 |
| Era Sharmila Khan |
Introduction
The colonial heritage of British authority is still evident
in Bangladesh's Hindu personal laws. India, on the other hand, sought
significant reforms in the 1950s after gaining independence. Despite fierce
opposition and the failure of the first Hindu Code Bill in 1951, persistent
efforts resulted in the passage of four important legislation that represented
a major advancement for the Hindu community in terms of justice and modernity[1].
The specifics of Hindu personal laws
in both nations will be examined in this essay, with an emphasis on how
tradition and reform have influenced them.
Constitutional and International
Obligation of Bangladesh:
Bangladesh's constitution, like many
others, guarantees equality, outlaws discrimination, and establishes its
supremacy over conflicting laws through Article 7[2].
The
Bangladesh Constitution's Articles 28 and 29 place a strong emphasis on
nondiscrimination and guaranteeing everyone's equal rights, including gender
equality in public life.[3].
Special provisions for women, children, and disadvantaged groups are permitted
under Article 28(4)[4]. In accordance with its Constitution
and international obligations such as CEDAW, ICCPR, ICESCR, and the Convention
on Consent to Marriage, Bangladesh must guarantee that all legislation,
particularly those pertaining to religion personal freedom, are
nondiscriminatory.
Citing inconsistencies with Sharia
law, Bangladesh has reserved Articles 2 and 16(1)(c) of CEDAW. Critics contend
that the fundamental goal of the Convention is compromised by the Article 2 reservation.
Equal parental rights and free consent to marriage are upheld in Bangladesh
(Articles 16(1)(b), (d), and (f)), but equal rights in marriage and divorce are
not. Bangladesh must address social and cultural norms that support gender
inequity and stereotypes in order to adhere to Article 5(a)[5].
In accordance with its Constitution,
Bangladesh pledges to uphold gender equality under ICESCR Articles 2 and 3,
especially with regard to economic rights like inheritance, notwithstanding its
reservations.
[6].
Bangladesh respects Article 23 of
the ICCPR, which guarantees child protection, equality in marriage and its
dissolution, and consent. As a result, it must uphold these values and register
every marriage[7].Regarding the minimum marriage age
and free consent, Bangladesh has reservations regarding Articles 1 and 2 of the
1962 Marriage Convention. However, all marriages, including Hindu marriages,
must be registered under Article 3[8].
So, in order to protect individual
rights within families, Bangladesh is required by international agreements to
guarantee gender equality, require consent for marriage, and require
registration.
Comparison of Key Provisions in Hindu
Marriage Laws :
Both India and Bangladesh have
minimum marriage ages of 21 for men and 18 for women under Hindu law. In
contrast to India, where child marriage is prohibited under the Hindu Marriage
Act of 1955, Bangladesh's Child Marriage Restriction Act of 1929 penalizes
child marriage without invalidating the relationship. Furthermore, marriage
eligibility is complicated in Bangladesh due to the country's traditional
Dayabhaga conceptions of sapinda and forbidden relationships. India's legal
system, on the other hand, has more precise criteria, making it easier to
determine whether a marriage is legal[9].
There are additional differences that are enumerated below:
Marriage registration requirements : Proof of marriage is just as crucial as proof of contract.
Before claiming any legal rights in a marital dispute, Hindu women must
demonstrate the validity of their marriage, including adherence to customary
ceremonies, as Hindu marriage registration is not required in Bangladesh. For
all citizens subject to Hindu law, the Hindu Marriage Registration Act of 2012
is applicable[10].
The Hindu Marriage Registration Act
of 2012 allows Hindu citizens to legally register their marriages, thereby
giving Hindu women the ability to protect their rights and obligations in
marriage[11].
Although it describes the steps for registering Hindu marriages, the Hindu
Marriage Registration Act of 2012 does not specify any severe or higher
penalties for non-registration[12].
Despite emphasizing the value of
registration in maintaining documentary evidence, the Act neither requires nor
punishes non-registration. On the other hand, marriage registration is required
under Indian Hindu law as evidence of marriage, and noncompliance has penalties.
The Act makes registration legally required and imposes penalties for
noncompliance, thereby assisting individuals in asserting their rights through
marriage[13].
Divorce laws and grounds for
dissolution of marriage :
In the past, divorce was illegal
under ancient Hindu law, and Hindu marriage was considered a sacrament
(samskara), signifying an unbroken lifelong commitment. However, modern Hindu
law in India permits divorce and views marriage more like a transaction.
Additionally, there is evidence that divorce was practiced in ancient Hindu
culture[14].
India's
Hindu Marriage Act of 1955 permits judicial separation, divorce, nullity of
marriage, and divorce by mutual consent[15],
in contrast to Bangladeshi Hindu law. By allowing judicial separation, Section
10 releases the petitioner from the requirement to live with their spouse[16].
Bangladeshi law permits a wife to live apart from her husband with maintenance,
but divorce requires proof of custom, which is challenging[17].
Section 13 of the Indian Act provides adultery, cruelty, and desertion as
grounds for divorce in addition to provisions for women such as polygamy and
rape[18].
In contrast to Bangladeshi law, Indian law permits young brides to renounce
marriage through the Option of Puberty[19].
Adoptipn:
According to the Supreme Court's
Appellate Division, Hindu law permits the adoption of boys in Bangladesh,
especially through the dattaka form, which gives adopted sons the same
inheritance rights as biological sons. However, there is a lot of gender prejudice
in the adoption process[20].
Only fathers are permitted to adopt
under Bangladeshi Hindu law, and a Hindu man without sons may do it without his
wife's approval. While single women are unable to adopt, married women must
have their husband's consent. The legislation bans adopting boys with
disabilities and forbids adoption between castes, and widows need the prior
consent of their late husband[21].
By
eliminating the need for a religious ceremony, the Hindu Adoption and
Maintenance Act of 1956 secularized adoption in India. Any adult male Hindu who
has the consent of his wife may adopt under Section 7. Any sane adult Hindu
woman who is widowed, divorced, or unmarried may adopt under Section 8.
According to Section 10, the adoptive must be a Hindu under the age of 15 who
is single. The adopter must be at least 21 years older than the adopted child,
and the adopted child may be disabled, illegitimate, or orphaned[22].
In Bangladesh, this stands in contrast to traditional law.
Polygamy and monogamy provisions
:
The
Indian Hindu Marriage Act of 1955 forbids marriages in which one of the parties
has a spouse who is still alive at the time of marriage and imposes the
requirement of monogamy. The Act's Section 17 deems such unions null and void[23]
and imposes penalties under Sections 494 and 495 of the Indian Penal Code. Since Hindus view marriage as a holy
connection between two individuals, polygamy has historically been uncommon and
highly regulated, making monogamy a fundamental Hindu virtue[24].
The Hindu Marriage Act of
post-colonial India enforces monogamy, nullifying unions that defy it and
punishing men for bigamy. While polyandry is still outlawed and Hindu women in
bigamous partnerships may face fines, Bangladeshi Hindu law allows polygamy and
recognizes offspring from such unions as legal. Therefor polygamy
continues to exist in Bangladesh whereas monogamy is strictly enforced in India[25].
Maintenance and alimony regulations
With few exclusions that let wives
to live apart without losing maintenance rights because of desertion, cruelty,
leprosy, polygamy, remarriage, or religious conversion, Hindu husbands are
required to support their wives under India's Hindu Adoption and Maintenance
Act, 1956.
[26].
This is comparable to the 1946 Act of Bangladesh, which permits women to
request maintenance under certain circumstances[27].
But in both nations, the wife must remain chaste in order to be eligible for
maintenance.
Recommendations for Reforming
Bangladesh’s Hindu Marriage Law
Unquestionably,
Bangladesh's Hindu family rules need to be modified, but they also need to be
changed in a way that respects the community's customs and values. Among the
crucial topics requiring transformation are:
Registration ,Monogamy and Divorce:
Legal protection and proof of
marriage require mandatory marriage registration. Laws should need both
parties' express consent and enforce monogamy. In order to maintain
transparency and safeguard women's dignity in particular, divorce should be
available to both spouses on contemporary grounds such as incompatibility,
cruelty, or mutual consent, and it should be required to be registered.
Maintenance:
After a divorce or until they get
married again, women should be supported for the rest of their lives,
especially if they have been cruelly treated or separated against their will.
Courts should make fact-based maintenance decisions in peaceful divorces. If a
husband is incapacitated, he should likewise be able to request maintenance.
When the mother is financially able, the costs of raising the child should be
split between the two parents, representing a more gender-equitable approach.
Adoption:
In order to safeguard adopted
children's inheritance and parental care, Bangladesh must change its adoption
laws by giving women complete adoption rights and formally acknowledging
adopted children. A framework that de-stigmatizes adoption and safeguards the
rights and welfare of adoptive families would be established by extending the
Family Courts' jurisdiction over adoption. In order to completely forbid child
marriage, enforce maternal guardianship, require marriage registration, and
expedite ceremonies with opt-out provisions for underage relationships, the
Child Marriage Restriction Act ought to be modified. Campaigns for public
awareness and support systems are also crucial for advancing equity and women's
rights.
Conclusion
In conclusion, despite
constitutional protections, Hindus in Bangladesh are not sufficiently protected
by the country's antiquated laws, which discriminate against them in matters of
property, divorce, support, and marriage registration. India, on the other
hand, has significantly changed its legal system. It is imperative that
Bangladesh's laws be updated in order to guarantee Hindus' equal rights and
advance a more equitable and just society.
[1] Law Commission of India,
'174th Report on Property Rights of Women: Proposed Reforms under the Hindu
Law' (2000) <http://lawcommissionofindia.nic.in/reports/174thReport.pdf>
accessed 29 May 2025
[2] The Constitution of Peoples’
Republic of Bangladesh , Article.7
[3] The Constitution of Peoples’
Republic of Bangladesh , Article.28,29
[4] The Constitution of Peoples’
Republic of Bangladesh , Article.28
[5] UNDP Bangladesh, 'Withdrawal of
CEDAW Reservations Is Necessary to Ensure Gender Equality' (UNDP Bangladesh, 27
June 2019) <https://www.undp.org/bangladesh/press-releases/withdrawal-cedaw-reservations-necessary-ensure-gender-equality> accessed 29 May 2025.
[6] Bayefsky.com, 'Bangladesh, ICESCR,
Reservations' (Bayefsky.com) <https://www.bayefsky.com/html/bangladesh_t2_cescr.php> accessed 29 May 2025.
[7] International Covenant on Civil
and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) UNGA Res 2200A (XXI)< https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights> accessed 29 May 2025
[8] 'Convention on Consent to
Marriage, Minimum Age for Marriage and Registration of Marriages' (WhatConvention.org)
<https://whatconvention.org/en/ratifications/125> accessed 29 May 2025.
[9]Shahnaz Huda, Combating Gender
Injustice: Hindu Law in Bangladesh (South Asian Institute of Advanced Legal
and Human Rights Studies 2011).
[10] The Hindu Marriage Registration
Act 2012,s2
[11] Hindu Marriage Registration Act
2012, s (2-3)
[12] Hindu Marriage Registration Act
2012,S.8-11
[13] The Hindu Marriage Act, 1955, S.8
[14] Shahnaz Huda, Combating Gender
Injustice: Hindu Law in Bangladesh (South Asian Institute of Advanced
Legal and Human Rights Studies 2011).
[15] Hindu Marriage Act, 1955.
[16] Hindu Marriage Act, 1955.
[17] 'Divorce Laws and Procedure for
Hindus in Bangladesh' (Lawyers & Jurists) <https://www.lawyersnjurists.com/article/divorce-laws-and-procedure-for-hindus-in-bangladesh/ >accessed 29 May 2025.
[18]
Hindu Marriage Act, 1955
[19]
Shahnaz Huda, Combating
Gender Injustice: Hindu Law in Bangladesh (South Asian Institute of
Advanced Legal and Human Rights Studies 2011).
[20] Abuzar Gifari,
'Legal Framework on Hindu Marriage in Bangladesh' (The Daily Star, 6 February
2023) <https://www.thedailystar.net/law-our-rights/news/legal-framework-hindu-marriage-bangladesh-3424946> accessed 29
May 2025.
[21] ibid
[22] Hindu Adoption
and Maintenance Act of 1956
[23] The Hindu
Marriage Act, 1955
[24] Shahnaz Huda, Combating
Gender Injustice: Hindu Law in Bangladesh (South Asian Institute of
Advanced Legal and Human Rights Studies 2011).
[25]Shahnaz Huda, Combating Gender
Injustice: Hindu Law in Bangladesh (South Asian Institute of Advanced
Legal and Human Rights Studies 2011).
[26] Hindu Adoption and Maintenance
Act, 1956
[27]
The Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946
Era Sharmila Khan
LLB Graduate from Brac University; LLM
Candidate at Bangladesh University of Professionals.