Islam and Women's Income

Dowry and Law in Bangladesh

Farah Chowdhury, Farah Deeba Chowdhury

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138228467
• eBook ISBN: 9781315390680
• Edition: 1
• Topic: Law
• Subtopic: Gender & The Law
• Index: Law

This book examines the interrelationship between law, culture, patriarchy and religion in the context of contemporary Bangladesh. It explores the role of Islam in society and politics generally, and its influence on gender equality in particular. The work focuses on the situation of married women. Taking a socio-legal approach, it analyses the changing nature of the dowry practice and its relation to women's increasing paid labour force activity. Despite anti-dowry legislation, it is argued here that the dowry system continues in the form of the appropriation of wives' income. The work calls for legal recognition of this action and the amendment of the Dowry Prohibition Act 1980 as a result of the changing social realities that are taking place in the lives of Bangladeshi women. An Islamic approach is applied to equality between men and women in addressing and analysing these issues. The book includes international comparisons on gender equality and discusses the role of the Convention on the Elimination of All Forms of Descrimination Against Women (CEDAW), as well as the dowry system in South Asia.

The book will be of interest to academics and researchers working in the areas of law and religion, gender studies and international development.

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1 Introduction

This book is a study of the interrelationship between law, culture, patriarchy and religion in the context of contemporary Bangladesh. The particular focus of this book is the situation of married women in Bangladesh, where 90.39 per cent of the population is Muslim (Bangladesh Bureau of Statistics, 2013, p. 51) and Islam plays a very important role in society and politics. The legal status of Muslim women in Bangladesh is defined by the Muslim personal law along with the general law, which is secular in nature. The Muslim personal law covers the areas of marriage, divorce, maintenance, guardianship of children and inheritance. The general law deals with rights under the constitution, penal codes, civil and criminal procedure codes, evidence acts, etc. (Kamal, n.d, p. 4). This book argues that while Islam plays a vital role in Bangladeshi society and politics, many practices involve a misinterpretation of Islam that serves the interests of husbands who seek to control their wives’ income and other financial resources and assets. In Bangladesh, most husbands, and in some cases in-laws, control women’s income and assets either directly or indirectly. I characterize this appropriation of wives’ income as a new form of dowry. This book builds on my previous research concerning middle-class married women’s income in Bangladesh. For this research, I undertook interviews with 50 middle-class working women in Rajshahi, one of the divisional cities in Bangladesh, to determine the extent to which married women are able to control their own income, and was able to establish that most husbands, and in some cases mothers-in-law, do indeed control wives’ income directly or indirectly (Chowdhury, 2007; Chowdhury, 2010b).

Bangladesh, which achieved independence in 1971, has been experiencing rapid socio-economic changes. Traditionally, women in Bangladesh are expected to take on child rearing and domestic activities. A central argument of this book is that Bangladeshi women are oppressed through misinterpretations of Islam by Bangladeshi men. Historically, women were prevented from being educated and joining the paid labour force through the misinterpretations of religion. Since independence, growing economic hardships, increasing opportunities for female employment and education, together with changing societal attitudes towards female employment and education have facilitated the entry of women into the paid labour force (Chaudhury, 1979, p. 162). Bangladeshi women, both urban and rural, are no longer hesitant about joining the paid labour force whenever opportunities arise (Khan, 1993, p. 3). Islam is no longer a barrier to women’s paid work outside the home, but through the misinterpretations of Islam, married women are still expected to contribute their entire income exclusively to their husbands, children and in-laws’ families. In Bangladesh, it is generally accepted that upon marriage women are transferred to their husbands’ families (Chowdhury, 2004, p. 247). Most husbands consider their wives as property, and the patriarchal culture in Bangladesh falsely teaches girls that it is their religious duty to ensure the happiness of only their husbands and their husbands’ families. Bangladesh’s patriarchal society does not convey messages to women of their broader responsibilities set out by Islam (Chowdhury, 2009b, p. 610). Husbands, and in some cases fathers-in-law and mothers-in-law, control wives’ income directly or indirectly (Rashid, 2006, p. 156; Chowdhury, 2010b). I find that husbands employ a number of strategies to control their wives’ income, including: withdrawing their financial support; directly taking all of their wives’ income; saving their own money while expecting their wives to meet family expenditures; threatening their wives by saying that they will not allow them to continue their jobs unless they hand over all of their income; buying land or flats in their own names by taking out loans and then repaying the loans with their income, thus compelling their wives to meet family expenditures; giving false information about loan commitments to their wives thereby trying to take all of their wives’ income for personal expenditure; attempting to use their wives’ income to invest in businesses; and appropriating their wives’ income to maintain their parental family. Generally, however, wives are not allowed to look after their own parental families (Chowdhury, 2010b, pp. 1–30).

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Despite these widespread practices by Bangladeshi husbands, Islamic law actually prohibits the appropriation or control of a wife’s income by her husband or in-laws. Dower is an essential part of Muslim marriages. The distinction between dowry and dower is often misunderstood. Dower is religiously sanctioned and approved by the state and personal law; however, dowry is neither religiously sanctioned nor supported by state law in Bangladesh. The dower is paid by the husband to his wife as an honour and to show respect, and also to show that he seriously desires to marry her with a sense of responsibility and obligation (Monsoor, 2003). On the other hand, dowry refers to ‘the transmission of large sums of money, jewelry, cash and other goods from the bride’s family to the groom’s family’ (Monsoor, 2003). Maintenance is the lawful right of a wife to be provided at the husband’s expense with food, clothing, accommodation and other necessities of life in Bangladesh. This law derives from the injunctions of the Quran, the Prophet’s traditions and the consensus of jurists. In Bangladesh, a wife is entitled to maintenance whether she is economically solvent or not. In Mst. Amena Khatun v. Sherajuddin, (1965) the lower court took the view that the husband was absolved from the duty to maintain his wife because she was a woman of means. On appeal to the higher court, C. J. Murshed held that, legally, such a proposition is not tenable. The competence of a wife does not absolve the husband from his duty to maintain her (Mst. Amena Khatun v. Sherajuddin, 1965, p. 690). According to Islam, women have every right to spend their income independently and to control their own money. Badawi (n.d., p. 16) writes:

No married woman is required to spend any amount at all from her property and income on the household. In special circumstances, however, such as when her husband is ill, disabled or jobless, she may find it necessary to spend from her earnings or savings to provide the necessities for her family. While this is not a legal obligation, it is consistent with the mutuality of care, love and cooperation among family members.

Formally, dowry has been abolished by law in Bangladesh (Government of the People’s Republic of Bangladesh, 1980). Despite the anti-dowry legislation, the dowry system has continued and shifted as a result of women’s increasing paid labour force activities. When women started participating in paid employment, men adopted various strategies to accumulate wealth from their wives. Their attitude is: ‘We do not want dowry. We want working women.’ Women’s income is considered as ‘sufficient compensation for waiving dowry demands’ (Kabeer, 1997, p. 299). A woman worker said: ‘How can they ask for dowry to marry us? We are the dowry’ (Kabeer, 1997, p. 291).

I argue in this book that Bangladeshi law should be reformed to make the appropriation of wives’ income into a punishable offence. I recognize that law alone cannot change Bangladeshi society. Social change has to be more than just legal reform, but the legal reforms that I am recommending for the Dowry Prohibition Act 1980 can be the first step to changing societal values. After the act came into being, many families changed their way of demanding dowry. Men now say that they do not want dowry, but they want working wives. In fact, their main intention is to appropriate wives’ income. The legal reforms that I recommend will very likely have an impact on the people of Bangladesh. Women will be able to use this law, once reformed, as a bargaining tool within their marriages and divorced women will be able to take their husbands to court for violating the law.

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In this book, I use an Islamic approach to equality between men and women in addressing and analysing this issue. Islam incorporates both formal and substantive equality regarding Muslim women. In my book, I demonstrate that Muslim women have every formal legal right to control what they earn and possess. Informed by an understanding of substantive equality, I argue that a wife’s ability to earn does not absolve her husband from his duty to maintain her. Dower and maintenance, to be provided at the husband’s expense, and encompassing food, clothing, accommodation and other necessities of life, is the lawful right of a wife in Bangladesh. The practice of appropriating or controlling wives’ income should be considered a form of dowry and made a criminal offence because of the presence of Islamic dower and maintenance laws in Bangladesh.

Theoretical and conceptual issues

Equality debates in the West

The struggle for women’s equality and the elimination of discrimination lies at the heart of contemporary feminism. However, from the very beginning, the definition of equality has been controversial and contested. In the early years of the twentieth century, the concept of formal equality was used in the West by feminists who began to struggle for universal suffrage. Feminists in the United States, the United Kingdom and Canada argued that they deserved the same rights and privileges as men and considered the issue of suffrage as the most important of their goals (Kealey, 1979, p. 10). Advocates for such formal equality are associated with liberal feminism. A liberal concept of equality calls for the elimination of laws and social practices that discriminate against women. This model is informed by the writings of John Stuart Mill (1869), who opposed laws and social practices that deprived women of equal civil rights. Diana Majury (2002) writes, ‘Formal equality is premised on the understanding that equality means treating likes alike and posits same treatment as its defining feature’ (p. 305). Using formal equality, women have officially achieved legal equality with men in the West. The recognition of formal equality between men and women was an essential step towards achieving legal and social equality. Sandra Fredman (1997, p. 11) writes:

The extent of the contribution of liberal feminists to the emancipation of women should not be under-estimated. The slow but consistent movement towards removal of formal legal impediments against women was achieved partly because of the effective harnessing of liberal concepts to the cause of women’s emancipation.

In the UK, full equality was not achieved until 1928 when the voting age for both men and women was set the same at twenty-one. However, formal equality was not realized and until 1963 women were prevented from entering the House of Lords. Furthermore, sex-based discrimination against women also continued legally until 1975 and political rights for women took decades to take effect fully (Fredman, 1997, p. 66). Formal equality has found expression in law reform in Canada. Canadian women achieved the right to vote in federal elections in 1918 (Hogg, 2009, p. 1059). In addition to the right to vote, they achieved the right to an education, to practise a profession, to earn money, to own property, to hold office and so on, just as men have. In the United States, equality has been shaped by the ‘evolution of the equal protection doctrine’, which is guaranteed by the constitution through the Fourteenth Amendment. However, the American Constitution offers a very broad guarantee of equal protection under the law (Weisberg, 1993, p. 123). The Supreme Court used constitutional equal protection analysis in the case of pregnancy in Geduldig v. Aiello and held that a state disability insurance programme’s pregnancy-based categorization was not a violation of equal protection (Geduldig v. Aiello, 1974). As the Supreme Court identified this as a classification between women who are pregnant and people who are non-pregnant, this comparison based on pregnancy discrimination was not seen as discrimination based on gender. In the case of General Electric Co. v. Gilbert, the Supreme Court again upheld another disability plan where pregnancy-based discrimination was not considered sex discrimination in employment (General Electric Co. v. Gilbert, 1976).

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However, due to feminist criticism, the Pregnancy Discrimination Act was passed in Congress in 1978 to prevent further discrimination based on pregnancy, childbirth and other related medical conditions (Weisberg, 1993, p. 123). Early cases in British courts also held a similar restrictive outlook of equality where likes were treated alike. As there are only pregnant women and no male equivalent, British courts completely excluded pregnancy from anti-discrimination law, and discrimination based on pregnancy was thus legally permitted (Fredman, 1997, p. 185). Later, in Hayes v. Malleable Men’s Working Club and Institute (1985), the treatment of pregnant women was compared to that of ill men. However, even this argument is flawed, as Fredman (1997) points out that in order to find a male equivalent, pregnancy is being compared to an illness, which it is not and ‘should not be stigmatized as unhealthy’ (p. 186).

Martha Chamallas (2003) has argued that Western feminists placed an importance on women’s similarity to men (p. 16). In her view, a formal concept of equality considers ‘difference as a disadvantage’, but the formal equality approach proved ineffective when biological differences such as pregnancy came before the court (Chamallas, 2003, p. 18). Stella Bliss, a pregnant woman in Canada, was fired and claimed unemployment insurance benefits after the birth of her child (Bliss v. Attorney General of Canada, 1979). She argued that she did not find any jobs despite her availability for work, so she was entitled to unemployment insurance benefits. The Unemployment Insurance Commission denied Bliss benefits on the ground that she was only entitled to maternity benefits, pursuant to section 46 of the Unemployment Insurance Act.¹ However, Bliss did not qualify for the maternity benefits, because under the act she had not worked long enough before the birth of her child. She only qualified for the regular benefits. In Bliss v. Attorney General of Canada, Stella Bliss argued that section 46 contravened the guarantee of equality before the law. The court held, ‘Section 46 applies to women, it has no application to women who are not pregnant, and it has no application, of course, to men. If section 46 treats unemployed pregnant women differently from other unemployed persons, be they male or female, it is, it seems to me, because they are pregnant and not because they are women’ (Bliss v. Attorney General of Canada, 1979).

The issue of pregnancy in the gender equality debate divided feminist theorists into two camps. The ‘equal treatment’ camp argued that identical treatment of both men and women is required without regard to pregnancy. In their view, pregnancy is a physical condition that affects the ability of an employee to work and pregnant women should not be treated differently from workers with other disabilities. The ‘special treatment’ camp rejects this formal equality model and argues for an equal opportunity model. This camp argues that ‘positive pregnancy-specific benefits’ should be introduced in the workplace to ensure equal opportunity for women, so that pregnant women are not disadvantaged due to biological differences (Weisberg, 1993, p. 124). For instance, Herma Hill Kay (1993) argues that biological reproductive sex differences should be considered and, as women’s pregnancies are only for brief and self-contained periods, legal provisions should be provided against discrimination based on their sex or pregnancy (p. 187). Ann Scales (1981) argues that the law should recognize sex differences in a strictly limited way and recommends having rights different from men for pregnancy and breastfeeding (p. 435). For Anne Phillips (1987), ‘Men and women are different; they are also unequal; feminists will continue to debate and disagree over how far the inequality stems from the difference, and how far the difference can or should be eliminated’ (p. 22). Although formal equality is appropriate in some areas, for example voting rights, pay equity and property ownership, it is argued by many that it is not a perfect fit in areas of family law, such as alimony, child support, child custody and divorce (Jhappan, 1998, pp. 69–70). Sameness of treatment perpetuates inequality, especially in the context of family law (Fineman, 1991, p. 35; Fineman, 2009, p. 108). Despite the recognition of full citizenship, the benefits of citizenship are still distributed unevenly. Legal feminists are seeking other routes to equality for women due to problems with the formal equality approach. They argue for a ‘substantive equality’ approach that is concerned with the effect of legal rules and the inequalities that persist notwithstanding formal equality and gender neutrality. In the words of Canadian Chief Justice Beverley McLachlin (2001), ‘Substantiv...

Table of contents

• Cover Page
• Praise
• Islam and Women’s Income
• ICLARS Series on Law and Religion
• Title
• Copyright
• Dedication
• Contents
• Acknowledgments
• 1 Introduction
• 2 Women and Islam in Bangladesh
• 3 Muslim family law in Bangladesh
• 4 CEDAW, Islamic law and women in Bangladesh
• 5 Dowry, women and law in Bangladesh
• 6 Women, income and dowry in Bangladesh
• 7 Conclusion
• References
• Index