September 17, 2012

Summary

Shefali S., a Muslim, lived with her husband and in-laws. She worked in the family’s fields and did all the household work. When she was pregnant with their first baby, she learned of her husband’s plan to remarry and confronted him. He kicked her, and made her stand naked throughout a cold winter night as punishment. On one occasion he beat her to the point of unconsciousness. Eventually he abandoned her and remarried. Shefali continued to live with her in-laws and endure their beatings because her parents were too poor to support her and she felt she had no hope of securing maintenance.

Namrata N., a Hindu, gave her life savings to her husband to start a business. He misused the money, turned violent when she challenged him and demanded that it be returned, and eventually tricked her into drinking acid. “It felt like my mouth and insides were on fire,” she told us. He fled, and she is now dependent on a feeding tube. Namrata wants to divorce her husband but Hindu personal laws do not allow her to.

Joya J., a Christian, said she did household work from 5:30am every day. If she took a break even to play with her little daughter, her mother-in-law got angry. Often she had no time to bathe, and if she dozed off after lunch, her mother-in-law would get angry and insult her. Joya’s husband also occasionally beat and verbally abused her. Unable to bear the abuse, Joya escaped from her marital home several times, seeking refuge with a church and with her parents. Both the church and her parents forced her to return to her husband’s home. The abuse continued so Joya, with nowhere else to go and no money for housing, hid on a family friend’s verandah and in her bathroom. Her husband and in-laws spread rumors that she had run away with a man.

Shefali, Namrata, and Joya suffered the injustices of Bangladesh’s discriminatory personal laws and its consequences in different ways. Each of them contributed, financially or otherwise, to their marital homes. But Bangladesh’s laws do not recognize a wife’s contributions to the marital home and fail to give her equal right to marital property during marriage and at the time of dissolution. None of them was aware of any social assistance program or how to access it.

Bangladesh’s personal laws governing marriage, separation, and divorce overtly discriminate against women. Setting out separate rules for Muslims, Hindus, and Christians, many of these laws were codified decades (and in some cases more than a century) ago, and grant men greater powers than women in marriage and accessing divorce. The few economic entitlements for women recognized by these laws, namely maintenance and mahr (contractual amounts under Muslim marriage contracts), are often meager and difficult to secure.

As a result, rather than offer protection, Bangladesh’s personal laws often trap women in abusive marriages or propel many of them into poverty when marriages fall apart. In many cases these laws directly contribute to homelessness, hunger, and ill health for divorced or separated women and their dependents.

This report is based on interviews with 255 people in 2011, including 120 women who have experienced the shortcomings of Bangladesh’s personal laws, as well as lawyers, experts, government officials, and former judges. It finds that these laws discriminate against women during marriage, separation, and divorce, and exacerbate women’s economic inequality.

It also finds that family courts, where women can claim their minimal rights related to marriage, are often so plagued by delays, dysfunction and burdensome procedures that women wait months or years for any result. The report finds that there are significant barriers to and shortcomings in Bangladesh’s social assistance programs, which are failing to reach many women in extreme economic hardship after separation or divorce.

In Bangladesh, over 55 percent of girls and women over 10 years old are married. For many in the country, marriage offers economic security. But it might also result in financial hardship due to social pressure to leave jobs after getting married, the double burden of household work and reduced ability to participate in paid work, and a lack of control over income and savings. About 330,000 women in Bangladesh are divorced, according to government data, and an unknown number live separated from husbands.

The United Nations country team in Bangladesh has identified “marital instability” as a key cause of poverty and “ultra and extreme” poverty among female-headed households. The Bangladesh Planning Commission has said that women are more susceptible to becoming poor after losing a male earning family member due to abandonment or divorce.

Married women make contributions in many forms to family homes, businesses, fields and other assets, providing vastly more unpaid household and care giving labor than men. All married women whom Human Rights Watch interviewed for this report said they bore almost sole responsibility for household work, including cooking, cleaning, washing, grazing livestock, and fetching water. Many said they contributed significantly to their households at the time of, or during, marriage by selling jewelry, or relinquishing earnings or savings to their husbands.  These contributions helped to buy property in the husband’s name, further his education, establish businesses, or help him get occupational or business licenses or permits. Almost all women said they gave their husband or in-laws a dowry.

Yet despite these myriad contributions, all but a handful of the women we interviewed were unable to exercise control over their income and marital property. Nor were they able to recoup anything or have their economic value recognized when their marriages ended.

“The suffering that women go through only Allah knows,” one Muslim woman, who struggled to afford housing and food after her husband left her, told Human Rights Watch. “I wish Allah could make us men not women.”

After decades of inertia, there is momentum for change in Bangladesh. In 2010, a law against domestic violence was introduced, which defines causing “economic loss” as an act of domestic violence and recognizes the right to live in the marital home. The law also empowers courts to provide for temporary maintenance to survivors of domestic violence. In 2012, the Law Commission of Bangladesh, supported by the Ministry of Law, Justice and Parliamentary Affairs, completed nationwide research into reforms for Muslim, Hindu, and Christian personal laws. In May 2012, the cabinet approved a bill for optional registration of Hindu marriages. The Ministry of Law, Justice and Parliamentary Affairs is also considering reforms to civil court procedures—especially on issuance of summons—that will improve family court efficiency. These small but important steps follow decades of pressure by women’s rights groups that have consistently demanded personal law and procedural reform.

Echoing their efforts, this report calls for personal law reform, procedural reform, better implementation of the limited protections currently available for women, and stronger state assistance for divorced or separated women, and women faced with domestic violence. Legal rights to a share of marital property on an equal basis with men and an entitlement to appropriate support from husbands or ex-husbands should be paired with access to social assistance where necessary; land distribution programs should be non-discriminatory so that female-headed households are not disadvantaged or excluded; and protection measures including access to shelters should be expanded.

The report notes strong opposition to reform, including from religious leaders averse to government involvement in “religious” affairs, or who argue that “religious” teachings offer no scope for reform. Law reforms related to family and religion is often contentious. But it is noteworthy that other countries with Muslim, Hindu, and Christian populations—including countries with Muslim majorities or countries that incorporate Sharia in their family laws, as Bangladesh does—have reformed personal laws to recognize greater rights for women. These reforms reflect diverse interpretations of “religious” teachings on marriage and its dissolution, as well as government recognition that states have an obligation to eliminate discrimination regardless of the personal law applied.

Discriminatory Personal Laws

Since its independence in 1971, the bulk of Bangladesh’s laws are applicable to all citizens without discrimination based on sex or religious belief, with one major anomaly: its personal laws. Some reforms, especially laws against domestic violence and acid attacks, have addressed family issues and apply across the religious spectrum. But personal laws on marriage, separation, and divorce, some dating to the 19th century, have remained largely frozen in time.

According to the 2001 census the large majority (89.7 percent) of Bangladesh is Muslim. Hindus constitute about 9.2 percent, Buddhists 0.7 percent, and Christians 0.3 percent of the population.

Muslims, Hindus, and Christians have separate laws on marriage, separation, and divorce. They are a mix of codified and uncodified (but officially recognized) laws, and are supplemented by authoritative decisions issued by the Supreme Court of Bangladesh and the High Court Division of the Supreme Court of Bangladesh. Buddhists are governed by Hindu personal laws.

Bangladesh also has four civil laws broadly related to family matters that apply to members of all religions; the Special Marriage Act, the Child Marriage Restraint Act, the Guardian and Wards Act, and the Family Courts Ordinance. The Special Marriage Act applies only to those who renounce their religion and so is rarely used. The “civil” divorce law applies only to Christians and the few couples that marry under the civil marriage statute.

All three sets of personal laws discriminate against women with respect to marriage, divorce, separation, and maintenance, as explained below. They also fail to recognize marital property and its division on an equal basis after divorce or upon separation. This almost always benefits men and disadvantages women, unless the title to property happens to be in both the husband’s and wife’s names. This is rarely the case: a 2006 World Bank survey found that less than 10 percent of women surveyed had their names on any marital property documentation (rented or owned).

Muslims

Muslim personal laws are discriminatory in their embrace of polygamy for men, their unequal provisions on divorce, their limited rights to maintenance during marriage, and after divorce, their lack of maintenance beyond 90 days.

However, it is important to emphasize some positive aspects of Muslim personal law. It recognizes that the marriage is a contract. In fact a standard form marriage contract affords women the opportunity to negotiate better economic protection during marriage. But Human Rights Watch found that the 71 Muslim women whom we interviewed had little knowledge about the contract and the ways in which they could negotiate better terms.

Muslim personal law recognizes wives’ right to mahr pursuant to marriage contracts. But mahr amounts are often so small, especially for older women who have been married for a long time, that they fail to reflect the overall contributions a wife makes to marital assets. Moreover, even where higher mahr amounts were fixed for younger married women, Human Rights Watch found this right, more often than not, existed only on paper. Most women interviewed said their husbands defaulted on payments without sanction.

Polygamy forms a key basis for discrimination. The Muslim Family Laws Ordinance of 1961 aims at restricting polygamy by imposing procedural conditions. The law requires a husband to treat all his wives equitably and to seek the permission of a local arbitration council to take multiple wives, indicating to the council whether the previous wife or wives consented to the subsequent marriage. But of the 40 Muslim women Human Rights Watch interviewed in polygamous marriages, none said she had consented to polygamy or experienced an arbitration council review.

Experts said that local officials charged with convening arbitration councils are poorly trained, and that the government does not monitor compliance with polygamy authorization procedures. Moreover, while Muslim personal law calls for compulsory marriage registration, accessing and verifying records is difficult because marriage registrars maintain them manually and sometimes tamper with them. There are no centralized digital records. This, too, enables men to marry multiple times without authorization.

Muslim personal law also makes it far easier for men than for women to divorce. All Muslim men have an absolute right to unilaterally divorce at will (talaq, or no-fault divorce), whereas Muslim women may only do so if men “delegate” them this right in the marriage contract. While men’s right to divorce through talaq is supposed to be subject to arbitration council review, experts said this rarely happens.

Otherwise if a woman wants to divorce she must secure the consent of her husband. Men and women can divorce through mutual consent (mubara’t). Women may also seek a khula divorce—another form of divorce through mutual consent— but many experts say that this is available to women only if they pay consideration to their husbands (usually foregoing mahr). Alternatively, women can divorce through seeking court intervention under the Dissolution of Muslim Marriages Act of 1939, but only on specific grounds and via a lengthy process.

Muslim personal law recognizes wives’ right to maintenance during marriage, but upon divorce, maintenance is provided for only 90 days from the date of official notice, or if the wife was pregnant at the time of divorce, until the birth of the child. Family courts have sometimes denied maintenance during marriage where the wife has left the marital home and the husband claims that she has not been “dutiful,” “chaste,” or of “good character.” Lawyers did say that over time judges have been more willing to award maintenance during marriage if the reason wives left their marital homes was because of violence, dowry harassment, or abandonment by the husband.

Hindus

Hindu personal law, which is only minimally codified, has similar discriminatory elements. It allows Hindu men to marry any number of times, without any procedural preconditions. Divorce is not permitted for men or for women. Under a 1946 statute that partially codified Hindu personal law, Hindu women can formally apply in family courts to seek a separate residence and maintenance from their husbands, but only on limited grounds. Even those minimal rights are nullified if a court finds that the woman is “unchaste,” has converted to another religion, or fails to comply with a court decree ordering restitution of “conjugal rights.”

Hindu women applying for maintenance or a separate residence must prove they were married in the first place, a difficult task since Hindu marriages lack a formal registration system. In May 2012, the cabinet approved a bill for optional registration of Hindu marriages.

Christians

Christian personal law also discriminates against women. Divorce is allowed on limited grounds for both men and women, but the grounds are far more restrictive for women. Men can divorce if they allege their wife committed adultery. Wives, on the other hand, must prove adultery and one of a range of other acts. Such acts include: conversion to another religion, bigamy, rape, sodomy, bestiality, desertion for two years, or cruelty. Charges of adultery are particularly humiliating for women in Bangladesh’s conservative society.

Christian women are entitled to maintenance during marriage and alimony after divorce, but this is tied to their “chastity.”

Impact on Women and their Dependents

Bangladesh’s discriminatory personal laws harm women and their dependents during marriage and upon separation or divorce, contributing to violence against women and poverty in female-headed households.

Many women interviewed described being trapped in violent marriages because they feared they would end up homeless and unable to manage financially if they divorced or separated. Many Muslim women in polygamous marriages said their husbands beat them if they protested against remarriage, or that their husband and other wives abused them. Farida F., for example, said her husband and his other wife beat, starved, and verbally abused her, but she knew if she left him, she would face destitution. “I didn’t have anywhere to go,” she said, “so I just lived with whatever they did.”

Most divorced or separated women described severe economic hardship, including losing marital homes, living on the street, begging for food, working as live-in domestics to have a roof over their heads, pulling children from school to work, struggling with ill health, and lacking resources to deal with any of these problems. Aseema A., for example, said her husband threw her out of their home, and she got no maintenance or share of the marital property. She sent her 10-year-old daughter to work as a domestic worker, and Aseema lived and begged on the streets with her younger daughter until a landlord offered her housing and food in return for unpaid work in his fields.  Mona M.’s husband abandoned her and took another wife, leaving her with no money to pay for health care after a miscarriage. She moved in with her widowed, impoverished mother.

Courtroom Battles

Family courts have primary responsibility for enforcing Bangladesh’s personal laws, but are plagued with procedural and administrative problems. Lawyers, former judges, and activists told Human Rights Watch that enforcement of court orders can take years, and is often riddled with problems around summons and notice procedures and processes for executing court decrees. Sitara S. told Human Rights Watch what motivated her to seek legal assistance to file a case in court after her husband divorced her. She said, “After he left me he didn’t give me anything. Not even one piece of cloth,” she said. “I am begging [for food] all the time. When I told him I’m going to court he laughed, saying, ‘Go to court. You will get nothing.’ When will I get anything from court?”

Other problems in family courts include inconsistent practices among judges related to evidence, unpredictable awards, failure to award interim maintenance, and lack of clear criteria for awarding maintenance.

While Bangladesh’s personal laws say judges can award maintenance, they are unclear about how to determine amounts and terms. For example, Muslim personal law gives no guidance for setting maintenance amounts even though it says that a husband should maintain his wife “adequately.” The personal law for Hindus says only that a court setting maintenance should “have regard to the social standing of the parties and the extent of the husband’s means.” For Christians and others who renounced their religion and married under the Special Marriage Act, a judge granting alimony may consider the wife’s “fortune,” her husband’s ability to pay, and the parties’ conduct. In practice, judges considered husband’s capacity to pay and the wife’s needs but there was little clarity on how these were assessed and men were able to argue against maintenance claims by asserting their wives were “unchaste,” not “dutiful,” or of bad “character.”

Other countries have much clearer statutory criteria for determining maintenance amounts. These often include consideration of the duration of the relationship, the impact of childcare and household responsibilities on the education and earning capacity of the dependent spouse, each spouse’s income, the health and age of the spouses, and contributions the dependent spouse made to realize the other’s career potential.

The summons and notice procedure required to get a husband to appear in family court for maintenance or mahr claims is also fraught with problems, including the failure of some judges to abide by legal timeframes and bribe-taking by officials who serve summons and notice. Lawyers told Human Rights Watch that these failings often lead to unreasonable delays in family court cases. In 2010 the Law Commission of Bangladesh recommended reforms to the summons and notice procedures, but the Bangladesh government has yet to amend these procedures.

Women seeking maintenance or mahr (available to Muslim women) in family court must first prove they are married. This can be a major obstacle for Hindu women who have no marriage registry, and for Muslims where registration practices are patchy and not digitized or centrally available. While evidentiary rules allow judges to consider oral evidence if documentary evidence is lacking, lawyers said this tends to happen only if women have children. A woman who cannot prove she has been legally married will fail in her claim. There is no legal protection for women who believe their marriage was legally recognized and cohabited, but later find that is not the case.

Even for women who succeed in maintenance or mahr claims, the battle is not over. To get husbands to pay, women must file for an execution decree and submit evidence of his assets or income, which they often lack. Human Rights Watch interviewed women who pursued execution decrees only to wait years for the court to act. A lawyer said one client had waited 18 years for a maintenance decree to be enforced, while a judge said another maintenance case filed in the 1980s was still in the execution stage in June 2011. A lawyer representing a woman who waited years for her maintenance order to be executed said her client had asked her: “Will I get my dues at least before I die?” In 2010 the Law Commission of Bangladesh recommended that claimants be allowed to file for execution of decrees at the same time as filing their initial claim to speed the process. However, the government has yet to amend the procedures.

A final battlefront for women seeking maintenance or mahr in family court is defending against frivolous, harassing counter-suits or criminal complaints lodged by husbands. This includes petitions by husbands for “restitution of conjugal rights,” whereby a court can order a wife to return to live with her husband. The practice of husbands bringing counter-suits for restitution of conjugal rights continues even though the High Court Division of the Bangladesh Supreme Court has on several occasions held such orders unconstitutional (the court has also held otherwise). Experts also said that some husbands file criminal theft complaints if the wife leaves home with any of her belongings. Although husbands often drop the criminal charges, the complaints intimidate and harass women and their families.

Social Assistance

Winning a court case for maintenance or mahr would be an empty victory for the many divorced or separated women whose husbands are simply too poor to pay. For these women, access to state assistance is critical. Divorced and separated women, and women who want to escape domestic violence, need adequate access to shelters on an emergency basis, and to social assistance to tide them over in the immediate aftermath of separation until they are financially stable.

While Bangladesh has made important strides in relation to social safety net schemes, women still face problems of access and eligibility, and the administration of social assistance leaves much to be desired. The social assistance schemes also do not sufficiently meet the needs of women who are left more vulnerable because of intersecting reasons such as disability, old age, and ill-health. In 2011, the Planning Commission of Bangladesh resolved to develop a cohesive national strategy on social security to address shortcomings in existing social assistance programs.

Although the government runs seven shelters for women across the country, a Ministry of Women and Child Affairs official admitted to Human Rights Watch that more are needed. Homeless women and women who beg risk being detained in vagrant homes and subjected to criminal penalties for begging or living on the street.

Bangladesh also has an impressive array of social assistance programs for poor people, including a cash allowance program for widows and “husband-deserted” (separated or divorced) women. Under that program, such women can receive 300 takas (US$4) per month if they meet financial need criteria.

However, several factors hamper this assistance, including the fact that many eligible women are unaware of the program, women say the allowance is too small to meet basic needs, and disbursements are sometimes delayed. Family courts, where many eligible women turn for help, are not linked to such social assistance programs and are not equipped to supply information about the program.

Bangladesh also has a policy on the distribution of state-owned land (known as khas land) to landless rural households that can also benefit female-headed households. However, activists told Human Rights Watch that only those female-headed households that have an “able-bodied” son are eligible to receive land. The application of this discriminatory policy excludes female-headed households with only daughters, with no children, or with only sons with disabilities.

Bangladesh is party to international treaties—including those pertaining to the elimination of discrimination against women, to civil and political rights, and to economic social and cultural rights—that guarantee the right to equality during marriage and at its dissolution and the right to social security. UN bodies, charged with monitoring implementation of these treaties have 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, and have called for law reforms to make spousal maintenance more effective. Bangladesh has also undertaken to dramatically reduce poverty by 2015 pursuant to the UN’s Millennium Development Goals, yet as that deadline looms ever closer, too little is being done to address poverty driven by discriminatory personal laws.

The Bangladesh government has taken small but important steps toward meeting its international obligations by approving a bill for the optional registration of Hindu marriages and supporting the initiatives of the Law Commission to review personal law reforms. Moving ahead with these reforms is vital for Bangladesh to meet its commitments to promote gender equality and reduce poverty, and to alleviate the suffering of women in Bangladesh.

In order to take advantage of this momentum for change, the Bangladesh authorities should take measures outlined below.