Abolishing the word “Kumari” from Nikahnama

Barrister A H Imam Hasan and Samiul Azim

19 October, 2019 12:00 AM printer

It has been correctly urged by Benjamin Franklin that “Justice will not be served until those who are unaffected are as outraged as those who are”. By these words what Benjamin Franklin meant is that those of us who are not affected by any wrongful deed, should also protest in the same way as those who are actually affected. Hence if the unaffected people remain silent then, their silence might lead to giving silent acquiescence or consent to the wrongful deeds. Recently Bangladesh Legal Aid and Services Trust (BLAST) made an exception to this statement and stood for all of the women by filing a Writ Petition in the Hon’ble High Court Division.

By virtue of section 9 of the Muslim Marriage and Divorce (Registration) Act 1974, under Clause 5 of the Nikahnama, there is a provision where the bride has to write down whether or not she is a Maiden (virgin) or a Widow or a Divorced.  But there are no specific terms for the men to indicate the above-mentioned status which is discriminatory, unfair, unreasonable and violation of the constitutional right of the feminine gender.

We also have to look into the social economic perspective of the society at that time when this law was enacted. The Muslim Marriage and Divorce (Registration) Act 1974 which was enacted in 20th century when women were mostly dominated by the men. Women were not educated and they were only supposed to get married at an early age and here sexual history was the only main concern. With the elapse of the time women of our society became self-dependent and they are working equally with men. But the use of the word “Kumari” in this 21st century when women are the symbol of leadership in many countries including Bangladesh, is showing severe disrespect towards the women of our society.   

This word “Kumari” derived from the Sanskrit word “Kaumaraya” which means “Virgin”. Here the word kumari is directly related to a women’s sexual history. Whereas as far as marriage is concerned the only legal status of a woman that is relevant is whether she is married, widowed or divorced. It is not at all relevant whether or not she is a virgin, or for that matter “Maiden”.

But in our country where literacy rate is not up to the mark in rural areas, they use this word “Kumari” to verify that whether the girl is virgin or not and they think that it is their legal right to examine it. This is creating moral degradation in society.

This matter has come to the consideration of our judicial system when the Public Interest Litigation being Writ Petition No. 7878/2014 (Bangladesh Legal Aid Services and Trust VS The Sec. Min. of Public Administation Banlgladesh) had been filed by BLAST in 2014. After hearing the Hon’ble High Court Division presided over by Madam Justice Naima Haider and Mr. Justice Khizir Ahmed has pronounced a landmark judgement on 25th August of 2019 and held that using the word “Kumari” in the nikahnama is unconstitutional and unlawful and has degrading effect to all women.

In the judgment, the court has directed to abolish the word “Kumari” in the Clause 5 of the Nikahnama under Section 9 of the Muslim Marriage and Divorce (Registration) Act 1974. The court has directed to use the word “Unmarried” instead of the word “Kumari”. Further the court has also directed to add 4A where it will be mentioned that whether a man is unmarried, divorced, widowed.

But this is not the end, there remains other scenarios where the women are being treated less favourably than their opposite gender. For example, there was no specific guideline that whether a male or female judge will take the statement of a rape victim but recently the Hon’ble High Court has directed that the statement of rape victim should be recorded only by a female judge.

In Section 13 sub section 1(B) of the Nari-O-ShishuNirjaton Daman Ain, it has been stated that a baby being born as a consequence of rape, he/she can be recognised by the name of his/her father or mother. By recognising the rapist as the biological father of that child, are we not creating a hazardous situation for the child and the victim?? This may lead to an abnormal relationship between the rapist and the child and victim and it makes it even harder for the victim to forget the traumatic incident of rape.

Hence the time has come to revisit the laws which are specifically made for the protection of feminine gender and amend, repeal or change wherever necessary to ensure equal justice. Since all of the laws which were made in the past were mostly made by male law makers, females were either non-existent or an ignorable minority in that forum.

 

The writers are legal practitioner and student of law respectively


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