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Bangladesh

Права, закрепленные в Конституции

 The Constitution, adopted in 1972, last amended in 2011:

- Article 7(2): The Constitution is the solemn law of the Republic and any other law that is inconsistent shall become void.

- Article 9: the Constitution encourages special representation of women, as far as possible in local government institutions.

- Article 10: appropriate steps must be taken to promote the participation of women in all sphere of national life

- Articles 26(1) and 26(2) declare that the existing laws, which are inconsistent with the provisions of the Constitution dealing with Fundamental Rights, shall be void.

- Article 27: “All citizens are equal before law and are entitled to equal protection of law”.

- Article 28(1): The State shall not discriminate against any citizen on ground of sex.

- Article 28(2): Women are granted women equal rights with men “in all spheres of the State and of public life”.

- Article 28(3): There shall be no discrimination on grounds of religion, race, caste, sex or place of birth in providing access to any place of public entertainment or resort, or admission to any educational institution.

- Article 28(4): The State can make “special provisions in favour of women or children or for the advancement of any backward section of citizens”.

- Article 42(1): “Every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property”.

- Article 13: The people shall own or control the instruments and means of production and distribution; to this end, ownership shall assume the following forms:

  • state ownership, that is ownership by the State on behalf of the people “through the creation of an efficient and dynamic nationalised public sector embracing the key sectors of the economy”;
  • co-operative ownership, that is ownership by co-operatives on behalf of their members, within the limits that may be prescribed by law; 
  • private ownership, that is ownership by individuals, within the limits that may be prescribed by law (16).

- Article 152 provides a definition of the word "law" which means any Act, ordinance, order rule, regulation, bye-law, notification or other legal instrument, and any custom or usage, having the force of law in Bangladesh

Права собственности и пользования женщин, закрепленные в Гражданском кодексе, Трудовом кодексе и Семейном кодексе

Since its independence in 1971, Bangladesh has undertaken significant legal reforms, including on matters related to women’s rights and protection against violence within the family. However, matters such as marriage, divorce, and economic rights have remained largely untouched (30).

With the 1972 Constitution, the country endorsed Personal Laws in force during the British colonial regime. Under these laws, the principal religious communities were at liberty to uphold their personal laws. As a result, followers of different faiths fall under different provisions that are incorporated into the statutory laws (1). The laws are supplemented by authoritative decisions issued by the Supreme Court of Bangladesh and the High Court Division of the Supreme Court of Bangladesh (30).

According to the 2001 census the large majority (89.7 percent) of Bangladesh is Muslim.

Hindus constitute about 9.2 percent, Buddhists 0.7 percent, and Christians 0.3 percent of the population (30).

In Bangladesh there are four sets of civil laws that relate to family matters:

-  the Special Marriage Act (applies only to those who renounce their religion)

-  the Child Marriage Restraint Act

-  the Guardian and the Wards Act

-  the Family Courts Ordinance

All these laws discriminate against women in marriage, separation, maintenance (30) and child custody. 

Muslim Personal Laws:

- Marriage is a contract between two individuals and requires the consent of both partners in the presence of two witnesses to be valid. Every solemnised marriage must also be registered.

- If a girl is married by her parents during infancy, on attaining puberty, she can endorse or dissolve the marriage.

- Divorce can be obtained in any of the following ways: 

> mutual consent of the husband and the wife without court intervention; 

> a judicial decree on request of the wife on one or more grounds specified in the Dissolution of Muslim Marriage Act 1939 and the Muslim Family Law’s Ordinance 1961; 

> divorce by the husband at will.

The right to divorce at will is not enjoyed by a Muslim wife unless her husband confers this right on her in the marriage deed - kabin - registered by the Muslim Marriage Registrar. However, the wife can obtain a divorce through a court decree.

- The mother is never entitled to guardianship of her children. Guardianship rests with the father and, after him, with his father and brothers. However, the mother is entitled to the care and custody of her sons until they are seven years old and of her daughters till puberty.

- A Muslim mother is entitled to maintenance from her son if he is solvent financially (4).

The Muslim Family Laws Amendment Ordinance, 1961:

- Forbids a man to contract a marriage during the subsistence of an existing marriage without the prior permission in writing of the Arbitration Council and the wife/wives. The punishment for infringing the law consists in the immediate payment of the entire dower - mahr – which is a fixed sum of money to be paid to the wife. The punishment also includes imprisonment up to one year or a fine or both.

- The Ordinance modified the right of talak, where a man may irrevocably and immediately dissolve a marriage by pronouncing the intention in front of witnesses. Under the new procedure, talak does not become effective immediately. A period of 90 days must intervene between the date of serving the notice to the Union Parishad chairman, the lowest tier of the local government system, and the date when the divorce becomes effective (4).

The Muslim Marriage and Divorce Registration Act, 1974

- Registration of marriage is mandatory. This ordinance empowers the local councils to issue licenses for marriage registration to one or more persons, known as Nikah Registrar. Whoever contravenes the provisions shall be punishable with simple imprisonment for a period not exceeding three months or with fine or with both.

Upon application, a Nikah Registrar may also register a divorce taken place under his jurisdiction (4).

The Family Courts Ordinance, 1984:

- Amended the procedures regarding maintenance, divorce, dowry, inheritance, and restitution of conjugal rights among the Muslims (1).

Hindu Personal Laws:

- The woman’s consent to marriage is not required, nor is divorce possible; and unrestricted polygamy is allowed.

- The father is always the preferred guardian of his children; the mother can be the guardian, but her rights are inferior to those of the father (4).

- In May 2012, the cabinet approved a bill for optional registration of Hindu marriages 

Christian Personal Laws:

- The grounds for divorce are more restrictive for women than for men: whereas the husband can simply allege that his wife has committed adultery, the wife must prove adultery plus one other fact such as conversion to another religion, bigamy, rape, sodomy, bestiality, desertion for two years, or cruelty (30).

- Alimony after divorce is tied to the woman’s chastity.

The Child Marriage Restraint Amendment Ordinance, 1984:

- Fixed the minimum age for marriage at 18 for women and 21 years for men (4).

The Dowry Prohibition Act, 1980:

- Provides that giving or taking/demanding of dowry is an offence punishable with imprisonment and/or fine (4).

The Citizenship Act, 1951:

- A person can inherit citizenship only from the father but not from the mother. Also, the spouse of a Bangladeshi man may receive citizenship but the contrary is not allowed (17).

- Except for inheritance, all other matters concerning property are governed by civil law. Women can administer property and execute or administrate estates. Women have the right to make contracts, including those related to credit, real estate and other property as well as other commercial transactions (17).

The Contract Law, 1972

- Provides both women and men with the right to make contracts, including those related to credit, real estate and other property as well as other commercial transactions, in their own names (17).

Наследование/ правовые механизмы

- Under Muslim law, the wife inherits a fixed share of one-eighth of the deceased husband’s estate if he leaves children, whereas the husband receives one fourth of his deceased wife’s property. If he does not leave any children, then the wife inherits a quarter of the husband’s estate. A daughter, who is an only child, inherits half the estate of her late father or mother. If there is more than one daughter and no son, then the daughters jointly inherit two-thirds of the estate. However, if there is a son or sons, then the daughter’s or each of the daughters share will be equal to half of the son’s or half of each of the son’s share. In all cases, men inherit more than the women do (18).

- According to Hindu Personal Laws, not all daughters of a man are equally eligible to inherit. Unmarried daughters and married daughters with sons can inherit. Married daughters beyond child-bearing age and widows without sons cannot inherit (4).

The Hindu Women’s Right to Property Act, 1937

- A widow, or all widows in a polygamous marriage, inherits the same share as a son (18).

The Christians Succession Act, 1925

- Provides equal inheritance between sons and daughters (18).

Законодательство о земле

The State Acquisition and Tenancy Act, 1950:

- Promotes the goal of retaining the agricultural character of land by giving cultivators first right of purchase and prohibiting other use. A land ceiling of 33.3 acres is imposed (19).

- Abolished the zamindari system and provided for the acquisition on the part of the Government of all types of intermediary rent-receiving interests that existed between the Government and the tenants cultivating the land. The act brought the tenants directly under the control of the Government (4).

The Land Holding Limitation Order, 1972, amended in 1982:

- Deals with the limitation of land property, the size of which must not exceed 100 bighas - about 33 acres - if the land is owned by families or individuals. The exceeding land must be returned to the Government. An exemption can be applied in case of land owned by religious organization, farmers’ cooperatives or if tea, rubber, cocoa or coffee are being cultivated on that land; or when the land is being taken in account for industrial projects, considered beneficial to the public interest (20).

The Land Reform Ordinance, 1984:

- Legally recognises the share-cropper rights; additionally, share-cropping - called barga - is established as the only admissible form of tenancy contract (18).

- The bargadar shall lose his right of land use in case:

-   he fails to cultivate the assigned barga land

-   he has produced less than the expected average compared to other barga cultivations for that area

-   he has used partially or totally the land for purposes other than agricultural production

-   he has renounced his right of cultivation

-   he is not directly tending the barga land; vi. if the barga’s owner reclaims the land for tending it himself.

If the owner fails in tending the land or in assigning it to other bargadars on the termination of the barga contract, the competent authority may restore the land lease to the former evicted bargadar who claimed such right.

- Article 12 provides for the division of the produce between the owner and the bargadar (20).

- Future land acquisitions are limited to 21 acres while retaining present ceilings. Benami, that is, ceiling avoiding transfers to relatives, are outlawed (19).

- Eviction of agricultural tenants from their homestead land is prohibited (4).

The Acquisition and Requisition of Immovable Property Ordinance, 1982:

- After issue of notice of intent of acquisition of private/government land in the public interest, the district officer will determine the compensation on the basis of the average market value for the last one year of similar type of land in the vicinity and offer the same, plus 50 percent, to the landowner as compensation. The entire amount must be awarded in full before land can be legally acquired and handed over to the distric officer.

- The use of acquired land for a purpose other than that for which it was acquired is prohibited (21).

The Land Appeal Board Act No. 24 of 1989, amended in 1990:

- The Land Appeal Board under the Ministry of Land is established as the highest revenue court in matters of land (20).

The Land Reform Board Act, 1989:

- A Land Reform Board is established to determine the implementation of the land reform program and a just land legislation. The Board shall exercise the powers and responsibilities given by the Government related to land reform and land legislation (20).

The Chota Nagpur Tenancy Act, 1908:

- Prohibits transfer of tribal land to non-tribals without the permission of the deputy commissioner. 

In 1977, the Tribal Welfare Association (TWA) was instituted in the northern districts to work for the rights of tribal people in the Mymensingh, Sylhet and Dhaka regions. Permission from the TWA is required to sell tribal land to non-tribals (4).

The following acts provide for the rights of different hills tribes and for the development of the three districts of Chittagong Hill Tracts: 

-   the Rangamati Hill District Local Government Parishad Act of 1989

-   the Khagrachhari Hill District Local Government Parishad Act of 1989

-   the Bandarban Hill District Local Government Parishad Act of 1989 

The language, sections, and contents of these acts are identical. The acts were amended in 1998 (4).

Меры в области политики/правовые механизмы, реализующие или препятствующие реализации земельных прав женщин

 In 2011, Bangladesh ranked 81 out of 83 non-OECD countries based on women’s access to land, credit, non-land property, and inheritance practices (30).

In 1997, the Government passed the Local Government Election Act, which reserves a quota of seats to women in union councils, to ensure women’s political participation at the grassroots level (17).

Under the 1987 Land Reforms Action Programme (LRAP), the Land Ministry Department set up the Coordination Council for Land Reform, which comprised staff from various non-governmental organizations (NGOs), keen on agrarian reform issues. NGOs also contributed in the implementation phase of the LRAP (14). However, in general, only 40 percent of the available land was distributed. The LRAP gradually lost its momentum due to the difficulty in identifying suitable public land, the lack of reliable maps, the large amount of corrupted land deeds and the low level of technical support and capacity (14).

The 1995-2010 Draft Participatory Perspective Plan has the goal of eliminating all forms of discrimination against women by empowering women and men as equal partners, in the access to all forms of productive activities and resources (22).

The 1997-2002 Fifth Five Year Plan for rural development included  among its targets: the reduction of poverty in rural areas; the creation of  employment for the rural population; the development of rural infrastructures; the advancement of small and landless farmers. Most of these objectives were women-friendly and included the extension of credit facilities to them (17).

The Rural Development Policy, contained in the 1997-2002 Fifth Five Plan, aimed at  reducing the gender gap through the empowerment of the rural population, the provision of rural micro credit and capacity development activities targeted at women (17).

The 2007 National Agriculture Policy draft has the goal of providing rural women with capacity building programmes as well as access to agricultural inputs, credit training and information. However, the policy makes no reference to increasing women access to land (23).

The Bangladesh Rural Development Board Ordinance of 1982 instituted the Bangladesh Rural Development Board to promote the creation of cooperatives in rural areas and also help them in getting familiar with financial procedures designed to ensure cooperatives’ members with shares and savings (20).

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