September 17, 2012

VI. Bangladesh’s Obligations under International Law

Bangladesh is party to a number of binding international human rights treaties relevant to marriage and its dissolution. These include the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW);[308] the Option Protocol to CEDAW;[309] the International Covenant on Civil and Political Rights (ICCPR);[310] the International Covenant on Economic, Social and Cultural Rights (ICESCR);[311] the Convention on the Rights of Persons with Disabilities (CRPD);[312] and the Convention on Consent to Marriage, Minimum Age of Marriage, and Registration of Marriages.[313] The Bangladesh government has also committed to implementing other international standards and goals that address gender equality, including the Beijing Platform for Action[314] and the UN Millennium Development Goals.[315]

Right to Equality during Marriage and at Its Dissolution

International human rights law explicitly guarantees equality within and after marriage. Article 16 of CEDAW obliges states to take all appropriate measures to eliminate discrimination against women in “all matters relating to marriage and family relations,” and to ensure “the same rights and responsibilities during marriage and at its dissolution.” [316] The impact of Bangladesh’s reservations to CEDAW are discussed in detail below. Article 23 of the ICCPR also guarantees equality between spouses “during marriage and at its dissolution.”

International human rights law obligates states to ensure substantive, not just formal, equality. The CEDAW Committee (the expert group that monitors implementation of CEDAW) has explained that this means governments should foster an “enabling environment” where there can be “equality in results.” [317] It has said that states must also take into account biological, social, and cultural differences between men and women, and can provide differential treatment under some circumstances. [318] In order to achieve substantive equality, authorities can take “affirmative action in order to diminish conditions which cause or perpetuate discrimination” or “preferential treatment in specific matters” to correct de facto discrimination. Such differential treatment should not be seen as discrimination. [319]  On the contrary the CEDAW committee has stated that “identical or neutral treatment of women and men might constitute discrimination against women if such treatment resulted in or had the effect of women being denied the exercise of a right because there was no recognition of the pre-existing gender-based disadvantage and inequality that women face.” [320]

States cannot invoke religion or custom to justify sex-based discrimination in marriage. In an authoritative interpretation of the principle of equality within marriage, the CEDAW committee stated that “whatever the legal system, religion, custom or tradition within the country, the treatment of women in the family both at law and in private must accord with the principles of equality and justice for all people.” [321] The UN Human Rights Committee (the expert group that monitors implementation of the ICCPR) has stated that governments should ensure that “traditional, historical, religious or cultural attitudes are not used to justify violations of women’s right to equality before the law” and to equal enjoyment of all rights guaranteed under the ICCPR. [322] Moreover, article 5(a) of CEDAW obliges states to:

Modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

Bangladesh’s personal laws do not guarantee equality within a marriage.  As explained below, elements of Bangladesh’s laws that contravene its human rights obligations on nondiscrimination in marriage and the family include: the absence of full and free consent to marriage and the legal recognition of polygamy; unequal divorce criteria for men and women; women’s inability to claim marital property upon divorce; barriers to women accessing maintenance; and the lack of mandatory marriage registration. Bangladesh also falls short of international law by providing no legal protections for women who believed their marriage was legally valid and cohabited, but failed to prove a lawful marriage in court.

Bangladesh’s Reservations to CEDAW

Bangladesh has entered a reservation to articles 2 and 16 of CEDAW, which address the basic obligation of states to eliminate discrimination under law (article 2) and to eliminate discrimination in marriage and family relations (article 16).  The reservation states that the government of Bangladesh does not consider articles 2 and 16 binding as they conflict with Shari’a law. The CEDAW committee has said that reservations to these articles are incompatible with the object and purpose of the convention, are therefore impermissible under international law and should be withdrawn. It has repeatedly called on Bangladesh to withdraw its reservations.[323] In 2010 the government said in its report to the CEDAW committee that “withdrawal of the reservations…was under consideration.”[324]

The question of compatibility of reservations with human rights treaties has been addressed by the UN Human Rights Committee, which has noted that reservations are subject to the Vienna Convention on the Law of Treaties, which provides (in article 19(3)) that reservations may not be incompatible with the object and purpose of the treaty.[325] This means that reservations that offend peremptory norms and provisions that represent customary international law may not be the subject of reservations. Equally reservations to obligations to respect and ensure the rights in a treaty or to take the necessary steps at the domestic level to give effect to the rights in a treaty (as Bangladesh’s reservation purports to do) are not acceptable.[326] The committee drew particular attention to the types of reservations, like Bangladesh’s, that are widely formulated and in practical terms render ineffective the rights which would require any change in national law.[327]

Polygamy

The UN Human Rights Committee has stated that “polygamy violates the dignity of women” and that “it is an inadmissible discrimination against women” which “should be definitely abolished wherever it continues to exist.”[328] The CEDAW committee has also stated:

Polygamous marriage contravenes a woman's right to equality with men, and can have such serious emotional and financial consequences for her and her dependents that such marriages ought to be discouraged and prohibited. [329]

Bangladesh’s personal laws permit polygamy for Muslim and Hindu men. This violates women’s right to equality. In situations where a man misrepresents his marital status and marries again, the subsequent wife or wives’ right to full and free consent to marriage (also guaranteed by CEDAW, the ICCPR, and other treaties) is also violated.[330]

Human Rights Watch found that in many cases women in polygamous marriages experienced domestic violence, calling into question the Bangladesh government’s efforts to prevent violence against women. For example, the Bangladesh government has failed to enforce legal pre-conditions for husbands to remarry, the failure of which contributes to domestic violence. In its General Recommendations 19 and 28, the CEDAW committee emphasized that states may  be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence.[331]

Unequal Divorce Criteria for Men and Women

The obligations of states to ensure the same rights of men and women during marriage “and at its dissolution” include an obligation to ensure that laws do not set higher barriers to divorce for women than for men.

The personal laws that allow divorce, namely for Muslims and Christians, make access to divorce much more restrictive for women than for men. Muslim men have an absolute right to repudiate marriage through talaq, whereas a woman can only do so if her husband agrees to this in the marriage contract. Muslim women can also divorce through mubara’t (where both parties agree) or khula (where the wife seeks divorce and the husband must consent) and many argue that they have to give some consideration (usually money or foregoing claims to mahr) to get the husband to consent under the khula form. Women can also approach courts for divorce pursuant to the Dissolution of Muslim Marriages Act. Divorce under the Dissolution of Muslim Marriages Act involves court intervention, which renders the process expensive and time-consuming. The law also restricts the circumstances under which women can seek divorce.

Christians can divorce pursuant to the Divorce Act, which allows a husband to divorce his wife for adultery alone, but sets more onerous conditions for wives to seek a divorce, as outlined above.

Lack of Legal Recognition of Marital Property

Women’s right to equality during marriage and at its dissolution includes their right to marital property. Article 16 of CEDAW requires that states ensure: “The same rights for both spouses in respect of ownership, acquisition, management, administration, enjoyment and disposition of property.”[332]

The UN Human Rights Committee has stated that equality within marriage means equality “in all aspects of marriage,” including “administration of assets.” It also has stated that:

States parties must ensure that the matrimonial regime contains equal rights and obligations for both spouses with regard to…ownership or administration of property, whether common property or property in the sole ownership of either spouse.

It urged states to review their legislation to ensure that married women have equal rights in regard to ownership and administration of property.[333]

The Committee on Economic, Social and Cultural Rights (the CESCR), which monitors implementation of the ICESCR, has also stated that governments must ensure that women have an equal right to marital property.[334]

The CEDAW committee has specifically rejected the notion that women should not have equal rights to marital property because of social or religious expectations that husbands will support their wives. It has stated that laws on division of marital property are discriminatory if they allow a greater share to the man on the premise that the “man alone is responsible for the support of the women and children of his family” and “will honorably discharge this responsibility.” [335] Noting that many countries allow marital property to be divided when a marriage is dissolved, the committee criticized those countries that recognize married women’s financial, but not non-financial, contributions. [336] It recommended that states give equal weight to financial and non-financial contributions made by women in marriage, including raising children, caring for elderly relatives, and discharging household duties. [337]

Bangladesh’s laws completely disregard women’s contributions to the marital household and husband’s property, instead recognizing a strict de facto separate property regime.[338] Barring the limited but important recognition afforded to the marital home or shared residence and the concept of “economic loss” under the 2010 law against domestic violence, there are no laws that specifically define and address women’s equal rights to control and use marital property during marriage, and division of marital property upon dissolution of marriage.[339] The marriage contract for Muslims may be used creatively to introduce rules regarding marital property. In practice, men almost always retain marital homes, land, and other property upon separation or divorce, despite women’s contributions. The lack of legislation on marital property violates women’s right to equality in marriage and at its dissolution. It also interferes with women’s right to an adequate standard of living,[340] including adequate housing, since women are often forced out of their marital homes and into poor housing conditions upon dissolution of marriage.

The CEDAW committee, in its last review of Bangladesh’s compliance with the treaty, asked about division of marital property at the time of divorce. The committee suggested that Bangladesh adopt a “progressive approach to improve women’s rights in such areas, even under an overall regime of personal status legislation.” It also suggested that:

All economic consequences of marriage could be redefined as civil contractual matters, and the concept of sharing in marital property could be drawn from the implied contracts theory that could be attributed to every marriage. [341]

Barriers to Securing Maintenance

Although international human rights treaties do not specifically address access to spousal maintenance, women’s ability to access such support is critical to their right to nondiscrimination in marriage and at its dissolution.

In all countries, there remain strong social expectations that women will subordinate their careers and economic activity to their family and household duties. Marriage often brings about a drop in earnings and career advancement, if not a complete end to wage work. Women perform a far greater proportion of household and family care work than men throughout marriage, and their contributions often enable their husbands’ career advances, growth of family businesses, and increased value of their homes. For women and men to enjoy their rights to equality during and upon dissolution of marriage, it is essential that laws recognize the reality of when marriage serves as a constraint on the economic independence of women, leaving them with fewer assets and economic prospects than men at the end of marriage. Laws on maintenance should serve to ensure that if a marriage dissolves, both spouses are in an equal economic position taking into account different roles fulfilled during marriage.

Despite the lack of explicit treaty language on maintenance, UN treaty bodies have remarked on its importance, encouraged law reforms to make it more effective, and explained that it should be available on a nondiscriminatory basis. The UN Human Rights Committee has said that article 23 of the ICCPR prohibits “discriminatory treatment in regards to grounds and procedures… for maintenance and alimony.”[342] The CEDAW committee has also encouraged states to reform maintenance laws to better reflect gender-based economic disparities between spouses and women’s greater share in unpaid work.[343]

Members of the CEDAW committee have also discussed maintenance in a ruling on a case brought by a divorced woman under the Optional Protocol to CEDAW. [344] The case was dismissed for failure to exhaust domestic remedies, but two committee members dissented and addressed criteria the local court should have considered. The dissenting members observed that the local court had failed to award “decent” maintenance, and should have considered the woman’s years of unpaid work in the family while her husband advanced his career and income, her uncertain financial situation, her lack of work experience outside, and her prospects of finding work and supporting herself given her age. These criteria have some commonalties with the more extensive list of factors for determining maintenance developed by the Caribbean Community (described in Section IV).

Bangladesh’s personal laws provide only vague criteria for maintenance. With the lack of clear standards, there is no guarantee of consistency in what courts (or traditional authorities) will consider when setting maintenance amounts. In effect, maintenance awards are often small, and fail to rectify women’s and men’s unequal financial status upon dissolution of marriage.

Further, maintenance proceedings in Bangladesh are routinely prolonged, sometimes running into decades, rendering ineffective married women’s petitions for economic support upon dissolution of marriage. The Bangladesh government has yet to ensure that family courts abide by time limits for such cases or ensure, at the very least, that interim maintenance is granted when final maintenance orders are delayed. Other countries, such as Pakistan, have resolved this problem by providing for interim maintenance when the case is pending. [345]

Marriage Registration

The Convention on Consent to Marriage, Minimum Age of Marriage, and Registration of Marriages obliges states to ensure that “all marriages are registered in an appropriate official register by the competent authority.”[346]

In Bangladesh, however, marriage registration is patchy, and is not compulsory for all religious communities. Christians and Muslims are required to register their marriages but there are no digitized records, and some registrars tamper with Muslim marriage records. Hindus have no marriage registration at all, though in May 2012 the cabinet approved a bill for optional registration of Hindu marriages.

Protections for Women in Unrecognized Relationships

In Bangladesh, as described above, women may be in a relationship with a man to whom they believe they are married only to discover, when the relationship ends, that they are not married in compliance with the law or that there is no legal proof of the marriage.

International human rights law embraces a flexible understanding of the term “family,” and UN treaty bodies have encouraged states to recognize rights related to the family as applying to a variety of family situations. For example, the Human Rights Committee, in its General Comment on article 23 of the ICCPR, which guarantees the rights to family, marriage, and equality of spouses, stated that the states have an obligation to recognize different types of families, including single parents and their children, and to ensure the equal treatment of women in these contexts.[347]

In Bangladesh, with its lack of clear standards on what constitutes a valid marriage for some religions and with poor enforcement of marriage registration practices, many couples understand themselves to be married, but in fact have not met legal requirements. Women who find themselves in this situation are not entitled to maintenance or any other protections, minimal though they are, under personal laws. To comply with international law, Bangladesh should develop clear guidelines for judges to evaluate under what circumstances individuals in a relationship that falls short of legal requirements for marriage should be entitled to claim rights based on such a relationship. 

Right to Social Security

Several human rights treaties ratified by Bangladesh address the right to social security. Article 9 of the ICESCR recognizes the “right of everyone to social security, including social insurance.” Article 11(e) of CEDAW states that states should provide social security to women “particularly in cases of… unemployment, sickness, invalidity and old age and other incapacity to work,”[348] and article 14(c) states that women in rural areas should benefit directly from social security programs.[349] Article 28 of the CRPD obliges governments to ensure that persons with disabilities, especially women and girls, have access to social protection and poverty reduction programs. In particular, it requires governments to ensure that poor families living with disability have access to programs that provide for disability-related expenses.[350]

In its General Comment No. 19, the CESCR stated that the right to social security includes a right to benefits in cash or kind to protect oneself from “insufficient family support.”[351] It said that states have an obligation to “provide benefits to cover the loss or lack of earnings due to the inability to obtain or maintain suitable employment.”[352] While everyone has the right to social security, the CESCR recommends that states give “special attention” to certain categories of persons, including women, children and adult dependents, people with disabilities, and older persons.[353]  Where there are contributory social security schemes, states should factor in women’s inability to make contributions due to lack of workforce participation and family responsibilities.[354]

The Bangladesh government has taken commendable steps to provide small cash allowances to widowed and “deserted” women, as well as other assistance programs. But many women are unaware of these programs, information about them is hard to access with bodies such as local government offices or family courts not disseminating information about them. These programs are also plagued by disbursement delays and misuse of funds. Other social programs, such as the land distribution also have discriminatory elements that undermine their effectiveness. For example, the government’s khas land distribution program restricts eligibility to only those female-headed households that have an able-bodied male. 

[308] Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, acceded to by Bangladesh on November 6, 1984. Bangladesh currently has a reservation to articles 2 and 16(1)(c),  "The Government of the People's Republic of Bangladesh does not consider as binding upon itself the provisions of article 2, [... and ...] 16 (1) (c) as they conflict with  Sharia law based on Holy Quran and Sunna."

[309] Optional Protocol to the Convention on the Elimination of Discrimination against Women, adopted October 6, 1999, G.A. res. 54/4, annex, 54 U.N. GAOR Supp. (No. 49) at 5, U.N. Doc. A/54/49 (Vol. I) (2000), entered into force December 22, 2000. Bangladesh ratified the Optional Protocol on September 6, 2000.

[310] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S.171, entered into force March 23, 1976. Bangladesh acceded to the ICCPR on September 28, 2000.

[311] International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976. Bangladesh acceded to the ICESCR on October 12, 1999.

[312] Convention on the Rights of Persons with Disabilities (CRPD), adopted December 13, 2006, G.A. Res. 61/106, entered into force May 3, 2008. Bangladesh ratified the CRPD on November 30, 2007.        

[313] Convention on Consent to Marriage, Minimum Age of Marriage, and Registration of Marriages.

[314] Fourth World Conference on Women, Beijing Declaration and Platform for Action, 1995, http://www.un.org/womenwatch/daw/beijing/pdf/BDPfA%20E.pdf (accessed November 28, 2011).

[315] UN Millennium Declaration, September 18, 2000, G.A. Res. 55/2, U.N. GAOR, 55th Sess., Supp. No. 49, at 4, U.N. Doc. A/55/49 (2000).

[316] CEDAW, art. 16(1)(c).

[317] UN Committee on the Elimination of Discrimination against Women (CEDAW Committee), General Recommendation No. 25, Temporary special measures (2004), HRI/GEN/1/Rev.9 (Vol.II), p. 365, http://www.un.org/womenwatch/daw/cedaw/recommendations/General%20recommendation%2025%20(English).pdf (accessed August 27, 2011), para. 8.

[318] Ibid.

[319] UN Human Rights Committee, General Comment No. 18 on Non-discrimination (1989), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/3888b0541f8501c9c12563ed004b8d0e?Opendocument (accessed August 27, 2011), para. 1o.

[320] CEDAW Committee, General Recommendation No. 28, Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women (2010), CEDAW/C/2010/47/GC.2, http://www2.ohchr.org/english/bodies/cedaw/docs/CEDAW-C-2010-47-GC2.pdf (accessed April 7, 2012), para. 5.

[321] CEDAW Committee, General Recommendation No. 21, Equality in marriage and family relations (1994), HRI/GEN/1/Rev.9 (Vol.II), p. 337, http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom21 (accessed August 27, 2011), para. 13.

[322] UN Human Rights Committee, General Comment No. 28, para. 5.

[323] CEDAW Committee, “Concluding observations of the Committee on Elimination of Discrimination Against Women, Bangladesh,” 48th session, January 17—February 4, 2011, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/417/30/PDF/G1141730.pdf?OpenElement (accessed December 5, 2011), para. 11; CEDAW Committee, “Concluding observations of the Committee on Elimination of Discrimination Against Women, Bangladesh,” 31st session, June 2004, http://www2.ohchr.org/english/bodies/cedaw/docs/co/BangladeshCO31.pdf (accessed December 5, 2011), para. 236.

[324] Combined sixth and seventh periodic report of States parties, Consideration of reports submitted by states parties under article 18 of CEDAW, CEDAW/C/BGD/6-7, March 2010, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N10/288/51/PDF/N1028851.pdf?OpenElement (accessed December 5, 2011), para. 68.

[325] General Comment No. 24: Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant , April 11,1994, para. 6,  HRI/GEN/1/Rev.9 (Vol.I), p. 210.

[326] Ibid., paras. 8 and 9.

[327] Ibid. para. 12.

[328] UN Human Rights Committee, General Comment No. 28, para. 24.

[329] CEDAW Committee, General Recommendation No. 21, para. 14.

[330] CEDAW, art. 16(b); ICCPR, art. 23(3); ICESCR, art. 10(1).

[331] CEDAW Committee, General Recommendation No. 28 on the Core Obligations of States Parties under Article 2, October 2010, CEDAW/C.2010/47/GC.2, para. 19.

[332] CEDAW, art. 16(1)(h).

[333] UN Human Rights Committee, General Comment No. 28, para. 25.

[334] UN Committee on Economic, Social and Cultural Rights, General Comment No. 16, The equal right of men and women to the enjoyment of all economic, social and cultural rights, E/C.12/2005/4, 2005, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G05/435/39/PDF/G0543539.pdf?OpenElement (accessed August 27, 2011), para. 27.

[335] CEDAW Committee, General Recommendation No. 21, para. 28.

[336] Ibid., paras. 30-33.

[337] Ibid., para. 32.

[338] The Married Women’s Property Act of 1874, which applies to Christians, recognizes that married women’s property is separate.

[339] Domestic Violence (Prevention and Protection) Act, 2010, secs. 10 and 15.

[340] ICESCR, art.11 read with the Committee on Economic, Social and Cultural Rights, General Comment No. 16, The equal right of men and women to the enjoyment of all economic, social and cultural rights (art. 3 of the International Covenant on Economic, Social and Cultural Rights), 2005, E/C.12/2005/4, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G05/435/39/PDF/G0543539.pdf?OpenElement and General Comment No. 20, Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), 2009, E/C.12/GC/20, http://www2.ohchr.org/english/bodies/cescr/comments.htm.

[341] CEDAW Committee, “Consideration of reports submitted by States parties under article 18 of the Convention, Combined sixth and seventh periodic reports of Bangladesh,” para. 51.

[342] UN Human Rights Committee, General Comment No. 19, Protection of the family, the right to marriage and equality of the spouses (art. 23), HRI/GEN/1/ Rev. 2 (1990), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/6f97648603f69bcdc12563ed004c3881?Opendocument (accessed December 22, 2012), para. 9.

[343]CEDAW Committee, Concluding Observations on Germany (2009), CEDAW/C/DEU/CO/6, http://www2.ohchr.org/english/bodies/cedaw/docs/co/CEDAW-C-DEU-CO6.pdf (accessed April 7, 2012), para. 55.

[344]Ms. B-J v. Germany, Communication No. 1/2003, Decision of the Committee on the Elimination of Discrimination against Women, declaring a communication inadmissible under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, decision adopted on 14 July 2004, 31st session, Appendix.

[345] Pakistan’s Family Courts Act, 1964, sec. 17A; Malaysia’s Islamic Family Law (Federal Territories) Act, 1984, sec. 70; Morocco and Malaysia also provide for interim maintenance.

[346] Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, adopted November 7, 1962, G.A. res. 1763 (XVII), entered into force December 9, 1964, http://www2.ohchr.org/english/law/convention.htm (accessed August 17, 2011), art. 3. Bangladesh acceded to this convention on October 5, 1998.

[347] UN Human Rights Committee, General Comment No. 19, para. 2.

[348] CEDAW, art. 11(e).

[349] Ibid., art. 14(c).

[350] CRPD, art. 28.

[351] UN Committee on Economic, Social, and Cultural Rights, General Comment No. 19, para. 2.

[352] Ibid., para. 16.

[353] UN Committee on Economic Social and Cultural Rights, General Comment No. 19, para. 31.

[354] Ibid., para. 32.