Women’s Rights at Hindu Personal Law: A Comparative Study between Bangladesh and India

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Published: 2023-08-24

DOI: 10.56557/ajocr/2023/v8i38353

Page: 27-41


Kanak Kanti Karmakar *

Department of Law, under the Faculty of Security & Strategic Studies (FSSS), Bangladesh University of Professionals (BUP), Center for the Study of Genocide & Justice at Liberation War Museum, Dhaka, Bangladesh.

*Author to whom correspondence should be addressed.


Abstract

Inequality for women in Bangladesh is more of a social issue than a legal one. With the exception of personal matters, inequalities in the implementation of the law are hardly ever noticed. Personal issues, however, are governed by religious laws or customs. Hindu law, which is the oldest law in existence, greatly varies, adapts, or changes. With the exception of fundamental instruments, various schools have varied ways of explaining it. Through the remarks and conventions, it changes. Though these norms or traditions are classified separately under the category of "Personal Law" in Bangladesh's legal system, these standards or conventions are not entirely derived from religious laws or practices. Laws and ordinances changed how they were to be applied. However, they have not been enough to bring about equality between men and women. Regulations and gender stereotypes make it difficult to follow current legislation. The relevant authority shall codify new laws and regulations with expedient reference from Shastra Law and keep in mind with international obligations as well for simple comprehension of the common people. This paper addresses the significant legislative barriers to effective women's rights implementation and offers some suggestions for ensuring justice for all Hindu women in Bangladesh.

Keywords: Hindu law, shastra law, women’s rights, inequality, ensuring justice, international obligation, national obligation, challenges, reformation


How to Cite

Karmakar, K. K. (2023). Women’s Rights at Hindu Personal Law: A Comparative Study between Bangladesh and India. Asian Journal of Current Research, 8(3), 27–41. https://doi.org/10.56557/ajocr/2023/v8i38353

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References

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The Constitution of the People’s Republic of Bangladesh, Art. 28.

Alam, Dr. M. Shah. Review of hindu personal law in Bangladesh: Search for reforms. Bangladesh Law Journal at 15-52; 2004. Available:https://www.biliabd.org/wp- content/uploads/2021/08/Dr.-M.-Shah-Alam.pdf last visited on February 04, 2023.

The Constitution of the People’s Republic of Bangladesh, Art 27.

ibid, Article 28 (1).

ibid, Article 28 (2).

The Convention on the Elimination of All Forms of Discrimination Against Women, 1979 Article: 2, 16 (1) (c).

Available:https://www.ohchr.org/en/instruments-mechanisms/instruments/convention- elimination-all-forms-discrimination-against-women (last visited on February 04, 2023)

The International Covenant on Economic, Social and Cultural Rights of 1966; Article: 2, 3.

Available:https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic- social-and-cultural-rights (last visited on February 04, 2023)

The International Covenant on Civil and Political Rights of 1966; Article: 23.

Available:https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and- political-rights (last visited on February 04, 2023)

Article 2 conflicts with Sharia law based on the Holy Koran and Sunna, hence Bangladesh does not regard it as binding.

CEDAW supra note 07.

The Bangladesh has made a reservation, which states as follows: According to the relevant provisions of its Constitution, and in particular with regard to certain aspects of economic rights, namely the law of inheritance, the Government of the People's Republic of Bangladesh will implement articles 2 and 3 insofar as they relate to equality between men and women.

ICCPR supra note 09.

Parashara, Archana “Women and Family Law Reform in India: Uniform Civil Code and Gender Equality” 1st edn, (1992) Sage Publications.

Agnes, Flavia “Law and Gender Inequality: The Politics of Women’s Rights in India; in Women and Law in India” 1st edn, (2004) Oxford University Press.

The Constitution of the People’s Republic of Bangladesh, Art 28.

Sreemadvagabad Geeta, chapter 04, verse 13.

Huda, Shahnaz “Combating Gender Injustice Hindu Law in Bangladesh” (2011) South Asian Institute for Advance Legal Studies (SAILS).

Available:https://www.academia.edu/1586976/Combating_Gender_Injustice_Hindu_Law_in_Bangladesh_Dhak a_SAILS_2011_ (last visited on February 04, 2023)

Ibid.

Ibid.

Menski, Werner “Modern Family Law” Volume 65, Issue 2, Curzon Press, 2001.

Menski, Werner “Hindu Law: Beyond Tradition and Modernity”, 1st edn, Oxford University Press, 2003.

Huda, supra note 18 p 33.

Ibid.

Haque, Md. Azizul “Hindu Law in Bangladesh: Theory and Practice”, 1st edn, University Publications 2016 at p 50.

Prof. Dr. Shahnaz Huda, supra note 12 at p 33.

Ibid.

Chapter IV of the Parashara Sanghita.

Menski, supra note 23 at p 44.

Huda, supra note 18 at p 35.

ibid see at p 24.

ibid see at p 35.

ibid see p 35.

Menski, supra note 23 at p 485; “Hindu law in its gender-focused ardor (Sections 24 and 25 of the Hindu Marriage Act) even provides Hindu men the right to be maintained by the wife after a divorce.”

Diwan, Paras “Modern Hindu Law”, 1993, Allahbad Law Agency, at p 217.

Kumar, Vijendra “Emerging Trends in Sonship and Adoption under Hindu Law”, 2003, NALSAR Law Review, at p 96-111.

Rig Veda, Mandal 3, Sukta 31, Sankhya 2.

Ibid.

Mukhopadhayay, Maitrayee “Legally disposed Gender Identity and the Process of Law” 1998 p 98.

Ibid.

According to Manu Smriti, chapter 9, verse 131; a female can get Stridhan in six ways. Such as: Adhyagni, Adhyabahonic, Priti-karma, from father, from mother and lastly from brother.

Paras Diwan, supra note 36 p 361.

Ibid.

ibid see p 37.

Yagnavalkya Smriti, chapter 2, verse 123; Bishnu Smriti, chapter 18, verse 34.

Paras Diwan, supra note 36.

ibid see p 37.

Manu Sanghita, chapter 9, verse 118.

Bishnu Smriti, chapter 18, verse 34.

Narad Smriti, chapter 01, verse 40.

Huda, supra note 18 p 14.

Ibid.

Ibid.

Ibid.

Menski, supra note 23.

Amulya Chandra Modak vs. The State 35 [1983] DLR 160.

The Penal Code 1860; Sec. 493.

Ibid.

Huda, supra note 12 p 19.

Under the Separate Residence and Maintenance Act, 1946.

Huda, supra note 18 p 20.

ibid see p 21.

ibid see p 22.

Huda, supra note 12 p 23.

Ibid.

Satish Chandra Pal vs. Mst Majidan Begum 10 [1958] DLR 271.

Huda, supra note 18 p 25.

Abdul Mannan alias Kazi vs. Sultan Kazi 34 [1982] DLR 236.

Family Court Ordinance, 1985; Ordinance No XVIII of 1985.

Huda, supra note 18 p 25.

ibid see p 26.

ibid see p 26.

ibid see p 27.

Huda, supra note 18 p 14.

Ibid.

Ibid.

Ibid.

ibid see p 39.

See report of the “Bangladesh Law Commission on Uniform Family Law”, 2005.

Available:http://www.lawcommissionbangladesh.org/reports/69.pdf.

Ibid.

Proposed Hindu Marriage, Adoption, Maintenance and Succession related Codified Act, 2006 or The Hindu Law Bill of 2006 drafted by the Bangladesh Law Commission.

Ibid.

ibid section 10 (c).

Section 10 (d).

Section 10 (e).

Section 10 (f).

Section 10 (h).

The Hindu Married Women’s Rights to Separate Residence and Maintenance Act of 1946.

Chapter IV of the Parashara Sanghita. The five grounds are: if the husband be unheard of, dead, adopts religious order, impotent and becomes out casted..

Huda, supra note 18 p 42.

The Hindu Law Bill 2006 supra note 161.

Huda, supra note 18 p 43.

https://www.thedailystar.net/law-our-rights/news/hindu-womens-right-inheritance-2159216 On the other hand, as a result of the historic case of “Danamma vs. Amar” in 2018, India has revised its Hindu Inheritance Act, which was passed in 1956. In this particular instance, the Supreme Court of India decided that a daughter had equal property rights with their male counterparts in accordance with the modified Hindu Succession Act, which was passed in 2005.

Alam, supra note 03 at p 08.

The Civil Court Act, 1887 [Bangladesh] Sec 37(2).

Menski, supra note 23.

Huda, supra note 18 at p 38.

The Hindu Law Bill of 2006 drafted by the Bangladesh Law Commission supra note 161.

Huda, supra note 18 at p 38-43.

Supra note 2.

The Constitution of the People’s Republic of Bangladesh, Art 28 (2), 42 (1).

Supra note 2.