Marital Rights of Hindu Women in Bangladesh: Tale of Never-Ending Struggle
Bangladesh was the first officially secular republic in South Asia, declaring itself to be a secular state in 1972. It was the first and only Muslim-majority country in the region to write a constitution that included secularism. Even though the Constitution guarantees equal rights to all citizens, Hindus, who make up the second-largest religious group, face discrimination in a variety of ways. If a woman practices Hinduism, she is unquestionably in a precarious position, especially when it comes to obtaining marital rights. Although most domestic laws apply to all of its citizens regardless of race, religion, or culture, the state maintains that when it comes to marriage, divorce, inheritance, or any other comparable private or family concern, one should follow the personal laws of their own religion. In terms of family or personal matters, there is a lack of a standard legal framework in Bangladesh. Therefore, that is where the discrepancy begins. Muslim family rules, on the other hand, have been altered for the benefit of Muslim women but no such initiative has been taken for Hindu women so far.
Background of Hindu Law
Roughly 12% of the population in Bangladesh practices Hinduism and they rely on their own laws for marital rights. Bangladesh lacks a well-established legal system for dealing with family or personal issues: divorce, marriage, maintenance, custody, adoption, and other cases are governed by Hindu law for Hindu women. In the case of other religions, the same rule applies. For instance, the Dayabhaga school of Hinduism is followed by Hindus in Bangladesh. “Hindu law is believed to be a part of the Dharma, and the Dharmashastras are considered to be the source of Hindu law. Similarly, the Vedas are divinely inspired texts that were passed down through the generations until they were gathered and written down.
In stark contrast to Islamic law, this revelation does not come from a known God to his Prophet, but rather from an unknown God or great power. The Code of Manu is regarded as the most authoritative. “The father protects the woman in childhood, the husband protects her in her youth, the children protect her in old age” according to the Code of Manu. In short, Hindu women should never be independent and as a result, Hindu women are not treated on an equal footing with Hindu males (Huda, 1998).
Hindu law, as applied by British-Indian courts, was a blend of Shastri law, custom, and case law, with elements from English legal principles and notions, reduced and standardized for simplicity of application and administrative convenience.
Marriage in Hindu Law
The institution of marriage is immensely significant to Hindus and Muslims alike. For women in both religions, socio-cultural and theological factors bolster the importance of marriage. Single women are not socially acceptable, regardless of faith. Muslim marriages are basic arrangements that just involve an offer and acceptance in the presence of two witnesses. It is a civil contract with religious connotations. A Hindu marriage, unlike a Muslim marriage, is a religious sacrament, and particular procedures are required for the marriage to be legitimate.
In the case of Amulya Chandra vs The State, 1983 (35 DLR 160), the Court decided that “There are two requirements for a lawful Hindu marriage. First, make an invocation in front of the sacred fire. Second, the bride and groom take Saptapadi, or the seven steps, in front of the sacred fire. When the seventh step is taken, the marriage is complete and binding”.
The Hindu Dharma Shastra lists marriage as one of the ten sacraments. It states that through marriage, husband and wife commit themselves to perform religious duties as well as spiritual benefits. According to Hinduism’s traditional beliefs, a person can enter paradise if he or she is blessed with a son and bearing a child is only possible through marriage.
Registration of Hindu Marriage
In terms of registration, while Bangladeshi law allows for the mandatory registration of Muslim weddings through flawed legal systems, there are no such provisions for Hindu marriages. Many Hindu women had no acknowledgement of marriage because there was no comprehensive marriage registration statute before the enactment of The Hindu Marriage Registration Act of 2012 (Staff Correspondent, 2016). In fact, Hindu marriages used to be without marriage certificates, making it challenging to establish the bond legally in Bangladesh (Tribune Desk, 2020).
Section 3 of The Hindu Marriage Registration Rules of 2013 specifies that the marriage shall be regarded lawful even if it is not registered. Every married person needs proof of marriage and in case of an unregistered marriage, a woman’s marital status is not recognized. Since there are no legal constraints or protections in place, violence and discrimination against Hindu women occur in Bangladesh.
Divorce under Hindu Law
Marriage, according to Hindu scriptures, is a lifelong commitment, even death will not be able to break the relationship. Divorce is not permitted in Hinduism because it places a high priority on marriage. The Dayabhaga School has no tradition or procedure for dissolution and it is followed by Hindus in Bangladesh. Hence, they cannot seek a divorce even if they want one due to the lack of any custom of dissolution of marriage or any scriptural provision in the Dayabhaga School, as well as the lack of any such act governing divorce in Bangladesh (Datta, 2020).
For the Muslim community seeking a divorce, there is the Dissolution of Muslim Marriage Act of 1939, while for the Christian community living in Bangladesh, there is the Divorce Act of 1869. However, it is regrettable that little attention has been paid to Hindu personal law reform in Bangladesh. There is no legislation on divorce for Hindu spouses because so many years have gone by since independence. The Hindu Married Women’s Right to Separate Residence and Maintenance Act of 1946 was fortunately enacted during the British period. In certain situations, it allows Hindu married women to demand separate residency and alimony from their husbands. Otherwise, Hindu women in this country would not be able to exercise these rights.
The struggle of Hindu Women due to Hindu Personal Laws
Since the registration of Hindu marriage is not mandatory in Bangladesh, this opens the door to violence against women. Polygamy and underage marriages were identified to be the most common causes of domestic violence during the BRAC Institute for Governance and Development (BIGD) field study in Cox’s Bazar (Aktar, 2021). Men can marry as many times as they desire without bearing any responsibility for their wives and children if marriage registration is not required. Child marriage is encouraged by the prevalence and social acceptance of unregistered weddings (Aktar, 2021). Domestic violence perpetrated by a woman’s husband has been identified as a severe problem in Bangladesh. According to a study by Khanom (1999), 46.48 percent of domestic violence is perpetrated by spouses. Since domestic abuse is often seen as a personal or family affair, women who have experienced and coped with its consequences go unreported (Khatun, 2021).
The Court held, in the case of Pachan Rissi Das vs Khuku Rani Dasi and others, 1998 (50 DLR 47), that “Every citizen of our nation, irrespective of all religious beliefs, could sue in the family court according to their different religious provisions”. However, since divorce and dower are not accepted in Hindu religion, it does not apply to them. Domestic violence, underage marriage, poor social and economic position for Hindu women in Bangladesh result from the lack of divorce rights and voluntary registration of marriage under Hindu law.
Due to the non-registration of Hindu married women, existing legislation such as Nari O Shishu Nirjatan Daman Ain of 2020, and the Domestic Violence Prevention and Protection Act of 2010, are insufficient to protect them.
Reasons behind the Struggle of Hindu women in Bangladesh
In Bangladesh, Hindu women suffer because of ancient shastras law and a lack of a universal family code. The lack of implementation of such a Code could be due to the potentially detrimental influence on Muslim religious emotions, the risk of losing votes, and significant resistance from religion-based political groups.
In 1984, the government of Bangladesh approved the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) with four objections. Even though the Convention provides a comprehensive range of mechanisms and policy measures for combating gender discrimination, Bangladesh has not ratified entirely and has reservations to Articles 2 and 16 (c) because they are in direct conflict with Shariah and Hindu personal laws. Article 16 (1) (c) of the convention provides for equal rights for women and men in marriage and the dissolution of marriage.
The situation is aggravated by the fact that while the Constitution guarantees equal rights for men and women in public life, it does not address private life. As a result, while asserting their marital rights, Hindu women continue to face discrimination under religious personal laws.
Bangladesh should take concrete steps to remove reservations to CEDAW Articles 2 and 16 (1) (c). Several non-governmental organizations (NGOs) have engaged in various lobbying and advocacy efforts to persuade the government to remove reservations to Article 16(1)(c) and Article 2 of the CEDAW. For instance, Bangladesh Legal Aid and Services Trust (BLAST) has held five regional seminars on CEDAW, with active involvement from justice sector service providers, the media, and local government representatives from nineteen districts across Bangladesh.
All marriages should be obliged to be registered, whether civil or religious, and a single registration form should be used for all. The Hindu Marriage Registration Act should be abolished, as revised in September 2013. Domestic violence against women, particularly Hindu women, will decrease as a consequence.
Both men and women should have equal rights when it comes to divorce or dissolution of marriage. To make it simpler for both spouses to remarry after a divorce, enabling legislation should be in place. For example, the Hindu Marriage Act of 1955 was passed by the Indian government and applies to the Hindu community in India. The most significant section of the Act is Section 13, which deals with divorce. Under Section 13(1) of that Act, a husband and wife can divorce each other without the intervention of a court. In addition, in Nepal, a Hindu colonial country, divorce is controlled by separate laws (Hossain, 2020). As a result, Hindus in India and Nepal can seek divorce under their own nations’ laws. Bangladesh will be able to achieve progress as a result of this. Therefore, Bangladesh can make divorce provisions in Hindu law that are equivalent to those in India and Nepal.
Bangladesh has been independent for 52 years and during this period, the people of Bangladesh were required by the Constitution to construct and distribute rights of equality before the law and the right to legal protection to all people, regardless of gender, race, or religion. Regrettably, Hindu women do not have access to marital rights such as divorce and marriage registration and as a result, they are in excruciating pain. Consequently, the government of Bangladesh should take meaningful actions to remove objections to CEDAW Articles 2 and 16 (1) (c). Hindu marriages should be required to be registered, and Hindu women should have the right to divorce. By doing so, we can hope that Hindu women’s marriage rights struggles will come to an end.
Aktar,Taslima.”Unregistered marriage and violence against women” The Daily Star, 2021, March 10. https://www.thedailystar.net/opinion/news/unregistered-marriage-and-violence-against-women-2057721
Amulya Chandra vs The State. The Supreme Court of Bangladesh. 1983. 35 DLR, 160. Print.
Datta,Avi. “Divorce under Existing Hindu Laws in Bangladesh: Is it Possible?” NILS Bangladesh, 2020, June 29. https://nilsbangladesh.org/divorce-under-existing-hindu-laws-in-bangladesh-is-it-possible/
Hossain, Mohammad Eshtiaque. “A comparative study on the Condition of Marital Rights of Women of the Hindu Community in Bangladesh and India: In Hindu Law Perspective” NILS Bangladesh, 2020, February 25.
Huda,Shahnaz..”Double Trouble: Hindu Women in Bangladesh-A Comparative Study” The Dhaka University Studies, Vol. 9, no.1,1998, pp. 111-133.
Khanom,Anam , “A World Free of Violence against Women”, United Nations Inter-Agency Global Video Conference, 1999 March 8 http://www.unifem.org/gender_issues/violence_against_women/facts_figures.php
Khatun,Taslima and Rahman, Khandaker Farzana. “Domestic violence against women in Bangladesh: Analysis from a socio-legal perspective.” Bangladesh e-journal of Sociology, Vol 9, no 2, 2012, pp. 19-29.
Pachan Rissi Das vs Khuku Rani Dasi and others. The Supreme Court of Bangladesh. 1998. 50 DLR, 47. Print.
Staff correspondent, “Mandatory registration for Hindu marriage must” The Daily Star, 2016 March 5 https://www.thedailystar.net/city/mandatory-hindu-marriage-reg-must-ensure-rights-786565
Tribune Desk, “Hindu Marriage Registration Act: A protective shield for women” Dhaka Tribune, 2020 February 1