Bangladesh, People’s Republic of


*Please note this is just a draft and all contents are still under revision.*


 

Legal Table
Legal Text

Legal System/History

The legal system is based in part on English common law.

Bangladesh seceded from Pakistan in December 1971. The British-era legislation applied in Pakistan after 1947 and post-partition legislation enacted in Pakistan continued to form the basis of Bangladeshi personal status laws, but legal developments since 1972 have been distinct.

School(s) of Fiqh

Hanafi majority; Hindu and Christian religious minorities

Constitutional Status of Islam(ic) Law

 

Constitution adopted 4 November 1972. Amended in 1977 to remove principle of secularism included in Part II entitled Fundamental Principles of State Policy. Amended again in 1988 to insert Article 2(a) declaring Islam official state religion, while reiterating that other religions may be practised in peace and harmony.

Court System

Islamic family law is applied through the regular court system. The judiciary is organised at two levels, with subordinate courts and a Supreme Court with Appellate and High Court Divisions. The Family Courts are the courts of first instance for personal status cases of all religious communities, although different religious communities are governed by their own personal status laws. The jurisdiction and functions of these courts are governed by the Family Courts Act 1985. Jurisdiction is limited to civil suits, and any criminal offences that arise in the context of civil cases come under the jurisdiction of Criminal or Magistrates Courts.

Relevant Legislation

Guardians and Wards Act 1890

Child Marriage Restraint Act 1929

Muslim Personal Law (Shari’at) Application Act 1937

Dissolution of Muslim Marriages Act 1939

Muslim Family Law Ordinance 1961

Muslim Marriages and Divorces Act 1974

Family Courts Act 1985

also:

Dowry Prohibition Act 1980

Cruelty to Women (Deterrent Punishment) Ordinance 1983

Repression against Women and Children Act 2000

Notable Features

Marriage Age: 21 for males and 18 for females, lunar calendar; penal sanctions for contracting under-age marriages, though such unions are not considered invalid

Marriage Guardianship: governed by classical Hanafi law

Marriage Registration: penal sanctions for those in violation of mandatory registration requirements for marriage; failure to register does not invalidate the marriage

Polygamy: introduction of new regulations on polygamy by MFLO 1961; constraints placed on polygamy by requirement of application to the local Union Council for permission and notification of existing wife/wives; penal sanctions for contracting a polygamous marriage without prior permission, though there are no sanctions for failing to obtain existing wife’s permission and subsequent marriage is not invalidated for lack of registration or failure to obtain official permission; the husband’s contracting a polygamous marriage in contravention of legal procedures is sufficient grounds for first wife to obtain decree of dissolution

Obedience/Maintenance: governed by classical law; in Nelly Zaman v. Giasuddin Khan (34 DLR (1982) 221) husband’s suit for forcible restitution of conjugal rights considered outmoded and untenable when considered with relation to principle of gender equality enshrined in the Constitution

Talaq: introduction of new regulations on talaq by MFLO 1961; every talaq uttered in any form whatsoever (except third of three) has effect of being single and revocable; formalisation of reconciliation and notification procedures, and procedures for recovery of mahr; penalties for non-compliance

Judicial Divorce: grounds on which women may seek divorce include: desertion for four years; failure to maintain for two years or husband’s contracting of a polygamous marriage in contravention of established legal procedures; husband’s imprisonment for seven years; husband’s failure to perform marital obligations for three years; husband’s continued impotence from the time of the marriage; husband’s insanity for two years or his serious illness; wife’s exercise of her option of puberty if she was contracted into marriage by any guardian before age of 18 and repudiates the marriage before the age of 19 (as long as marriage was not consummated); husband’s cruelty (including physical or other mistreatment, unequal treatment of co-wives); any other ground recognised as valid for dissolution of marriage under Muslim law; judicial khul’ may also be granted without husband’s consent if wife is willing to forgo her financial rights; in Hasina Ahmed v. Syed Abul Fazal (32 DLR (1980) 294) woman was granted khul’ by judicial decision in spite of husband’s refusal

Post-Divorce Maintenance/Financial Arrangements: generally governed by classical law; judgements deviating from classical law often refer to social welfare arguments as well as reinterpretation of original sources of Islamic law; in Rustom Ali v. Jamila Khatun (34 DLR (1991) 301) wife not entitled to arrears of maintenance and maintenance only ruled payable from date the suit is brought before the Family Court until three months from decree of dissolution of marriage; in Md. Hefzur Rahman v. Shamsun Nahar Begum (15 BLD (1995) 34) divorcing husband’s responsibility to maintain his divorced wife considered to continue beyond expiry of ‘idda period, husband bound to provide maintenance on a reasonable scale for an indefinite period (judgement was quashed and classical law reaffirmed upon appeal in 1998)

Child Custody: general rules is that divorcée is entitled to custody until age of 7 for males (classical Hanafi position) and puberty for females, subject to classical conditions, though there is some flexibility as ward’s best interests are considered paramount under terms of Guardians and Wards Act 1890; in Md. Abu Baker Siddique v. S.M.A. Bakar & oths (38 DLR (AD) 1986) classical Hanafi rules ending mother’s rights over custody of male children at the age of 7 were deviated from in best interests of the child; mother’s name must be included with father’s name in child’s documents

Succession: governed by classical law although customary law may predominate under certain circumstances; at times customary law favours women; concept of obligatory bequest in favour of orphaned grandchildren introduced by MFLO 1961 allows for heirs through sons and daughters to inherit the shares their fathers/mothers would have been entitled to had they not predeceased the grandparents

Law/Case Reporting System

Bangladesh Legal Decisions, Dhaka Law Cases, Dhaka Law Reports

International Conventions (with Relevant Reservations) & Reports to Treaty Governing Bodies

CEDAW – signature 1984 with reservations to Arts. 2 & 16(1)(c) (3rd periodic report 8 Apr. 1993; 3rd and 4th periodic reports 1 Apr 1997)

CRC – signature & ratification 1990 with reservations to Arts. 14(1) & 21

ICESCR – accession 1998 with declarations regarding Arts. 1, 2 & 3

Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages – accession 1998 with reservations to Arts. 1 & 2

Legal History:

[see also: Legal History, Republic of India and Legal History, Islamic Republic of Pakistan] Bangladesh seceded from Pakistan in December of 1971. Following independence, the British-era legislation that had continued to be applied in Pakistan, as well as the post-1947 legislation enacted by Pakistan, remained the basis of Bangladeshi personal status laws. Pearl and Menski state that legal developments in Bangladesh and Pakistan since 1972 have been quite distinct. The prospect of a Uniform Family Code has been a subject attracting much lobbying by women’s groups in Bangladesh, but there is no equivalent to India’s constitutional directive regarding a Uniform Civil Code.

Schools of Fiqh: The Hanafi school is the predominant madhhab in Bangladesh. There are also Hindu and Christian minorities.

Constitutional Status of Islam(ic Law): The Constitution was adopted on 4 November 1972. An amendment to the Constitution under President Ziaur Rahman in 1977 removed the principle of secularism that had been enshrined in Part II: Fundamental State Policy, replacing it with "absolute trust and faith in Almighty Allah." The Eighth Amendment of 1988 inserted Article 2A, affirming that "[t]he state religion of the Republic is Islam, but other religions may be practised in peace and harmony in the republic." Some women’s groups challenged this move on the grounds that it risked exposing women to discriminatory laws.

At the same time, state law in South Asia has always afforded recognition to and left a sphere for the application of the family laws of different religious communities. Constitutional protection of women’s rights and the assertion of gender equality comes under the Fundamental Principles of State Policy and is enshrined in Article 10 on the participation of women in national life as well as in Articles 26 to 29 of the section on Fundamental Rights affirming equality of all citizens before the law. This is balanced against the Constitutional protection of minority rights provided for in Article 41 on freedom of religion and the freedom of every religious community or denomination to establish, manage and maintain its religious institutions (subject to law, public order and morality). This affects the significant Hindu minority in Bangladesh (roughly equivalent in proportion to India’s Muslim minority) in addition to Christian and Buddhist minorities.

Court System: The judiciary is organised at two levels, with subordinate courts and a Supreme Court with Appellate and High Court Divisions. The Family Courts Ordinance 1985 governs the application of the personal laws of all Bangladeshis through the state judiciary by the creation of Family Courts. The Family Courts have jurisdiction over personal status cases of all communities, though religious minorities are governed by their own personal laws. The Family Courts are convened in Assistant Judges’ Courts and have special procedures and reduced formalities. The Family Courts may hear suits in camera at the request of both parties, and the court fees are nominal, but lawyers’ and notaries’ fees considerably increase the costs associated with going to court. Under the terms of the Ordinance, Family Courts have exclusive jurisdiction to try and dispose of suits relating to the dissolution of marriage, the restitution of conjugal rights, dower, maintenance, and guardianship and custody.

The jurisdiction of the Family Courts is restricted so that if any criminal offence arises in the context of a civil case, it comes under the jurisdiction of Criminal or Magistrates Courts. This has created some inconsistencies within the legal system with Magistrates still hearing maintenance claims under section 488 of the Criminal Procedure Code while Family Courts are supposed to retain exclusive jurisdiction to try and determine maintenance cases. The Bangladeshi legislation relating to family courts is quite similar to the legislation applicable in Pakistan, however, the Pakistani Family Courts have broader jurisdiction extending beyond civil suits.

Notable Features: [see also: Notable Features, Republic of India and Notable Features, Islamic Republic of Pakistan]

As elsewhere in South Asia, much of the Muslim personal law is unlegislated, the basis for the law being classical Hanafi fiqh except where this has been amended by legislation.

The Muslim Personal Law (Shari’at) Application Act 1937 continues to govern the application of Muslim family law in Bangladesh. (The pre-independence legislation that replaced this Act in 1962 only applied to West Pakistan.) According to the Act, Bangladeshis are subject to local custom and usage in matters relating to wills, legacies or adoption, unless a person declares his or her express preference for being governed by Islamic law. Thus, estates may validly devolve in proportions favouring women under customary law.

The Child Marriage Restraint Act 1929 has been amended by Ordinance in 1984 so that the minimum ages of marriage are 21 for men and 18 for women. The legislation provides penal sanctions for those who knowingly participate in the contracting of an under-age marriage, but does not invalidate such marriages.

The Muslim Marriages and Divorces (Registration) Act 1974 enacted to strengthen the inducements for civil registration states that "every marriage solemnised under Muslim law shall be registered in accordance with the provisions of this Act" and establishes the licensing of Nikah Registrars. The punishment for not registering a marriage is a prison sentence and/or a fine. Failure to register does not invalidate the marriage. It should also be noted that, although there is no legislation to this effect, there is a customary trend in Bangladesh towards encouraging the insertion of stipulations relating to delegated divorce in the marriage contract.

The issues of maintenance and obedience within marriage continue to be governed by classical law for the most part. Much legal development has occurred through case law. In Nelly Zaman v. Giasuddin Khan (34 DLR (1982) 221), the Court ruled that, with the passage of time, the husband’s suing for forcible restitution of conjugal rights against an unwilling wife is both outmoded and untenable if considered with relation to the principle of equality of men and women enshrined in Articles 27 and 31 of the Constitution. "In the husband’s unilateral plea for forcible restitution of conjugal rights as against a wife unwilling to live with her husband, there is no mutuality and reciprocity between the respective rights of the husband and the wife, since such plea for restitution of conjugal rights is not available to a wife as against her husband apart from claiming maintenance and alimony. A reference to Article 28(2) of the Constitution of Bangladesh guaranteeing equal rights of women and men in all spheres of the state and public life would clearly indicate that any unilateral plea of a husband for forcible restitution of conjugal rights as against a wife unwilling to live with her husband is violative of the accepted State and Public Principle and Policy" (34 DLR (1982) 221, at p. 222). With respect to arrears of maintenance, in Rustom Ali v. Jamila Khatun (43 DLR (1991) 301), the Court ruled (in accordance with classical Hanafi law) that a wife is not entitled to arrears of maintenance. Maintenance will only be allowed her from the date the suit is brought before the Family Court until three months from the decree of dissolution of marriage. The former wife or the child may not claim past maintenance unless the parties have a previously established agreement. In Muhammad Hefzur Rahman v. Shamsun Nahar Begum (15 BLD (1995) 34) relating to the maintenance of divorcées, the Court ruled that a Muslim husband’s responsibility to maintain his divorced wife does not cease with the expiry of the ‘idda. The Court stated that the former husband is bound to provide his divorced wife with maintenance on a reasonable scale for an indefinite period, until her status as a divorcée changes, that is, if she remarries. The ruling was based on an interpretation of a Qur’anic verse relating to provisions for divorced wives (2:241). The Supreme Court overturned the High Court’s judgement on 3 December 1998, leaving the classical Hanafi interpretation intact for the moment.

The Bangladeshi Muslim Family Laws Ordinance, based on the Pakistani MFLO of 1961, has incorporated some amendments to the original legislation. There are administrative differences in terms of the governmental bodies that apply the provisions of the MFLO at the local level. Applications, appeals and conciliation procedures go to the Union Parishad, Pourashava or Municipal Corporation. This includes the application process for contracting polygamous marriages, the application process itself remaining the same (i.e., requiring the reasons for wanting to contract a polygamous marriage and certification attesting to the existing wife’s or wives’ consent). Legislation introduced in 1974 to encourage and facilitate the registration of marriages has also been used to amend the MFLO and use registration as a method of controlling polygamy. The MFLO also establishes penalties for contracting polygamous marriages in contravention of the law. Polygamous marriages contracted without the permission of the relevant authorities are not rendered invalid, nor is there a penalty for failing to obtain the existing wife’s consent (as long as the Council has permitted the polygamous marriage). In Jesmin Sultana v. Mohammad Elias (1997 (17) BLD 4), the Court ruled that Section 6 of the MFLO prohibiting the contracting of a polygamous marriage without the prior permission of the Arbitration Council is against the principles of Islamic law. The Court stated that Muslim jurists and scholars are nearly unanimous in the view that it is practically impossible to deal with co-wives justly, and so the Qur’anic injunction that a second wife may be taken under specific conditions is virtually a prohibition. The Court also noted that Tunisia has given legislative effect to this interpretation. Thus the Court recommended that section 6 of the MFLO should be repealed and replaced by a section prohibiting polygamy altogether. The Court also directed that a copy of the judgement be sent to the Ministry of Law for consideration. No action is known to have been taken on it.

The Dissolution of Muslim Marriages Act 1939 also remains in force in Bangladesh, with the amendments initiated in Pakistan by the Muslim Family Laws Ordinance 1961; that is, a polygamous marriage by the husband in contravention of the provisions of the MFLO is included as sufficient grounds for the first wife to obtain a decree of dissolution. A post-independence amendment to the provision relates to the exercise of the option of puberty, entitling a girl contracted into marriage by her father or other guardian before the age of 18 to repudiate the marriage (provided it has not been consummated) before attaining the age of 19. In addition, judicial khul’ granted by the courts without the husband’s consent allows for women to obtain divorce by waiving their financial rights. In Hasina Ahmed v. Syed Abul Fazal (32 DLR (1980) 294), the Court ruled that a woman may be granted a khul’ by a judicial decision without the husband’s consent.

Custody continues to be governed by the Guardians and Wards Act 1890 in Bangladesh. The Act stipulates that the courts are to be guided by the personal law to which the minor is subject. The courts are also directed to consider the age, gender and religion of the minor and the character and capacity of the proposed guardian, as well as considering the minor’s own opinion if s/he is old enough to form an intelligent preference. For Muslims, the general rule is that the divorced mother is entitled to custody over male children until the age of 7 (classical Hanafi position) and over female children until puberty. Under the legislation, if the minor is very young or is a female, the courts are directed to give preference to the mother. In all cases, the interests of the ward are paramount. This has been confirmed by a number of judgements, such as Muhammad Abu Baker Siddique v. S.M.A. Bakar & others (38 DLR (AD) 1986). The Court’s ruling contradicted the classical dictates of Hanafi law according to which the mother’s custody over a boy ends at 7. The Court stated that "[i]ndeed, the principle of Islamic Law (in the instant case, the rule of hizanat or guardianship of a minor child as stated in the Hanafi school) has to be regarded, but deviation therefrom would seem permissible as the paramount consideration should be the child’s welfare." The Court also pointed out that the rationale for the departure from classical positions is justified as there is no clear and distinct statement of the Qur’an or sunnah to rely upon, and also because the jurists themselves never reached any consensus. The Zohra Begum v. Latif Ahmed Munawar (1965 (17) DLR (WP) and PLD 1965 (Lah) 695) case, and other rulings deviating from classical law are also cited.

As there are detailed rules for the division of estates according to classical law, there is little legislation in this area. In general, property devolves upon the heirs according to Hanafi or Ja’fari rules of succession. The Muslim Family Laws Ordinance 1961 also introduced obligatory bequests in favour of orphaned grandchildren, allowing them to inherit from their maternal or paternal grandparents in place of their deceased mothers or fathers.

The Repression against Women and Children Act of January 2000 recognizes offenses of sexual assault and sexual harassment.  It also authorizes a tribunal to decide to keep a woman in protective custody against her will for her safety.

Law/Case Reporting System: Bangladesh Legal Decisions, Dhaka Law Cases, Dhaka Law Reports

International Conventions & Reports to Treaty Governing Bodies: Bangladesh acceded to the CEDAW in 1984 with a reservation relating to Article 2 regarding the elimination of discrimination against women and the Article 16(1)(c) regarding equality of rights in marriage and upon its dissolution; Bangladesh does not consider these provisions binding as they "conflict with the shari’a law based on (the) Holy Qur’an and Sunnah."

Bangladesh signed the CRC in 1990 and ratified the same year, with reservations to Articles 14(1) on children’s freedom of religion and 21 relating to adoption. The reservation to the latter states that the provision will apply subject to the existing laws and practices in Bangladesh.

Bangladesh acceded to the ICESCR in 1998 with a number of declarations. The interpretative declaration relating to Articles 2 and 3 of the Covenant states that equality of rights between men and women is to be implemented in so far as they agree with the Constitution of Bangladesh and, more specifically, subject to Bangladeshi state inheritance law.

Bangladesh acceded to the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages in 1998 with reservations to Articles 1 and 2, stating that the treaty would be applied “in accordance with the Personal Laws of different religious communities of the country,” and allowing for a “dispensation as to age, for serious reasons, in the interest of the intending spouses.”

Background and Sources: Hossain, "Equality in the Home: Women’s Rights and Personal Laws in South Asia," Human Rights of Women: National and International Perspectives, ed. Cook, Philadelphia, 1994; Mahmood, “Bangladesh” in Statutes of Personal Law in Islamic Countries, 2nd ed., New Delhi, 1995; Monsoor, From Patriarchy to Gender Equity: Family Law and Its Impact on Women in Bangladesh, Unpublished PhD dissertation, SOAS, University of London; Pearl & Menski, Muslim Family Law, 3rd ed., London, 1998; Redden, “Bangladesh” in Modern Legal Systems Cyclopedia, vol. 9, Buffalo, NY, 1990; Robinson, ed. The Cambridge Encyclopaedia of India, Pakistan, Bangladesh, Sri Lanka, Nepal, Bhutan and the Maldives, Cambridge, 1989.