Table Of ContentRevisiting Personal Laws in Bangladesh
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Studies in International Minority
and Group Rights
Editors-in-Chief
Gudmundur Alfredsson and Kristin Henrard
Advisory Board
Han Entzinger, Professor of Migration and Integration Studies (Sociology),
Erasmus University, Rotterdam, The Netherlands; Baladas Ghoshal, Jawaharlal
Nehru University (Peace and Conflict Studies, South and Southeast Asian
Studies), New Delhi, India; Michelo Hansungule, Professor of Human Rights
Law, University of Pretoria, South Africa; Baogang He, Professor in International
Studies (Politics and International Studies), Deakin University, Australia;
Joost Herman, Professor in Globalisation Studies and Humanitarian Action,
University of Groningen, The Netherlands; Will Kymlicka, Professor of Political
Philosophy, Queen’s University, Kingston, Canada; Ranabir Samaddar, Director,
Mahanirban Calcutta Research Group, Kolkata, India; Prakash Shah, Senior
Lecturer in Law (Legal Pluralism), Queen Mary, University of London, the United
Kingdom; Tove Skutnabb-Kangas, Åbo Akademi University, Dept. of Education,
Vasa, Finland; Siep Stuurman, Professor of History, Erasmus University,
Rotterdam, The Netherlands; Stefan Wolff, Professor in Security Studies,
University of Birmingham, the United Kingdom.
volume 14
The titles published in this series are listed at brill.com/imgr
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Revisiting Personal
Laws in Bangladesh
Proposals for Reform
Edited by
Faustina Pereira
Shahnaz Huda
Sara Hossain
leiden | boston
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Library of Congress Cataloging-in-Publication Data
Names: Pereira, Faustina, editor. | Huda, Shahnaz, editor. | Hossain, Sara,
editor.
Title: Revisiting personal laws in Bangladesh : proposals for reform / edited
by Faustina Pereira, Shahnaz Huda, Sara Hossain.
Description: Leiden ; Boston : Brill Nijhoff, 2019. | Series: Studies in
international minority and group rights ; volume 14 | Includes
bibliographical references and index.
Identifiers: LCCN 2018012186 | ISBN 9789004357341 (hardback : alk. paper) |
ISBN 9789004357273 (e-book)
Subjects: LCSH: Domestic relations--Bangladesh. | Religious minorities--Legal
status, laws, etc.--Bangladesh. | Muslims--Legal status, laws,
etc.--Bangladesh. | Indigenous peoples--Legal status, laws,
etc.--Bangladesh.
Classification: LCC KNG540 .R48 2018 | DDC 342.549208--dc23
LC record available at https://lccn.loc.gov/2018012186
Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface.
issn 2210-2132
isbn 978-90-04-35734-1 (hardback)
isbn 978-90-04-35727-3 (e-book)
Copyright 2019 by Koninklijke Brill NV, Leiden, The Netherlands.
Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi,
Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag.
All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system,
or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise,
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910, Danvers, MA 01923, USA. Fees are subject to change.
This book is printed on acid-free paper and produced in a sustainable manner.
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Contents
Foreword vii
Meghna Guhathakurta
Foreword ix
Cécile Insinger
Preface xiii
Kamal Hossain
Acknowledgments xv
List of Illustrations xvii
Notes on Contributors xviii
Introduction 1
1 Civil Laws Governing Christians in Bangladesh 6
A Proposal for Reform
Faustina Pereira
2 Combating Gender Injustice: Women and the Hindu Law of Personal
Status in Bangladesh 58
A Comparative Analysis
Shahnaz Huda
3 Muslim Women’s Rights under Bangladesh Law 145
Provisions, Practices and Policies Related to Custody and Guardianship
Nowrin Tamanna, Muhammad Amirul Haq and Sara Hossain
4 Gender, Personal Laws and Practices of the Bengali Barua Buddhists
of Bangladesh 195
Shahnaz Huda
5 Personal Laws of the Indigenous Peoples of the Chittagong Hill Tracts,
Bangladesh: A Gender Perspective 212
Rani Yan Yan and Raja Devasish Roy
Annex i Hindu Marriage Registration Act, 2012 247
Annex ii Guardians and Wards Act, 1890 251
Index 271
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Foreword
In 2017, we celebrated the 70th anniversary of what is popularly known in
South Asia as the Partition of the Indian subcontinent in 1947. This marked
the watershed for the emergence of India and Pakistan (and later Bangladesh)
from the British colonial past to the modern precepts of the nation-state. A
lot has happened since then: massive population movements, wars, Liberation
movements, extremism and fluidity and ruptures in the construction of new
nations and nationalities. But despite the changes, traditions persist, especially
in the construct of new nation-states whose foundations remain entrapped in
the traditional legal practice of a colonial era. Considerable reforms have been
made in these laws and new progressive laws have been incorporated as state
policies in keeping with the ‘brave new world’ that we were entering, but such
laws often failed to traverse the faultlines left by socio-political forces of his-
tory. Reforms in religious laws sometimes affected only majority communities
leaving minority communities in the shadows of rules and regulations consid-
ered inappropriate in a humanistic world. On the other hand customary prac-
tices in indigenous communities have provided more cultural freedom and
protection than those provided by state laws. The concept of personal laws in
South Asia incorporates the complexities mentioned above. Muslim personal
law has effectively been amended among majority communities in Pakistan
and Bangladesh, but not so for minority communities. This situation is a mir-
ror reflection in the case of personal laws for the majority Hindu population
in India.
An additional complexity is that personal laws in South Asia are gendered
and those sanctioned by religion are especially ensconced in structures of
patriarchy, making legal reforms especially difficult and arduous as it entails
digging deep into both societal values and legal provisions. But that does not
mean it cannot be done. Reforms in South Asia have often been brought about
by changes in power structure or by long drawn out people’s movements and
by an assiduous rereading and re-interpretation of the law itself. In transiting
from a colonial discursive practice into a more humanistic understanding of
the world, there can be no short cuts!
The writings in this volume is therefore very important not only for those
in Bangladesh but for all those who seek to modernize and adapt traditional
notions of justice into more universal ways of application. In Bangladesh we
already have a vibrant movement arguing for a Uniform Personal Code or for
seeking to do away with the Bangladesh state’s reservation in ratifying the
uncedaw Resolution. Readings of customary law arguing for diversity is a
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viii Foreword
budding discourse among lawyers and professionals of the indigenous com-
munity. But more needs to be done. More boundaries need to be pushed, be-
cause we are indeed living in a world that carries a tremendous potential of
destruction as it does of preservation. Protection of individual rights, of the
environment can come about by first addressing local structures of power and
patriarchy and then exploring notions of diversity that lie embedded in hu-
manity and nature. The writings in this book provides just such an opportunity
and therefore carries an appeal beyond the boundaries of nation, state and
region.
Meghna Guhathakurta
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Foreword
In May 2009 the South Asian Institute of Advanced Legal and Human Rights
Studies (sails), a fairly young institute at the time, organised a small semi-
nar on Women’s Property Rights. Professor Bina Agarwal, a development
economist from New Delhi, India had been invited to speak. She had led the
movement in India which had resulted in the passing of the Hindu Succession
(Amendment) Act in 2005, a law that gave daughters equal rights to their male
relatives when inheriting property.
We ended up with a passionate and candid discussion shared by all partici-
pants on the current situation of succession, marriage and property ownership
of Hindu women in Bangladesh. India was way ahead of Bangladesh with re-
spect to reforming its laws and regulations in the personal sphere for its largest
community, the Hindu community. It was an inspiring afternoon; clearly there
was work to be done for Bangladesh.
A year later, in April 2010, sails embarked on the ‘Combating Gender Injus-
tice’ research project funded by the Netherlands Embassy in Bangladesh, with
back office support from the law firm of Dr Kamal Hossain & Associates and
the blessing of the Bangladesh Law Commission. This project was the starting
point and the foundation of the publication before you.
Three communities within Bangladeshi society were to be targeted. The
daily lives of the women and children within these communities were then
and still are today affected by personal laws reflecting gender inequality and a
lack of will or power to reform these laws and procedures in line with modern
views of civilization. We had chosen to study the personal laws of the Christian
communities, the Hindu community and also to examine court cases and le-
gal procedures related to custody and guardianship which involve women and
children within the mainstream community of the country, the Islamic com-
munity, an area in which the rules of Shariʿa are in conflict with the provisions
laid down in international conventions which Bangladesh has ratified.
Three teams were formed, each led by experts in its field: Dr Faustina Pereira
(brac), Professor Shahnaz Huda (University of Dhaka) and Barrister Sara Hos-
sain, (Partner Dr Kamal Hossain & Associates). Dr Nowrin Tamanna an expert
on Islamic family law from the University of Reading, UK joined the team on
custody and guardianship, as did Advocate Muhammad Amirul Haq, a young
advocate practicing in Dhaka. Students were selected to carry out the painstak-
ing task of travelling through the country interviewing the members of the dif-
ferent communities and collecting the court cases. After all the interviews had
been carried out, collected and the results interpreted, stakeholder meetings
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