An analysis of Bangladesh's progress toward establishing gender-

neutral and pro-women Islamic family law

Md. Nazmul Hasan*

Abstract

The existing family laws in Bangladesh have many provisions available regarding issues related
to Muslim matters. However, the state isn’t updating those provisions from time to time. That is
why many anomalies and ambiguities exist in Bangladesh's statutory laws. Most of the provisions
about family matters in the statutory law are discriminatory and deprive women of their rights.
This study discussed those discriminatory laws by comparing them with the statutory laws of other
countries. This study found that most of the existing provisions of Bangladesh aren’t gender-
friendly. This study also found that many crucial Muslim family issues have no existence in the
statutory laws of Bangladesh. Modern countries are developing their laws on a timely basis. This
study suggests that Bangladesh needs to take inspiration from those countries. This study also
recommends that sufficient reformation in the Muslim family law of Bangladesh is essential for
protecting the rights of everyone.

* The author is a Post-Graduate student of Law at Bangladesh University of Professional (BUP), Dhaka,
who had completed his Bachelor of Laws from East West University (EWU), Dhaka. Email:
nazmulrahat4@gmail.com
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Introduction: Marriage, Dower, Maintenance, and Dissolution of marriage are some of the most
important areas to discuss in Muslim family law. In Bangladesh, there are several laws available
related to these areas. However, for many years people witnessed the anomaly & ambiguity in the
family laws of Bangladesh. Most of the provisions in the general laws are discriminatory, but the
government didn’t take more reasonable steps to solve this anomaly. This study will discuss those
ambiguities and suggest creating gender-friendly and pro-woman Muslim laws from Bangladesh’s
perspective.

Attainment of Majority: Marriage is a legal contract, and the purpose of marriage is fidelity,
virtue & creation of a stable family1. This line is mentioned in article 4 of the Morocco Family
law. There are some arguments regarding the status of marriage. There are two popular opinions
available regarding the status of marriage. Some say marriage is purely a civil contract 2; another
opinion says marriage is a contract of civil nature3. Some statutory criteria need to be fulfilled
while performing a marriage.

In Bangladesh, many anomalies are present in the existing laws. The sharia does not fix the age
limit regarding the attainment of the majority. Nevertheless, sharia imposed some conditions for
attaining the majority. Under sharia law, the girls' majority depend on their menstrual period, and
the boys' majority depend on night pollution4. When they start facing this physical change, they
can claim themselves as adults. The child marriage restraint act of 2017 fixed the age limit for
boys and girls for marriage, where it said that the minimum age for a boy is 21 & for a girl, it is
18 for marriage5. If they marry before reaching this age limit, then it will be a punishable act under
this law.

This act fixed the age limit, but it did not mention whether it is an age for attaining a majority or
the age limit for a valid marriage. There need to be more explanations available regarding this age

1
The Mudawana 2004, s 4
2
Abdul Kadir v. Salima [1886] 8 All 149
3
Mst. Khurshid Bibi v. Babu Muhammad Amin [1967] 47 (Sc) PLD
4
Dr Mohammad Ekramul Haque, Muslim Family Law: Sharia and Modern World (London College of Legal
Studies , Dhaka, Bangladesh, 2015), p. 49.
5
The Child Marriage Restraint Act 2017, s 2(3)

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limit. A reformation is required in this provision where it is necessary to provide a reasonable age
limit with sufficient grounds. Why the age limit for boys is 21 in Bangladesh is also a matter of
argument. Here, the law is not treating the boys; equally; it just imposes a number without proper
reasoning. So, A reformed law is required regarding the attainment of majority age from the
perspective of Bangladesh.

Registration of Marriage: Registration of Marriage is a statutory obligation. Registration is not

related to the validity of a marriage. After the solemnization of a Muslim marriage, registration Is
required to keep a record of that Marriage. Under section 5 of the Muslim Marriage and divorces
(registration) act, 1974, when the Nikah register solemnizes a marriage, it is his liability to register
it at once. The Appellant division of the supreme court of Bangladesh stated that an unregistered
Muslim marriage is valid. 6Therefore, non-registration is a punishable act under the statutory law
of Bangladesh.

Nevertheless, under section 5(2) of this act, when a marriage is solemnized by a person other than
the Nikah register, the bridegroom of the Marriage must report it to the concerned Nikah register
within thirty days. 7The provision only mentioned the bridegroom. Because of this word, this
provision is discriminatory. They should mention it as mutual responsibility for both husband and
wife. This provision also contravenes the constitutional provision regarding equality. Moreover,
the duty is only imposed on the husband, but everyone knows that Marriage is formed by mutual
consent from both sides, and that is why rights & duties should be mutual regarding Marriage. So,
reformation of this provision is necessary to establish equal duty & equality.

Option of Puberty: The option of puberty, also known as Khiyar ul bulugh, can be exercised by
both boys and girls under the sharia law8. Few Islamic jurists stated that a woman could marry
someone without any guardian if she attained the majority age. Nevertheless, the option of puberty
is indicated in a different situation where a minor boy or girl was given marriage by their guardian.
Then they can exercise the option of puberty to repudiate the marriage. The benefit of the option
of puberty will not be applicable in certain conditions. In the case of girls, after attaining the

6
Abdur Rakib (Md Shahin) v. Shertaj Khatun and another 2008, 37 CLC (AD) [2749]; 13 BLC (AD) (2008) 137
7
The Muslim Marriage and Divorces (registration) act 1974, s 5(2)
8
Ibid (n 4), p. 75

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majority, if she consummated within a specific time, she will not be able to exercise this right. In
the case of boys, if they ratify the marriage, they will not be able to exercise the benefit of the

option of puberty. Suppose he pays the dower or cohabits after attaining his majority. In that case,
it will be considered that he confirms the marriage, and the option of puberty is no longer
applicable in his case.

However, section 2(vii) of the dissolution of the Muslim marriage act of 1939 is the statutory
provision regarding the option of puberty for Bangladesh. Under section 2(vii), a girl can exercise
her option of puberty after attaining 18 years. She can repudiate her marriage before attaining the
age of nineteen years, and she needs to prove that marriage has not been consummated after she
attains eighteen years. 9The sharia law provided the benefit of the option of puberty for both males
and females. Nevertheless, the statutory provision of Bangladesh only enacted provisions for
women. There are no statutory laws available regarding the option of puberty for males. So, this
is also a discriminatory provision that is not gender-friendly because it discusses only one gender.

Rights & duties of marriage: The statutory laws of Bangladesh did not enact any provisions
regarding the rights & obligations of marriage. The Muslim family law of Bangladesh discusses
procedural matters and punishments regarding different issues. Nevertheless, marriage is not
limited to this, and there are so many rights & duties that need to perform after marriage. The
rights and obligations should be mutual. The statutory laws need to enact some provisions
regarding the mutual obligation of husband & wife. The statutory law of Bangladesh can take
inspiration from the Moroccan family law, known as the Mudawana 2004. In article 51 of the
Mudawana 2004, they eliminate the concept of individual rights & obligations of husband & wife
and present them as mutual rights & obligations, which is more gender friendly and pro-woman.
Bangladesh can take inspiration from this law and reform its statutory family laws by adding
mutual rights & obligations. This gender-friendly law will be a representation of the spirit of
shariah.

Stipulations in marriage: Stipulations that do not violate the statutory or sharia are considered
valid stipulations. Under the sharia law, stipulations are valid if they reinforce sharia obligations.
Fixing the time regarding dower payment and fixing the amount of maintenance are examples of

9
The Dissolution of the Muslim Marriage act of 1939, s 2(vii)

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valid stipulations. The statutory law in Bangladesh does not have any provisions regarding
stipulations. There are a few clauses available in Kabinnama where the husband & wife can insert
stipulations. By column 18 of Kabinnama, a husband can delegate the power of divorce to his
wife. Column 17 is the only place where husband & wife can insert various stipulations10. So, there
is an option for stipulations, but in practice, it is less popular. Most of the time, people do not insert
any reasonable stipulations, and sometimes they insert ambiguous & strange stipulation which has
no logical meaning.

Modern Muslim countries reformed their law and encouraged valid stipulations to reinforce the
obligations of sharia. Turkey was the first country to codify the stipulations related to laws that
mentioned that a wife could insert valid stipulations. For example, if a husband takes a second
wife, the wife will be able to divorce him11. These stipulations are not contravening the sharia law;
instead, they enforce the spirit of sharia. A similar thing is available in Morocco, where they
encourage stipulations against polygamy marriage, and the wife can terminate the marriage if the
husband takes a second wife. However, modern Muslim countries protect women's rights by
encouraging these stipulations.

However, the family law of Jordan created some scope for husbands too. Under the family law of
Jorden, a husband can dissolve the marriage if the wife violet any stipulations. Under this law, a
husband can dissolve the marriage without paying the deferred dower if the wife violates any
stipulations12. These laws have created scopes for both husband and wife. However, under sharia
law, the wife is bound to get the whole dower, and depriving her of the dower because of violating
conditions does not represent the spirit of sharia.

From the reformed family laws of the Muslim world, one thing is clear these modern countries
tried to create scope for both husband & wife. They also reformed their laws to protect the rights
the woman. In UAE, the wife can insert stipulations regarding work & study after the marriage.

This study suggests that Bangladesh can create a scope like Jordan for both husband & wife
regarding stipulations. Both Husband & wife can dissolve their marriage if any stipulations are
violated. Then it will be a gender-friendly statutory law that protects the rights of both husband

10
ibid (n 4), p. 136
11
Ibid, p. 124
12
Ibid, p. 128

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and wife. Bangladesh can reform it is family law and add some basic stipulations which will protect
the rights of husband and wife. If they want, they can add some basic stipulations in the Kabinnama
where the husband & wife can decide by seeing which stipulations they want to insert into their
marriage. The list will contain some basic stipulations: dower, mutual rights & obligations, work
& study after marriage for wife, Property, Polygamy, and power of divorce.

Moreover, there will be an option that will be inserted as "other." In this "other" option, they can
insert other stipulations which they think are reasonable. It will be easier to solve many disputes
regarding marriage, and this will protect both husband & wife's rights. If the statutory laws of
Bangladesh can bring these changes in the family law & Kabinnama, then it will be a remarkable
decision that will protect both husband & wife's rights

Dower: Dower is a mandatory obligation for the husband imposed by sharia. Non-Payment of
dower is a violation of the sharia principle & statutory laws. A husband cannot insert stipulations
regarding non-payment of dower. An interesting fact is that there are no sufficient provisions in
the Muslim family law ordinance of 1961 regarding the dower in Bangladesh. Modern Muslim
countries reformed their family laws and created some fantastic legislation regarding the payment
of dowers. In the Middle Eastern region, a woman shall be entitled to dower in any situation.
Whether the husband repudiates the marriage or the wife dissolves the marriage by a court, the
wife will always entitle to get a dower. Some Muslim countries like Iran calculated the amount of
dower, which is also a great initiative. It will protect the husband so that the wife will not be able
to demand an unreasonable dower because of this calculation. Malaysia enacted an effective law
about the mode & time of payment of the dower. They mentioned that the dower must pay before
the person who solemnized the marriage or in front of two witnesses.13 However, Malaysian law
is more effective because it will ensure that the wife will not be deprived of her dower.

Bangladesh has no specific provisions regarding the amount of dower. There are also no laws
available regarding the mode & time of payment of dower. In the Kabinama, Bangladesh can
include the mode & time regarding payment of the dower, where the husband is bound to pay the
dower within a specific time. Bangladesh also can include a witness system like Malaysian family
law, and this process will ensure that woman are getting their dowers. To avoid unreasonable

13
Ibid, p. 173

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demands from the wife, Bangladesh can create a calculative chart following the husband's income
where it will fix an amount of dower, which will be relevant to the husband's yearly income. In
this way, Bangladesh will be able to protect both husband & wife's rights, and this law will be
gender-friendly. Adding the witness clause will also protect women's rights, mainly because
everyone knows that in Bangladesh, most of the time, women are declined their right to dower.

Maintenance: Maintenance is one of the most important obligations for the husband after
marriage. The husband is bound to pay maintenance to his wife once the marriage is solemnized.
There are several provisions available in the statutory laws of Bangladesh regarding maintenance.
Section 9 of the Muslim family law ordinance directed the husband to pay maintenance to her
wife. If the husband fails to provide maintenance to his wife, the wife may raise the issue to the
14
arbitration council, which the chairman will constitute. The council will issue a certificate
specifying the amount paid as maintenance by the husband if the wife can prove that the husband
did not provide her maintenance properly under section 9 of this ordinance.

Moreover, In the dissolution of the Muslim marriages act of 1939 provide grounds for the
dissolution of marriage regarding maintenance. Under section 2(ii) of this act, if the husband fails
to provide maintenance for two years, the wife can dissolve the marriage under this provision. The
main issue to discuss in this situation is why the wife must wait for two years. Why can’t she
dissolve the marriage before that? Why is the time specified for dissolution two years? Why not
six months or one year? This study does not find any reasonable cause regarding this specified
period. In the socio-economic context of Bangladesh, this law is not pro-women. It is difficult for
a woman in Bangladesh to wait that long for dissolution and live without maintenance because
women in Bangladesh do not get the opportunity to earn like a man.

For this reason, Bangladesh needs to reform the law and include a shorter period that will be
woman-friendly. In the stipulations column of the kabinnama, Bangladesh can add clauses like
payment of maintenance and consequence regarding non-payment of maintenance for a certain
period.

Nevertheless, In the present world, it is difficult for a husband to provide all the maintenance of
his family. The living cost is increasing daily, and it is impossible to carry all the costs and

14
The Muslim Family Law Ordinance 1961, s 9

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maintenance for family & wife by one person. That is why some reformation is required. Though
countries like Bangladesh are not ready to accept these types of reformation, a step from the
government will bring significant change in the family law of Bangladesh. This study suggests
that maintenance should be a mutual obligation for both husband & wife in certain areas.
Maintenance is a liability for a husband, but for the best interest of the child & family, a wife also
needs to contribute. Bangladesh can enact laws where that will mention some mutual obligation
regarding maintenance. For the betterment of the children & family, a wife is also bound to
contribute her earnings to the family. Though it is not mentioned in the sharia that the wife is
bound to contribute, the progressive interpretation of the spirit of sharia indicates this situation.

Dissolution of Marriage: Under section 7 of the Muslim family law ordinance, 1961, a husband
is bound to provide a notice to the chairman & a copy of the notice to his wife after pronouncing
talaq. If he fails to do this without reasonable grounds, he will face punishment under this law.
However, section 8 of this law inserts provisions regarding the divorce by the wife. However, if
the wife wants to divorce her husband apart from talaq-i-tawfid, then three options are available.
Those options are Fask, Khul & Judicial Khul.

In Flask, the wife can dissolve the marriage on particular grounds. For example, if the husband
tortures her or forces her to lead an immoral life, then she can apply to the court for dissolution of
the marriage. Section 2 of the dissolution of Muslim marriages act, 1939 describes some grounds
regarding the dissolution of marriage by a wife in Bangladesh. Moreover, Khul is a kind of mutual
divorce where the wife will request her husband to grant the divorce in exchange for compensation.
Simply the basic principle is that wife will pay her husband for divorce. Sadly, there are no specific
provisions regarding khul in Bangladesh. So, sharia policy will be applicable in Bangladesh
regarding Khul according to section 2 of the Muslim personal law Shariat application act, 1937.
However, modern Muslim countries significantly changed their laws regarding khul. They
recognized the khul with compensation in Morocco, but contravention of count is required to
complete the khul.

On the other hand, under Egyptian law, compensation is no condition for khul15; Khul will be
effective with or without compensation. Bangladesh needs major reformation about Khul.

15
Ibid (n 4), p. 330

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Provisions regarding khul are necessary for Bangladesh to resolve the complexity regarding the
dissolution of marriage.

There is another ground which is judicial khul. It is similar to the Flask. In judicial khul, if the
husband denies granting khul to his wife, then the wife can apply in court for dissolution of
marriage. There is no specific ground available for judicial khul. The court will determine the
situation and order to dissolute the marriage. Sharia generally discourages divorce, but if any
situation arises where husband & wife will cross the limit of Allah if they live together, then the
court will grant a dissolution of marriage.

In Bangladesh, judicial khul was established by the case of Captain Shamsul Alam Chowdhury V.
Sheerin Alam Chowdhury16. In this case, the husband & wife have been living separately for two
years, and by analyzing the fact, the court stated that by living separately, they are crossing the
limits of Allah. In this case, the HCD ordered the marriage's dissolution on this ground. This is the
only judgment available regarding judicial khul in Bangladesh. Though modern countries have
reformed their family laws and included judicial khul, Bangladesh still needs to take steps. For
example, there is no scope for extra judicial khul in Egypt 17. So, Bangladesh must enact some
gender-friendly laws regarding khul & judicial khul for quicker solutions regarding the dispute
related to the dissolution of marriage.

Guardianship: There are no statutory provisions available in the Muslim family laws of
Bangladesh regarding guardianship & custody. For that, section 2 of the Muslim personal law
(Shariat) application act, 1937, is applicable in Bangladesh in the issues of guardianship & custody.
However, it is known by everyone that the father is the natural guardian of a child. A mother can
take custody of her child through litigation. A mother can also get custody of her child by using
the principle of the child's best interest. On specific grounds, a mother can lose her custody. Those
are marriage with a stranger & leading a sinful life18. Here, the matter of discussion is that a mother
can lose her custody because of her immoral life, but in the father's case, there is no mention of
this ground. However, progressive interpretation of sharia indicated that the immoral life of a
father would be a ground for losing custody under the principle of the child's best interest.

16
[1995], 24 CLC (HCD)
17
Ibid (n 4), p. 357
18
Ibid, p. 403

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Bangladesh needs to enact gender-friendly laws regarding guardianship to remove ambiguity.
Bangladesh can take inspiration from the modern Muslim world for drafting a better gender-
friendly law on this issue.

Findings & recommendations: This study found that there are no reasonable explanations
available regarding the age limit for marriage fixed by the statutory provisions of Bangladesh. In
marriage registration cases, the existing laws only imposed liability upon the bridegroom, which
is not a gender-friendly approach. However, The statutory laws of Bangladesh recognize the option
of puberty for a woman, but they fail to insert any provision regarding the option of puberty for
Males. However, sharia grants the right of option of puberty for both males & females. There are
also no specific provisions available in Bangladesh regarding the rights & duties of husband &
wife. Modern countries worldwide enact laws that remove the concept of individual rights and
obligations and present the concept of mutual rights & obligations for husband & wife.

Nevertheless, Bangladesh should have adopted these beautiful provisions like other countries.
There are also no specific provisions regarding marriage stipulations, which complicates many
situations in Bangladesh. Many countries create scopes in their laws about the stipulations in a
marriage to protect the rights of husband & wife. Bangladesh failed to take any steps like this, but
in the marriage deed of Bangladesh, there are specific columns available for the stipulation.
Nevertheless, In practice, people do not use those columns properly, and most people do not know
clearly about those columns. The same thing goes for dower & maintenance.

Though there are provisions available regarding maintenance in Bangladesh. Due to the socio-
economic condition of the contemporary world, this study suggests that in some instances,
maintenance should be a mutual obligation for husband & wife. Regarding the dower, there are no
provisions available about the mode & time for payment of the dower. Lastly, regarding the
dissolution of marriage by wife, there are no specific provisions available about khul & judicial
khul.

This study recommends that Bangladesh needs significant reformation in its Muslim family laws.
Most of the provisions available in Bangladesh are ambiguous and discriminatory. Modern Muslim
countries continuously reform their laws regarding family issues, but Bangladesh is only reliable
on discriminatory & ambiguous laws. Muslim countries worldwide addressed every single issue

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related to family law in their reformed laws. This study recommends that Bangladesh address the
anomaly mentioned in this study and enact some gender-friendly & pro-woman laws.

Conclusion: The primary purpose of the reformation of law is to protect the rights of the people.
Complete family law is essential for each country for more accessible settlement of disputes.
Muslim countries like Jordan, Morocco, Tunisia, and Egypt made significant changes in their
family laws, and they enacted the laws by considering the rights of both males & females. In
Bangladesh, most statutory laws about Muslim family matters are discriminatory. A complete
reformation is so much needed in the present scenario of Bangladesh.

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 Bibliography

Statue

1. The Muslim Personal Law (Shariat) Application Act 1937, s 2

2. The Child Marriage Restraint Act 2017, s 2
3. The Dissolution of Muslim Marriages Act 1939, s 2 (ii), (vii)
4. The Muslim Family Law Ordinance 1961, s 2(b), 7, 8, 9
5. The Mudawana 2004, s 4
6. The Muslim Marriage and Divorces (registration) act 1974, s 5(2)

Case Laws

1. Abdul Kadir v. Salima [1886] 8 All 149

2. Mst. Khurshid Bibi v. Babu Muhammad Amin [1967] 47 (Sc) PLD
3. Abdur Rakib (Md Shahin) v. Shertaj Khatun and another 2008, 37 CLC (AD) [2749]; 13
BLC (AD) (2008) 137
4. Captain Shamsul Alam Chowdhury V. Sheerin Alam Chowdhury [1995], 24 CLC (HCD)

Book

1. Dr Mohammad Ekramul Haque, Muslim Family Law: Sharia and Modern World (London
College of Legal Studies , Dhaka, Bangladesh, 2015)

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