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| Asaduszaman Sohag |
Summary of the fact:
Shamsun Nahar wed Hefzur Rahman on
25 March 1985, with a dowry of BDT 50,001, and they had a son in 1987. On 10
August 1988, her husband unilaterally divorced her. She initiated legal
proceedings asserting claims for unpaid dower and maintenance for herself and
their child. The Family Court awarded her BDT 89,000, which was then decreased
to BDT 72,600 by the District Judge. The High Court reinstated extended
maintenance; however, this decision was reversed by the Appellate Division.
Fundamental Legal Concerns:
1. Whether the refusal of support
beyond iddat contravenes constitutional assurances of equality and dignity.
2. The permissibility of changing
interpretations within Islamic jurisprudence that advocate for women's rights.
3. The extent of the judiciary's
authority to rewrite personal laws in accordance with constitutional mandates.
4. Did the Appellate Division err
by favoring strict classical interpretations over constitutional and
humanitarian factors?
Status in Classical Islamic Jurisprudence:
Islamic jurisprudence has several
views. Hanafi law limits post-iddat maintenance, although other schools,
including Shia and certain Maliki interpretations, allow for extended
assistance. The Holy Qur’an (Surah Al-Baqara, Ayat 241) asserts: “Divorced
women are entitled to provision that is reasonable, a responsibility incumbent
upon the pious.” Numerous contemporary scholars contend that this signifies a
moral and legal obligation for ongoing assistance, especially within the
socio-economic framework of Muslim-majority nations such as Bangladesh.
Injustice in the Application of
Rigid Classical Law:
Denying maintenance post-iddat
renders divorced women, particularly homemakers lacking independent income,
vulnerable. The Court's dependence on archaic literature such as Hedaya and
Baillie disregards contemporary reality. The view neglects to consider the
dynamic nature of Islamic law, which has historically evolved to meet shifting
societal demands
Constitutional
provisions regarding gender justice:
Article 41(1)(a): Affirms the right
of every citizen to profess, practice, or propagate any religion, thereby
protecting personal laws rooted in religious beliefs. Article 42: Provides for the protection of
personal property and rights, indicating that state intervention must align
with individual religious autonomy. Article 44(1): Ensures the judicial
enforcement of fundamental rights, encompassing freedom of religion and lawful
personal practices. Article 27 guarantees equality before the law; nevertheless,
it does not supersede personal laws, which are maintained under the principle
of religious freedom. Article 26(1) stipulates that legislation that are
inconsistent with the Constitution are rendered void to the degree of their
incompatibility. Personal law remains valid as it does not conflict with the
Constitution. These passages collectively substantiate the assertion that
Islamic personal law, as elucidated in Hefzur Rahman, does not contravene
constitutional demands. The Hefzur Rahman verdict defies these constitutional
requirements by rejecting post-iddat maintenance. The Court ought to have
interpreted personal law in alignment with basic rights.
The Judiciary's Role in
Safeguarding the Marginalized:
Bangladeshi courts have
historically employed progressive interpretations, as evidenced in judgments
concerning dowry and inheritance rights. In this circumstance, the High Court's
invocation of Ayat 241 was a valid exercise of interpretative authority aimed
at achieving justice. Article 102 authorizes the judiciary to give directives
for the enforcement of fundamental rights, encompassing the right to life with
dignity.
Comparative
Jurisprudence:
The Indian Supreme Court in Mohd. Ahmed Khan v Shah Bano Begum
(AIR 1985 SC 945) acknowledged a divorced Muslim woman's entitlement to
maintenance under secular law. Although subsequently mitigated by legislation,
the judgment established judicial endorsement for aligning personal law with
constitutional principles. Likewise, Pakistan's Federal Shariat Court has
recognized the changing responsibilities of women in Islamic society.
Improper Application of Article 41:
Article 41 guarantees religious
freedom but does not exempt discriminatory actions from judicial examination.
In Kazi Mukhlesur Rahman v Bangladesh (26 DLR 44), the Court determined that no
religious practice may supersede fundamental rights. Consequently, personal
laws must be construed to conform with Articles 27, 28, and 32.
Global Commitments:
Bangladesh is a
signatory to CEDAW (Convention on the Elimination of All Forms of
Discrimination Against Women) and has committed to removing legislative
obstacles to women's equality. The ruling of the Appellate Division compromises
this pledge.
Summary of Decisions*
The Appellate Division:
* Overturned the High Court's
ruling on prolonged maintenance.
* Affirmed a restrictive
interpretation of Islamic personal law.
* Disregarded constitutional
provisions for equality and dignity.
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Doctrinal and Constitutional Implications:
* Reaffirms traditional Islamic
jurisprudence in personal affairs. * Acknowledges the safeguarding of religious
autonomy as stipulated in Article 41.
* Maintains the idea of
constitutional supremacy as articulated in Article 7.
* Advocates for parliamentary
rather than judicial reform of personal laws.
*Harmonizes religious jurisprudence
with constitutional validity.
Conclusion:
The Hefzur Rahman decision, while doctrinally orthodox, is both legally and
ethically deficient. It does not embody the inclusive and progressive
principles of the Constitution of Bangladesh. A modified interpretation,
grounded in Islamic principles of justice and constitutional demands, would
more effectively safeguard the rights of divorced women in a contemporary
context. Judicial innovation, as opposed to strict textualism, is crucial for
promoting justice for marginalized communities in a diverse democracy.
References
1. 47 DLR (1995) 74
2. Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945.
3. Kazi Mukhlesur Rahman v. Bangladesh, 26 DLR (SC) 44.
4. Hedaya, Volume IV, Chapter XV.
5. NE Baillie, Digest of Mohammadan Law (2nd edition, 1875).
6. The Holy Qur'an (Islamic Foundation, translation by Muhammad Asad).
7. Convention on the Elimination of All Forms of Discrimination Against Women,
1979.
8. Constitution of the People's Republic of Bangladesh: Articles 15, 19, 27,
28, 32, and 41.
Asaduszaman Sohag
Lecturer, Department of Law, Uttara University