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Issues of Concern All Family Matter (Including-Marriage,Divorce/Seperation,Maintenance, Restitution of Conjugal Rights,Guardianship & Custody of children,Right to property,Adoption.)

*Issues of Concern All Family Matter (Including-Marriage,Divorce/Seperation,Maintenance, Restitution of Conjugal Rights,Guardianship & Custody of children,Right to property,Adoption.) By Adv.Shoaibur Rahman Shoaib *Marriage:- A) Age: The Child Marriage Restraint Act, 1929 have fixed the eligibility age to contract marriage as 21 years for men and 18 years for women. Unless this age is attained at the time of marriage, such marriage will constitute child marriage. According to the law, anyone charged with the offence of aiding, abetting and encouraging a child marriage shall be punishable with simple imprisonment. Since the Child Marriage Restraint Act, 1929 is applicable to all citizens irrespective of religion; the minimum age requirement is applicable for the Muslims as well as people professing other faiths. B) Consent: Against the backdrop of a male-dominated society which treats women as subordinates, women are seldom encouraged to make an informed decision including choosing a spouse and to consent freely at the time of marriage. Parents tend to impose their decisions regarding marriage on the bride and under coercion the bride gives consent to marry the man chosen by her guardians. C) Witnesses: According to the Shariah, two male or one male and two female witnesses are necessary for contracting a valid marriage. According to the Evidence Act, both male and female have been accorded equal status. In Hindu law, witness at marriage is not necessary. However, male priest officiating at marriage is considered witness for legal proposes. Notably, a Hindu woman does not have any scope of being witness. Amongst Christians, witness is required for valid marriage and male and female stand on an equal footing. D) Dower Money: .In accordance with its historic background and eternal meaning, the dower money concept undermines the dignity of woman though some people argue that dower is a token of respect for women and essential for their economic security. Unlike Islam, other personal laws do not recognize the concept of dower money ayable to wife. E) Registration: According to existing law of Bangladesh Muslim marriages must be registered.. The statute imposes liability to register the marriage on the bridegroom and the marriage registrar. Hindu and Buddhist marriages do not require registration. Christian marriage is registered in the book kept in the Church and non-registration is not punishable. F) Polygamy / polyandry: According to the Shariah, Muslim men are allowed to keep up to four wives at a time with the consent of previous wife. A Hindu male, on the other hand can keep as many wives at a time as he wishes. Law prohibiting polygamy is yet to come. There is no bar for the Christian, Hindu and Buddhist men to solemnize more than one marriage at a time. G) Hilla Marriage: .When the divorce becomes irrevocable and the couple in dispute desires to cohabit again, a fresh marriage between them becomes mandatory. However before remarrying her husband, the wife is required to marry a third person and such kind of intermediate marriage (hereinafter called as hilla marriage) has to be consummated. The issue of hilla marriage often instigates violence against women and should be abolished immediately. Unfortunately, it has neither been prohibited nor abolished completely. With the completion of pronouncement of triple talak, according to Section-7 of MFLO, 1961 hilla marriage becomes obligatory for the wife if the couple wants to cohabit again. The concept of hilla marriage is absent in other religious communities **Divorce/ Separation A) By Mutual Consent Section-7 of the Muslim Family Laws Ordinance, 1961 lays down the procedure for execution of divorce which is mutatis mutandis applicable for all forms of dissolution of marriage. Khula and mubarah are the two forms of divorce by mutual consent though in both cases, the husband has been vested with unfettered power and the wife’s status has been reduced to a divorcee. In the context of hula however, the wife has to relinquish the claim of dower. B) Talaq-E-Taufiz The husband has the power to delegate his exclusive right of pronouncing divorce to some third person or to the wife by virtue of this provision enumerated in the 18th column of kabinnama (marriage contract). This provision empowers a Muslim wife to obtain her freedom from a failed or broken marriage without the intervention of any Court. C) Contested Divorce A Muslim wife is allowed to claim divorce in the Court on some specific grounds laid under The Muslim Marriage Dissolution Act, 1939. Both the Christian spouses are entitled to dissolve their marriage through Court under the provision dealt in the Divorce Act, 1869. There is no legal provision for divorce by mutual consent or contest for the Hindus and the Buddhists. Hazong (indigenous tribe) women enjoy the right to divorce though they claim themselves to be followers of Khatrio of Hindu religion. D) Right to Separate Residence and Maintenance As there is no scope for a Hindu married woman to divorce or marry another person, by virtue of Section 2 of The Hindu Married Women’s Separation And Maintenance Act,1946 she is entitled to separate residence and maintenance from her husband on any one of the seven grounds provided in the statute. However, the Hindu married woman seeking maintenance for separate residence should be able to prove her chastity and continue to practice her religion. E) Registration A divorce is required to be registered under Section 6 of The Muslim Marriage and Dissolution of Marriage (Registration) Act, 1974. The statute does not make the registration of divorce mandatory and silent about consequence of non- registration.. The Divorce Act, 1869 which is applicable for the Christians does not lay down any provision for the registration of a confirmed decree for dissolution of marriage. As there is no scope of divorce, registration thereof is beyond question among the Hindus and Buddhists. Fatwa and its Social Implications: Fatwa is a religious injunction and a deadly weapon for repression of women in particular used by religious fundamentalists that has negative consequences inducing women to commit suicide. Surprisingly however, no new law prohibiting or intending to control Fatwa has been introduced. The Prevention of Repression against Women and Children Act which has been amended a couple of times is also silent about Fatwa and does not address it as a punishable offence. **Maintenance  A) Maintenance during Iddat Period After termination of marriage, a Muslim wife is entitled to be maintained all kinds living expresses by her husband till the expiration of three terms of menstruation or to the end of pregnancy whichever is longer. Since the concept of Iddat is unrecognized in other religious communities maintenance during that period is not available among them. B) Maintenance for Children: According to the Muslim Law both legitimate and illegitimate sons are entitled to maintenance until they attain puberty; whereas only legitimate daughters are ntitled to maintenance until they are married. **Restitution of Conjugal Rights:  The Hindus, the Muslims, the Buddhists and the Christians can apply to the Family Courts for the restitution of conjugal rights. No gender discrimination is identified in this context. According to the Divorce Act, 1869, either spouse may sue for restitution of conjugal rights. Some milestone judgments have also come from the apex Court regarding restitution of conjugal rights. **Guardianship and Custody of Children: A) Contested Custody Cases: According to Islamic Jurisprudence, the father is the natural guardian of the children. After his death guardianship accrues upon the paternal grand father and the paternal grand father’s executor. A Muslim mother can never be the legal guardian of her children. Instead of guardianship, she can claim the custody of her son until he is seven years of age and of her daughter until she is eighteen years of age. If there is a breach of this duty by a unilateral act of the father or anybody on his behalf, the aggrieved mother has the right to move before the High Court Division under Article 102 of the Constitution for immediate custody of the children which may be ordered in their interest and welfare. The law however stipulates that the father continues to be the children’s legal guardian even if the mother is granted custody through the Courts.By virtue of The Guardian and Wards Act, 1890, the doctrine of welfare of children has assumed importance and over the past decades a visible shift has been noted in the application of judicial mind in matters relating to custodianship. No technical division as to guardianship and custody of children exists under Hindu or Christian personal laws. However, although The Guardian and Wards Act, 1890 is uniformly applicable to all citizens, the Hindu and Christian personal laws are yet to evolve accordingly. **Right to Property Women from all communities excepting the Christians suffer from discrimination with regard to claiming their right to property. According to the Golden Rule of the principle of law of inheritance for the Muslims, female co-sharer gets half of a male of same grade i.e. husband gets ½ and ¼ in two capacities while wife gets ¼ and 1/8 in the same capacities respectively. Brothers and sisters inherit at 2:1 ratios.A Bangladeshi Hindu woman’s right to inheritance is non existent. In Bangladesh the limited right of life estate4 or widow’s estate accorded to a women, is sometimes referred to as inheritance, although this is an anomaly within the strict understanding of the term inheritance. However, a Hindu widow is not entitled to alienate the immovable property inherited by her.  A Christian woman is in a comparatively better position under the law of inheritance than a Muslim or Hindu woman given she is entitled to inherit equally as that of her brother. The Married Women’s Property Act, 1874 provides that the earnings of any married women remain her exclusive and separate property. Among indigenous tribes the Marma women inherit equally. Tanchanga daughters cannot claim ancestral property if there is a son and Tripura & Chakma daughters as a matter of practice do not claim their right to ancestral property. **Adoption: According to Hindu law, only men have the right to take a male child in adoption. Hindu women have no right to adopt. Right to adopt is recognized and encouraged in Christian law. The concept is prohibited in Muslim law. As a State party to the CEDAW, Bangladesh is under obligation to take all appropriate measure to eliminate discrimination against women and to ensure on the basis of equality of men and women the same rights and responsibility with regard to adoption of children .No legislative initiative has been taken to ensure that the right to adopt is open to all irrespective of gender or marital status.

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