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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh
 



Issue No: 307
February 09, 2013

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Rights Watch

Maintenance of wife: A right suppressed in silence

Arpeeta Shams Mizan

She was 38. Happily married with two children, was teaching in a college. Then she was deserted by him.

She was 54. Married, albeit unhappily, but she loved her husband. He was unemployed. Then, she became a widow.

She was 29. Her husband was an industrialist. Then she became a widow. She inherited her husband's business.

She was 30. Married. Pregnant. He deserted her for another woman. After a few years, he divorced her. She had nowhere to go.

These small fragments are not fictions. These are facts- cruel, harsh, but true. And these are not uncommon. Death, desertion, deception- they do exist in our everyday life, whether we want it or not. Women in Bangladesh are often left on their own to battle this grim fate they call life. Sometimes their spouses are active enough to leave them, while sometimes they are just spectators where Death does the necessary.

But in these stories, death or desertion was not the only thing common. All these women shared something else: none of them were supported by their father's family or in laws when bereft of financial security with their husbands gone. They were literally alone.

Curtains drop. Entry into scene: Maintenance
Maintenance is a part and parcel of matrimonial bond. It is universal. Every major religion in the world, and likewise the civil legislations make specific provisions as to maintenance of wives by their husbands. But every coin has two sides: if maintenance is emphasised by every authority, then maintenance is the most violated aspect of marriage almost in all parts of the globe, at least when it comes to women's rights.

Speaking of women's rights, a question which unfailingly is raised by the antagonist is provisions for maintenance is violative of the norm of equality: why, men are obliged to maintain their wives even if they are financially solvent to maintain themselves! There you go, that's quite a big catch.

Well, apparently not. The idea of maintenance has to do with religious scriptures just as much with human civilization. During the Ice age and the Neolithic age, when clan life was the way of living and matriarchal societies abounded, women were maintained by their male partners. This is seen as a consideration and gratitude paid to those who allow you to enjoy them conjugally and who discharge the duty of preserving the existence of human race. Maintenance is thus purely a women's right which has to be ensured by men.

Maintenance is important from manifold dimensions: it provides a sense of security to the women. Security has always and continues to depend on financial affluence. If one has money, one has security with a touch of providence. It provides self respect: women can hold their head high so long as they don't need charity just to meet the ends. The society often measures a woman's esteem by the scale of husband's affection. It is devastating for a woman if others figure out that she does not receive maintenance; for strangely, though the duty rests upon the husband, society makes it a point to find the reason with the wife: she must have done something, otherwise why would she be abandoned?

Then come the fundamental rights: maintenance affects right to adequate standard of living, and in a broad dimension, right to life. Marriage is considered the ultimate goal for every woman. They are not prepared for the challenges of life as for marriage. Somewhere middle down the road, education is lost: the lethal weapon for sustenance. In the examples above, two ladies were lucky: they had means to support themselves. For the even-numbered ladies, it becomes gloomier when you unfold the picture to reveal that they were unwanted by her father and brothers. Suddenly, they find they have nowhere to go! They were once denied the training to fight world in order to be trained as a prospective bride. They were promised a good living through marriage. Then theoretically, they should not be expected to maintain themselves, divorced or not.

In Bangladesh, where women's rights are frequently violated, maintenance occupies a big space. Islam, Hinduism and Christianity: all the religions and laws of the State make maintenance mandatory for the husbands. One thing to be happy about, this is the only field where there is uniformity: unlike divorce and adoption, women of all faith have remedy against non payment of maintenance. The Muslim Family Laws Ordinance 1961, The Hindu Women's Right to Separate Residence and Maintenance Act 1946 and the Family Courts Ordinance 1985 respectively protect the maintenance rights of the Muslim, Hindu and Christian women. Any woman can bring a suit for unpaid maintenance before the Family Court, which is the Court of the Assistant Judge.

But if the legislations abound, the enforcement mechanism is bleak. The laws do not chalk out the remedy where the demarcation lines are unclear: past maintenance and post divorce maintenance are two such areas. The Bangladeshi judiciary has made a land mark progress by pronouncing that a woman shall be entitled to six year's arrear maintenance in absence of specific agreement with the husband. In the earlier times, arrears were granted only from the time of instituting the law suit. Thus if a woman waited for four years before suing her husband, she would never recover the maintenance for those years.

Post divorce maintenance, the most disputed issue, is yet another arena where the antagonists love to throw the question “ is it honorable for a woman to receive maintenance from a man who is no longer her husband?” Believe it or not, I heard a female Professor teaching Muslim Family Law posing this question once to her students! This is a glaring example of patriarchal hegemony: trying to protect women's honour by defeating women's right.

The question posed above should be, in all cases, answered in positive. It is the Fundamental Principle of Our State Policy to make provisions for the destitute, and the deserted women are more destitute than the most, their gender making them more vulnerable.

The authority is Hefzur Rahman v. Shamsun Nahar Begum(1995) where the wife sued the husband demanding unpaid dower and maintenance. Relying on Abdullah Ausuf Ali's interpretation of Sura Bakara, Md. Golam Rabbani J. held that a divorced woman is entitled to provisions till she remarries. However, the Appellate Division reversely held that Post-Divorce maintenance is “mataa”(consolation gift), not a positive obligation for the husband. He is to give maintenance up to iddat period which is three months from divorce.

The application of law here seems very much patriarchal, i.e. in favour of the husband. According to Dr. Shahnaz Huda, the Chair of the Department of Law, University of Dhaka, there exists a legal vacuum as to the calculation of three months. According to MFLO 1961, a divorce becomes effective three months after its pronouncement. Thus if a husband divorces the wife on 1st January, it is effective from 1st April, and the iddat continues till 1st July. But in practice, the courts award maintenance only till 1st April. This is a field which needs to be clarified for the sake of protecting women's right, dignity and human worth.

From this entire scenario, one question becomes obvious: despite being the custom, and despite carrying strict religious implication, why is the obligation so widely neglected by the husbands?

The answer is simple: we do not practice respect for human dignity.

The writer is student of Law, University of Dhaka.

 

 

 
 
 
 


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