Date of filing
Petitioners:
1. ASK
2. BLAST
3. Naripokkho
4. Bangladesh Mahila Parishad
5. Manusher Jonno Foundation
6. Ujjal Paul
7. Poli Benarjee
8. Bitisha Bagchi
9. Avijan
Respondents
1. The Secretary, Cabinet Division
2. The Secretary/ Senior Secretary, Ministry of Law, Justice and Parliamentary Affairs.
3. The Secretary, Parliamentary Secretariat.
4. The Secretary, Ministry of Children and Women Affairs.
5. Senior Secretary, Ministry of Religious Affairs.
6. The Registrar General, Supreme Court of Bangladesh
7. Director General, Department of Disaster Management.
Facts:
The legal status and personal rights of Hindu women in Bangladesh in relation to divorce, marriage registration, maintenance, guardianship, adoption, and inheritance remain governed by uncodified personal laws and customary principles under the Dayabhaga school of Hindu law. Under the existing legal framework, there is a total absence of statutory provisions for the dissolution of a Hindu marriage, marriage registration remains strictly optional under the Hindu Marriage Registration Act, 2012, spousal maintenance rights are inadequately protected, women possess restricted legal capacity in matters of adoption and guardianship, and prevailing succession rules supplemented by colonial statutes including the Hindu Law of Inheritance (Amendment) Act, 1929 and the Hindu Women’s Right to Property Act, 1937 “limited life interest” rights upon women. Consequently, Hindu women facing marital discord, abandonment, or family disputes are deprived of effective legal remedies and equal protection of the law.
This statutory void has engendered severe jurisdictional uncertainty and inconsistent judicial administration. In the absence of legislative mechanics for divorce or separation, litigants routinely institute “Miscellaneous Cases” before civil courts seeking declaratory reliefs of separation, resulting in conflicting judicial approaches and legal anarchy. Furthermore, courts of competent jurisdiction routinely dismiss Hindu divorce petitions filed under the Divorce Act, 1869 or the Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946 for want of statutory authority. Despite formal legal notices, draft legislations, and representations submitted by human rights organizations and legal experts, the respondents have failed to initiate requisite legislative reforms.
This public interest litigation was filed challenging the continued state inaction and seeking directions upon the respondents to take appropriate steps for addressing and resolving the issues and problems relating to Hindu women’s rights to divorce, maintenance, guardianship, adoption, and equal inheritance and thereby protecting life and liberty and to repeal the optional registration provision of the Hindu Marriage Registration Act, 2012 to make marriage registration mandatory.
Rule: Rule Nisi and direction
On 14th March 2023 after a preliminary hearing of the Public Interest Litigation (Writ Petition No. 5256 of 2023) a division bench of the High Court Division comprising Ms. Justice Farah Mahbub and Mr. Justice Muhammad Mahbub Ul Islam issued a rule nisi calling upon the Respondents to show cause as to why the the inaction and failure of the respondents to adopt guidelines or policy or take appropriate steps in order to address the issue of Hindu women’s right to divorce and registration, maintenance, guardianship, adoption and equal inheritance, etc. and thereby protecting their fundamental rights to life and liberty as well as properly and amend the optional provision of hindu marriage to mandatory provision of Hindu Marriage Registration Act, 2012, shall not be declared to have been passed without any lawful authority and is of no legal effect and also, as to why the respondents shall not be directed to take appropriate steps for addressing and resolving the issues and problems relating to Hindu women’s right to divorce and registration, maintenance, guardianship, adoption and equal inheritance, etc. and thereby protecting their fundamental rights to life and liberty as well as property and amend the optional provision of hindu marriage to mandatory provision of Hindu Marriage Registration Act, 2012 and thereby protecting their fundamental rights to life and liberty as well as property for ends of justice and/or pass such other or further order or orders as to this Court may seem fit and proper.
Details
Justices
Ms. Justice Fahmida Quader and Mr. Justice Muhammad Mahbub Ul Islam
Area of law:
Article 7, 27, 28, 31, 32 and 42 of Bangladesh Constitution.
Keywords
Relevant statute
Hindu Marriage Registration Act 2012
Hindu Right to Property Act 1937
Hindu Women Right to Separate Residence and Maintenance ACt 1946
Constitution of Bangladesh
Details