Marriage is considered to be a sacred practise in Hindu religion and it has been evolved as an institution gradually. It has been shifted from mere religious practice to a legally registered bond. It is an act which for certain social and legal reasons confers a certain status on a man and a woman. In order to stand with the current scenario, marriage laws have gone through several amendments in the civilized society. In Bangladesh, the marriage laws are considered to be as the personal laws of the citizens and hence, they are regulated by their respective religions. Legislations to deal with citizen’s personal laws in Bangladesh are ineffective and trivial due to this the conditions of the minority communities are miserable there. Since, 1947, Bangladeshi Hindus haven’t witnessed any considerable legal reform in their personal laws. Not only the current lawmakers even the Britishers have taken up the issue of reforms in the field of personal laws very cautiously. The rulers of the British era avoided bringing any changes in the religious reforms as they were with the contention that it belongs to the religious faith of the people and should be dealt exclusively by their religious texts and customs. Still, there were certain remarkable changes made up by them in personal laws especially those which were related to the rights of the women. After independence from British rule, East Pakistani Hindu’s situation deteriorated because Pakistani rulers were not interested in modifying Hindu personal laws as there was no significant demand from the group for the same. At that time, the condition of the Bengali Hindus was vulnerable and the natives of East Pakistan was fighting against the general discrimination which leads to their independence in the year 1971. Recent Bangladesh governments have also been wary and unwilling to deal with Hindu minority religious laws and they have put forth the justification that any possible amendments towards gender equality will violate the provisions of Hindu religion laid down under smritis and commentaries.
This paper will deal with the importance as well as nature of marriage under Hindu laws, the discriminatory nature of the Hindu laws which are exercised in Bangladesh as well as it elaborates on the scope of reforms and need of bringing change in the laws governing Hindu marriage in Bangladesh. In order to deal with the same, the author will use the doctrinal as well as the comparative method of research. The doctrinal method is the one which includes the synthesis of various rules, cases laws, statutes, research papers and all other secondary forms of data whereas comparative method is the one in which two or more aspects are compared with a view to find out something related to either of the things compared or of both. The objective of this paper is to know the history and ancient glory of Hindu religion, to know the problems persisting in Bangladesh in relation to the Hindu marriage, to find out the discrimination faced by the Hindu women of that country and to understand the impact of the Hindu Marriage Registration Act of 2012 on Hindu marriages in Bangladesh.
II. Hindu personal laws and their historical background
The Hindu faith or Dharma is referred to as Sanatan dharma or unbridled law. Comprehensively, a Hindu is any person who practices the Hindu religion in all of its systems and reforms. Even though the Hindu religion is filled with various customs and functions, non-recognition of any such customs linking with the way of life, food propensities and so forth doesn’t take back his recognition as a Hindu person.
Hindu Law finds its origin in the ancient period and it is considered as one of the most historical systems of laws. Mayne has defined Hindu law as “Hindu law is the law of the Smritis as expounded in the Sanskrit Commentaries and Digests which, as modified and supplemented by custom, is administered by the courts.” The primary source of the Hindu law is the Vedas or Shrutis, which are considered to be divine or the direct words of God herd by the Rishis or Sages and then jot down by them in their own way. Smritis are popularly known as Dharmashastras, which consist of a list of laws used by the legal advisors of that time. There are two schools of Hindu law, one is Mitakshara and the other one is Dayabhagha school. Mitakshra School of Hindu Law consist of almost all the laws belong to Hindu religion and has its basis in a commentary written by Vijaneshwara in the latter half of the eleventh century and finds it applicable to the whole of India except for the states of Bengal and Assam whereas Dayabhagha School of Law finds it applicable only in the states of Bengal and Assam. It is based on the commentaries of Jimutuvahana and predominately focuses on areas such as inheritance, joint family and partition.
(A) The Concept of Hindu and the Source of Hindu Law in Bangladesh.
In Bangladesh, any person who is governed by the Hindu laws is considered to be Hindu. It can be said that the person born to a Hindu parent or the one who renounces any other religion and accept the Hinduism will be considered as the Hindu. In India, there is a specific act which states who is Hindu but this is not the case in Bangladesh. Even the judiciary doesn’t have any clear definition of the question “Who is Hindu” in Bangladesh. In the case of Ajitananda Vikshu v. Aggrahangsha Mohathero, the court explained the position of Buddhists under Hindu Law in Bangladesh in the case of succession of property in the following words “We do not think that […] the Buddhist of our country are governed by the Hindu law. In 1956 Hindu law in India was amended and the Buddhists of India were brought within the ambit of the Hindu law. But in our country, no such amendment has been made. As such it cannot be said that the Buddhists of our country are governed by Hindu law.”
In the case of Karatala Bihar v. H.R. Chowdhury, the court was of a different opinion, it said that the case should be dealt by the Hindu Personal Laws and simply refused to interfere in the personal laws.
The newly formed Hindu Marriage Registration Act, 2012 defines Hindu as “a Hindu citizen within the territory of Bangladesh” which is a very restrictive definition and doesn’t clarify the ambiguity.
The main source of Hindu law is their religious texts viz. shrutis, smritis, Vedas, documentaries etc. along with that customs play a vital role from historic times. The importance of customs was upheld in the case of Collector of Madura v. Moottoo Ramalinga, where it was perceived that “under the Hindu system of law, clear proof of usage will outweigh the written text of the law”. It can be seen from the case of Bimal Chandra Chowdhury v. Subramanya Krishna Chowdhury that customs are considered an authenticated source of Hindu law in Bangladesh.
Bangladeshi courts also consider the doctrine of ‘factum valet’ as the valid ground to take a decision over the cases belongs to the Hindu Law. This doctrine literally means that “what should not be done, yet being done shall be valid”. In the case of Abdul manna @ Kazi Abdul Mannan and others. v. Sultan Kazi and others., the court of Bangladesh had used the same principle in invalidating the adoption of an orphan boy by the Muslim person whereby the court stated that it’s against the Hindu laws and practices.
(B) The Forms and Nature of Marriage in Hindu Law
According to the Hindu mythology, there are eight forms of marriages out of which four are accepted and four are unaccepted. The accepted four are “Brahma, Daiva, Arsha and Prajapatya” and the four unaccepted are “Asura, Gandharva, Rakshasa and Parajapatya”. In Bangladesh, only two types of marriage are prevalent i.e., Brahma and Asura. Brahma is the one in which there is no dowry and the Asura is the one in which the dowry is taken by bridegroom’s family from bride’s family which is also known as “shulka”.
Marriage is considered to be a social bond between two individuals which imposes certain obligations on both the parties. In traditional Hindu Law, marriage is taken up as the spiritual bond between the two and it’s provided in Vedas and Manu Smriti. According to the Vedas, any man will be capable of sacrificing only when he will be married and have a son. It is the most important thing in any Hindu’s life and it is considered as the most pious “Samskara” in the Hindu religion. In Hindu marriage there is no say of a woman, her consent is not mandatory to solemnize the marriage as the bride is considered to be a gift from her father’s side to some other parents but the willingness of the bridegroom is essential to solemnize the Hindu marriage.
III. Hindu marriage in bangladesh and its discriminatory nature
Hindu Personal Laws as present in Bangladesh is regularly censured as being prejudicial on the grounds of religion and gender. It’s not always the religion that creates issues, there are several other economical and social issues that cause problems. These social evils are usually protected under the ambit of religious texts and customs by various scholars.
(A) Exercise of Child Marriage
Child marriage is a common practice in Bangladesh, especially in Hindus as the Hindu texts don’t provide any specific age at or above which the girl can be married. Many Smritikars were of the opinion that the girl should be married before she attains the age of puberty. This mentality of the scholars and non-availability of any provision regarding the age of marriage pave out the way for the occurrence of Child Marriage in Hindu religion. During the time of the British rule, there was the statute, The Child Marriage Restraint Act, 1929, it’s enacted to impose punishment on the person who ever solemnizes child marriage or marriage below a certain age and this statute still persist in Bangladesh. This statue merely imposes the punishment without harming the validity of the marriage. This practice of Child marriage has reduced to the extent after the enactment of the Hindu Marriage Registration Act of 2012 which states that the minimum age of the girl should be 18 and for the boy, it should be 21. But this act also doesn’t include any clause stating that the marriage solemnized below the criteria set will be void or voidable or legal which creates the doubt that whether it will be able to completely curb the practice of child marriage or not.
(B) Proscription of Divorce
The proposition to have a divorce is considered to be a notion against the spiritual belief and faith in the Hindu religion. It can be seen from the text quoted in Manu Smriti that the marriage in Hindus is of permanent nature, it says “Let mutual fidelity continue until death. This is the summary of the highest law for husband and wife” and “Let man and woman, united in marriage, constantly exert themselves, that they may not be disunited and may not violate their mutual fidelity”
The Hindu laws impose certain duties on both men and women like they both need to be faithful towards each other, but a wife has no right to reject her man even on the grounds of adultery. It is stated in Manu that “though destitute of virtue, or seeking pleasure elsewhere, or devoid of good qualities, yet a husband must be constantly worshipped as a god by a faithful wife.”
In ancient Hindu law, Divorce is prohibited and only in the exceptional stances, it can be done. For example, “another husband can be ordained for women in five calamities, namely, if the husband is unheard of, or dead, or adopts another religious order, or is impotent, or becomes an outcaste by Narada. Under almost similar circumstances, dissolution of marriage was supported by Parasara”. In Bangladesh, neither of the two methods are adopted to take divorce and hence, there is currently no law to govern the divorce in Hindu marriage, therefore no matter how hard it’s for Hindu women they have to bear the atrocities as they can’t have divorce in Bangladesh. Though there is no set rules or precedents to govern divorce, there is the Hindu married Women’s Right to Separate Residence and Maintenance Act 1946 through which any woman who faces any brutalities can seek for the separation.
(C) The Dowry System
Dowry as per the Dowry prohibition Act of 1980 can be defined as “any property or valuable security given or agreed to be given either directly or indirectly;
(a) By one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person to either party to the marriage or to any other person;
At the time of marriage or at any time before or after the marriage as consideration for the marriage of the said parties”. It is the process which emerges as the social evil, as per Hindu Laws, a bride is the gift from her father’s side to the other person, beautifully decorated with gold and pieces of jewellery or it can also be seen in a way that since the bride is not entitled to inherit any property, her parents try to provide her with as much cash or cash equivalents as they can. It was the practice done by the parents of the bride for her betterment but it’s become mandatory or obligatory with the passage of time. There are a plethora of cases showing how the women are treated when their parents failed to pay the desired dowry amount. There are several statutes like “The Dowry Prohibition Act”, The Cruelty to Women (Deterrent Punishment) Ordinance 1983, “The Women and Children Repression (Special Provision) Act 1995” and “The Prevention of Repression Against Women and Children Act 2000”, which are there to prevent the act of Dowry.
As already discussed, that the marriage is a holy bond between the two individuals and it’s extended to seven lives which means that monogamy is expected from the Hindu laws but the main aim of the marriage as per Hindu law is to get a son to whom the ancestral debts can be transferred and who can perform a religious and spiritual task. So, there are certain situations where the polygamy is accepted and allowed by the ancient texts as it’s mentioned in Manu Smriti that “A barren wife may be superseded by another in the eighth year. A wife whose children are all dead may be superseded in the tenth year. A wife who brings forth only daughters may be superseded in the eleventh year but she who is quarrelsome without delay”
Some other grounds as mentioned in the Manu are “She who drinks spirituous liquor, is of bad conduct, rebellious, diseased, mischievous or wasteful, may at any time be superseded by another wife.”
As of now in Bangladesh, man has the right to ask his wife to get separated and take the maintenance, without any valid grounds. Earlier the polygamy was allowed only for the religious purpose that is to have a son or for the practice of spiritual rights and duties but soon the people started misusing it and exercising it for the reasons other than religion as well. One more condition for the marriage is that the only same caste people can marry and this also led to the situations where fathers simply gift their daughters to a man who is already having a wife or wives.
Under orthodox Hindu law, the adoption laws followed in Bangladesh are discriminatory in nature. Adoption can be done only by the male member of the family, he has the absolute right and can adopt the child even if he is not major but achieved the age of discretion or even if his wife is against the adoption or even if she is pregnant, the only condition is that he should not have any son or grandson. The adoption can be done of a male child of same caste only, who should be mentally and physically fit. On the other hand, women hold absolutely no right when it comes to the adoption of the child in Bangladesh. A married woman can adopt a child only with the consent of her husband and a widow with the direct or indirect consent of her husband given by him before his death. This clearly shows discrimination faced by women when it comes to the adoption of the child. Prohibition of adoption of a girl child is in direct contravention to the fundamental right of non-discrimination guaranteed under article 42 of the Constitution of Bangladesh but still this practice prevails and women/girls face absolute discrimination.
Under Dayabagha school of law, only five females are entitled to inherit the property and they are “widow, daughter, mother, father’s mother and father’s father’s mother”. The right to inherit property which lies with them is not absolute, it’s subjected to certain limitations. The right of the widow on widow’s estate i.e. the property inherited by the widow after the death of her husband is limited to the extent of receiving interest from that state. She has no authority to alienate that property unless there is a legal necessity. The term legal necessity has been defined in the case of Narunnabi v. Joynal Abedin, where the court said: “Widow’s right to her husband’s property is subject to certain restrictions i.e. she has the right to alienate the property absolutely for what is known as legal necessity namely for payment of husband’s debts, for performance of acts which conduce to the spiritual welfare of the husband, for discharging obligation of her husband for her own maintenance and for the preservation of the estate”. The widow enjoys this right till she retains her chastity, the day she has undergone any act which hampered her chastity, she lost all her rights from that property and the property shall transfer to the heirs of her husband. The Hindu daughter is completely deprived of this, she is not entitled to inherit any property from her father, the right to inherit the property lies only with the son, she will be given the share in the property only if she will give birth to a son or she will not receive anything from her parent’s side. This shows the amount of discrimination faced by the women in Bangladesh when it comes to the right of Inheritance.
(G) Guardianship of Children
Under Hindu Personal laws of Bangladesh, there are four types of guardians:
- Natural Guardian: Father of the minor child is considered to be as the prime/natural guardian of his child. Mother comes after him and the guardianship can be transferred by the father to any person without his wife’s consent and the other person thus appointed by him will have the right above the mother. The High Court of Bangladesh in the case of Chandra Shaha v. The State and Ors. held that the “in case of married Hindu girl the natural guardian is the husband”
- Testamentary Guardian: The father has the absolute right to choose or appoint any other person as the guardian of the minor and the decision taken by that men will succeed the one made by the mother of the child/minor.
- De Facto Guardian: Hindu Personal laws also incorporate the rights of a person who legally may not have that right but have acted in good faith i.e. in the interest of the minor and its property.
- Guardian appointed by Court: Under the Guardians and Wards Act of 1890, the family court can assign a guardian to a minor when he/she won’t have any lawful guardian.
After analysing the same it can be seen that the male has the upper right in this as well and women are not even considered as the first guardian of the child/minor and she has no say if a man decides to appoint someone else as the guardian of the child or minor.
(H) The Hindu Marriage Registration Act, 2012 and its attribute
Before 2012, there was no legislation to register the Hindu marriage which has caused several problems to the couples living there. With the emergence of the Hindu Registration Act, all the marriages, solemnized in the proper manner, which happened prior to the commencement of this act is also given the registration and this act of the government has changed the position of Hindus drastically. The only issue is with the effectiveness of the act as it provides only for optional registration and it states that under this act anyone who is living within the territory of Bangladesh irrespective of the fact whether he is a citizen or not, can register himself/herself.
So, in this way, it can be seen how the women are discriminated and treated under the Hindu law in Bangladesh and also the change come up with the emergence of the Hindu Marriage Act.
IV. Scope of reform of hindu laws in bangladesh
As discussed above, the level of discrimination faced by the Hindu Women in Bangladesh under Hindu laws, there is a need of reform in the existing rules in order to provide equality and security to the women in the society.
(A) Problems in reforming Hindu Laws in Bangladesh
Hindus, who settled in Pakistan after the partition in 1947, faced tremendous fundamental problems and the issue of their mere existence pops up. Pakistan government passed the legislation, Enemy Property Act, 1965, according to which all the property owned by the Hindus in the territorial boundary of Pakistan becomes the property of the state. This forced several Hindus to migrate back to India. In 1974, after the formation of Bangladesh, the same law persists with the name of Vested Property Act of 1974 in Bangladesh, making the position of Hindus miserable. Hindus amount to more than 10% in Bangladesh and hence the largest minority community. The Bangladesh government is always with the contention that any reform in the Personal laws of the minority or tribe may result in devastation and may be considered as the interference in their personal law. Hindu religion is rich in culture, traditions, manners, and consist of positive laws. Its main motive is to provide happiness, prosperity and the well to do spiritual life. Vedas and the Shastras also prove the same. Hindu laws are founded on such a strong base that the reform in Hindu laws won’t affect its basic principle. It’s not the traditional and spiritual extent of the Hindu religion, it’s the socio-political motive of the community that hampers the reform and the growth of the Hindu personal laws. As per the need of the modern time, gender equality is one of the most fundamental rights which is required for the well- being of the person and development of society. The Vedic theory and essence of Hindu law’s progressive reforms will promote gender equality in compliance with modern standards of humanity and hence, it is just the socio-political motive that is preventing the reforms in the laws and this will harm or restrict the inner development of the Hindu religion or society.
(B) Reforms that are Supposed to be there in Hindu Laws of Bangladesh.
After coming up of the Hindu Marriage Registration Act 2012, Hindus of Bangladesh get certain rights and among them, the most important is the registration or certification of marriage which wasn’t there before 2012. Still, there are several changes that need to be made in order to make the life of the Bangladeshi Hindus better. Some of such reforms can be:
- Clear and vivid explanation of the legal requirements that should be fulfilled for the validation of Hindu marriage.
- As of now, it’s optional to register the marriage but it should be made mandatory for all.
- Inter caste marriages should be allowed.
- There should be some provisions for divorce as “the traditional Hindu law’s adherence to the doctrine of the indissolubility of marriage could not prevent the recognition of the people’s need of a divorce.”
- The right to take divorce should be available with both men and women.
- The provisions to have polygamy should be subject to various restrictions and allowed only in extreme cases.
- Monogamy should be given importance and awareness regarding the same should be propagated throughout the country.
- Restrictions imposed on the provisions for the inheritance of the property by the women after the death of her husband and her re-marriage should be removed.
- The government should come up with strict laws to prohibit child marriage.
- The Hindu Marriage Act, 2012 should be amended in the way that it will make the marriage void if a man and a woman are not of the age set by the legislation.
- The provisions should be such that even the women can adopt the child and even a daughter can be adopted who will be treated as the natural baby and all the rights conferred to the born baby shall be given to the adopted one.
With the change of the time, things change and get modernized, it becomes a need of an hour to protect the women of Bangladesh against the discrimination faced by them due to certain ancient provisions and the socio-political motives of some leaders. There are a lot of campaigns run out by United Nations Educational, Scientific and Cultural Organisation to create awareness among the society on the topic of gender equality and its need in the current time. One of the reports jointly made up by UNESCO and a local NGO, Women for Women, submitted to the Bangladesh Government expressly talks about the problem of gender inequality in Bangladesh and also proposes the reforms in the personal laws of the communities like in the laws governing marriage, divorce, adoption, succession etc, in order to provide the better and the respectful life to all the citizens of Bangladesh.
It has been said that in the early Vedic time, women were treated and considered to be of high value and there were no major differences between the men and the women on the grounds of application of social rights. It can easily be framed out that bringing gender equality in the Hindu laws won’t affect the ideals of the Vedic period “which is considered the age of enlightenment, peace and happiness.” Hence the reforms suggested in the article should be implemented in the society so that the Hindu women residing within the territorial boundary of Bangladesh will get the equal right and can live with peace and dignity.
 Indira Sharma et al., Hinduism, marriage and mental illness, 55(2) IJP, 243, 243 (2013).
 H K Saharay, Laws of Marriage and Divorce 11 (4 ed., Eastern Law House, Kolkata 2007).
 Shah Alam, Review of Hindu Personal Law in Bangladesh: Search for Reforms, 8(1-2) BLJ, 15, 45 (2004).
 Shelley Feldman, The Hindu as Other: State, Law, and Land Relations in Contemporary Bangladesh, SAMAJ, 1, 5 (2016).
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 Sanathan Dharma, THE HINDU (October 12, 2020,12:35 AM), https://www.thehindu.com/features/friday-review/religion/sanatana-dharma/article4712291.ece.
 The Hindu Marriage Act 1955 § 2(1)(a) (India).
 Markandey Katju, Jurisprudence: From the Ancient to the Modern, SWARAJYA (July 20, 2020, 07: 34 PM), https://swarajyamag.com/blogs/ancient-indian-jurisprudence.
 The Hindu marriage Act 1955 § 2 (India).
 Ajitananda Vikshu v. Aggrahangsha Mohathero, (1980) 32 DLR 187.
 The Hindu Marriage Registration Act 2012 § 2(a) (India).
 9 D F Mulla, Principles of Hindu Law 90 (15 ed., N M Tripathi Private Limited 1982).
 Bimal Chandra Chowdhury v. Subramanya Krishna Chowdhury, (1994) 46 DLR (AD) 90.
 Mahua Zahur, supra note 4, at 611.
 Abdul Mannan @ Kazi Abdul Mannan and others v. Sultan Kazi and others, (1984) 34 DLR 236.
 Rk Agarwal, Hindu Law 33 (26 ed. Central Law Agency 2019).
 Id. at 34.
 Df Maulla, supra note 13, at 552.
 R K Agarwal, supra note 17.
 Nelistra Singh, supra note 1, at 31.
 Nanda Chirnajeevi Rao, The Impact of Legislation on Marriage and Divorce under Hindu and Muslim Laws, DLS (2011), http://hdl.handle.net/10603/8109.
 The Child Marriage Restraint Act 1929 § 1(2) (India).
 Hindu Marriage Registration Act 2012 § 5 (India).
 Manu Smriti, Ch IX, verse 101.
 Id., verse 102.
 DR. Rabia Bhuiyan, Gender & Tradition In Marriage & Divorce: An Analysis Of Personal Laws Of Muslims And Hindu Women In Bangladesh 161 (1ed. United Nations Educational, Scientific and Cultural Organization 2010).
 Mahua Zahur, supra note 4, at 619.
 The Dowry Prohibition Act 1980 § 2 (India).
 Dr. Rabia Bhuiyan, supra note 24, at 164.
 The Dowry Prohibition Act 1980 § 3.
 Dr. Rabia Bhuiyan, supra note 24, at 167.
 The Prevention of Repression Against Women and Children Act 2000, § 11(India).
 Manu Smriti, Ch IX, verse 81.
 Id. at verse 80.
 Dr. Rabia Bhuiyan, supra note 24, at 233.
 Id., 154.
 Abdul Mannan Alias Kazi v. Sultan Kazi, (1979) 12 DLR 31.
 Shanaz Huda, supra note 3, at 25.
 Id., at 26.
 Nurunnabi v. Joynal Abedin, (1977) 29 DLR 137.
 Abdul Gani Khan v. Tamijuddin Howlader, (1953) 5 DLR 440.
 Chandra Shaha v. The State and Ors, (2010) 30 BLD (HCD) 584.
 Guardians and Wards Act 1890 § 19.
 Swapon Kumar Gain v. Amita Golder, (2006) 58 DLR 26.
 The Hindu Remarriage Act 2012 § 6(2) (Bangladesh).
 Id. at § 1(2).
 Abdul Barkat et al., Political Economy Of The Vested Property Act In Rural Bangladesh (Pathak Shamabesh 1994).
 Shah Alam, supra note 2, at 35.
 Dr. Rabia Bhuiyan, supra note 24.
 Samer Al- Samarrai, Governance and Education Inequality in Bangladesh, UNESCO (2009), https://unesdoc.unesco.org/ark:/48223/pf0000180086.
 Shah Alam, supra note 2, at19.
 Id. at 18.