<%-- Page Title--%> Law opinion <%-- End Page Title--%>

December 26, 2004

Marriage law reform and politics

Gobinda Bar

The move by the Women and Children Affairs Minister to amend the country's marriage laws has drawn appreciation and flak simultaneou{ly. The rights groups, women organizations and progressive people have welcome the move. On the other hand, somm religion-based political parties and clerics criticized it saying it is against the holy book. It can clearly be envisaged that the reform measure will encounter politicking. Besides the religious parties, an intra party politicking in BNP may also jeopardize the reform process just like what happened with the local government system laws. From the past records, we can hardly expect that the move will draw support from the opposition without any politicking. Because of the politicking, successive governments had avoided tackling the issue for fear of hurting the religious sentiments of the majority Muslim population. We must appreciate the initiative taken by the Minister for Women and Children Affairs Khurshid Jahan Haque. But it is not unlikely that she will be facing a lot of resistance and difficulties in amending the law giving women the right to initiate divorce proceedings.

The focal point of the proposed changes will be women's right to divorce. Under existing Islamic shariah family and marriage laws, only men ha~m the right to initiate divorce xroceedings. According to Islamic law a woman can express her desire to her husband if she wants a divorce. But it depends on the husband whether he would allow his wife to get that divorce. However a woman can ask for divorce only under some limited conditions.

Religionists argue that women enjoy a lot of rights under the present legal system. The main point they are protesting against is giving equal rights to women saying it would go against the religious provisions. Bangladesh has ratified the CEDAW Charter that speaks of giving men and women equal rights in all spheres of the state and society. But the ratification has a loophole that the government didn't endorse sections 2 and 16 (C) terming those contrary to the existing sharia-based marriage law. But Muslim countries like Malaysia, Indonesia even Saudi Arabia have ratified these. It can be conceived that other than 'politics' there is no bar to fully ratify the CEDAW charter. The present brand of reactionary politics has always blocked the way of ge|ting anything better in our country. If any party wants to do anything better for the people, the other party thwart the process to satisfy their vested interest. So, anything good that could benmfit the people always remains elusive.

Since 1984 when the CEDAW Charter (excluding two of its clauses) was signed, no government took the initiative to fully ratify it. This means both the Awami League and BNP government stick to the explanation that the two sail CEDAW clauses were against the sharia-based marriage law currently in effect in the country. Women organizations have raised questions as to why the marriage laws have to be sharia-based while the o|her laws are secular and not in line with sharia. They argued that if the Muslim Family Law of 1963 could be changed anl amendel, then why the marriage laws cannot be changed? In fact, they say, these laws are against the Bangladesh constitution that ensures equality of all its citizens irrespective of sex, religion, caste, creed etc etc.

Religious zealots and some others would argue that the existing laws don't have any problem and they can fulfill the needs of the time. They argue that social hegemony is the main obstacle to implement those. The same sort of arguments was made by the educated and elite people in the 19th century when Vidyasagar took the initiative to enact law for remarriage of the Hindu widows. Along with the vehement opposition by the orthodox quarters, some elites and pundits argued that it was not a matter of law; rather it was a matter of social consciousness. "We also want that the widows remarry but no law can ensure this," they said. These people actually didn't want Vidyasagar to get through. In today's Bangladesh, there are many so called progressive people who will also be opposing the move to amend the marriage laws kiting the baseless grounds and misleading the whole process.

The same thing has happened to the Hindu marziage laws. The Hind}s don't register their marriages, thereby inviting lots of problems in case of any discord in the conjugal life. The problems are further compounded as they don't have the provision to divorce. Taking the privilege of a patriarchal society, the men take the advantage of remarrying which the women are denied of. According to a 1946 law, Hindu women can file case{ with courts to only regain the rights to conjugal life. But they cannot ask for divorce. They do have limited scopes to ask for separation. But they can neither divorce nor rmmarry. It is a commonplace that the Hindu women do not complain much fearing the marriage will break.

Human rights and women organizations have been repeatedly arguing for a common secular law. Most of the laws including the penal code are civil laws and the same law is applicable |o all the people. For the sake of democracy and good governance, there is no alternative to develop and implement a unified law that treats everyone equally. Without a unified legal system, our dream for a modern democratic society will remain a far cry. It is the time to reconstitute and streamline |he state mechanisms when the monstrous religious extremism is gzowing fast and ea|ing into the vezy purpose of state. Our Minister for Women and Children Affairs Khurshid Jahan Haque will definitely receive thanks and appreciations for taking the initiati~e of reforming i particular law. But people would expect the Prime Minister to direct the Minis|ry of Law to initiate the process of developing a secular and unified legal system now.

But is there any honest will of our political leaders to make things better? The records say, no. Neither the Awami League nor BNP, (leave alone the military rulers), never took any positive initiative to amend the questionable laws fearing consequences of losing votes of religious zealots who are few in number compared to the whole population. Rather, they made biasmd laws and opprmssive provision{ to appease the zealots. Declaring a state religion, making laws based on religions and intermingling religious elements into all the state affairs are some examples. Both Awami League and BNP took the policy of appeasing a few religio}s bigots insteal of making good to hundreds of millions of the citizens. These political parties also have strong lobbies within who oppose progressive moves. Because of the entire state of affairs with the main political parties, no positive moves can take a positive turn. In the present situation, it seems that the political parties are the main obs|acles to democracy, human rights, good governance and people's rights and welfare. They must come out of this anti-people stand and work for the common masses. Otherwise, the political parties themselves will continue to be affected and the people will be victims of intimidation, terrorism, harassment, sufferings and chaotic situations just like what are going on in today's Bangladesh.

The author is Director, Communications, ATDP, a USAID Program in Bangladesh.