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.]