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Legal Protection of Women in Bangladesh – Languishing for Want of Proper Implementation

“Of all the evils for which man has made himself responsible, none is so degrading, so shocking or so brutal as his abuse of the better half of humanity; the female sex.”  – Mahatma Gandhi

     Mistreatment of women is one of the major social injustices the human civilization has known, but thankfully, through centuries of revolution, we have reached the era where the notion that women should enjoy equal rights as their male counterparts is, more or less, recognized by most of the educated population. Yet, women around the world are still facing various hindrances, ranging from prejudice to downright abuse.
A frighteningly large number of women are leading lives plagued by violence, unjust cruelty and other forms of discrimination. In Bangladesh, a country where the psyche of the majority is quite patriarchal, violence against women is an age old social disease.

     The very foundation of our independent nation is based on ensuring equal rights of all; so it’s only natural that the Constitution of Bangladesh mandates equal treatment of all its citizen. Article 28 of the Constitution states that all citizens must be treated without any bias based on gender, ethnicity, race etc. It also puts special emphasis on equality between both genders in Article 19(3) which says, “The State Shall endeavour to ensure equality of opportunity and participation of women in all spheres of national life.” Article 28(2) requires that women should have equal rights with men in all the state and public spheres[1].

     Sexual crimes are addressed in the Penal Code of 1860. Section 375 of the Penal Code defines ‘rape’ as sexual intercourse taken place without the consent of, or by obtaining consent with false promises, or at an intoxicated state of victim and with any women under the age of fourteen.  However, sexual intercourse between a husband and wife provided that the wife is above thirteen years of age does not constitute rape according to Section 375, which leaves the entire possibility of marital rape unaddressed. According to the Section 376 of the Penal code, “rape shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, unless the woman raped is his own wife and is not under twelve years of age, in which case he shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.

     The Penal Code also addresses acid attack, which is one of the most notable method of torturing women employed in the past decades; Section 326A reads that any person who causes partial or permanent deformity or injury to another by throwing acid will be sentenced to a minimum imprisonment of 10 years and/or fine.[2]

     The participation of women in the society has seen unprecedented improvements since the formulation of the Constitution and Penal Code (Introduced in the British Colonial Era); opening up possibilities of many other modes of harassment. Women have been facing even more resistance as they try to speak out against injustice, be it in workplaces or families. Therefore, the Penal Code, being outdated as it is, proved to be quite ineffective in limiting oppression of women. Harassment kept rising, preventing women from receiving education, attaining self-reliance or even the freedom over their own lives. This necessitated the introduction of specific provisions aimed to provide legal safeguard to the female population.

     Nari O Shishu Nirjatan (Bishesh Bidhan) Ain 1995 was then passed by the Parliament, facilitating stringent punishments for crimes such as Rape, Throwing corrosive materials, sexual harassment, women trafficking etc. But the severity of the punishments left little scope for legal discretion and was resulting in the reverse of its original aim – many of the defendants walked free in cases of insufficient evidences, for lack of a lesser possible sentence. This Act was repealed in 2000 with the introduction of Nari O Shishu Nirjatan Daman Ain 2000 (The Prevention of Oppression against Women and Children Act) (later amended in 2003). Under this act, death penalty or imprisonment for life along with a fine not exceeding 1 lac taka is decreed for-

– causing death or attempting to cause death to a woman by throwing corrosive or poisonous substances.

– causing damage to the sight or ear, or disfiguring the sexual organ of the victim by throwing corrosive or poisonous substance.

– causing or attempting to cause death after/as a result of rape, or causing death or injury by gang rape.

– attempting to cause death to a woman for dowry. However, mandatory death penalty is sentenced if death is caused.[3]

     Apart from this, life imprisonment, or rigorous imprisonment with smaller time is awarded for causing grievous injuries by throwing corrosive substance, rape, failing to safeguard a woman raped in police custody, sexual oppression, throwing corrosive substance that may or may not result in physical or mental injury, etc. Attempt to rape is punishable with maximum ten years of prison.[4] However, the definition of rape remains the same as that of The Penal Code, and Marital Rape is yet to be recognized. The Act addresses the physical form of sexual assault and eve-teasing and cat-calling in Section 10, but the definition is too narrow and misses other forms of eve-teasing, like stalking, disrespectful treatment and bias in workplaces etc. Which are very prominent nowadays. For example, between January and March of 2016 alone, 29 females have stopped attending school due to fear of stalking, and one has committed suicide.[5] The abetment of suicide is also punishable with the maximum ten years of rigorous imprisonment.[6]

     While the Nari O Shishu Nirjatan Ain 2000 (The Prevention of Oppression against Women and Children Act) and The Penal Code, 1860 had already laid down laws regarding throwing of corrosive substances, the alarming rise in the number of Acid Attacks attracted attention of human rights activists worldwide. In the last few decades, acid has become a brutal tool for repression and violent revenge against women. To curb these attacks, two specific Acts, known as the Acid Crime Prevention Act 2002 and the Acid Control Act 2002 were passed. The Acid Control Act 2002 aimed to prevent misuse of acid, raise awareness against acid attacks and provide rehabilitation and legal assistance to victims[7]; and the Acid Crime Prevention Act re-enforced punishments for throwing, and attempting to throw acid[8]. The Acid Crime Prevention Act may seem redundant as its sentences are similar to Section 4 of the Prevention of Repression against Women and Children Act 2000, except the former has a more specific definition of acid. It’s safe to assume that in a case of an attack where the corrosive substance does not fit the definition of ‘Acid’ as given by the ACPA 2002 will be tried under the Nari O Shishu Nirjatan Ain 2000. The ACPA 2002 also addresses abetment to throw acid and recognizes it as a punishable offence.

     A few other specific Acts regarding violence against women are the Dowry Prohibition Act 1980, the Domestic Violence (Prevention and Protection) Act 2010 etc. The Domestic Violence (Prevention and Protection) Act 2010 addresses the physical, psychological, sexual and economic abuse women are subjected to within their households[9] and aims to provide protection from such by employing Upazila and Thana based enforcement officers. Their duties include providing medical and legal service to the victims free of cost, and assisting them in seeking shelter and rehabilitation.

The Dowry Prohibition Act, 1980 states that anybody who gives or takes or demands dowry directly or indirectly and abets to receive dowry will be punished with imprisonment no less than 1 year not exceeding 5 years and a fine.[10]

     The government’s efforts in curbing the plights of women is praiseworthy, as today we see almost equal number of male and female participation in schools until higher secondary level. A large number of women constitute our labour workforce, and now, more than ever, women are reaching equal status to men in their professions. However, it’s rather unfortunate that violence against women is still a rather prominent phenomenon, especially in the poorer communities which are yet to receive proper education. The number of reported incidents of violence against women has not seen much improvement in the past decade.  According to a survey conducted by Bangladesh Mahila Parishad, the number of dowry related violence has increased from 79 (in 2001) to 102 (in 2008), the number of dowry related murder also saw an overall increase, going from 114 in 2001 to 274 in 2006, again falling down to 170 in 2008.[11]

     While the statistics are, in themselves, quite disheartening, it is also true that reported incidents are only the tip of the iceberg, as a considerable number of women suffer in silence in order to avoid the critical scrutiny of the conservative society that victims are often subjected to. The annual reports of Ain O Salish Kendra show that, of the reported incidents, only about half were actually filed in court. For example, in 2015, 8 out of 35 cases of acid violence were reported in 2015, 13 out of 48 cases in 2014 and 16 out of 44 in 2013. Of a total, staggering 813 cases of rape in 2013, only 553 cases were filed, 401 out of 707 in 2014 and 477 out of 846 in 2015.Similar patterns are observed in dowry-related violence and other cases of domestic abuse.[12]

     The victims’ reluctance to file cases is due to the inadequacy of our law enforcement system in dealing with sexual crimes. Human rights activists all over the world have raised concerns over our lack of sufficient Rape Shield Laws and the dehumanizing and unreliable “two-finger-test” to determine evidence of rape; which put women through a series of ordeal. The practice of Section 155(4) of the Evidence Act 1872, which allows the defendant to introduce evidence questioning the character of the prosecutrix[13],  opens up a stream of irrelevant, humiliating interrogation about the victim’s ‘chastity’, which can be traumatizing for them. This also deters other victims from coming forth with their complaints. Way too often, the police officers don’t cooperate with the victims and seem to brush off sexual crimes as insignificant. From 2010 to 2012, the Bangladeshi police received 109,621 cases of violence against women, but they determined that only 6,875 of these were ‘genuine’ and needed to be filed.[14] Moreover, alienation from society and victim blaming is the common reaction to cases of rape and sexual assault in our communities, which is also a reason behind the reluctance of women in seeking justice.

     While state laws are mandatory for the empowerment of women, familial support is just as crucial; but most family matters like marriage, divorce, custody of children etc. are dictated by religion. For example, in Muslim Law, a woman is entitled to the right to divorce if only it’s delegated by the husband.[15] Conditions under which a woman can seek dissolution of marriage is listed under the laws. Under Hindu Law, a woman does not have any rights to divorce. On the issue of the guardianship of child, Muslim law provisions that the father, and in his absence, the closest male relative to him is to be the guardian, the mother’s role being that of a ‘custodian’ only. Hindu law also prioritizes father, or his father as the legal guardian of a child. As a result, in cases of divorce, the father has an upper hand in being granted the guardianship. Islamic Jurisprudence mandates the ‘free-consent’ of the bride during marriage, but the dependency of young girls on the older male figures of the family often means that their opinion is not taken into consideration during marriage, especially in economically insolvent families.

     It can be surmised, from the analysis of the numerous laws formulated to protect women from attacks and the corresponding data, that the implementation of these laws are far more important than statutes, particularly in situations as sensitive as sexual crimes. The establishment of a cooperative system that aims to provide justice to women by practicing all the discretion necessary to protect the victim from further trauma rather than add to their psychological ordeal is a quintessential element of legal safeguard of women.

Tahseen Lubaba

Tahseen Lubaba

LLB Student at University of Dhaka
Tahseen Lubaba is currently studying LLB at the University of Dhaka. She is working with the BDLD as an intern.
Tahseen Lubaba

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[1] The Constitution of the People’s Republic of Bangladesh, Article 19, 28.

[2] The Penal Code of 1860, Sections 375, 376, 326A.

[3] Nari O Shishu Nirjatan Daman Ain 2000, Sections 4,9,11.

[4] Section 9(4)(b)

[5] Ain O Salish Kendra, www.askbd.org

[6] Section 9A

[7] Acid Control Act 2002

[8] Acid Crime Prevention Act 2002

[9] Domestic Violence Act 2010 Sections 3, 6.

[10] Dowry Prohibition Act, 1980 Sections 3,4

[11] Bangladesh Mahila Parishad, compiled from 17 notable newspapers

[12] Ain O Salish Kendra Archives, www.askbd.org

[13] Evidence Act 1872, Section 155(4)

[14] www.borgenproject.org/violence-women-bangladesh

[15] Muslim Family Law Ordinance, 1961 Sections 7,8

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