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Thursday, July 9, 2015, Ashar 25, 1422 BS, Ramadan 21, 1436 Hijr

Family Law
Personal laws in Bangladesh: require enactment and amendment
Md. Sifudin Hossain
Published :Thursday, 9 July, 2015,  Time : 12:00 AM  View Count : 11

Bangladesh is a pluralistic society with four major religious communities -Muslims, Hindus, and Christians as well as a number of ethnic minority communities who follow these or other religious-cultural practices. The constitution of Bangladesh guarantees freedom of religion to all citizens of the country and allows each religious community the freedom to live according to the separate personal laws that have governed their communities since much before the partition of the Indian sub continent. The Hindus constitute the largest minority group in Bangladesh. The Buddhist community also follows the Hindu personal family laws. But unfortunately the personal law relating to Hindus and Christian in Bangladesh remain unchanged since 1947.
Here I will show some anomalies existing in our religious laws.  Marriage under Hindu law in Bangladesh is a sacrament which considered indissoluble union but it turns as civil contract in India by Hindu marriage act 1955. A Hindu woman in Bangladesh cannot claim divorce at Family court but a Muslim woman can claim divorce by Dissolution of Muslim marriages act 1939. Polygamy under Hindu law in India is prohibited but in Bangladesh a Hindu man can marry unlimited while a Muslim man can marry up to four wives subject to equal maintenance and treatment which also requires permission from arbitration council. But there is no such provision under Hindu personal laws in Bangladeshi case of misconduct a Hindu woman can claim only separation under Hindu woman rights to separate residence and maintenance act 1946 but in India can claim divorce while a Muslim woman may claim divorce in Bangladesh on the same ground.
Under Christian personal law in Bangladesh the divorce by a woman is so complex. If a woman wants to divorce, she can file a petition in a District court or High court division of Supreme Court. Even if district court permits, it needs the confirmation from high court but not before 6 months. So how is it possible to get remedy from high court if a woman from rural areas? There is no mutual divorce provision under Hindu and Christian personal laws in Bangladesh. But in India changes has made in this regard by the India divorce (amendment) Act of 2001. So in India mutual divorce option is now open for all religion people. On the other hand, pure sharia law recognizes Mubara /mutual divorce for Muslim which is also recognized by statutory law of Bangladesh. In case marriage registration, there is also anomaly. In Bangladesh registration of Muslim marriage is mandatory by Muslim marriage and Divorce Registration Act 1974. But there was no act for Hindu community in this regard before 2012. Though now there is an Act for Hindus but it is optional. So there is chance of arising of problem to prove marriage if any of parties of marriage disavowed marriage. But in India it made compulsory by Hindu marriage Act 1955 and penal provision is also provided by that Act.
Child marriage is very common in Bangladesh. Under personal religious laws, it is not prohibited but it punishable by statutory law of the land. In Bangladesh Child marriage Restraint Act 1929 is applicable for all religion people. By this Act age determine for male 21 and female 18 years for marriage. Under Muslim personal laws here is option of puberty by Dissolution of Muslim marriage Act 1939. So a Muslim girl marriage before 18, she has option to divorce before 19. But there is no option of puberty under Hindu law in Bangladesh. In India, option of puberty is also recognize for Hindus. In case of Adoption, there is also some discriminatory provision against women in Bangladesh. In Bangladesh, only male persons can adopt. Women have no right to adopt for themselves. She has right to adopt with the consent of her husband not for herself but for her husband.
Inter caste marriage and adoption under Hindu Law is prohibited in Bangladesh, which clearly violates article 28(2) of the constitution of Bangladesh. So now question arises, how to solve the problem. There are demands from different sections especially from different women right based organizations that uniform family law for all religion.
 But there is no provision under the constitution in Bangladesh for establishing uniform family law where article 44 of Indian constitution provides provision for uniform family law. Bangladesh law commission did not accept those proposals in different times. Though it is not possible to establish uniform family law in Bangladesh considering religious and social views But the government of Bangladesh should take initiative for establishing new laws for Hindus and other ethnic communities as per requirements where obligatory marriage registration, monogamy, compulsory divorce registration, allowing all communities to formally adopt and removal gender discriminates for adoption, doctrine of representation for Hindus, Hindu women rights to property should be given priority.

The writer is an LL.M. student, University of Dhaka

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