LEGAL RIGHTS AND GENDER EQUITY
Monday, December 10, 2007, 2:19 PM
A paper presented at the CIRDAP-British Council Regional Workshop on "Towards Gender Equity; Poverty, Rights and Participation" Dhaka, 15-19 February, 1998
Sigma Huda, Advocate Supreme Court of Bangladesh
Member, Bangladesh Bar Council, Secretary General, Bangladesh
Society for the Enforcement of Human Rights.
Before we begin a discussion on the given topic, we must identify Rights as they relate to Human Rights, Legal Rights and Gender Rights. To do so let us see what is a right? Right in simple word is a liberty of doing or possessing something consistently or inconsistently with the law. Rights can formally be divided into two categories:
i. Human Rights; and
ii. Legal Rights.
Human rights are called the rights of man or natural rights and represent an idea that now has world wide acceptance as rights that are inherent in human persons and without which they cannot live as human beings. They are the rights which all individuals ought to have solely by virtue of their birth and humanity. Rights come with birth to which every person is entitled simply because he or she is a human. These rights are applicable to people throughout the world irrespective of their race, colour, sex, language, political or other opinion, nationality, birth or other status and as such, termed universal rights. Human Rights and fundamental freedoms allow us to develop and use our human qualities, our intelligence, our talents and our conscience and to satisfy our spiritual and other needs. They are based on mankind's increasing demand for a life in which inherent dignity and worth of each human being will receive respect and protection. (Justice Kemaluddin Hossain: The International Bill of Human Rights and Bangladesh).
On the other hand legal rights are those rights which are enforceable by law e.g. right to vote, right to security, right to own and possess property, right to life, right to be elected, right to be employed etc.
The term legal right is defined in the Legal and Commercial Dictionary as follows: -
"Legal right is a difficult concept. Legal right in its strict sense is one which is an assertable claim enforceable before courts and administrative agencies. In its wider sense, a legal rights has to be understood as any advantage or benefit conferred upon a person by a rule of law. A legal right is a capacity of asserting a secured interest rather than a claim that could be asserted in the courts."
In general, fundamental rights covered by the constitution will be included in the definition of legal rights. But in addition to fundamental rights, there are also civil and political rights protected by the different laws of a State.
We shall however confine my paper on legal rights as distinct from human rights in relation to gender equity.
Since the workshop is on gender equity, let us see what we understand by gender equity. The Bangladesh Constitution has in its very preamble stated in Para 3 that".................further pledging that it shall be a fundamental aim of the State to realise through the democratic process a socialist society, free from exploitation-a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens". This preamble is common to most constitutions of the region. Despite this, we have seen that traditionally jurisprudence is created by patriarchal standards, rules and processes. Prevailing practices of social and religious conduct obstruct gender socialization and influence the application of law on society. Gender difference - which is sexual at its essence - complicates the gender neutral doctrine because it reflects a system of social hierarchy which disparately places women in a class which cannot be compared to men. Therefore, "the gender neutral doctrine is constantly being undermined by the problem it is trying to solve". (Mackinnon, 1987). By design, the gender neutral doctrine cannot address matters relating to sexual difference because it does not have a male counterpart for comparison. This difference quotient, and the lack of attention given to it in contemporary jurisprudence, is the cross section of life and law which effectively prevents women from enjoying sex equality as stated in our Constitution, and equal protection under law. ( Shally Prasad and Jolly Mathew: Some Emerging Thoughts on Feminist Theory).
International laws, bills, conventions and treaties all endorse the right of equality. Starting with the Universal Declaration of Human Rights to the different Constitutions of countries, all have provisions incorporating the concept and doctrine of equality before law and to the equal protection of law. The United Nations, set up in 1945, has through the years concentrated on removing disparities between man and man which includes not only on grounds of race, ethnicity, religion but also on ground of gender. The 1979 Convention of the United Nations dealing with the elimination of all forms of discriminations against women have been, to a large extent, ratified, signatured or assented to by all countries of the region. Despite this expression of commitment by the Governments of the region, we find that most of the countries have wide practice of gross discriminations based on religious misinterpretations, customs, social norms and existing laws which till date have not been either repealed or modified or amended and continue to be enforced with impunity. If we look at a report published in 1983 by the U.P. Law Center and the Asia Foundation we find that law is not the sole factor determinative of the status of women in society but the elimination of discriminatory laws is an essential first step to attain equality of status for women. Status is a complex of many elements bearing on economic, political, religious, social and other relationships. Equality of status with men in the totality of this relationships will be unattainable unless founded on law and given the support of the State. The subordinate position of women in many countries subsist because of not only age old practices and traditions but because of disabilities imposed and the unequal treatment accorded by positive law to women specially when they are married. Women do not enjoy the same opportunities as men in any society despite the constitutional guarantees. This unequal status has resulted in considerable disparities between how much the women contribute to national development and how little they share in the benefits. In 1996, APWIP, Gender and Development Research Institute and the Convention Watch Group jointly held a workshop on Gender Equality in Asia and the Pacific. Participants from Bangladesh, Cambodia, Indonesia, Japan, Lao PDR, Malaysia, Mongolia, Nepal, Philippines, Singapore, Sri Lanka, Thailand and Vietnam came to the conclusion that although de jure equality is now assured, de facto equality has not yet been established. Throughout the region it is apparent practices and religious principles have prevalence over civil law which meant that family laws relating to marriage, divorce, maintenance, inheritance, guardianship, custody and adoption were generally dealt with on the basis of customary and religious tenets. Thus we see that while equal opportunities exist on paper, yet, when the need arises, the story ends differently. We have had cases where due promotions were delayed, women being superceded or denied, unequal disbursements of salaries, not taking cognizance of domestic violence by law enforcing agencies etc. In fact, Radhika Coomerswamy in her Third Report on Violence Against Women has identified amongst others that the community is the site of denial of women's rights. Equality having found its niche as a fundamental right, its violation gives right to an action in rem. However there are not many instances of women seeking judicial enforcement of their equal rights. Countries such as Malaysia, Bangladesh, India etc. have a large multi-racial community resulting in a variety of family laws which in turn gives rise to interpersonal conflicts. Some countries have, in their endeavour to solve these conflicts, introduced civil laws which over ride personal laws but then in situations where religious and ethnic communities are in large numbers or play a pivotal role in the countries' politics, confusion prevails and the attitudes of "those in power including judiciary" more than often influence the views, opinions and decisions in relation to enforcement of women's rights.
Gender bias and gender insensitivity are the two main reasons for inhibiting women from seeking legal redress. In a meeting held on 4th and 5th January, 1997 in New Delhi on Regional Perspectives on Gender Equality, it was perceived by the participants that gender was a relevant concern above culture and tradition. They also felt that the language of human rights had a critical role to play in addressing violation of women rights. As stated earlier, the Constitutional rights failed to be upheld "even when they grant women fundamental rights as equal citizens because gender bias inherent in legislation is not recognised by the judiciary as a concept that had to be responded to, being violative of the Constitutional rights of women. Legal pluralism was raised as another form of diminishing and obfuscating women's rights in countries such as Bangladesh and India, where the varied laws of different religious groups were upheld to the detriment of whatever rights women could be granted under other existing laws which could be termed 'secular'. Anomalous situations continue to exist in countries like Bangladesh where, despite ratification of CEDAW (the UN Convention on the Elimination of All Forms of Discriminations against Women) by the government, judges refuse to juxtapose it against the restricted rights given to women under the Shariat law. The lack of judicial innovations such as the public interest litigation, popular in India, was given as an example of how the region failed to incorporate judicial innovations. Interpretations of existing laws even under the Sharial gave scope to judges to grant women protection and justice within a context, however the fact that when such judgments were available lawyers failed to bring them to notice of courts again limited their impact on redress for women". (Sakshi, 1997 Report on Regional Perspectives on Gender Equality).
Recognizing that the women are disadvantaged, the United Nations has from its very inception worked with the women movements to achieve its commitment asserted in its Charter calling for full equality of men and women. The Commission on the Status of Women was one of the first bodies established by United Nations after its foundation. It is over two decades that four World Conferences have been held periodically in order to strengthen the legal, economic, social and political dimensions of the role of women. Even the former Secretary General of the United Nations, Mr. Boutros Boutros-Ghali, has in the UN publication, namely, the Beijing Declaration and the Platform for Action stated that "Despite the progress made, much, much more remains to be done. While women have made significant advances in many societies, women's concerns are still given second priority almost everywhere. Women face discrimination and marginalization in subtle as well as in flagrant ways. Women do not share equally in the fruits of production. Women constitute 70 per cent of the world's poor". Again, Mr. Ghali states that "despite the progress made since the First World Conference on Women, 20 years ago, women and men still live in an unequal world. Gender disparities and unacceptable inequalities persist in all countries. In 1995 there is no country in the world where men and women enjoy complete equality. Deeply entrenched attitudes and practices perpetuate inequality and discrimination against women, in public and private life, on a daily basis, in all parts of the world. At the same time, there has emerged a consensus that equality of opportunity for all people is essential to the construction of just and democratic societies for the twenty-first century".
Having realised that the socio cultural scenario of the region together with deep rooted interpretations of religions, superstitions, taboos etc. have hindered and retarded the growth of development of women as valuable resource persons, we now would like to focus on the socio legal status of women in Bangladesh.
Bangladesh is a multi religious nation enjoying equal distribution of enforcement of civil, religious and customary law. While on the one hand a women enjoys equal status with her male counterpart as laid down in the Constitution, and other civil laws, yet, her life pattern is conditioned by the male dominated institutions governing the family, society and economics. (Bangladesh: Strategies for Enhancing the Role of Women in Economic development. A World Bank Country Study, July 1990)
In Bangladesh like other developing countries, the harsh realities of life enjoins upon all to collectively put in their labour in order to survive. It is difficult to divide their actual output to their family income. The rural women of Bangladesh while conforming to the traditional Bengali value system of performing its role within the family i.e. of looking after the house, cooking food, procreation, taking care of children etc. have not only significantly contributed to the food production but have also to the cash flow of their family resources by making traditional saleable items such as shikha (Jute hanging); Kula, [winnow] moori (puffed rice) chira (flattened rice) etc. The rural women's participation in the rural agricultural development have not been properly or correctly tabulated. Traditionally, women have performed a good deal of productive activities, notably in the post harvest operations, homestead, gardening and attending to the livestock, all of which add to the family income. The rural women not only contribute in the agricultural sector but also play an important role in the production of potteries and in the fishing and weaving sectors. Yet despite all, the women are considered non-productive!
Socially and traditionally the women are considered subservient to man. From the day a female child is born, she is engulfed into 'a patre lineal and patri local kinship system which enforces her dependence on men. This system forms the base of her role and relative status (The Fifty Percent: Women in development and Policy in Bangladesh by Salma Khan) She accepts the discriminatory attitude meted out to her in her father's home as well as the order of precedence whereby she willingly takes the 'inferior status'. Furthermore she accepts the notion that she is 'a guest in her parents home and that her rightful place in society lies with her future husband. Yet this 'guest' between the age of 7-9 years (as a study on the topic revealed) work longest of all children of the same age group i.e. she works -66 days a year. ( Faruk, A: Time Use of Rural Women, Bureau of Economic Research, Dhaka University 1980.)
Even though the 20th Century is drawing to a close, yet socially, culturally and traditionally the women and girl children continue in their age old role of being second to man. Economically independent women have also accepted their customary role pressed on them by society and religious interpretations and surveys reveal that while the women are apparently economically independent yet are always concurring to the wishes of their male relatives, especially spouses and even give up the control of their independent income in favour of their male relatives.
Under the Constitution all citizens are equal before law and are entitled to equal protection of law. In fact Article 26(1) provides: "All existing laws inconsistent with the provisions of this Part" (i.e. Part III of the Constitution dealing with Fundamental Rights) "shall, to the extent of such inconsistency, become void on the commencement of this constitution”. In article 26(2) it has been further stated that "the State shall not make any law inconsistent with any provisions of this Part" (i.e. Pan III of the Constitution dealing with Fundamental Rights) "and any law so made shall, to the extent of such inconsistency, be void". In other words, wherever the law provides for discrimination, it will be deemed to be void in law. The Constitution affirms no discrimination on the basis of sex, enjoyment by women of equal rights with men in all spheres of the State and of public life, no refusal of admission to any educational institution or be subjected to disability, liability, restriction or condition with regard to access to any place of public entertainment or resort. The Constitution of Bangladesh vide Article 10 ensures participation of women in all spheres of national life. Article 9 of the Constitution assures representation of women in local government institutions. Article 16 assures adoption of effective measures in the rural development progressively to remove the disparity in the standards of living between the urban and the rural areas. This is read in conjunction with Article 19 which provides for The State to endeavour to ensure equality of opportunity to all its citizen. This being supplementary to Article 20 which does not discriminate in payment of wages on the basis of the principle 'from each according to his abilities to each according to his work'. Article 27 declares that all citizens are equal before law and are entitled to equal protection of law and Article 28 (2) Women shall have equal rights with men in all spheres of the State and of public life. Article 28(1) bars discrimination by the State against any citizen on grounds of, amongst others, 'sex'.
The Constitution mentions 'Citizen' throughout its Articles which has been particularly defined to mean and include women. This inclusion of one gender on the other has also been contained in Section 13 of the General Clauses Act. Yet, the Citizenship (Temporary Provisions) Order 1972 read with the Bangladesh Citizenship (Temporary Provisions) Amendment Act 1973 discriminates on grounds of gender by granting of citizenship through the patrilineal system.
Article 15 states that the fundamental responsibility of the State to attain, through planned economic growth, a constant increase of productive forces etc. with a view to securing to its citizens the right to work that is the right to guaranteed employment at a reasonable wage having regard to the quantity and quality of work.
Article 19 stresses on the State endeavour to ensure equality of opportunity to all citizens and for adopting effective measures to remove social and economic inequality between citizens and ensure equitable distribution of wealth among citizens and of opportunities in order to attain a uniform level of economic development throughout the Republic.
Article 28(4) empower the state to make special provisions in favour of women..........whilde Article 29 provides for equality in opportunity in respect of public employment. From the above it is quite clear that the Constitution recognises the theoretical equality of gender and also the reality that women are in equal in status and that there is a special need for measures to be undertaken in order to bring the women at par with men. As Salma Sobhan in her book "The Legal Status of Women" puts it "the drafter of the Constitution could not fail to acknowledge tacitly the fact of the inequality present in the status of Women". These special provisions are based on the realisation of women's vulnerability as Sobhan further observes in her same book" it is women who are backward, not society in its attitude towards women. Women are given the privilege of having reserved seats in the legislature and other public bodies with the same attitude of "paternalism" though they are equally eligible to contest for any public office starting from the President of the Republic to member of Union Parishads.
Other laws reflecting this attitude of "protectiveness" towards women are (a) the Civil Procedure Code 1908, where a woman who according to customs and manners of the community she belongs to is exempted from personal appearance in Court. However this exemption shall not be extended to arrest in execution of civil process if such arrest is not specifically prohibited by the Code. This has been explained and interpreted to mean that a pardanashin lady shall not be compelled to come into view or become visible to the public gaze. The court therefore has power to order a pardanashin lady to give evidence in court provided she is not forced to be visible to the public gaze. The Civil Procedure Code has prohibited the arrest or detention of women in execution of a decree for the payment of money. The Code also provides for women to give evidence not in court but on a Commission as may be ordered by Court. Dr. Sufia Ahmed and Jahanara Chowdhury in their paper on the 'Legal Status of Women' highlights the protectiveness towards women by stating "The provisions of section 354 (offence of outraging the modesty of women) and 497 (offence of enticing away the wife of a man) of (b) the Penal Code and section 488 (obliging husband to maintains his wife) of (c) the Code Criminal Procedure which are otherwise discriminatory are immune from challenge by virtue of Article 28(4) of the Constitution" which permits based discrimination in order to finally achieve equality:" There are no discrimination on the basis of sex in the Contract Act, Evidence Act. Transfer of Property Act, Mercantile Law, Married Women's Property Act etc.
It is generally understood, on the basis of the interpretation as mentioned above that where no mention is made of laws / provisions specific to woman, the women shall enjoy the same rights and obligations as the men enjoy.
Over and above these laws, the areas where women suffer most and are restrained from active participation in development are in matters relating to marriage, divorce, maintenance, inheritance and succession, guardianship etc.
As mentioned earlier on in my paper, matters relating to family such as marriage, guardianship and custody, maintenance, succession, divorce etc. will be governed by the concerned citizen's personal or religious laws. There are many provisions of law, especially in the personal laws of muslims (who comprise over 85.47% of the total population in Bangladesh) and Hindus (13,5%) which mete out differential treatment between men and women. It may be once more noted here that Article 26 of the Constitution states that laws inconsistent with fundamental rights shall, to the extent of such inconsistency, be void and that the State shall not make any law inconsistent with fundamental rights and if so made shall to the extent of such inconsistency be void. Yet no attempt has been made to remedy this anomaly.
It is important for the purpose of enforcing women's rights that the women have access to economic power be it through owning property or through business or earning income. Therefore I shall now dwell on the right to property through succession.
Under the Bangladeshi as well as Indian and Pakistani laws of succession, the personal laws of the individual shall be considered the basis of inheritance. The Muslim Law of inheritance is based on two sources-Customs of ancient Arabia and the rules laid down by the Quran and Prophet Mohammad. "The Quran" as A, Fyzee in his book 'Outlines of Mohammmaden Law, 4th Edition, Oxford University Press, Delhi, 1974, p-388, states "is to be likened to 'an amending act' rather than an exhaustive code" since it corrected many of the social and economic inequalities then prevalent in ancient Arabia. Under the customary law of pre Islamic Arabia, the women were totally excluded from inheritance but with the revelation and imposition of Quran, Women's position underwent a radical change. It raised the women in the scale of civilisation by elevating their moral and social position and giving the widows, the mother, the daughters and sisters heritable rights (Syed Ameer AH: Muhammadan Law, 3rd Edititon Vol. 13 (Tagore Law Lecture) Thacker, Spink & Co. Calcutta 1908 p. 61) even though percentage of inheritance speaks of the real 'equality' of women. Interestingly, claim to their share by the women does not become barred by lapse of time unless they have been openly excluded from their share over a period of twelve years during which period they have not put in any claim or objection. In most cases the women's claim to inheritance go by default due to [a] ignorance of law; [b] Misinterpretation of 'naior1 whereby the women agrees to forego her right to her share of inheritance for the right to visit her father's home once or twice a year; [c] her status as 'guest' or 'temporary presence' in her father's home strengthens the misconception, [d] perpetuation of family through the male descendants; [c] if she takes her share, the ancestral property will pass on to her husband's family.
Under the Hindu Law of inheritance, the male descendants in order of priority get preference over females. A widow does not inherit anything if there be son, grand son or even great grand son. The Hindu females, even if they inherit, do not have absolute title to the property. They can enjoy the property during their life time and cannot dispose it. On their death the property does not pass on to their heirs but [a] in the case of widows, to the other male heirs of the husband and [b] in the case of daughters to the other male heirs of the father. (D.F. Mulla's principles of Hindu Law, 11th Edition) Remarriage by a widow will make her lose this limited right of inheritance. It is also interesting to note that the daughters do not enjoy in equal share or simultaneously the life interest on their paternal property. In order of priority, the unmarried daughter succeeds first and then the married daughter who has or is likely to have a male issue: Daughters who are barren or are widows without male issues or are mothers of daughters only are excluded from inheritance (D.F. Mulla, Principles of Hindu Law 11th Edition) Unchaste widow (Moniram v. Keri Kolitani, 7 I.A. 115) or unchaste daughter (Ramanador v. RaiKishori, 22 Cal 347) or unchaste mother (Ramath v. Durga, 4 Cal 550) have no right to inherit but once the estate vests in such a person, it can not be divested by subsequent unchastity.
Under the Hindu Women's Right to Property Act 1937, the above was amended to provide the widow or the widow of the predeceased son of a Hindu male to enjoy the same share in the Hindu male’s property as a son provided that such female shall have only life interest in the share. The Federal Court in its judgment reported in AIR 1941 Fed. 72 held that the Hindu Women's Rights to Property Act is applicable only in respect of non-agricultural land and property.
We shall now talk of marriage which is an extremely important aspect in the life of a Bangladeshi woman especially since normally she does not have an independent profession. Moreover, to a Bangladeshi Muslim woman, whatever may be her legal status in her marriage, her marriage is more than a contract and denotes submission to the will of her husband who takes precedence over her and has the 'right’ to exercise control over her. Legally, it remains a contract between the parties which can dissolved for good cause (Khurshid Bibi -Vs-Mohammad Amin, PLD 1967 Supreme Court 97) Under Muslim Law every Muslim of social mind who has attained puberty may enter into a contract of marriage.
N.B. In absence of evidence to the contrary, puberty is at 15 years but this presumption is rebuttable. Minors and Lunatics may be given in marriage by their respective guardians. The right to contract a minor in marriage belongs successively to the father, paternal grandfather and brother and in their absence, the mother can exercise this right [(9 DLR (Writ Petition) 45)] Under the Child Marriage Restraint Act, a girl below the age of 18 years is barred from marrying and whoever contracts, performs, conducts or directs such marriage is liable to punishment (Act, XIX of 1929) but the marriage is not void. In a Muslim Marriage, the husband has to give the wife, in consideration of marriage, either money or property which then belongs exclusively to the wife. "Dower is not the exchange or consideration given by the man to women for entering into the contract but an effect of the contract, imposed by the law on the husband as a taken of respect for its subject, i.e. the woman (N. Bailie, Digest of Muhammadan Law. Vol 1 Smith and Elder and Co. London 1875 pg. 91). The amount of dower is fixed by the parties to the marriage. This dower is a debt of the husband and wife's right to dower cannot be defeated by the husband on the ground of his being denied her company [(9 DLR (Dhaka) pg. 8)]. Though a debt, and the widow in possession of her deceased husband's property may retain such property till her dower has been paid up. (AIR 1934 All 168; AIR 1936 All. 600).
Unlike the Muslims, the Hindu Marriage is not considered a contract terminable at the option (on valid grounds of course) of either party but is a sacrament and continues beyond death. In a Hindu marriage, the concept of equality is missing and the wife considers her husband a semi-god to be worshipped and taken care of. In this situation where the husband is elevated in status to the others, the wife cannot but be considered dependant on her husband and as such her economic independence is likely to be depend on her husband's 'willingness'. However, interestingly the 'subordinate' concept in marriage even for Muslims have stemmed from the misinterpretation of religions and the deep rooted traditions covered and hindered by passage of time as to the real intent of the tradition setter.
The Muslims, unlike the Hindus and Christians, enjoy a limited right to divorce. Traditionally, the Muslim woman could not divorce her husband unilaterally except with the power granted by her husband at the time of executing the marriage contract or on mutual consent of the parties. However, with the enactment of the Dissolution of Muslim Marriages Act, 1939, the State for the first time recognised the right of the estranged wife to seek dissolution of her marriage through the intervention of the court. One of the grounds that the wife may take for the dissolution of marriage is 'cruelty' which may or may not be 'physical'. Question arose as to whether compelling a wife to do domestic works amounts to 'cruelty' or not. The court held in the case of Hosneara Begum vs. Rezaul Karim reported in 43 DLR 543 that compelling the wife coming from a well to do family not accustomed to do domestic works will tantamount to 'cruelty'.
All religions have imposed the duty of taking care of wives and children on the husbands. However, in the case of Muslims, especially according to the Hanafi interpretation, this duty of providing maintenance to wives is extinguished after three months from the date of pronouncing divorce. This, under the Muslim Family Laws Ordinance, 1961, has been extended to become effective upon the expiry of the reconciliation period of three months and in order to coincide with the divorce becoming effective. In the case of the wife seeking maintenance through the intervention of court, she can apply to the Magistrate for such maintenance provided that the amount did not exceed Tk. 500/-. This power of the Magistrate to allow maintenance to the deserted wife and children has not been ousted by the inclusion of a provision of the Family Courts Ordinance giving exclusive jurisdiction to the Family Court to try suits for maintenance. (Meher Negar vs. Mojibur Rahman 47 DLR 18 = 1994 BLD 467 and Rezaul Karim vs. Rashida Begum 48 DLR 416 = 1986 BLD 381) overruling a single bench decision in the case of Abdul Khaleque vs. Selina Begum 42 DLR 450. However in the case of Hindu or a Christian wife there can be no divorce but on the other hand a judicial separation or a right to separate residence can be enforced. Hindu / Christian husband is in law bound to maintain his wife for all times to come. In the case of Muslim women, as stated above, maintenance was restricted for a specific period of time. With the case of Md. Sirajul Islam vs. Mst. Helena Begum reported in 1996 BLD 477 = 48 DLR 48 the concept of not being able to claim past maintenance was set aside and Court held that the Court can pass a decree for past maintenance of the wife dissenting from the decision in the case of Rustom Ali vs. Jamila Khatun 1990 BLD 434. But in the case of Jamila Khatun vs. Rustom Ali as reported in 1996 BLD (AD) 61 = 48 DLR (AD) 301 it was held that the wife is entitled to past maintenance in the absence of any agreement. In the case of Hefzur Rahman vs. Shamsun Nahar Begum reported in 47 DLR 54 it has been held that the divorced wife is entitled to maintenance from the husband even beyond the period of iddat till she remarries. Though Indian Parliament set at naught a similar decision of the Supreme Court in Shah Banu's case to satisfy the Muslim Community of India there is' no serious public clamour against our decision except an article published in a fundamentalist newspaper mildly criticising the same. (K.E. Hoque and M. R. Chowdhury, JJ: Prospect of Gender Equality in Bangladesh).
Giving of dowry was almost unknown to the Muslim Community during the ante 1971 period. But with the transition of society the giving of dowry became a societal norm. Failure to submit to the demands of dowry by the husband and his family led many innocent wives to untimely deaths. Meaning of dowry and demand thereof gave rise to different interpretations - restricted as well as extended by different Benches of the High Court Division of the Supreme Court of Bangladesh in the case of Mihir Lai Saha vs. Zhunu Rani Saha 37 DLR 227 and in the case of Rezaul Karim vs. Taslima 40 DLR 360 as well as in the case of Ajit Kumar vs. Bakul Rani 46 DLR 290. But the controversy was set at rest by the Appellate Division in the case of Abut Bashar Hawladar vs. The State reported in 46 DLR (AD) 169 = 1994 BLD (AD) 185 holding that not only taking or giving of dowry or abatement thereof before or at the time of marriage is an offence but also demand thereof after marriage amounts to such an offence. It was further held "that the word "dowry" in section 4 of the Act is not to be read in terms of the definition of the word "dowry" in section 2 but in its ordinary sense". (K.E. Hoque and M. R. Chowdhury, JJ : Prospect of Gender Equality in Bangladesh).
The dependency of women on the males of their society has been entrenched deeply into our society by the imposition of the thinking of the male jurists, social activists, preachers, community leaders and elites of the community the women belong to. Therefore, what we have today, despite the progress of women into the mainstream of development, both through economic involvement as well as in education, is that the women themselves believe that they are subordinate to males and that is why we find ourselves in situations of relying on the opposite sex for guidance, protection etc irrespective of age.
It is an admitted fact that the rights guaranteed by our Constitution and our laws can be judicially enforced but then how many women take the shelter of the law. The attitudes of the judiciary as well as the law officers on whom the women would rely act as a barrier to the seeking of judicial interventions.
Highlighting of the few cases protecting the interest and rights of the women is very essential for encouraging women to seek shelter of law.
For women engaged in the labour sector it is important to note that the labour laws have been enacted to protect workers engaged in the organised sector such as industries, factories, commercial establishments, shops etc. The laws are on the whole protective towards women and provide many benefits to them e.g. minimum wages, child care support (in case there are more than 50 women employed in one factory) no night work or overtime (though exemptions are made in case of women working in fish curing or fish canning factories and women working in the export processing zones) maternity benefits (six weeks ante natal and six weeks after delivery), adequate separate toilet and washing facilities in proportion to the number of workers; prohibition of women workers to clean, lubricate or adjust any part of machinery during operation; prohibition on employment of women in cotton pressing factories where cotton openers are at work; prohibition of adult female labour to earn' more than 50 Ibs in weight and adolescent female labour to carry more than 40 Ibs.
There are no laws applicable to works in the 'unorganised sector' such as house helps etc. In the absence of such laws, these household helps get low wages, work overtime with no rest hours than what is absolutely necessary with minimum hours of sleep; no weekly holidays or security of job, retirement benefits etc. They are also vulnerable to physical and mental abuse, malnutrition etc. and have no recourse to either organised unions or associations nor to the law enforcing agents for vindication of their rights.
In the rural sector there are no set laws governing the employment of labour in agriculture etc. In 1984 however, the Agricultural Labour (Minimum Wages) Ordinance was enacted to provide minimum rates of wages for agricultural labour. By virtue of the General Clauses Act, the definition of agricultural labour in the Ordinance may be extended to mean and include women labour though the Ordinance has not specified such inclusion. The minimum rate of wages for agricultural labour per day has been fixed at 3.27 kilogram of rice or such amount of money as is equal to the price of this quantity of rice in the local market. In reality however a woman working as agricultural labour in post harvest production (which though not defined but could be interpreted to be included in the definition of and as a part of agricultural crop production) gets only Tk. 5/- per day.
With the changes in the sphere of industrialisation, urbanisation and modernisation, one would expect dramatic progress in the change in status of women. Unfortunately, though women have come forward to work but then most of them do so on account of poverty and the need to survive. They mostly are wage-earners, casual labourers and office peons. The vast majority of our women live in the rural areas and since our workshop is on poverty, rights and participation I shall highlight the need for economic empowerment as well as in their approach and attitude to life. Ideally speaking, the women of Bangladesh take to purdah to promote and eulogise the traditional picture of ideal womanhood. But, it is somewhat lax in the lower economic strata. Due to economic constraints, 80% of the women give up purdah and come out to work in order to add to their family income. The development programmes in our country considered women as marginal, secondary and separate. It was thought that there will be an automatic spill-over effect of the developmental effort on women and in spite of the rural women being exclusively responsible for the entire post harvest operations over and above their domestic responsibilities, they are referred to as 'parasitic' dependants (Germain, Adrienne: Women's Role in Bangladesh Development: A Programme Assessment at p. 20).
In recent years, women's significant economic roles, previously hidden in household production are gradually becoming more visible due to the break through of Bangladesh export of readymade garments, research and socio-survey (Women and Development in Bangladesh: Challenges and Opportunities by Rounaq Jahan). Women's participation in remunerative employment and export oriented production is also expanding. It is admitted that between1974 to 1984-85 women's labour force participation has grown at a much faster rate but with questionable returns. Women workers, due to gender specific problems, face lack of child support and sexual harassment. Despite these constraints, the women's need to earn cash income has greatly increased. However, the women's expanded economic role has not gone hand in hand with their personal improvement particularly in education, training, health, nutrition and access to productive resources and services. The 1996 Bangladesh Statistical pocketbook has stated that out of 56% labour force, 21.3% are female civilian labour force, of which again 2.8% are active. In the 1995-96 labour force survey carried out by Bangladesh Bureau of Statistics it was revealed that 78.8% of the female labour force are involved in agriculture while 21.2% females were engaged in non-agriculture sector. 2.8% of female labour were employed in the urban areas in comparison to the 18.5% of females engaged in the rural areas. It has been further revealed by the same survey that the female labour participation rate is 50.6% in comparison to the previous 1990-91 rate of 58.2%.
The Grameen Bank breakthrough and other NGOs credit programmes to rural women have shown that development goals can be effectively achieved through investment in women and that returns from such investment have been high. Therefore giving women income earning opportunities and control over their income have increased their household's health and nutritional well being. (UNICEF: An Analysis of the Situation of Children in Bangladesh). Women and Development in Bangladesh: Challenges and Opportunities by Rounaq Jahan.)
From the above it is quite clear that Bangladesh has no legal impediment to women enjoying equal status in almost all spheres except in the arena where it matters most. However in all fairness even to attain an equal status in family sphere, courage is required to invoke the court's jurisdiction. In this regard a concentrated and co-ordinated joint action of governments and their intersectoral machineries, planners, International organisations, donor agencies, social scientists, development workers, industrialists, religious leaders, politicians, media and human rights activists need to identify the laches and the lacunae in the existing laws and the barriers to successful implementation of the laws through public interest litigation, mass advocacy etc.
CIRDAP and other such international agencies should under take conscientisation programmes. The participants in the conscientisation programme should comprise of both gender on equal ratio basis. Unless there is full participation of the people in the process of learning to be aware of gender equity and women's rightful status, social transformation will not occur and institutions encouraging economic development for women will not be achieving the desired result due to women continuing their dependency on men.
A big impediment to women's empowerment is their vulnerability to falling a prey to the wiles of the traffickers. This has become a global concern and organisations concerned with the rights of mankind have jointly coordinated their efforts to curb such trafficking. However this is made complicated by the fact that one has to be very discerning in identifying the narrow gap between the right to movement and trafficking. While one appreciates the woman to cross international borders on her own volition yet, when this volition is found to be induced or coerced by outside pressure, it amounts to trafficking. As an example, the case of the migrant workers in the Middle East or in Japan who invariably find themselves in a slave trade, situation of exploitation, or in brothels or forced to include in their terms of reference sexual service. Local and regional organisations have made great inroads into coordinating their efforts, but unfortunately there is no concerted efforts on the part of the Governments or international agencies such as CIRDAP, United Nations, UNCHR etc. Therefore it is essential that this workshop makes this a priority concern and evolve mechanisms to curb trafficking in women either locally or in the international markets and also take steps to gear up the mass advocacy programmes. The workshop should concentrate on the existing ills of the society such as pornography, snuff films where Asian girls are trafficked and/ or kidnapped/ seduced and then made to participate, the wrong projections of commercial films etc. Our efforts should be to unitedly work for the enforcement of the existing rights of women, create better environment for the women to live in harmony in society, remove disparities in the laws, lobby with legislators, politicians and bureaucrats and take steps to instill a sense of commitment in the law enforcing agents, law makers including the judiciary.
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