high so ever, Mother, True grandmother howsoever high, Daughter, Son’s Daughter, Full sister, Consanguine sister, Uterine brother, Uterine sister)3. The surviving spouse always inherits and the husband or wife is the only heir by affinity, which is made a primary heir by the Quran. If a woman dies leaving children or agnatic descendants, the husband is entitled to 1/4 of the net estate that is after payment of the funeral expenses;’ debts and legacies. If there are no children the husband obtains 1/2 of the net estate.4. The wife inherits 1/8 if there are children and 1/4 if there are none. In case of plurality of wives, they share the 1/8 or 1/4 equally between them. The father always inherits, but the father excludes the grandfather.5. The father with children takes 116 the residence 5/6 goes to the children the Sons taking double the share of the daughters. If there are no children or agnatic descendants the father or true grandfathers how high so ever takes as an Agnatic heir.6. Where the surviving relations are the father and the mother, mother 1/3 and 2/3 as Agnatic heirs.7. The mother always inherits but the true grandmother inherits only in certain cases. Mother excludes the maternal grandmother.8. The father excludes the paternal true grandmother. The mother takes 1/3 where there are no children and 1/6 where there are children. The daughter is primary heir, she always inherits in one of two capacities as a single daughter or as two or more daughters without a son. A single daughter takes 1/2 as two or more daughters take 2/3.

Hindu Law:

Marriage : Marriage under Hindu law is essentially a sacrament in which the wife is declared to be the half of the body of her husband (Ardhangni) equally sharing the fruits of pure acts, and the wife regards the husband as a good. It is union which the Vedas regards indissoluble.

There are two forms of marriage existing in Bangladesh. Brahma marriage in which the father gives away his daughter with dowry to the bridegroom in the presence of a priest and Assure marriage where the father demands money from the bridegroom for giving away his daughter Those who are willing to get married under Assure pay a bride price to the bride’s father. The terminology Brahma and Assure are not commonly used in present days, but -the practice of either form of concluding a marriage becomes manifest duringthe ceremony.

To solemnize a marriage the conditions to be fulfilled are; (a) the bridegroom-should be 21 years of age and the bride 18 years at the time of marriage, (b) the parties should not be spends or of same goral unless the custom or usage governing each of them permits of a marriage between them and (c) the marriage may be solemnized accordance with the customary rites and ceremonies of -either party. Where such rites and ceremonies include the Saptapadi that is, the taking of seven steps by the bridegroom and bride jointly around the sacred fire), the marriage becomes complete and binding where the seventh step is taken.

Registration: There is no system of registration of marriage under Hindu Law, nor any formal role of witnesses. Religious ritual can be conducted in the presence of the community, but a couple can also solemnize the marriage on their own by following the mantras.

Statutes affecting marriage: Several statutes were passed over recent times changing the ancient customs of marriage. Among these, the Hindu Widow’s Remarriage Act, 1856 legalized remarriage of a Hindu widow, Child Marriage Restraint Act, 1929 prescribed the minimum age of marriage for males at 18 years and for females at 14 years. This act now stands amended by the Child Marriage Restraint (Amendment) Act, 1986 in which the age of the bridegroom has been raised to 21 years and that of the bride to 18 years. The Hindu Marriage Disabilities Removal Act, 1946 allowed marriage of Hindus belonging to the same gotra. The Hindu Married Women’s Right to Separate Residence and Maintenance Act 1946, the Special Marriage Act, 1872, as substituted by the Special Act, 1923 provided for registration of marriage between Hindus, Buddhists, Sikhs and Jams and contained certain provisions of dissolution of marriage and other rights (Succession Act, 1925) available to the Parties)

Maintenance: The liability tor maintenance is 0? two kinds. One is incumbent upon a man (stemming) from the mere relationship between the parties and is independent of the possession of property. In other cases it depends altogether on the possession of property that can be rightfully claimed by the undivided family members. Hindu married women in Bangladesh are liable to get the right of maintenance throughout their life. A wife living apart from the husband can claim for)Maintenance as per Married Women Separate Residence and Maintenance Act 1 94In the case of Window’s, provision of maintenance devolves on the persons inheriting the demised husband’s assets. If the father-in-law received property by survivorship in which he (husband of the widow) had vested interest he is under legal obligation to maintain his son’s widow. In case he had not received such property, there is only a moral obligation)The Hindu Widow Remarriage Act 1856 has remained an ineffectual tool for Bangladeshi Hindu women, who continue to fall victims of denial of their right to divorce and remarriage even in case of being widow.)

Divorce: is unknown to Hindu Law, as marriage is regarded as an indissoluble union of the husband and wife. In Bangladesh the ancient law of the indissolubility of a marriage continues to prevail, but because men are permitted to marry again and again, the law gives them an advantage over women. The deep embedded gender bias relegates women to a role of service providers, without any statuary rights)Annulment of a marriage as well as the right to divorce by mutual consent. The “Bangladeshi Hindu woman has still only access to the Separate Residence and Maintenance Act of 1946, which is full of procedural constraints in obtaining the wife’s claim. The existing Hindu law in Bangladesh is a violation of the Universal Declaration of Human Rights, which declares under Article 16 (a) that the right to marry and divorce is a Human Right for all.

Divorce is allowed in certain communities of lower castes where it is permitted by custom. At present there are cases of Hindu wives who have been able to obtain divorce with the permission of civil courts (see case study in Chapter 4).

Inheritance: The Dayabhaga School of law governs Hindus in Bangladesh. It recognizes succession as the means of inheritance in the Hindu family. The right of inheritance comes from £&spiritual efficiency” of this school. The most entitled to succeed are the persons who can spiritually benefit from the deceased (sons, parents, brothers, children). Hindu society is based on joint and undivided family structures. The undivided Hindu family is joint not only in estate, but in food, worship, and kinship responsibilities)(Under the Dayabhaga system of inheritance the doctrine of religious efficiency is documented. In Hindu Law women do not belong to the favored group in inheritance. There are five categories of women who succeed as heirs to a male, namely; (1) the widow, daughter, (except barren daughter and sonless widowed daughter), mother, father’s mother and parental grandmother, (2) if women inherit property as a widow, daughter, mother, father’s mother, or father’s mother, she enjoys the property in limited interest, i.e. during her life time only, (3) in the absence of son, grandson, great grandson, the widow inherits property in limited interest, (4) after the passing of the Hindu Women’s Right to Property Act, 1937, under section 3 of that Act, a wedlock or (if more than one wife) widows together shall get the same share of a son in life interest and (5) the limited interest she inherits is called the “widow’s estate”According to Hindu Law a daughter cannot inherit if her mother is alive. The daughter gets limited interest in the estate of her father. After her death, her interest reverts to her father’s heirs) Among Hindus, in Bangladesh both men and women are excluded from the right of inheritance for the following reasons: (I) Physical or mental disability (ii) Adoption of other religions (iii) changes by legislation (iv) a murderer member is disqualified to the estate of the person murdered. In Bangladesh the Hindu Inheritance Laws differentiate between men and women. Women get a limited share and inherit only life interest in the property. All the biases and disabilities a woman faces originate from here own religion, mostly from the marriage system and the compulsory duty to give birth to a son.

Christian Law: Marriage in Christianity is a sacrament and not easily violated. In principle all Catholics adhere to the doctrine of sacramental indissolubility. However, state legislation has lent marriage the attributes of a civil contract between two parties.

Marriage of minors: With the amendment of the Christian Act by the Indian Government in 1872, a bridegroom of 16 years and a bride of 13 years could contract a marriage with the consent of their parents. That means a minor’s marriage can take place with the consent of the father. If the father is dead the guardian of the minor and in case there is no guardian, the mother can gives consent. ln case of a marriage of a girl above eighteen but below twenty one years and belonging to the Roman Catholic Church; the marriage does not become null and void on the ground that the consent of the girl’s parent is not taken)

Consent, Witness & Registration: The Christian Marriage Act 1872 is intended in the marriages of all the Christians including the marriages where one of the parties is a Christian. In a marriage between two persons, either or both being Christian, the marriage is intended to be solemnized by a government licensed Marriage Registrar or a Bishop of Church. One of the parties to the intending marriage shall give notice in writing to the Church. Such intention of marriage has to be served separately by both the bride and the groom’s own Church before

the notice is served by the Church. The Marriage Registrar or a Minister of Church consenting or intending solemnizing the marriage shall issue a certificate of such notice having been given and of such declaration having been made. After the issue of the certificate, the marriage may be solemnized in the presence of at least two witnesses besides the Marriage Registrar or a Minister of Church. Such marriage has to be solemnized between 6 am. and 7 p.m.

Dissolution of Marriage: The Christian Divorce Act 1869 (sec 10) deals with dissolution of a Christian marriage. It is nothing else but a divorce-supplement to the Christian Marriage Act 1872.

According to the Divorce Act 1869, adultery simplicities by the husband would not entitle a wife to dissolution of marriage, though this (adultery by the wife) is an important weapon in the hands of the husband to get the marriage dissolved. Besides dissolution, under sec. 34 of this Act a husband may claim damages from a person who commits adultery with the wife.29

Damages may be claimed also in proceeding for judicialseparation or even independently. But the wife cannot claim the same redress on the same ground. For the wife, dissolution can be prayed if (i) the husband has exchanged his profession of Christianity for the profession of some other religion and gone through a form of marriage with another woman, (ii) the husband has been guilty of incestuous adultery or of bigamy with adultery or of marriage with another woman with adultery or of rape, sodomy or bestialities or (iii) of adultery coupled with such cruelty as without adultery would have entitled the wife to a divorce a means throe (from bed and board) 5

Provision for Alimony (during suit and after dissolution/divorce)(Under Christian law the term ‘alimony’ is used in lieu of maintenance, although the two terms are not strictly equal. The main basis for a woman’s entitlement to such alimony is that she be ‘chaste’) The wife may present a petition for expenses of the proceedings and alimony pending the suit. The court, on being satisfied of the truth of the statement, may make such order on the husband for payment to the wife of expenses of the proceedings and alimony pending the suit as it may be deemed just, provided that the pending suit is disposed of this sixty days of service of such petition on the husband)

Right of Inheritance: (A Christian woman is protected under two Acts simultaneously. The Married Women’s Property Act, 1874, provides that the wages or earnings of any married woman remain her separate property. Section 31 of the Succession Act, 1865, makes the mutual rights of husband and wife identical. In the absence of a will, the Succession Act, 1925, governs matters of inheritance. A Christian widow inherits, in the presence of lineal descendants, one-third of her husband’s estate. In the absence of lineal descendants and the presence of relatives, she inherits one-half of the property. In the absence of both the lineal descendants and kindred the widow inherits all the property. Siblings, male and female, inherit equally with one another or with lineal descendants of deceased siblings. A daughter is entitled to two-thirds of an estate in the presence of a widow and absence of other siblings and/or lineal descendants. In the absence of all of them, the daughter inherits the entire property. When relatives are present a mother inherits one-half of the estate. But if relatives, lineal descendants and father are absent, she inherits the entire estate.

Buddhists Law: Marriage, Consent, Witness, Registration & Dowry - Like Hindu personal law among the Buddhists, marriage is a sacrament. Marriage is mostly arranged (about 95%) through consent of parents/guardians of both parties. The engagement ceremony

is held at the bride’s house and expenses are borne by the parents of the bride. The formal wedding is solemnized in the bridegroom’s house in front of relatives. Community and priest by pronouncing some religious and social ‘mantras’. There is no formal/written registration required for marriage.) There is no system of paying bride money or mohorana (dower).

Divorce/Dissolution of Marriage: Marriage is considered a permanent settlement between a man and a woman. Though there is no customary provision for divorce, marriage can however be dissolved. Polygamy is not allowed for males however, he can dissolve marriage if the wife is infertile or unfaithful. But the wife cannot ask for divorce under the same ground. For a Buddhist woman there is no scope for bringing in a suit for dissolution of marriage.)

Inheritance: Buddhist women suffer highly discriminatory inheritance laws. Girls do not inherit parent’s property. The father can set apart a share from his property for his daughter as gift. Women however, can get share from husbands property though there is no mention about the proportion of such share.

Table 1: Tribal Community and their Religion in Bangladesh32

Region/District Tribe & ReligionChristianity Buddhism Hinduism Other

Northern districts of Mymenshingh, Netrokona, Jamalpur & Tangail

Garo Hajorig, Hodi, Dalui

Bona, Mundai

CHT districts of Rangarriati, Bandorban & Khagrachari

Lusal, Bawn Pangkho, Ushui, Khyang, Tripura

Chakma, Marma, Tongchongya, chak, Rakhain, Khyang,

Tripura(sanatana)

Mru & Khum (karma religion)

Nortehrrn districts of Dinajpur, Rongpur, Rajshahi, Bogura & Pabna

Santal, Uraon Rajbongshi Mahali, Munda, Malpahari, Mal, Mahato, kamar, Pahil, Shing, Lohar, Kumi

Syihet. Moulvibazar, Sunamganj, Hobiganj & Srimongol

Monipuri Khasia, Pangon

UTILITY OF UNIFORM FAMILY CODE

As a rational being every citizen is entitled to get natural justice. To ensure natural Justice a uniform low is to be needed. In our country different religion has a different personal lows which not ensure to due process of low. According to our supreme low every citizen is equal before low and are protected by same law. When there are different religions as to matter of marriage, dissolution of marriage, maintenance, and dower faces different circumstances. As they have to try by different personal lows relating to some issue, the concept of natural

justice does not ensure which is protected our supreme law. To remove the injustice and discrimination a uniform family low must be needed. When all the citizens are tried by same law as to same matter, every person is treated equally by the law. So to ensure due process of law for every citizen. irrespective of their religion, race, color, sex, caste, tribe t he following utility have to be considered:-

4.1. The constitution of Bangladesh has ensured equality of male and female. Articles 27 and 28 (1) specifies the protected right which says that every citizen equal before law and no citizen discriminate on the grounds of religion, sex, race, caste, But when the citizens are tried by different personal laws regarding same issues the concept of rule of law has not to be ensured. so to remove this discrimination a uniform family codes must be necessary.

4.2 To remove discrimination between male and female as to empowerment of women the Bangladesh Government enacted women development policy in 1997. According to this policy women are equally dignified in very sector. As a result of women development policy the Govt. of Bangladesh had to be signed (CEDAW) Conversation on elimination of all forms of discrimination against woman. But as different citizens are tried by different personal law, the concept equality before law has to be destroyed. So to ensure due process of law and to remove discrimination a uniform family code must be essential.

4.3. Every citizen of Bangladesh has law and court which is applicable for very people irrespective of their religion. race, sex, caste. Every citizen of Bangladesh ahs a separate personal law regarding marriage, dissolution of marriage, down maintenance irradiances which house created division among the citizens of different religion and this personal law has created discrimination among the different nations which is the hindrance for the path of natural titmice. To remove this problem a uniform family code is essential.

4.4. Democracy of any country depends on the empowerment of women. In democratic country every citizen has equal nights. If any class of nation become deprived of any privileges the economic, Social, cultural development of that nation is not possible. The Hindu, Muslim, Christian, Buddhist, Participated our liberation war. So they should have equal rights to build up the country and other privileges otherwise no equal development is impossible. But because of separate personal laws the equal development, equality before law has not ensured. Many person are victim to discrimination because of various separate personal law. So inorderto postulate equality, rule of law irrespective family code is essential.

4.5. As there are four personal separate lows in our country for Muslim, Hindu, Christian, and Buddhist, they are suffering different circumstances regarding personal or family related issues. As a result discrimination of the society are increasing. So there is necessary to amend the domestic laws so that the citizens of different religions are field in the same way as to same issues. But the different domestic separate law is not effective to ensure equal justice for every citizens. So in this regards the necessity of uniform family code needs no bounds.

4.6. As for example if a Muslim women wants to dissolve hire marriage what procedure of law would be followed by her a Christian Woman does not follow the same procedure and a hindu woman has no right to dissolve such marriage e and Buddhist follows that the law of hindu. However various citizens of same country victim various oppression and severalty. As a result there are increasing of social injustice and oppressions and their collective development of any country has to be troubled. To remove form this form systematic codified law is must necessary so a uniform family code is crying needed.

4.7 We think in democratic country the main feature of democratic society is equality before law relating to mate and female. But the m aim causes of domestic violence is discriminatory family law. dowry system etc. In family laws system the main reason of oppressions of women is discriminatory separate personal law Muslim, Hindu, Christian, Buddhist who are living in Bangladesh specially women oppressed by the provisions of separate domestic laws and to remove this problem a uniform family code would be needed.

4.8 According to section 7 of Universal declaration of Human rights 1948, every one is equal before laws and is equally protected by the law. and the supreme law of our country ensure equal rights f or every human beings. To Geneva Convention and (CEDAW) convention has ensured the equal protection of law for every human being. To ensure equal protection of law for every human and to protect violence against humanity a uniform family code proposed by mobile punished is necessary.

4.9 Our existing personal laws are not relevant with the demand of women society. However laws are failed to perform his social duty. To secure natural Justice is impossible by our separate personal laws. So procedural difficulty of law and Justice system create hindrance to get due process of law. The socio-economic problem deprived form the help of equal justice of a male and female. Law gets legality when it is consistent with the demand of human beings But various personal laws create problem to get legality. In this circumstances an systematic codified laws can remove this hazardous. So a uniform family code can perform this purposes.

4.10 The half of the population of our country is women. they are playing vital role to develop in sector of economic, social, cultureless. But they are dominated by the male counterpart and they can not equal justice because of existing different personal laws. As they have to follow different domestic lows as regards to various family related problem such as marriage, dissolution of marriage, dower, maintenance inheritance etc. To solve this problem and to ensure equal Justice for every citizens a uniform family code must necessary which followed by irrespective of their religion, sex, race, caste, place of birth

SYSTEMIC AND LEGAL LOOPHOLES A SOCIO-LEGAL AND GENDER ANALYSIS

5.1 Women’s Right to MarriageIn spite of the guarantee of equality of women in most international human rights instruments and in the national Constitution, in every society women’s ability to enjoy their human rights is closely linked to the existing cultural framework of values and beliefs. Marriage in Bangladesh is partly based on religion or customary laws and partly on statutory laws and contains procedural defects and lack comprehensive coverage of human rights in terms of:

• Choice of a partner;• Free and full consent of the parties to the marriage;• Same rights of both partners to enter into marriage, (i) rights of both spouses during

marriage and upon its dissolution, (ii) rights of both spouses with regard to children and (iii) rights of both spouses with respect to ownership, enjoyment and disposition of property)

In Bangladesh the laws relating to (a) Marriage Divorce/Polygamy/Dower and ‘Cowry / (b) Status of a woman under Guardianship and Custody of Children and (c) Inheritance, are gender biased and largely discriminatory. Even though legislation exists for the protection of women from violence there are glaring examples of lack of implementation of such laws by the State authorities)

5.2 Marriage under customary law Customary laws are based on age-old customs and practices, which tend to be patriarchal in nature. Most customary laws of marriage also combine elements of religious beliefs and are more complex in terms of the rights perspective. Customary laws have therefore, traditionally been considered private laws governed by local rules to a given society and not cognizable as a subject of international agreement. The tribal communities in Bangladesh do not have codified laws and follow customary law and practices of respective communities in their marriages. Marriage under customary law has the following short comings:6

5.3 A Forced Marriage:Forced marriages are those where one or both adults and minors are forced into a marriage against their will through coercion, physical or mental abuse, treachery etc. Although it is very difficult to make a distinction between arranged marriages and forced marriages, many women and girls go through arranged marriages without protest due to family pressure, prestige and socioeconomic factors.

Forced marriage through less common than arranged marriage has severe legal and traumatic consequences like physical violence, abduction, detention, threat or grievous hurt, rape or even murder.45 Such marriages are a violation of a existing marriage laws and cannot be termed as a legal marriage and are a punishable offence. 7

5.4 Inter-Caste Marriage in the Hindu CommunityHindu marriages are restricted within the caste group that is considered a necessary condition to maintain a distinct identity that determines the membership to the group.

Inter-caste marriages among Hindus are commonly called as love marriage as they defy both parental diktat and exogamy (the rule prohibiting marriage within a speedier group) and endogamy of respective caste~ groups. The consequences of such marriages are not only exemplary violation of individual’s freedoms to choose, but also violation of fundamental civic right by the community at large)

5.5 MARRIAGE under personal laws: Most personal laws or religious laws are codified and based on religion and mythology of different ethnic groups. For example, Islamic personal law is based on classical Islamic jurisprudential texts. In most personal laws, gender inequality is taken for granted and there is a tendency to codify the most conservative and orthodox views of the given law. Under Muslim Personal Laws, a marriage is essentially a contract between a bride and groom and the contract being civil in nature requires full and free consent from both parties.

Under Hindu Personal law, major conditions relate to establishing identity of the caste of two parties and to be beyond the prohibited degrees of relationship i.e. not of the same ‘gotra’. According to Christian law marriages may be solemnized according to the rules, rites ceremonies and customs of the respective churches under which the parties belong)

5.6 Child Marriage:Provision for marriage of a minor is contrary to the law of the country regarding the legal age for marriage. Such customary provision however helps continue child abuse and sexual exploitation associated with multiple complications i.e. physical, psychological and social

A recent study finding reveals that nearly 70% of girls in rural areas are married before they

reach 20 years of age. Marriage of children and, adolescents between the ages of 16-18 is widely practiced (UNICEF -2003). In most cases consent is given by parents and is an imposed marriage. This has direct bearing, for both

Among the Christian community, child marriage is allowed for girls between age 13 to 16 years provided the father gives consent. There is noticeable discrimination in section 19 of the Christian Marriage Act 1872 which excludes a mother’s rights to give or withhold consent in the marriage of her minor child in the presence of not only the father but also the legally appointed guardian.

So we see that the whole traditional system of child marriage is potent with the concept that a girl child is the commodity of her parents/guardian.

5.7 Arranged Marriage:In Bangladesh it is customary that the family of the prospective bride and the prospective groom proceed with negotiations based on family considerations rather than the individual’s choice and consent. In such arranged marriages often a woman’s worth is weighed against the amount of dowry the bride can bring to the groom’s family and in return securing her acceptance to the new family. Often, even grooms are roped into marriage due to dowry gains and other material considerations.51)The Muslim system of “Nikah” which is held on the day of the marriage ceremony or preceding it, contains the act of asking by a Qazi or elder relation of the bride and bridegroom’s consent by verbal declaration in front of two males or one male and two female witnesses. This is not conducive to obtaining the real consent of the girl Also, in the tribal community consent of guardians of both parties is more important than the consent of the bride and the groom.Section 90 of Bangladesh Penal Code, 1860 says “consent is not such consent as is intended by any section of this code, if the consent is given by a person under fear or injury.There consent to marriage has not been obtained, consummation against the will of the woman will not validate the marriage. Here amazing anomalies appear in the system iii terms of the act of (a) consent, (b) the criteria of witness, (c) the registration of the marriage, and (d) the time factor in officially validating the legal contract.

The situation is relatively better in the Christian law where consent of both parties taken through a lengthy process by the respective Churches of the bride and the groom. Women under the Hindu law are the worst sufferers in this regard as they are treated not only as a commodity but given to. There husband through marriage for life as “Pon” meaning gift.

5.8 Witness: On the matter of witnesses, while the presence of witnesses is mandatory in Muslim and Christian law, it is not so in Hindu laws and tribal customary laws for marriage.A weakness also lies in the absence of specification of the age of the witnesses and criteria for their competency and social standing.

5.8 Registration Of Marriage is a recent requirement since 1974 (in case of Muslim marriage) and since British period (in case of Christian marriage.Currently, only the Muslim and the Christian marriages require registration but the system of marriage registration different for them In Hindu, Buddhist and tribal communities there is no system of marriage registration and marriage is generally solemnized through customary rituals in front of the community head or religion Priest. Therefore, women of these communities are worst sufferers when it comes to get redress in case of divorce or restitution

of conjugal rights.

Ironically, Muslim marriage is valid even without registration despite, the provision for registration as laid down in the Muslim Marriage and Divorce Registration Act 1974. Further, noncompliance of the provision for marriage registration does not invalidate the marriage but makes it punishable with simple imprisonment.

5.9 Dower: For the Muslims, Dower (Mahr7) is an essential ingredient of “Marriage. Dower is a sum of money or other property, which the wife is entitled to receive from the husband in consideration of the marriage.

The inherent idea behind dower is that it is an obligation imposed upon the husband as a mark of respect to the wife.57 But, historically ‘dower’ has been perceived, misinterpreted and manipulated by the husband Further, as is seen in most marriages the dower money is hardly, if ever, paid to the wife in compatible marriages. It is almost never even mentioned.

5.10 Divorce, Dissolution of Marriage or Judicial Separation: In all religions divorce is eschewed, and all efforts are made to maintain the union. However in the bargain, the inequalities inherent in the system are astoundingly gender biased and discriminate against women in a blatant and unjust manner.In Muslim marriages a husband has unilateral right to. divorce his wife but the wife must have the right delegated (Talaq-e-tawfeez) to her by recording it in the Nikah-nama (Clause 18).

A Muslim woman however, can proceed to move the Court but only under specified contingencies, which are laboriously hard to prove.

However, the process of divorce for women is difficult, complicated, expensive and socially humiliating. The sum of money to be paid to the wife as maintenance during proceedings can be obtained through a lengthy channel to the Arbitration Council, under section 9 of the Muslim Family Laws Ordinance 1961 or the Family Court. A loophole appears in the law if the wife is not living with the husband during the divorce proceedings, or refuses to do so, and whether the Arbitration Council can enforce the husband to pay maintenance.)

There are also many social consequences that women have to bear. The social stigma regarding divorce initiated by a wife is negative and effects her position in society and a woman suing for divorce is often under threat of physical violence, economic hardship, maltreatment and denial of her maintenance,

Under Hindu law, Marriage is indissoluble, and divorce is not allowed, compelling the wife to be enslaved by custom and tradition and undergo all forms of suppression without question. The Hindu conception of marriage based on destiny and the indissoluble tie between husband and the wife thus creates an unequal partnership

A Christian wife is treated with greater discrimination in the Divorce Act than a Christian husband Particularly, section 11 of the Christian Divorce Act 1869 is discriminatory against women. Adultery is the only ground on which suit for

Christians to seek dissolution of marriage. Notably the Divorce Act of 1869 \establishes different standards for men and women. Christian men can obtain divorce on the grounds of

adultery alone. In contrast, Christian women must demonstrate adultery coupled with cruelty, desertion, incest etc. This is a complete violation of human rights and undermines women’s equal rights to divorce and related matters

5.11 Maintenance/Alimony: Maintenance denial has beleaguered women since the institution of laws and systems governing separation of wife and husband and dissolution of marriage.)According to Muslim law, maintenance signifies all those things, which are necessary to the support of life, such as food, clothes and lodging.

Under the Family Laws Ordinance, 1961 and consequent laws “a woman can aim maintenance up to maximum of six years even she has means to support herself.

it suggests that so long as the marriage lasts the wife have the right to claim maintenance. The husband is not liable to maintain his wife if she refuses to live with him and fails to perform her marital obligation without any valid reason. The law is not conducive to treating such a claim as an inherent right of the wife at the time of divorce. For the economically depressed strata of society the channels to claim maintenance are intimidating and unapproachable.Apart from it,The greatest anomaly, for maintenance in the dissolution of marriage procedure, lies in the ninety days clause connected to the husband’s right of paternity over the unborn child, rather than de facto providing maintenance to the wife.

The Family Courts now deal with the maintenance of both Muslim and Hindu Communities but, no fixed criteria have been set up by law to ensure that payment is not delayed by the husband. Neither Shari Law nor the Muslim Family Laws Ordinance 1961 have made conducive the system for providing women maintenance rights at the time of divorce

In Hindu law the provision while obligatory on the part of the husband and his male relations is an act of charity rather than of a woman’s right. For maintenance under Hindu Law, as per Married Women Separate Residence and Maintenance Act, 1946 a man is bound to provide maintenance to his wife even if she is living apart out of fear of physical assault, or if he keeps a concubine, or is guilty of desertion, if he suffers from a virulent disease and lastly if he ceases to be Hindu and converts to another religion. But in reality the process to claim and obtain such benefits is best with social constraints’

Under Christian law the condition for entitlement over alimony that the wife has to be chaste is highly discriminatory. It suggests that if the court proves that wife is the adulterer she not only is subjected to penalty (including her partner in the adultery) but she also loses her right to alimony.

Further, the arbitrary sum (one fifth of the husband’s total income) as alimony often proves inadequate, peculiarly where the real income of the husband is concealed

The maintenance issue of the Buddhists and the tribal women is guided by their respective customary practices and usage where it is reported to be taken care of by the community itself

5.12 Child Custody: Custody of Children is one of the most gender-biased law easting on the premise that a woman does not have guardian status in the eyes of the law. By not giving a mother such inherent right of custody of her offspring she is treated as an incompetent human

being, secondary in the life of the child she has given birth to. It is a shocking and unethical lacuna in the law.

The Guardian and Wards Act of 1890 is not evenly implemented under the law and the welfare doctrine of the child is often not supreme in the judgment. The laws view a woman as less capable of providing financial benefits to the child denying a mother her natural and inherent role as progenitor of the child

Under the classical Hanafi position for the Muslims the general rules is that after divorce the mother is entitled to custody until age of 7 for males and puberty for females, subject to classical conditions, through there is some flexibility as ward’s best interests are considered paramount under terms of Guardians and Wards Act 1 89065 and the mother’s name must be included with father’s name in child’s documents.

For the Christians regarding guardianship, though the law sounds perfect in protecting the best interest of the child however, is discriminatory to the mother by denying her right to have the guardianship even if she proves eligible for that just because of the fact that it might conflict with the bringing up of the child with a faith other than the father’s. Among the tribal groups, their respective customary rules and practices protect adoption or child custody)

The Muslim law of Inheritance has prescribed definite share of man and woman and is governed by Sharia Law. For example a wife (or wives taken together) receives a share 1/4th if there is child and 1/4th if there is no child from the estate of her deceased husband, though a husband receives as share exactly double i.e. 1/4 and 1/2 under similar situations from the estate of his wife. A mother receives

from the estate of her son 1/6th as share when there is a child of her son or when there are two or more brothers or sisters or one brother and one sister of her son. On the other hand, a father receives from the estate of his son if 6 share if there is a child of his son, and in the absence of any child of his son he receives the entire residue after satisfying other shareholders’ claim. When is a son, a daughter receives 1/2 of a son, and in the absence (if a son, a daughter receives 1/2 share and if there are more than one daughter, they get 2/3rd of the estate of their father equally and the residue goes to the agnatic relations.

The concept of obligatory bequest in favour of orphaned grandchildren introduced by MELO 1961 allows for heirs through Sons and daughters to inherit the shares their fathers I mothers would have been entitled to had they not predeceased the grandparents, but the ordinance made no provision for the widows of such deceased sons.

In Hindu Law of inheritance in order priority, the heirs are son, grandson, great-grandson, widow daughter, daughter’s son, father, mother and so on. The doctrine of spiritual efficacy is the guiding principle of succession under Dayabhaga School. Only five classes of females are considered as spends who can normally inherit and that is, too, a life estate. The legal status of Hindu women was in worst condition. ‘After Hindu Women’s Rights to Property Act, 1937, a widow or more than one widow, all widows together shall take the same share as a son. The widow of a predeceased son shall inherit in like manner as a son if there is no survivor of such predeceased son and in like manner as a son’s son, if there is surviving son or son’s son of such predeceased son.

However, the disputes on inheritance or succession arise and cases are filed not on the

question of equal or unequal share but to realize the portion of the share, from the other successors.

Therefore, there should be legislative reforms to ensure that both the spouses enjoy equal rights from parents’ property as well as in matrimonial properties acquired during marriage.

But unlike Muslim or Hindus the Christian Women’s Inheritance Law is guided by the Succession Act, 1925. The Christian women can dispose of property by will. A Christian widow, in the absence of lineal descendant will, receive 1/2 of the deceased husband’s estate, and if there is lineal descendant, 1/3rd of the estate. The daughter receives equal share as that of a son.

A Christian woman is in a much better capacity in the case of inheritance than a woman of any other religion in Bangladesh. She is protected under two Acts simultaneously i.e. The Married Women’s Property Act, 1874 and the Succession Act, 1 925. The Buddhist wife or daughters do not inherit husband or father’s property unless father gives away some portion as gift. Only exception is the Marma Buddhist women who inherit some property.)

The succession system of the tribal community is broadly based on their respective custom and practices that is complex and denies completely or partially the woman’s right to inherit father or husband’s property

5.13 Polygamy: This is one area where women are the greatest sufferers and where men have a sanction to take all kinds of benefits and inflict untold cruelties on women.Despite, the introduction of new regulations on polygamy by the MFLO 1961, constraints placed on polygamy by requirement of application to the local Union Council for permission and notification of existing wife/wives; penal sanctions for contracting a polygamous marriage without prior permission, though there are no sanctions for failing to obtain existing wife’s permission and subsequent marriage is not invalidated for lack of registration or failure to obtain official permission, the husband’s contracting a polygamous marriage in contravention of legal procedures is sufficient grounds for first wife to obtain decree of dissolution. Further, according to Muslim Family Laws Ordinance 1961, a Muslim married man cannot marry a second time without permission of his first wife and the Arbitration Council. this is an erroneous law and leads to the first wife becoming either divorced or deprived of her marital rights. Because, if the second marriage remains valid and the first wife files a case against her husband, the husband usually divorces his first wife that leads the first wife in most cases to live a deserted and deprived life with much hardship and humiliation in the society.)

Polygamy is allowed for Hindu men but a woman can marry only once. Taking any number of wives is allowed for men, even permitting marrying with two sisters concurrently. The combination of polygamy with absence of recourse to divorce by either partner leads to prolonged discrimination and cruelty against the neglected wives.

Among the Buddhists though polygamy is not allowed for men, he can dissolve marriage if the wife is infertile or unfaithful. While polygamy is forbidden among Christians, the same is broadly in practice among different tribal group.

5.14 Challenges Inherent in Customary Law : One strong argument about the ‘codification of personal and customary laws” is that these imply laws relating to family affairs like

marriage, divorce, and maintenance etc. But the customary laws lack specific guidelines and hence the judgments of the community elite such as the Imam, Kazi, Puro hit, Matbor84 etc. vary from person to person even on similar cases. lt is equally applicable for the tribal communities where the judgments of the headmen vary from person to personThe opposing arguments are that as far as marriages are concerned, any Bangladeshi citizen is free to get married under the Special Marriage Act that removes many of the restraints under personal laws. Even those who make voice for Uniform Family Code (UFC) have not opted to undergo a marriage under this Special Act. Bangladesh being a country with different religions, cultures and tribes and myriad other social formations and affiliations, people prefer to stick to their own traditions and practices when it comes to their lives. People continue to marry from their own group.

The arguments that come from the Hindu community are that “to conserve the cohesion of Hindu society, the Hindu laws made allowances for customs and usage.” The imposition of uniformity would undermine Hindu social cohesion. Their strongest opposition is however about putting the inheritance/succession right of women under the umbrella of UFC as they believe it would encourage more Hindu women to convert to other religions and thus properties belong to Hindu community will be taken away. It also relates to the economic based ownership/possession of land and immovable property. So it is more than a legal issue to them.)

As regards the customary laws of the tribal community, the most difficult are those that come from within indigenous society itself. This is especially the case in the influence of customary social rules based upon oral traditions, ritual, and ceremony in the urban areas. To most indigenous youth, especially in the urban areas, many social rules have little value, leading to a growing number of runaway marriages between relations that are forbidden by customary law, Most urban indigenous people today do not observe the traditional rites and rituals with regard to ancestor worship, nature worship and similar matters. Similarly, many among them also do not scrupulously follow the traditional rituals concerning marriage ceremonies. This weakens traditional social ties and exposes the youths to cultural influences coming from outside and overshadows the practice of traditional indigenous culture.)

Due to its historic evolution Hindu, Buddhist along with Tribal laws are dependent on custom and usages. The absence of reformation in Hindu personal law in Bangladesh has perpetuated gender inequalities into the 2lstCentury. The time has come to change the decrepit condition according to the needs of society.

A Research Expriment has been conducted in the community of Dhanmondi. Among 100 people 90% are against of Uniform family code and the various chart of this study are given below:Reason Male % Femel % Total PercentageRealious Reason

40 70% 60 80% 100 90%

Legal Reason 30 60% 70 80% 100 90%

LOGICAL ARGUMENTSArguments in Favour: 6.1 It pinpoints the Loopholes in the main heads of Family Laws,

(a) Marriage(registration, right to divorce, denial of marital rights in case of polygamy, exploitation

under the system of Dower and Dowry etc.), (b) Divorce.(b) Maintenance, (d) Guardianship and Custody of Children (denying the ‘~ equal status of

a mother as Guardian etc.) (e) Inheritance (where a female is not entitled at all or to only fractional percentages of her male counterpart).

6.2 The study covers a chapter elaborating the tribal customary laws in Bangladesh and it’s strength, loopholes and tips taken by the tribal people themselves for possible reform and codification towards integrating into the Uniform Family Code.6.3 The study also includes legal case studies relating to marriage, divorce, maintenance, and custody of children and inheritance as laid down in personal laws and customary laws of different religious and tribal communities. It also sheds lights on and analyzes the issues not only from the legal perspective but also from social and gender perspectives.6.4 The analysis provides approaches to bring about changes and suggest Mechanisms that can be undertaken for short term or immediate legal reform as well as motivational awareness action programmers to establish Progressive attitudinal and behavioral patterns towards the status of woman in society.6.5 The critical lens of the present study also provides recommendations and analysis of the case for Reform, that no aspect of societal life, domestic or public, can be outside the law and that the law must uphold an absolute, unprejudiced and equal dispensation of justice to all its citizens. The recommendations are put forward not from a mere idealistic point of view but from a plausible and practical point of view. It asks for a Law of the Land, not of a community, in meting out equal treatment to both men and women within all communities, religions and beliefs.6.6 The Report looks towards the role of enlightened State governance which understands that no time is to be lost in launching all efforts to place 50% of its inhabitants, that is females, at par with the other half of the population that is males. It is the clarion call for taking the vital step in pragmatic policy legislation that will lead Bangladesh society into the twenty-first millennia, shoulder to shoulder with democratic and just nations.) 8

ARGUMENTS IN AGAINST:6.1 Marriage: under Hindu law is essentially a sacrament and not a contract. Hindu marriage is solemnized in accordance with the customary rites and ceremonies of either party thereto and where such rites and ceremonies include the Saptapadi, the marriage becomes complete and binding when the seventh step is taken. A Hindu wife regards the husband as a god. On the other hand, under Muslim law marriage is not a sacrament but a civil contract. A Muslim marriage is solemnized by proposal and acceptance in presence of two male or one male and two female witnesses. Dower is an essential ingredient of the Muslim marriage which is a sum of money the wife is entitled to receive from the husband as consideration of marriage. Christian Marriage is solemnized in accordance with the provisions of the Christian Marriage Act, 1872 and the rules, rites, ceremonies and customs of the Churches in Bangladesh. Marriage of the Buddhist is mostly arranged through consent of parents and the wedding is solemnized in the bridegroom’s house by pronouncing some religious and social mantras. The various tribal communities of our country are guided by their respective customs and traditions in respect of their marriage systems. The marriage systems of Muslims, Hindus, Christians, Buddhists and tribal communities of our country are quite different from each other. The differing marriage systems cannot be amalgamated in a Common Family Code.6.2 Divorce:- Divorce is unknown in Hindu law. In Hindu law marriage is regarded as an indissoluble union between husband and wife: So, neither party to a marriage can divorce the other. On the other hand, divorce is allowed in Muslim law. A Muslim husband may,

whenever he wishes, divorce his wife without assigning any cause. The wife may divorce her husband only when such power of divorce is delegated to her by her husband. The Muslim Family Laws Ordinance, 1961 has, however, provided for a notice to be given to the Chairman of a local Government after the pronouncement of talak of a Muslim wife and the divorce will be effective after the expiry of ninety days from the date of notice. The divorce is allowed in Christian community according to the provisions of Divorce Act, 1869. So, differing divorce systems cannot be amalgamated under a Common Family Code.

6.3 Guardianship: In Muslim law a father, if alive, is the natural and legal Guardian of the person and property of his minor child. In Hindu law father is the natural guardian of his children. The matter of Guardianship is also governed by the provisions of Guardian and Wards Act, 1890, which is applicable to all citizens.6.4 Inheritance.- The Muslim law of Inheritance is also a Quranic law prescribing specific share for each individual nearest relations including female heirs in the property left by a deceased person. The distribution of property of a deceased Muslim person is made according to the principle that within the limits of each class of heirs, the nearer in degree excludes the more remote. On the other hand, in Hindu Law there are two systems in the matter of inheritance. These are (1) Mitakshara system and (11) Dayabhaga system. The Dayabhaga school of law governs the system of inheritance for Hindus in Bangladesh. The Hindu women get only life interest in the property. In respect of stridhan (women’s property) a Hindu woman can deal with her property in any way she likes. On the other hand, the Succession Act of 1925 governs the matters of inheritance in the case of the Christians. Thus, the inheritance systems of Muslims, Hindus and Christians are different from each other. So, these differing inheritance systems cannot be amalgamated in a Common Family Code.The personal laws of marriage, divorce, guardianship, maintenance, inheritance etc. of all the communities including the tribal communities of Bangladesh are different from each other in nature and in their manners of application. All these religious or personal laws are based on religious injunctions, faith and beliefs. More so, the personal laws of all communities are sensitive, complex and of diverse origin. It is impossible to bring uniformity in these differing laws by way of modification or reforms for purposes of incorporation in a Common Family Code. Any such attempt is likely to cause injury to the religious sentiment, faith and beliefs of the people of the country. The law comirrin support and rerealrl the same falt that

In view of this discussions above, our opinion is that there cannot be any Common Family Code for all the communities in our country as proposed by a few persons only1which does not reflect the wish or opinion of all the people of the country.

A Research Expriment has been conducted in the community of Dhanmondi. Among 100 people 90% are against of Uniform family code and the various chart of this study are given below :

RECOMENDATION

The plea for a common and unified family code therefore is no far-fetched, utopian idea. It is

very much in the works. The first step therefore should come from a two-pronged approach. One of legislation that will the supplement personal laws by firm footing of gender equal status’ implying that women are equal in all spheres, both private and public. Secondly, a nation-wide plan to enforce rules and regulations that supervise and implement empowerment programmers for women in education, employment legal and health sectors.

Above all the civic society, professionals, educationists, industrialist’s development workers and religious jurists and scholars should reflect their views in support of gender equality in all spheres of state and public life.

A number of recommendations in both systemic and generic terms are given below and the Matrix titled “Proposed Reforms in the Marriage System and Inheritance laws for women of all communities in Bangladesh” is also enclosed herewith.

7. A.Proposed Policy Reforms1. There should be a National Policy Agenda to address the dichotomy between personal laws and civil laws, under various statutes. It is suggested that the Law Ministry with the National Commission on Beijing Plus and other relevant bodies form a National Commission to frame the methodology for amendments and reform in Family Laws to achieve uniformity in legislation covering all communities.2. Bangladesh being a signatory member to CEDAW and other UN Charters on the issue of gender equality and rights of women, it has conceded to a legal obligation to adopt a policy and make laws in the line of directives I resolutions of CEDAW without any reservation. Action should be taken.3.The practice of citing women in a category with “children and backward communities” must be removed from the Constitution. Women should be referred to along with men in all development projections and plans and there should be an honest and benefice attempt to remove such provisions, if any, in any legal instrument.4. Scrutiny of the Family and Customary Laws on Inheritance Guardianship, Marriage and Divorce requires review and amendment in the context of present day society. The Law Ministry is the competent authority to bring about bold and pragmatic legislation in Uniform Family Laws so as to provide implementation and enforcement of such legal instruments, which endorse both the constitutional provisions as well as commitments to International Laws affecting women.

5.(a) Establish policy for nationwide training of police, Investigation personnel, lawyers, judges / Marriage Registrars, mosque imams and Qazis and village leaders on the issue of women’s status as human beings. In view of the unequal existing social situation this program will need special tools and instruments to motivate the mass of uninformed people regarding the treatment of women as partners in national development.5. (b)State Policy regarding Gender Education curricula must be undertaken and inserted in the primary school textbook’s representing the girl child and women at par with men. The Text Book Board will be responsible to ensure implementation.5. (c)Policy on motivational Programs in educational institutions for Consciousness Raising of both females and males that they are partners and must share equal responsibilities in nation building. The concept of Economic dependency of women on men should be eliminated through continuous and consistent publicity, emphasizing equal roles.5. (d) Policy Reform on gender education in schools, colleges and universities as a compulsory subject with additional marks should be established. It is suggested that gender education as a subject be introduced from Class V up to class Xli.

5.(e) Corporations, private sectors and business institutions employing women must be supervised and monitored by specified authorities for Gender Education and Sensitization programmers at all levels under specific curricula for all personnel and employees, as part of the national development plan with concrete directives and feedback mechanisms.

7.B: Proposed Legislative Reforms1. The Birth Registration Act, Child Marriage Restraint Act, need revise. and reform to provide redress to women and girl children. Experts in the Law Ministry are the competent authority to do so with immediacy.2. The Laws on inheritance, Guardianship, Marriage and Divorce of all communities should be reviewed and examined to find out the possibility of a Uniform Family Code in the context of the changes and developments of the present day.3. The registration of marriage for all communities must be completed within 15 days of the solemnization of the marriage.4. Witness: A witness in all marriages shall be an adult person of sound mind, and education.5. Dower: Should be thoroughly examined as it tends to promote the subjugation of women, defying the basic implied concept of honor and protection given to a wife. The provision may be kept as optional in marriage.6. Divorce: The grounds and procedure for divorce should be treated as same for all communities. There should be a common law guaranteeing men and women equal right to divorce or dissolution of marriage with provision for mutual settlement Arbitrate ion or through Court. The grounds for divorce must also be same for both husband and wife.7. Maintenance: The Law or Court Maintenance needs to be examined, reformed and strengthened to fulfill its purpose as an obligation of the husband to maintain the wife and children. Non-payment of Maintenance should be declared a serious offence with severe punitive action. There should be legislation to provide post divorce maintenance to a wife so as to protect her from poverty and starvation. Non-payment of maintenance should be declared a punishable offence and maintenance must be paid within a specified time after the divorce / separation, so as to ensure that the wife is not deprived of her dues.8. Dowry: Full implementation of the Dowry Prohibition Act and Laws on Prevention of Violence against Women must strictly be ensured. Punitive and exemplary punishment is essential to be taken by the Social Welfare Officials at the local government level in case of violation of this law.Authority to take action may be given to a similar body as a Mobile Court, so as ensure summary trail and punishment.9. Polygamy: Laws on Polygamy should be examined and reviewed so as to ensure justice to women and social harmony. Polygamy may be banned with introduction of National Security, National Assistance and specific rules on Post Divorce Maintenance for the poor and divorced wives.10. Inheritance and Right to Property: Inheritance laws require reform to bring women at par with men under inheritance rights. Both son and daughter must get equal rights to inheritance under the law. Bold and pragmatic legal steps must be taken to remove one of the most outrageous systems that currently deny a female her equal share of parental assets.

11. The Law on Child Marriage Restraint Act 1929 should be examined and reviewed. For proper implementation of the Child Marriage Restraint Act 1929, any such marriage should not only be punishable by law but such marriage should be declared as illegal and unlawful.

7.C: Proposed Administrative Reforms1. There must be a procedure of transparency and accountability of law enforcing agencies at

all levels dealing with offences against women and children. 2. The procedure and form for Registration of Marriages should be similar! same for all communities. 3. There should be a Monitoring system to oversee the functioning of the Arbitration Council dealing with Divorce proceedings to prevent fraud, deceit and mala fide actions by the spouses or the Council. 4. The Laws on Women and Children Repression Act under Nari Nirjatan Daman Ain 2000 and 2003 which deal with crimes of rape, acid burns, trafficking and sexual harassment / abuse should be properly, speedily and impartially implemented by the law enforcing agencies.5. To establish controlling regulations for Visual Media and Advertisements so as to prevent showing women as a saleable commodity, lowering the status of women or exploiting her gender.6. Mass awareness campaigns informing people about the laws and punishments for breaking laws should be carried out through both electronic Media and print media.7. Victim and witness protection services have to be more effective.

CONCLUSIONThe objective of the Study has been to highlight realities on the ground in the area of Marriage, Divorce Inheritance and laws affecting women and children. An underlying aspect in analyzing the issues has been a focus on the fact that legislation in the context of 21st century Bangladesh rests on the removal of unequal factors in social life, which deny women their human rights and status. As a consequence, national development is cut at the roots.Our argument is for a strong political will on the part of the State, to implement such legislation that will, with immediacy, provide the necessary instruments and tools for Bangladesh society to change. The existing constraints, both systemic and legal, are holding society hostage to negative forces that oppose Total human development. These are the sectors of entrenched ConservatismThe implementation of Legislative Reforms is the key to carrying forward the nation’s development, prosperity and wealth. The socio economic impact of legislative reforms will be visible in all areas of life, as women, freed from gender discrimination, become actors and stakeholders in all and any sector of the nation’s life.

Patriarchy is often stated as being a major constraint to socioeconomic progress in Bangladesh. It is the responsibility of the State to dismantle the super structure of patriarchy that exists in overt and covert layers in the fabric of society. The women’s movement over the past fifty years in the subcontinent, has struggled to overcome various forms of unequal treatment, discriminatory attitudes based on the view that women are weak and incapable of equal participation, and most of all, patriarchy’s control over religion as a male power base. The day has arrived when bold and balanced sociopolitical decisions based on justice and equity for all should become the norm of national life.

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