1. Dhaka International University
Department of Human Rights Law
Semester – 4th
Research Monograph
Topic: Family law of Bangladesh: Consequences
Submitted to
Asso. Prof. Dr. Md. Akhtaruzzaman
Course Coordinator
Master of Human Rights Law
Submitted by
Jhuma Halder
Student ID NO: 04
Registration No: 250284
Session: 2011-2012
Batch: 11th
Semester: 4th

2. Date: 13.07.2012
Table of Index
2

3. 3

4. Chapter – 1
Introduction
Establishment of Family Courts was on the one hand an expression of our sophisticated
legal thought, on the other hand, an acknowledgement that our traditional civil courts had
failed to successfully deal with the suits relating to family affairs. Family Courts were
established by the Family Courts Ordinance 19851
to serve the purpose of quick, effective
and amicable disposal of some of the family matters. This purpose, though not
perceptible from the preamble of the Ordinance, is evident in different places of the body
of the Ordinance. The anxiety of the framers of the Ordinance for the said speedy
disposal of the family cases is palpable in fixing only thirty days for the appearance of the
defendant2
, in providing that if, after service of summons, neither party appears when the
suit is called on for hearing the court may dismiss the suit3
. The purpose is again manifest
in providing a procedure for trial of cases in camera if required for maintaining secrecy,
confidentiality and for effective disposal of some complicated and sophisticated matters
which may not be possible under normal law of the land. Once more, the Code of Civil
Procedure 1908 except sections 10 and 11 and the Evidence Act 1872 have not been
made applicable in the proceedings under the Family Courts which is another sign that
indicates the concern of the lawmakers to dispose of the family matters in congenial
atmosphere of the Family Court, which was proven to be absent in the lengthy procedure
of civil courts.
Unfortunately the noble aim of introducing Family Courts has not been expectantly
achieved though already more than two decades have passed after the courts’ coming into
operation. There are many and diverse type of reasons behind such let down. Given the
socio-economic grounds, the procedural as well as substantive loopholes in the ordinance
and related laws are not negligible. Responding to these loopholes a drastic amendment
was made to the Ordinance in 19894
. Yet, the law is not flawless, resulting in giving rise
to some confusions and uncertainties. Besides, there are some misconceptions.
1
XVII of 1985. The ordinance was made by the President of the Peoples Republic of Bangladesh on
28.3.1985 and was published in the Bangladesh Gazette, Extra on 30.3.1985
2
section 7(a)
3
Section 9(1)
4
Though there are contradictory opinions on this; see below note 36
4

5. Purpose of the study:
The purpose of the study is to identify and focus on the ongoing problems in family court
settling the dispute.
Objectives
 To obtain recognition legal consequence issues of family maters
 Peaceful exercise the rights as personal lives.
Thematic enquiry
We should concern about the traditional practices, domestic violence in woman through
challenges to traditional attitude towards women.
Therefore, the major thematic inquiries are in bellow:
Social issues Negative Image (Violence)
Family lineage, Marriage and divorce, widowhood, Decision
making rights, Social perception, customs, rituals, religious
belief, education, privileged bodies, Issue of hegemony and
masculinity, religious endorsement, rigorous tradition, security
problems
Perception, domestic and no-
domestic violence, persecution,
torture, legislative enactment
Methodology
The work “Family law of Bangladesh: Consequences” the observational and analytical
methodology and only secondary sources have been used.
Limitations
The main challenges of this research are patriarchal social structures and religious barrier
enter into the judicial activism that make survival inequalities among the justice seekers.
5

6. Chapter - 2
Understanding masculinity in family law and judicial activism:
Hegemony, a pivotal concept in Gramsci's Prison Notebooks and his most significant
contribution to Marxist thinking, is about the winning and holding of power and the
formation (and destruction) of social groups in that process. In this sense, it is importantly
about the ways in which the ruling class establishes and maintains its domination. The
ability to impose a definition of the situation, to set the terms in which events are
understood and issues discussed, to formulate ideals and define morality is an essential
part of this process. Hegemony involves persuasion of the greater part of the population,
particularly through the media, and the organization of social institutions in ways that
appear "natural," "ordinary’ normal." The state, through punishment for non-conformity,
is crucially involved in this negotiation and enforcement (Connel. R. P. 107)5
.
The vast majority of the approximately 163 million people of Bangladesh are Muslims.
There are, however, exist several other religious communities which demographically
constitute a large and substantial portion of the populace. Hindus are the most important
and significant minority community in Bangladesh. They constitute largest group in
Bangladesh and numerically Bangladesh can boast of the third largest Hindu population
in the world (Huda, Shahanaz, P – 10). In 2011 the much debated Women’s policy
announced by the Government reiterated the State’s desire to ensure gender equality.
Although opposed vehemently and somewhat unnecessary by fundamentalist Muslim
Groups, the policy has implications of the rights of the Hindu women. 6
There is much confusion arises on the subject of interfaith and inter religious marriage in
Christian community in Bangladesh. The reality of multicultural and multi religious
social co-existence means that ways to deal with this reality must be found, rather than
denying the fact that is the reality. Priests, Pastors and Ministers raised genuine questions
as to how deal with the various dimensions of marriage. For example, where one party to
5
R. Connell. Gender and Power: Society, the Person and Sexual Politics (Sydney: Allen and Un-win.
1987), 107; Carrigan. Connell and Lee, 95.
6
Combating gender injustice Hindu Law in Bangladesh, Dr. Shanaz Huda, The south Asian Institute of
Advanced Legal and Human Rights Studies - 2011
6

7. the marriage is minor according to civil law (less than 18 for women and less than 21 for
men), but was of the marriageable age as to religious or canonical law, what would be the
status of the parties, and would the officiating Priest or Pastor be held liable for violating
a statutory law? There are also gray areas in matters of mixed marriage or marriages out
of cult (Pereira, Faustina, P – 11). The questions of inheritance and division of property
appeared to drive many of the concerns surrounding mixed marriages. In general all
participants felt very blatant colonial racial bias in the language of law7
.
Everybody will recognize that Family laws, specially marriage and post marriage
problems say Talaq, Hizanat, Dower, etc. are very important aspects of social life which
require peaceful and lawful solution. The inclusion of the Family Courts Ordinance and
the rules thereof, the Muslim Marriage and Divorces (Registration) Act, the Dowry
Prohibition Act and the Cruelty to Women (Deterrent Punishment) Ordinance serve the
purpose of the laws significantly. The purpose of framing such laws is among other
things, to have quick disposal of the Family Court cases8
.
Section 5 of the Jurisdiction of Family Courts says that subject to the provisions of the
Muslim Family Laws Ordinance – 1961, a Family Court shall have exclusive jurisdiction
of entertain, try and dispose of any suit relating to or arising out of all or any of the
following matters, namely:
 dissolution of marriage
 restitution of conjugal rights
 dower
 maintenance
 guardianship and custody of children.
There is different form of dissolution of marriage. The contact of marriage under the
Muslim law may be dissolved in anyone of the following ways:
 by the husband at his will, without intervention of the court,
7
Civil laws governing Christians in Bangladesh – A proposal for reform, Faustina Pereira, the South Asian
Institute of Advanced Legal and Human Rights Studies, 2011
8
The handbook of Muslim Family Laws, sixth edition, 2005, Dhaka Law Reports,
7

8.  by the mutual consent of the husband and wife, without intervention of a court
 by a judicial decree at the suit of the husband or wife.
The wife can not divorce herself from her husband without his consent, expect under a
contract whether made before or after marriage, but she may, in some cases, obtain a
divorce by judicial decree. According to Muslim Family Law when the divorce proceeds
from the husband, it is called talak, when it is affected by mutual consent; it is called
khula or mubara’at according to the terms of the contact between the parties9
.
Family court works mainly based on the Muslim Family Laws Ordinance (VIII of 1961),
Muslim Family Laws Rules, 1961, Muslim Marriages and Divorced (Registration) Act
(LII of 1974), Muslim Marriage and Divorces (Registration) Rules, 1975, Dissolution of
Muslim Marriage Act (viii of 1939), Muslim Personal Law (Shariat) Application Act
(XXVI of 1937), the Guardians and Wards Act of 1890. Here is the link with religious
masculinity. In general sense masculinity refers body embodiment, but in respect of
family court the general masculinity refers sense of communalism, referring Muslim
Family Laws. When the occurrence happens within other religious family except Muslim,
Hindus, Buddhists and Christians claim justice to family court through the permission of
the district court under civil procedural law or personal law. It is a great tragedy that time
consumption of religious minority needs double than the Muslim.
In the light of the above discourse on judicial activism, we may now deal with the main
theme of this paper. The classical Shari‘a law on family relations is based on patriarchal
family organization and male privileges, leading to legal and social discrimination against
women and reducing them to an inferior status which is incompatible with present-day
notions of gender equality and social justice. The discrimination against Muslim women
is especially pronounced in such vital matters as marriage, divorce, maintenance and
inheritance and yet, these are the institutions which form the bedrock of security and
stability in family life. So, judicial activism in Muslim family law would, in effect,
denote a conscious effort on the part of the courts to remove the discriminations and
9
ibid
8

9. disabilities by means of a liberal and creative interpretation of law and secure to women
equality of rights and social justice in keeping with the spirit and goals of the
Constitution. Making out a strong case for reform and regeneration of Muslim family law
through judicial creativity, Aftab Hussain, J., a renowned activist and reformist judge of
Pakistan, contends that static and immutable concepts, doctrines and laws cannot keep
pace with the dynamism of social orders. Change is the law of nature. Changes in values
and transformation of social orders demand reevaluation, reinterpretation and reform of
the rules, regulations and laws governing the legal, political, social and economic
institutions. This is evident from the problems arising, for example, out of the rapid
transformation of family life. These modern problems demand modern solutions which
must be in keeping with the spirit of the time (Hossain, Aftab, P – 81)10
. Similarly,
referring to the necessity for removal of gender inequality and discrimination against
women and advocating an activist judicial stance in this regard, Mohammad Fazlul
Karim, J., of the Appellate Division of the Bangladesh Supreme Court observes: “There
are discriminations against women in the society. We will have to come out of this
situation by changing our attitudes. The judges dealing with the cases regarding women
will have to think how to give relief to the victims.”11
Referring to the unbridled, arbitrary
and unilateral power of Muslim husbands to divorce their wives and lamenting the
miserable lot of the wives, in Mohammed Haneefa v. Pathummal Beevi, 1972 KLT 512
at 514, V. Khalid, J., of Kerala High Court asks: “Should Muslim wives suffer this
tyranny for all times? Should their personal law remain so cruel towards these
unfortunate wives? Can it not be amended suitably to alleviate their sufferings? My
judicial conscience is disturbed at this monstrosity. The question is whether the
conscience of the leaders of public opinion of the community will also be disturbed.”
Sabhiuddin, J., takes up the same issue and raises the question, what should be the role of
the Pakistan courts when they are face to face with centuries of injustice and
discrimination against women? He maintains that if the courts decide to be helpless on-
lookers of social inequality and wait for the legislature to enact measures for the benefit
of women, that will not be in consonance with the Constitution of Pakistan which
contains not only provisions of fundamental rights but also Principles of Policy. He
10
Hossain, Aftab – Status of Women in Islam (Lahor – 1987), page – 81
11
The Daily Star, 3rd
November 2008, Page – 3
9

10. observes: “When the directive principles commit to participation of women in all spheres
of national life the question of sex discrimination has to be viewed from that angle and
not from the stand point of my individual notions as to the role of women. In purely
political issues the courts have already charted for themselves a broad role, they should
do the same in relation to enforcement of fundamental rights.”12
The observations of
judges quoted here show that if gender discrimination in Muslim family law is to be
removed and genuine equality of rights between the sexes achieved, the courts must take
a pro-active role in deciding questions involving women’s rights.
As we dwell on activist interpretation of Muslim family law, we must take notice of the
fact that there are three distinct approaches to the place of Muslim family law in the
present-day Muslim societies. The traditionalists13
, consisting predominantly of the
ulama, advocate strict adherence to the rules of Shari‘a law as prescribed by the classical
jurists. The secularists, numerically rather insignificant and mainly consisting of a small
number of feminists and left-leaning intellectuals, demand that religion-based personal
laws should be abandoned and a uniform civil code of Western secular inspiration,
applicable to all citizens, irrespective of religion, be adopted. The modernists, generally
the upper and middle classes, bureaucrats and professional people advocate a creative
reinterpretation of the Qur’an and Sunnah to bring about social reforms and address the
needs of the modern Muslim society. As the classical Shari‘a law on family relations is
heavily weighted in favour of men and against women, the modernists insist on doing
away with the disabilities and discriminations suffered by women and establishing
equality of rights between the sexes. Needless to say, the traditionalists vehemently resist
the modernist efforts. A modernist Muslim believes that he can be both a believing and
progressive Muslim. The activist role of the courts regarding interpretation of Muslim
family law is close to modernist stance. The judges make conscious efforts to justify their
decisions in the light of the ethos and sources of Islamic law including the Qur’an and
Sunnah. Muslim personal law is a vast field of study; an enquiry into all its areas would
have invited lop-sided treatment and superficiality. Therefore, of necessity, this enquiry
12
see Farida Shaheed, Dohel Akbar Warraich, Cassendra Balchin and Aisha Gazdat (eds.) shaping
women’s Lives: Laws, Practices and Strategies in Pakistan (Lahore – 1998)
13
John L. Esposite the Islamic Treats Myth or Reality? (2nd
ed, New York, Oxford – 1995) page 7-8
10

11. has been confined to select areas – i.e., restitution of conjugal rights, polygamy, khula
divorce, fatwa relating to talaq, maintenance of wives, custody of children and protection
of pardanashin women – which have direct bearing on the social status of women and
where judicial creativity has been pronounced.
Restitution of Conjugal Rights
One branch of Muslim personal law, which appears frequently in the pages of the law
reports of Bangladesh, is the issue of restitution of conjugal rights. As in India, there are
also differences of views among Bangladesh judges concerning the constitutional validity
and legal propriety of this law. According to some, it is a reciprocal right; it is neither
discriminatory nor repugnant to the fundamental rights guaranteed by the Constitution. It
helps to protect family values, preserve the sanctity of marriage as an institution and
prevent its break-up. According to others, it is inhuman and repressive, an engine of
harassment of wives and a relic of a by-gone age. More importantly, it is inconsistent
with the provisions relating to fundamental rights of citizens enshrined in the
Constitution; and it should be done away with. A Muslim marriage is a civil contract and,
in principle, a suit for restitution of conjugal rights is nothing more than an enforcement
of the right to consortium under the contract. The court issues an order compelling the
recalcitrant spouse to return to cohabitation with the complainant. But an analysis of
case-law on the subject in Bangladesh shows that in most cases it is the husband who
seeks the remedy against his wife and he does it not out of a genuine desire for restitution
of his conjugal rights and reconciliation but to defeat the claim of the neglected, deserted
or aggrieved wife to maintenance against him.
In Hosne Ara Begum v. Rezaul Karim, 43 DLR (1991) 543, being compelled by her
husband’s conduct to leave the matrimonial home with her children, the wife filed a
petition in the Family Court claiming her prompt dower and maintenance for herself and
the three children. As a counterblast, the husband brought a suit against her for restitution
of conjugal rights. The Family Court found that the husband did not allow his wife to
visit her parent’s house, compelled her to do domestic work, which women of both the
families were not used to, subjected her to physical and mental torture and did not make
11

12. any attempt to bring her back. The Family Court granted maintenance to her and the
children allowed her claim for payment of prompt dower and dismissed the husband’s
suit for restitution of conjugal rights. The lower appellate court disagreed with the
findings and decision of the Family Court and sent the case back to it for retrial. On
appeal, Kazi Ebadul Hoque, J. giving the judgment of the Division Bench of the High
Court, severely criticized the lower appellate court for its archaic ideas on cruelty and
restitution of conjugal rights:
The court of appeal below, it appears, was guided by the archaic concept of absolute
dominion of the husband over the wife and children when the wife and children were
treated as chattels under the Roman law and could be sold by the husband to pay his debt
to the creditor and they even could be killed by him. Such absolute right of the husband is
known as patria protest as under the Roman law…. But the learned court of appeal below
forgot that even under Muslim law several rights have been recognized to the wife and
she can refuse to subject to the conjugal dominion of the husband if he treats her with
cruelty when it is of such a character as to render it unsafe for the wife to return to her
husband and her prompt dower is not paid on demand14
.
The Division Bench held that, in the context of the social realities and norms and the
mode of living of the families of the husband and the wife, who were wealthy
businessmen, compelling the wife to do domestic work constituted cruelty under Section
2 (viii) (a) of the Dissolution of Muslim Marriages Act, 1939, which defines cruelty as
physical assault or making the life of the wife miserable by cruelty of conduct even if
such conduct does not amount to physical ill-treatment. Physical and mental torture by
the husband is not only an offence under Cruelty to Women (Deterrent Punishment)
Ordinance, 1983, punishable with imprisonment and fine, but also a valid ground for
refusing restitution of conjugal rights to the husband and for allowing maintenance to the
wife. This extension of the meaning of cruelty, under Section 2 (viii) (a) of the
Dissolution of Muslim Marriages Act, 1939, to include compelling the wife to do
domestic work in well-to-do families and its application as a defense against a suit for
14
14 (1994) BLD (HCD) at p. 469
12

13. restitution of conjugal rights has not escaped the notice of a keen researcher who aptly
remarks: “Such an expansive use of the concept of torture to negate the husband’s claim
for restitution of conjugal rights and ordering him to pay maintenance is another
indication of the gradual secularization of the understanding of the terms of marital
relationships by the courts in recent years.”15
The remedy of restitution of conjugal rights is available to both the spouses. But most
textbooks on Muslim law treat it as if the remedy is available to the husband alone and
not to the wife16
. Contrary to the tradition of the husband suing for restitution of conjugal
rights, in Chan Mia v. Rupnahar, 51 DLR (1999) 292, the wife filed a suit against the
husband for (i) restitution of conjugal rights, (ii) realization of dower and (iii)
maintenance. As Fyzee states: “A fundamental principle of matrimonial law is that one
spouse is entitled to the society and comfort of the other. Thus where a wife, without
lawful cause, refuses to live with her husband, the husband is entitled to sue for
restitution of conjugal right; and similarly the wife has the right to demand the fulfillment
by the husband of his marital duties.”17
From this the Court concluded that restitution of
conjugal rights is a reciprocal right and it is neither discriminatory nor violative of any
constitutional provision. The right, however, is not an absolute right. It is not desirable to
pass a decree where the marriage has, in fact, broken down or it will be inequitable,
impractical or impossible to implement it. But, in Nelly Zaman v. Ghiasuddin Khan, 34
DLR (1982) 221, Husain, J., had found the right to restitution of conjugal rights
unacceptable for three reasons. First, by lapse of time and social development the very
concept of forcible restitution of conjugal rights against a wife unwilling to live with her
husband has become outmoded. Secondly, there is no mutuality and reciprocity between
rights of the husband and the wife, since it “is not available to a wife as against her
husband apart from claiming maintenance and alimony.” Thirdly, it violates the
fundamental rights recognised under Articles 27 (equality of all citizens before law), 28
(2) (equal rights of men and women in all spheres of the state and of public life) and 31
(right to enjoy the protection of the law and to be treated in accordance with law, only in
15
50 (1998) DLR (HCD) 47
16
Ibid., at p. 53
17
Ibid., at p. 52
13

14. accordance with law). Pearl and Menski consider – and quite rightly – the judgment to be
an enlightened statement of modern marriage law with special reference to restitution of
conjugal rights, “reflecting a modern, secular understanding of marital relationships
without explicit reference to Muslim law.”18
It is claimed by another scholar that the
decision refutes the stereotyped conceptions of the wife as property of the husband and
looks upon women as human beings having their own rights in marital relations19
. When
the matter finally came up before the Appellate Division of the Supreme Court for
decision in Hosna Jahan v. Md. Shahjahan, 4 BLC (AD) (1999) 117, the Full Bench
refrained from giving any opinion on the constitutional validity of the law of restitution
of conjugal rights. They preferred to base their decision on Section 5B of the Family
Courts Ordinance, 1985 which specifically mentions restitution of conjugal rights as a
subject matter for trial and disposal by a Family Court. They held that the conscious
policy of the legislature would prevail over the decided cases. The result of the decision
is that like India, though not for the same reasons, restitution of conjugal rights is a valid
law.
Here it may be relevant to note the interesting developments in India regarding restitution
of conjugal rights under Section 9 of Hindu Marriage Act, 1955. In 1983 the Andhra
Pradesh High Court held in the case of T. Sareetha v. Venkata Subbaiah, AIR 1983 A.
P. 356, that Section 9 of the Act was a savage and barbarous remedy violating the right to
privacy and human dignity guaranteed by Article 21 of the Constitution and hence
constitutionally void. The following year the Delhi High Court in Smt. Harvinder Kaur
v. Harmander Singh Choudhry, AIR 1984 Del. 66, dissented from the Andhra decision
and held that Section 9 of the said Act is not violative of Articles 14 and 21 of the
Constitution. The Court noted that the object of the restitution decree is to bring about co-
habitation between the estranged parties so that they can live together in the matrimonial
home in amity. The leading idea of Section 9 is to preserve the marriage. In Smt. Saroj
Rani v. Sudarshan Kumar Chadha, AIR 1984 SC 1562, the Supreme Court of India
overruled the Andhra decision and accepted the Delhi view. It held that Section 9 of the
Act could not be said to be violative of Articles 14 or 21 of the Constitution if the
18
Ibid., at p. 53
19
14

15. purpose of the decree for restitution of conjugal rights is understood in proper
perspective. In India conjugal right, i.e., right of the husband or the wife to the society of
the other spouse, is not merely creature of the statute. Such a right is inherent in the very
institution of marriage itself. It serves a social purpose as an aid to the prevention of
break-up of marriage.
Polygamy
The Muslim law of polygamy in Bangladesh is regulated by Section 6 of the Muslim
Family Laws Ordinance, 1961, which provides: “No man, during the subsistence of an
existing marriage, shall except with the previous permission in writing of the Arbitration
Council, contract another marriage, nor shall any such marriage contracted without such
permission be registered under the Muslim Marriages and Divorces (Registration) Act,
1974.” The husband’s application for such permission must state the reasons for the
proposed marriage and whether the consent of the existing wife or wives to this marriage
has been obtained. If the Arbitration Council is satisfied that the proposed marriage is
necessary and just, it may grant the permission requested for. The law is essentially a
compromise between traditionalist and modernist views. It does not prohibit polygamous
marriages; it merely imposes some procedural restrictions on its unbridled exercise and
punishment of the polygamous husband with imprisonment or fine for violation of the
restrictions. A Division Bench of the High Court Division of the Supreme Court has
challenged the very concept of polygamy in a sweeping and bold judgment in the case of
Jesmin Sultana v. Mohammad Elias, 17 BLD (1997) 4. Though the suit concerned a
wife’s claim for dower and maintenance and polygamy was not an issue, the Court
examined the question whether Islam truly approved polygamy, and section 6 of the
Ordinance was valid. The Court was of the opinion that “to be able to deal justly”
between more than one wife, as ordained in the Polygamy Verse20
of the Qur’an: IV; 3, is
a condition precedent to marry more than one wife. According to some commentators,
the Court held, this expression implies equality in love and affection between the wives
and as such equality is impossible, the Verse virtually prohibits polygamous marriages.
According to others, the expression only means equality in maintenance and lodging.
20
Supra note 24, at p. 49-50
15

16. Having regard to the hadith narrated in the Sahih Al-Bukhari, that the Prophet did not
allow his son-in-law Ali to take a second wife because it would hurt his daughter Fatima
– which the Court interprets as meaning that Ali “shall not be able to deal justly” with
two women – the latter view cannot be accepted. Secondly, after the revelation of
Verse21
XXXIII: 52 in the seventh year of the Hijra, the Prophet did not marry again.
Thirdly, polygamy is prohibited in Tunisia under its Law of Personal Status, 1957 on the
ground that “to be able to deal justly” is a legally enforceable injunction and that, under
modern social and economic milieu, this condition is not capable of fulfillment.
Therefore, the Court held, Section 6 of the Muslim Family Laws Ordinance, which
instead of prohibiting polygamy allows it subject to the previous permission of an
Arbitration Council, “is against the principle of Islamic law”, and legislation should be
enacted prohibiting polygamy altogether. The Court referred the judgment to the Ministry
of Law for taking necessary action. This is, of course, judicial activism in its most
aggressive form.
The observations of the Full Bench of the Appellate Division of the Supreme Court is an
anti-climax of an otherwise promising court decision of far-reaching social consequences.
The Full Bench observed that polygamy was neither an issue in the suit nor required to be
decided in the context of the pleadings of the parties and, therefore, the observations and
recommendations of the High Court Division should be taken as deleted.22
Irrespective of
the observations of the Appellate Division, the fact remains that the judgment of the High
Court is not well-researched, well-documented and well-thought out. Compare this
judgment with that delivered by Dhawan, J., of the Allahabad High Court in Itwari v.
Asghari, AIR 1960 All. 684, and its weakness will be obvious. Incidentally, while the
feminist lobby welcomed the decision with jubilation, the reaction of the traditionalists
was circumspect23
.
Khula Divorce
21
Ibid., at p. 50
22
Act No. XIX of 1946.
23
So far, the aggrieved party under this Act had to take recourse to time consuming civil
court. It is decided the Pochon Rikssi case that Family Courts Ordinance has provided a
forum for speedy and effective disposal of issues in the Act.
16

17. The revolutionary decision of the West Pakistan High Court in Mst. Balqis Fatima v.
Najm-ul-Ikram Qureshi, PLD 1959 (W.P.) Lah, 566, held that the courts can allow a
wife judicial khula on the ground that the marriage has irretrievably broken down and in
such cases husband’s consent is not necessary. Mst. Amena Khatun v. Serajuddin
Sardar, 17 DLR (1965) 687, is the first case in Bangladesh, then East Pakistan, where the
Court took notice of the above decision. In this suit, instituted by the wife for dissolution
of her marriage, it was established that the husband had failed to maintain her for more
than two years, contrary to the specific stipulation in the marriage contract, that he failed
to perform his marital obligations for more than three years; that he was unable to offer
equal treatment to her in relation to the first wife, that he had used physical violence
against her, and “that the marriage between the parties was shipwrecked at an early stage
and since then there had been a perpetual state of hostility and antagonism between the
parties.”
The Court held:
There are various other considerations upon which the aforesaid marriage can be
disposed of. For instance, the relationship between the parties as made out by them,
brings it within the ratio of the decision of a Full Bench of the West Pakistan High Court
in the case of Mst. Balquis Fatima vs. Najm-ul-Ikram Qureshi …. The plain fact is that
on a total assessment of the relationship between the parties it would amount to cruelty to
the plaintiff to continue the marital tie. Another important factor in this case is that if the
marital tie is not dissolved it would be impossible for the wife to live within the limits of
the shariat. Islam does not ignore the propensities of human nature.24
This was a good case of khula. The Court, however, preferred to dissolve the marriage on
the ground that the husband had failed to provide for the wife’s maintenance for a period
of two years in breach of the terms of the kabinnama Hasina Ahmed v. Syed Abul Fazl,
24
Section 6(1) of the Ordinance provides as follows: “Every suit under this Ordinance shall be instituted by the
presentation of a plaint to the Family Court within the local limits of whose jurisdiction
(a) the cause of action has wholly or partly arisen; or
(b) the parties reside or last resided together:
Provided that the suits for dissolution of marriage, dower or maintenance, the Court
within the local limits of whose jurisdiction the wife ordinarily resides shall also have
jurisdiction.
17

18. 32 DLR (1980) 294, gives a clear exposition of the law of khula in Bangladesh. In this
case the husband had consistently alleged that his wife had illicit relation with her cousin.
She instituted a suit for dissolution of marriage and expressed her willingness to part with
the dower. Husain, J., well-known for his liberal and activist stance, found that, on the
facts, she was entitled to dissolution of the marriage on the principle of li’an for the
husband’s false charge of adultery against her and also on the ground of cruelty under the
Dissolution of Muslim Marriages Act, 1939. He, however, preferred to base his decision
on the principle of khula. He held that a wife could obtain divorce by way of khula from
the court, even if the husband did not agree and as authority for his decision referred to
the Full Bench decision of the Supreme Court of Pakistan in Mst. Khurshid Bibi v.
Muhammad Amin, PLD 1967 SC 97. His admiration for it was unbounded: “This
judgment of the Supreme Court is a classic and monumental example where the principle
of Muslim law on divorce by consent by way of ‘khula’ has by analogy been made a rule
of the Court, so that an unwilling wife is not forced to live with her husband against her
expressed will.” He further held that while adjudicating on family disputes the courts
should take into account not only the factual and legal positions but also the changing
social milieu.25
In Sheerin Alam v. Captain Shamsul Alam, 48 DLR (1996) 79, the wife prayed for a
khula divorce alleging cruelty and ill-treatment by her husband and agreeing to surrender
the dower money in consideration of khula. The husband filed a counter suit for
restitution of conjugal rights. The two lower courts found that the couple could not live
together as husband and wife “within the limits of Allah” and they had been living
separately following an attempted assault by the husband. They held that as no such
cruelty had been proved as was required for dissolution of marriage under the Dissolution
of Muslim Marriages Act, 1939, she was not entitled to divorce and issued a decree for
restitution of conjugal rights. The High Court held that, for dissolution of marriage
through khula, the question whether the husband treated his wife with cruelty was not of
prime importance. The most important consideration was whether the parties could live
together in peace and amity. Following Mst. Khurshid Bibi’s case, the Court held that if
25
The issue was brought by some lawyers from the district Bars of Bogra, Comilla,
Jessore, Patuakhali, and Mymensingh; as referred to in the BLAST report, at p. 8.
18

19. the wife satisfied the court that there was no possibility of their living together
consistently with their conjugal duties and obligations, the court would have the right to
dissolve the marriage. Accordingly, the Court dissolved the marriage.
In khula cases the courts have established the principle that the consent of the husband is
not required bringing about a divorce. This gives women freedom from oppressive
marriage bondage but often deprives them of their entitlement to dower26
. It may also
happen that a man wants to get rid of his wife but does not want to pay her dower, which
a talaq would entail. He may put pressure upon her by cruel conduct or other means to
seek a khula divorce and release him of dower and other financial obligations. However,
the Pakistan judiciary has established the rule that where the fault of the husband is
proved, the wife does not have to restore the benefits received or waive her claim to
dower.
Fatwa Relating to Talaq:
One striking phenomenon of the socio-legal scenario of Bangladesh that will attract
attention of any conscious citizen is the fierce resistance of the traditional religious
leaders of the rural areas to the implementation of the divorce provisions of the Muslim
Family Laws Ordinance, 1961. Editor, The Banglabazar Patrika v. District Magistrate
and Deputy Commissioner, Naogaon27
deals with the serious social problem of
pronouncement of fatwa on divorce matters by people, not properly qualified and having
no legal, religious or moral authority to issue fatwas. Fatwas are specialist opinions of
competent jurisconsults on any legal or religious matter where the rules of law are not
clear, or because the issue or situation is novel the existing rules do not provide an
answer. The person who gives a fatwa is a mufti who must be of an unimpeachable
character, have deep insight into Islamic theology, be well-versed in the original sources
of law, have mastery over the languages of the original works and competence to form an
informed, independent judgment28
. Fatwas are of advisory and not binding character. As
26
1(1996) BLC (AD) 24; judgment delivered on 23rd October 1993
27
47(1995) DLR (HCD) 235; judgment delivered on 23rd January 1994; however, it could
not be learnt whether the HC Bench was aware of the Appellate Division decision in In
Azad Alam Vs Jainab Khatun and others
28
Ibid., at p. 236
19

20. the rules of talaq and their effects are governed by Section 7 of the Muslim Family Laws
Ordinance, 1961, which codified the Islamic law on the subject, there is no scope for
pronouncement of fatwas in divorce matters. Section 7 virtually makes the revocable
ahsan form of talaq obligatory on any husband who intends to divorce his wife and
unequivocally abolishes the arbitrary and instantaneous talaq-i-bid‘at or triple talaq of the
wife and allows remarriage between the couple after such a talaq without an intervening
marriage with a third person, unless this is the third talaq pronouncement29
. If there is any
ambiguity in any statute, it is the court of law which alone has power, competence and
jurisdiction to decide the matter. The court can, of course, seek expert advice on the
matter in arriving at its decision but is not bound by such advice. Court interpretation has
removed whatever ambiguity had existed in the provisions of Section 7 of the Ordinance.
In blatant disregard of this law a class of people have taken it upon themselves (i) to issue
fatwas declaring section 7 of the Ordinance as un-Islamic, talaq-i-bid‘at as dissolving a
marriage irrevocably and hilah30
marriages as absolutely necessary for legalizing
remarriage with the first husband, (ii) to enforce these utterly unlawful acts, and (iii) to
inflict corporal punishment for non-compliance with their directives. These fatwas31
are
mostly issued by semi-literate village maulvis, and the victims are almost invariably the
poor and illiterate village folk. In the present case the husband pronounced a talaq on his
wife in anger and thereafter continued married life with her for about a year. Then one
Haji Azizul Islam issued a fatwa that the marriage had been dissolved and forced the wife
to go through a hilah marriage32
. Exercising suo motu jurisdiction a Division Bench of the
High Court heard the case and found that talaq-i-bid‘at is against the injunctions of the
Qur’an and hadith as well as invalid in law under section 7 of the Muslim Family Laws
Ordinance, 1961. The Court also cited an instance to show that the Prophet strongly
disapproved the capricious and irregular exercise of the power of divorce. The Court held
that the fatwa was wrong; the marriage was not dissolved; and assuming that it was, there
was no legal bar for remarriage of the couple without an intervening marriage. The Court
further held that fatwa means legal opinion of a lawful person or authority. The legal
29
Ibid., at p. 237
30
Ibid., at pp. 236 - 237
31
bid., at p. 237
32
Kannan vs Chiruda, AIR 1960 Ker. 93; as referred to in 47(1995) DLR (HCD) 235, at p. 237
20

21. system of Bangladesh empowers only the courts to decide on all legal questions.
Therefore, fatwas including the instant one are unauthorized and illegal. The Court
recommended that giving a fatwa by unauthorized persons be made a punishable offence
by the Parliament.
Maintenance of Wives
Under Muslim personal law maintenance of the wife is an obligatory duty of the husband.
If he neglects or refuses to maintain her without any lawful cause, she can sue him in a
civil court claiming maintenance. But a serious shortcoming of the Hanafi law of
maintenance which causes great financial hardship to a needy wife, expelled from the
matrimonial home without sufficient cause or living apart from her husband for valid
reasons, is the rule that a court decree awarding maintenance to her is enforceable only
from the date of the decree and not from the day the cause of action arose. The courts
have held that under Muslim personal law maintenance of the wife is an obligatory duty
of the husband and where, for no fault of the wife, the husband has neglected or refused
to maintain her, she is entitled to maintenance from the time the husband neglected or
refused to maintain her33
. The mere fact that she has been hesitant in promptly coming to
the court or has been pursuing remedies out of court, e. g., reconciliation with her
husband, shalish or informal settlement by village elders, cannot be construed to deprive
her of her right. The classical law holds that following divorce maintenance is payable to
the wife only for the iddat period of three months. This rule causes great hardship to
divorced women without jobs or other means of support. The Commission on Marriage
and Family Laws appointed by the Pakistan government proposed as early as 1956 that
courts should be vested with power to grant maintenance to an unjustly divorced wife for
life or until her remarriage34
. The proposal has not made its way into the statute book of
Pakistan or Bangladesh until now. India solved the problem of destitute, divorced wives
by enacting the Muslim Women (Protection of Rights on Divorce) Act, 1986 and by
activist interpretation of its provisions by the Supreme Court35
. Recently, a valiant effort
33
Supra note 35
34
Question regarding camera trial was raised by some lawyers from Jessore, Rajshahi,
Chittagong, Pabna Bar, as reffered to in BLAST report, at p.8.
35
The issue is raised by some lawyers from Jessore, Tangail and Rajshahi Distrct Bar
Association; as referred to in BLAST report at p. 9
21

22. was made by a Division Bench of the High Court Division of the Supreme Court of
Bangladesh in Hefzur Rahman v. Shamsun Nahar Begum, 47 DLR (1995) 74, to
provide financial security to divorced women in impecunious circumstances by making
their former husbands liable for their maintenance until their remarriage. In a suit by a
wife for her iddat maintenance, the Court took up suo moto the legal query whether the
divorced wife could have claimed maintenance beyond the iddat period. The Court held
that a civil court has the jurisdiction to follow the law as contained in the Qur’an,
disregarding any other law on the subject which is contrary to it, even though laid down
by the jurists and commentators of great antiquity and authority and followed for a very
long time. The Qur’anic Verse, which was applicable to their query, was II: 241,
translated by Abdullah Yusuf Ali, the celebrated modern commentator of the Qur’an, as
“For divorced women maintenance (should be provided) on a reasonable (scale).” The
Court accepted this as the correct translation of the Verse and observed:
Considering all the aspects we finally hold that a person after divorcing his wife is bound
to maintain her on a reasonable scale beyond the period of iddat for an indefinite period,
that is to say, till she loses the status of a divorcee by remarrying another person.
The Court did not refer, perhaps deliberately, to Mohd. Ahmed Khan v. Shah Bano
Begum, AIR 1985 SC 945. The judgment has been hailed by liberal forces of Bangladesh
as courageous and enlightened – a major breakthrough in Islamic jurisprudence. The
leading British scholars of Muslim family law have maintained that the decision confirms
the recently established Indian law that there is actually no real conflict between the
Qur’anic foundations on the husband’s obligations towards a divorced wife and the
modern welfare statutes obligating husbands to look after the future welfare of their
divorced wives36
.
As was to be expected, the decision was greeted with widespread protest and
condemnation by the fanatical elements and, perhaps for avoiding a Shah Bano situation,
the Appellate Division of the Supreme Court overruled it. The apex Court held that the
36
42 (1990) DLR (HCD) 450
22

23. word mataa in the Qur’anic Verse II: 241 has never been understood as maintenance or
provision in the sense of legal, formal and regular supply of necessaries of life and
livelihood to the wife. It is a “consolatory offering” or parting gift to a divorced woman
as comfort and solace for the trauma she suffers from divorce. Being a gift, it has never
been judicially enforceable. But the Court was also of the opinion that statutory
provisions may be made, binding the husband to maintain an unjustly treated and
destitute divorced wife, as has been done in several Muslim countries. Such beneficial
legislation, the Court held, will not be against Muslim personal law. On the contrary, it
will be in consonance with the ideas of justice, tolerance and compassion that the Qur’an
enjoins upon all righteous Muslims37
.
Custody of Children
Custody of minor children is a very delicate and sensitive issue and it usually arises when
the spouses are living separately or the marriage has broken down and the parties are
divorced. Like India and Pakistan, the hizana or custody law of minor children is
governed in Bangladesh by a combination of statute laws, i.e., The Guardian and Wards
Act, 1890, Muslim personal law, case-law, and court’s concern for children’s well-being.
Irrespective of what the statute law or Shari‛a law provides, the paramount consideration
is the welfare of the child and it is the court which decides what is in the best interest of
the child. This was emphatically asserted by a Division Bench of the High Court Division
of the Supreme Court of Bangladesh in Ayesha Khanum v. Major Shabbir Ahmed, 46
DLR (1994) 399. In delivering the judgment of the Court, Hasan J., held that the
provisions of personal law of the parties, even those of statute law, are subject to the
“paramount need of the welfare of the child.” In support of this view he cited Smt.
Surinder Kaur Sandhu v. Harbux Singh Sandhu, AIR 1984 SC 1224, where the
Supreme Court of India said: “Section 6 of the Hindu Minority and Guardianship Act
1956 constitutes the father as the natural guardian of a minor son. But that provision
cannot supersede the paramount consideration as to what is conducive to the welfare of
the minor. The boy ought to be in the custody of the mother.” In the present case the
personal law and the welfare doctrine were not in conflict; under both the mother was
37
14(1994) BLD (HCD) 467
23

24. entitled to custody of the minor boy. But the Judge made it clear that if the personal law
and the welfare doctrine conflicted, the welfare doctrine would have precedence.
In Md. Abu Baker Siddique v. S.M.A. Bakar, 38 DLR (AD) (1986) 106, the Appellate
Division of the Supreme Court of Bangladesh had to deal with the custody of an eight
years old boy. His father divorced his mother and claimed his custody. The boy was
suffering from a serious disease and it was established that the mother, a doctor, would be
able to look after him better. But under Hanafi law the father was entitled to the custody
of a son above seven. The Court considered a large number of earlier cases and found
that these decisions, while recognizing the rules of Islamic law as to who is entitled to the
custody of a minor child with reference to his or her age and sex, simultaneously took
into consideration the welfare of the minor in determining the question. As to the binding
nature of Islamic law regarding custody of a minor child, pleaded by the father’s counsel,
the Court held that “there is absolutely no reason to differ from this position as long as
the particular rule of law to be applied is found either in the Quran or Sunnah, nor is there
any reason to differ from a clear interpretation of any rule of the Quran or formulation of
principle based on Quranic text represented by the dominant opinion of a particular
school of law, such as Hanafi, one of the four major schools of law governing Sunnis in
Bangladesh.”38
But the custody rules are only juristic views and are not based on the
Qur’an or Sunnah. No consensus having been established among the jurists, these rules
differ from school to school. The Court cited with approval the rule laid down in Mst.
Zohra Begum v. Sh. Latif Ahmed Munawwar, PLD 1965 (W. P.) Lah. 695, that, as
there is no Qur’anic or hadith texts on the point, it would be permissible for the present
day courts to differ from the rules of hizana stated in text books like the Hedaya.
Accordingly, the Court decided that the welfare of the child required that his custody
should be given to the mother. The raison d’etre of the decision leads a scholar to
comment:
This assumption that an absence of direct Quranic provisions entitles one to discard
norms of Islamic Law can ultimately undermine the authority of a whole range of rules
38
14(1994) BLD (HCD) 467
24

25. and norms. Apparently such ramifications were not central to the Court’s concerns in this
particular case. Rather, this assumption ostensibly emboldened the Court to advance and
fortify the “primacy of welfare” as the determining criterion. Such an understanding of
hizanat had already been accepted in Pakistan, and the Bangladesh Supreme Court used
and reaffirmed this position in Siddique v. Baker39
.
Is a mother bound by a voluntary agreement surrendering her right of custody of her
minor children to their father? This was the primary issue in Nargis Sultana v. Amirul
Bor Chowdhury, 50 DLR (1998) 532. The mother, a government servant, divorced her
husband by exercising power of divorce delegated to her and, to avoid unpleasantness of
litigation, voluntarily agreed to hand over the custody of the twin sons to their father on
condition that she would have access to them whenever she desired. She filed a custody
suit on the grounds that the father denied her access to them, did not properly look after
them and their health was suffering. The Court held that in custody cases the welfare of
the minor was the dominant consideration, not what the parents had agreed upon. An
agreement between the parents cannot exclude the court’s jurisdiction to decide what will
serve the interest and welfare of the children best. The Court directed the father to hand
over the two sons to their mother.
There is a fundamental distinction between custody and guardianship. As Pearl and
Menski so aptly explain it: “Custody has more to do with practical matters, such as care
and control of the child and therefore the rights and obligations of mothers and persons
who might take their place while, guardianship centres on the legal rights and obligations
of the child’s father and his representatives.”40
In the judgment of the Privy Council in
Imambandi v. Mutsaddi, (1918) 45 I. A. 73, delivered by Syed Ameer Ali, J., it was said
that “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; the father
alone, or, if he be dead his executor (under the Sunni law), is the legal guardian.”41
If
there is no father‘s executor, the grandfather of the children and, if he is dead, his
39
Supra note 24.
40
Ibid., at p.54
41
Id.
25

26. executor is their legal guardian. In the absence of any legal guardian, it is the duty of the
judge to appoint one. Rehanuddin v. Azizun Nahar, 32 DLR (1981) 139, is a unique and
welcome decision relating to guardianship of a minor in the sense that in the presence of
the grandfather the Court appointed the child’s mother as its guardian. In this case the
grandfather was the natural guardian of the child under Muslim law. The District Judge
found that the mother of the child had not been well treated in the father-in-law’s house
and perhaps apprehended from this that the minor boy might not also get a better
treatment. Accordingly, he held that although the grandfather was the natural guardian of
the minor under Muslim law, “the mother in facts and circumstances of the case was
entitled to be appointed as the guardian.” The High Court agreed with the decision. The
Commission on Marriage and Family Laws, appointed by the Pakistan Government for
reform of Muslim personal law in 1955, had suggested that in the absence of the father it
should be open to the court to appoint any person as guardian of the property of the minor
including the mother, if it was in the best interest of the minor. “To give such a discretion
to the court”, said the Commission, “does not run counter to any injunction of the Holy
Qur’an. In modern times there are a number of mothers who would be in a position
adequately to manage the property of their minor children.”42
Needless to say, their
suggestion was not accepted. In Rehanuddin v. Azizun Nahar, the Bangladesh court has
exactly done what the Commission had suggested in 1956.
The above decision is a good example of judicial activism in Bangladesh. In fact, the
cases discussed above show that in custody matters the higher courts lean in favour of
mothers. It is more so in the lower courts. A study of unreported custody cases of the
Family Courts of Dhaka city has shown this healthy trend43
. As the study finds, the
favourable attitude of these courts has encouraged mothers to put forward claims for
custody of children above the age limit, laid down by the classical jurists of the Hanafi
school, and rely on the welfare doctrine of custody. We have discussed the custody cases
of Bangladesh in detail for two reasons. First, custody cases often evoke primordial
emotions and lead to bitterness and litigations the victims of which are the children.
Second, in the unequal fight for custody between the sexes, it is often the women who
42
PLD 1969 (SC) 187; 21 DLR (SC) 123
43
as referred to in 40 (1988) DLR (HCD) 305
26

27. lose because of their social disabilities and financial constraints. Favorable court attitude
is not enough; affirmative action is necessary for unhindered access of women to the
courts for justice.
Protection of Pardanashin Women
The role of the Bangladesh courts in giving liberal interpretation, wherever possible, to
the rules of Muslim family law and extending legal protection to women has been
discussed above. One class of women needing special protection of the courts are the
pardanashin women who are excluded from social intercourse and communication except
with very near relations, that too within the four walls of their residence. In suits where
they were parties, special rule of onus was devised by the Privy Council to give them
protection. The rule was subsequently extended to the protection of ignorant and
illiterate, though not pardanashin, women. In Siddique Ahmed v. Gani Ahmed, 33 DLR
(AD) (1981) 1, the Appellate Division of the Supreme Court reiterated the Privy Council
rule that in case of any dispute regarding the validity of a transfer of property by the
pardanashin lady, the onus is always on the donee or transferee to satisfy the court that
she substantially understood the disposition and executed it with full understanding of
what she was doing and of the nature and effect of the transaction. Proof of independent
advice is not essential unless there are special circumstances, e.g., where the donee or
transferee stands in a position of confidence or fiduciary relationship, in which case he
will have to prove that the lady had independent advice from disinterested advisers. In
Rokeya Khatun v. Alijan, 34 DLR (AD) (1982) 266, the son obtained his 90 years old
mother’s thumb impressions on some stamp papers, telling her that he required it for
proper management of her property. He used the documents to transfer her entire
property to him and subsequently transferred it to Alijan, the respondent, depriving his
sister Rokeya, the appellant, of her share of inheritance. The Appellate Division of the
Supreme Court held that, as the son was in a footing of fiduciary relationship with his old
mother, the burden of proof that she had full knowledge and comprehension of the terms
of the transaction was upon those who wanted to uphold the disposition. It must be
proved that the disposition was her mental act as its execution was her physical act. As
the subsequent bonafide transferee of the property, the respondent steps into the shoes of
27

28. the son and the onus of proof regarding the validity of the transaction is on him. In the
earlier case of Siddique Ahmed v. Gani Ahmed the Appellate Division had held that the
special rule of protection given to the pardanashin lady is confined to her only and is not
available to a person upon whom her property might have devolved in the absence of the
impugned disposition. They revised this view and now held that the person upon whom
the property of the pardanashin lady would devolve by operation of law and who in the
facts represents her can challenge the legality of the disposition44
. In other words, the
protection available to the pardanashin lady, on her death may be extended to her
daughter who was deprived of her rightful share of her mother’s property.
Existing family court and problems:
Generally, substantive and procedural custodial issues continue to be governed by the
Family Courts Ordinance of 1985 and The Guardians and Wards Act of 189045
. Family
law courts have jurisdiction for matters related to guardianship and custody of children46
.
Bangladeshi family law courts are directed to consider several factors when considering
the appointment of a guardian of a minor, including: the best welfare of the minor, "the
age, sex, and religion of the minor, the character and capacity of the proposed guardian
and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any
existing or previous relations of the proposed guardian with the minor or his
property."47
Further, courts also may consider the minor's preference if the minor is "old
enough to form an intelligent preference."48
In accordance with this legal framework,
judges generally follow the personal or religious law of the minor when making
guardianship and custodial decisions.
44
Civil Revision No. 273 of 1986; Moqbul Ahmed vs Sufia Khatun and others, 40 (1988)
DLR (HCD) 305; Judgment delivered on January 11, 1988
45
46
14(1994) BLD (HCD) 467
47
The Guardians and Wards Act (1890), Section 17 (2), available at:
http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=64
48
The Guardians and Wards Act (1890), Section 17 (3), available at:
http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=64.
28

29. According to Muslim law, the father is the natural and legal guardian of the person and
property of his minor children49
. Although, under Shari'a law and the classical Hanafi
position, a mother has a right to physical, not legal, custody of her child until age seven
for males and puberty for females50
. However, a mother may lose custody of her children
if she remarries a non-relative or someone not barred to the children by the rule of
consanguinity51
.
It is noteworthy that these religious rules do not appear to be absolute. A mother may
always apply for custody of her child because courts have occasionally diverted from the
traditional religious child custodial rules based the best interests of the minor as provided
in the Guardians and Wards Act52
.
49
Sultana Kamal, Law for Muslim Women in Bangladesh, available at:
http://unstats.un.org/unsd/vitalstatkb/Attachment390.aspx.; Kristine Uhlman, Overview
of Shari'a and Prevalent Customs in Islamic Countries, available at:
http://www.lawmoose.com/Documents/UmHaniarticle.pdf.
50
Sultana Kamal, Law for Muslim Women in Bangladesh,
http://unstats.un.org/unsd/vitalstatkb/Attachment390.aspx
51
Id. at Section 4.
52
Id.
29

30. Chapter - 3
Recommendations
• Family court’s Act – 1985 should be amended.
• Government should amend religious personal laws, such as: Hindu law of
Bangladesh.
• Government should amend customary hereditary laws which accommodate
women’s property inheritance in personal law.
• Community people should be united to fight against psycho-social mal-practice.
• Since the matter is bargaining power to, power over and power of the people, so
voice should be raised with more argumentative.
• People should sit together and discuss the dispute and decide not to discriminate
women.
• Parents should give their daughters a share along with the sons.
• Government should formulate national laws to become strong women community.
• Assess needs to measure for access to justice at all level and aware about holistic
behavior approach.
30

31. Chapter – 4
Bibliography:
A. Acts:
1. XVII of 1985. The ordinance was made by the President of the Peoples Republic
of Bangladesh on 28.3.1985 and was published in the Bangladesh Gazette, Extra
on 30.3.1985, section 7(a), Section 9(1)
2. The handbook of Muslim Family Laws, sixth edition, 2005, Dhaka Law Reports,
3. Act No. XIX of 1946.
4. Section 6(1) of the Ordinance provides as follows: “Every suit under this
Ordinance shall be instituted by the presentation of a plaint to the Family Court
within the local limits of whose jurisdiction
a. the cause of action has wholly or partly arisen; or
b. the parties reside or last resided together:
5. The Guardians and Wards Act (1890), Section 17 (2), section 17 (3), Section 4.
B. Articles / Journals:
1. R. Connell. Gender and Power: Society, the Person and Sexual Politics (Sydney:
Allen and Un-win. 1987), 107; Carrigan. Connell and Lee, 95.
2. Combating gender injustice Hindu Law in Bangladesh, Dr. Shanaz Huda, The
south Asian Institute of Advanced Legal and Human Rights Studies – 2011
3. Civil laws governing Christians in Bangladesh – A proposal for reform, Faustina
Pereira, the South Asian Institute of Advanced Legal and Human Rights Studies,
2011
4. Farida Shaheed, Dohel Akbar Warraich, Cassendra Balchin and Aisha Gazdat
(eds.) shaping women’s Lives: Laws, Practices and Strategies in Pakistan (Lahore
– 1998)
5. BLAST report, at p. 8, the issue was brought by some lawyers from the district
Bars of Bogra, Comilla, Jessore, Patuakhali, and Mymensingh;
6. BLAST report, at p.8, question regarding camera trial was raised by some lawyers
from Jessore, Rajshahi, Chittagong, Pabna Bar,
7. BLAST report at p. 9, the issue is raised by some lawyers from Jessore, Tangail
and Rajshahi Distrct Bar Association;
8. Hossain, Aftab – Status of Women in Islam (Lahor – 1987), page – 81
9. The Daily Star, 3rd
November 2008, Page – 3
10. John L. Esposite the Islamic Treats Myth or Reality? (2nd
ed, New York, Oxford –
1995) page 7-8
11. Sultana Kamal, Law for Muslim Women in Bangladesh, available at:
http://unstats.un.org/unsd/vitalstatkb/Attachment390.aspx.; Kristine Uhlman,
Overview of Shari'a and Prevalent Customs in Islamic Countries, available at:
http://www.lawmoose.com/Documents/UmHaniarticle.pdf.
12. Sultana Kamal, Law for Muslim Women in Bangladesh,
http://unstats.un.org/unsd/vitalstatkb/Attachment390.aspx
31

32. C. Judicial Decisions:
1. Mohammed Haneefa v. Pathummal Beevi, 1972 KLT 512 at 514, V. Khalid, J., of
Kerala
2. Hosne Ara Begum v. Rezaul Karim, 43 DLR (1991) 543
3. Chan Mia v. Rupnahar, 51 DLR (1999) 292
4. Nelly Zaman v. Ghiasuddin Khan, 34 DLR (1982) 221,
5. Hosna Jahan v. Md. Shahjahan, 4 BLC (AD) (1999) 117
6. T. Sareetha v. Venkata Subbaiah, AIR 1983 A. P. 356
7. Smt. Harvinder Kaur v. Harmander Singh Choudhry, AIR 1984 Del. 66
8. Smt. Saroj Rani v. Sudarshan Kumar Chadha, AIR 1984 SC 1562
9. Jesmin Sultana v. Mohammad Elias, 17 BLD (1997) 4
10. Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi, PLD 1959 (W.P.) Lah, 566
11. Mst. Amena Khatun v. Serajuddin Sardar, 17 DLR (1965) 687
12. Hasina Ahmed v. Syed Abul Fazl, 32 DLR (1980) 294,
13. Mst. Khurshid Bibi v. Muhammad Amin, PLD 1967 SC 97
14. Sheerin Alam v. Captain Shamsul Alam, 48 DLR (1996) 79
15. Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945
16. Ayesha Khanum v. Major Shabbir Ahmed, 46 DLR (1994) 399
17. Smt. Surinder Kaur Sandhu v. Harbux Singh Sandhu, AIR 1984 SC 1224
18. Md. Abu Baker Siddique v. S.M.A. Bakar, 38 DLR (AD) (1986) 106
19. Mst. Zohra Begum v. Sh. Latif Ahmed Munawwar, PLD 1965 (W. P.) Lah. 695
20. Nargis Sultana v. Amirul Bor Chowdhury, 50 DLR (1998) 532
21. Imambandi v. Mutsaddi, (1918) 45 I. A. 73
22. Rehanuddin v. Azizun Nahar, 32 DLR (1981) 139
23. Siddique Ahmed v. Gani Ahmed, 33 DLR (AD) (1981) 1
24. Rokeya Khatun v. Alijan, 34 DLR (AD) (1982) 266
25. Hefzur Rahman v. Shamsun Nahar Begum, 47 DLR (1995) 74
26. 14 (1994) BLD (HCD) at p. 469
27. 50 (1998) DLR (HCD) 47, 52, 53,
28. (1996) BLC (AD) 24; judgment delivered on 23rd October 1993
29. 47(1995) DLR (HCD) 235; judgment delivered on 23rd January 1994; however, it
could not be learnt whether the HC Bench was aware of the Appellate Division
decision in In Azad Alam Vs Jainab Khatun and others, p. 236, 237, 236 – 237
30. Kannan vs Chiruda, AIR 1960 Ker. 93; as referred to in 47(1995) DLR (HCD)
235, at p. 237
31. 42 (1990) DLR (HCD) 450
32. 14(1994) BLD (HCD) 467
33. 14(1994) BLD (HCD) 467
34. PLD 1969 (SC) 187; 21 DLR (SC) 123,
35. 40 (1988) DLR (HCD) 305
36. Civil Revision No. 273 of 1986; Moqbul Ahmed vs Sufia Khatun and others, 40
(1988) DLR (HCD) 305; Judgment delivered on January 11, 1988
37. 14(1994) BLD (HCD) 467
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33. D. Web link:
1. http://ro.uow.edu.au/cgi/viewcontent.cgi?article=1149&context=artspapers&sei-
redir=1&referer=
2. http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=zahid
3. http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=64
4. http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=64
5. http://unstats.un.org/unsd/vitalstatkb/Attachment390.aspx.
6. http://www.lawmoose.com/Documents/UmHaniarticle.pdf
7. http://unstats.un.org/unsd/vitalstatkb/Attachment390.aspx
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