The Religious Education of Muslim Women in Bangladesh by Jb. Shah Abdul Hannan

The Religious Education of Muslim Women in Bangladesh

 

*Shah Abdul Hannan

 

The Madrasas in present-day South Asia are bearers of the remarkable revival that Islamic religious education witnessed in colonial India during the late nineteenth century. This renewal began in particular earnestness with the establishment of the Dar-ul-Uloom Madrasa at Deoband in 1867. However, women were not part of this revivalist project in formal religious education, although on the level of informal religious education, they were taken into serious consideration by some Ulama who sought to promote individual piety, to re-Islamize household rituals and daily cultural practices, and to facilitate individual knowledge and observance of Qur’an- and Hadith-based religious injunctions as opposed to folk customs (Gail Minault, 1998, Secluded Scholars: Women’s Education and Muslim Social Reform in Colonial India, Oxford University Press). One of the most well known among these reformist Ulama who showed significant concern for enhancing women’s informal/household religious knowledge in the late nineteenth and early twentieth centuries was the Deoband Madrasa-trained scholar Maulana Ashraf Ali Thanavi (1864-1943). His encyclopedic work, Bihishti Zewar (The Ornaments of Paradise), was primarily aimed at women (although Maulana Thanavi strongly encouraged men to follow it as well) and contained a vast amount of extremely detailed religious prescriptions for conducting numerous daily religious and household activities and for purifying bodily, mental, and emotional states. Maulana Thanavi’s emphasis on both Muslim men’s and women’s EQUAL obligations to seek knowledge and education was remarkably egalitarian for contemporary society, particularly the then worldview of many Indian Ulama and the Muslim elite (Barbara Metcalf, 1982, “Islamic Reform and Islamic Women: Maulana Thanawi’s Jewelry of Paradise” in Moral Conducted and Authority, edited by Barbara Metcalf, pp. 184-95).

 

However, despite Maulana Thanavi’s reformist emphasis on the egalitarian message of Islam, like most Ulama of his time and of many many decades later, the Maulana was opposed to women’s access to public space and possibly could not therefore imagine women’s access to even the most basic levels of Madrasa education, let alone women’s access to higher levels of formal religious scholarly capacities. 

 

The historical neglect of women’s formal religious education continues to shape the sphere of women’s access to religious scholarship in present-day South Asia, even though some changes are under way in the margins. The neglect of women’s religious education in South Asia (and possibly elsewhere) is evident today not only in the abysmal gaps between the numbers of male and female Madrasa students and traditional religious scholars but also in the dearth of scholarship on women’s Madrasas in South Asia. Thus, for instance, neither of the two most comprehensive, recent, and otherwise illuminating and timely scholarly articles on Madrasas in South Asia (see Mumtaz Ahmad’s and Yogi Sikand’s respective chapters in Religious Radicalism and Security in South Asia, eds. Satu Limaye et al, Honolulu, Hawaii University Press, 2004) mentions female Madrasa students women even in passing. This essay will briefly discuss and analyze the current situation of religious education of Muslim women in Bangladesh and adjacent areas from a historical perspective. 

 

Gaps Between Islamic Canonical Teachings and Muslim Historical and Cultural Practices

Even though Islam has emphasized access to knowledge for all, the education of Muslim girls and women, particularly in the areas of religious scholarship and authoritative expertise, has been seriously marginalized in most parts of the Muslim world historically. The Prophet of Islam (sm) said that, “Securing education is an obligation for all Muslims (………).” The Quran has emphasized education unequivocally. The revelation even began with the word ‘Iqra’ meaning read, recite.(Quran:96:1) The Quran asks “Are those who know and who do not know equal?” (Sura Zumar, Ayat 9) 

 

The Muslim community failed to implement its obligation to educate all its members, male and female. Studies of the Muslim history of various countries reveal that in the establishment of educational institutions, equal opportunities were not created for boys and girls. Of course, rudimentary religious education was imparted to all at home, such as recitation of the Quran, the formal and technical rules of Salat and Siam, and fundamental religious values of modesty, honesty, respect for elders (adab), duties towards one’s parents, etcetera. But higher education and the realm of religious scholarship and authority became the preserves of men alone. Furthermore, despite the Qur’anic emphasis on the equality of all human beings and on the Prophetic stress on access to knowledge for all, discriminatory practices were found even with regard to men, let alone women. Thus, prior to the nineteenth century, access to Madrasa teaching and education was largely restricted to the communities of elite Muslims—the ashraf nobility who were mostly migrants from Central Asia, Iran, and Arabia, and their descendents. The indigenous Muslims—the ajlaf—were expected to remain satisfied with the most elementary knowledge of Islam (Yogi Sikand, 2004, “ Reforming the Indian Madrassas: Contemporary Muslim Voices” in Religious Radicalism and Security in South Asia: 120). 

 

However, sociopolitical changes began to sweep across the Muslim world during the 19th and 20th centuries. With the establishment of British colonialism, the Dar-ul-Uloom Madrasa at Deoband was established in 1865. This remains the largest traditional Madrasa in South Asia till this day. In the absence of Muslim rulers as patrons of Madrasa education, and concerned with the threat colonialism and intensifying Christian missionary work in the region posed to the production, sustenance, and enhancement of Islamic knowledge and sensibilities, Ulamas began to establish small and large Madrasas which increasingly turned to the ranks of ordinary ajlaf Muslims, with whom Ulamas and Madrasas had had little contact until then. The ordinary Muslim came to symbolize the survival and well-being of Islam and to serve as the repository of Islamic knowledge and moral reform. In the wake of these changes, Muslim girls did not remain untouched by such reforms for too long. But it would not be till the late nineteenth century and early twentieth century that Muslim girls began to gain access to higher education. At least, this was the case in former Bengal.

 

Women’s Religious and Formal Education in Bengal

The eminent lady who played the greatest role in mobilizing for formal and higher education for women in Bengal specifically, was Begum Rokeya Sakhawat Hussein, who against numerous personal/familial, cultural, and financial odds, established an Urdu-medium school for girls in Calcutta in the year 1911; by then Urdu had come to dominate the elite Muslim culture in Bengal, to be gradually replaced by Bengali in later decades. Named the “Sakhawat Memorial Girls’ School,” this school opened at 13 Waliulla Lane in a tiny classroom, with only 8 girls in attendance. In 1917, it became a middle English school. Begum Rokeya added a class every year till her school became a high school in 1931 (Sonia Nishat Amin, 1996, The World of Muslim Women in Colonial Bengal 1876-1939, E. J. Brill, pp. 156-7).

 

While this was the first stable beginning of modern education among Muslim girls in this region, there were other and even earlier efforts in various parts of Bengal and in certain parts of India to make modern education accessible to girls. Thus, for instance, a primary school for girls from strictly purdah observing families were founded in 1873 in Comilla by another pioneering Bengali woman, Nawab Faizunnessa Chaudhurani who herself had received a good education at home in Urdu, Bengali, Sanskrit, and Persian. This school became a Junior High School (till the 8th grade) in 1889 and a regular High School in 1931. It operates today as Nawab Faizunnesa High School for Girls (Amin 1996: 149-50). In 1897, on the request of Nawab Shamsi Jahan Firdaus Mahal of Murshidabad, Lady Mckenzie, the wife of the governor of Calcutta, Muslim Girls’ Madrasa was inaugurated at Calcutta. Begum Firdaus Mahal funded the construction of the building. She also provided a monthly grant of Rs. 150 while Nawab Ahsanullah of Dhaka contributed Rs. 1000. In 1898, 46 girls enrolled at the Madrasa (Amin 1996: 147). However, not much is known about the exact contents of the Madrasa curriculum. The firs formal school for girls in Dhaka, Eden Female School, was established in June 1878. This was the first government secondary school for girls in the region and remained thus for many years. A college section was introduced in 1926, making the Eden Girls’ School and College the first institute for higher secondary education for women in Eastern Bengal (Amin 1996: 151-3).

 

However, there was no effort in the area of Bengal to create opportunities for women to obtain higher RELIGIOUS education. Women traditionally received some basic Islamic education at home. In certain ashraf or upper aristocratic families, the quality of Islamic education that girls received at home could be quite remarkable and as high as the quality of the education received by the boys in those families. In many middle and upper class families, a girl would be introduced to the Qur’an at the age of 5 through a lesson in Arabic letters taught by female tutors from modest backgrounds called “ustadnis.” These female tutors would also teach some Persian, Urdu, some basic accounting skills, a little sewing and embroidery, and later Bengali and English as well (Amin 1996: 136). Once women began to attend non-religious public schools, they began to be instructed in subjects such as mathematics, history, and geography, but some basic religious instruction continues to this present day in the form of the course “Islamiyat,” which is a compulsory course for Muslims in state schools in Bangladesh. However, a Muslim woman did not have any opportunity to become an Alim (religious scholar) through education at an elite Madrasa (a religious seminary with 16 years of coursework and training).

 

Only during the last 2-3 decades did the Ulama finally open the doors of formal, elite Madrasas to women. Separate women’s Madrasas, both of the Kamil/Alia variety (that is the Madrasas which follow the govt. approved course curriculum of a few modern subjects and a revised form of the Dars Nizami syllabus) and the Kaumi variety (which follow the Deoband and most traditional/standard Dars Nizami) have been established. However, as far as traditional Islamic courses are concerned, the courses are essentially the same in both the Kamil/Alia and Kaumi systems of religious education. The Kawmi Madrasas are private. They do not receive any financial support from the government and are supported by religious endowments or by zakat and sadaqa. While most of the Alia Madrasas, except the five fully state controlled major Ali Madrasas, are privately owned and administered, the Government of Bangladesh pays 80 percent of the salaries of their teachers and administrators. To varying extents, Madrasa education, by virtue of its charitable spirit and affordability, has made possible some degree of social mobility for thousands of lower and lower middle class people throughout modern South Asia (Mumtaz Ahmad, 2004, “Madrassa Education in Pakistan and Bangladesh” in Religious Radicalism and Security in South Asia). 

 

The number of Madrasas for girls which followed Alia courses (in 2005) is as follows:

 

Level Course Duration Numbers

Dakhil 10 yrs 952

Alim 12 years 77

Fazil 14 years 22

Kamil 16 years 5

 

(Source: Dr. Muhammad Abdus Satter, senior official of Madrasah Education Board and author of Bangladesh Madrasah Shikkha (Madrasah Education in Bangladesh), published by the Islamic Foundation Bangladesh).

 

There are several Kawmi Madrasas for girls. In Dhaka, there are 2 such Madrasas which award the Dawra degree to girls. Dawra degrre is the highest degrree in Qaumi Madrasah and this degree is equivalent to Kamil in Alia Madrasas and Masters in the universities . The students go through 16 years study to get this degree. 

 

The course syllabi used in girls/boys Madrasahs in both Alia and Kawmi systems are the same. There is a shortage of female teachers. However, the problem is not a serious one since male teachers in many cases teach in these Madrasas. Male and female Alims tend to be equal in knowledge and abilities. In fact, a senior Alim, Maulana Abul Kalam Azad informed me that the girls tend to perform better as students than the boys since the former appear to take their school duties more seriously. In my view, women Alims can be deployed, as in Turkey, as Muftis wherever their services are required. However, it must be stated that as things stand currently, in order to be compatible with present socioeconomic demands, the Madrasa curriculum requires significant improvement and diversification in coursework, while sustaining a focus on the core religious courses. A serious inclusion of modern disciplines would not only help bridge increasing gaps between Madrasa-educated and lay-educated Muslims but would also help produce Muslims who are religious scholars, able to effectively administer the increasingly diversifying and specialized public and private sectors, and able to establish needed dialogues both within the Muslim community and between Muslims and non-Muslims of different faiths and persuasions. A Muslim, educated in this manner, would truly embody the Islamic ideal of a comprehensive person and system where any separation of one area of life (such as “religion”) from another (such as “politics” or “economy” or “society” or “culture” of “education”) is not recognized. Every dimension exists as a part of a whole just as every organ and part of a human body operates as an integral part of a whole. 

 

Madrasa Education in Bangladesh 

 

Let me briefly discuss the development of Madrasa education in the Bangladesh region over the last 200 years. Warren Hastings, the Governor General of British India,on the request made by the Muslims in 1780, asked Maulana Majduddin, an accomplished scholar of the traditional Islamic Sciences to prepare a course curriculum and to launch a Madrasa. The Madrasa took off in 1780 according to a variant of the Dars Nizamia curriculum. This curriculum, which historically served as a model for many Madrasas throughout the world, was developed in its original form for the Nizamia Madrasa in Baghadad, founded by the eleventh century Seljuq Vizier Nizam-ul Mulk Hasan ibn ‘Ali during the Abbasid period. The 1780 Madrasa in Bengal was launched in a rented building in Kolkata (Calcutta). The original Nizamia syllabus had represented a blend of naqli ‘uloom (revealed sciences), including the Quran, the hadith, fiqh (Islamic jurisprudence) and tafsir(Quranic commentary), on the one hand, and the aqli ‘ulum(rational sciences), including Arabic language, grammar, logic, rhetoric, philosophy, astronomy, medicine, physics and mathematics, on the other. However, the Nizami syllabus, as adopted in colonial South Asia and as shaped by cultural and political forces, came to distinguish between “religious” and “worldly” knowledge and to stress the “ deenie” sphere of knowledge to the neglect and virtual exclusion (until very recent decades) of areas of modern “duniyavi” knowledge (Sikand 2004). Thus the first Madrasa in Bengal followed traditional courses in Arabic grammar, Arabic language, philosophy, logic, Fiqh, usul-al-fiqh, theology (kalam), Tafsir, and Hadith, all largely based on classical texts. This was the beginning of the Alia Madrasa system (Dr. Muhmmad Abdus Satter, 2004, Bangladesh Madrasa Shikkha [Madrasa Education in Bangladesh], Islamic Foundation Bangladesh, 1st edition, pp. 120-129). 

 

Many commissions and committees have been formed since then to deal with the various aspects of public education and Madrasa education, but the courses basically remained the same and the Madrasa text books in Fiqh, Usul-al-Fiqh, Tafsir and Hadith have all remained essentially the same. Virtually no significant changes have been effected with the passage of time and significant shifts in socio-political and economic conditions both locally and globally. Contemporary texts and disciplines have not been included in any significant way in the Madrasa curriculum although the subjects of English, Science, Bangla, History, Geography, and Mathematics have been included in the lower stages of Madrasa education (Dr. AKM Azharul Islam and Professor Shah Muhammad Habibur Rahman, Bangladesh School and Madrasa Shikkhaniti o Karjokrom [Curriculum and Education Policy of Schools and Madrasas of Bangladesh], The Islamic Academy, Cambridge, UK, Chapter 4). Thus, for instance, texts used for the core religious subjects date back to the seventeenth century at the latest and the eleventh century at the earliest. However, this Alia system of Madrasa education in Bangladesh is quite unique in its five distinct sub-divisions: ibtedai (elementary), dakhil (secondary), alim (higher secondary), fazil (B.A.), and kamil (M.A.) (Mumtaz Ahmad, 2004, “Madrassa Education in Pakistan and Bangladesh” in Religious Radicalism and Security in South Asia). 

 

Until recent decades, we find Madasa education in Bangladesh and possibly in South Asia to be characterized by the following features: 

 

1. The method of instruction was Urdu.

 

2. No reference whatsoever is made to female education. 

 

3. Strict dependence on extremely dated and classical texts. 

 

4. Initially separate books were prescribed in Fiqh, Usul al Fiqh and Kalam for Sunni and Shia students even though these students used to study in the same Madrasa (Dr. Muhammad Abdus Satter, ibid, pages 172-199.).

 

However, as I said before, the Ulama in the course of the last 20-25 years have become aware of the need of higher religious education for women. Below, I note some of the figures related to the female student community following the Alia system of religious education:

 

Year Course Number of male students Number of female students

 

2000 Dhakil 101,414 50,835

 

2000 Alim 51,127 14,743

 

2000 Fazil 20,732 3,256

 

2000 Kamil 13,158 833

 

Now I turn to the Islamic Studies Department in colleges and universities. This degree is open to both men and women. The course curriculum has been patterned on the key elements of the syllabus followed at the Dars Nizami Madrasas, where the subjects taught include Arabic, Fiqh, Usul al Fiqh and Hadith, history, and Islamic Philosophy. However, the course coverage of the Islamic traditional sciences is less here than in the Kamil or Dawrah Madrasa courses. A serious student can develop into an Alim if he or she undertakes advanced personal study. However, my conversations with scholars revealed that completion of the Islamic Studies course currently prevalent in the universities can hardly be said to transform one into an Alim (This is the opinion of Prof. Mustafizur Rahman of Dhaka university, Arabic Department, a former Vice-Chancellor of Islamic University, Kushtia, and Nasima Hasan,an M.S. in Islamic Studies from Dhaka University, now a teacher at the International Islamic University, Chittagong, Dhaka Campus).

 

Let me add that in recent times, some women are taking part in television programs in Bangladesh. These women are largely university educated and trained in general subjects, but have pursued the informal study of Islam on a personal level. A few hold degrees in Islamic Studies or Arabic. The emergence of modern, self-styled religious thinkers or scholars, who secure religious knowledge through informal and personal or Islamic organizational study of Islam, is evident throughout Muslim communities today notably in South Asia, Southeast Asia, and the Middle East. This culture of self-styled religious authority is particularly evident in the sphere of electronic communication. This phenomenon speaks to the gaps in traditional religious education and to the inability of many traditional religious experts to respond satisfactorily to the issues increasingly central to the experiences and needs of younger generations of non-Madrasa educated Muslims in the present-day world.

 

In conclusion, I will say that Islamic education among women is increasing and diversifying both at informal and formal levels even though the standard of religious education in most of these cases leaves much to be desired. Most female students of religious scholarship today are becoming traditional Alims, as deficient as male Alims in responding to the needs of the rapidly growing numbers of Muslim recipients of modern/non-religious mass higher education, those ranks of Muslims from which the leaders of contemporary Muslim societies and states continue to emerge. Voices for reforming the Madrasa system grow stronger every year and these voices are diverse, but the pace of any real reform has been painfully slow for a number of reasons that scholars have discussed (see, for instance, Yogi Sikand in Religious Radicalism and Security in South Asia, 2004). 

 

The atmosphere of distrust created by the US-led war against “terrorism” is certainly not helping the cause of Madrasa reform since many orthodox ulama, who have always resisted reform, now feel more certain than ever that under the guise of liberalizing and modernizing Islamic education, the West and its secular allies are bent on gradually eradicating the force of Islam altogether from the educational and cultural spheres. However, I feel that despite various difficulties and legitimate doubts and concerns, Muslims must move beyond a RE-ACTIVE politics which is often unproductive and harms Muslim interests in the end. While one must learn from history and study it carefully, one should not be determined by it. Muslims and the Ulama in particular, must become PRO-ACTIVE instead and take whatever initiatives necessary to sustain, improve, and enhance Islamic education such that it impacts life positively all over the world, not only in Mulim majority societies. The Qur’an, after all, was revealed as guidance not only for Muslims, but for “humankind.” We should not allow our fear of the uncertainties of the future and the formidable strength and ploys of our adversaries to prevent us from determining, with clarity, the priorities of the Muslim ummah, however diversely constituted. We allowed colonialism to paralyze our advancement for many precious decades. It is no secret, for example, that nineteenth and twentieth century nationalist efforts to define Indian women strictly in terms of the domestic sphere were in large part a reaction to the colonial project of domination and imposed transformation in the Indian subcontinent. Today, we must not allow the current age of imperialism or neo-colonialism to freeze our progress as Muslims for the next hundred years. If Madrasa reforms are undertaken effectively, substantially, and thoughtfully, with an emphasis on the OVERALL kind of Muslim person, scholar, scientist, and leader we want to produce for the twenty-first century and beyond, then it is my belief that both men and women of this generation and the generations to come would benefit from these reforms immensely. 

 

*Former secretary, Govt of Bangladesh, Chairman,Bangladesh Institute of Islamic Thought and Advisor,International Islamic University, Chittagong.

Law for Muslim Women in Bangladesh

Law for Muslim Women in Bangladesh

Prepared by : Sultana Kamal - Advocate - Bangladesh.

The legal status of the Muslim women (1) in Bangladesh is
defined by the principles of Sharia through Muslim Personal Law
along with the general law which is non-religious and secular in
its character. The Muslim parsonal law covers the field of
marriage, divorce, maintenance, guardianship of children and
inheritance whereas the general law covers the rights under the
Constitution, penal codes, the civil and criminal procedure codes,
evidence act etc. It is necessary to examine the legal status of the
Muslim women in Bangladesh in the context of these two sets of
law as in both cases women are supposedly fortified with
theroretical legal rights, but there is a gulf of difference existing
between theory and its actual application. Most important of all, it
must be seen that some of these laws though excellent in theory
prove largely elusive in practice. The main hurdle that lies in the
way of the practical application of the legal rights of women in
Bangladesh is obviously the inherent contradiction of attitude that
permeates the male oriented society considerably supported by
religious beliefs. In this discussion, however, I shall mainly refer
to those statutes or those provisions of a statute which treat men
and women differently. Matters not covered herein after should be
understood to have egalitarian principles giving women the same
rights and obligations as the men. Let us discuss the legal rights of
Muslim women in Bangladesh under the following heads :
1. Succession and right to property
2. Marriage, divorce and connected matters
3. Maintenance
4. Guardianship of children, and
5. Fundamental rights.
Before going onto specific rights we must know that the large
majority of people in Bangladesh are Muslims and of these most
are Hanafi (2) Muslims while an only small minority of them
belong to any other sects. Thus in general when a point is made
about the law relating to Muslims it will be referring to the law
which governs the majority. Therefore, we should note that
historically the provisions we regard as provisions of pure Islamic
Law are to a large extent Quranic utterances which were applied
to the reformation of the pre-Islamic Arabian customary law.
(Salma Sobhan, p10). According to Fyzee, "The Koranic reform
came as a super-structure upon the ancient tribal laws : it
corrected many of the social and economic inequalities then
prevalent."(3) Fazlur Rahman also makes the same point,
"Whereas the spirit of the Quranic legislation exhibits an obvious
direction towards the progressive embodiment of the fundamental
human values...nonetheless the actual legislation of the Quran had
partly to accept the then existing society as a term of
reference."(4) We should also note further that these laws in the
sub-continent have been modified in many cases not only by
Statute and by custom but also by case law. The other important
point to remember is that though Quran has immensely improved
the status of women in several directions, society as a whole
maintained the inequalities that still remained. Not only that,
though over the course of years some disparities were modified by
different laws, custom has sometimes been strong enough to
militate against the Quranic rule of law. There is, therefore, no
reason to suppose that all the rules that we are going to consider
were meant to be definitive for all times.(5) Now let us return to
the specific laws.
1. Succession and Right to property.
Muslim law of inheritance has two distinct elements, namely, the
customs of ancient Arabia and the rules laid down by the Qurand
and prophet Mohammad. Under the customary law of pre-Islamic
Arabia the women in whatever capacity were excluded from
inheritance. The Quran made quite a considerable change of the
position.
According to to the Muslim Law there are three kinds of heirs (i)
"sharers" who are entitled to a prescribed share of the inheritance,
(ii) "residuaries" who take on prescribed share, but succeed to the
residue left after satisfying the claims of the sharers, and (iii)
"distant kindreds" who are blood relations other than the sharers
and residuaries, and succeed generally in the absence of sharers
and residuaries. In the classification of the heirs, it is important to
note that though the son's son and son's daughter have been made
residuary and sharer respectively, daughter's children have been
made distant kindreds.(6) The principles of succession among the
sharers and residuaries are two-fold, i. The nearest in blood
relationship excluded the remote one and ii. Whoever is related to
the deceased through any person shall not inherit while the person
is living.(7)
Under the Muslim Law, the wife (or wives taken together) get
one-eighth if there is child, and one fourth if there be no child
from the estate of her husband, though the husband gets exactly
double. Mother gets from the estate of her sons one-sixth when
there is child of her son or when there are two or more brothers or
sisters or one brother and one sister of her son, and one third when
there is no child and not more than one brother or sister of her
son. On the other hand, the father gets from the estate of his son
one-sixth if there be child of his son and in the absence of any
child of his son, he gets the entire residue after satisfying other
sharers claim, and so on and so forth.(8) It is significant that the
Quran has provided that daughter, mother and wife would under
all circumstances be entitled to some share in the inheritance and
are not liable to exclusion from inheritance, but they are not
treated at par with their male counterparts, i.e. son, father and
husband and to this extent rules of inheritance are discriminatory.
Women in fact were not given parity in the matter of their shares
and as a general rule, the female is given one-half the share of the
male. Salma Sobhan writes, since "the Koran is to be likened to an
"amending act" rather an exhaustive code... in the changed society
there is little reason to perpetuate this distinction."(9)
The case of sister's inheritance is equally discriminatory.
According to the rule of nearer in relationship excluding the
remoter in relationship, children of a pre-deceased son or daughter
would not inherit if a person died leaving another son. This often
rendered the child or child of pre-deceased child destitute. This
inequity, however, has been removed by Muslim Family Laws
ordinance, 1961 (10) which provides that the children of the predeceased
child would inherit the share which the pre-deceased
children would have inherited had he or she been alive. But the
widow of a predeceased son remains as helpless as before as she
does not inherit anything of this ordinance.
2. Marriage, divorce and connected matters.
Marriage in Islam is a contract and every Muslim of sound mind
who has attained puberty may enter into a contract of
marriage.(11) Puberty is presumed, in the absence of evidence,
when one reaches the age of 15 years, but this presumption is
rebutable.(12)
Until the age of puberty, a minor may be given in marriage by his
or her guardian and though this is in fact against the provisions of
the Child Marriage Restraint Act, such a marriage even 4
Bangladesh
under that Act would not be void. Under the Sharia Hanafi, a girl
given in marriage below the age of puberty can repudiate that
marriage after she attained it and up to the age of 18 provided the
marriage was not consummated. By statute puberty is no longer
relevant and girl given in marriage below the age of 16 can
repudiate the marriage either on the attaining of 16 years, or
puberty, where she was married before puberty. Since according
to the Sharia a girl is free from guardianship at puberty and by the
time she is 13 this is assumed, the law presents another anoamaly
in that a girl can give herself in marriage if she wishes below the
age of 16, if she has attained puberty and the marriage would be
valid though the person officiating and the groom himself where
he was over 18 would be liable for punishement under the Child
Marriage Restraint Act.
Salma Sobhan writes, "Though a minor may be given in marriage,
no minor may contract herself in marriage during her minority and
any such marriage would be held to be void (9D.L.R.1957 p.45)
Where a minor has been given in marriage and marriage has been
consumated before puberty such consummation does not operate
to deprive the minor of the option to repudiate after puberty (9
D.L.R.1957 p.45) However there appears no provision for
explaining or informing the minor of this right either at the time of
her marriage or when she attains puberty.....It would further
appear that even in cases where a girl was given in marriage
before puberty, she attained puberty or say the age of 14 1/2 years
and subsequently the marriage was consummated, she should
have the right under statute to repudiate the marriage after she was
16 provided there were no further acts of consummation between
the period of her 16th or 18th years.(8 D.L.R.1956 p.77) (13)
A Muslim male can contract valid marriage with a Muslim as also
with a Ketabi (Jew or Christian). But his marriage with an
idolatress will be irregular. On the other hand, A Mulsim woman
may not contract a valid marriage with any one else but a Muslim.
A marriage with a Christian or a Jew would be irregular while a
marriage with a Hindu would be invalid (that is any children born
would be illegitimate). It simply means that while a man may
marry someone who is not his "social equal" a woman should be
protected against such marriages. A Muslim male can take four
wives at a time, but a Muslim woman cannot take more than one
husband. Even a male marries having already four wives, the fifth
marriage is not void, but only irregular. Though Islamic Law
vastly improved the then status of woman, the idea of woman
being a property could not be altogether thrown away as can be
found from the permissibility of plurality of wives. However,
realising the evil effects of and the injustice inherent in the
polygamy of men Muslim Family Laws Ordinance, 1961
(Ordinance N°.VIII of 1961 Vide Pakistan Code 1966
Vol.XIV,P.67) was passed. Sec.6 of the Ordinance provides that no
man, during the subsistence of existing marriage, shall contract
another marriage without prior written permission of Arbitration
Council and violation of this provision entails liability of
conviction and punishment. The Arbitration Council while dealing
with an application for permission to marry during the subsistence
of a marriage would consider whether the existing wife consents
to such marriage and whether it is necessary and just to grant the
permission. But this legislation failed to produce the desired result
because due to protracted procedure in courts few iclined to bring
violations to court and because the Arbitration Council being
manned by males very often were not un-willing to accord
permission on the slightest pretexts. The law did not make
adequate provision to control the discretion of the Arbitration
council.
By Bengal Act N°.1 of 1876 (Vide East Pakistan Code, 1963 Vol.
11. p.71) provision was made for registration of Muslim
marriages, but registration under this Act was optional. Muslim
Family Laws Ordinance 1961 made the registration compulsory
and enjoined the Kazi (who solemnises marriage) on pain of
punishment to report solemnisation of marriage to marriage
registrar so that the marriage may be registered. Similar
provisions have been made by Muslim Marriages and Divorces
Act, 1974.
One of the essential part of Muslim marriage is "dower" paid or
promised to be paid by the husband to the wife. Dower must not,
however be confused with "dowry" which consists of presents
made by father and other relations of the bride and Muslim Law
does not make any provision for payment of dowry. Dower is the
sum of money or other property which the wife is entitled to
receive from the husband in consideration of marriage. (D.F.
Mulla, Principles of Mohamedan Law, 17th Ed.P.277). The
amount of dower may be fixed either before or at the time of
marriage of after marriage. The laws does not say anything about
the quantum of dower. The amount of dower is generally split into
two parts- "prompt dower" which is payable immediately on
demand by the wife and "deferred dower" which is payable only
on dissolution of marriage by death or divorce. In view of the
provisions of Muslim Family Laws Ordinance, the entire amount
is now to be treated as "prompt". The claim to dower is not lost
even when the marriage is dissolved by Court at the instance of
the wife or when the wife exercises the right to divorce.
It is in the field of divorce that the most flagrant inequality
between husband and wife exists. The husband has the right of
unilateral divorce, for no cause at all. The wife has no such right,
and when her husband exercises his right, the wife has no redress.
The women can have judicial separation on specified grounds
through intervention of Court. The Muslim Family Law
Ordinance 1961 though has already provided for arbiters,the
arbitration council cannot prevent the talak by the husband even if
it be highly arbitrary and unjust and can only delay the action in
the hope that some conciliation will result.
The most common mode of divorce by man prevalent in
Bangladesh is Bedai Talak (Irrevocable Divorce) which takes
effect immediately without the requirement of communication to
the wife for its validity. The husband pronounces three times that
he divorces his wife and with the third pronouncement the Talak
becomes irrevocable and takes effect on completion of a certain
period. This may also be done by writing on a piece of paper.
Once this right was exercised the parties could not re-marry
without the intervention of another marriage, i.e. unless the wife
was married to a thrid person and then divorced after
consummation of the marriage. (D.F.Mulla, Principles of
Mohammedan Law, 17th Ed.) With the introduction of the
Muslim Family Law Ordinance 1961, the position has changed.
Section 7 of the Ordinance provides that Divorce given by the
husband shall not take effect until the husband has given notice of
the Divorce to the chairman of local administrative unit, Union
Parishad and ninety days have elapsed after issuance of the said
notice and within the said period the husband can revoke the
Divorce. The husband is also to give a copy of the said notice to
the wife. The Chairman on receipt of the notice would constitute
Arbitration Council for effecting a re-conciliation which, if
successful, would render the divorce ineffective. It is an offence
not to notify the Chairman about exercise of Divorce by the
husband. The provisions of Sec. 7 of the Ordinance apply mutatis
mutandis in case of divorce exercised by the wife and the divorce
does not take effect unless notice thereof is given to the Chairman
and 90 days have elapsed thereafter. The husband can delegate his
power of divorce to his unconditionally or with condition and that
is called Talak-e-Tawfeez. When any condition is stipulated the
wife can divorce her husband in the happening of that condition.
Now the divorced parties can remarry without the formality of the
marriage with third party. (Sec7(6), Muslim Family Laws
Ordinance, 1961.)
Muslim marriage can be dissolved by agreement between the
husband and wife and it may take the force of Khula or Mubarrat.
In Khula, the marriage is dissolved by an agreement between the
parties for a consideration paid, or to be paid, by the wife to the
husband, it being necessary condition that the desire to separate
should come from the wife. Where desire to the separation is
mutual, it is said to be Mubarat. A wife is entitled to Khula as of
right or restoration of what she had received in consideration of
5
marriage, if she satisfies the conscience of the court that it will
otherwise mean forcing her into a hateful union. As stated above,
a Muslim female does not have the right to divorce in the way a
mal-e has, but she could seek judicial divorce on grounds
permitted by Muslim Law. The Dissolution of Muslim Marriage
Act, 1939 (Act N° VIII of 1939 (Vide Pakistan Code 1966,
Vol.IX,P.716). was passed in order to consolidate and to clarify
those grounds and also to add some new grounds.(15)
A wife is entitled to obtain a judicial divorce on neglect or failure
of the husband to provide maintenance for two years. But if the
wife refuses herself to her husband without any lawful excuse and
deserts her husband, or otherwise wilfully fails to perform her
marital duties, she has no right to claim maintenance and cannot
obtain a decree for dissolution of marriage on the ground of nonpayment
of maintenance.The fact that the wife is a woman of
means would not be a defence to the claim of judicial divorce for
non-payment of maintenance. A muslim woman can obtain
judicial divorce on any ground recognised by Muslim Law. Thus a
wife is entitled to judicial divorce if the husband brings false
charge of adultery against her unless the husband bonafide retracts
the charge of adultery. To constitute a valid retraction, it must be
made before the commencement of the hearing of the suit, it must
be bonafide and there must be an admission by the husband about
making the charge and an unconditional acknowledgement by him
that the charge is false. Incompatibility of temperament as results
in a hateful union has been accepted as a ground for seeking
judicial divorce. Before the Dissolution of Muslim Marriage Act
1939 apostacy from Islam of either party operated as a complete
and immediate dissolution of marriage. After passing of the Act,
apostacy from Islam of the wife does not dissolve the marriage
(Sec.4 of the Act) while apostacy of the husband dissolves the
marriage immediately. (Mulla.P.305)
3. Maintenance
In accordance with Muslim Law, the father is bound to maintain
his daughter until she is married (Mulla). The fact that the mother
has the custody of the daughter till the latter attains puberty does
not relieve the father of his obligation to maintain the daughter
(Mulla). If the father is poor, but the mother is in easy
circumstances, the mother has the obligation to maintain the
daughter (Mulla). But a father is not bound to maintain a daughter
who is capable of being maintained out of her own property. A
Muslim mother is entitled to maintenance from her son if she is
poor or if the son is financially solvent (Mulla). A Muslim
husband is bound to maintain his wife so long the wife remains
faithful to him and obeys his reasonable orders. If the wife refuses
herself to her husband without any lawful excuse and deserts her
husband or otherwise wilfully fails to perform her marital
obligations she has no right to claim maintenance from the
husband. But if the wife refuses to perform her marital obligations
on the failure of the husband to pay the prompt dower the husband
will not be absolved of his liability to maintain his wife (Mulla).
A Muslim woman in the event of divorce is entitled to
maintenance by the husband till the expiry of the period of Iddat
(e.i.90 days, and in case of a pregnant wife till the end of the
pregnancy). A Muslim male maintains his daughter as best as his
means permit and a husband also maintains his wife to the best of
his ability so long the relationship remains good, but if the
relationship is estranged, the condition of the wife is very
difficult. The social milieu and cumbersome court procedure
made it difficult for the wife to have maintenance through Court.
Muslim Family Laws Ordinance, 1961 tried to evolve a procedure
through which the wife can easily have her remedy, but it has not
produced any appreciable improvement. The Family Courts
Ordinance, 1985, however, has been promulgated to deal with
divorce and related matters and provisions have been made to
dispose the cases of within the shortest time possible.
A Muslim widow is essentially dependent on her son, for,
generally even her share in the property of her husband remains in
the hands of the son and ironically enough, her fate depends upon
the attitude of the daughter-in-law. But if the widow has no son to
depend upon the relations of the husband; her condition in most
cases is miserable.
4. Guardianship of children
In the matter of guardianship of children, a Muslim woman is
definitely at odds. Under Muslim Law, the mother is entitled only
to the custody of the person of her minor child up to a certain age
according to the sex of the child. But she is not the natural
guardian either of the person or property of the child; the father
alone, or if he is dead, his executor is the legal guardian. Salma
Sobhan points out "In Islam a careful distinction is made between
being entitled to the custody of one's children and being their
guardian.......one would be tempted to compare the difference
between these two concepts to the difference between possession
and ownership. In any event, in Muslim Law, the mother is never
entitled to the guardianship of her children.......However, a mother
is always entitled in the first instance to the care and custody of
her young children. Her sons she may keep till they are seven, and
her daugthers till puberty. The father is responsible for their
maintenance during that period. A mother may lose custody of her
children, particularity her daughters, if she re-marries a stranger,
someone that is, who is not barred to the children by the rule of
consanguinity. These are the basic rules, but they have been
modified, not only by the Guardian and Wards Act, but there is
also a fairly substantial amount of case-law on the subject, which
on the whole has been very sane. "(16) It is laid down by the
Guardian and Wards Act, 1890 that the courts have stated that
these provisions are for the benefit and protection of the child, and
that it is the courts paramomunt duty to consider the welfare of the
children over the rights of the parents. (20 D.L.R.1968 P.1).
According to Salma Sobhan again "Thus remarriage of the mother
outside the permitted degrees has not been held an absolute reason
for depriving her of the custody of her children. Were the children
having been all along in the custody ceased, it was still considered
advisable to let them continue in her care and control, as the father
had re-married and it was felt that the children's interests would
not be so well looked after by their step-mother. The father is only
free from the burden of maintaining his children where they are
being withheld from him illegally. The mother's poverty is never a
sufficient reason to deprive her of her right to the custody of her
children." (Dhaka Law Reports, 1955, 1958, 1964 and Guardian
and Wards Act, 1890.) Under the Guardian and Wards Act,
further, a mother can always apply to the court to be appointed the
guardian of her children.
5. Fundamental Rights
In here I shall discuss some of the aspects of the general law,
which is non-religious or secular in nature, the most important of
which is the constitutuion. Under the Bangladesh Constitution
(The Constitution of the People's Republic of Bangladesh, 1972),
various provisions exist relating to women both directly and
indirectly. In a section where the state accepts a fundamental
responsibility towards raising the standard of living of the people,
it specifically undertakes responsibility for providing social
security to, inetr alia, widows. Another section runs, The state
shall take effective measures to prevent prostitution". Further on it
is stated categorically, "All citizens are equal before the law and
are entitled to equal protection of the law" and also that "The State
shall not discriminate against any citizen on grounds of ....sex"
and "Women shall have equal rights with men in all spheres of
State nad Public life", and "No. citizen shall on grounds only
of.....sex..... be subject to any disability, liability, restriction or
condition with regard to any place of public entertainment or
resort, or admission to any educational institution. "There is a
further section which reads, "Nothing in this article shall prevent
the State from making special provision in favour of women or
children or for the advancement of any backward section of
6
citizen." In the sections relating to service with the Republic there
are also similar passages securing equal opportunity for all
citizens on the one hand while reserving the right to make special
provision in favour of any backward section of citizens for the
purpose of securing them adequate representation or reserving for
members of one sex any class of employment or office on the
ground that is considered by its nature to be unsuited to members
of the opposite sex. Further, in exercise of these provisions, 30
seats of Parliament were reserved for women members
exclusively for a period prescribed in the constitution. These
provisions are interesting both in that which they say and that
which they imply. According to Salma Sobhan's analysis while all
citizens are equal before the law and entitled to equal protection
this does not mean, nor is it meant to mean that all citizens enjoy
equal rights. The State, though, undertakes not to discriminate
gagainst any citizen, and women are categorically assured of
equality is given outside these spheres. Further the right to reserve
any job exclusively for one or other of the sexes because of its
nature is a slightly sinister one. Either a job cannot physically be
done by a person or else it is a matter of X's opinion that such and
such a job cannot be done by Y. This may in fact be no more than
a statement that the job ought not to be done by Y. "The tenor of
all these provisions read as a whole makes it obvious that the
drafters of the Constitution could not fail to acknowledge tacitly
the fact of the inequality present in the status of women. To their
credit their consciences were sensitive to the particular
vulnerability of widowed women and they show commendable
awareness of the fact that prostitution exists not usually because
of the "weakness" of the prostitute but rather as a means of
exploitation by society. Yet it would appear to be implied that the
vulnerability or exploitability of women was something inherent
to their sex rather than a commentary on the society itself," writes
Salma Sobhan. Women are thus bracketed with children and
"other backward sections of society". The assumption is that it is
women who are backward, not the society in its attitudes towards
women. Thus we may say that the Constitution operates on two
assumptions. The first is that women are in need of greater
protection than men. This is not so much for women are
privileged, but because they are weaker. And because of this the
identity of the woman is submerged with the stronger identity of
her male counterpart or guardian. It should be noted that where it
appears that the women are being accorded privileged treatment it
results often in the so-called privilege under-writing a social
custom rather than attempting to eradicate it.
The women are allowed maternity leave in addition to other leave
facilities enjoyed by men in public service. In private employment
no employer shall knowingly employ a woman during the six
weeks immediately following her date of delivery. (Rule 197 of
Government Service Rules, Vide East Pakistan Service Rules;
Part-1 P.82 and Sec. 3 of the Maternity Benefit Act, 1939 Vide
East Pakistant Code 1962; Vol.VI;P.1). The employer also is
bound to pay maternity benefit at a certain rate acording to the
Maternity Benefit Act of 1939. But due to want of proper check,
these provisions are often violated. Moreover, the employers feel
inclined not to employ women to avoid that extra cost. Similarly,
Acts that every factory emplying more than fifty women must
provide for suitable room for use of children of those women (The
Factories Act, 1965) and that the Governement has been given
power to extend this facility to the plantation labour (The Tea
Plantation Labour Ordinance, 1962) have not proved effective at
all. Looking at how women are treated in Penal Code, let us first
consider the Act regarding abortion (Act N°.XIV of 1860). Under
that act whoever (including the woman herself) voluntarily causes
a woman with child to miscarry, shall, if such miscarriage be
caused in good faith (wich now invariably is considered to limit
family size) for the purpose of saving of life of the woman be
punishable, and who commits this offence without the consent of
the woman miscarried shall be liable to higher sentence. It should
be noted here that in the recent past abortion has been "justified"
in the name of "menstruation regulation" or "medical termination
of pregnancy" as a birth control measure, and the "good faith" has
changed its connotation from "for the purpose of saving of life of
the woman" to "birth control" and abortion as a free choice of a
woman to terminate her pregnancy has remained socially as well
as legally "undesirable".
Assault or criminal force to woman with intent to outrage her
modesty and kidnapping and abduction of woman to compel her
to marriage, inducing girl under 18 years of age to go from any
place or to do any act with the intent that such girl may be forced
or seduced to illegal sexual intercourse or importation of girl
below 21 years of age for the said purpose selling or otherwise
disposing of girl under 18 years of age for prostitution or illicit
sexual intercourse and buying or obtaining possession of such girl
for prostitution or illicit sexual intercourse are offences under the
Penal Code Rape is an offence and sexual intercourse with the
wife under 15 years of age without her consent is treated as rape.
Cohabitation caused by a man deceitfully inducing a belief in the
woman of lawful marriage or enticing or taking away or detaining
with criminal intent another man's wife are offences. Adultery and
bigamy are also offences, but the woman involved in the adultery
is not liable to punishment. (Act N°XIV of 1860, Bangladesh
Code, 1978 Vol.I). It is interesting to note that when a woman is
accused of an offence, "womanhood" is one of the grounds for
release on bail. Sec.497, Code of Criminal Procedure Vide
Pakistan Code 1966 Vol. IV). The Cruelty to Women (Deterrent
Punishment) Ordinance, 11983 and the Dowry Prohibition Act
1980 have been promulgated to expedite the court procedures and
enhance the punishment, no substantial change, however, in law
has been made to really improve the situation.
Conclusion:
On the basis of the above discussion, probably it is a bit too strong
to say that the law actively, in all spheres, denigrates women, but
it certainly does not elevate them. Discussing the law of
maintenance of wives under Muslim Law, Naimuddin Ahmed
writes, 2 In Bangladesh, the law, as it is, cannot probably rescue
Muslim wives from, first, being abandoned and then being
divorced and left with a life-time of indigence by arbitrary,
capricious and whimsical husbands." (17) The weakness in the
Muslim Family Law Ordinance 1961 is that not only is the second
marriage not made void, but that the right of unilateral divorce is
not effectively curbed, so that any woman opposing her husband's
remarrying, in a system where there is no alimony for a divorced
woman, and where she will rarely have been given an appropriate
education to enable her to earn her own living, runs the risk of
destitution. It is true that the social attitude contributes to this
dismal state of affaires, but the situation can considerably be
imporved by reform of law. When the Consittuion professes
equality of women with men, the need to review and revise the
law to ensure fundamental rights to equality hardly requires any
emphasis. Not only that he law should be revised, but its
enforcement should be made easy, speedy and similar so that the
women can get some benefit out of whatever the law is offering.
Unless the law itself along with the procedure for its enforcement
is changed, the position of Muslim women in Bangladesh will
continue to remain subject to such humiliating condition because
of erroneous concept of law, of women's position in society and
also of humanity as a whole.
It may be mentioned here that the various women's organisations,
namely the Mahila Parishad, Women's Lawyers'Association and
the Committee for Resistance to Violence to Women and Social
Injustices are working seriously towards reformation of Law as
well as speedy adjudication of the same. One of the results of long
struggles of women in Bangladesh is the promulgation of the
Family Courts Ordinance, 1985, the Cruelty to Women (Deterrent
Punishment) Ordinance 1983 and the Dowry Prohibition Act,
1980.
Women are being more and more conscious about their religious,
social, economic, political as well as legal position and are
7
showing quite a considerable interest in working towards a more
egalitarian and just situation.
End notes:
1. 85.47 per cent of the total population in Bangladesh are
Muslims according to the Bangladesh Statistical Year Book 1975-
76, P.29; and Women constitute 48.1 percent, Bangladesh
Population Census, 1974 Buylletin 2, P.1.
2. 91 per cent of the total Muslim Population are Hanfi Muslims.
3. A. Fyzee - Outline of Mohammedan Law, 4th Edition. Oxford
University Press, Delhi 1974. p.388
4. Fazlur Rahman - Islam P. 39 quoted in Legal Status of Women
in Bangladesh by Salma Sobhan.
5. Salma Sobhan - Legal Status of Women in Bangladesh,
Bangladesh Institute of Law and International Affairs, Dhaka
1978, P. 20.
6. Women's Legal Status in Bangladesh by Sufia Ahmed and
Jahanara Choudhyry, published in Situation of Women in
Bangladesh, Women for Women 1979. P.295
7. D.F. Mulla - Principles of Mohamedan Law, 17th Ed. M.M.
Tripathi (Private Ltd) Bombay 1972. P70.
8. Ibid. P.72.
9. Salma Sobhan - Legal Status of Woman in Bangladesh. P.31.
10. An ordinance to give effect to certain recommendations of the
Commission on Marriage and Family Laws dealing with
succession, registration of marriage, polygamy, divorce,
maintenance, dower, ect.
11. D.F. Mulla P.255
12. Mustag Ahmed Vs Mahmud Amin P.L.D. 62. Karachi 442
quoted in Women's Legal Status in Bangladesh by Sufia Ahmed
and Jahanara Choudhurry. P.301
13. Dhaka Law Report, 1956 P.77
14. D.F. Mulla P.257
15. Act N° VII of 1939 (Vide Pakistan Code 1966 Vol.IV, p.716,
quoted in Women's Legal Status in Bangladesh by Sufia Ahmed
and Jahanara Choudhury. P.313.
16. Salma Sobhan Legal Status of Women in Bangladesh, p.29
17. Naimuddin Ahmed - Maintenance of Wives under Muslim
Law, published in Law and International Affairs Vol.8, N°2, 1985,
Journal of the Bangladesh Institute of Law and International
Affairs. P.64
References :
D.F. Mulla - Principles of Mohammedan Law. 17 th Edition M.M.
Tripathi (Private Limited) Bombay, 1972.
Salma Sobhan - Legal Status of Women in Bangladesh,
Bangladesh Institute of Law and International Affairs, Dhaka,
Bangladesh 1978.
Situation of Women in Bangladesh, Women for Women, Dhaka
1979.
Family Laws and Courts Manual, Vol.I. Syed Anwar Hossain,
Sailur Books, Dhaka 1985. The constitution of the People's
Republic of Bangladesh, 1972. Dhaka Law Reports.