The Effects of Patriarchy on Women’s Rights in the Context of Bangladesh: A Socio-legal Analysis
Introduction
When we think of women taking power as Queens or Prime Ministers and having constitutional authority, we imagine a portrayal of women empowerment, emancipation and what not. But is it the actual case? Does some advancement really prove that our female counterparts are not subordinated anymore? The answers are right before our eyes, our maids are working for a bare minimum wage to support their families, their abusive husbands are forcibly expropriating that income, or our mothers are balancing both home-making and child rearing from dawn to dusk, 365 days a year, without even expecting any payment in the first place. This social structure and practices, known as patriarchy, has a substantial base enabling men to exercise dominance, oppression and exploitation[1] over women.[2] In Bangladeshi context, patriarchy is a dissemination of resources and power within families where men retain power and regulate resources, while women remain reliant on men.[3] Patriarchy affects women’s rights with the culturally contravening views, absence of good governance as well as with various other socio-economic factors,[4] paralysing their advancement in the society.[5] This paper aims to dig deeper into the theory of patriarchy and see how, in practical lives, patriarchy affects women’s rights by controlling the legal system of our country.
Persistence of Patriarchy in Bangladeshi Society
In its literal meaning, the word ‘patriarchy’ is referred to a male-dominated family, but today the connotation is used to depict a societal system where women are treated as subordinate[6] and inferior[7] to men. In our country, manifestation of patriarchy can be seen in division of labour by sex,[8] market segregation,[9] capital accumulation,[10] patrilocal marriage,[11] restriction on female movement[12] in disguise of ensuring modesty[13] and misinterpretation of religion to hinder their opportunities.[14] It takes two defining forms.[15] In private patriarchy, individual patriarchs expropriate women’s labour while not acknowledging their unpaid work at home.[16] In public patriarchy, women are excluded from political and economic power while being subject to sexual harassment and discrimination.[17]
Walby distinguishes six structures that constitute a patriarchal system.[18] Firstly, the patriarch expropriates women’s labour within the household and marital relationship.[19] Secondly, occupational segregation in terms of paid work,[20] which can be seen in the wage gap[21] and less skilled[22] work of women in the garments sector. Thirdly, lack of women’s power in different sectors of the patriarchal state.[23] Moreover, male violence[24] as a common[25] and normal male behavioural pattern[26] and patriarchal control in female sexuality[27] by child marriage and tradition of Purdah.[28] Last but not the least, patriarchal culture[29] comprising of a varied set of practices, including religion and educational system.[30]
Starting as early as the birth of a daughter where she is considered as a burden of the family,[31] patriarchy spreads its branches of malice in every aspect of women’s lives, where her rights are affected by the discriminatory laws of the country which I will address below.
Civil Law
Whenever we think of law regarding women’s rights, the first thing that will come into our mind is citizenship since the domestic laws predominantly deal with the citizens of Bangladesh. A child will be granted Bangladeshi citizenship if his father[32] or grandfather[33] is a Bangladeshi citizen. However, a Bangladeshi woman cannot confer citizenship to her children even though this is inconsistent with the Constitutional provisions ensuring equality among sexes.[34] Hence, in case of a divorce between a Bangladeshi woman and her foreign husband, the Court will hand-over the children to their father even if they were born in Bangladesh,[35] disrupting the children’s best interest.[36] However, the Supreme Court refused to declare such provisions as invalid or discriminatory.[37]
In case of property rights and inheritance, Muslim family laws allow daughters only half the share each son receives[38] whereas a Hindu woman receives nothing.[39] Christian women, however, have equal property rights as their brothers.[40] In Muslim laws, although son’s sons and son’s daughters are considered as residuary and sharers respectively, daughter’s descendants are considered as distant kindreds,[41] curtailing their property rights. A widow of the predeceased son is perhaps the most discriminated since she will not inherit anything at all.[42] Only 4 out of 40 women obtain their actual proportions,[43] while a majority of them do not get anything at all.[44] Relinquishing the right of inheritance[45] is a common tendency to perpetuate favourable relation[46] with brothers and to gain support in case of widowhood or divorce,[47] indicating women’s dependence on men in the patriarchal society.[48]
Despite being a contract[49], marriage is treated as a religious ceremony[50] where the consent of the bride is often obtained through coercion[51] despite the Court ordering otherwise.[52] In Muslim marriages, a male witness is equivalent to two female witnesses,[53] whereas a Hindu woman cannot even be a witness.[54] Although Muslim men can marry either Muslim, Jewish or Christian women,[55] Muslim women cannot marry non-Muslim men.[56] Muslim men can simultaneously have four wives[57] and a fifth marriage will be rendered irregular but not void.[58] However, polygamy is not allowed for Muslim women and such marriages will be void.[59]
To rein in the unfettered and unilateral right of Muslim men to divorce, the Court[60] necessitates the husband to send a notice to the Chairman.[61] Discrimination prevails as Muslim women can have a delegated right to divorce which she can exercise upon establishing the conditions for such delegation.[62] [63] [64] Christian men can seek divorce on ground of adultery alone[65] and recover damages on his wife’s adultery.[66] However, husband’s adultery alone will not allow Christian women to seek divorce.[67] Hindu law allows unrestricted polygamy while making the brides’ consent futile and divorce impossible.[68] Guardianship of children is also entitled to the father in both Muslim and Hindu law, where the mother would have to go through expensive and lengthy litigation process to have custody.[69]
In the garments sector, 90% of the total workers are underprivileged[70] women,[71] who are constantly being victims of pay inequity.[72] A male garment worker’s monthly wage is 6,161 BDT, whereas a female worker gets 4,264 BDT per month.[73] They do not get their wages in time, which violates the labour law governing them.[74] Apart from being subject to sexual harassment,[75] female workers only perform the entry level jobs whereas the managerial positions are all occupied by men, prevailing patriarchy in the workplace.
Criminal Law
The most patriarchal aspect of criminal laws of Bangladesh is the inconsistencies of ages regarding marital rape. These age are 13[76] and 12[77] under the provisions of the Penal Code, 1860 and 14[78] under the Prevention of Oppression against Women and
Children Act, 2000. Since the minimum age for marriage is 18 for female,[79] the provisions of marital rape are pointless, unless there is the offence of child marriage in the first place. Moreover, the idea of marital rape is not familiar in this sub-continent[80] as it treated lightly as a forcible intercourse by the husband against the will of his wife,[81] protecting male interest.[82]
Speaking of child marriage, almost 50% of all girls marry before turning 18[83] and such marriages are not considered as void under the Act.[84] Moreover, the provision of ‘special circumstances’[85] legalises marriage of a minor, fuelling the widespread patriarchal practice of child marriage without setting any age limit whatsoever.
In the Court, the worst cases of exploiting women occurs when their characters are injured under the Evidence Act, 1872.[86] Section 155(4) does not provide any definition of immoral character and such loophole is being misused in every possible way to undermine rape victims.[87] Being divorced,[88] coming of a lower strata[89] [90] and working as a maid[91] are all argued as immoral character and the victims’ testimonies were rejected,[92] resulting in a plethora of miscarriage of justice, including the suicide of the victim in one case.[93]
Positive Reformations
Although it is clearly evident by now that a handful provisions of our domestic laws are discriminatory against women due to the constant strive to oppress and exploit them, there are some positive reformations too. Misusing character evidence of rape victims has been recognized,[94] asking the Courts to ensure that cross-examinations are not used as modes of harassment and humiliation.[95] The infamous ‘two finger test’ has been banned for being not scientific and unreliable.[96] A detailed definition of sexual harassment and 11 rules as guidelines were given[97] and ‘stalking’ was included as a form of sexual harassment.[98] The practice of hilla marriage[99] has been annulled to a significant extent.[100]
Conclusion
From this detailed socio-legal analysis, the picture that we can depict of patriarchal effects on women’s right in Bangladesh is grim. Dominance of men has been deeply rooted in the pursuit of material resourced, while being supported by interconnecting elements of societal norms, religious and legal systems.[101] The women’s rights movements in our country have been negatively empowered by the ideas, investments and influences of donor organisations.[102] Women’s rights organisations must perceive their own theories of emancipation and for Bangladeshi women, while not being the puppets of the donor agencies. Only then the women of Bangladesh would be able to resist patriarchy.[103]
[1] Sylvia Walby, ‘Theorising Patriarchy’ (1989) 23 Sociology 213.
[2] Mead Cain, Syeda Rokeya Khanam and Shamsun Nahar, ‘Class, Patriarchy, and Women’s Work in Bangladesh’ (1979) 5 Population and Development Review 405.
[3] ibid.
[4] Afroza Begum, ‘Protection of women’s rights in Bangladesh: a legal study in an international and comparative perspective’ [2004] University of Wollongong Thesis Collections.
[5] Abeda Sultana, ‘Patriarchy and Women’s Subordination: A Theoretical Analysis’ [2011] The Arts Faculty Journal 1.
[6] Kamla Bhasin, Understanding Gender (10th edn, Women Unlimited 2014) 22.
[7] Linda Y. C. Lim, Capitalism, Imperialism and Patriarcy: The Dilemma of Third-World Women Workers in Multinational Factories (2nd edn, Palgrave Macmillan, Zed Books Ltd) 215-230.
[8] Mead Cain, Syeda Rokeya Khanam and Shamsun Nahar, ‘Class, Patriarchy, and Women’s Work in Bangladesh’ (1979) 5 Population and Development Review 405.
[9] Heidi I. Hartmann [1981] The Unhappy Marriage of Marxism and Feminism: Towards a More Progressive Union 95-119. Rokeya Khanam and Shamsun Nahar, ‘Class, Patriarchy, and Women’s Work in Bangladesh’ (1979) 5 Population
[10] Maria Mies, Patriarchy and Accumulation on a World Scale Women in the International Division of Labour (2nd edn, London: Zed Books) 162.
[11] Mead T. Cain, ‘The household life cycle and economic mobility in rural Bangladesh’ (1978) 4 Population and Development Review 421.
[12] Tahrunnesa Ahmed Abdullah and Sondra Zeidenstein, Village Women of Bangladesh–prospects for Change (1st edn, Elmsford, N.Y.: Pergamon Press) 77.
[13] Hannah Papanek, ‘Purdah: Separate Worlds and Symbolic Shelter’ (2009) 15 Cambridge University Press 289.
[14] Benazir Bhutto, Daughter of the East (1st edn, London: Hamish Hamilton).
[15] Sylvia Walby, ‘Theorising Patriarchy’ (1989) 23 Sociology 213.
[16] Christine Delphy, ‘Close to Home: A Materialist Analysis of Women’s Oppression’ (1st edn, University of Massachusetts Press).
[17] ibid.
[18] Sylvia Walby, ‘Theorizing Patriarchy’ (1989) 23(213) Sociology .
[19] ibid.
[20] ibid.
[21] Linda Y. C. Lim, Capitalism, Imperialism and Patriarchy: The Dilemma of Third-World Women Workers in Multinational Factories (2nd edn, Palgrave Macmillan, Zed Books Ltd) 215-230.
[22] Anne Phillips and Barbara Taylor, ‘Sex and Skill: Notes towards a Feminist Economics’ (1980) 6 Feminist Review 79.
[23] Sylvia Walby, ‘Theorising Patriarchy’ (1989) 23 Sociology 213.
[24] ibid.
[25] Jalna Hanmer and Sheila Saunders, Well-Founded Fear: A Community Study of Violence to Women (1st edn, London: Hutchinson 1984) 252.
[26] Stevi Jackson, ‘The social context of rape: Sexual scripts and motivation’ (1978) 1 Women’s Studies International Quarterly 27.
[27] Sylvia Walby, ‘Theorising Patriarchy’ (1989) 23 Sociology 213.
[28] Sajeda Amin, Ian Diamond, Ruchira T. Naved and Margaret Newby ‘Transition to Adulthood of Female
Garment-factory Workers in Banglades’ (1998) 29 Studies in Family Planning 185.
[29] Sylvia Walby, ‘Theorising Patriarchy’ (1989) 23 Sociology 213.
[30] ibid.
[31] Abeda Sultana, ‘Patriarchy and Women’s Subordination: A Theoretical Analysis’ [2011] The Arts Faculty Journal 1.
[32] The Bangladesh Citizenship Act, 1950, s 5.
[33] The Bangladesh Citizenship (Temporary Provisions) Order, 1972, s 2(1).
[34] The Constitution of Bangladesh, art 28(1), 28(2).
[35] Sapana Pradhan – Malla and Phanindra Gautam, ‘Women’s Right to Nationality and Citizenship’ [2006] IWRAW Asia Pacific Occasional Papers Series No. 9.
[36] The UN Convention on the Rights of the Child, 1989, art 9.
[37] Malkani v. Bangladesh, Application for writ petition No. 3192 of 1992 (decided on 1 September 1997).
[38] Mead Cain, Syeda Rokeya Khanam and Shamsun Nahar, ‘Class, Patriarchy, and Women’s Work in Bangladesh’ (1979) 5 Population and Development Review 405.
[39] Abeda Sultana, ‘Patriarchy and Women’s Subordination: A Theoretical Analysis’ [2011] The Arts Faculty Journal 1.
[40] ibid.
[41] Sufia Ahmed and Jahanara Choudhyry, ‘Women’s Legal Status in Bangladesh’ [1979] Situation of Women in Bangladesh, Women for Women 295.
[42] Aqil Ahmad, Mohammedan Law (26th edn, Central Law Agency 2016) 252.
[43] M Sultana Alam, ‘Socio-Cultural Dimensions of Women’s Discriminations in Rural Communities’ (2010) 3(1) Ozean Journal of Social Sciences 31.
[44] Azizah Y. Al-Habri, ‘Muslim Women’s Rights in the Global Village: Challenges and Opportunities’ (2000) <https://www.semanticscholar.org/paper/Muslim-Women’s-Rights-in-the-Global-Village%3A-and-al-Hibri/53f9aede438ff4d302ab4799941e2a3438429022> accessed 26th July 2020.
[45]Raisul Islam Sourav, ‘Unjust Land Right of Women in Bangladesh, (2015) <https://www.semanticscholar.org/paper/Unjust-Land-Right-of-Women-in-Bangladesh-Sourav/750564602eab130cb240757d0d1b6ce66c0611cd?p2df> accessed 26th July 2020.
[46] Tahrunnesa Ahmed Abdullah and Sondra Zeidenstein, Village Women of Bangladesh–prospects for Change (1st edn, Elmsford, N.Y.: Pergamon Press) 77.
[47] Mead Cain, Syeda Rokeya Khanam and Shamsun Nahar, ‘Class, Patriarchy, and Women’s Work in Bangladesh’ (1979) 5 Population and Development Review 405.
[48] Mead T. Cain, ‘The household life cycle and economic mobility in rural Bangladesh’ (1978) 4 Population and Development Review 421.
[49] Mohammad Hidayatullah and Arshad Hidayatullah, Mulla’s Principles of Mahomedan Law (19th edn Lexis Nexis Butterworths Wadhwa Nagpur 2010) 282.
[50] Shoharat Singh v. Musammat Jafri Bibi, (1915) 17 BOMLR 13.
[51] Bangladesh Legal Aid Services Trust (BLAST), ‘Report on Legislative Initiatives and Reforms in the Family Laws’ <https://www.blast.org.bd/content/publications/Legislative_Inititiatives_Family_Law.pdf> accessed 26th July 2020.
[52] Dr. A.L.M. Abdullah v. Rokeya Khatoon, (1968) 31 DLR 213.
[53] Aqil Ahmad, Mohammedan Law (26th edn, Central Law Agency 2016) 252.
[54] Bangladesh Legal Aid Services Trust (BLAST), ‘Report on Legislative Initiatives and Reforms in the Family Laws’ <https://www.blast.org.bd/content/publications/Legislative_Inititiatives_Family_Law.pdf> accessed 26th July 2020.
[55] Abdul Razak v. Aga Mahomed Jaffer Bindanim, P.C. 1893.
[56] Aqil Ahmad, Mohammedan Law (26th edn, Central Law Agency 2016) 124.
[57] Shahu Lameeda v. Subaida Bebee, (1970) M.L.J. Cr. 562.
[58] Mohammad Hidayatullah and Arshad Hidayatullah, Mulla’s Principles of Mahomedan Law (19th edn Lexis Nexis Butterworths Wadhwa Nagpur 2010) 285.
[59] Aqil Ahmad, Mohammedan Law (26th edn, Central Law Agency 2016) 123.
[60] Kazi Rashed Akhter Shahid (Prince) v. Rokshana Choudhury (Sanda), (2006) 58 DLR (HC) 271.
[61] The Muslim Family Law Ordinance, 1961, s 7(1).
[62] Buffatan Bibi v. Abdul Salim, (1950) AIR Cal 304.
[63] Mirjan Ali v. Maimuna Bibi, (1949) AIR Assam 14.
[64] Manjila Bibi v. Noor Hossain, (1992) AIR Cal 93.
[65] The Divorce Act, 1869, s 10.
[66] The Divorce Act, 1869, s 34.
[67] The Divorce Act, 1869, s 10.
[68] The Lawyers and Jurists, ‘Women’s Legal Status in Domestic Law in Bangladesh’ <https://www.lawyersnjurists.com/article/womens-legal-status-in-domestic-law-in-bangladesh-part-4/> accessed 26th July 2020.
[69] ibid.
[70] Afsana Mustafa, M. Serajul Islam, Saiful Islam and Mahfuja Khatun, ‘Impact of RMG Sector on Livelihood Change of Women Employees of Bangladesh’ (2016) 2(1) Social and Economic Geography 1.
[71] Tamanna Rubya, ‘The Ready-Made Garment Industry: An Analysis of Bangladesh’s Labor Law Provisions After the Savar Tragedy’ (2015) 40(2) Brooklyn Journal of International Law 7.
[72] Muhammad Faizul Haque, Md. Atiqur Rahman Sarker and Md. Syfur Rahman, ‘Sexual Harassment of Female Workers at Manufacturing Sectors in Bangladesh’ (2019) 2(3) Journal of Economics and Business 934.
[73] Muhammad Faizul Haque, Md. Atiqur Rahman Sarker, Md. Syfur Rahman and Mohammad Rakibuddin, ‘Discrimination of Women at RMG Sector in Bangladesh’ (2020) 3 Journal of Social and Political Sciences 112.
[74] The Labour Act, 2006, s 121.
[75] Chowdhury Hossan, Md. Atiqur Rahman Sarker and Rumana Afroze, ‘Recent Unrest in the RMG Sector of Bangladesh: Is this an Outcome of Poor Labour Practices?’ (2012) 7(3) International Journal of Business and Management 1833.
[76] The Penal Code, 1860, s 375.
[77] The Penal Code, 1860, s 376.
[78] The Prevention of Oppression against Women and Children Act, 2000, s 9(i).
[79] The Child Marriage Restraint Act, 2017, s 2(1), 2(4).
[80] Bavish Gupta and Dr. Meenu Gupta, ‘Marital Rape: Current Legal Framework in India and the Need for Change’ (2013) 1(1) Galgotias Journal of Legal Studies 16.
[81] Tolulope Monisola Ola and Johnson Olusegan Ajayi, “Values clarifications in marital rape: a Nigerian situation” (2013) 1(35) European Scientific Journal 291.
[82] Sandra L. Ryder and Sheryl A. Kuzmenka, ‘Legal Rape: The Marital Rape Exemption’ (1991) 24(2) The John Marshall Law Review 393.
[83] Planning Commission (1998). The Fifth Five-Year Plan 1997– 2002. Dhaka, Ministry of Planning.
[84] The Child Marriage Restraint Act, 2017.
[85] The Child Marriage Restraint Act, 2017, s 19.
[86] The Evidence Act, 1872, s. 146(3), s. 155(4).
[87] Taqbir Huda, ‘Between ‘Virtue’ and ‘immorality’: Why Character Evidence Must be prohibited in Rape Cases.’ (2019) Bangladesh Legal Aid and Services Trust (BLAST).
[88] Abdul Majid v. State, 13 BLC (HCD) (2008) 53.
[89] Misti and others v. State, 6 BLC (HCD) 138.
[90] Monowar Mallik v. State, 59 DLR (HCD) (2007) 301.
[91] Sree Pinto Pal v. State, 30 BLD (HCD) 220.
[92] Daler Sing v. State, (1995) Cr. L. J. 614.
[93] Uzzal alias Hossain v. State, (2007) 59 DLR (HCD) 505.
[94] Shibu Pada Acharjee v. State, (2004) 56 DLR (HCD) 285.
[95] Al Amin v. State, (1999) 19 BLD (HCD) 307.
[96] BLAST and Others v. Bangladesh and Others (Writ Petition No: 10663/2013).
[97] BNWLA v. Government of Bangladesh (Writ Petition No: 5916 of 2008).
[98] BNWLA v. Government of Bangladesh (Writ Petition No. 8769 of 2010).
[99] Mohammad Hidayatullah and Arshad Hidayatullah, Mulla’s Principles of Mahomedan Law (19th edn Lexis Nexis Butterworths Wadhwa Nagpur 2010) 257.
[100] The Muslim Family Laws Ordinace, 1961, s 7(6).
[101] Mead Cain, Syeda Rokeya Khanam and Shamsun Nahar, ‘Class, Patriarchy, and Women’s Work in Bangladesh’ (1979) 5 Population and Development Review 405.
[102] Roushan Jahan, ‘Men in Seclusion, Women in Public: Rokeya’s Dream and Women’s Struggles in Bangladesh’
[103] ibid.