An individual’s right to equality and freedom from all forms of discrimination lies in the heart of our Constitutional rights guaranteed by the State for every citizen of this country. The State is further bound by international obligations to protect those rights. Bangladesh is a party to eight core fundamental human rights treaties that includes the key international treaty dedicated to upholding equality rights for women - the Convention on the Elimination of Discrimination against Women (CEDAW). Being a State party to CEDAW, the State has an overall responsibility to protect the basic human rights of all women in Bangladesh by eradicating all kinds of discrimination against them and ensuring their equality in all spheres of their public and private life.
A far cry from reality
In practice, however, we are continuously grappling to reach the egalitarian goals enshrined within our Constitution and our State’s international commitments. A World Bank study outcome from 2015 revealed that globally, there are 155 countries out of 173 where the law discriminates against women, and Bangladesh is part of this list. The study brings to light the economic and social consequences that stem from discriminatory laws that act as root causes to gender inequality.
The fight towards the reform of existing discriminatory legal provisions, some which date back to colonial times, has been central to the activities of womens rights based organizations for more than two decades.
The issue is routinely raised in reports going from civil society organizations in Bangladesh for review to the UNCEDAW Committee sitting in the Palace of Nations in Geneva. During the most recent CEDAW session (65 th Session in 2016), The UNCEDAW Committee once again addressed the issue of discriminatory laws in its Concluding Observations and in Para 11 (a), urged Bangladesh to “review and repeal all discriminatory laws and legal provisions without delay, in particular personal status laws, in order to harmonize them with its obligations under the Convention.”
What are the national laws that discriminate against women and girls in our country? The examples are plenty but there are three that are the most hotly debated. These laws are the underlying reasons as to why women are denied their right to exercise control over their own lives and personal decisions in a modern Bangladesh.
Discriminatory personal laws
The personal laws governing marriage, separation, divorce and maintenance explicitly discriminate against women. The personal laws are different for women belonging to the four major religions in Bangladesh – Muslims, Christians, Hindus and Buddhists. Having separate laws governing the personal lives of women not only puts them in an unequal status with regards to each other, but also puts them in an inferior position in a marital relationship where the wife has little or no say over her rights, especially with regards to her right to have equal share in marital property.
A 2012 Human Rights Watchreport titled “Will I get my dues before I die?” summarized the adverse effects that discriminatory laws have on women’s right to marriage, separation and divorce in Bangladesh. It elaborates on Muslim personal law and its discriminatory aspects, as the law leaves very little room for the wife to exercise consent and choice in her marriage. Under Muslim law, all men have a supreme right to divorce at will (talaq), whereas Muslim women may only do so if the man “transfers” them this right in the marriage contract.
Although Muslim women can seek the alternative option to divorce using a lengthy process (through seeking court intervention under the Dissolution of Muslim Marriages Act of 1939), they can only do so on specific grounds. Moreover, the law provides imbalanced provisions on divorce, and offers limited rights to maintenance during marriage, which in the event of a divorce, does not extend beyond 90 days (unless the wife is pregnant for which the maintenance extends to the birth of a child). Although the Muslim law recognizes marriage as a contract and entitles the wife to a mahr, the amount fixed for mahr is usually insufficient to reflect the total contributions made by the wife towards marital assets.
The right to divorce is not recognized under the Hindu personal law. A Hindu woman can however apply for separate residence and maintenance from their husbands but even in these cases, their rights can be invalidated if the court finds the woman to be ‘unchaste’.
A women’s ‘chastity’ is also relevant to Christian women’s rights to maintenance during marriage and alimony following the divorce – they are not entitled to either if the court finds them to be unchaste. Divorce is also discriminatory and complicated for women under Christian personal law – men can divorce if they allege that their wife has committed adultery. Wives, on the other hand, must prove adultery and some other grounds, the grounds being – conversion to another religion, bigamy, rape, sodomy, bestiality, desertion for two years, or cruelty.
The newly enacted Child Marriage Restraint Act 2017 and the much debated Section 19 that endorses child marriage in ‘special circumstances’, also discriminates against girls as it leaves no room for the girls’ choice and consent to be taken into consideration, although the Act mentions the consent of the girl’s guardians and permission from the Court.
Laws that prevent women from accessing justice
Section 155(4) contained within the 146 year old Evidence Act 1872 is a clear example of discrimination – it allows for evidence related to a rape victim’s character and past sexual history to be admissible in Court in rape trials. This provision is therefore used by the defense to interrogate the rape survivor about her character and lifestyle, and by doing so, shift the focus away from the person accused of the crime. The alarming bit is that such evidence forms the basis for deciding if the accused will be convicted.
Under Muslim law, all men have a supreme right to divorce at will (talaq), whereas Muslim women may only do so if the man “transfers” them this right in the marriage contract
Bangladesh Legal Aid and Services Trust (BLAST) reviewed judgments reported over a ten-year period between 2000 and 2010 (published in the Dhaka Law Reports and the Bangladesh Legal Decisions) in 2015. The study revealed the extent to which this Section categorically discriminates against rape victims. It exposed numerous examples where details such as the marital status, or past relationship history of a rape survivor, were regularly referred to in defense statements and taken into serious consideration in judgments. On a social level, such questioning in court intimidates the rape victim from seeking any sort of legal recourse to get justice against the crime perpetrated against her.
The Evidence Act 1872 also discriminates against women with disabilities, in particularly women with intellectual disabilities. Section 118 bars admission of evidence from those who are “incompetent to testify due to being unable to comprehend the questions asked during the trial process.” This excludes women with intellectual disabilities from testifying in court. So a rape victim with intellectual disabilities, for example, is required to prove the offence committed against her through other means e.g. through DNA testing.
Legal protection in the workplace
As far as workplaces are concerned, the absence of legal protection for employed women in workplaces is discriminatory, as it provides women without any legal relief or remedy when faced with sexual harassment in their place of employment. The Bangladesh Labour Act 2006 amended in 2013 does not contain any such provisions. Also, Section 87 under the ‘Special Provisions Regarding Health, Health Rules and Safety’ of the Bangladesh Labour Act 2006 is discriminatory, as it equals women with teenagers and prevents employment of women in certain activities related to handling of dangerous machineries, disregarding the fact that some women might be skilled and capable of performing such activities.
A number of progressive laws such as the Domestic Violence Act 2010, The Prevention of Oppression Against Women and Children Act 2000, and the Acid Control Act 2002 have played a vital role in the promotion and protection of the rights of women and girls, specifically with regards to violence against women. However, implementation of some of these preventive laws are still weak and to eradicate gender based discrimination against women, a number of robust steps must be taken, which involves rigorous reform of century old laws that do not fit into the modern context.
This includes the reform of the Evidence Act. It also includes the adoption of a Uniform Family Code – a demand that has been voiced by women’s rights based organisations for years. A Uniform Family Code would liberate women’s personal rights from being segregated according to their faith and would put all women on an equal footing with regards to their right to marriage, divorce and maintenance. Additionally, speedy enactment of the draft Anti-Discrimination Law that has been in the works since 2014, is necessary as it is the only instrument that will address discrimination of all forms existing in society and be a crucial tool in eliminating gender based discrimination, especially against women and girls belonging to marginalized communities.
The author is a 2018 Asia Foundation Development Fellow currently based in the Asia-Pacific Resource and Research Centre for Women