The final report of the Law Commission on Hindu Family Law Reform Recommendations has been prepared. The report submitted by the Law Commission recommending the reform of Hindu family law states that Hindu family law refers to the religious law followed by Hindus regarding marriage, maintenance and marital relations and other matters, inheritance, legacy, will, adoption, custody and guardianship of minors. Hindu law in this subcontinent has been changed more than once by the legislature during British rule. All those state laws are now part of Hindu law. Family law needs to be reformed because of the changing needs of society and the universal concept of human rights. With this goal in mind, the Law Commission’s bi-annual work plan for 2010-2011 included the review of family law. As part of this, research work on Hindu family law began.
The basis of Hindu law, the divine word of the Vedic age (Shruti or Veda) as the official source of Hindu law later took shape in material sources such as memories, comments, customs, judicial decisions and written law. However, in the context of the changing material conditions of life, society and nature, there are also differences in the interpretation of the divine word in the writings of mentors, elders and scholars.
The development of Hindu law started in the period of British India. Hindu law did not change much in the early part of the colonial period. Because the rulers were interested in enacting specific civil, criminal, and commercial laws for the benefit of the people to facilitate their state governance. Later, on the initiative of scholars like Raja Rammohun Roy, Swami Vivekananda, Ishwar Chandra Vidyasagar, some landmark laws were enacted such as the ban on Satidah custom and the provision of widow marriage.
Due to the religious and legal complexities in the subcontinent, many have been opposed to the attempt to formalise Hindu law. Rmotion has done more to favour this opposition than reason. Later, the Hindu Law Committee was formed under the chairmanship of Sir Benegal Nursing Rao to investigate and report on the various problems of Hindu law to formalise it in 1941. The main objective of this committee was to draft a uniform code of Hindu law and present it in the form of a bill by combining the progressive elements of Hindu law prevalent among Hindus of different faiths in different parts of India and the conflicting judgments of different courts on the same subject.
Due to the partition of the country in 1947, all those laws were not applicable in Bangladesh. Although Hindu law was radically reformed in India, Hindu family law was not reformed in East Pakistan and later in present-day Bangladesh. There are other states, social and psychological reasons behind this besides the religious point of view. In short, after British India, the path of development of Hindu law in Bangladesh has been blocked. Among the state laws that reformed some of the prevailing practices of Hindu law during British rule is the one that exists in present-day Bangladesh.
A coalition called ‘Citizens’ Initiative to enact Hindu law’ enacted a draft Hindu Inheritance Act. It speaks of the equal rights of men, women and transgenders in the property as an inheritance
According to the prevailing Hindu inheritance law, in many cases, women do not get a share of the property of their parents and husbands and even if they do get some share, it is not equal to the male members of the family. In this situation, the final report of the Law Commission has been prepared on the recommendation of Hindu family law reform to ensure equal rights of Hindu women and men in the property. The final report submitted by the Law Commission recommending the reform of Hindu family law states that Hindu family law refers to the religious law followed by Hindus regarding marriage, maintenance and marital relations and other matters, inheritance, legacy, will, adoption, custody and guardianship of minors. Hindu law in this subcontinent has been changed and refined more than once by the legislature during British rule. All those state laws are now part of Hindu law.
Considering the discriminatory status of Hindu women, prime minister Sheikh Hasina on 26 April 2018 called upon the leaders of Hindu religions to take initiative to enact the Hindu Inheritance Act. Following this, a coalition called ‘Citizens’ Initiative to enact Hindu law’ enacted a draft Hindu Inheritance Act. It speaks of the equal rights of men, women and transgenders in the property as an inheritance. However, it has been clearly stated that one’s own acquired property will be entirely his or her property and some persons will not be eligible to inherit the property.
Under current Hindu inheritance law, daughters do not inherit property if they have a son. However, if there is no son, the daughters who have a son will get a share of the property of the deceased parents. However, the male members of her family get a share of the property acquired by the woman.
According to Articles 27 and 28 of the Constitution of Bangladesh (1972), all citizens are equal before the law and equal rights of men and women are enshrined in every aspect of the state. In addition, the Government of Bangladesh signed the Convention on the Elimination of All Forms of Discrimination against Women in 1979. Bangladesh ratified CEDAW in 1984 but with reservations on articles 2, 13(a), 16.1(c) and 16.1(f). In justification, the government cited “conflict with Sharia law based on Holy Quran and Sunnah.” The conflict, however, was not specified and does not account for the fact that around 10 percent of the country is non-Muslim to which Sharia law does not even apply. CEDAW called for the elimination of discrimination in all areas of women’s rights, enjoyment and practice. But due to the lack of equal rights in the property, Hindu women are being deprived, discriminated and tortured in various ways.
It is not correct that if Hindu women are given property rights, forced conversions will increase. The Government of Bangladesh did not adopt the Religious Freedom Act in the Bangladesh Laws Revision and Declaration Act, 1973. Therefore, according to the existing law, Hindu men and women will lose their property rights if they convert to any other religion. There does not impede the enactment of this law to establish the rights of Hindu women. However, the government can’t enact this law on its initiative. For this, it is necessary to be vocal about the demands of Hindu society. Some leaders obstruct the property rights of Hindu women. However, it should be kept in mind that the leaders are the main driving force of this religion. Whether women will get property or not if they convert, should be resolved in the draft law.
The main goal of SDGs is to ‘Leave No One Behind’, (LNOB) achieve SDGs by 2030 and by 2041 Bangladesh will become a prosperous country. Why are Hindu women will be deprived of their equal rights there? Now, all concerned need to work more intensively on this issue.
Everyone must be ensured to protect the rights of Hindu women. Now is not the time to look back. In this country, human rights and the constitution are spoken of. Then equal rights must be established. If women are not given rights, they will not have equal rights and dignity. The Hindu religion is a modern and progressive religion that has been going on since the time of Hinduism. There are fears of being converted. But it has provisions. Therefore, this law should be passed in the parliament soon. But everyone has to know and inform the issues of law. This law needs to be discussed with everyone. The law has to be passed keeping in view the provision that Hindu men and women will lose their right to inherit property if they convert. On the advice of lawyers, if you convert to that law, you will lose your wealth. If such rules can be kept, then the common fear will be removed.
Hindu women in Bangladesh get nothing in inheritance property. In neighboring India, Hindu women have been given equal rights in property by law. This law should be in Bangladesh too so that Hindu women are no longer deprived. In a Hindu family in Bangladesh, the same offspring boys get wealth, while girls do not. Girls do not get paternal and husband property. This should be the immediate solution. Although Hindu women’s rights to property should be established, many are silent about giving this right. They do not want to support it mentally. This law needs to be passed immediately in Bangladesh to establish democratic and institutional rights.
The state and the constitution have given this right to women. After giving birth to a woman, she is gradually explained that her rights are less than those of her brother. Why will all women of Bangladesh not get their rights even after 50 years of independence? Equal property rights is the demand of the time. In Bangladesh, Hindu women do not have the right to divorce, have the opportunity to remarry, do not have the opportunity to adopt children. There is inequality in all this. In the case of inheritance law, a uniform civil law is needed to eliminate discrimination against all women in the country, not just Hindu women. The principle of equal rights is the principle of human rights, the principle of women’s rights, it is also in the constitution. Everywhere there is talk of equal rights for women. So, the law has to be passed for Hindu women with equal rights in inheritance.
In the modern world, state laws have been enacted to register marriages to preserve documentary evidence of marriage. Marriage registration in no way diminishes the religious character of Hindu marriages. Regardless of the customary rules of marriage, if the rules of registration are fixed within a specified period and the addition of the condition that no marriage will be deemed invalid due to non-registration will not affect the customary Hindu law relating to marriage. The argument against registration is that Hindu marriage is part of religious observance and registration is unnecessary as it is not a contract. Moreover, if the registration process is introduced, Hindus will be inclined towards unscriptural marriages by omitting formalities. Marriage is not being prohibited in the scriptures by registration. Moreover, the benefits of registration are multifaceted.
Having a registration will make it easier to prove a marriage in a court of law. The role of marriage registration in preventing foreign travel and polygamy is undeniable. Due to lack of registration or documentary evidence of marriage, Hindu men go to work in different places and have multiple marriages and also refuse marriages. Now people are willing to register their marriage. The biggest controversy over Hindu law reform has been over women’s rights to property. According to the prevailing Hindu liability law in Bangladesh, the 5 female heirs recognized are widow, daughter, mother, father’s mother, grandfather’s mother. Under certain conditions, they get the right to enjoy the property. Such property is known as a right although others other than widows can get this right.
In case of fear of conversion of women, it can be said that The Caste Disabilities Removal Act 1850, also known as The Freedom of Religion Act, is not applicable in Bangladesh. Because this law has been repealed by The Bangladesh Laws 1973. In the absence of this law, anyone who converts will be deprived of property according to the prevailing principles of Hinduism. Thus, the fear that people of other religions will be tempted to convert Hindu women in the lure of property is baseless.
Although the government has taken several steps to enact the Compensation of Property Act in 2000 and amend it in 2011, there are still fears among the Hindu community that the creation of the list could create new opportunities for Hindu property to be re-listed as vested, although the amended law has become more acceptable. Many Hindu organizations are waging a massive campaign saying that Hindu women do not want this reform and this is a decision imposed by NGOs. Some people think that it is not right to reform family law without taking security measures for minorities. First of all, it can be said that those who are opposed have more chances to influence in different forums. On the other hand, although a large number of women and men are in favor of reform (field-level research of law commission, research of various non-governmental organizations, various seminars, information obtained from FGD), they are not able to express their views strongly. Women, especially victims of violence or helplessness, are often unable to present their cases to public representatives. Concerns about the return of vested property law cannot be commented on right now. Because this law has the opportunity to remove from the list that the real owners can accept.
Based on the percentage of Hindus who have been deprived of the benefits of this law or why they have been deprived, it may be possible to determine how effective the law has been in the future. The argument that family law cannot be amended without providing security for minorities is also weak. It is not reasonable for human rights to continue to be violated by any provision of family law unless so-called security is provided. Rather, the issues need to be considered as a whole. This argument that Hindu law is unchallengeable from a religious point of view is also not acceptable. Because in the journey of the origin and evolution of Hindu law we have seen how some Hindu laws have changed with the times. Its reform has even been completed by state law.
The reforms of neighboring India can be reviewed. In neighboring India, Hindu law has been extensively reformed. The question may be, is there any rationale to take the example of the neighboring country? During British rule, Bangladesh and India were covered by the same law. The two states have a lot in common in socio-economic and state life. The biggest issue is the Hindu inhabited areas of India. The traditional law of ancient times was also applied in this region. In the light of the sweeping reforms of Hindu law in India since 1947, there has been a demand from the general public for the reform of the country’s customary law.
The complete reform of Hindu law in India came after the independence of India. After the enactment of the Indian Constitution in 1951, the Hindu Code Bill was widely criticized for reforming Hindu law. The new law seeks to harmonize the progressive principles of different doctrines prevalent in different parts of India and to bridge the gap between the conflicting prohibitions of different courts. On this basis, important laws in India are passed. Bangladesh should do exactly what is demanded now. Because Bangladesh also has to establish equality in time and everyone has to come forward to establish the property and inheritance of Hindu women. This is the demand of time now.
* Hiren Pandit is a researcher and columnist