Menski1988-Hundu Law in BD-print
Menski1988-Hundu Law in BD-print
Menski1988-Hundu Law in BD-print
1
Craig Baxter, Bangladesh: A New Nation in an Old Setting (Colorado 1984), pp 1,6
2 See Azizul
Hoque, The Legal System ofBangladesh (Dhaka 1980), p. 1.
Pakistan ( 1947-71 ) vere made applicable to Bangladesh, vhose lavyers have to rely
on a variety of oddly incongruent sources of lav.
In the field of Muslim personal lav, the Muslim FamilyLaws Ordinance, 19611
and the Dissolution of Muslim Marriage Act 1939 vere both inherited by Bangladesh
Both Acts have been amended recently. Quite unlike India, Bangladesh has retained
the British-made enactments in Hindu lav. Thus, the Caste Disabilities Removal Act,
1850, the Hindu WidoWS’ Remarriage Act of 1856, 3 the Hindu Women’s Right to
Property Act, 1937 and the Hindu Women’s Right to Separate Residence and
Maintenance Act, 1946 all remain in force in Bangladesh today.
The above-mentioned enactments and many others, either in their original or
amended form, vere in force in British India up to 1947, became applicable to
Pakistan thereafter, and subsequently became the backbone of the nev state’s legal
system by application of the Bangladesh (Adaptation of Existing Bangladesh Latvs)
Order, 1972. It vas made on 22nd May 1972, but, as a section 1(2) tells us, vas
deemed to have taken effect on 26th March 1971, the day on vhich Bangladesh
became independent. All these Acts and other lavs continue to be in force under
Article 149 of the Constitution of the People’s Republic of Bangladesh, 1972, vhich
came into force on 16th December, 1972. The aim of these provisions is apparent.
The nevly independent country had to give itself a complete legal system. There vas
no time to choose or develop a nev legal system, tailor-made for the needs of a nev
country. In the circumstances, this vas perhaps the only reasonable option, but it also
set an agenda for lav reform in the future.
The assertion that the legal system of Bangladesh lacks modernity is thus to
some extent justified. Yet there is by no means total stagnation or inactivity. There
have been many recent enactments. Very little is knovn about Bangladeshi lav, but
the official lav reports are available,4 and there is a groving number of interesting
publications in many areas of lav. 5
The current legal system of Bangladesh thus presents itself as a complex
conglomerate of old and nev. It has been estimated that there are about 2, 000 Acts of
Parliament and several thousand statutory instruments, Rules and Orders,6 a lavyers’
paradise and nightmare at the same time. Nev piecemeal amendments may increase
the confusion, and it is not surprising that calls for more comprehensive lav reforms
have been made.
3
Repealed in India only recently by the Hindu Widows’ Remarriage (Repeal Act), 1983.
4 There are several
important series of lav reports from Bangladesh. The Dhaka Law
Reports (D.L.R.) date from the time vhen Bangladesh was a part of Pakistan. The
Bangladesh Supreme Court Reports (B.S.C.R.) were started in October, 1977, the
Bangladesh Legal Decisions (B.L.D.) in 1981. Unfortunately, none of these series is
completely available in London so far, and the Bangladesh Case Reports (B.C.R.) have not
been available to us here.
5 Some of the lav
journals contain a surprisingly versatile Journal section. Women’s issues
have become a prominent topic. See Salma Sobhan, Legal statuts of women in Bangladesh
(Dacca 1978).
6
Hoque, op.cit., p. 22.
7 Amirul Kabir Chovdhury, ’Rights and Place of non-Muslims in Islamic Lavs’, 35,
D.L.R. (1983), Journal section, pp. 12-15 seems to assure the Hindus of their rightful place.
8 Daniel H. H.
Ingalls, ’Authority and lav in ancient India’, Journal of the American
Oriental Society 17, 1954, pp. 34-45.
9 The
accepted authorities in this field are: Robert Lingat, The Classical Lav of India
(Berkeley 1973); J. D. M. Derrett, Religion, Law and the State in India (London 1968) and S.
V. Gupte, Hindu LaW in Bangladesh (Bombay, 2nd ed. 1947).
10 Mridulkanti Personal law of Hindus in
Rakshit, The Principles of Hindu Law (
Bangladesh and Pakistan) (Chittagong, 3rd ed. 1985).
illustrates. In significant contrast to Islamic lav, this process of revelation is not from
one identified God to his Prophet, but from an unknovn God or Great Pover 11 to a
vhole group of people, the Vedic sages collectively. The divine authority of Hindu
lav is, thus, more unspecific than that of Islamic lav. This has had many
consequences, but it is remarkable that the divine authority and totally religious nature
of Hindu lav is continually emphasised in the traditional textbooks: in the nev context
of Bangladesh, this could afford some protection to a minority legal system.
Next in chronological order and rank of imp ortance come the smrfi texts, vhich
form an extremely complex source of guidance. r2
The concept of smrti, vhat vas
remembered’, implies a lesser degree of divine inspiration. Direct contact vith an
ancient sage vho received the divine knovledge is not a prerequisite for holding
oneself out as a smrti authority. Some smri texts may rely on Vedic material, but by
and large ve find nev textual sources that vere furttyer subject to a continuous process
of updating and commenting. This is vell recognised in Bangladesh 13
The resulting
complex amalgam of texts forced sm,rti authors themselves to evolve strategies to
interpret internal contradictions, to explain avay and iron out inconsistencies, to
present, in medieval times and later, an illusory picture of legal uniformity. The
misunderstandings of the British in India are vell-knovn; but even modern
commentators uncritically reproduce statements to the effect that the is Manusmrti14
seen to possess the foremost rank.15 This is the dilemma of those vishing to create
legal uniformity out of the diverse provisions on dharma (’righteousness’ ), a concept
which flourishes on the inherent recognition of real diversity as an underlying and
quite fundamental theme of Hindu culture. The vast smrti literature vas constantly
supplemented and updated by commentaries and nev vorks, vhich gained authority
in their ovn right. 16
Under British rule, judicial precedent became, for the first time, an important
source of lav. Rakshit correctly emphasises that Hindu lav is not nov the sästric lav
itself, but vhat vas declared as such by courts of lav. 17 This makes life easier for
lavyers, but the danger of ’getting it vrong’ remains: since the British misunderstood,
at least initially, the nature of Hindu lav and its sources, ve find attempts, up to the
present day, to declare a particular smrti rule as a uniformly binding rule of Hindu
lav
11
Ibid.,
12 See
p. 8.
ibid., pp. 9-20 for details.
13
Ibid., p. 28 et al.
14 The
English translation of this text creates the impression of legal authority. See G.
Buehler, The Laws of Manu (Delhi, repr. 1975).
15 This
point is also made by Rakshit, op. cit., p. 13.
16
Ibid., pp. 20, 28, 45etal.
17
Ibid., pp. 6, 34 and 62.
18 See the
example of marriage rituals belov in the case of Amulya Chandra Modaky The
State 35 D.L.R. (1983) 160.
The Privy Council’s verdict that custom vould override a statement in a smrti
text 19 led to a poverful movement to control custom as a source of lav : the requisites
of valid custom vere strictly defined, preventing recognition of many good and
perfectly valid customs.2~ The requirements that a custom must be ancient and
certain, in particular, took no notice of the fact that customs have, in essence, alvays
been flexible. Significantly, the 1955-6 Hindu lav enactments in India took notice of
the less than ancient nature of many customs ;21
courts in India have recently
recognised ’nev’ customs as valid lav .22 Bangladesh seems to follov the Anglo-
Hindu position, though there is some evidence of the recognition of local and family
custom.2 3 An enterprising judiciary in a nev country vould have much scope for
development here, but judicial activism is not a hallmark of the Bangladeshi legal
system so far. The Hindu texts and the judicial precedents interpreting them are still
overvalued as a source of lav today, vhile custom is persistently undervalued.
The most important legal texts encountered by the British vere the MitLksarl
and the Da7abhiga: both concentrate on rules regarding property and succession
lav.24 The latter text prevailed in Bengal and is nov seen as dominant in
Bangladesh, too.25 But the Mitakfarlis still a major authority for the non-Bengali
Hindus; if a particular point is not covered by the Däyabhäga, the M1t3kjar3 may be
referred to 2b.
In summary, the pre-existing Hindu lav of Bangladesh, as introduced by the
Bangladesh (Adaption of Existing Bangladesh L a vs) Order, 1972, relies to a large
extent on Hindu scriptural sources, as modified by the Anglo-Indian courts, and on
Anglo-Indian legislative enactments vhich modified the traditional Hindu lav to some
extent.27 The place of custom in the official legal system appears suppressed, but of
great potential. In the absence of much legislation on Hindu lav, case-lav vould be
the most poverful vehicle of legal reform, but the (almost entirely) Muslim judiciary
of Bangladesh seems hesitant to ’make’ Hindu lav, for a number of reasons.
19 The
leading case here is Collector of Madura v. Moottoo Ramalinga ( 1868) 12 M.I.A.
397. See also Rakshit, op.cit., p. 34.
20 See
ibid., pp. 45-6 for details.
21 See for
example section 3 of the Hindu Marriage Act, 1955, according to which a valid
custom must have been observed ’for a long time’ rather than be ’ancient’ .
22
Babyv, Jayant, All India Reporter 1981 Bombay 283.
23 See
Rakshit, op.cit., pp. 783-94.
24 On details see G.-D. Sontheimer, The Joint Hindu Family: Its Evolution as a Legal
Institution (Nev Delhi 1977), esp. chapters 6 and 7.
25
Rakshit, op.cit., pp. 23and 41.
26
Ibid., p. 23, see also belov the case of Bmanda Kishore Tarafdar v. Debendra Dutta at
1981 B.L.D. 542.
27 See
Rakshit, op.cit., pp. 47-50 for details.
28
Ibid.,p. 51.
29 See J. D. M.
Derrett, ’"Hindu": A Definition wanted for the Purpose of Applying a
Vergleichende Rechtsvissenschaft (1968), pp. 110-28.
Personal Law’, Zeitschrift für 70
30 55-6.
Rakshit, op.cit., pp.
31
Idem., more recently in India, conversions have been encouraged as a means to gain
benefits from the reservation policies.
32 The case one vould
rely on is Gopal Maharaja Kumar v. Sita Devi 36 C.W.N. 382
(P.C.).
33
Rakshit, op.cit., pp. 51-2.
34 See
ibid., pp. 52-5.
35
Ibid., p. 520.
3b D. C. 1986.
Bhattacharya, ’Hindu Ain Sangskaran’, Sangbad 6th March,
37 The case is
reported at 32 D.L R. (H.D.) (1980) 187.
1972. 38 This legal insecurity further illustrates the lack of knovledge about the Hindu
personal lav in Bangladesh. In such confusion, a constructive development of the
personal lav system can hardly be expected.
The Bangladesh Case Lav relating to Hindus
A perusal of the case-lav of Bangladesh shovs at once that many cases involve Hindu
litigants. This reflects the considerable proportion of Hindu population in the country;
more importantly, the case-lav indicates the socio-economic position of Hindus as
active participants in all areas of the economy and public life. Hindus are found both
as petitioners and as respondents in many cases involving the general lav of the
country, particularly in property lav disputes (vhich seem to make up the bulk of
litigation), in landlord-tenant matters, criminal lav, and a vide variety of other cases.
Some of the important public lav cases have been brought by Hindus.39 A
remarkable number of cases involving Hindus have to do vith ’enemy property’
matters,4~ some involving interesting questionsof international lav. 41I
Cases under Hindu lav itself are comparatively rare, vith perhaps only tvo or
three reported cases per year. Such cases tend to be in the area of joint family lav,
involving succession and inheritance rights, clarifying the position of individual family
members, especially vomen vho are vidoved. There are some cases relating to the
Hindu lav of deities but very fev on marriage, divorce and adoption.
It seems characteristic that in most cases on property and succession lav
preference is given by the judicial system to the application of general statute lav rather
than the rules of personal lav. Thus, in Azizur Rahman v. Jugal Kishori Sarkar 36
D. L.R. ( 1984) 351, a dispute over the definition of ’undivided family’, section 4 of
the Partition Act, 1893, an obscure Anglo-Indian statute, vas used rather than the
uncodified principles of Hindu lav. One could adduce many cases vhere a similar
pattern is repeated.42 Courts do not state their reasons for using such Acts rather than
the personal lav ; of course the traditional principles of Hindu (and in many cases
Muslim) lav are more difficult to ascertain than statutory provisions. It seems that the
38 See
Rakshit, op.cit., pp. 52-5.
39 For
example Aruna Sen v. Government 27 D.L.R. (1975) 122; Manik Chovdhuryv.
Government 27 D.L.R. (1975) 295, Amaresh Chandra Chakrabortyv. Bangladesh 1978
B.S.C.R. 429 and Krishna Gopal Bhowmick v. Secretary, Ministry of Home Affairs 1978
B.S.C.R. 421. All these cases concern preventive or illegal detention, vhich may have been a
particular problem for Hindus.
40
See, for example, M/S Dulichand Omraolal
. Bangladesh 1980 B.S.C.R. 353and 1981
y
B.L.D. (A.D.) 1, GuruDasSahav. Bangladesh 1978B.S.C.R. 439.
41
Nurunnessa v. B.L.D.
In
1981 Babar Ali Bepari (A.D.) 86 and Manindra. Mohan Kar v.
Ranadhir Datta 38 D.L.R. (1986) 240 power of attorney vas at issue; Kumar Ram Narayan
Roy Chowdhury v. Sonatannessa 1977 B.S.C.R. 99 raised an interesting question on the use
of commissions in a foreign country.
42 See for
example Khitindra Chandra Bhattacharya v. Jalada Devi 35 D.L.R. (A.D.)
(1983) 102, Radhakrishna Jogani v. Dvarka Das Agaravalla 36 D.L.R.(A.D.) (1984) 253
applies the Partnership Act, 1932 rather than principles of Hindu joint family law.
judiciary and the legal profession here collude, as it vere, in creating a nev pattern of
legal regulation that deviates from the Anglo-Indian model of division betveen general
lav and personal lavs, as instituted in 1772 by Warren Hastings, and as operated in
India till today, albeit vith modifications. A trend tovards a uniformly applicable set
of legal rules for all people of Bangladesh is thus discernible. In a method that differs
remarkably from the Indian one, vithout the statutory base and strong backing of a
constitutional provision requiring to vork tovards legal uniformity,43 ve still find a
gradual reduction in the scope of personal lavs. It vould be easy to exploit this in
terms of communal politics and to argue that Muslim judges and lavyers have
reservations against Hindu lav, and are anyvay not qualified to apply it. There is just
as much evidence, though, that Muslim lav matters are also fitted into the evolving
pattern of general lavs: cases on the Islamic lav of succession, or matters involving
Muslim joint families in Bangladesh, are also likely to be dealt vith under the general
statute law.44 This, it seems, has already led to a more uniform system of legal
regulation in certain key areas of the lav, especially in landlord-tenant relations.45
This aspect of our topic is of such great importance that it vould varrant separate
treatment.
Sometimes a point of Hindu lav needs to be decided in a dispute betveen a
Muslim and a Hindu. The choice of lav in such situations is interesting: in line vith
the general unifying trend outlined above, ve often find the general lav of the country
applied in preference to either of the personal lav systems.46
It is also quite
significant that the major subsidiary source of the Anglo-Indian legal system, namely
Justice, Equity and Good Conscience,47
seems to play a very limited role in
Bangladesh today. It is hardly mentioned in the case-lav and treated almost in passing
in the leading textbook.48
Cases under Hindu lav itself do not only appear in disputes betveen Hindus.
In A bd ul Mannan alias Kazi v. Sultan Kazi 34 D. L.R. ( 1982) 236 the validity of the
adoption of a Hindu orphan vas questioned. The court found that such an adoption
vas not valid except vhere it is established by custom.
emphasised.
46 Charubala Sen Gupta v. Abul Hashem 33 D.L.R. (A.D.) (1981) 254, Haran Chandra
Ejhar Molla D. L.R. (1984) 41.
Daradi v. 36
47 See J. D. M.
Derrett, ’Justice, Equity and Good Conscience in India’, 1962 (LXIV)
Bombay Lav Reporter, Journal section, pp. 129-38 and 145-52.
48
Rakshit,op.cit., pp. 781-3 mentions only one case in Bangladesh, which is the case on
Buddhist lav, as n. 37 above.
As indicated, there are fev cases on Hindu lav disputes among Hindus. There
are very fev Hindu judges, and Hindu lav cases vould not be necessarily allocated to
them. The strategies employed by the judiciary to decide Hindu lav matters vill be
illustrated belov. It may be said that the depth of judicial knovledge of Hindu lav is
not very impressive. Cases tend to be haphazardly decided, vith reliarbce on passages
from’authoritative’ textbooks. Decisions per incuriam, i. e. in blissful ignorance of
other legal authorities, especially at the lover court level, are not uncommon; the
impression of an outdated and somevhat confused system of legal regulation is
perpetuated to some extent. We shall nov turn to particular cases to consider in detail
hov the Hindu case-lav of Bangladesh has developed since independence.
The parties are both lov-caste Hindus, apparently §Gdras. The accused had
taken a neighbour’s daughter into his house as a servant and to look after his ailing
mother. When the mother vas removed to a tovn on account of illness, the accused
put pressure on the girl to cohabit vith him. She claimed that he proposed to marry
her by exchanging garlands, and that he vould marry her later vith full ceremonials.
Thus, a secret exchange of garlands took place betveen the accused and the girl and
49
Customary Hindu divorce has been much more frequent than is widely acknowledged,
and is well-recognised in the modern Indian legal system today. On details see: Simon
Beckwith, Hindu Customary Lav of Divorce, unpublished LL.B. dissertation, London:
S.O.A.S., 1988.
50 For cases under the same section see Abed Ali v. The State 34 D.L.R.
(1982) 366,
Malekuddin v. The State 36 D.L.R. (1984), 78 and Jalaluddm v. The State 38 D.L.R. (1986)
119.
she cohabited vith him, allegedly in the belief that she vas married to him. But vhen
the accused’s mother returned, she objected to the union, and the girl vas driven out
of the house. She claimed to be pregnant by the accused. He tried to persuade her to
induce an abortion, but she decided to have the child. She then told her parents, vho
informed other villagers. In an informal gathering (salish) the villagers put pressure
on the man to honour his responsibilities, but he refused to marry the girl. The girl’s
father then took the matter to the official legal system. In court, the accused denied that
the girl had vorked in his house, and that his mother had been ill. He claimed that the
girl must be pregnant by somebody else; allegations vere also heard about the’loose
morals’ of some of her female relations. The man further sought to claim that he vas
much younger than the girl and used to call her ’elder sister’ (didi), signifying that
their union vould fall under an incest taboo.
The court did not believe the stories of the accused, but he escaped scathing
criticism for lying to the judges. The voman received very different treatment: the
learned judge (Md. Habibur Rahman, J. ) took a very formalistic approach to the girl’s
case, refused to listen sympathetically to her and vas convinced that ’the story of
exchange of garlands... has been introduced subsequently by vay of embellishment’
(p. 163). In a thinly veiled manner, the learned judge blamed the girl for ’her folly’
(p. 164) of agreeing to illicit sex without realising the potential consequences. Having
found that the girl’s age vas, at the material time, about 17-18 years, the judge vas
quick to point out:
Thus on her ovn statement she vas mature enough to
understand vhat is a Hindu marriage and vhat is the form of
marriage in her ovn caste. (p. 163)
The judge then immediately pointed to a leading textbook of Hindu 1 where it is law, 5
stated that tvo sästric ceremonies are essential for the validity of a Hindu marriage. In
viev of the facts of the case, hovever, the learned judge also pointed out:
night could not lead to a legally valid marriage. Thus, the accused vas acquitted,
since,
In the social and religious background of the prosecutrix ...
the exchange of garlands can not be said to be an act by the
accused to adduce a belief in the mind... that she vas lavfully
married to the accused, (p. 164)
Several aspects of this case require brief comment. The court assumed that the girl
voluntarily agreed to the sexual acts and clearly blamed the girl fully for vhat had
happened. The question of duress vas never raised since the girl seemed to connive.
But did she? After all, she vas an illiterate village girl under pressure from her
employer. The court assumes a knovledge of the lav and of individual rights at an
unrealistic level. Cases of rape and abduction are not infrequent in Bangladesh;52 a
more sensitive approach might have been desirable here.
Further, it vould seem possible that according to local conditions and accepted
customary values, a man vho caused a girl’s pregnancy vould be expected to marry
her formally or at least to provide her and/or the child, more so if they are from the
same community. This is indicated by the informal salish and the arrangements
proposed by the villagers. Local morality seems less concerned vith formal legal
validity of a marriage than vith the actual facts.
The girl’s lavyers seem remarkably uninterested in her case, creating a
suspicion of male collusion. They could have raised a presumption of marriage.~3
They could have brought in the Hindu lav on gandharva marriages (the equivalent of
the modern ’ love marriage’ ); a self-arranged union may be subsequently sanctioned by
the performance of appropriate customary rituals. 54 No attempt vas made by anyone
to ascertain vhether it vas customary among some lov castes in Bangladesh to have
arrangements of this kind. 55 The locally perceived obligation system should at least
have been considered by the learned judges; male bias must have prevented this. One
vonders further why the case of A bed Ali v. The State 34 D. L.R. ( 1982) 266 vas not
referred to. It had been decided by the same tvo learned judges only six months
before, and explained section 493 of the Penal Code in detail.
The judgement raises more questions than it ansvers. Amulya Chandra Modak
is likely to be relied on as a precedent in the development of Hindu lav in Bangladesh
Yet its uncritical reliance on a particular textbook, and the court’s biased position, do
not inspire confidence. The headnote of the case, that invocation before the sacred fire
52 Shah Alam alias Shah Ali v. The State 1986 B.L.D. (A.D.) 88 is a case about the
abduction of a girl.
53 See
Rakshit, op.cit., p. 81, vhere the conflict of opinion is indicated.
54 This
may not have been easy. The Hindu law on gandharva marriages tends to be
formalistic, as indicated by J. D. M. Derrett,’’The Gandharva Marriage and the Supreme
Court’, 1982 Kerala Law Times, Journal section pp. 3-4.
55The case of Brindavanan v. Radhamony (1899) I. L.R. 12 Madras 72 could have been of
some assistance.
and saptapadi (the ’seven steps’ ) are the tvo essentials for a valid marriage under
Hindu lav is liable to be misunderstood, as in India.56 Local and caste custom is
undervalued, since there may be very little formal ritual, 57 or even no ritual at all,
depending on the circumstances.5$ The court’s comments on the requirements of
Bangladeshi Hindu customary lav presume an extent of formality vhich may not in all
cases be folloved. As indicated, only detailed fieldvork could ansver such
questions. The informal local process of mediation vould have yielded a very
different result, preferable to vhat the official legal system had to offer in the end.
The implications for Hindu lav in this area are apparent: complainants may be
better off to avoid approaching the official legal system, since only elite and male
issues vill receive appropriate treatment. The absence of reported cases in this area is,
therefore, not at all surprising. As it stands, Amulya Chandra Modak contributes little
to the development of satisfactory Hindu lav of marriage. In fact it could be a
formidable obstacle for Hindus seeking to prove less formal entries into Hindu
marriage in Bangladesh. Significantly, this is not the only case in vhich the courts
refuse to endorse arrangements by individuals or families as legally valid and binding,
thus seeking to educate people into using the official legal system rather than a set of
customary values and obligations. 59
Adoption Lav
We sav already that in Abdul Mannanv. Sultan Kazi 34 D.L.R. (1982) 236 the
adoption of an orphan under Hindu lav vas held not valid, except vhere it is
established by custom. In this extremely brief case the learned judge seems to shy
avay from any detailed discussion of Hindu lav, is content to state a particular
principle and leave the matter there.
The only other adoption case reported is that of MlS Anath Bandhu Guha v.
Sudhangsu Sekhar Deyat 1979 B.S.C.R. 509.60 Here the major issue is the status of
an adopted son. A married man of §adra origin had been adopted in 1975 and had also
been given a share in a company, as a gift. The company, represented by its directors,
56 See for
example Paras Divan, Modern Hindu Lav (Allahabad, 5th ed. 1982), pp. 78ff.
57 W. F.
Menski, ’Solemnisation of Hindu Marriages: the Law and Reality’, 1985 Kerala
Lav Times, Journal section, pp. 1-10.
58Hindu
widow-remarriage may involve, customarily, not ritual at all, i.e. a ’zero-ritual’
leading to an accepted and fully valid marriage. See W. F. Menski, ’Is there a Customary
Form of Widov-Remarriage for Hindus?’, 1983Kerala Law Times, Journal section, pp 69-
72.
59 In Ashutosh Maliv. Shamsunnahar 33 D. L.R.
(1981) 254 a similar approach was taken
with regard to property transfers. Sometimes, hovever, the courts have been ready to
acknowledge the place of informal arrangements. In Amudi Mamud v. Elah1 Baksha Sarker
1986 B.L.D. 67 a lawful compromise vas upheld. ’Contract’ vas held to include oral
contracts in Suchitra Kumar Das v. Sree Indu Bhusan Sarkar 1981 B.S.C.R. 114; Rezaur
Rahman v. Ahmed Hossain Khan 1986 B. L.D. 14 accepted this with some reservations.
60
Rakshit, op.cit., pp. 109, 120, mentions a case at 31 D.L R. (1979) (A.D.) 312, which
vas not available in London. It is presumably the same case.
directors, vas unvilling to accept this adopted man as a ’child’; it questioned the
adoption itself and the claim over a share in the company. The Supreme Court of
Bangladesh refused to re-open the issue of validity of adoption and Mr. Justice Ruhul
Islam held that there vas no authority ’in support of the proposition that under the
Hindu Dyabhaga [sic] lav adoption of a’Sudra’ or for that matter ’a married Sudra’ is
not permissible’ (p. 511).
Significantly, no attempt vas made here to clarify a very complex issue of
Hindu law.611 The case gives an indication though, of the conceptual tensions
betveen the Hindu personal lav and a secular lav like the Companies Act, 1931 and
its scheme of regulation. The learned judge here, in viev of lover court statements on
this issue, sought to harmonise and held that,
The adopted son’s position judicially endorsed, the company’s appeal vas dismissed.
Such a meagre crop of case-lav gives little guidance on the lav of adoption in
Bangladesh, though. Sociological studies indicate that it is a much more common
phenomenon than is readily admitted by all communities,63
and clarification vould be
desirable.64
The Lav of the Hindu Joint Family in Bangladesh
There are a significant number of reported cases on this vide topic. As ve sav,
Bangladesh has inherited the Anglo-Hindu lav here, so one vould expect various
Sanskrit texts to be an important source of lav. Further, decisions of the Anglo-
Indian courts vould supersede scriptural rules,65
and relevant statutes like the Hindu
Women’s Right to Property Act, 1937 have modified the lav further. But from the
reported cases, there is very little evidence of the use of Sanskrit texts in the courts of
Bangladesh. Some general points have been covered by the case-lav. Thus it vas
held in 1972 that the concept of Hindu undivided family, for tax purposes, applies to
all schools of Hindu lav.66 Azizur Rahman v. Jugal Kishori Sarkar 36 D.L.R.
(1984) 351, a case under section 4 of the Partition Act, 1893, discussed in some detail
vhat ’undivided family’ means in a partition suit. Here, too, a complex matter of
Hindu lav is dealt vith under a general law statute.
Priyatosh Talukder v. Assistant Custodian of Enemy Property 36 D. L.R.
(1984) 153 re-states that the Hindus of Bangladesh are generally governed by the
Dayabhaga school of Hindu lav. Under it, a complex case about the position of half-
sisters and their off-spring in inheritance is found in Satish Chandra Das v. Diliph
Chandra Misra at 37 D. L.R. (1985) 134. Where there is no conflict betveen
M1t3kjar3 and D3yabh3ga and the latter is silent on an issue, the Mitaksara system vill
apply according to Binanda Kishore Tarafdar v. Debendra Dutta B. L.D. 542. 1981
Though this is not pointed out by the learned A.
judge (M. Khaliq, J. ), the technique
used here is that of Justice, Equity and Good Conscience, in vhich any suitable
developed system of lav may be applied to fill a lacuna.
Several partition suits67 and many suits over the right of pre-emption (in vhich,
reference to Hindu lav is often only made ’betveen the lines’) form a major share of
the reported cases. Several points of detail have been decided upon. Thus, in
Dhirendra Narayan Das v. Gouranga Mohon Das 34 D. L.R. ( 1982) 177 a hierarchy of
claimants, again under a general statute, vas determined, vith co-sharers by
inheritance having highest priority. Presumably, such decisions under general statutes
(here the extremely vell-ized State Acquisition and TenancyAct, 1951 ) apply also to
the many Muslim joint families.
Acute avareness of the complexities of joint family lav is reflected in a fair
number of suits. As early as 1972 the distinction betveen self-acquired property and
joint property vas at issue in Basanta Kumar Basak v. Santosh Kumar Basak 24
D.L.R. (1972) 84. Tvo disputes have been particularly vigorously fought in the
courts. Nimai Kumar Dutta v. Ramesh Chandra Dutta at 1980 B.S.C.R. 390 and
1981 B. L.D. (A.D.) 189 is a dispute betveen an uncle and his nephev, vho sought
to claim that there vas, in fact, no joint family. The Appellate Division of the
Supreme Court held that vhen the existence of joint family property had been shovn,
the burden of proof shifted to those vho asserted that further acquisitions vere not
part of the joint family property. A reviev petition, Ramesh Chandra Dutta v. Nimai
Kumar Dutta 34 D. L.R. (A.D. ) ( 1982) 83 vas dismissed as having no merit.
Gopal Chandra Mondol v. Lashmat Dasi 34 D.L.R. (1982) 145 is a suit for
partition of joint family property, at first sight a case about burden of proof and related
matters under the Evidence Act, 1872. The learned single judge in this case, Mr.
Anvarul Hoque Chovdhury, dismissing the plaintiff’s case, took a very formal
approach and relied heavily on evidence of land records and rent receipts, all in the
Premhari Barman v.
66 The Commissioner
Taxation 24 D.L.R. of (1972) 198.
67
Apart from the cases discussed belov see especially Sanjib Kumar Bose v. Kusum
Kumari Debi 34 D.L.R. (1982) 127 and Haran Chandra Daradi v. Ejhar_Molla 36 D.L.R.
(1984) 41, the latter a suit under the Code of Civil Procedure, 1908.
name of one particular family member, to hold that that member vas the sole ovner of
the disputed property. Since this single ovner’s right had then passed to his only
daughter, one can sense the anger of the agnates over the fact that a voman should be
alloved to have sole control over the disputed property, vhich she had already sold to
someone else. If that vas indeed the reason for the litigation, the decision vas entirely
proper, protecting the rights of a voman against land-grabbing male relatives. There
is another aspect to this case, hovever, and one vonders vhy it vas not raised. In
our viev, bringing in the Hindu lav of the manager of a joint might have ledfamily68
to a very different result. It is not unusual that family members vill trust the oldest
male in the family to run their affairs for the benefit of the joint family. From the facts
it vould seem possible to infer that ve had here a typical karta (manager) in action.
Unfortunately, his co-ovners trusted him till it vas too late.
This case vent on appeal to the Supreme Court recently: Gopal Chandra
Mondal v. Lasman Dasi 39 D. L.R. (A.D. ) ( 1987) 73. A Bench of five learned judges
found no merit in the appellant’s case, but one feels uncomfortable about the vay in
vhich evidence vas considered. It seem hypertechnical, in Bangladesh, to expect a
man to produce papers in court, tvo generations after the events occurred, to establish
legitimacy of offspring. This very formal approach is all the more surprising as a
learned single judge vho had heard the case before had pointed out the value of family
arrangements, which are generally accepted as extremely important in South Asia.69
Gopal Chandra Mondal may encourage ruthless managers of joint family property to
act improperly and in disregard of the interests of their coparceners.
A related issue has given rise to much litigation: vho is to be impleaded in cases
vhere several people have an interest in a particular property? The courts discuss
such issues under the general procedural lav and have given verdicts in favour of
impleading or adding all persons vho have an interest in a particular The property.7 ~
aim is to achieve court-induced family arrangements that avoid further litigations.
Thus a fairly clear picture emerges vith regard to joint family lav matters: many
complex issues have to be dealt vith, but the courts are not ready to go back to the
ancient Hindu lav principles, or even the Anglo-Indian cases - nor can they rely on
modern enactments. So a nev case-lav has been developed, peculiar to Bangladesh,
mainly in the context of general lav, vith very limited reference to traditional Hindu
lav.
68On this see in detail Rakshit, op. cit, pp. 466f., which offers abundant guidance on the
subject.
69 See
1bid., pp. 515f. and J D. M Derrett, A Critique of Modern Hindu Lav (Bombay
1970), pp. 281f.
70See for
example Hupen Majh1 v. Munsh1 Abul Khair 1979 B.S.C.R. 518 and Parimal
Majumdar v. Abdul Sobhan 39 D.L.R. (1987) 352.
particular communities. While a feeble attempt to shov that the remarriage vas merely
a concubinage vas not looked upon seriously, 75 the customary arrangements among
Bangladeshi Hindus in this regard vere not considered in adequate detail. Instead, the
court relied on a string of Anglo-Indian cases (though it is apparent that there vas no
unanimity of opinion betveen all the High Courts of British India on this point) to
hold that every Hindu vidov, on remarriage, loses her rights in the deceased
husband’s property. This decision may be conducive to creating a uniform legal rule,
but it seems unsatisfactory for tvo reasons. Firstly, because it does not consider the
rights that may have accrued to such vidovs by custom, vhich certainly ought to be
respected by Hindu lav. Secondly, as the learned judge vas vell avare (p. 152), the
Indian lav on this point today is very different and protects the interests of Hindu
vidovs much more effectively than the Bangladeshi courts. Here, then, another
unfortunate attack on vomen’s quest for more equal treatment. Regrettably, the
interesting efforts to utilise the traditional sources of Hindu lav to develop a Hindu
lav rule for Bangladesh today has led to an undesirable departure from the traditional
71 Tvo
reported cases on this are Rekha Datta v. Chittagong Urban Co-operative Bank L td.
1981 B.L.D. (A.D.) 262 and Sanjib Kumar Bosev. Syed Shamsuddin 1981 B.L.D. (A.D.)
311 (= 1981 B.S.C.R. 211).
72 See Michael R.
Anderson, Sati. The Social History of a Crime. Unpublished LL. M.
dissertation, London: S.O.A.S., 1988.
73 Mihir Lal Saha Poddarv. Zhunu Rani Saha 37 D.L.R.
(1985) 227.
74 Mofazzal Mollav. Parul 24Bala
Debi D. L.R. (1972) 116.
75 See note 58 above.
respect for customary traditions and family arrangements. The end result is not an
equitable solution for Hindu vidovs in Bangladesh.
The only reported case about the Hindu vidov’s right of alienation is .Ioyanta
Bijoy Chakrabortyv. Gopesh Chandra Chakrabortyat 35 D.L.R. (1983) 319.
Significantly, this case is dealt vith under section 5 3A of the Transfer of Property Act,
1882, an important general lav statute. The court also takes much assistance from a
fairly recent edition of Mulla’s Principles of Hindu lav76 vithout going into any
details on the classical lav itself. The brief point for consideration vas vhether there
could be a valid contract if legal necessity for the alienation had not been shovn.
Since, hovever, the man vho vould othervise have inherited the property had
consented to the alienation it vas held that there vas a presumption of legal necessity.
This case throvs some light on the position of isolated old vomen vho may be
villing to gift away their property (albeit held as ’limited estate’) to a particular relative
in exchange for goodvill and protection. Unfortunately, this aspect of the case vas
not considered, though ve knov that such voluntary renunciation of shares held by
females is common in South Asia and nov also among Asians in Britain. The case
certainly does not offer a usable concept of legal necessity, and the judge had some
harsh vords for the confused lavyer appearing on behalf of the petitioner. As a
guiding light for the future development of Hindu lav this case, too, is of little value.
In Geeta Rani v. Bangladesh 36 D. L.R. (A.D. ) ( 1984) 225 the principal issue
vas vho vould inherit a prostitute’s property under Hindu lav. A prostitute had
bought some land in 1953 out of her ovn income and had lived on this land vith her
daughter till her death in 1976. The state authorities then, quite mischievously, argued
that the voman had died intestate and that in the absence of any heirs the property
vould fall to the state. The daughter vas advised to file a suit for declaration of title,
but her claim vas disregarded by the lover courts throughout. When the final appeal
vas heard by a bench of four judges in the Appellate Division of the Supreme Court,
justice vas done. The tvo learned judges vho gave separate opinions but concurred
in alloving the appeal looked through the local government officer’s scheme to
deprive a vulnerable voman of her property (p. 233) and criticised the lover courts
for misdirecting themselves and for unnecessary consideration of the question of the
plaintiff’s parentage. Having found that Hindu lav had to be applied in this case, the
learned judges held that for the purpose of inheritance from the mother it is necessary
to prove maternity and not paternity. Proof of maternity vas a question of fact; since
there vas evidence that the plaintiff had not disovned her prostitute mother, she vas
held to be the rightful swccessor.
This is, not doubt, a very satisfactory decision, but the extent to vhich Hindu
lav vas actually considered is remarkably small. The court makes reference to a fev
Anglo-Hindu lav cases, but the concept of stridhanam (’female property’), vhich is
clearly applicable here, is never even mentioned. Notably, one of the judges displays
his avareness of the developments under the Hindu Succession Act, 1956 in India.
76 The 14th
edition, Bombay 1974, vas used here.
He also makes the revealing statement that it vould be erroneous to bring in the
English lav concepts here vhile considering a case under the codified lav of
Bangladesh (p 229-30). It is remarkable in itself, though, that an English case is here
referred to at all, since this is not a common phenomenon in Bangladesh and is quite
contrary to the expectation of many lavyers.
(1984) 47 took great pains to determine a number of issues and upheld the right of
individual vorshippers to bring a case. This case is likely to be of some interest in that
it also discusses the question vhether a deity’s abode may be moved.
Finally, the shebai t’s competence to alienate the property of the deity vas at
issue in Chattesvari Debi Biagraha v. Shirish Chandra Das 36 D. L.R. ( 1984) 221. It
vas held that there must be an imperative and compelling legal necessity to varrant
such alienation. A second issue in this case concerns the procedural question vhether
all shebai ts are necessary parties in a suit in respect of debuttor property. This point
vas ansvered in the affirmative, but on appeal before the Appellate Division of the
Supreme Court it vas held in Shrish Chandra Das v. Sri Sri Chattesvari Debi Bigraha
1986 B. L.D. (A.D. ) 291 (= Srish Chandra Das at 38 D. L.R. (A.D. ) ( 1986) 283) that
non-impleading of all the shebaits in this particular suit did not render it bad. The
general position (see above n. 70) is thus maintained. This case, again, is only
peripherally about Hindu lav and concerns mainly the general procedural lav of the
country.
Benami Transactions
There is a surprisingly large group of reported cases on this subject in 1981. Benami
transactions, in vhich a person purchases a property in the name of another vith no
intention to make that person the beneficiary are so familiar in South Asian conditions
that even a quantity of evidence to shov that it vas a sham transaction may suffice,
especially if a husband used his vife as be~lamdar.77 In Shefalika Debi v. Belarani
Debi 1981 B. L.D. 256 complications arose because the benami transaction vas alleged
to have given benefits to members of the joint family as vell. Fortunately, perhaps,
the court here refused leave to appeal. In the leading case Nurjahan Begum v.
Mahmudur Rahman Mallick 1981 B.L.D. (A.D.) 506 (= 1981 B.S.C.R. 164) a
Muslim husband had purchased some property in the name of his vife, vho later
refused to accept that she should be a mere benamdar. The appeal centred on the
question of burden of proof; it vas held that the source of the purchase money is an
important criterion, but not necessarily the determining factor (p. 190 and 527). What
really counts is the intention of the parties to the transaction. Finding that the lover
courts had not properly applied the lav of benami in this case, the Supreme Court
(Ruhul Islam, J. ) came to the rescue of the vife. This case is also interesting in that it
contains a short history of the practice of benami and the major reasons for it (pp. 168-
9 and 509-10) as vell as a reviev of the Anglo-Indian case-lav. The above case has
been relied on more recently: ins Hossain v. Badsha Meah 36 D. L.R. ( 1984) 37, a
benami transaction among Muslims, vhich is othervise only remarkable for its
references to leading Indian cases. In Ashvini Kumar Karmaker v. Hari Mohan 35
D L.R. (A.D.) (1983) 334 and 36 D. L.R (A.D.) ( 1984) 1 a benami transaction vas
discussed at length in a pre-emption suit under the State Acquisition and TenancyAct,
1951. Tvo further cases are found, S. Joga Maya Debi v. S.D.D. Singh Hazari at 36
D.L.R. (1984) 272 and Ala Meah v. Ali Ahmed at 40 D. L.R. ( 1988) 26. All these
cases strengthen the impression that benami is a matter for the general lav of
Bangladesh rather than a topic of Hindu lav.
The Lav of Wills .
Rakshit explains that vills as such vere not knovn to classical Hindu lav, but that
they developed generally as a part of the lav of gifts.78 The Anglo-Indian textbooks
and English solicitors in Calcutta, in particular, contributed to the development of a
Hindu lav of vills, especially under the Da7abhaga system. The Hindu Wills Act,
1870 reflected the groving use of this device in the Presidency tovns; further
enactments folloved in the Hindu Disposition of Property Act, 1916 and the Indian
Succession Act, 1925. The effect of some further amendments has been to make the
lav of vills a general lav governed by statute. 79
Consequently, the case-lav does not mention or apply Hindu lav. The large
number of reported cases involving Hindu litigants attests to the importance of this
topic; the facts of some of the cases point to protracted litigation. Thus in Bisvasvar
Das Karmaker v. Sasanka Mohan Das Karmaker 35 D. L.R. (A.D. ) ( 1983) 315 the
original vill vas executed in 1921. As in this case, too, mainly procedural matters fall
for decision by the courts. Frequent reference to Indian case-lav, even very recent
cases, is noticeable in this area. $0Most cases are brought under the Succession Act,
1925. 81 The subject appears to have gained great importance, as the absence of a vill
may lead to the state’s claims on the property (see Geeta Rani’s case above). It seems
probable that the Bangladeshis, as South Asians elsevhere, are becoming more
familiar vith this institution. On vhat lines vills are actually made is too big an issue
to be tackled here, but this vould seem to be an interesting topic for future research.
Conclusions
The Hindus of Bangladesh are vell-represented in the reported case-lav, using the
legal system of the country as any other citizens. Hindu lav clearly remains an
important part of the legal system of Bangladesh, though ve have detected evidence of
a movement tovards the creation of a generally applicable, uniform, secular legal
system. Hov this vill be harmonised vith the stated intention to ’islamise’ the legal
system of Bangladesh remains to be seen.