It's time to ensure Hindu women’s legal rights in Bangladesh

Photo: Collected

Inequality for women in Bangladesh is more of a social issue than a legal one. With the exception of personal matters, inequalities in the implementation of the law are hardly ever noticed. Hindu law, which is the oldest law in existence, greatly varies, adapts, or changes. With the exception of fundamental instruments, different schools have varied ways of explaining them. 

Bangladesh is dedicated to establishing equality on the basis of gender, caste and other factors as a signatory to a number of international agreements. In addition to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), unquestionably the most significant international treaty pertaining to women, Bangladesh is a party to a number of other agreements that uphold the ideal of gender equality, including the International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR). 

Bangladesh has reservations about some provisions in each of the above treaties. Bangladesh opposed CEDAW Articles 2 and 16(1) (c). If the preceding is interpreted grammatically, it is possible that it would not be inaccurate to suggest that even if the rules of other communities are taken into consideration, Article 2 will still be obligatory.

Bangladesh has a reservation to Article 16 (1) (c) which requires the state to provide "the same rights and duties throughout marriage and at the moment of its dissolution." Bangladesh hasn't adopted it but supports the rest of Article 16. Article 16 requires state parties to end all marital and family discrimination against women. These include Article 16 (1) (b), which addresses the issue of free and full consent to marriage; Article 16 (1) (d), which addresses the issue of having the same rights and responsibilities as parents; and Article 16 (1) (f), regarding which Bangladesh had reservations in the past and later removed. 

The Convention on the Rights of the Child has these provisions. Bangladesh must also take all appropriate measures under CEDAW Article 5(a). Bangladesh disputes ICESCR Articles 2 and 3. These articles concern implementing the accord. State parties must "ensure the equal right of men and women to the enjoyment of the economic, social, and cultural rights set forth in the present Covenant," under Article 3. In the case of the ICCPR, Bangladesh has not denied the provisions of Article 23 even though it has expressed reservations about a number of the articles which are as follows:

• Society and the state must defend the family - society's most natural and fundamental social unit.
• The ability of people of legal marriageable age to wed and have families should be recognised as a fundamental human right.
• There shall be no marriage entered into without the free and complete agreement of both of the individuals who desire to wed.
• States this Covenant requires the parties to ensure the equality of rights and duties of spouses during and after marriage. If the marriage ends, the children will be protected.
• When considering the situation vis-a-vis the caste sytem, even the Sreemadvagabad Geeta, the sacred religious book of the Hindu people, it is mentioned that the Caste system will be based on his/her ability and virtue, and not by birth.  

According to the Parashara Sanghita, a Hindu Woman can marry a second time and the first marriage will be dissolved on five grounds. However, the Law Commission did not codify those grounds in line with the Shastra. Unlike the marriage registration process, the concerned authorities remain silent regarding the divorce registration process. In considering the present circumstances, it needs to adopt a divorce registration policy. 

Bangladeshi Hindu law prohibits divorce. Hindu law in Bangladesh forbids divorce unless local tradition allows it, which might be difficult to prove. On the other hand, the Parashara Sanghita allows it providing that "Another husband is ordained for women in five troubles." 

These are: If the husband is unheard of, dead, has adopted a religious order, is impotent and lastly becomes out-casted.

A Hindu woman in Bangladesh has the right to claim separate residence and maintenance if she satisfies certain criteria, many of which are similar to those outlined in the Act of 1946.

Even the sacred Veda does not discriminate against adoption for both males and females. It says that "the parents give birth to children; son & daughter. One for the filial rites and duties for themselves & family; the other as beneficiary of the sanctities and accomplishments.

In Bangladeshi law, which is largely un-codified, women, regardless of whether they are daughters or widows (or widows when there are many surviving spouses), continue to have limited estate rights, sometimes known as restricted inheritance rights. But Vedic Shastriya law says that women as well as daughters also have the right to inherit property. 

According to Manu Smriti, chapter 9, verse 131; a female can get Stridhan in six ways. These are Adhyagni, Adhyabahonic, Priti-karma, from her father, her mother and lastly her brother.

A verse of Yagnavalkya Smriti mentions that after the death of the husband, the widow will get an equal share as the son. For instance, if a deceased has three sons then the property will be distributed into four parts. The sons will get three portions and the mother/widow will get one portion.

In Bangladesh, a girl is not eligible for an inheritance if there is a male in the family. Only in the event that there are no sons and only in the event that there is a widow or widows does the daughter inherit.

If the daughter is unmarried and if she stays in ancestry (father's house) then she will not be deprived of getting property. According to Manu Sanghita, the brother will be bound to give one-fourth of the whole property. If the deceased leaves behind a widow, then the brother and unmarried sister will get an equal share.

But Bangladesh still applies the British-made law with a few exceptions, namely; Hindu Marriage Registration Act, 2012. Narad Smriti mentions that if there is any conflict or dissimilarities between the verses of Smriti shastra then it can be sorted out through logical arguments and discussion.

In these circumstances, the Law Commission proposed new rules and regulations in 2006 but was unable to implement them. Since Bangladesh is a dualist country, any law enacted should adhere to international obligations. The concerned authority should codify new rules and regulations with proper references to Vedic Shastriya Law, while keeping in mind international obligations. 

Sketch: TBS

Kanak Kanti Karmakar is a Legal Researcher and Apprentice Lawyer.

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.