1. Introduction:
Family Laws can be defined as the legal act, which deal with the relations of women and men in the family, such as marriage, divorce, dowry, child maintenance, guardianship, custody, inheritance, restitution of conjugal life. Family Law usually based on religious or secular values of different communities that regulates the rights and responsibilities of individuals within their families in these communities. In Bangladesh family laws consists of personal laws of the respective religious communities like Hindus, Muslims, Christians, Buddhist or Tribal.
Hindu community is the second largest religious community in Bangladesh. According to population census report 2001 national report 9.2% of the population of our country belong to the Hindu Community.Hindu Law isa body of rules, customs, and usages guiding the beliefs and ways of life of the Hindus. Their social and family affairs all are very intensely controlled and influenced by their religious doctrine. As a customary law, Hindu Law deprived women much rather than other religious law. When it comes to safeguarding the patriarchal system using religion, depriving women becomes the common going ground for most religion.
There are two schools of thought about Hindu law, namely Dayabhaga and Mitaksara. The Dayabhaga, a treatise on the inheritance and succession based mainly on the Yajnavalkya-smrti, is believed to have been written sometime after the eleventh or thirteenth century by Jimutavahana. On the other hand, the Mitaksara, written by Vajnanesvara (c 11th century), seems to be an elaborate commentary on the Yajnavalkya-smrti. In Bangladesh, mostly Dayabhaga School is followed in Hindu Family Law.
On matters relating to inheritance and succession, the Dayabhaga was used extensively as an authority in Bengal. Dayabhaga‘s authority was paramount. However, in matters relating to adoption, the Dattaka-chandrika, attributed to Kubera (c 16th century), was considered an important authority. The major differences between the two schools are as regards principles of inheritance and joint family.
2. Personal laws: sources and nature:
Like life, law is static. Law exists to sub serve the social needs. Therefore, it is always desirable that law should confirm to the changing needs of society and life. Hindu law has been the most ancestry of the known system of law, around 6000 years old. In this span of 6000 years, it has passed through various phases. At times, it has developed and grown remarkably. In the Hindu, law, despite the fact that before the advent of modern era, there was not direct law making machinery, has shown remarkable adaptability.
Sources:
At present day, Hindu law is the result of many ingredients. Practically it would be convenient to classify the various sources under the following two heads:
- Ancient Sources: In ancient sources the following four sources could be defined:
- Sruti / Vedas:
The Sruti literary means “what was hard”. The Sruti stands for Vedas; viz. the Rig, the Yajur, the Sama, the Atharva. The approximate period of the Vedas is accepted to be 4000-1000 B.C. The Vedas depicts the way of our life of early and ancestors way of life, thinking, customs, thoughts, etc. However, they do not deal with rule of law in any systematic manner. Whatever rules of law exist, these have to deduce from the vast material contained in the four Vedas.
- Smrity:
“Smrity” means “what has been remembered”. In theories of Smrity are based on the memory of the sages who were the repositories of the sacred Revelation. Vedas were to be understood in the light of the new needs of the society, which had made further progress from agro pastoral society in the cluster of Smrities. The Sutras consists of the trilogy of sacrifice (Sharauta), ceremonies relating to domestic fire (Grihya) and Samachandrica, i.e. aphorisms on law and custom dealing with temporal duties of men in their various relations.
- Digests and Commentaries:
This period covered about 1000 year from A.D. 700 to A.D 1700. The Privy Council said “the commentaries, professing to interpret the law as laid down in the Smrities, introduced changes in order to bring it into harmony with the usages followed by the people governed by the law; and that it is the opinion of the commentaries which prevails in the provinces where their authority is recognized …In the event of a conflict between the ancient text writers and the commentators, the opinion of the latter must be accepted.” The Manusmrity and the Yajnavalkyasmrity have found the greatest number of commentaries.
- Customs:
Custom is one of the main sources of ancient period. Hindu custom is always recognized by the locality, by the schools/clusters or by the family as well as the courts. It is a legal development of Hindu Law. A custom is rule, which is in a particular family or in a particular district, from long usage obtained the force of law. It must be ancient, certain, reasonable and being a derogation of the general rule of law, must be construed strictly. Custom cannot be extended by analogy. It must be established inductively and not be a priori methods. There are man case law proved that the custom has legal value. Such as, in the case ofSeligram vs. Munshi Ram (v1) the Indian Supreme Court was considering a case of custom under section 5 of the Panjab Laws Act. The Kurni Mahtons of Chota Nagpur, though aboriginals in the origin, have accepted the Hindu religion and Hindu Social usages. However, no custom is valid if it is opposed to morality or public policy or to any express enactment of the Legislature.
- Modern Sources:
In modern sources, the following three sources could be underlined:
- Equity, justice and good consideration:
The ancient Hindu Law has its own version of the doctrine of equity, justice, and good consideration. According to Goutama, “In cases for which no rule is given, that course must be followed of which at least ten persons who are well instructed, skilled in reasoning, and free from covetousness approve.” Yajnavltkya said that when on a matter there were conflicting rules of law, the matter should be decided based on Nyaya, (natural equity and justice). In modern version, the equity, justice and good conscience as source of law owes its origin to the beginning of the British administration of justice of India. Justice, equity, and good conscience have been generally interpreted to mean rules of English law on the analogous matter as modified to suit the Indian conditions and circumstances. However, we find that there is an area of Hindu law where rules of Hindu law and English law have been blended together or where the rules of English Law have been grafted on rules of Hindu Law.
- Precedent:
The British ruled the sub-continent over the decades. The difficulties of English Judges administering Hindu law were great and many. They do not know the languages of the Dharmashasras and could not comprehend the spirit of Hindu Law. From that time, the doctrine of stare decisis and precedent (case law) are essentially a gift of the British administration of justice in India. Precedent is called to be sources of Hindu law in two senses. First, practically all the important principals and rules of Hindu law have now been embodied in case law and secondly, precedent is a source of law in the sense that by the process of judicial interpretation, doctrines, principals and rules of law stand modified or altogether new principals, doctrines and rules have been introduced in the body of Hindu law. During the British rule, though legislative machinery existed, for several seasons. President uses to modify Hindu Law sparingly.
- Legislation
Legislation is the modern source of Hindu law. The English Judges first administered the Hindu law with the assistance of Hindu Pandits. The institution of Pandits, as official references of the Court was abolished in the year 1868. The Government during British rule was slow and cautious to change Hindu law by legislative intervention. However, the legislature modifications until August 15, 1947, are insignificant. Some of the statutes, which have effected modification in Hindu law, either by reforming Hindu law or by superseding rules of Hindus, may be noted here. The earliest statute was passed in 1850, the Caste Disabilities Removal Act. It was followed by Hindu Widows Remarriage Act – 1856, Hindu Wills Act – 1870, Hindu Transfer of Bequest Act – 1914, Child Marriage Restraint Act – 1929, Hindu Gains of Learning Act – 1930, Hindu Inheritance (Removal of Disabilities) Act – 1928, Hindu law of Inheritance (Amendment) Act – 1929, Hindu Women’s Right to Property Act – 1937, Arya Marriage Validation Act – 1937, Hindu Women’s Rights to Separate Maintenance and Residence Act – 1946, Hindu Marriage (Removal of Disablities) Act – 1946, Hindu Marriage Validity Act – 1949. Thus Hindu law was reformed and modified to some extent.
3. Common scenarios of discriminations:
Discrimination means any distinction, exclusion or any restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the basis of equality of men and women. In our socio economical structure, we find that there are much discrimination between man and woman in the Hindu Law of Bangladesh. Some points are discussed in bellow:
3.1 Marriage:
The institution of marriage is regarded as extremely important. In Hindu Law, marriage is a Holy union for the performance of religious duties. It is not a contact. It is sacrament and certain ceremonies are essential to the legality of the marriage. From the ancient period, two schools of thought about Hindu law, Dayabhaga and Mitaksara, according to these two schools, marriage was eight kinds. They were Brahma, Daiva, Arsha, Prajapatya, Asura, Rakshasa, Gandharva, Paisacha, of which the first four were approved and the last four unapproved. There are two essentials for a valid marriage under Hindu law in Bangladesh:
- Invocation before the sacred fire and
- Seven steps before the sacred fire by the bride and bridegroom
All Bangladeshi Hindus are complying with According to Dayabhaga law there is hardly any restriction on marriage of a Hindu male. However, there are many distinctions between male and female in Dayabhaga Law in Bangladesh. Divorce is not in law except on a very limited ground of chastity of wife. Wife and children are however entitled to get maintenance from husband if left uncared. A widow is also entitled to get maintenance from father-in-law’s estate if her husband has not left enough for her maintenance. A Hindu widow can at will remarry. The law of remarriage was enacted in 1856 mostly at the pursuance of Iswar Chandra Vidyasagar.
Impact on equal rights:
- Women are subordinate to men
- Women are bound to follow the all restrictions of Hindu religion
Case Study:1
Sadhan Shikder and Latika Halder, both have completed tertiary education from reputed university. They have no children during their 10 years married life. Gynecologist does not find any difficulties of Latika Halder for her pregnancy. However, her parents of law do not understand her condition. They, including Sadhan, started mentally torture to Latika in many ways. They insist Sadhan to remarry for their succession. Sadhan also agrees to marry again.
3.2 Registration of marriage
According to Hindu social customs, Hindu marriages are solemnized through religious rituals. There is no marriage registration system for Hindus in Bangladesh, except Bangladesh Special Marriage Act – 1872. There is also no Hindu marriage law or Hindu marriage registrar in the country except the said act. Therefore, if any Hindu woman suffers in the hands of her in-laws, she does not get legal help.
- No provisions at all for the registration of Hindu marriages
- It causes difficulty to women who seek to validate their rights. (the Indian)
Worth mention that in Bangladesh, if any bride and bridegroom are different religions attempt to marriage without changing their religion, this marriage will be held on the Special Marriage Act – 1872. The Special Marriage Act – 1972 (Amended in 1923) recognized the multi caste/different religion marriage of Hindu, Buddhist, Shikh or Jain. Court Marriage in Bangladesh.
Impact of Equal Rights:
- Women can not produce any evidence
Case Study: 2
Supta Roy (23) married Pankaj Shaha while they were students of Dhaka University without the consent of their parents. After some months of their conjugal life in a rental house at shivbari near Dhaka University Pankaj left Supta forever and remarry according to his father’s choice. Supta tried to prove her as a first wife. However, she failed to prove their marriage. Supta does no get any justice.
3.3 Dissolution of marriage
The concept of divorce is not recognized under the orthodox Hindu Law in Bangladesh. Manu believed that the duty of a wife continues even after death. She can never have a second husband. The reason is that a marriage from the Hindu point of view creates an indissoluble tie between husband and wife. Unless divorce is allowed by, the custom neither party to a marriage can divorce the other party. However, through the passing of Hindu Marriage Act 1955 in India some revolutionary changes have been introduced regarding marriage and divorce. It is a permanent and indissoluble union (Shasric Hindu law does not allow dissolution of the marital tie). Practically, there are increasing rate of desertions. Deserted women live in double trouble.
Impact of equal rights:
- Women can not dissolve marriage
- Women do not get any compensation
Case Study: 3
Kakoli’s father vowed to Sajal to give dowry 3 lac taka at the time of marriage. However, after some years later Kakoli’s father can not paid it. Therefore, Kakoli was torturing daily physically and mentally. She has two children. As a result, she cannot dissolve her marriage.
3.4 Widow re-marriage:
In 1856, we get a law on widow remarriage for that Iswar Chandra Vidyasagar started a movement in favor of widow re-marriage.
- Legally sanctioned but socially no well accepted
- Most of the families send their young widows to India for re-marriage. As a result minority migration of India and other country keep continuing.
- Widow’s girl child and disable child (Both male female) are deprived her fathers property.
Especially widows of Bangladesh are most vulnerable in condition. They have no family as well as social recognition of property, guardianship or any other legal facility.
Impact on equal rights:
- Widows treated asa neglected person of the society
- Widows remarriage do not accept in Bangladesh
Case Study: 4
Malati Rani, 25 years old woman, married Ranjeet Saha. After two years of their marriage Ranjeet suddenly died by accident. They have no child. Malati Rani called “Apoya’ means mishap” by her parents in law and their society. As a result, she backs her parents’ house from her matrimonial house. Her parents also feel irritate to get back her. Everywhere she insulted and neglected. After one and half year, her father arranged another marriage with an old man who had another three wives and six children. However, after remarriage Malati treated as a “Dojobor” as well as “Rakkhusi Magi – Borer Matha Khagi”. Society does not accept her as a normal woman.
3.5 Adoption:
The two renowned works on adoption, viz the Dattaka-mimamsa of Nanda Pandit and Dattaka-chandrika, attributed to Kuvera, were accepted all over India. Nevertheless, in case of difference between the two, the latter was followed in Bengal.
The main points, according to the Dattaka-chandrika, are as follows. There are two motives in adopting a son; viz. (i) to perform obsequies rites is honour of the adoptive father and his ancestors, (ii) to be the successor of the adoptive father. Any sonless man may adopt a son; ‘sonless’ implies the absence of son, grandson, and great-grandson. Except for a Sudra, one cannot adopt a daughter’s son or a sister’s son. A person’s single son cannot be given in adoption. A woman cannot give away a son without the permission of her living husband. If the husband is dead, she can do so in the absence of prohibition by the husband. An adopted son is placed on equal footing with a natural son.
Adoption is recognized under Hindu law. The aim of Adoption under Hindu law is two fold.
- To secure spiritual benefit to the ancestors and to the adopter by having a son for the purpose of offering funeral cakes and libations of water to the means of the adopter and his ancestors.
- To secure an heir and perpetuate the adopters name.
In Bangladesh, the Shatric unmodified law relating to adoption continues exist. Under this law have some condition:
- Only a male can be adopted.
- To the same caste as his adoptive parents.
- Mother is not within the prohibited degrees to his adoptive father could not have married.
- Only a man can adopt unilaterally.
- A wife or a widow in most places may adopt only with the husbands express consent.
Impact on equal rights:
- Women can not adopt any children
Case Study:5
Swarashwati
3.6 Property rights:
The main points of difference between Dayabhaga and Mitaksara are: (i) Dayabhaga does not recognize birthright to property, Mitaksara does so; (ii) Drayabhaga holds, right to inherit and order of succession are determined by principle of spiritual benefit; in Mitaksara blood relationship is the determinant. Spiritual benefit consists in performing obsequies rites and offering pindas (rice-balls). Plainly stated, the right of a person to a deceased person’s property is determined by his capability of offering pinda for the benefit of the latter; (iii) In Dayabhaga, members of a joint family hold shares in quasi-severalty; they can dispose of them even before partition; (iv) In Dayabhaga, even in an undivided family, the window takes the share of her husband dying childless; in Mitaksara, she cannot do so.
In case of inheritance from father, according to Dayabhaga law, sons exclude others except in case of non-agricultural property. In case of non-agricultural property, a wife gets a share equal to that of a son. Sons or son of a predeceased son inherit from their grandfather the share, which their father would have inherited if, had been alive at the time of their grandfather’s death. If neither sons nor wife, nor sons of a predeceased son are alive, the daughter or daughters inherit with the priority to the maiden daughters. Barren widowed daughter or daughters having no son or probability to have no son are excluded from inheritance to their father. Loss of chastity is also a ground, which can exclude a wife or daughter from inheritance. Only five classes of women inherit according to Dayabhaga School of Hindu law. They are according to preference: wife, daughter, mother, father’s mother, father’s father’s mother. Nevertheless, these women inherit only in life interest that is they are owners with limited rights and on their death; the property would pass to the nearest male heir of the deceased male owner and not to the heirs of the female heirs. The woman or women inheriting in life interest can sell the property only for limited legal necessity.
Stridhana Property acquired by women or received as gifts are own property of women and are called stridhana property. They can sell or give away this property as per their desire. Woman divides Stridhana into four classes according to the origin of acquisition. Succession to Stridhana is also different giving the daughters a better right of inheritance.
The order of succession to trichina, depending on its different kinds, is as follows:
- Sulka (bride’s price): full brother, mother, father, husband;
- Yautuka (gifts made at the time of marriage): un-betrothed daughters, betrothed daughters, married daughters having or are likely to have sons, barren married daughters and childless widowed daughters sharing equally; sons, daughter’s sons, son’s sons, sons’ sons’ sons, step-sons, step-sons’ sons, step-sons’ sons’ sons. In the absence of any of the above, the yautuka of a woman would devolve in the order: her husband, brothers, mother, father;
- Anvadheya (gifts or bequests made by the father subsequent to marriage): order of succession is the same as in Yautuka with the difference that (a) sons are preferable to married daughters;
- In case of a woman, dying childless, the order of succession is brother, mother, father, husband;
- Ayautuka (gifts or bequests from relations made before or after marriage; gifts and bequests from father before marriage): Sons and maiden daughters sharing equally; married daughters having or are likely to have sons; son’s sons; daughter’s sons; barren married daughters and childless widowed daughters. In the absence of all the above, Ayautuka devolves in the following order: brother, mother, father, husband, husband’s younger brother, husband’s brother’s son, sister’s son, husband’s sister’s son, brother’s son, daughter’s husband, husband’ssapindas, sakulyas and samanodakas, father’s kinsmen.
Persons deprived of inheritanceThe following are some of those who are not entitled to share in properties: impotent, born blind, born deaf, lunatic, idiot, dumb, having deformed limbs, apostate, son of an apostate, incurably diseased, leper, renouncer of worldly life, renegade. A Hindu converted to other religion cannot inherit if the succession opens after conversion. If a Hindu widow remarry she has to give up the property or right she had received from the previous husband.
Disowning or to disinherit an heir is permitted in Hindu law. Religious endowments are common in Hindu law and person appointed for its management is called shahayet. In the absence of the heirs the property of the deceased male will vest in his preceptor, pupil and fellow-student in this order.
No one can trace the exact time or year of the birth of Hindu law. However, it is believed that Hindu law was not created or promulgated in a day like other laws. It was probably grown through a process of evolution and custom until the writers made it a law. [Sures Chandra Banerji and Tapan Kumar Chakraborty]
In Bangladesh the kinds of property that a Hindu women may possess continues to be divided in to:
i)Stridhan and
ii) Property inherited by her and to which she has limited rights. The daughter is fifth in line to her father’s property. However, Hindu law is permitted for five kinds of women for giving property rights.
- Widow
- Mother
- Daughter
All of the women are used her property in lifetime but unlimited right.
Effect of equal rights
- Women are deprive form succession
Case Study:6
A Hindu widow woman, Government officer, has only one minor daughter. Her parents in law died and she has two sisters in law and one brother in law. Her brother in law has two children, one is son, and another one is daughter. He sent his son and daughter to Kolkata for their better future. The widow woman claims property for her daughter’s education. However, the family members of matrimonial house do not response her.
3.7 Maintenance:
The term maintenance has been used in a wide sense. Hindu Adoption and Maintenance Act – 1956 defines maintenance as provision for food, clothing, residence, education and medical attendance and treatment. In the case of an unmarried daughter, it includes reasonable expenses of her marriage. Hindu law recognized that a wife, children and aged parents and that the one who takes another’s property, has an obligation to maintain the latter is dependents. Maintenance may be studied under the following three heads:
- Personal obligation to maintain certain relations
- Obligation of a person to maintain the dependents of another whose property has devolved on him and
- Obligation of the joint family to maintain its members
The rights to claim maintenance of persons under the heads (ii) and (iii) is co-extensive with the property. It is not personal obligation. The rights maintenance under head (i) and (ii) has now been codified by the Hindu Adoptions and Maintenance Act – 1956.
However, according to Hindu law, the husband has the duty to maintain his wife and minor children. A father is bound to maintain his daughter until marriage. The responsibility to maintain his wife is a personal obligation arising out of the fact that she is his wife and independent of the possession of any property by him.
3.8. Social Attitude:
Hindu women are treated as movable property of a family, which is handed over through marriage. Unmarried, widow and separated women are socially neglected. They are valueless person of the family. They are treated as outsider of her family. Unmarried, Widows and Separated women depend upon her families all the time. Widows are not well accepted in any religious occasion of society. Family status of Married women depends on dowry. Widow marriage is not well accepted. Female of Lower cast neglected everywhere. Women are responsible for female and disable baby produce. Hindu women are ignorance about Hindu law and universal law.
4. Comparative analysis:
Right to marriage registration: Bangladesh Muslim Law accepts marriage registration, nonetheless Bangladeshi Hindu marriage is sacrament, and it is a custom solemnized through religious rituals.
Right to Divorce: In Bangladesh Hindu women has no right to divorce at all. If any woman wants to stay separately, she can file a suit for maintenance. On the other hand, in Muslim Law of Bangladesh permit the power of right to divorce of women and claim compensation from the other party.
Right to Property: According to Bangladesh Hindu Law, women get a limited share. They inherit life interest in the property. There are five female Sapindas according to the Dayabagha law, namely the widow, the daughter, the mother, the father’s mother, and the mother of father’s father. No other female relation is recognized as heir by the said school. Moreover, a daughter cannot receive any property; even she cannot get life interest in the presence of son, grandson, and great grandson. Although in neighboring India, laws in this regard have been updated since independence in 1947, in Bangladesh the pre-1947 laws are still prevailing. In India, laws have been framed and amended, that have established women’s rights on the property of father and husband.
A wife’s right to her husband’s property is elaborately mentioned in Article 8 of Indian Succession Act. It is stated that if a Hindu man fails to distribute his property through a deed or testament, the inheritance will be determined based on Article 8 of the Hindu Inheritance Law and according to the list described in that law. In this way, a Hindu widow can demand the property of her husband under this law. Article 25 of Hindu Marriage Law states that a Hindu divorcee woman will receive subsistence allowance from her former husband. It is also stated that if the divorcee woman does not marry again, does not engage herself in adultery, and does not earn enough, she is entitled to receive subsistence allowance for the rest of her life from her former husband. Woman’s limited estate has been abolished and whatever property has been or shall be inherited by a Hindu female will be or shall be her absolute property.
On the other hand, in Muslim Law of Bangladesh women get one fourth from father’s property as well as one sixth from matrimonial property.
5. Concluding remarks
In conclusion, we can say that the demand of age to demand the personal family law. Bangladesh Hindu law is most ancient law of all personal laws. Therefore, to modernize the Hindu law, Government should select an expert group for making a committee for changing, addition, or amendment of necessary parts of this law. The lives of women in Bangladesh, both Muslim and Hindu continue to be symbolized by unequal treatment and unequal laws. Only ‘The Child marriage Restraint Act, 1929, The Dowry Prohibition Act 1980, The Family Courts Ordinance 1985, laws apply to all communities. As whole world has taken initiatives to protect women rights, it is the perfect time to take step for ensuring the Bangladeshi Hindu women’s right.
We can recommend the following suggestions for establishing equal opportunity to Hindu women in Bangladesh:
- Ensure right to marriage registration, divorce/separation and property right of women
- Provide right to restitution of conjugal rights of women
- Enact some clause with property rightto stop conversion to other religion
- Raise massive awareness against discrimination
- Demolish different caste and creed systems from Hindu religion
- Polygamy should be prohibited through law.
- Marriage registration should be made compulsory along with the traditional ritual of marriage ceremony.
- Right to divorce of both man and woman should be ensured under equal condition.
-
Maintenance should be given to the wife and children as per Guardianship and Ward Act,1898.
Guardianship right should be entitled to both the parents. - Adoption right should also be given to women.
- Women should get equal share from the property of both father and husband.
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- Leacock, E.B. 1977, “Introduction to Federick Engles. THE ORIGINS OF THE FAMILY, PRIVATE PROPERTY AND THE STATE.” London, Lawerwnce and wishort.
- Qrtner . S. 1974. “IS FIMALE TO MALE AS NATURE IS TO CULTURE” – M.2. Rosaldo, L. Lamphere. Stenford, University Press.
- Methta, R. V. – “A THESIS ON THE LEGAL RIGHTS OF WOMEN”.
- Dr. R. G. CHATURVADI- “JUSTICE” (NATURAL SOCIAL, POLITICAL AND ECONOMIC) 1990- The Law Book Compani (P) Ltd. Allahabad- 211001- India.
- JUSTICE V. R. KRISHNA IYER- “SOCIAL JUSTICE” 1987- 2nd Edition. Eastern Book Company, 34, Lalbagh, Lucknow – 226001- India.
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