In Bangladesh, family law equals to religious law. Almost all marriages (be it Bangalee or indigenous) are intra-religious, homogenous, and conducted following the religious norms and customs. The only law allowing 'civil marriage', i.e. interreligious marriage is the age old Special Marriage Act 1872, which contains a blatantly unconstitutional provision. Section 2 of this Act totally bars a Muslim, a Hindu, a Buddhist and a Christian to opt for interreligious marriage. In practice, the provision has translated in parties making an affidavit before a notary denouncing their faith and claiming that they do not follow any particular religion. While freedom of religion is a fundamental right under the Bangladeshi Constitution, and while as per the Committee on Civil and Political Rights this right to freedom of thought, conscience and religion implies that marriage laws of each State should provide for the possibility of both religious and civil marriages; the 1872 Act offers right to marry at the cost of foregoing freedom of religion. It thus operates as a tool of enforced religious conversion or denouncement when marriageable adults (not citizens only!) wish to marry a person not sharing a similar faith. The Act further takes away the right of adoption for people marrying under this law which also violate the right to family and family life. It is indeed interesting to see that a law with so many constitutionally challengeable provisions has never been challenged before the apex court.
Secondly, the dominance of religious laws and norms regarding marriage becomes further apparent in the context of child marriage. Bangladesh has been fighting this social evil since before the independence, and yet the results are far less than satisfying. Child marriage cannot be held void or illegal because the religious laws sanction child marriage. Never mind that the religious laws came in a time when people rarely lived past 40. Never mind that child rights are human rights. Never mind that Bangladesh is a party to the CRC 1989. On the contrary, the State attempts to eye wash us by punishing a 'valid' act: go to jail for a few months, come back, and all is well. Law is effectively deterrent only when the parties will know that the court will give no rights under such marriage: no dower, no maintenance, no conjugal rights, no inheritance and yes, no custody for the father. So long as the marriage itself is not made void, child marriage prevention laws are a joke.
In Bangladesh, marriage laws are political maneuvers calculated to preserve the vote banks while appeasing the stakeholders, NGOs and civil society. The final layer was added to this muddling business by the government proclamation of 2014 which banned Bangladeshi-Rohingya intermarriage. While a State has the right to take any measures necessary to ensure and preserve State security and internal law and order, restraints must be practiced so that such measure does not amount to encroachment upon the basic rights of the people within its territory. Further precautions must be observed when the alleged step may create a constitutionally challengeable double standard for its citizens.
It is claimed that the Rohingyas are 'allegedly' using marriage as a tool to gain citizenship. In fact, there are indeed many countries which regulate marriage permissions regarding non-citizens. However, marriage laws must not be arbitrary, must not be without a legitimate purpose and must not violate the basic human right of marriage. This means, laws can be made to prevent 'sham marriages' which are done to receive citizenship but are in effect no marriage because the parties never intended to be husband-wife. Also, such law must not deprive a person or category of person of full legal capacity of the right to marry or substantially interfere with their exercise of the right. The 2004 R (on The Application of Baiai and Others) v Secretary of State For The Home Department is a case on point, where the House of Lords discussed in detail the UK regulations to prevent sham marriages for immigration purposes. In France, marriages of convenience are regulated by the State council certificate granted upon satisfying the genuineness of a marriage. In Klip and Kruger v Netherlands (1997), the European Commission of Human Rights mentioned that even though there may be domestic laws to regulate marriages, the State could deny validating a marriage only when there was a reasonable 'suspicion that the intended marriage was one of convenience' and demand further steps for satisfaction.
As the matters presently stand in Bangladesh, it can be easily argued that such a ban is constitutionally, legally and religiously challengeable. First of all, most Rohingyas are Muslims. As such, if they get married to Bangladeshi Muslims, then the marriage would be solemnised under the Muslim Family Laws. Every Muslim Bangladeshi citizen is entitled to register his/her marriage under the Muslim Marriages and Divorces Registration Act 1974, and any denial would amount to a violation of the constitutional obligation of providing them with equal and due protection of law. Arguendo, while the 1974 Act does not apply to non-Bangladeshi Muslims, conducting Muslim marriages under Islamic law ought to allow a Muslim (even a Rohingya) to lawfully marry another Muslim (Bangladeshi or not). This poses a potential private international law problem, which has not been discretely solved by our legal system.
In the meantime, it can be argued that since Bangladesh upholds the dominance of religious marriage laws over non-religious laws (by omitting to declare child marriages as void, by keeping Hindu marriage registration optional), Bangladesh has no legal justification to differentiate between Muslim marriages conducted under Islamic law. Moreover, such differentiation would tantamount to arbitrariness and discrimination, violating the peremptory norm of international law and the jus cogens rule of non-discrimination on grounds of race.
Bangladesh is a party to ICCPR which contains in Article 23 the right to marriage and family as human rights which Bangladesh ratified with no reservation. The ratification obliges Bangladesh not to breach the provisions. The maxim of non-discrimination is considered both as a stand-alone human right and a part of the right to marry. Therefore, by arbitrarily proclaiming a blanket ban, the State is discriminating genuine marriages made of love and partnership, and opening a floodgate of misplaced attention and unnecessary criticism. And that Bangladesh cannot afford, at least for now.
Marriage laws in Bangladesh thus remain a muddy business.
The writer is Lecturer in Law, University of Dhaka.