Table Of Content

Revisiting Personal Laws in Bangladesh <UN> Studies in International Minority and Group Rights Editors-in-Chief Gudmundur Alfredsson and Kristin Henrard Advisory Board Han Entzinger, Professor of Migration and Integration Studies (Sociology), Erasmus University, Rotterdam, The Netherlands; Baladas Ghoshal, Jawaharlal Nehru University (Peace and Conflict Studies, South and Southeast Asian Studies), New Delhi, India; Michelo Hansungule, Professor of Human Rights Law, University of Pretoria, South Africa; Baogang He, Professor in International Studies (Politics and International Studies), Deakin University, Australia; Joost Herman, Professor in Globalisation Studies and Humanitarian Action, University of Groningen, The Netherlands; Will Kymlicka, Professor of Political Philosophy, Queen’s University, Kingston, Canada; Ranabir Samaddar, Director, Mahanirban Calcutta Research Group, Kolkata, India; Prakash Shah, Senior Lecturer in Law (Legal Pluralism), Queen Mary, University of London, the United Kingdom; Tove Skutnabb-Kangas, Åbo Akademi University, Dept. of Education, Vasa, Finland; Siep Stuurman, Professor of History, Erasmus University, Rotterdam, The Netherlands; Stefan Wolff, Professor in Security Studies, University of Birmingham, the United Kingdom. volume 14 The titles published in this series are listed at brill.com/imgr <UN> Revisiting Personal Laws in Bangladesh Proposals for Reform Edited by Faustina Pereira Shahnaz Huda Sara Hossain leiden | boston <UN> Library of Congress Cataloging-in-Publication Data Names: Pereira, Faustina, editor. | Huda, Shahnaz, editor. | Hossain, Sara, editor. Title: Revisiting personal laws in Bangladesh : proposals for reform / edited by Faustina Pereira, Shahnaz Huda, Sara Hossain. Description: Leiden ; Boston : Brill Nijhoff, 2019. | Series: Studies in international minority and group rights ; volume 14 | Includes bibliographical references and index. Identifiers: LCCN 2018012186 | ISBN 9789004357341 (hardback : alk. paper) | ISBN 9789004357273 (e-book) Subjects: LCSH: Domestic relations--Bangladesh. | Religious minorities--Legal status, laws, etc.--Bangladesh. | Muslims--Legal status, laws, etc.--Bangladesh. | Indigenous peoples--Legal status, laws, etc.--Bangladesh. Classification: LCC KNG540 .R48 2018 | DDC 342.549208--dc23 LC record available at https://lccn.loc.gov/2018012186 Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 2210-2132 isbn 978-90-04-35734-1 (hardback) isbn 978-90-04-35727-3 (e-book) Copyright 2019 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner. <UN> Contents Foreword vii Meghna Guhathakurta Foreword ix Cécile Insinger Preface xiii Kamal Hossain Acknowledgments xv List of Illustrations xvii Notes on Contributors xviii Introduction 1 1 Civil Laws Governing Christians in Bangladesh 6 A Proposal for Reform Faustina Pereira 2 Combating Gender Injustice: Women and the Hindu Law of Personal Status in Bangladesh 58 A Comparative Analysis Shahnaz Huda 3 Muslim Women’s Rights under Bangladesh Law 145 Provisions, Practices and Policies Related to Custody and Guardianship Nowrin Tamanna, Muhammad Amirul Haq and Sara Hossain 4 Gender, Personal Laws and Practices of the Bengali Barua Buddhists of Bangladesh 195 Shahnaz Huda 5 Personal Laws of the Indigenous Peoples of the Chittagong Hill Tracts, Bangladesh: A Gender Perspective 212 Rani Yan Yan and Raja Devasish Roy Annex i Hindu Marriage Registration Act, 2012 247 Annex ii Guardians and Wards Act, 1890 251 Index 271 <UN> Foreword In 2017, we celebrated the 70th anniversary of what is popularly known in South Asia as the Partition of the Indian subcontinent in 1947. This marked the watershed for the emergence of India and Pakistan (and later Bangladesh) from the British colonial past to the modern precepts of the nation-state. A lot has happened since then: massive population movements, wars, Liberation movements, extremism and fluidity and ruptures in the construction of new nations and nationalities. But despite the changes, traditions persist, especially in the construct of new nation-states whose foundations remain entrapped in the traditional legal practice of a colonial era. Considerable reforms have been made in these laws and new progressive laws have been incorporated as state policies in keeping with the ‘brave new world’ that we were entering, but such laws often failed to traverse the faultlines left by socio-political forces of history. Reforms in religious laws sometimes affected only majority communities leaving minority communities in the shadows of rules and regulations consid- ered inappropriate in a humanistic world. On the other hand customary practices in indigenous communities have provided more cultural freedom and protection than those provided by state laws. The concept of personal laws in South Asia incorporates the complexities mentioned above. Muslim personal law has effectively been amended among majority communities in Pakistan and Bangladesh, but not so for minority communities. This situation is a mir- ror reflection in the case of personal laws for the majority Hindu population in India. An additional complexity is that personal laws in South Asia are gendered and those sanctioned by religion are especially ensconced in structures of patriarchy, making legal reforms especially difficult and arduous as it entails digging deep into both societal values and legal provisions. But that does not mean it cannot be done. Reforms in South Asia have often been brought about by changes in power structure or by long drawn out people’s movements and by an assiduous rereading and re-interpretation of the law itself. In transiting from a colonial discursive practice into a more humanistic understanding of the world, there can be no short cuts! The writings in this volume is therefore very important not only for those in Bangladesh but for all those who seek to modernize and adapt traditional notions of justice into more universal ways of application. In Bangladesh we already have a vibrant movement arguing for a Uniform Personal Code or for seeking to do away with the Bangladesh state’s reservation in ratifying the uncedaw Resolution. Readings of customary law arguing for diversity is a <UN> viii Foreword budding discourse among lawyers and professionals of the indigenous community. But more needs to be done. More boundaries need to be pushed, be- cause we are indeed living in a world that carries a tremendous potential of destruction as it does of preservation. Protection of individual rights, of the environment can come about by first addressing local structures of power and patriarchy and then exploring notions of diversity that lie embedded in hu- manity and nature. The writings in this book provides just such an opportunity and therefore carries an appeal beyond the boundaries of nation, state and region. Meghna Guhathakurta <UN> Foreword In May 2009 the South Asian Institute of Advanced Legal and Human Rights Studies (sails), a fairly young institute at the time, organised a small semi- nar on Women’s Property Rights. Professor Bina Agarwal, a development economist from New Delhi, India had been invited to speak. She had led the movement in India which had resulted in the passing of the Hindu Succession (Amendment) Act in 2005, a law that gave daughters equal rights to their male relatives when inheriting property. We ended up with a passionate and candid discussion shared by all partici- pants on the current situation of succession, marriage and property ownership of Hindu women in Bangladesh. India was way ahead of Bangladesh with re- spect to reforming its laws and regulations in the personal sphere for its largest community, the Hindu community. It was an inspiring afternoon; clearly there was work to be done for Bangladesh. A year later, in April 2010, sails embarked on the ‘Combating Gender Injus- tice’ research project funded by the Netherlands Embassy in Bangladesh, with back office support from the law firm of Dr Kamal Hossain & Associates and the blessing of the Bangladesh Law Commission. This project was the starting point and the foundation of the publication before you. Three communities within Bangladeshi society were to be targeted. The daily lives of the women and children within these communities were then and still are today affected by personal laws reflecting gender inequality and a lack of will or power to reform these laws and procedures in line with modern views of civilization. We had chosen to study the personal laws of the Christian communities, the Hindu community and also to examine court cases and legal procedures related to custody and guardianship which involve women and children within the mainstream community of the country, the Islamic community, an area in which the rules of Shariʿa are in conflict with the provisions laid down in international conventions which Bangladesh has ratified. Three teams were formed, each led by experts in its field: Dr Faustina Pereira (brac), Professor Shahnaz Huda (University of Dhaka) and Barrister Sara Hos- sain, (Partner Dr Kamal Hossain & Associates). Dr Nowrin Tamanna an expert on Islamic family law from the University of Reading, UK joined the team on custody and guardianship, as did Advocate Muhammad Amirul Haq, a young advocate practicing in Dhaka. Students were selected to carry out the painstak- ing task of travelling through the country interviewing the members of the dif- ferent communities and collecting the court cases. After all the interviews had been carried out, collected and the results interpreted, stakeholder meetings <UN>