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Women’s right in the periphery of country’s constitution & family law

Published : Saturday, 23 October, 2021 at 12:00 AM  Count : 429

Women’s right in the periphery of country’s constitution & family law

Women’s right in the periphery of country’s constitution & family law

The constitution of Bangladesh declares equal rights for men and women in all spheres of public life. The word 'public' seems to be a major weapon for solving the riddle. It is only in case of state and public life that equality is guaranteed by the Constitution. In the private or personal sphere, women are pretty much unique on their own. In most families of our society, it is seen that women continue to be treated as inferior human being by their male counterparts.
By the way, trying to understand the dichotomy of public and private spheres of our legal system is like squirming around in quicksand- "the more you want to get out the deeper you get stuck in the muck". According to Faustina Pereira, a Supreme Court lawyer and author of the book 'Fractured Scales' that deals with this very issue, the legal system of Bangladesh is categorized into two distinct branches. One is Constitutional Law and the other is General Law or those that are not directly governed by the Constitution. The Constitution being the supreme law of the land demands that any law inconsistent with its provisions is void. Thus laws considered under the General Law must technically confirm to the constitution. But if we try to get a firm grip on what 'General Law' consists of, it becomes clear why so many women prefer to silence rather than seek legal help.
Women's rights under the family laws of Bangladesh: The General Law consists of civil and criminal laws, which are governed respectively by the Code of Civil Procedure of 1908, the Penal Code of 1860 and the Criminal Procedure Code of 1898. The Personal or Family Laws are under the General Law but mostly are governed by the civil law: the matters which directly affect women such as marriage, divorce, dower, maintenance, guardianship, custody, inheritance and restitution of conjugal rights are separately governed by each religious community's "religious personal law" system. For example, take marriage. Muslim parties, says Pereira, are regulated by, among others, the Muslim Family Ordinance 1961 or the Muslim Marriages and Divorce (Registration) Act 1974. Hindu parties are regulated by (among others) the Hindu Marriages Disabilities Removal Act 1946 or the Hindu Widow's Remarriage Act 1856. Christian parties to marriage meanwhile, come under the Christian Marriage Act 1872.
The existence of separate laws for each community means that the kind of justice meted out to a woman is determined by the religious community she belongs to. Most of these laws are antiquated and originated from patriarchal mindsets and therefore do little to change the status of women from helpless, inferior citizens.
Women's rights under the constitution: Expectedly, some of the articles in the Constitution are patronizing towards women. Article 28 (1) states: The State shall not discriminate against any citizens on the grounds of religion, race, cast, sex or place of birth. But then Article 28 (4) states: Nothing in this article shall prevent the State from making special provisions in favor of women and children or for the advancement of any backward section of citizens. In "The Fractured Scales" by 'Faustina Pereira, She said, Lumping women with 'any backward section of the citizens', prejudicially protective, paternalistic attitude. The language of the law, all law, till now, has been the language of patriarchs.
* Article 7 of the Constitution declares that any existing law of the state which is inconsistent with any provision of the Constitution shall be void.
* Articles 27, 28 and 29 of the Constitution declare the principles of non discrimination.
* As per Articles 36, 39 and 65 of the Constitution, a woman has the right to seek nomination and contest for any political opposition.
* Article 28 (2) of the Constitution states that women shall have equal rights with men in all spheres of STATE and PUBLIC life.
The most salient feature of our Constitution is the positive discrimination part which solely works on behalf of women's advancements and rights.

Khairul Islam Taj, Author & Chamber Lawyer, The Legal Remedy, Dhaka



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