The New Nation - Internet Edition

Md Nur Islam, LL.M

In Bangladesh, the legal system may be said to be pluralistic in the sense that there exists an uniform and non-religious system of law applicable to all Bangladeshis e.g. criminal law, land laws, etc. while, on the other hand, personal private, family matters, such as, marriage, its dissolution, dower, custody of children and so forth fall within the purview of personal law of each religious segment. One of the very conceptions of Muslin personal law is dower/denmohor. Dower is considered a security to women who are always at risk of divorce in the social context of Bangladesh. But most of the divorced women fail to realise the money despite repeated attempts. The Dennohor/ Dower is something that is paid by the husband to his wife. It is paid to the wife only as an honour and respect and to show that he has a serious desire to marry her and is not simply entering into the marriage contract without any sense of responsibility and obligation or effort on his part. It is also a provision for her rainy days and socially it became a check on the capricious exercise by the husband of his blanket power of divorce. Whereas dowry is a subsequent social development for the Muslim communities in Bangladesh with renewed effects after independence. Nowadays it is seen that the dowry has become rampant for marriage in every community and is near universal in Bangladeshi society. In many respects, the poormen are taking this chance of exploiting the bride's family to improve their fate from poverty and this is making marriage a commercial transaction, giving more value to property and money than the bride itself.

Dower Under Islam: The mohor or dower is an essential component of the marriage contract. Allah says in the Holy Quran: "Waaatoo an nisaa'a saduqaatihinna nihlatan" and give the women their dower with a good heart. By this very verse, the husband has been assigned with the responsibility to pay the dower. Mulla defines dower as sum of money or other property, which the wife is entitled to receive from husband in consideration of the marriage. The word consideration is not used in the sense it is used in the Contract Act. In respect of dower there are three different views. One is that in its incidents it is similar to Donatio Propter Nupteas of the Romans. Second, that it is given by the husband to the wife as a mark of respect, and lastly, that it is a device to control the unfettered power of the husband to divorce his wife. According to Islamic law where there is a marriage there is a dower to the bride. The Islamic Law with regard to the same also prescribes that dower can be paid instantly or after marriage. After divorce, it becomes mandatory. But except a few cases, mohor is not paid to the divorced women.

Social dowry: The rise in Bangladesh of the institution of dowry or daabi or joutuk has become widely prevalent. Joutuk is the money or valuable property demanded from the bride by the groom or his family as a consideration of the marriage. There is a considerable debate what constitutes dowry in its various forms. In a patriarchally-dominated social context dowry refers to property given to the bridegroom and his family but the anti-dowry law regards it as the exclusive property of the bride. Dowry or bride prices have received substantial attention in the anthropological literature. In fact, there is now a large volume of ethnographic and theoretical literature on dowry and bride price. Much of this literature concerns the problems of the widespread switch from bride-price to dowry as marriage pre-stations.

Outgrowths of Dowry: In South Asia, the dowry-related phenomenon is on the rise. In Bangladesh it has become an acute problem resulting in breakage of social harmony and texture. This modern feature of dowry' means the transmission of large sums of money, jewellery, cash and other goods from the bride's family to the groom's family. The emergence of dowry and the switch from bride price have been explained by some authors as the cause of the decline of the earning capabilities and productivity of women. According to this view, the system of dowry is closely linked with women's, role in productive activities. Where women are regarded as an unproductive burden a dowry is given to the bridegroom's side to compensate them. However, the present spread of dowry cannot be explained only with variables like non participation of women in economic activity.

Some Confusions: There is a wide range of confusions in between dower and dowry system as prevailing in the society. The dowry system is not recognised in the religion or the law of the Muslim societies. Oppositely, Islamic law provides dower to enhance the status of women. Some authors confuse dower with dowry. Perhaps the aspects of women's property or stridhanam in Hindu Law and as exclusive property of the wife are seen as synonymous. When dowry is regarded as stridhanam or promortem inheritance for women, contradictions arise and the equation of dowry with stridhanam has been disputed by several authors. The anti-dowry law stated that property given as dowry belongs to the wife but later on amended the law. However, the misconceptions still lingers on that she has been paid dowry than why should she be a part and parcel of the succession.

Dowry as Social Stigma: Dowry is a social stigma, the ultimate consequences of the stigma are dowry deaths. And the dowry deaths are a common phenomenon in South Asia. These deaths of women are usually caused by the same persons who are legally and socially supposed to protect them i.e their husbands or in-laws. It has been rightly pointed out that dowry deaths are gruesome reminder of the authoritativeness of patriarchy. The study shows, dowry demands have been identified as one of major causes of murder of women in Bangladesh.

Existing laws on Dower and Dowry: In respect of dower. Islamic law recognises two types of dower, namely, prompt dower and deferred dower. Prompt dower becomes payable immediately after the marriage and must be paid on demand. The wife claiming the prompt dower stands as an unsecured creditor. If the prompt dower is not paid she could refuse to stay with her husband and also can take legal action. And deferred Dower becomes payable at the termination or dissolution of marriage either by death or divorce. If by divorce then dower can be recovered by compromise or suing in the family court.

If by deaths then dower can be recovered from her husband's estate through comprumise or suing. Islamic law does not prescribe any maximum amount of dower, but makes it obligatory for the husband to pay whatever amount has been specified and whatever amount is assessed if not specified. In India, attempts have been made to curb the fixation of excessive, amounts of dower which go against the interests of Muslim women, but no similar provision has been made in Pakistan or later in Bangladesh. There has been confusion over dower and dowry after the Dowry and Bridal Gifts (Restriction) Act of 1976 in Pakistan, but this has now been clarified.

Conversely, India was first in South Asia to make an attempt to control the dowry problem by passing the Dowry Prohibition Act of 1961. Subsequently. Pakistan made relevant legislative enactments, which significantly were only applicable for the western wing or the country. After Independence in Bangladesh the problems of dowry became so horrendous that activist women and some enlightened males were demanding legislation to stamp out this social evil. Under such pressure, the government passed the Dowry Prohibition Act of 1980. The real need of women in Bangladesh, is to be protected from violence and economic deprivation. Dowry problems involve both aspects of the needs i.e freedom from economic deprivation and violence. More recently, the Women and Children Repression Prevention (Special Provision) Act of 2000 exaggerated punishments in most cases up to death penalty for crime against women and children. The time has come to assess whether women are actually able to use legal remedies available under these new statutes.

Concluding Remarks: 'For all practical purposes this dowry system, which is not Islamic and specifically prohibited by state law, has become of much greater significance in the lives of the Bangladeshi people than dower. Despite the enactment of stringent laws dowry related violence continues to increase. Due to inability in respect of realisation of dower and social impact of dowry system, the Muslim women still are being deprived from empowerment. By abolishing the dowry system and proper appreciation and observance of the custom of dower the Muslim women can be empowered in the society. As the root of the problem of dowry appear to be social, remedies can only be achieved by changes of attitude in society; this can be attempted by legislation, but will need to be supported by education and legal awareness.

[The author is a Joint District Judge currently working as Registrar, Administrative Appellate Tribunal, Dhaka.]

High Court Division

(Criminal Appellate Jurisdiction)

Khademul Islam

Chowdhury J

Md Ashfaqul Islam J

Judgment

March 5th, 2007

Monir Hossain alias Monir

tttt.Convict-Appellant

vs

State Respondent*

Code-of Criminal Procedure (V of 1898) Section 164

Nari-o-Shishu Nirjatan Daman Ain, 2000 Section 7

There is no earthly reason to disbelieve the statements of the victim which she also gave under section 164 of the Code. It is also not acceptable to us why a minor girl would give her deposition and statement narrating the involvement of the appellant in such a manner as she has given, if there would have been no forceful abduction by the appellant (and that if she went with him on her ownttttt25-26)

Md Khandker Mahbub Hossain with Md Abdul Awal, Advocates-For the Convict-Appellant.

Nikhilesh Dutta, Deputy Attorney-General with Md Jamil Akhter Elahi, A.ssistant Attorney-General-For the State.

Judgment

Md Ashfaqul Islam J: This criminal appeal at the instance of the accused appellant Monir Hossain alias Monir has been preferred against the judgment and order of conviction and sentence dated 1-6-2002 passed by the Judge, Nari-o-Shishu Nirjatan Daman Adalat No. I, Barguna in Nari-o-Shishu Nirjatan Daman Case No. 31 of 2000 convicting the appellant under section 7 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 .and sentencing him to suffer rigorous imprisonment for 14 (fourteen) years and to pay a fine of Taka 5,000 in default to suffer rigorous imprisonment for I (one) year more.

2. The prosecution case, as it appears from the deposition of the informant Abdul Motaleb Fakir, PW I, in short, is that the informant lodged a First Information Report with Amtoli Police Station alleging, inter alia. that on 28-2-2000 at 3-00 PM while his daughter Shahana Shilpi, the victim (PW 2) was returning home from the school, the accused appellant along with other accused persons being armed with deadly weapons, abducted her for the purpose of rape or forceful marriage against her will and took her to the house of one Kanchan Ali Fakir where from the victim was recovered on 28-2-2000 at 12-00 PM. On the basis of above allegation the FIR was lodged giving rise to the instant case.

3. The case was investigated and charge sheet was submitted against the accused appellant and others under section 7 of Nari-o-Shishu Nirjatan Daman Ain, 2000 on 28-4-2000. On the commencement of the trial, charge under sections 7 and 13 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 was framed against the appellant which was read over and explained to him to which he pleaded not guilty and claimed to be tried.

4. The prosecution examined as many as 10 witnesses out of 14 cited witnesses and after closing of the evidence the accused appellant was examined under section 342 of the 'Code of Criminal Procedure when he again pleaded innocence and expressed his unwillingness to adduce any defence witness or to give any statement.

5. From the trend of cross-examination of the prosecution witnesses defence case appears to be one of innocence and that the accused appellant has been falsely implicated in the instant case out of enmity and gmdge.

6. The Nari-o-Shishu Nirjatan Daman Adalat-I, Barguna after considering the evidence on record, deposition of the PWs and other related things and also hearing the defence and the prosecution at length, convicted and sentenced the convict appellant as aforesaid.

7. Mr Khandker Mahbub Hossain appearing with Mr Md Abdul Awal, the learned Advocates for the accused appellant, after taking us through the entire evidence on record, specially the deposition of the PWs, mainly submits that in the instant case the prosecution miserably failed to prove the abduction of the victim girl by the appellant within the meaning of section 7 of the Nari-o-Shishu Nirjatan Daman Ain, 2000. He further submits that the victim on her own wish and without any force from the side of the accused appellant went with him voluntarily. Thus, there being no ingredients of forceful abduction on the part of the appellant the allegation under section 7 of the Ain against the appellant cannot be sustained. He further submits that of all the prosecution witnesses it is only from the evidence of PW 6 Abdul Motaleb, the rickshaw puller, it can be inferred that no forceful abduction whatsoever as it has been alleged by the prosecution has been committed by the appellant and the victim Shilpi, on her own accord swayed by love, eloped with the appellant. Therefore, the learned Counsel vehemently submits that in this case the prosecution has miserably failed to prove the charge under section 7 of the Ain, 2000 against the appellant beyond all reasonable doubt and the accused appellant should be acquitted on that score.

8. Mr Nikhilesh Dutta, the learned Deputy Attorney-General for the State, on the other hand, seriously opposes the contentions pressed into service by the Counsel for the appellant and submits that in this case the prosecution was totally successful in proving the allegation levelled against the appellant beyond all shadow of doubt. Substantiating his argument, the learned Deputy Attorney-General contends that from the evidence on record it is clearly found that victim Shahana Shilpi was forcibly abducted by the. appellant against her will. The evidence of the victim Shilpi (PW 2) has the direct bearing on the issue where she categorically stated the occurrence narrating the same in a vivid manner that how she was abducted by the appellant against her will and that she also resisted the appellant from so doing: He further submits that the evidence on record further shows that as many as three persons saw the victim being taken away by the appellant on a rickshaw including the rickshaw puller who deposed as PW 6.

9. Be that as it may, before entering into the merit of the case let us now discuss the evidence of the prosecution witnesses one after another.

10. PW 1 Abul Motaleb, the informant, is the father of the victim. In his deposition he stated the entire prosecution case as it has been already mentioned at the time of introducing the prosecution case. He stated that on 28-2-2000 at 3-00 PM his daughter the victim, who is a student of class ten, was returning home after school and 'when she caine to the north side of the house of cobbler Sukla, situated at Arpangachia Bazaar, the appellant Monir forcibly abducted her and took her on rickshaw to the house of one Kanchan Ali Fakir, where from on the information given by Chowkider she was recovered by the informant and others. The victim thereafter narrated the entire incident to the informant. At the time of recovery of the victim the accused appellant and his associate attacked and obstructed them.

11. This witness in his cross-examination by the defence on recall denied the suggestions put to him by the defence totally.

12. PW 2 Shahana Shilpi, the victim, stated that on 28-2-2000 she was abducted by the appellant while she was returning home from her school with her classmate Halima. She then narrated the incident exactly in the manner as it has been stated by the informant PW 1. She stated that. the appellant with ulterior motive abducted her and took her to the residence of his uncle Kanchan Ali Fakir. Thereafter she was recovered by her father (PW 1). 'On recall she stated that she gave her statement before the Magistrate under section 164 of the Code of Criminal Procedure which was a voluntary one.

13. In her cross-examination she stated that she made complaint before the headmaster of her school on several occasions against the accused appellant alleging his bad behavior towards her. She denied the suggestion that she ever loved the appellant or that she took any photograph with him.

She also denied the suggestion that she voluntarily went with the accused appellant.

14. PW 3 Abdul Latif Fakir, who is a relative of the informant and the victim, stated that after hearing of the incident of abduction of the victim from the informant he along with the informant and the Chowkider of the village went to the house of Kanchan Ali Fakir and rescued the victim. He was not cross-examined from the side of the absconding accused appellant:

15. PW 4 Abdul Hye is the son of the informant and brother of the victim who stated that be also heard about the incident of abduction of his sister and rescued her with the help of others from the house of Kanchan. Ali Fakir. He has also stated that the accused appellant tried to attack them but failed. In his cross-examination, he denied that victim at her own will eloped with the appellant.

16. Abdul Mazid deposed as PW 5. He stated that he knew the informant and the accused persons. He is the Chowkider of the village. He stated that at the time of occurrence on 28-2-2000 he was taking lunch when the informant came to his house and informed him about the alleged abduction of his daughter the victim. He along with others went to the house of Kanchan Ali Fakir and rescued the victim Shahana from there and brought her back to the house of the informant From his cross-examination, defence could not benefit itself by bringing anything to demolish the prosecution case and establish the defence version.

17. PW 6 Abdul Motaleb stated that he knew the informant and the victim. He also stated that he knew the appellant Monir as his neighbour. He is a rickshaw puller and in his rickshaw the appellant and the victim were riding on the date of occurrence and the appellant did not exert any force upon the victim to take her with him. At this point this witness was declared hostile and cross-examined where he denied that under compulsion he was giving false evidence.

18. PW 7 Abdul Gani stated that on the date of occurrence Kanchan Fakir informed him that appellant abducted the victim and brought her to his house and thereafter he went to his house and found the victim Shahana who told him that she had been forcibly abducted by the appellant. In his cross-examination, he denied the suggestions put to him by the defence.

19. PW 8 Abdul Sobhan saw the appellant and the victim riding on a rickshaw going towards the western side from the eastern side passing in front of his house. In his cross-examination he stated that on that evening he heard that appellant Monir abducted the victim and took her to the house of Kanchan Fakir. He however, stated that he did not hear any hue and cry from the victim.

20. PW 9 Hamez Hawlader also stated that he saw the appellant who picked up the victim on a rickshaw and took her towards western side from the eastern side; In his cross examination he stated that he did not hear any hue and cry of the victim.

21. PW 10 Abdul Hye is the Investigating Officer of the case. He stated that on receipt of the FIR, the Officer-in-Charge Sultan Ahmed entrusted him with the investigation of the case and with that he visited the place of occurrence, prepared sketch map with index, recorded the statement of the witnesses under section 161 of the Code of Criminal Procedure and on being satisfied submitted charge sheet under sections 7/30 of the Nari-o-Shishu Nirjatan Daman Ain against the appellant. He further stated that on 10-4-2000 he arranged for recording of the statement of the victim under section 164 of the Code of Criminal Procedure before the Magistrate. He proved that statement and his signature therein as Exhibits 2 and 2/1. In cross-examination by the defence he categorically denied that at the behest of the informant he was compelled to submit charge sheet.

22. These are all about the evidences available on record.

23. We have gone through the impugned judgment and order of conviction and sentence, memo of appeal and perused the entire evidence on record and other related papers minutely and also heard the learned Counsel for the appellant and the learned Deputy Attorney-General at length. Mr Khandker Mahbub Hossain, the learned Counsel for the appellant, has mainly mooted with emphasis the point that in the instant case the prosecution miserably failed to prove the 'forceful abduction' within the meaning of section 7 of the Nari-oShishu Nirjatan Daman Ain, 2000 against the accused appellant. He contends that the victim on her own wish and without being driven by any force from the side of the accused-appellant went with him voluntarily. The learned Counsel, substantiating his argument, contends that it is only from the evidence of PW 6 Abdul Motaleb, the rickshaw puller, it can be inferred that no forceful abduction has been committed by the appellant and the victim on her own wish eloped with the appellant and therefore, the allegation under section 7 of the Ain against the appellant cannot be sustained.

24. From the evidence on record we find that the PW I is the father of the victim who after hearing that his daughter (victim) has been abducted by the appellant and taken to the house of Kanchan Fakir went to that house and rescued her. PW 2 is the victim herself who stated how she was abducted, against her will, by the appellant on the date of occurrence. She narrated the whole incident from the beginning to the end very vividly and in a graphic manner. From her evidence we find that prior to the occurrence she made complaint against the appellant to her Head Master of the school alleging the bad behaviour of the appellant towards her. Then PWs 3, 4 and 5 immediately after the occurrence came to learn about the same and went to rescue the victim. PW 6 Abdul Motaleb the rickshaw puller deposed that both the victim and the appellant on hire boarded his rickshaw and got down near Poshbunia Gram. PW 7 Abdul Gani stated that he heard about the incident trom Kanchan Ali Fakir that the appellant brought. the victim in his house and thereafter he went to the house of Kanchan Ali Fakir where the victim Shahana narrated the entire incident of abduction by the appellant to him. Both PWs 8 and 9 categorically deposed that they saw the appellant and the victim on a rickshaw going towards western side.

25. From all these evidences of the PWs the fact which is unfolded is, that on the date of occurrence the victim was admittedly seen together with the appellant going towards some destination riding on a rickshaw. Now comes the question, whether the victim voluntarily went with the appellant or she was forced by the appellant to go with him? The answer would lie on the critical analysis of certain circumstantial reality. In this connection, it has to be borne in mind that admittedly the victim is a minor. In her deposition she stated that she was forcibly taken away by the appellant when she was returning home from her school. Before this she complained to the Head Master of the school about the bad behavlour of the appellant several times. She stated that she is, married woman and willing to go to her husband's house and also stated that she resisted the appellant at the time of abduction. We do not find any earthly reason to disbelieve all these statements of the victim which she also gave before the Magistrate recorded under section 164 of the Code of Criminal Procedure.

26. It is also not acceptable to us why a minor girl would give her deposition and statement narrating the involvement of the appellant in such a manner as she has given, if there would have been no forceful abduction by the appellant and that if she went with him on her own wish as she loved him. Therefore, the inference of forceful abduction within the meaning of section 7 of the Ain against the appellant becomes positive without any ambiguity.

27. On the other hand, the appellant during trial produced a photograph of him with the victim before the Court by which the appellant made a futile exercise to give an impression of the existence of a close relationship between him and the victim, inasmuch as this photograph, apparently on the face of it, proved to be a super-imposed one. It can be seen with. the naked eye. This particular aspect has given rise to a circumstance which leads us to believe that only for the purpose of making it credible that there was a relationship of love that existed between the victim and the appellant swayed by which the victim on her own will eloped with the appellant. But the evidence on record, on the contrary, as we have already discussed, proves beyond any doubt that the victim has been forcibly abducted. by the appellant. Moreover, the victim being a minor, her consent even if given at all by her, would have been, bereft of any bearing whatsoever on the issue. We do not find any substance in the argument pressed into service by the learned Counsel for the appellant on the basis of the above findings of ours. The offence committed, therefore, cannot be viewed with impunity. The inevitable result that would follow is that this appeal should be dismissed.

28. In the result, the Criminal Appeal No. 1926 of 2002 is dismissed. The impugned judgment and order of conviction and sentence dated 1-6-2002 passed by the Judge, Nari-o-Shishu NiIjatan Daman 'Adalat' No.1, Barguna in Nari-o-Shishu Nirjatan Danian Case No. 31 of 2000 is hereby affirmed.

(Send down the lower Court records expeditiously.)