A Comparative Study on the Condition of Marital Rights of Women of the Hindu Community in Bangladesh and India: In Hindu Law Perspective

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Introduction

Though most of the laws enacted by a State apply to all of its subjects irrespective of race, religion or culture; when it comes to one’s marriage, divorce, inheritance or any other similar private or family matter, the State insists that one should apply the personal laws that come from one’s respective religion. There is no uniform law applicable in Bangladesh so far as family or personal matters are concerned.

That is where the imparity begins. Protection of minority rights and non-discrimination based on religion is one of the principles upheld by all advanced systems of law, as in Bangladesh. The irony is that this has been interpreted to mean non-interference with the personal laws of different religions and this has, in its turn, effectively certified discrimination of the minority amongst the minority, i.e., women belonging to minority religions.

Affairs such as divorce, marriage, maintenance, custody, adoption, and others are regulated for Muslims by Muslim law and Hindus by Hindu law. A similar rule applies in the case of other religions. As people from different faiths follow different rules and regulations in a similar matter, the state does not interfere in this regard because such interference can cause rage amongst its subjects as these rules are considered sacred to everyone. Women in Bangladesh, both Muslim and Hindu, suffer due to different religious laws, which because of the politicization of religion, have not been reformed as they ought to have been.

Again, while it is challenging to bring reforms to laws affecting the majority of the population of a country, it is almost impossible to do so in the case of minorities and withstand accusations of interference with religion. Some personal laws regarding these matters were amended previously by the State to uphold the rights of an individual and keep pace with modern times. However, many of them have been kept unchanged, and they still follow the rules enacted a long time ago, some of which go back even a century to the British period. Furthermore, while doing that, it is not much hard to realize that many are being discriminated. Moreover, women become subject to this discrimination a lot more than men.

After independence, India has brought along many changes in Acts relating to Hindu personal laws, but Bangladesh failed to do so throughout the time.

The situation of Hindu women in Bangladesh and India

While many amendments were enacted by the government to improve the situation and status of Muslim women in Bangladesh as the majority of Bangladeshis are Muslim, the condition of women belonging to minority religions are still being ignored. Efforts were made by the government previously to reform these laws, but protests from inside the Hindu community stopped the initiatives.[1]

Regarding this issue, recently, The Law, Justice and Parliamentary Affairs Minister Anisul Haque has said that, amending the Hindu Succession Act is a demand of the hour. Nevertheless, the government will not impose it on them. When the Hindu community comes forward, the government is ready to cooperate in this regard.[2]

Although there has been so much controversy over this issue in Bangladesh, our neighboring country India reformed these laws long before and still maintaining them without any discord. Even though India has a majority of Hindu community and yet they could improve the laws, we have fallen behind them in this regard and failed to ensure equality to all.

Hindu law in Bangladesh and Indian context:

In Bangladesh, the problems regarding reform and revision of the personal law of Hindu people, is not any recent issue. Hindus in Bangladesh, West Bengal and Assam follow the Dayabhaga School.[3] Everywhere else in India, Mitakshara School is followed by the Hindus. In the past few decades, the government tried to run scissors to reform some of the acts, especially in regards to marriage registrations and inheritance of property. Several women’s rights and human rights organization also raised their voices. Sadly, the most protests against these initiatives came from the Hindu social and religious organizations.

After the collapse of autocracy, every government has taken various initiatives under various circumstances to amend the law, but it could not stand upright in the light of the day. Every letdown just created more and more uncertainty amongst the minority people, and they were led to believe and hold tight the conservative ideology. The general mass amongst the Hindu community now is not sure if they want the reforms or not[4]. So the efforts to renovate the laws have now come to a standstill.

Nevertheless, with the flow of modernity and the inevitable shift of change, new aspects of people’s personal, family relationships are being unveiled. People and the system, family relations are changing whether the law is being changed or not. As a result, the absence of laws with the need of the time is just creating incapability to seek remedy and justice. Many Hindu women want to be separated from their husbands for various reasons, asking the right to live independently. Older parents are not being taken care of by their sons as before. And as there is no way in the law, it is not possible to give them any legal remedy even after seeing, hearing, and understanding all of these. This lack of laws is not only creating inequality between people from the different community of the country which is a fundamental right, but also hampering the constitutional right to equality before the law mentioned in Article 27 of the Bangladesh Constitution and right to protection of the law mentioned in Article 31 of the same.

On the other hand, in India, a Hindu majority country, reforms were introduced in almost every sector of traditional laws. The son and daughter both have equal rights to the property after the death of their father. There are rules for registration of marriage, which were even made obligatory in some States of India like Rajasthan, Bihar, Kerala. Women have the right to divorce.

Newly Emerging Sources of Hindu Law:

If we look at the history of both the countries, along with ancient sources of Hindu law, i.e. Smruti, Smriti, commentaries and customs, some modern sources were introduced among which precedents and legislations play an immensely important role in determining what the law is for Hindus in Bangladesh. The British colonial government applied their legislative power several times to change the personal laws of people of the Indian subcontinent. Regulations regarding widow remarriage, ‘Satidaha,’ were also among them. However, after the partition of 1947, India made reforms to many laws, including significant changes in Hindu law while there was almost none in Pakistan. It stayed that way even after the independence of Bangladesh and thus the Hindu law of Bangladesh remains nearly the same way the British government left it.

On the other hand, India started introducing reforms in Hindu personal law since independence, removing legal disabilities and empowering women despite constant intense protests from the conservative community. They ultimately succeeded, and The Hindu Adoptions and Maintenance Act, 1956; The Hindu Marriage Act, 1955; The Hindu Minority and Guardianship Act, 1956, beside another vital act. The Hindu Succession Act, 1956 was passed in India while Bangladesh kept following the British enactments till now.

That is how they went a long way, but we could not break the deadlock. Some irrational thinking that does not even associate with their religion keeps hindering any endeavor for progress. It is a matter of wonder how can the registration of marriage go against any principle of a faith.

Moreover, authentic documents of the husband and wife relationship, is always a requirement in immigration or higher study. We have to keep in mind that Ishwar Chandra Vidyasagar faced many struggles after introducing the widow’s marriage law, Ram Mohan Roy faced persecution for breaking the Satidaha tradition. But now, we remember them with respect; we feel gratitude for having people like them among us. It is completely irrelevant to still carry the ghosts of those reactionary today. The laws should not remain the same in the name of tradition while the system, relations and time have changed.

Comparison in between Bangladesh and India on specific sectors of Hindu law

If we compare our laws with the laws in India, we can see the setbacks we are facing. Only the comparisons about inheritance, registration and divorce were presented below, which touches upon legislative forms affecting Hindu women in Bangladesh while at the same time comparing the improvements made in India.

Inheritance

In traditional law, a Hindu woman is entitled to two kinds of property, Stridhan and women’s estate.

The term ‘Stridhan’ refers to some particular type of property a Hindu woman acquires during her lifetime; these are the property over which a Hindu woman has absolute rights. It has some unique features like a specialty in source, three factors to determine Stridhan:

Absolute Ownership
Right of Alienation, and
Special rules of Succession.

A woman’s rights over her Stridhan depends on whether she is a maiden, coverture, or widow, and whether the Stridhan is Saudayika or Non-Saudayika. Saudayika Stridhan is that which is obtained by a married woman or by a virgin in the house of her husband or of her father, from her brother or parents.[5] In a word, gifts received by a woman from relations on both sides (parents and in-laws) are Saudayika. All other types of Stridhan, such as gifts from a stranger, property acquired by self-exertion or the mechanical arts, are Non-Saudayika.

A maiden can dispose of her Stridhan at her pleasure if she is not a minor, irrespective of the character of her Stridhan. During coverture, a woman can dispose of her Saudayika Stridhan independently, but she cannot dispose of her non-Saudayika Stridhan without her husband’s consent. Again, during widowhood, she holds absolute power over her stridhan of every description and can dispose of them at her pleasure. In short, Stridhan means the property a woman can give, sell, or dispose of independently and that passes on her death to her heirs.

On the other hand, all the property acquired by women except stridhan is considered as women’s property. Property received from an inheritance is also among them. After inheriting property, a Hindu man acquires absolute ownership and becomes a fresh stock of descent, i.e. after his death, the property passes to his heirs. However, in case of a woman, she gets only limited estate in the property, i.e. although the woman is entitled to enjoy the estate inherited by her, she cannot dispose of such property by gift, sale or any other way and after her death, the property reverts to the reversionary one, who is the next heir of the person she had inherited the property from. Moreover, a daughter gets a share in her fathers’ property only in the absence of a son, grandson, great-grandson, widow. Also, not all daughters are seen in equal footing. Maiden daughter is preferred to a married daughter with a son. Barren daughters, widowed daughters who have no children or who have daughters, are excluded.

In India, a radical change was brought by the State in this inheritance system after the independence, and The Hindu Succession Act, 1956, was sanctioned. This change was a positive one though it was an intervention on the Hindu traditional law. Through this Act, equal property rights were given to women. Nevertheless, this decision faced intense opposition as it was seen as a threat to the Hindu joint family system.

Section 6(3) of The Hindu Succession Act, 1956, pronounces equal share on the property of the deceased for son and daughter. It states,

“(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.”

In Section 6(5), the law also made necessary changes giving equal right to daughters in Hindu Mitakshara co-parcenary property, it states,

“(a) in a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(b) at a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allocable to a son: Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter: Provided further that the share allotable to the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or of such pre-deceased daughter, as the case may be;

(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(d) Nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990.”

In Section 14, it abolished the limited estate of the Hindu females, and absolute right to the property was given. It states,

“Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.”

Moreover, this law by its Section 10, have abolished the preference given to son over daughter, and also the discrimination among daughters regarding marriage or having male issues. Section 15 of the Act prescribes a list of heirs entitled to succeed to the women’s property after her death. So, in short, after the enactment of the Hindu Succession Act, 1956, the property of a male Hindu devolves inequal shares between his son, daughter, widow and mother. Male and female heirs are now treated as equals without any discrimination. This Act was again amended in 2005 and the Hindu Succession Act, 2005 was enacted to eradicate the inequality entirely.

Now, if we look at the condition of Bangladesh, the old traditional law is still being followed. In British period, with the enactment of the Hindu Law Inheritance (Amendment) Act, 1929 and the Hindu Women’s Right to Property Act 1937, five more female relative were added to the list of heirs according to Section 3(1), which includes son’s daughter, daughter’s daughter, sister, then widow(s), widow of a pre-deceased son and widow of a pre-deceased son of a pre-deceased son. That is the last progress we had regarding Hindu women’s equal property in law. Moreover, the women given inheritance rights in these acts are often deprived due to the deadlock of the law.

Regarding these issues, opposition to the inheritance of women in property argued that due to the adverse environment, girls would not be able to maintain their share of the estate, but at the cost of a small amount, it will be left to the dominant wealthy. Others say that, people of other faiths will induce Hindu women to leave their communities because of their greed for the property; As a result, Hindu society and property will face destruction.

Nevertheless, these logics were proved unrealistic by the successful establishment of women’s right to property in our neighboring country. The government should listen to mass people of the minority and ensure equality and justice to all her subjects instead of listening to conservative organizations.

Registration of marriage:

Before 1974, The Muslim Family Laws Ordinance, 1961 was the only statute mentioning anything about registration of a marriage, and it provided marriage registration rules only for Muslims. The record of marriage was optional during the Pakistan period. Registration was made compulsory for the first time by the Muslim Marriages and Divorces (Registration) Act, 1974. Under this Act, provisions were made for the registration of divorces as well as marriages. Then again, all these provisions applied only to Muslims. As far as Hindu marriages are concerned, there were no provisions at all for the registration of Hindu marriages. Because of this, it caused trouble for women to prove their marriage in need if any legal difficulty arrives to validate their rights. However, the option of registration was made available after the enactment of the Hindu Marriage Registration Act, 2012. Section 3 (1) of the Act provides that notwithstanding anything contained in any other Act, custom and usage, Hindu marriage may be registered, by the manner as prescribed by rules, to protect the documentary proof of Hindu marriage. The Act also states in its Section 3(2) that, notwithstanding anything contained in sub-section (1), the validity of any marriage solemnized according to the Hindu Sastra shall in no way be affected due to non-registration of such marriage under this Act. The matter of regret is, registration of marriage of Hindus was not made obligatory, even after taking such long to enact an Act like this.

On the other hand, in India, registration of marriages was made obligatory a long ago. Section 8 of The Hindu Marriage Act, 1955, provides provisions regarding registration of Hindu marriages. Although Section 8(2) of the same Act says that, the lack of registration does not affect the validity of the marriage in the Indian context, it is a punishable offence. This difference shows how far we were left behind in this matter.

Divorce:

Unlike Muslim marriage, Hindu marriage is not contractual; instead, it is entirely a religious sacrament. Marriage is an eternal and indestructible bond to all Hindus. Moreover, it is a holy union in Hindu culture. Traditional Hindu law following Shastric rules never allows the dissolution of matrimonial bond, be the cohabitation painful or hard for one or even both of them. Though some communities among Hindus have customs that approve divorce among a married couple, the court has validated and enforced these types of customs provided that they fulfilled all the requirements needed for a valid custom. Due time, Muslim women were given delegated and judicial divorce rights along with other Shariah approved ways of divorce, e.g. with husbands consent or mutual agreement. The Dissolution of Muslim Marriage Act, 1939, was passed in this regard. But no provisions were made regarding Hindus relating to this matter.

India, on the other hand, provided rules regarding dissolution of Hindu marriage through the enactment of the Hindu Marriage Act, 1955. This Act, for the first time in Indian Subcontinent, gave women the right to divorce through the court. This Act, along with the amendment of 1976, allows both husband and wife to apply for dissolution on various grounds which are given in Section 13(1) (i-viii). The grounds include adultery, cruelty, conversion, unsound mind, renouncing the world, venereal disease, desertion, second marriage respectively and many others. Moreover, the Act also applied a provision similar to the traditional concept of option of puberty for the Muslims recognized by Section 2 (vii) of the Dissolution of Muslim Marriage Act of 1939. Section 13 (2) (iv) of the Hindu Marriage Act, 1955 provides that a Hindu wife may application for dissolution of her marriage on the ground,

“that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.”

However, in Bangladesh, traditional law is still being followed, and no right to divorce was given to Hindu women by any Act yet. While the options of a woman divorcing a man in Bangladesh are narrow, in a Hindu family, the family laws prohibit the action entirely. It is a social prejudice and hampers not only women rights but also human rights and equality.

There are some options, such as the ‘Special Marriage Act’ that covers some marriages. If certain sections have been violated, a marriage may be declared void or could be dissolved through the Act. But a Hindu wife may need to remove herself from the religion in order to take advantage of this.

Although there have been recent legal signs of progress concerning registration of a Hindu marriage, there is still no legal context governing the Hindu divorces.

Therefore, lacking any statutory laws, technically, the option of divorce is still inaccessible to a Bangladeshi Hindu woman/man. In the absence of any legitimate mode of divorce, it has been found in Bangladesh that the person wanting divorce can execute an attested affidavit declaring their wish to be divorced from their spouse. In most of the cases, this type of divorce is done mutually. However, though such a mechanism, in reality, is in practice, it is not legally acceptable. So, it can be concluded that to be precise; there is still no law in Bangladesh which grants a Hindu person a right to divorce their partner. However, a Hindu married woman can seek separate residence and maintenance through the provisions of The Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946.

Conclusion:

It has been 48 years since our independence. During this period, It was mandatory for us to create and distribute rights of equality before law, right to protection of law to all irrespective of gender, race or religion. It was a failure for of us that still, we could not be able to provide equal rights to all. However, it is never too late. The government must take initiatives as soon as possible to amend all traditional laws and reform them to keep pace with modern times and system. Indian reforms of Hindu personal law can be an example for us in this regard.

Writer:

Mohammad Eshtiaque Hossain,

LL.B(Hon’s), 2nd Year, University of Chittagong.

References:

News Links:

Articles:

“Hindu platform against progressive family law reform”https://www.dhakatribune.com/bangladesh/dhaka/2019/07/13/hindu-platform-against-progressive-family-law-reform
“On Hindu women’s right to property” https://www.thedailystar.net/law-our-rights/news/hindu-womens-right-property-1750030
“Reform Of Hindu Family Law In Bangladesh” https://lawyerinfos.com/reform-of-hindu-family-law-in-bangladesh/

Case Reference:

Bhau v. Raghunath (1905) I.L.R. 30 Bom. 229

Books:

“Double trouble- Hindu women in Bangladesh: A comparative study” by Dr. Shahnaz Huda, The Dhaka University Studies, Part-F Vol. IX ( I ) : 111-133, June 1998
Alam, Dr M. Shah. “Review of Hindu Personal Law in Bangladesh: Search for Reforms.” Bangladesh Journal of Law 1 (2004): 15-52

Relevant Acts:

The Constitution of the People‌‌‍’s Republic of Bangladesh
The Hindu Succession (Amendment) Act, 2005, applicable in India
The Hindu Marriage Act, 1955, applicable in India
Rajasthan Compulsory Registration of Marriages Act, 2009, applicable in India
Bihar Marriage Registration Rules, 2006, applicable in India
The Kerala Registration of Marriages (Common) Rules, 2008, applicable in India
The Marriage Laws (Amendment) Act, 1976
Hindu Widows’ Remarriage Act, 1856
The Hindu Succession Act, 1956, applicable in India
The Hindu Women’s Rights to Property Act, 1937
the Hindu Marriage Registration Act, 2012.

Endnote:

[1] https://www.bbc.com/bengali/news/2012/08/120817_mb_hindu_property_women

[2]https://www.ittefaq.com.bd/capital/87934/%E0%A6%B9%E0%A6%BF%E0%A6%A8%E0%A7%8D%E0%A6%A6%E0%A7%81-%E0%A6%89%E0%A6%A4%E0%A7%8D%E0%A6%A4%E0%A6%B0%E0%A6%BE%E0%A6%A7%E0%A6%BF%E0%A6%95%E0%A6%BE%E0%A6%B0-%E0%A6%86%E0%A6%87%E0%A6%A8-%E0%A6%B8%E0%A6%82%E0%A6%B6%E0%A7%8B%E0%A6%A7%E0%A6%A8-%E0%A6%B8%E0%A6%AE%E0%A7%9F%E0%A7%87%E0%A6%B0-%E0%A6%A6%E0%A6%BE%E0%A6%AC%E0%A6%BF-%E0%A6%86%E0%A6%87%E0%A6%A8%E0%A6%AE%E0%A6%A8%E0%A7%8D%E0%A6%A4%E0%A7%8D%E0%A6%B0%E0%A7%80

[3] There are two different schools of Hindu law — the Dayabagha school and the Mitakshara school. The major difference between the two schools are as regards principles of inheritance and the joint family system. The Dayabagha school is followed in Bangladesh, West Bengal and Assam. Mitakshara school prevails in all over India excluding these regions.

[4] https://lawyerinfos.com/reform-of-hindu-family-law-in-bangladesh/

[5]Bhau v. Raghunath (1905) I.L.R. 30 Bom. 229