POLICY BRIEF
Ending Impunity for Child
Marriage in Bangladesh:
NORMATIVE AND IMPLEMENTATION GAPS
MISSION AND VISION
For more than 25 years, the Center for Reproductive Rights has used the power of
law to advance reproductive rights as fundamental human rights around the world.
We envision a world where every person participates with dignity as an equal member
of society, regardless of gender. Where every woman is free to decide whether or when
to have children and whether to get married; where access to quality reproductive
health care is guaranteed; and where every woman can make these decisions free
from coercion or discrimination.
Center for Reproductive Rights
199 Water Street, 22nd Floor
New York, NY 10038
© 2018 Center for Reproductive Rights
Ending Impunity for Child
Marriage in Bangladesh:
NORMATIVE AND IMPLEMENTATION GAPS
TABLE OF CONTENTS
ACKNOWLEDGMENTS................................................................................................4
GLOSSARY.................................................................................................................5
INTRODUCTION AND OVERVIEW OF CHILD MARRIAGE IN BANGLADESH....................7
CURRENT LEGAL FRAMEWORK ON CHILD MARRIAGE..............................................11
CHALLENGES FOR ENDING IMPUNITY FOR CHILD MARRIAGE.................................34
CONCLUSIONS AND RECOMMENDATIONS................................................................39
4
ACKNOWLEDGMENTS
This policy brief is a publication of the Center for Reproductive Rights (the Center).
The brief was conceptualized by Melissa Upreti, former Regional Director for Asia;
Sonali Regmi, Regional Director for Asia; and Payal Shah, Senior Counsel for Asia.
The law firm DLA Piper provided invaluable research and drafting support. In addition
to the DLA Piper team, Sara Malkani, Advocacy Adviser for Asia, Shah, and Regmi
authored this brief.
Alejandra Cardenas, Deputy Director for the Global Legal Program at the Center,
provided feedback on final drafts. Marlene Halpern, Director of Pro Bono Services,
was instrumental in obtaining pro bono support for the development of this brief.
Martina Nadeau, Legal Assistant for Asia and Capacity Building, and Sangya Shrestha,
Program Associate for Asia, fact checked and formatted citations. Sara Hossain,
Advocate of the Supreme Court of Bangladesh, reviewed a draft of the brief and
provided helpful feedback.
Emma Stoskopf-Ehrlich, Program Associate for the Global Legal Program, facilitated
the publication process. Ximena Ramirez and Beth Arky, independent copy editors,
provided copyediting services. Carveth Martin, Senior Creative and Designer, and
graphic designers Katari Sporrong and Gabriel Lee designed the cover and layout.
5
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
GLOSSARY
1929 CMRA Child Marriage Restraint Act, 1929
2017 CMRA Child Marriage Restraint Act, 2017
BANGLADESH PENAL CODE Penal Code
BDRA Births and Deaths Registration Act, 2004
BDT Bangladeshi Taka
BEIJING RULES United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, 29 November 1985
BOY Male under the age of 18
CCPR International Covenant on Civil and Political Rights
CEDAW Convention on the Elimination of All Forms of Discrimination
Against Women
CHILD Person under the age of 18
CRC Convention on the Rights of the Child
DSS Department of Social Services
GIRL Female under the age of 18
HINDU WOMAN’S ESTATE An estate that gives females certain rights of
use and earnings from use but does not entail proprietary rights of
ownership and disposition
ICCPR International Covenant on Civil and Political Rights
ICDDRB International Centre for Diarrhoeal Disease Research, Bangladesh
ILO International Labour Organization
IPCC Intergovernmental Panel on Climate Change
6
GLOSSARY OF TERMS AND ABBREVIATIONS
MAN Male over the age of 18
MEHR A right that accrues to a Muslim woman upon marriage, part or
all of which may be payable on demand on the dissolution of marriage.
It is paid by the husband or his family and can take the form of money
or property
MOWCA Ministry of Women and Children’s Affairs
NCP National Children Policy, 2011
NDHS National Demographic and Health Survey
NWDP National Women’s Development Policy, 2011
OHCHR Office of the United Nations High Commissioner for Human Rights
PSHTA The Prevention and Suppression of Human Trafficking Act, 2012
SDG Sustainable Development Goals
SHALISH A traditional alternative dispute resolution method used to
mediate family, land, and criminal matters
STRIDHAN Property or gifts received by a Hindu woman during her lifetime
UN United Nations
UNFPA United Nations Population Fund
UNICEF United Nations Children’s Fund
USD United States Dollar
USDS United States Department of State
WHO World Health Organization
WOMAN Female over the age of 18
7
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
INTRODUCTION
AND OVERVIEW OF
CHILD MARRIAGE IN
BANGLADESH
Bangladesh continues to have one of the highest child marriage rates
worldwide, and the highest rate of marriage involving girls under 15.
1
Among women between the ages of 20-49, 71 percent are married
by age 18.
2
Over the last three decades, there has been a slow and
steady decline in the age at which Bangladeshi women first marry, from
a median age of 15 years for women in their mid to late 40s to 17.2
years for those in their early 20s.
3
In spite of the progress, however, the
evidence shows that child marriage continues to occur on a large scale
in Bangladesh, and women and girls continue to suffer from the human
rights violations that result from the practice.
Child marriage in Bangladesh is governed by a series of laws. The
recently enacted Child Marriage Restraint Act of 2017 (2017 CMRA)
replaced an older piece of legislation from the colonial era, the Child
Marriage Restraint Act of 1929 (1929 CMRA). The 2017 CMRA sets
the minimum age of marriage at 18 years for girls and 21 for boys.
4
In addition to the 2017 CMRA, there are a series of religious-based
personal laws that impute different requirements and circumstances
when it comes to ascertaining children’s, particularly girls’, rights in
relation to marriage. Due to gaps and loopholes in the law, as well as
numerous obstacles to implementation further analyzed below, child
marriage persists in Bangladesh in spite of the legal prohibition.
Factors Contributing to Child Marriage
The prevalence of child marriage in Bangladesh can be attributed
to several factors, including, in no particular order, its use to create
or maintain family ties and relationships, the persistence of gender
inequality and adherence to discriminatory and patriarchal attitudes
regarding the safeguarding of virginity for family honor, poverty and
the lack of economic opportunities for women, demand for increased
dowry as a girl ages, fear of sexual violence, and non-enforcement and
inconsistency in laws aimed at preventing or punishing child marriage
and its various dimensions.
5
8
SECTION I: INTRODUCTION AND OVERVIEW OF CHILD MARRIAGE IN BANGLADESH
Gender-based stereotypes are a driving factor behind the prevalence
of child marriage. Girls are often considered financial burdens who
must be passed from their family to their husband’s family
6
or are
married off to protect their “honor” and chastity.
7
As a result, parents
often arrange for their daughters’ marriages, which are seen as
necessary and inevitable.
8
Child marriages are often initiated by a
man’s family or arranged by both families jointly.
9
Societal pressures
and gender inequality remove a girl’s ability to give full, free, and
informed consent when she marries. These harmful, gendered views
are also engrained in religious personal laws in Bangladesh, further
legitimizing gender-based discrimination and child marriage.
10
Additionally, poverty and lack of education contribute to the
prevalence of child marriage in Bangladesh.
11
Girls from poorer
and less educated families are at a greater risk of being forced into
child marriage because of the dowry system
12
and the belief that
education for girls is a wasted investment.
13
Poorer families are also
more likely to find it difficult to raise daughters or invest in their
education, leaving marriage as a more financially viable option.
14
Recent research has also shown an increase in child marriage
occurring after natural disasters as a means of financial survival
for affected families.
15
Bangladesh’s geophysical location makes
it susceptible to extreme natural disasters. In fact, the country
holds the highest disaster mortality rate in the world.
16
The
Intergovernmental Panel on Climate Change describes Bangladesh
as one of the countries most vulnerable to climate change “in terms
of its exposure to extreme events and lack of capacity to cope and
adapt.”
17
As rural families struggle to make a living from agriculture
amid natural calamities, increased migration to cities has heightened
the perceived security risks for girls.
18
Consequently, families
practice child marriage as a means of keeping girls “safe” in new
or insecure environments.
19
In a 2012 report for the United Nations
Population Fund Asia Pacific Regional Office, the International
Center for Research on Women reported that out of all the married
children in Bangladesh, 62 percent were married in the 12 months
following Cyclone Sidr in 2007.
20
Additionally, Human Rights Watch
conducted interviews with affected families after Cyclone Aila struck
in May 2009, which killed more than 200 people and left 500,000
people homeless.
21
Their interviews revealed links between families
marrying off young daughters after natural disasters, showing
families resorting to child marriage as a desperate survival strategy.
22
Another group vulnerable to child marriages are the Rohingya
refugees, who have been forced to flee to Bangladesh following
military operations by the Myanmar government as part of its ethnic
cleansing campaign against the Rohingyas.
23
Since August 25,
2017, when Myanmar security forces intensified their attacks against
9
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
the Rohingyas, killings, rapes, arbitrary arrests, and mass arsons of
homes by Myanmar security forces have caused an estimated 750,000
Rohingya refugees to cross the border into Cox’s Bazar, Bangladesh.
Approximately 60 percent of these new arrivals are women and girls.
24
Rohingya women and girls who have been displaced by the violence
and are now in Bangladeshi refugee camps face grave risks to their
sexual and reproductive health both from pregnancies resulting
from sexual violence in Rakhine as well as conditions in the camps
themselves.
25
Rohingya girls in refugee camps are being forced into
child marriage, in part because it is a common cultural practice in the
community, but largely in order to relieve the economic pressure on
families in refugee camps.
26
Since food rations by some humanitarian
agencies such as the United Nations World Food Programme are
allocated by household, it has been reported that parents are marrying
off girls in order to reduce the number of mouths to feed and create
new households for food quotas.
27
Continuum of Harms Suffered by Women and Girls as
a Result of Child Marriage
Child marriage affects both boys and the girls; however, it
disproportionately harms girls’ ability to enjoy their rights and freedoms,
especially due to the serious risks of sexual and reproductive harms
associated with this practice. Child marriage triggers a continuum
of reproductive and sexual health harms and violations by exposing
girls to forced initiation of sex and unprotected sex, as well as early,
unplanned, and frequent pregnancies.
28
Early pregnancies are linked
to higher rates of maternal mortality and morbidity,
29
with maternal
mortality for adolescents in Bangladesh occurring at double the national
rate.
30
Early pregnancy also exposes young girls, who are not fully
physically developed, to complications such as obstetric fistula, which
leads to infection, incontinence, and pain.
31
Due to the harmful effects
of early pregnancy, the World Health Organization (WHO) has explicitly
recommended a standard minimum marriage age of 18 years old and
the empowerment of adolescents to delay pregnancy until age 20.
32
In
the South Asia region, Bangladesh has the highest rate of pregnancy
before the age of 18, at 40 percent in the South Asia region.
33
According to the 2014 National Demographic and Health Survey
(NDHS), 31 percent of adolescents ages 15-19 in Bangladesh have
begun childbearing and 6 percent are pregnant with their first child.
34
Girls married young and women married as girls are also more
likely to experience domestic violence, including sexual violence,
than women who marry later in life, including sexual violence.
35
The
diminished ability to negotiate safe sex because of their young age
further contributes to their risk of exposure to sexually transmissible
infections.
36
Besides physical harms, early marriage also exposes girls
10
to psychosocial harms. Married girls can suffer significant mental
health harm due to the loss of childhood, forced sexual relations,
and the denial of free will they often experience within a child
marriage.
37
Consequently, it is not surprising that married girls report
experiencing extreme depression and feelings of hopelessness.
38
Moreover, child marriage is linked to slavery-like practices such as
servile marriage, sexual slavery, child servitude, child trafficking,
and forced labor.
39
Women married as girls are often denied
educational and employment opportunities, which may trap girls
in child marriages by limiting their financial, social, and physical
autonomy and decision-making authority.
40
The difficulty in leaving
a child marriage is exacerbated by the acceptance of and support
for the practice in Bangladesh, including stigma around divorce
and restrictive laws which limit girls’ and women’s abilities to end
a child marriage.
41
The daughters of women who were married as
children are at a greater risk of being married as girls themselves.
42
This results in a cultural practice that perpetuates inter-generational
cycles of poverty and absence of opportunity, hampering social and
economic development in societies that tolerate it.
43
Purpose of This Policy Brief
The purpose of this brief is to identify and inform law and
policymakers, law enforcement officials, and human rights defenders
of the key legal gaps and inconsistencies that have undermined
efforts to address child marriage in Bangladesh, particularly in
light of constitutional guarantees, national laws and policies, and
international human rights standards. This assessment highlights
multiple challenges faced in the implementation of the existing
affirmative laws and makes linkages to other causes of systemic
discrimination in law and practice that contribute to impunity. It
puts forward a set of concrete recommendations for addressing
the gaps and challenges in order to promote access to justice for
the victims of child marriage. This report uses a broad definition of
access to justice that includes “access by people, in particular from
poor and disadvantaged groups, to fair, effective, and accountable
mechanisms for the protection of rights, control of abuse of power,
and resolution of conflicts. This includes the ability of people to seek
and obtain a remedy through justice systems.”
44
SECTION I: INTRODUCTION AND OVERVIEW OF CHILD MARRIAGE IN BANGLADESH
11
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
CURRENT LEGAL
FRAMEWORK ON
CHILD MARRIAGE
National Legal and Policy Framework
The Constitution of the People’s Republic of Bangladesh (the
Constitution) guarantees certain “fundamental” rights to all its
citizens and certain rights to noncitizens.
45
This section will discuss
how the Constitution operates to protect children’s rights in addition
to a discussing the new 2017 CMRA and national policies relating to
child marriage.
The Constitution
The Constitution provides the legal framework of the People’s Republic
of Bangladesh. Part III of the Constitution sets out the “fundamental
rights,” some of which are applicable to all persons while others apply
exclusively to Bangladeshi citizens. Fundamental rights are enforceable
by the High Court Division of the Supreme Court.
46
Further, Article 7(2)
of the Constitution explicitly states the Constitution is the supreme law
of Bangladesh and that any inconsistent laws are void to the extent of
the inconsistency. While the Constitution and national courts have yet to
discuss child marriage as a fundamental rights violation, child marriage
is recognized globally to be linked to several fundamental rights
protected under the Constitution, including:
•
the right to life (which has been recognized by national courts to
include the right to health), liberty, and security of the person;
47
•
the right to freedom from forced labor;
48
•
that women shall have equal rights with men in all spheres of
the State and public life;
49
•
the right to equality before the law; and
50
•
the right to freedom from torture or to cruel, inhuman, or
degrading punishment or treatment.
51
The Constitution specifically recognizes women’s rights and
discusses state obligations to address and ensure accountability
for gender-based discrimination and inequality. For example, the
Constitution states that special provisions in favor of women and
children for their advancement will not violate the right to equality
12
SECTION II: CURRENT LEGAL FRAMEWORK ON CHILD MARRIAGE
enshrined in the Constitution.
52
The Constitution also directs the
government to establish a “uniform, mass-oriented and universal
system of education and extending free and compulsory education
to all children.”
53
These fundamental rights must be recognized as an important
part of the national framework on child marriage. However, despite
the constitutional guarantees and the purported legal protection
afforded to children, child marriage is still a common occurrence in
Bangladesh and leads to ongoing violations of women’s and girls’
rights, often with impunity.
54
Legislation on Child Marriage
The National Parliament of Bangladesh passed the 2017 CMRA on
February 27, 2017, which repealed and replaced the 1929 CMRA
and strengthened penalties for child marriage. However, it also
introduced retrogressive measures and remains silent on several
existing gaps in the legal framework on child marriage.
55
Under the
1929 CMRA, Bangladesh saw minimal improvement in its position
as one of the countries with the world’s highest rates of child
marriage.
56
National stakeholders recognized numerous gaps and
weaknesses in the law, in addition to its poor implementation,
including weak penalties; restrictive procedural requirements to bring
claims; the failure to create obligations for government officials to
report child marriages and to clarify the process of filing injunctions
to stop such marriages; and inconsistencies with other laws.
57
In
July 2014, Prime Minister Sheikh Hasina pledged to reform the law,
finalize a national action plan to end child marriage under the age of
15 by 2021, and end all marriage before the age of 18 by 2041.
58
The 2017 CMRA was finally adopted into law three years later and
increased the punishment for those who marry or assist in the
marriage of children. An adult man or a woman who marries a child
could face up to two years’ imprisonment, a fine of up to BDT
50,000 (USD 592), or both, and the license of the registrar of
the marriage may be canceled.
59
Similar punishments would be
applicable to the parents or guardians who arrange or negligently
fail to prevent a child marriage.
60
The 2017 CMRA prescribes higher
punishments than the 1929 CMRA, where perpetrators faced
imprisonment of up to one month and/or a fine
up to BDT 1,000 (USD 12).
61
The 2017 CMRA further clarified governmental responsibility
to prevent child marriages. Section 3 calls for the formation of
“prevention committees” comprising “government officials of
national, district, sub-district and union level, local government
representatives, officials of non-government organizations and
local elite persons” to work toward the prevention of child
13
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
marriages.
62
Section 4 identifies the roles of existing government
officers, including local government officers, education officers, and
police officers who are mandated to prevent child marriages or take
necessary steps to bring legal action upon receipt of news of child
marriages through any media.
63
The 2017 CMRA maintained 18 and 21 years as the minimum legal
age of marriage for girls and men, respectively. However, it also
introduced a retrogressive exception that allows child marriages
without any minimum legal age in “special cases.” Section 19 of the
2017 CMRA states that “in special cases for the greater good of an
adolescent, by the order of the court and with the consent of parents
following the procedure of the law, a marriage of such girl will not be
considered a crime.”
64
Interpretation of this provision will depend on
the content of the 2017 CMRA’s implementing rules and regulations,
which are yet to be issued, as well as the perspectives of the judiciary.
See Gaps and Loopholes in Bangladesh’s Laws on Child Marriage,
p. 15, for more information.
Personal Laws
Issues relating to marriage are largely determined by personal laws,
statutory and non-statutory, which are specific to each religious
community.
65
Various personal laws provide for different ages of
majority for the purposes of marriage.
For the majority of Bangladesh’s population, which is Muslim, laws
relating to inheritance, marriage, and divorce are to be governed
by Islamic law, as declared by the Muslim Personal Laws (Shariat)
Application Act 1937.
66
The Muslim Family Law Ordinance 1961
(MFLO) governs the solemnization and termination of marriage.
Under Muslim law, a contract known as a Nikahnama is a requirement
for entering into marriage. Consent of both parties is an essential
element for a valid marriage. A husband can unilaterally terminate a
marriage, whereas a wife may terminate the marriage unilaterally only
if she has been delegated the right to do so by her husband in the
Nikahnama. The MFLO does not establish a minimum legal age of
marriage. Under generally accepted principles of Muslim law, however,
the age of majority is puberty, which is presumed to be fifteen for girls.
67
Under the Muslim Marriages and Divorces (Registration) Act 1974,
a marriage contracted by a Bangladeshi Muslim must be registered
with a duly licensed Nikah Registrar.
68
However, non-registration will
not render a marriage invalid, even if the failure to register renders a
person liable to imprisonment (up to three months) or a fine of BDT 500
(approximately USD 6).
69
The marriage of Hindus in Bangladesh is governed by Hindu customary
law.
70
Under Hindu law, there is no minimum age of marriage. Minors
may be given in marriage by their guardian. The Hindu Marriage
14
Registration Act of 2012 allows Hindus to register their marriages but
does not make it mandatory to do so.
71
Marriage among Christians
is governed by the Christian Marriage Act 1872 (CMA). Marriage of
a “minor,” which is defined as a person under 21 years of age, is
permitted with the consent of the minor’s father or guardian, in case
of death of father.
72
Under the CMA, registration of marriages
is compulsory with the church authorities or Marriage Registrar.
73
The Special Marriage Act 1872 (SMA) enables individuals to enter
into marriages across religious communities or where a party to the
marriage does not profess the Christian, Hindu, Muslim, Jewish,
Buddhist, Sikh or Jain faiths.
74
Either party must be a Hindu, Sikh,
Buddhist or Jain, or a person who does not profess the Christian,
Hindu, Muslim, Jewish, Buddhist, Sikh or Jain faiths.
75
Under
the SMA, the minimum age of marriage is 18 for a male and 14 if
female.
76
However, if any party is younger than 21, he or she must
obtain prior consent of a guardian.
77
Applicable Policies Relating to Child Marriage
In addition to specific child marriage legislation, Bangladesh has also
implemented a series of policies that relate to child marriage:
•
the National Plan of Action to End Child Marriage,
2018-2030 (NPA)
78
•
the National Children Policy, 2011 (NCP)
79
•
the National Women’s Development Policy, 2011 (NWDP)
80
•
the National Strategy for Adolescent Health 2017-2030 (NSAH)
81
•
the Population Policy, 2012.
82
In 2018, the Government of Bangladesh adopted the NPA with
the goal to end the marriage of girls under 15, reduce by one-third
the rate of marriage for girls under 18 by 2021, and to completely
eliminate child marriage by 2041.
83
The strategic objectives of
the NPA include enhancing awareness of harmful effects of child
marriage through community mobilization, introducing legal
remedies for girls whose rights are violated by child marriage,
and scaling up existing and future social safety net programs to
eliminate child marriage.
84
The NCP specifically recognizes the right of all adolescents (defined
to mean 14-18) to be protected from “violence, marriage, trafficking
and forcing into commercial sex.”
85
It also states that “discriminatory
behaviour toward [the] female child shall be eliminated.”
86
The
SECTION II: CURRENT LEGAL FRAMEWORK ON CHILD MARRIAGE
15
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
NWDP also has objectives to ensure “stern enforcement legislation
against minor matrimony, rape of female child, abuse and repression.”
87
Neither the NCP or NWDP mention whether implementing the policy
is subject to a time frame. Although the NWDP mentions setting
fixed timeframes for implementation of work plans and programs, it
is silent on whether the overall policy is timebound. Additionally, the
NWDP contains a footnote stating that despite anything contained
in the policy “anything contrary to the Holy Quran and Sunnah shall
be void.”
88
However, it is silent as to how the Holy Quran or Sunnah
is to be interpreted to determine whether there is a contradiction.
There is no uniform interpretation of the Holy Quran and Sunnah, and
interpretations vary by sects and schools of jurisprudence. If some
Muslim personal laws are believed to follow from the Holy Quran or
Sunnah, then the goal to “abolish all discriminatory laws” may run
against the principle that any law or policy against the Holy Quran or
Sunnah will be found void. The vaguely worded caveat in a footnote
leads to considerable ambiguity regarding the policy’s effectiveness
in promoting gender equality, especially since it provides no further
explanation as to the criteria for assessing whether a legal or policy
measure is incompatible with the Holy Quran and Sunnah. See Other
Legal Issues Contributing to the Continuation of Child Marriage on p. 20
for further discussion.
The NSAH notes that the prevalence of child marriage and the
corresponding high rate of adolescent pregnancy is a “significant
concern.”
89
One of the objectives of the NSAH is to “promote positive
social norms” in order to address child marriage.
90
It aims to build
the capacity of the health and social protection sector to respond
to child marriage and calls for the development of evidence-based
programs to prevent and mitigate the consequences of child marriage.
91
The Population Policy, 2012 also calls for an Adolescent Welfare
Program, which aims to encourage later marriage through information
dissemination promoting such marriages, creating employment
opportunities for unmarried women, and educating adolescents on
health and life issues.
92
Gaps and Loopholes in Bangladesh’s Laws on
Child Marriage
Despite the constitutional guarantees and the legal protection afforded
to children under existing legislation, the legal framework in Bangladesh
fails to address and combat several critical causes and consequences
of child marriage. Some of these shortcomings are discussed in more
detail in this section.
16
SECTION II: CURRENT LEGAL FRAMEWORK ON CHILD MARRIAGE
The “special cases” exception risks legalizing child
marriage without any minimum age
As discussed briefly above, Section 19 of the 2017 CMRA reads:
No matter what is said in other clauses in special cases
for the greater good of an adolescent, by the order of
the court and with the consent of parents following the
procedure of the law a marriage of such girl will not be
considered a crime.
The law’s failure to define “special cases” or “the greater good of the
adolescent,” or to specify a minimum age of marriage at all, leaves
the exception open to wide abuse. The ambiguity in the special
provision further creates the possibility of it being invoked by parents
in cases of sexual violence to compel their daughters to “preserve
their honor” by marrying their abuser.
93
Furthermore, whether or not
a particular exception applies is to be determined by the court with
the consent of the parents; the consent or wishes of the adolescent
are not required to be considered. Therefore, the law does not seem
to prioritize the views or welfare of the adolescent. Rules under the
2017 CMRA may provide further clarity but they have not been
passed yet.
Inconsistencies in defining the minimum legal age
of marriage
As mentioned above, marriage in Bangladesh is largely regulated
by personal laws. These laws consist of codified and uncodified
rules, which are officially recognized, applied, and enforced
by the Supreme Court of Bangladesh.
94
While the 2017 CMRA
prohibits child marriage, it does not clarify that it has primacy over
contradictory provisions of personal laws that condone it, thereby
preventing general laws from being effectively implemented or
enforced.
95
The 2017 CMRA does not clarify if it has primacy over
prior legislation, including religion-based personal status laws that
govern the areas of marriage and divorce and specify differing legal
ages for marriage.
17
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
TABLE 1: AGE OF MARRIAGE ACCORDING TO PERSONAL LAWS IN BANGLADESH
RELIGION APPLICABLE LAW SPECIFIED LEGAL AGE FOR MARRIAGE
Islam
Muslim Family Law
Ordinance of 1961
96
Uncodified personal
law
15 years for girls and 18 years for
boys. Under uncodified Muslim
personal law, a girl and boy may
marry when they reach puberty.
97
Hinduism
Hindu Marriage
Registration Act
of 2012
98
18 years for girls
21 years for boys
Christianity
Christian Marriage Act
of 1872
99
A minor is under 21 years old, but
parents/guardian can consent to a
minor marrying with no minimum
age specified.
Other (not Christian,
Jewish, Hindu,
Muslim, Parsi,
Buddhist, Sikh, Jain,
or inter-religious
marriages)
100
The Special Marriage
Act of 1872
101
14 years for girls
18 years for boys
Prior consent of father/guardian is
required for any party below 21 years.
As set out above in Table 1, almost all personal laws permit child
marriage, despite prohibition within the 2017 CMRA.
Marriages in violation of the 2017 CMRA are valid unless
voided under applicable personal laws
Child marriage, even though a punishable offence, is not void ab initio
under Bangladeshi law.
102
When the 1929 CMRA was effective, the
Supreme Court declared that, in the case of Muslim parties, a marriage
will be found valid if the parties have reached puberty in accordance
with Muslim personal law.
103
In numerous other cases discussed
below, superior courts in Bangladesh have not declared marriages of
girls below the age of 18 to be invalid. The 2017 CMRA is silent with
respect to the validity of a marriage that violates the minimum age
requirement, nor does the 2017 CMRA contain any provisions regarding
the voidability of a child marriage. A girl or woman seeking to have her
child marriage voided would have to follow the procedures set forth in
the applicable personal laws. However, these procedures can be quite
restrictive and difficult to access, especially for girls who have limited
18
capacity to avail legal procedures. Under Muslim personal law,
a girl may seek dissolution of a marriage entered into when she
was under the age of 18; however, dissolution of marriage on
this basis is possible only where the marriage has not been
consummated and the marriage must be repudiated by the age of
19.
104
This option provides a very short window for a girl to have
her child marriage dissolved, and therefore is likely to be practically
unavailable to many. See Challenges to Ending Impunity For Child
Marriage on p. 34.
Inconsistent definitions of “child”
There is no consistent definition of “child” in Bangladeshi law. As
stated earlier in the report under Table 1, personal laws dictate
differing “legal” ages for marriage, ranging from 14 to 21 depending
on the child’s gender.
105
However, Bangladesh’s civil laws also do
not have a uniform definition of a child. The Bangladesh Labour Act,
2006 defines a kishore, or adolescent, as someone who has reached
the age of 14 but is under 18 years old.
106
The Vagrancy Act, 1943
defines a child as a person under the age of 14.
107
The Prevention of
Oppression Against Women and Children Act, 2000 states a child is
someone under 16 years of age
108
and the Majority Act, 1875 deems
a person to have reached their majority at 18 years of age.
109
The
lack of uniformity in the laws contributes to the social acceptance
that a child under the age of 18 may be treated like an adult despite
their lack of maturity and may even be punished like adults and
enter into marriage.
SECTION II: CURRENT LEGAL FRAMEWORK ON CHILD MARRIAGE
TABLE 2: INCONSISTENT DEFINITION OF “CHILD” IN VARIOUS LAWS
LAW AGE OF MARRIAGE
Bangladesh Labour Act of 2006
Defines adolescent as a person
between the ages of 14 and 18
Vagrancy Act of 1943
Child defined as a person under
the age of 14
Prevention of Oppression Against
Women and Children Act of 2000
Child is a person under 16
Majority Act of 1875
Age of majority is 18 years
19
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
Free and full consent is not defined in the law
Forced marriage is criminalized in Bangladesh under very particular
circumstances. It requires kidnapping or abducting a woman with the
intent to compel her to marry against her will.
110
Laws in Bangladesh
take inconsistent approaches to whether free and full consent is
required in marriage, and if parental consent may be permitted to
substitute for individual consent in the case of minor girls.
111
For
example, under Muslim personal law, the consent of both parties is
required for a valid marriage contract or Nikahnama.
112
However,
Muslim personal law considers a boy and a girl capable of consent
to marriage when they reach puberty, which is presumed to be 15,
113
thereby permitting the marriage of children between the age of 15 and
18. The Special Marriage Act, 1872 does not explicitly require consent
but obligates each party to vow “I take thee as my lawful spouse.”
114
While the 2017 CMRA does not invalidate a child marriage on the basis
that the child does not have the capacity to consent, it permits the
marriage of “adolescents” (without defining the term) for their “greater
good” with parental consent and does not make the consent of the
adolescent a requirement.
115
Therefore, in the current context, it is
unclear whether the laws of Bangladesh consider a minor to be capable
of free and full consent to marriage, and if so, whether the consent of
the minor is a pre-requisite to a valid marriage.
Inadequate punishment and compensation
The 2017 CMRA punishes anyone who conducts or solemnizes a
child marriage by imprisonment of a minimum of six months up to two
years and/or a fine up to BDT 50,000 (USD 592).
116
However, the law’s
ability to deter solemnization of such marriages may be undermined by
Section 10, which permits exemptions from punishment if the accused
“provides a deposition or bond in the form prescribed by the Rules that
he shall not be involved with any incidents of child marriage and shall
endeavor to prevent child marriage in his/her nearby community.”
117
Implementing rules that are currently being drafted should provide
a mechanism to monitor all persons making such a deposition or bond
to ensure accountability for subsequent violations. Further, as discussed
above, child marriage often involves serious physical and sexual
violence. The punishment for the same forms of violence and harm
outside the context of child marriage is much more severe. For example,
rape is punishable by imprisonment for a term not less than 10 years
and a fine or for life.
118
However, forced sex within child marriage is not
recognized as rape when the girl is above the age of
14, as explained in more detail below.
Inadequate enforcement
Legislation prohibiting child marriage is not adequately enforced. The
2014 NDHS found that 59 percent of the women surveyed aged 20-24
were married before 18,
119
in spite of the legal prohibition. The lack
20
SECTION II: CURRENT LEGAL FRAMEWORK ON CHILD MARRIAGE
of data on the number of prosecution of persons breaching the
provisions of the CMRA creates a significant barrier for assessing
the impact of the legislation and efficacy of the state’s efforts in
addressing the problems of child marriage.
120
Further, there is
reportedly widespread complicity by local government officials in
facilitating child marriages, including accepting bribes to falsify birth
certificates showing girls’ ages as over 18.
121
Enforcement is further
hampered by the existence of parallel justice systems in the form of
village arbitrations or shalish. The shalish are presided over by local
influential persons and they often perpetuate child marriage, such
as forcing marriage as a form of reconciliation between a rape victim
and her attacker.
122
Since the rape of a girl is seen to dishonor her
and her family, marriage to her rapist is viewed as a way of restoring
the family’s honor.
123
The trauma of being forced to marry one’s
rapist and the likelihood of facing more abuse and violence are
often ignored.
Insufficient statute of limitations
Under the 2017 CMRA, a complaint of an offense must be made
within two years.
124
This is too short a time limitation, since in many
instances girls may not be able to bring a complaint to the police or
court within two years of the offense due to obstacles in accessing
justice. The short time frame provided to bring a complaint is likely
to mean that many violations of the law will go unpunished.
Other Legal Issues Contributing to the Continuation
of Child Marriage
In Bangladesh, patriarchal attitudes and deep-rooted stereotypes
about the roles and responsibilities of women and men in the
community prevent women from reaching equal legal status in
comparison to men.
125
This section analyzes some of the gaps in
the laws that fail while safeguarding women and girls from rape
and domestic violence, or protect their economic rights in
marriage. Such laws exacerbate young girls’ vulnerabilities in
relation to child marriage.
Rape
Married girls are likely to be forced into sex by older spouses.
However, forced sex by a man with a girl above the age of 14 who
is his wife is not considered rape. There are two applicable laws
regarding rape: the Bangladesh Penal Code (Penal Code) and the
Prevention of Oppression Against Women and Children Act 2000.
Section 375 of the Penal Code provides that sexual intercourse by
a man with a woman without her consent is considered rape,
and that sexual intercourse with a girl under the age of 14 “with
or without consent” is rape.
126
However, under Section 375
21
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
nonconsensual sex by a man with a girl 13 years of age or older to
whom he is married is not considered rape.
127
Therefore, the law
legitimizes rape within child marriage where the girl is above 13 years
of age.
The Prevention of Oppression Against Woman and Children Act 2000
(POWC Act) raised the age at which sex with a girl within marriage
would be considered rape to 14 years.
128
Section 9 of the POWC
Act explicitly states that nonconsensual sexual intercourse will be
considered rape if the girl is over 14, where the sex is outside “lawful
marriage,”
129
thereby implying that nonconsensual sexual intercourse
within lawful marriage will not be considered rape if the girl is over
14. It also states that, where the girl is 14 or under, sex with her will
be considered rape with or without her consent, without making any
exception for sexual intercourse within a lawful marriage.
130
Under Section 375 of the Penal Code, consensual sex between
adolescents where the girl is under the age of 14 would also be
considered rape. The provision holds a “man” liable for rape, which
has been defined in the Penal Code as a male person of any age.
131
This provision exposes very young adolescent boys who have engaged
in sexual activity with girls under the age of 14 to criminal penalties.
It may also pressure adolescents who wish to engage in consensual sex
to marry so that an adolescent boy can escape criminal liability for rape.
Poor enforcement of laws on rape and sexual violence also impact the
rights of married girls and women married as girls. While slightly more
than half of men reported in a 2011 survey and in a 2013 UN survey
that they physically or sexually abused their intimate partners,
132
almost an equal percentage of men also stated that they were not
worried about any consequences.
133
The 2013 UN survey reported
that, of the Bangladeshi men surveyed who had perpetrated rape
against a girl or women, 88 percent to 95 percent experienced no
legal consequences.
134
Domestic violence
Married girls are more susceptible to domestic violence than women
who marry later in life, and often face increased barriers when leaving
abusive marriages.
135
It is estimated that 72.6 percent of ever-married
women experience domestic violence in their lifetime,
136
73 percent
do not disclose their experience to anyone,
137
and only 2.6 percent
have ever taken legal action after experiencing domestic violence.
138
The most common reasons for failing to take legal action include not
considering it necessary,
139
being afraid of their husbands, being afraid
of their children’s future, and stigma.
140
Twenty-eight percent of ever
married women in Bangladesh believe that “wife beating” is justified.
141
The proportion of married girls who believe that wife beating is justified
is also high: 28.8 percent of married women between the age of 15 and
19 believe that “wife beating” could be justified.
142
22
SECTION II: CURRENT LEGAL FRAMEWORK ON CHILD MARRIAGE
In 2010, Bangladesh passed the Domestic Violence (Prevention
and Protection) Act (DV Act) legally recognizing domestic violence
as an offense and a violation of human rights,
143
and in 2013,
rules were passed under the act.
144
The DV Act provides a range
of remedies, including protection orders, residence orders, and
compensation.
145
However, the penalties set forth under the DV
Act are compoundable,
146
which means that the perpetrator may
enter into a compromise with the victim and evade punishment.
147
The DV Act also imposes certain duties on police officers, including
informing the victim about the availability of medical and legal aid
services.
148
Despite the broad definition of “domestic violence,”
149
implementation and prosecution of the law has been weak.
150
Many enforcement officers have little knowledge about their
obligations under the DV Act,
151
often encouraging victims to file
complaints under stricter laws.
152
The impunity of perpetrators,
which is in the majority of cases based on political patronage
and economic influence, negatively impacts the laws aimed at
addressing domestic violence. Such impunity is often encouraged
by police inaction and bias toward the more powerful perpetrator.
153
The DV Act does not provide for special measures for girls who are
subject to violence within child marriages.
154
It also fails to provide
a strategy for identifying child abuse within the family or provide
practical assistance to ensure children have access to services.
155
Although a child may apply for legal relief, the remedies available for
children are in reference to the relief available to their mothers.
156
Dowry
The dowry system engrains the vulnerability that women and
girls experience in Bangladesh,
157
and creates a situation where
daughters are susceptible to being treated as financial burdens
by their families.
158
Families may consider it economical to give
away girls in marriage since child marriages may lead to smaller
dowry payments. These marriages relieve families of the additional
cost of raising their daughters combined with an expensive dowry
upon marriage.
159
Failure to fully pay a dowry is a major risk factor
for men perpetrating domestic violence against their partners.
160
The Dowry Prohibition Act enacted in 1980 prohibits dowry in all its
forms and makes it punishable by fine, imprisonment of up to five
years, or both.
161
In spite of the prohibition, dowry demands continue
to be made by the husband’s family and dowry-related violence
is still prevalent across Bangladesh.
162
Women whose families are
unable to satisfy demands of dowry suffer threats of abandonment,
beatings, cigarette burns, deprivation of food and water, acid attacks
and, in some cases, death.
163
23
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
Registration of births
Birth registration records are essential to ensure that women and
girls have proof of age to avail themselves of legal remedies for child
marriage. In 2004, Bangladesh introduced the Births and Deaths
Registration Act (BDRA), requiring the registration of birth for every
child within 45 days
164
and production of birth certificates as proof
of age upon registration of marriage.
165
Violating the BDRA results in
penalty of up to two months’ imprisonment and a fine of BDT 500
(USD 6).
166
Despite the law and steps by the government to introduce online birth
registrations to increase use and awareness,
167
Bangladesh’s Bureau
of Statistics reported in 2006 that only 1 in 10 children under the age
of 5 years was registered at birth.
168
According to the 2014 NDHS, this
number had only risen to 20 percent by 2014.
169
The low rates of birth registration indicate a weak enforcement of laws
mandating it. Other reasons for the insufficient registration include
the lack of awareness regarding its importance, and poor coordination
between the health and education sectors and the birth registration
systems, which results in many births remaining undetected by the
registration system.
170
Birth registration is also strongly linked with
socio-economic status. According to the 2014 NDHS, children under
5 from the highest wealth quintile are significantly more likely to have
their births registered (28 percent) than children from the lowest wealth
quintile (15.4 percent).
171
Given the correlation between child marriage
and poverty,
172
the girls more likely to be married as children are also
most likely to lack birth registration and therefore proof of age. Efforts
to prevent child marriages are also negatively impacted because fake
birth certificates are easily obtainable in Bangladesh, only costing BDT
100 (USD 1).
173
Without a dependable registration system and robust
accountability, enforcement of the minimum legal age for marriage will
remain a challenge.
Registration of marriage
Insufficient marriage recording hinders the enforcement of the
prohibition on child marriage.
174
The absence of marriage registration
means that many of these cases will go undetected, and many women
and girls will lack crucial documentation that would help them to access
legal remedies. Bangladesh lacks uniform laws on the registration
of marriages, and instead relies on a patchwork of personal laws to
regulate marriage registration.
175
Christian and Muslim personal laws do
require the registration of marriages, with licensed marriage registrars
but due to a lack of enforcement in religious communities this is rarely
adhered to.
176
The Muslim Marriages and Divorces (Registration) Act
requires registration of a Nikahnama (marriage contract);
177
however,
marriages are not invalidated by reason of failure to register the
Nikah.
178
Christians are also required to register their marriages,
179
24
but failure to register a marriage does not invalidate it. The Hindu
Marriage Registration Act 2012 provides that registration of a Hindu
marriage is optional and lack of registration will not invalidate the
marriage.
180
The law provides that a marriage of a male under 21 or
a female under 18 cannot be registered under the provisions of the
law.
181
As such, it is unlikely a failure to register a Hindu marriage will
carry any punishment.
Women’s rights to divorce, maintenance, and
marital property
Muslims, Hindus, and Christians have separate laws governing
divorce, maintenance, and marital property.
182
All three sets of
personal laws contain discriminatory provisions, which are
inconsistent with fundamental rights guaranteed by the Constitution.
183
Muslims
Muslim personal laws recognize marriage as a contract. A husband
may unilaterally divorce his wife for any reason, whereas Muslim
women must have that right delegated to them by their husband in
the Nikahnama.
184
The Dissolution of Muslim Marriages Act 1939
(DMMA) permits a woman to terminate her marriage on certain
specified grounds through court intervention. Under the DMMA, a
girl, who was married before reaching puberty (assumed to be at
15 years of age)
185
may repudiate the marriage by exercising the
“option of puberty.”
186
However, this option is available only if the
marriage has not been consummated and must be exercised before
the girl reaches the age of 19.
187
Other grounds for dissolving a
marriage include “cruelty”
188
and failure to fulfill “marital obligations
for a period of three years.”
189
Under Muslim personal law, wives have a right to mahr, which is a
property right against the husband or his family that is payable on
demand and upon the termination of marriage.
190
However, in practice
this rarely occurs with an estimated 12 percent of Muslim women
receiving mahr in full and 22 percent being paid in part, according
to the 2015 Bangladesh Bureau of Statistics on Violence Against
Women.
191
Muslim wives also have a right to maintenance during
marriage, but after divorce, maintenance can only be provided
during the iddat period or 90 days after divorce.
192
However, family
courts have denied maintenance on the grounds the wife had not
been “dutiful,” “chaste,” or of “good character” during her
marriage.
193
Further, it is reported that men seeking divorce
often ignore the procedures, backdating notices to avoid paying
maintenance during that 90 day period.
194
SECTION II: CURRENT LEGAL FRAMEWORK ON CHILD MARRIAGE
25
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
Hindus
Under Hindu law, marriage is a holy union and is considered
indissoluble.
195
However, Hindu women can seek a court decree for
a separate residence and maintenance on very limited grounds.
196
Examples of the grounds include when the husband “treats her
with cruelty,” abandons her, remarries, or converts to another
religion.
197
A Hindu woman is not entitled to maintenance if she is
“unchaste,” converts to another religion, or fails to comply with a
court decree for restitution of conjugal rights.
198
The amount of
maintenance is determined by the court with regard to both
parties’ social standing.
199
Christians
Christians can divorce pursuance to the Divorce Act, 1869. However,
the grounds for divorce are limited. A husband can divorce his wife
on the basis of adultery,
200
whereas wives must prove adultery in
addition to another ground: conversion to another religion, bigamy,
incest, rape, sodomy, bestiality, desertion for two years, or cruelty.
201
The unequal divorce laws have been subject to a Law Commission of
Bangladesh review, with it recommending that the law be amended
to include a provision for divorce by mutual consent and to widen
and make equal the grounds for men and women to seek divorce.
202
The Married Women’s Property Act, 1874 protects Christian married
women’s right to their own wages as separate from matrimonial
property. Also, in the case of a divorced Christian woman, personal law
obliges a husband to pay his wife maintenance if she is “chaste.”
203
Marital Property
Bangladesh has no legal regime for marital property, despite the fact
that Bangladeshi women often make significant contributions to the
marital home.
204
There are minor protections under the DV Act, which
provide for women’s rights to reside in a “shared residence”
205
and
recognizes “economic abuse” as a form of domestic violence.
206
Apart
from the protection under the DV Act, neither civil nor personal laws
recognize, define, or set out rules for control over marital property
during marriage or divorce.
207
Obstacles to accessing justice
The unequal divorce rights under personal laws, and the absence
of laws governing marital property, perpetuate married women’s
economic dependence on men.
208
This traps married girls and
women in abusive relationships where the option of divorce often
means destitution.
209
In the instances where women attempt to
assert their limited rights under personal laws in Bangladesh, they
are faced with procedural and practical barriers that often severely
delay or defeat remedies.
210
Women seeking mehr or maintenance
26
through the formal court process face severe court backlogs and
delays,
211
which is problematic given that these women often
need immediate economic support to manage the loss of housing
and financial support from their husbands.
212
Further, the vague
criteria for receiving maintenance, as described above, often means
women face humiliating court proceedings where their husbands
attempt to demonstrate how their wives were not “dutiful” or were
“adulterous”
213
to discount them from receiving maintenance.
214
Marriage for the purpose of trafficking
The absence of stringent marriage registration requirements
coupled with the prevalence of child marriage in Bangladesh, has
created pathways for trafficking children across country borders
to India and Pakistan.
215
There have been reports of trafficking
rings recruiting men to marry girls in order to sell those girls to
traffickers.
216
Although Bangladesh has passed laws to combat
human trafficking,
217
the implementation and enforcement of those
laws is still lacking.
218
Under Section 3 of the Prevention and Suppression of Human
Trafficking Act, 2012 (PSHTA) the definition of “human trafficking”
is broad enough to encompass child marriage for the purposes of
trafficking.
219
Section 3 also criminalizes those who abet and/or
assist traffickers. Nevertheless, the Bangladeshi government has
yet to finalize the implementing rules of the PSHTA.
220
This hampers
the identification, rescue, and rehabilitation of trafficking victims.
Further, concerns have been raised in relation to the complicity of
government officials in human trafficking offenses by their continued
failure to investigate these allegations.
221
Child labor
Child brides are likely to be coerced into a myriad of activities
classified as child labor, including being forced to perform the
majority of housework and to attend to the daily needs of their older
husbands.
222
Child marriage may create conditions giving rise to
“child servitude,” where child brides are forced into domestic or
manual labor.
223
This kind of labor fulfills the International Labour
Organization (ILO) definition of child labor as “work that deprives
children of their childhood, their potential and their dignity…”
224
and includes work that interferes with a child’s education and
which is mentally, physically, socially, or morally dangerous and
harmful to the child.
225
Bangladesh has ratified numerous ILO
Conventions against forced labor including the Worst Forms of
Child Labour Convention, 1999.
226
The Labour Act, 2006 applies
to “domestic servants,”
227
but fails to recognize that child marriage
may give rise to child labor thereby denying numerous married girls
safe working hours, conditions, and recourse to remedies for forced
domestic labor.
SECTION II: CURRENT LEGAL FRAMEWORK ON CHILD MARRIAGE
27
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
Reproductive rights
Gaps and weaknesses in laws and policies on reproductive rights
further contribute to risks faced by married girls. Girls married young
are likely to experience pregnancy at a young age. Early pregnancies
are linked to higher rates of maternal mortality and morbidity.
228
Complications caused by pregnancy and childbirth are the leading
cause of death for adolescent girls aged 15 to 19 globally.
229
Married
girls face unplanned, early, and repeated pregnancies as a result of the
poor access to contraceptive information and services.
230
Contraception
is legal in Bangladesh with utilization increasing since its inclusion
in government initiatives to address population growth concerns.
231
Contraceptives are subsidized by the Ministry of Health and Family
Welfare, with services available in all divisions of Bangladesh.
232
However, contraceptive use is poor among adolescents, with 53
percent of married girls aged 15 to 19 reporting not using any modern
contraception.
233
Common causes for low use include lack of agency
and empowerment in the marriage.
234
Reproductive health education
is not part of the education curriculum, although both the National
Child Policy, 2011 and the Education Policy, 2010 state that measures
shall be taken to provide basic reproductive health education in the
secondary school syllabus.
235
This in itself is problematic given that
only 40 percent of girls aged 16 to 20 attend school.
236
In addition,
male-centric contraception, such as condoms, is less prevalent than
female-centric contraceptives, thereby increasing the risk of sexually
transmitted infections (STIs).
237
Considering girls are married, on
average, to a man 8.3 years their elder,
238
there is a risk that girls may
contract STIs from their older, more sexually experienced husbands.
239
Child marriage is also significantly associated with a higher need for
pregnancy termination.
240
The ability of girls to terminate unwanted
pregnancy is restricted by the fact that abortion is expressly prohibited
under the Penal Code save only where it is undertaken in good faith
to save a woman’s life.
241
However, “menstrual regulation” has been
a part of Bangladesh’s national family planning program since 1979.
Under the National Guidelines on Menstrual Regulation issued by the
Ministry of Health and Family Welfare, menstrual regulation is to be
performed within 12 weeks
242
of a woman’s last menstruation without
confirmation of pregnancy.
243
In practice, access to menstrual regulation
is limited because of a lack of facilities providing the service,
244
limited
awareness of the legality of menstrual regulation,
245
and denials by
providers. Studies have shown that more than a quarter of women
asking for menstrual regulation are turned away by service providers
for social or cultural reasons, including because they lack the consent
of their husbands, are told that they are too young, or that they have
no children.
246
The quality of accessible menstrual regulation services
is also poor, leading 12 percent of women and girls who undergo the
procedure to require follow up care.
247
Women and girls who are unable
to access legal abortion and menstrual regulation often face serious
28
health risks as they are left to resort to illegal and often unsafe
procedures, which are performed widely.
248
Women and girls married
before 18 years are particularly vulnerable, as the prevalence of
pregnancy termination was 4 percent higher among women married
in childhood than their adult counterparts.
249
It is also worth noting that the distribution of available maternal
health services favors urban areas; many rural areas in Bangladesh
do not have access to the same services.
250
For example, pregnant
women in urban areas are almost two times more likely than their
rural counterparts to receive the recommended four prenatal care
visits (46 percent compared with 26 percent).
251
Almost 70 percent
of rural women who had given birth did not receive post-natal
check-ups, with only 40 percent of urban women.
252
These
statistics are particularly concerning in the context of child
marriages, as girls in rural areas are more likely to marry at a
younger age than girls in urban areas.
253
However, the Ministry of
Health and Family Welfare has implemented two operational plans
to address the inequity in accessing maternal health by mothers
from poorer wealth quintiles.
254
Case Law Related to Child Marriage
As discussed above, legislation pertaining to child marriage lacks
consistency. The following Supreme Court decisions involving the
1929 CMRA highlight how this legislation has been read down in
instances of conflict with personal laws related to marriage. Given
that the 2017 CMRA has only recently been introduced, case law on
its application is not yet publicaly available and it is unclear whether
it will similarly be read down in the case of inconsistency with
personal laws. A case has been initiated in the High Court Division
of the Supreme Court of Bangladesh querying whether the “special
circumstances” provision of the 2017 CMRA should be declared
discriminatory and invalid under the Constitution.
255
The case is still
pending before the High Court.
256
Women and girls do not seem to be utilizing the judiciary to seek
stronger enforcement of laws prohibiting child marriage, nor has it
been recognized by the courts as an issue of fundamental rights.
The most recent annual report published by the Supreme Court of
Bangladesh did not contain any reported child marriage cases.
257
In fact, neither the 2014 nor 2013 annual report refer to any child
marriage cases.
258
This further indicates that prosecution and
enforcement of the 1929 CMRA have been inadequate.
The case law involving the 1929 CMRA often involves marriages
which have been challenged by parents of the girls involved on the
grounds that the girls were abducted or forced into marriage. Cases
discuss the question of custody of the married girl if she is a minor:
SECTION II: CURRENT LEGAL FRAMEWORK ON CHILD MARRIAGE
29
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
whether her parents have lawful custody over her if she is a minor or
whether she can be permitted to stay with her husband. Even where
courts have held that a married minor girl is to be returned to the
custody of her parents until she reaches majority, they have not found
the marriage to be invalid. Therefore, case law does not resolve the
ambiguity regarding the validity of child marriages.
In Mst. Bakhshi v Bashir Ahmad & Anr, 22 DLR 289 (1970), the
petitioner filed for restoration of custody of her daughter pursuant
to the 1929 CMRA, who being a minor under the act at that time
had married the respondent and was living with him.
259
The court
found that while procuring child marriage is prohibited, child marriage
itself is not invalid.
260
The court further found that under Muslim
personal law, the petitioner could not regain custody of her daughter
as parental guardianship rights are terminated once a girl above the
age of 15 is married.
261
In Fatema Begum v. Gageswar Nath & the State, 9 BLD 469 (1989),
the Supreme Court again considered whether a married girl under the
age of 16 should be compelled to return to her parents. The girl’s father
filed a complaint alleging that his daughter was a minor and had been
kidnapped. The girl, who was above 16 years of age, and the accused
were taken into police custody. When the girl appeared before the
court, she stated that she had married the accused of her free will. The
Supreme Court held that the girl could not be considered a minor under
Section 336 of the Penal Code, which states that any person who takes
a female under the age of 16 “out of the keeping of the lawful guardian”
is guilty of the offense of kidnapping. The Supreme Court found that
there is no basis for compelling the girl to be under the custody of her
father, but did not address the issue of whether the marriage was valid
under the 1929 CMRA.
262
On the other hand, in Krishana Pada Dutta v. The Secretary of Home
Affairs & Others, 10 BLD 301 (1990), the Supreme Court ordered
that a married girl be put in her parents’ custody, even though the girl
asserted before the court that she had married of her free will. The
court concluded that the Majority Act read with the Guardian and Wards
Act establishes that a girl is to remain under the custody of her parents
until she reaches the age of 18.
263
The Supreme Court did not address
whether the child marriage was invalid under the 1929 CMRA.
In Bimal Kanti Roy v. The States and Others, 46 DLR 541 (1994),
a father alleged that his daughter, a minor and Hindu, had been
kidnapped. When the girl was recovered by the police, she claimed
that she had married the accused of her free will. Upon medical
examination, it was found that the girl was above the age of 16. The
Supreme Court (High Court Division) concluded that the girl must be
held in judicial custody during the pendency of the trial against the
accused on charges of kidnapping in order to ensure that she was “free
30
from all external influences during the trial.” The court reviewed
previous decisions under the 1929 CMRA and found them to be
“conflicting” and inconclusive with regard to who is entitled to the
custody of a girl until she becomes a “major” in circumstances
where “she goes away with a boy and gets married to him.”
264
As the review of case law above shows, courts in Bangladesh have
not established that a marriage in violation of the minimum age
provisions is void ab initio. Nor have they resolved whether a minor
girl who enters into a child marriage should be permitted to live
with her husband or should be placed in her parent’s custody. The
conflicting case law leads to ambiguity regarding how child marriage
legislation is to be enforced and undermines its implementation.
International Legal Obligations
Bangladesh has ratified the main international human rights
instruments relevant to child marriage.
265
However, it has made
several reservations where Convention articles conflict with
Sharia law or personal laws.
266
The Constitution does not provide
guidance on the interaction between domestic law and international
conventions ratified by Bangladesh,
267
but it does require respect
for international law. The Appellate Division of the Bangladesh
Supreme Court has encouragingly pronounced that the domestic
courts should not ignore the obligations of international laws; if
there is no appropriate domestic law in a disputed matter, the
courts should defer to the provisions and principles of international
instruments.
268
Accordingly, whilst there is a push for Bangladesh to
remove its reservations to international conventions, the preliminary
issue seemingly lies in the implementation of international law into
domestic legislation.
The relevant United Nations treaty monitoring bodies have
encouraged Bangladesh to remove its reservations and have
reminded the country of its obligations under the relevant
international instruments. Examples of their comments are
discussed below.
The CRC Committee: In the CRC Committee’s concluding
observations in 2015, it considered child marriage to be a deeply
harmful practice within Bangladesh and stated that the practice
contravenes the legislated minimum age for marriage.
269
The
committee noted that legislation stipulating the minimum age for
marriage is not adequately and systematically interpreted or applied
by administrative, legislative, and judicial bodies.
270
To combat this,
the committee recommended developing awareness raising
campaigns and programs on the harmful effects of early marriage
targeted at households, local authorities, religious leaders, and
SECTION II: CURRENT LEGAL FRAMEWORK ON CHILD MARRIAGE
31
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
members of the judiciary.
271
The committee also recommended
establishing protection schemes for victims of child and forced marriage
and urged Bangladesh to take active measures to put an end to harmful
practices against children.
272
The CEDAW Committee: The CEDAW Committee has highlighted the
discriminatory laws and provisions within national legislation, such
as different definitions of “girl child” and “boy child” in various acts,
and the lack of recognition of violence against women in marital
relationships.
273
In particular, the CEDAW Committee expressed concern
that the personal laws of Bangladesh regulating marriage within various
religious groups continue to discriminate against women and girls and
that Bangladesh has not adopted a uniform family code.
274
Further,
the committee noted that even though the State party has adopted
legislation on remedies for domestic violence, specifically the DV Act,
there are a number of discrepancies between this and other legislation;
for example, stipulating marital rape is not criminalized unless the victim
is a child bride below the age of 14 years, which is inconsistent with
the minimum age of marriage set forth in the CMRA. Additionally, the
committee noted that the patriarchal traditions such as dowry payments
and dowry-related violence continue to take place.
275
The Committee
recommended adopting a clear unified family code to ensure equality
of women in matters of marriage; adopting without delay legislation
criminalizing all forms of violence against girls, including marital rape,
irrespective of the age of the victim; and implementing awareness-
raising programs for the judiciary, police, and law enforcement officials
regarding violence against women and girls.
276
The Human Rights Committee: In its first concluding observations in
2017 on review of the state’s first report under the ICCPR, the Human
Rights Committee raised concerns with Bangladesh’s high rates of
early marriage, particularly in refugee camps where 90 percent of
families have at least one married family member under the age of
18.
277
While the committee noted Bangladesh had passed the 2017
CMRA, it remained concerned that marriage before the age of 18 is
approved in special circumstances.
278
Accordingly, the committee
recommended Bangladesh take immediate measures to reduce early
marriage and prevent dowry practices through the implementation of
appropriate legislation and campaigns which publicize the legislation
outlawing such practices whilst informing girls’ parents and their
community leaders of the harmful effects of early marriage.
279
Further,
the committee recommended the State party amend the 2017 CMRA
to maintain the legal minimum age of children of 18 years without
exception, in accordance with international norms.
280
The ESCR Committee: In its first concluding observations in 2018, the
ESCR Committee expressed concern regarding the high incidence of
child marriage and noted the weaknesses in child marriage legislation,
32
including the absence of provisions declaring that a child marriage
is void and the “special” exception in the 2017 CMRA permitting
marriage of adolescents for their greater good and with parental
consent.
281
The committee also noted the lack of clarity regarding
primacy of the 2017 CMRA over personal laws.
282
It expressed
concern regarding the high rates of maternal mortality and morbidity,
particularly among adolescent girls due to early marriage and
pregnancy.
283
The recommendations put forth by the committee
include amendments to the 2017 CMRA to rectify the gaps and
loopholes and the availability of effective legal remedies for victims
of child marriage.
284
Specifically, it expressed concern that the
2017 CMRA did not include provisions declaring child marriage to
be void
285
and also recommended that the provision allowing child
marriage in special circumstances be repealed.
286
Universal Period Review: In October 2009, Bangladesh received
specific recommendations from member states at the UN Human
Rights Council to take actions to eliminate child marriage. These
included implementing laws prohibiting child marriages and dowry
287
and and taking “steps to address the culture of impunity for human
rights violations by law enforcement agencies.”
288
Further, there
were recommendations to “take further measures to prohibit all
forms of violence against children.”
289
In May 2018, Bangladesh
again received specific recommendations from member states
at the Human Rights Council to take measures to eliminate the
practice of child marriage.
290
Member states also recommended that
Bangladesh take steps to prevent abuse of the provision in the 2017
CMRA permitting child marriage in special cases.
291
The Special Rapporteurs: Rashida Manjoo, the then-UN
Special Rapporteur on violence against women, its causes and
consequences in her 2013 report on Bangladesh, acknowledged
that while the government had undertaken legal and institutional
initiatives to meet its human rights obligations in relation to
women and girls, these had not been “translated into concrete
improvements in the lives of the majority of women who remain
marginalized, discriminated against and at high risk of being
subjected to violence.”
292
In particular, “women’s access to
justice and protection is still impeded by generalized impunity,
limited access to services and shelters, lack of or insufficient
legal representation and limited awareness of rights.”
293
Manjoo
recommended that the government undertake further law and
policy reform, particularly ensuring women’s constitutional rights
and freedoms extended to the public and private sphere and that
personal laws be amended to remove discriminatory provisions
relating to marriage, divorce, and inheritance.
294
Manjoo also
explicitly urged the government to take urgent legislative measures
to prohibit child marriages and other harmful practices.
295
SECTION II: CURRENT LEGAL FRAMEWORK ON CHILD MARRIAGE
33
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
Political Commitments
Bangladesh has made both international and regional political
commitments to end child marriage. At an international level,
Bangladesh has committed to the Sustainable Development Goals
(SDGs) which include eliminating all harmful practices such as child
marriage and all forms of violence against women and girls in both
public and private spheres.
296
SDG 5.3 aims to “eliminate all harmful
practices, such as child, early and forced marriage.”
297
Indicators for
the SDG include assessing the proportion of women married before 15
years of age and before 18.
298
Previously, in response to its adoption of
the Millennium Development Goals, the Bangladeshi government had
acknowledged the need to amend cultural and traditional practices
favoring males over females, which they have also acknowledged has
led to harmful practices such as child marriage.
299
At the Global Girl Summit in 2014, then Prime Minister Sheikh
Hasina,
300
pledged to reform the law to set tougher punishments for
child marriage; finalize a national action plan on how to end child
marriage under age 15 by 2021; and end all marriage of girls below
age 18 by 2041.
301
Subsequently, a Bangladesh Girl Summit was
held in October of 2014 which was jointly organized by the Ministry
of Women and Children’s Affairs (MOWCA) and BRAC, a prominent
international development organization.
302
At a regional level, in 2014, Bangladesh, along with other South Asian
Association for Regional Cooperation (SAARC) countries, adopted the
Regional Action Plan to End Child Marriage in South Asia (Regional
Action Plan), which reflects the government’s commitment to address
the underlying causes of child marriage and promote laws and policies
aimed at eliminating this practice.
303
In the same year, Bangladesh
attended the first regional convention of representatives from SAARC
member states and key stakeholders, focusing on the use of law to
promote legal accountability to end child marriage.
304
This resulted in
the adoption of the Kathmandu Call for Action to End Child Marriage in
South Asia (KCA). This document sets out concrete steps to address
child marriage, including strengthening enforcement of national laws
and ensuring married girls can access institutional support.
305
34
CHALLENGES FOR
ENDING IMPUNITY
FOR CHILD MARRIAGE
Numerous structural, social and cultural barriers impede
the enforcement of the prohibition on child marriage. Poor
implementation of the law, dearth of support mechanisms for
girls trapped in child marriages, and the lack of clarity in the
legal framework enable the practice to continue with impunity.
Compounding the effects of these gaps are the entrenched social
norms that make it difficult for girls to exercise the agency to end
child marriage.
Failure to Report Cases of Violence Against Children
Bangladesh has implemented innovative programs to increase
reporting of child abuse, such as a toll-free helpline for abused
children. At the time of the helpline’s official launch in October
2016, it reported to have already helped prevent 379 cases of
child marriage since December 2015.
306
However, the CRC
Committee, in its concluding observations of 2015, have
nevertheless noted that child abuse including sexual abuse,
remained underreported.
307
The Committee has raised further
concerns over the lack of information available on the number of
abuse cases reported through the helpline that have subsequently
been investigated and prosecuted.
308
Patriarchal attitudes permeate through the community, including law
enforcement. Police often consider domestic violence complaints to
be social issues, not legal issues.
309
The inaction of the police in this
respect creates an atmosphere of impunity that dissuades women
and girls from seeking help.
310
There are a number of initiatives
to develop Victim Support Centers, including the Victim Support
Centre established at Tejgaon Thana Model Police Station, under
which rehabilitation services are provided by 10 nongovernmental
organizations that have signed a Memoranda of Agreement with the
police.
311
Reports indicate that this has encouraged victims to report
crimes to the police and access professional services at the same
time.
312
However, more must be done to tackle the stigma attached
to victims of sexual violence in order to increase reporting and
accountability for such crimes.
313
35
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
The 2017 CMRA does not stipulate a defined process to formally
bring legal action against adults who support, encourage or cause the
occurrence of child marriages. The 2017 CMRA provides that the Court
may “if satisfied from information laid before it through a complaint or
otherwise that a child marriage in contravention of this Act has been
arranged or is about to be solemnized issue an injunction against that
child marriage.”
314
However, it does not set forth the form or procedure
for the complaint. At the time of publication of this report, rules under
the 2017 CMRA have not been issued and so it is not possible to
state whether procedures for filing a complaint will be included in the
rules. In light of this, it’s unknown whether the 2017 CMRA will rectify
one of the chief concerns with the 1929 CMRA regarding the lack of
accessibility for women and girls to the remedies it provides.
Lack of Support Mechanisms for Victims
There are no provisions in the 2017 CMRA stipulating services or
alternative care facilities for girls attempting to leave a child marriage,
nor does it refer to the availability of counseling and medical services for
victims. Victims of child marriage only have support mechanisms if they
bring an action under the DV Act. A court may award interim orders
such as protection, residence, maintenance, and safe custody orders,
or orders to relocate or shelter victims where they find that domestic
violence is likely to occur.
315
The court’s power to make such orders is
limited to where the court is satisfied that domestic violence is likely to
occur, and therefore such orders are not a matter of right for victims
of child marriage. Further, there are no provisions in the 2017 CMRA
or the DV Act that provide for services to build the livelihood skills of
victims of child marriage or domestic violence.
The MOWCA has created a “Central Cell” on the prevention of
violence against women by coordinating violence related cases with
other agencies.
316
The government has also set up several protection
measures including the establishment of seven One-Stop Crisis
Centers in public hospitals (where victims receive medical,
psychosocial, and legal assistance), a National Trauma Counselling
Centre, and a helpline.
317
While government action in this respect is
to be commended, research indicates that these legislative provisions
remain under-utilized as victims are reluctant to use the law to seek
support due to procedural obstacles, community pressure, and
stigma.
318
A review of government run and NGO shelters also indicates
that there is a limited availability and space in them.
319
Further, these
shelters are not specifically intended for married girls and so do not
necessarily have the facilities and counselling services that would be
required by children. The limited availability and underutilization of safe
shelters clearly limits the efficacy of protection and support services
offered by the law.
36
SECTION III: CHALLENGES TO ENDING IMPUNITY FOR CHILD MARRIAGE
Victims of child marriage may be able to apply for compensation
from the court through the Children’s Act 2013
320
or the DV
Act, provided they meet eligibility requirements.
321
The CEDAW
Committee has however recognized that girls and women face
disadvantages including legal illiteracy and poverty, which prevent
them from engaging in costly legal procedures.
322
Although there is
a Legal Aid Fund for persons in need established under the Legal
Aid Services Act 2000,
323
administered by the District Legal Aid
Committee, and headed by a judge in each district of Bangladesh,
the CEDAW Committee remains concerned that it is still largely
inaccessible for girls and women without sufficient means.
324
A key barrier to accessing remedies provided is that the legislation
relies on courts to prevent child marriage and violence through
injunctions, and relies on victims to report impending child
marriage and violence. In this respect, the above legislation fails to
recognize the power dynamics involved in child marriages, where
girls subjected to them do not possess the resources necessary
to seek legal recourse and remedy.
325
The failure to address this
powerlessness is a significant impediment to the efficacy of the
above legislation and related support services.
Poor Knowledge of the Law and Legal Age
of Marriage
Girls’ knowledge with respect to the law on child marriage is unclear
and difficult to assess without on the ground research. However,
research indicates that secondary education attainment is the factor
that most influences whether a girl will marry before the age of 18.
326
Accordingly, the low rates of education and literacy among girls are
likely to hamper their understanding of the law on restraining child
marriage. Knowledge of the legal age of marriage is also impeded
by the lack of harmonization of personal laws and the 2017 CMRA
on the legal age for marriage. As noted in the discussion of case
law on p. 28, these age discrepancies between personal and child
marriage legislation have not yet been settled in the case law. Clarity
on the legal age of marriage and the legal status of child marriages is
required for the general public, and children in particular, to be able
to understand their legal rights in terms of challenging imminent and
existing child marriages.
37
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
Limited Prosecution of Child Marriage
There is limited data regarding the prosecution of persons pursuant to
the 1929 CMRA. A survey of the available case law indicates that the
1929 CMRA is rarely enforced with prosecution.
327
Although Bangladesh
has enacted the BDRA which requires the registration of births, there
remains significant difficulty in terms of proving the age of individuals at
marriage due to poor implementation of this law. According to the 2014
NDHS, the births of only 12.6 percent of children under the age of 2
had been registered.
328
The difficulty around age verification extends to
prosecution in child marriage cases. As noted above, Supreme Court
annual reports from 2013 to 2015 do not mention any child marriage
related cases.
329
Limited Knowledge Among Law Enforcement Agencies
About Their Roles
Since child marriage is a criminal offense, it relies on investigation by
law enforcement agencies and prosecution. In practice, the police lack
the capacity to handle these cases sensitively.
330
There are reports of
a lack of basic expertise and facilities for conducting investigations,
particularly in sexual violence crimes. Further, entrenched patriarchal
attitudes often result in police not considering domestic violence as a
legal issue, but more a social issue.
331
As such, domestic issues are not
taken seriously, and the police sometimes fail to take immediate action
against complaints of threats of violence.
332
The difficulty in combatting
ingrained cultural beliefs thereby also affects law enforcement
responses to complaints of gendered violence.
Lack of Legal Accountability for Not Taking
Required Action
The former Special Rapporteur, Rashida Manjoo, has noted that
corruption is another contributing factor preventing women from
accessing justice in the criminal system.
333
Victims and their families
often have to pay bribes to police officers or use political connections
to register a complaint and have investigations conducted.
334
It is not
uncommon for perpetrators to have more influence and power than the
victim, which are used to delay investigations or pressure the victim to
drop the charges.
335
The prevalence of corruption in law enforcement
severely hampers and undermines legal accountability of police to take
the requisite action to combat child marriage.
38
336
337
338
IN FOCUS: ACCESS TO JUSTICE FOR CHILD
MARRIAGE VICTIMS
The 2017 CMRA is focused on preventing or
punishing those responsible for or party to child
marriages, but fails to invalidate them. Once a girl is
married, it is difficult for her to access justice unless
she initiates the termination of marriage. As the
policy mapping has discussed, this is difficult due to
the lengthy court processes, discriminatory divorce
provisions and the fact that these women often face
economic and social destitution if they leave the
marriage.
336
As such, there is a gap in the law for
protections specifically targeted at girls who wish to
escape child marriages.
The DV Act provides remedies for women leaving
abusive marriages, but it may not necessarily cover
victims of child marriage despite the continuum
of harm such a practice produces. Shelter homes
have been set up where women may reside for up
to six months (this may be extended a further six
months),
337
temporary shelter services such as the
One-Stop Crisis Center, and transitional residential
facilities (such as the Victim Support Centers for
a five-day maximum stay).
338
However, the 2017
CMRA does not provide for the establishment of
institutions catering specifically to the needs of
victims of child marriage that enable reintegration
into mainstream education or provide skills
training to help women married as girls to support
themselves. As the current 2017 CMRA stands,
married girls will have difficulty accessing justice
and support in the absence of guarantees of legal
and medical aid, counselling, and financial support.
SECTION III: CHALLENGES TO ENDING IMPUNITY FOR CHILD MARRIAGE
39
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
CONCLUSIONS AND
RECOMMENDATIONS
The government has an obligation to prevent, protect, prosecute,
punish and provide redress for acts that perpetuate child marriage,
through both legislative and institutional mechanisms. The failure of
the government to adequately implement accountability mechanisms
and procedures for seeking legal redress for child marriage and to
remove barriers to their accessibility violates its obligation to guarantee
legal remedies for violations of human rights. In addition, the failure of
the government to address gaps and loopholes in the legal framework
permits child marriage to continue with impunity.
Legislative Bodies
•
Repeal the provision for “special” exceptions in the 2017 CMRA
that allows girls to be entered into marriage through judicial
authorization sought by parents or guardians without consideration
of their opinions.
•
Declare marriage below the minimum legal age as void and
having no legal effect under any custom, religion or traditional
practice. Take measures to ensure that girls in legally void
marriages have access to special measures of protection.
Ensure adequate awareness of this legal change before it is
implemented and ensure the protection of girls who are married
under local custom and may be left vulnerable due to lack of
legal status accorded to their marriage.
•
Clarify that child marriage legislation prevails over contradictory
personal laws with respect to minimum age of marriage.
•
Provide legislative guarantees ensuring that victims of child
marriage have rights of maintenance, as well as other support
mechanisms, including financial, legal, and psychological
assistance and access to shelter.
•
Introduce penalties for officials, including police and magistrates
who do not take action on complaints of incidents of child marriage
and take measures to prevent child marriages.
•
Review and amend discriminatory laws against women and girls
in the area of divorce and maintenance that promote child
marriages and exacerbate its harm, specifically personal laws that
impose procedural obstacles on women seeking to terminate a
marriage and fail to provide adequate financial security to women.
40
SECTION IV: CONCLUSIONS AND RECOMMENDATIONS
National and State Executive Bodies, including
Governmental Ministries and Law Commissions
•
Make rules for the implementation of the 2017 CMRA,
providing protection mechanisms for children, including
guarantees for legal and medical aid, referral to shelters,
and economic support.
•
Expand the remedies provided to children forced into child
marriages by, for example, enabling courts to pass protection,
residence, and compensation orders as provided for women
in the DV Act.
•
Establish child marriage prevention committees as required
under Section 3 of the 2017 CMRA and develop clear terms
of reference for such committees. Include among the duties
of these committees, the responsibility to monitor and record
cases of child marriage in their jurisdiction and to assist
victims in accessing legal and medical aid and other
protection services.
•
Develop, in collaboration with the Ministry of Law, Justice
and Parliamentary Affairs and Ministry of Women and
Children’s Affairs, training programs for police officers and
local government officials on laws related to child marriage,
and steps to take in order to prevent and, if applicable,
prosecute child marriages.
•
Develop a comprehensive curriculum for engaging the
judiciary, police, and public prosecutors concerning child
marriage and girls’ rights under the 2017 CMRA and related
laws, integrating periodic follow-up sessions for all
functionaries on legal developments.
•
Strengthen the capacity of legal actors to provide legal
services to women and girls, including lawyers and NGOs
providing legal services.
•
Develop and implement media and public education
campaigns to highlight the harms of child marriage and
raise awareness of the benefits of avoiding child marriage,
such as better chances of education and formal employment,
especially for girls.
•
Take steps to ensure universal and mandatory registration of
births and marriages; establish systems for better coordination
between health and education sectors and birth registration
systems; and develop awareness campaigns to communicate
the importance of birth and marriage registration to the public.
41
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
National, State, and Local Judiciary
•
Hold government officials accountable for failure to take action as
per the law to prevent child marriage and recognize child marriage
as a fundamental rights violation.
•
Establish a mechanism to systematically track progress in
terms of implementing the judicial rulings in cases concerning
child marriage.
National Human Rights Institutions
•
Collect, monitor, and investigate reports of child marriage and
liase with law enforcement agents to ensure the provision of
effective legal remedies.
•
Conduct a national inquiry to identify barriers faced by women and
girls in seeking access to justice in the context of child marriage,
including legal remedies following a child marriage.
•
Develop recommendations to create awareness and promote legal
accountability for child marriage.
Civil Society Organizations
•
Lead community campaigns to raise awareness of the illegality
of child marriage and the continuum of harms resulting from
the practice.
•
Support victims of child marriage in accessing protection
mechanisms and legal remedies, such as by providing legal
counseling, legal aid, and information on their rights and the
procedures to claim those rights.
•
Promote strategic litigation to hold authorities and officials at
all levels accountable for the failure to prosecute, prevent, and
investigate child marriage.
UN Agencies and International Non-Governmental
Organizations
•
Support the Bangladesh government in strengthening legal
mechanisms and procedures to eliminate child marriage and
address human rights violations resulting from the practice.
•
Take measures to prevent child marriages in Rohingya refugee
camps by providing alternative means for families to alleviate
economic pressure and increase access to education for
Rohingya girls.
•
Promote accountability for child marriage, including by providing
technical and other support to government agencies for the
implementation of recommendations made by UN treaty
monitoring bodies and during the Universal Periodic Review.
42
Endnotes
1
Girls Not Brides, Bangladesh, available at http://www.girlsnotbrides.
org/child-marriage/bangladesh/ [hereinafter Girls Not Brides,
Bangladesh].
2
Government of BanGladesh, ministry of health and family Welfare,
B
anGladesh demoGraphic and health survey 2014, 41 [hereinafter
ndhs 2014].
3
Id.
4
Child Marriage Restraint Act 2017, sec. 2(3) [hereinafter CMRA
2017].
5
Avon Global Centre for Women and Justice, Child Marriage in
Bangladesh: Causes, Consequences and Legal Frameworks
7-12 (2013) [hereinafter Avon, Child Marriage in Bangladesh];
international development laW orGanization (idlo), BanGladesh
c
ountry report: strenGtheninG the leGal protection frameWork for
G
irls in india, BanGladesh, kenya and liBeria 73 (2010) [hereinafter
B
anGladesh country report 2010]; see also World Vision, Before
She’s Ready: 15 Places Girls Marry by 15, 15-16 (2012), available
at http://www.wvi.org/sites/default/files/publications_Before%20
Shes%20Ready.pdf [hereinafter Before She’s Ready].
6
Id.
7
Before She’s Ready, supra note 5 at 8.
8
plan asia reGional office and international center for research
on Women, asia child marriaGe initiative: summary of research in
B
anGladesh, india and nepal, 17 (2013), available at https://www.
icrw.org/wp-content/uploads/2016/10/PLAN-ASIA-Child-Marriage-
3-Country-Study.pdf [hereinafter Asia Child Marriage Initiative].
9
Demographic and Health Surveys Program and International Center
for Diarrhoeal Disease Research, Why So Young? The Social Context
of Early Childbearing and Contraception among Young Women in
Khulna, Bangladesh, 12 (2016), available at http://dhsprogram.
com/pubs/pdf/FA99/FA99.pdf [hereinafter the DHS Further
Analysis Reports 2016].
10
Muslim Family Law Ordinance 1961, sec.6-8 [hereinafter MFLO
1961] (Muslim personal laws for example, which applies to almost
90% of people across Bangladesh, permits polygamy for men and
includes unequal provisions on divorce).
11
NDHS 2014, supra note 2 at 42, Table 4.4 (Median age at first
marriage by background characteristics).
12
Avon, Child Marriage in Bangladesh, supra note 5, at 9.
13
Before She’s Ready, supra note 5 at 10.
14
Id., at 6.
15
human riGhts Watch, marry Before your house is sWept aWay:
child marriaGe in BanGladesh 132 (2015), available at https://www.
hrw.org/sites/default/files/report_pdf/bangladesh0615_web.pdf
[hereinafter Marry Before Your House is Swept Away].
16
Id., at 40.
17
IPCC et al., report on BanGladesh launch of the fifth assessment
r
eport (ar5) of the interGovernmental panel on climate chanGe 3
(2014), available at http://cdkn.org/wp-content/uploads/2014/05/
Report-on-IPCC-outreach-events-Bangladesh-.pdf.
18
Laurie Goering, With climate change driving child marriage risks,
Bangladesh fights back, T
homas reuters foundation (2017),
available at https://www.zilient.org/article/climate-change-driving-
child-marriage-risks-bangladesh-fights-back.
19
Id.
20
international center for research on Women, child marriaGe in
s
outh asia: realities, responses and the Way forWard, 6 (2013),
available at https://www.icrw.org/wp-content/uploads/2016/10/
Child_marriage_paper-in-South-Asia.2013.pdf.
21
Id, at 43.
22
marry Before your house is sWept aWay, supra note 15 at 42.
23
United Nations Security Council, Report of the Secretary General on
Conflict-Related Sexual Violence, para. 55, S/2018/250 (23 March
2018).
24
inter-aGency WorkinG Group on reproductive health in crises,
W
omen and Girls critically underserved in the rohinGya humanitarian
r
esponse, 1 (2018), available at https://reliefweb.int/sites/reliefweb.
int/files/resources/IAWG%20Statement%20on%20Rohingya%20
Humanitarian%20Response.pdf.
25
United Nations Security Council, 8234
th
Meeting: Armed Groups,
Government Forces Continue Wielding Sexual Violence as Tool of
War Despite Progress in Ending Impunity, Security Council Hears
in Day-long Debate (2018), available at https://www.un.org/press/
en/2018/sc13299.doc.htm.
26
Fiona Macgregor, Rohingya Girls As Young As 12 Compelled to
Marry Just To Get Food,
the Guardian (2017) available at https://
www.theguardian.com/global-development/2017/nov/30/young-
rohingya-girls-bangladesh-compelled-marry-food-rations.
27
Id.
28
Avon, Child Marriage in Bangladesh, supra note 5, at 14-15.
29
World Health Organization (WHO) Secretariat, Early marriages,
adolescent and young pregnancies: Report by the Secretariat, para.
11, A65/13 (Mar. 16, 2012).
30
unicef, adolescent empoWerment project in BanGladesh 1 (2009),
available at http://www.unicef.org/bangladesh/Adolescent_
Empowerment_(KA).pdf.
31
World Health Organization (WHO), WHO Guidelines on Preventing
Early Pregnancy and Poor Reproductive Outcomes Among
Adolescents in Developing Countries, 2 (2011).
32
Id., at 3-4.
33
Acharya Dev Raj et al., Factors Associated with Teenage Marital
Pregnancy in South Asia: A Systematic Review,
health science
j
ournal 1, 4 (2010).
34
NDHS 2014, supra note 2, at 62.
35
Avon, Child Marriage in Bangladesh, supra note 5, at 16.
36
unicef, early marriaGe child spouses, 10 (2001), available
at https://www.unicef-irc.org/publications/pdf/digest7e.pdf
[hereinafter UNICEF, Early Marriage].
37
Avon, Child Marriage in Bangladesh, supra note 5, at 13.
38
International Center for Research on Women, “Seeking Policy
Solution”, Too Young to Wed: Education and Action Toward Ending
Child Marriage (2015).
39
Special Rapporteur on contemporary forms of slavery, including
its causes and consequences, Thematic report on servile marriage,
para. 14-17, U.N. Doc. A/HRC/21/41 (July 10, 2012) (by Gulnara
Shahinian) [hereinafter Special Rapporteur, Thematic report on
servile marriage].
43
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
40
Before She’s Ready, supra note 5 at 11; Committee on the
Elimination of Discrimination against Women (CEDAW) and
Committee on the Rights of the Child (CRC), Joint general
recommendation No. 31 of the Committee on the Elimination of
Discrimination against Women/general comment No. 18 of the
Committee on the Rights of the Child on harmful practices, para.
22, U.N. Doc. CEDAW/C/GC/31-CRC/C/GC/18 (2014).
41
Avon Global Centre for Women and Justice, Child Marriage in
Bangladesh: Impact of Discriminatory Personal Laws (2013),
available at http://www.ohchr.org/Documents/Issues/Women/
WRGS/ForcedMarriage/NGO/WomenAndJusticeFellow5.pdf
[hereinafter Avon, Impact of Discriminatory Personal Laws]; Avon,
Child Marriage in Bangladesh, supra note 5, at 13.
42
CEDAW Committee, General Recommendation No. 21: Equality in
Marriage and Family Relations (1994), at 337, paras. 36-37, U.N.
Doc. HRI/GEN/1/Rev.9 (Vol. II) (2008).
43
Id.
44
Office of the High Commissioner for Human Rights (OHCHR) in
Nepal, Opening the Door to Equality: Access to Justice for Dalits in
Nepal 10 (2011) [hereinafter OHCHR, Opening the Door to Equality
(2011)].
45
the constitution of BanGladesh, 1972, art. 7.
46
Id., art. 44.
47
Id., art. 32. In Salem Ullah v Bangladesh, 55 DLR 1 and Dr.
Mohiuddin Farooque v. Bangladesh, 22 BLD (HDC) 534 (2002),
the High Court Division held that the State is bound to protect the
health and longevity of the people by preserving a pollution free
environment as it affects the people’s right to life. In Prof. Nurul
Islam v. Bangladesh, 52 DLR 413 (2000), the High Court Division
held that the government should have banned advertisements of
tobacco products because tobacco consumption is detrimental to
the life of an individual. The State has a duty to provide to all its
citizens the right to life which includes the right to sound mind
and health.
48
Id., art. 34.
49
Id., art. 28(2).
50
Id., art. 27.
51
Id., art. 35(5); see also State v. Secretary, Ministry of Law, Justice
& Parliamentary Affairs and Others (Suo Motu Rule No.5621 of
2009) 29 BLD 656 (2009) (the Bangladesh High Court Division
has recognized that separating a child from her mother against her
will “can be nothing other than cruel and inhuman treatment” in
violation of the CRC and the Bangladesh Constitution).
52
the constitution of BanGladesh, 1972, art. 28(4).
53
Id., art. 17(a).
54
NDHS 2014, supra note 2 at 41 (the median age for marriage was
16.1 in 2014).
55
M Niaz Asadullah and Zaki Wahhaj, Child Marriage Law and
Freedom of Choice,
the daily star (2015), available at http://www.
thedailystar.net/op-ed/politics/child-marriage-law-and-freedom-
choice-134188.
56
Id.
57
shaBina BeGum, endinG early and forced marriaGe: BanGladesh
and uk perspective 5-6 (2016), available at http://www.ohchr.
org/Documents/Issues/Women/WRGS/Earlyforcedmarriage/
NGOs_Individuals/ShabinaBegum.pdf [hereinafter Ending Early
and Forced Marriage].
58
Heather Barr, Huge Step Backwards on Child Marriage in
Bangladesh,
human riGhts Watch (2016), available at https://www.
hrw.org/news/2016/12/01/huge-step-backwards-child-marriage-
bangladesh.
59
Id.
60
Id.
61
Child Marriage Restraint Act, 1929, secs. 4-6 [hereinafter CMRA
1929].
62
CMRA 2017, supra note 4, at 3.
63
Id., at 4.
64
Id., at 19.
65
sarah hossain and lynn Welchmann eds., leGal remedies for forced
m
arriaGe in BanGladesh, remedies for forced marriaGe: a handBook
for laWyers 6 (2014) [hereinafter leGal remedies for forced marriaGe
in BanGladesh].
66
Muslim Personal Laws (Shariat) Application Act 1937.
67
center for reproductive riGhts, child marriaGe and personal laWs
in south asia (2014) citing sir dinshah fardunji mulla, principles of
m
ahomedan laW, 115 (1907) [hereinafter principles of mahomedan
l
aW].
68
Muslim Marriages and Divorce (Registration) Act 1974, sec. 4
[hereinafter MMD Act 1974].
69
Id.
70
leGal remedies for forced marriaGe in BanGladesh, supra note 66.
71
Hindu Marriage Registration Act 2012 [hereinafter HMRA 2012].
72
Christian Marriage Act 1872, sec. 19 [hereinafter CMA 1872].
73
Id., sec. 7.
74
Special Marriage Act 1872, Preamble [hereinafter SMA 1872].
75
Id.
76
Id., sec. 2(2).
77
Id., sec. 2(3).
78
Government of BanGladesh, ministry of Women and children affairs,
e
fforts and initiatives to end child marriaGe in BanGladesh, 2018-
2030 (on file with the Center for Reproductive Rights)
79
Government of BanGladesh, ministry of Women and children affairs,
n
ational children policy (2011) available at http://ecd-bangladesh.
net/document/documents/National-Children-Policy-2011-
English-04.12.2012.pdf [hereinafter
national children policy 2011].
80
Government of BanGladesh, ministry of Women and children affairs,
n
ational Women development policy (2011), available at http://
mowca.portal.gov.bd/sites/default/files/files/mowca.portal.gov.bd/
policies/64238d39_0ecd_4a56_b00c_b834cc54f88d/National-
Women-Policy-2011English.pdf[hereinafter
national Women
d
evelopment policy (2011)].
81
Government of BanGladesh, ministry of health and family Welfare,
n
ational strateGy for adolescent health 2017-2030 (2016),
available at http://dgfp.portal.gov.bd/sites/default/files/files/dgfp.
portal.gov.bd/page/3c2651ae_a604_4f86_8a15_1b44586ca8d4/
44
DGFP_National%20ARH%20Strategy,%20Bangladesh%20
(2007).pdf [hereinafter
national strateGy for adolescent health
2017-2030].
82
Government of BanGladesh, ministry of health and family Welfare,
B
anGladesh population policy, para. 5.5 (2012), available at http://
bangladesh.gov.bd/sites/default/files/files/bangladesh.gov.bd/
policy/98896a22_df81_4a82_b70c_24125dec56d7/Bangladesh-
Population-Policy-2012.pdf [hereinafter
BanGladesh population
p
olicy (2012)].
83
national children policy (2011), supra note 80 at 11.
84
Id.
85
national children policy (2011), supra note 80 at 11.
86
Id., at 12.
87
national Women development policy (2011), supra note 81 at 15.
88
Id., at 29.
89
national strateGy for adolescent health 2017-2030, supra note 82
at 10.
90
Id., at 13.
91
Id.
92
BanGladesh population policy (2012), supra note 83 at para. 5.5.
93
Ruma Paul and Nita Bhalla, Bangladesh new law allowing child
brides may legitimize rape: charities, REUTERS (2017), available
at http://www.reuters.com/article/us-bangladesh-child-marriage-
idUSKBN16855I.
94
Id., at 4.
95
endinG early and forced marriaGe, supra note 58 at 4-6.
96
MFLO 1961, supra note 10.
97
Bakshi v Bashir Ahmed PLD 1970 SC 323 at 324 (1970)
(Uncodified Muslim personal laws have generally held that girls
reach puberty at the age of 15 years).
98
Mandatory Registration for Hindu Marriage Must, the daily star
(2016), available at http://www.thedailystar.net/city/mandatory-
hindu-marriage-reg-must-ensure-rights-786565 (it must be noted
that this Act is for the voluntary registration of Hindu marriages.
Registration is not mandated and it prohibits the voluntary
registration of marriages between a woman below 18 years of age
and a man under 21 years).
99
CMA 1872, supra note 73.
100
SMA 1872, supra note 75 sec. 2.
101
Id.
102
CMRA 2017, supra note 4.
103
CMRA 1929, supra note 63.
104
Dissolution of Muslim Marriages Act 1939, sec. 2(vii) [hereinafter
DMMA 1939].
105
See for example the SMA 1872 contrasted against the CMA 1872.
106
The Bangladesh Labour Act 2006, sec. 1(8).
107
The Vagrancy Act 1943 sec. 2(3).
108
The Suppression of Violence against Women and Children Act
2000, sec. 2(k).
109
The Majority Act 1875, sec. 3.
110
Bangladesh Penal Code, 1860, sec. 376.
111
See CMA 1872, supra note 73, at sec. 19.
112
MFLO 1961, supra note 10 at sec. 10.
113
principles of mahomedan laW, supra note 68 at 115.
114
SMA 1872, supra note 75, sec. 11.
115
CMRA 2017, supra note 4, at 19.
116
Id.
117
Id., at 10.
118
Bangladesh Penal Code, 1860, sec. 376.
119
NDHS 2014, supra note 2, at 39.
120
thomson reuters foundation, protectinG the Girl child leGal annex:
u
sinG the laW to end child, early and forced marriaGe and related
h
uman riGhts violations, 16 (2014).
121
avon GloBal center for Women and justice, child marriaGe in
B
anGladesh: Birth and marriaGe reGistration, 10 (2013).
122
odhik ar, the Battle continues, aspects of violence aGainst Women in
B
anGladesh, 10 (2012), available at http://odhikar.org/wp-content/
uploads/2012/12/publication-violence-against-women-2012-part1-
eng.pdf [hereinafter
odhik ar, the Battle continues].
123
Id., at 10.
124
CMRA 2017, supra note 4, at 18.
125
CEDAW Committee, Concluding Observations: Bangladesh, U.N.
Doc. CEDAW/C/BGD/CO/8 (2016).
126
Bangladesh Penal Code, 1860, secs. 376-376.
127
Id., sec. 375.
128
Prevention Of Violence Against Women And Children Act 2000,
sec 2(k) & 9.
129
Id.
130
Id.
131
Bangladesh Penal Code, 1860, sec. 10.
132
icddr,B, et al. men’s attitudes and practices reGardinG Gender and
v
iolence aGainst Women in BanGladesh, 20 (2012), available at http://
menengage.org/wp-content/uploads/2014/06/GBV-Bangladesh-.
pdf [hereinafter
men’s attitudes and practices reGardinG Gender and
v
iolence aGainst Women in BanGladesh]; partners for prevention, Why
do some men use violence aGainst Women and hoW can We prevent it,
34 (2013), available at http://www.partners4prevention.org/sites/
default/files/resources/p4p-report.pdf [hereinafter
Why do some
men use violence aGainst Women].
133
men’s attitudes and practices reGardinG Gender and violence aGainst
W
omen in BanGladesh, supra note 138 at 25.
134
Why do some men use violence aGainst Women, supra note 134, at 45.
135
Avon, Child Marriage in Bangladesh, supra note 5, at 13 (Married
girls face difficulty leaving marriages due to their isolation from their
support networks and the power imbalance within their marriage).
136
Government of BanGladesh, ministry of planninG, report on violence
a
Gainst Women survey 2015 [hereinafter BanGladesh report on
vaW].
137
Id., at 32 (73% of women surveyed did not disclose their
experience of domestic violence to anyone).
138
Id., at 35.
139
NDHS 2014, supra note 2, at 194 (1 in 5 women believe wife
beating is justified when she argues with her husband).
45
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
140
BanGladesh report on vaW, supra note 139 at 37.
141
NDHS 2014, supra note 2 at 194-195.
142
Id.
143
Domestic Violence (Prevention and Protection) Act 2010, preamble
[hereinafter Domestic Violence Act 2010]. See also, Shahnaz Huda,
BNWLA, and Plan International, Five Years After Bangladesh’s
Domestic Violence (Prevention & Protection) Act 2010: Is it Helping
Survivors, 9 (2016), available at https://www.planusa.org/docs/
phr-domestic-violence-2016.pdf [hereinafter Shahnaz Huda, Five
Years After Domestic Violence Act].
144
Domestic Violence (Prevention and Protection) Rules 2013.
145
Domestic Violence Act 2010, supra note 144, secs. 14, 15 and 16.
146
Id., sec. 3.
147
Five Years After Domestic Violence Act, supra note 144 at 33.
148
Domestic Violence Act 2010, supra note 144, at sec. 4.
149
Id., sec. 3 (domestic violence is defined broadly to encompass
physical, psychological, sexual and economic abuse).
150
Special Rapporteur on Violence against Women, Rep. of the
Special Rapporteur on violence against women, its causes and
consequences, Rashida Manjoo – Addendum – Mission to
Bangladesh,. para. 15, U.N. Doc. A/HRC/26/38/Add.2 (May
20-29, 2013) [hereinafter Rep. of the Special Rapporteur on
violence against women, its causes and consequences, Mission to
Bangladesh].
151
Five Years After Domestic Violence Act, supra note 144 at 35;
CEDAW Committee, Concluding Observations: Bangladesh, para.
19, U.N. Doc. CEDAW/C/BGD/CO/8 (2016).
152
Five Years After Domestic Violence Act, supra note 144 at 36.
153
Id.
154
Id., at 12.
155
Id.
156
Id.
157
Farah Deeba Chowdhury, Dowry, Women, and Law in Bangladesh,
24(2)
international journal of laW, policy, and family, 198 (2010)
(dowry refers to the “transmission of large sums of money, jewellery,
cash and other goods from the bride’s family to the groom’s family”
whereas dower is an amount that is paid by the husband to his wife
to show his intention to marry her).
158
Ladan Askari, The Convention on the Rights of the Child: The
Necessity of Adding a Provision to Ban Child Marriages, 5
journal of
i
ntl. & comp. laW, 126 (1998).
159
Id.
160
Why do some men use violence aGainst Women, supra note 134 at 74.
161
The Dowry Prohibition Act 1980, secs. 3-4.
162
Rep. of the Special Rapporteur on violence against women, its
causes and consequences, Mission to Bangladesh, supra note 155
at para. 40.
163
Id.
164
Births and Deaths Registration Act 2004, secs. 5, 6, 7 and 8.
165
Id., sec. 18.
166
Id. sec. 21.
167
Id., secs. 5 and 18(3). CRC Committee, Consideration of Reports
Submitted by States Parties under Article 44 of the Convention, fifth
periodic reports of States parties due in 2012: Bangladesh, para.
129, U.N. Doc CRC/C/BGD/5 (2014).
168
BanGladesh country report 2010, supra note 5 at 3.
169
NDHS 2014, supra note 2 at 20.
170
UNICEF, Birth reGistration in BanGladesh, 2 (2010), available at
https://www.unicef.org/bangladesh/Birth_Registration(1).pdf.
171
NDHS 2014, supra note 2 at 20.
172
Id., at 42.
173
endinG early and forced marriaGe, supra note 58 at 4.
174
Avon, Child Marriage in Bangladesh, supra note 5, at 10-11.
175
SMA 1872, supra note 75, sec. 4.
176
Avon, Impact of Discriminatory Personal Laws, supra note 41 at 10.
177
MMD Act 1974, supra note 69, sec. 7.
178
human riGhts Watch, When Will i Get my dues…Before i die?
h
arm to Women from BanGladesh’s discriminatory laWs on marriaGe,
s
eparation, and divorce, 38 (2012), available at https://www.hrw.
org/sites/default/files/reports/bangladesh0912ForUpload.pdf
[hereinafter
human riGhts Watch, When Will i Get my dues?].
179
CMA 1872, supra note 73 at sec. 4.
180
HMRA 2012, supra note 72 at sec. 3.
181
Id., sec. 5.
182
human riGhts Watch, When Will i Get my dues, supra note 179
(Buddhists are governed by Hindu personal laws).
183
See Dina Siddiqi, Of Consent and Contradiction: Forced Marriages in
Bangladesh,
‘honour’: crimes, paradiGms and violence aGainst Women’
(2013).
184
Id.
185
DMMA 1939, supra note 105; See also, Bakshi v Bashir Ahmed
PLD 1970 SC 323 at 324 (males and females who have reached
puberty may marry of their own free will and without parental
consent, and there are decisions to this effect. The case law is not
consistent however, and Courts in Bangladesh have also held that
girls aged sixteen to eighteen may not have the right to marry of their
own choice).
186
DMMA 1939, supra note 105, sec. 2(vii).
187
Id.
188
Id.
189
Id., sec. 2 (iv).
190
human riGhts Watch, When Will i Get my dues, supra note 179.
191
BanGladesh report on vaW, supra note 139 at 31.
192
Id., at 6. See also, MFLO 1961, supra note 10, sec. 7 (if the wife
is pregnant, then maintenance must be paid until the birth of the
child).
193
Id.
194
Id.
195
leGal remedies for forced marriaGe in BanGladesh, supra note 66 at
19.
46
196
human riGhts Watch, When Will i Get my dues, supra note 179.
See also, Hindu Married Women’s Right to Separate Residence
and Maintenance Act 1946, sec. 2.
197
Hindu Married Women’s Right to Separate Residence and
Maintenance Act 1946, sec. 2.
198
Id.
199
Id., sec. 3.
200
Christian Divorce Act 1869, sec. 10.
201
Id.
202
Government of BanGladesh, laW commission of BanGladesh, a final
r
eport on the proposed amendment of the divorce act 1989 alonG
With a draft of the divorce act, 1869 (amendment) Bill (2006),
available at http://www.lawcommissionbangladesh.org/reports/72.
pdf.
203
Married Women’s Property Act 1874, sec.4.
204
human riGhts Watch, When Will i Get my dues, supra note 179 at 44.
205
Domestic Violence Act 2010, supra note 144 at secs. 10 and 15.
206
Id., at sec. 3(d) (deprivation of economic or financial resources or
property or maintenance is considered economic abuse).
207
human riGhts Watch, When Will i Get my dues, supra note 179 at 46.
208
Id., at 51.
209
Rep. of the Special Rapporteur on violence against women, its
causes and consequences, Mission to Bangladesh, supra note 151.
210
Human riGhts Watch, When Will i Get my dues, supra note 179 at 60.
211
Id., at 63.
212
Id., at 64.
213
Id., at 43.
214
Id., at 70.
215
anti-slavery international, out of the shadoWs, child marriaGe and
s
lavery, 39 (2013) [hereinafter out of the shadoWs]; united states
d
epartment of state, 2016 traffickinG in persons report, 88 (2016),
available at https://www.state.gov/documents/organization/258876.
pdf [hereinafter
traffickinG in persons report].
216
Md. Fazle Rabby, Trafficking of Bangladeshi Women and Children:
Victimization of Rights and Dreams,
foreiGn affairs insiGht & revieW
(2015) available at http://fairbd.net/trafficking-of-bangladeshi-
women-and-children-victimization-of-rights-and-dreams/.
217
The Prevention and Suppression of Human Trafficking Act 2012
[hereinafter PSHTA 2012].
218
traffickinG in persons report, supra note 217 at 89.
219
PSHTA 2012, supra note 219, sec. 3.
220
Id.
221
Id.
222
UNICEF, early marriaGe, supra note 36 at 7.
223
out of the shadoWs, supra note 217 at 7, 22-25.
224
ILO, What is Child Labour? available at http://libguides.ilo.org/
child-labour-en.
225
Id.
226
ILO, Worst Forms of Child Labour Convention, C182 (17 June
1999, C182) (Bangladesh ratified this Convention on March 12,
2001).
227
Labour Act 2006, sec. 1(4)(o).
228
World Health Organization (WHO) Secretariat, Early marriages,
adolescent and young pregnancies, supra note 29 at: Report by
the Secretariat, para. 11., A65/13 (Mar. 16, 2012).
229
World Health Organization, Adolescent Pregnancy (Feb 23, 2018)
available at http://www.who.int/news-room/fact-sheets/detail/
adolescent-pregnancy
230
Government of BanGladesh, ministry of health and family Welfare,
d
emoGraphic and health survey further analysis reports no. 99, 1-2
(2014) [hereinafter ndhs further analysis reports].
231
World Health Organization, Bangladesh and Family Planning,
an Overview available at http://www.searo.who.int/entity/
child_adolescent/topics/child_health/fp-ban.pdf?ua=1
232
Richard Hubbard et al., Modern contraceptive options in
Bangladesh, the daily star (2017), available at http://
www.thedailystar.net/health/modern-contraceptive-options-
bangladesh-1367185.
233
NDHS 2014, supra note 2, at 74.
234
ndhs further analysis reports, supra note 232.
235
national children policy (2011), supra note 80 at 6; Government
of BanGladesh, ministry of education, national education policy
2010, 41, available at http://reliefweb.int/sites/reliefweb.int/files/
resources/02.National-Education-Policy-2010-English.pdf.
236
NDHS 2014, supra note 2, at 74.
237
Id.
238
NDHS 2014, supra note 2, at 21.
239
Avon, Child Marriage in Bangladesh, supra note 5, at 15.
240
S.M. Mostafa Kamal, Decline in Child Marriage and Changes in Its
Effect on Reproductive Outcomes in Bangladesh, 30(3)
journal of
h
ealth, population, nutrition 317, 318 (2012) [hereinafter Decline
in Child Marriage and Changes in Its Effect on Reproductive
Outcomes].
241
Bangladesh Penal Code, 1860, secs. 312-316.
242
Government of Bangladesh, Ministry of Health and Family Welfare,
National Guidelines on Menstrual Regulation (2013).
243
Susheela Singh et al., The Incidence of Menstrual Regulation
Procedures and Abortion in Bangladesh 38(3)
international
p
erspectives on sexual and reproductive health, 122, 122 (2012)
[hereinafter Menstrual Regulation Procedures].
244
Guttmacher Institute, Fact Sheet: Menstrual Regulation and
Induced Abortions in Bangladesh (2012) [hereinafter Guttmacher
Institute, Menstrual Regulation].
245
Id.
246
Id.
247
Guttmacher Institute, Menstrual Regulation, supra note 246.
248
Mizanur Rahman et. al, Pregnancy Termination in Matlab,
Bangladesh: Maternal Mortality Risks Associated with Menstrual
Regulation and Abortion, 40(3)
international perspectives on sexual
and reproductive health 108, 116 (2014); Menstrual Regulation
Procedures, supra note 246.
249
Decline in Child Marriage and Changes in Its Effect on Reproductive
Outcomes, supra note 242.
250
Id.
47
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
251
World Health Organization, Standards for Maternal and Neonatal
Care (2007), available at http://www.who.int/maternal_child_
adolescent/documents/a91272/en/; NDHS 2014, supra note 2,
at 116.
252
NDHS 2014, supra note 2, at 126.
253
NDHS 2014, supra note 2, at 46.
254
Id., at 112.
255
Ashif Islam Shaon, HC questions ‘special circumstances’ in Child
Marriage Restraint Act 2017,
dhaka triBune (2017) http://www.
dhakatribune.com/bangladesh/court/2017/04/10/hc-questions-
special-circumstances-child-marriage-restraint-act-2017/.
256
Id.
257
supreme court of BanGladesh, annual report 2015, available
at http://www.supremecourt.gov.bd/resources/contents/
Annual_Report_2015.pdf.
258
Id.; supreme court of BanGladesh, annual report 2014, available
at http://www.supremecourt.gov.bd/resources/contents/
Annual_Report_2014.pdf.
259
Mst. Bakhshi v. Bashir Ahmad & Anr, 22 DLA (SC) 289 (1970),
cited in
BanGladesh country report 2010, supra note 5 at 76 (note
that in 1970, the CMRA 1929 provided that a child for the
purposes of the Act included girls under the age of 16).
260
Id.
261
Id.
262
Fatema Begum v. Gageswar Nath & State, 9 BLD 469 (1989).
263
Krishana Pada Dutta v. Secretary of Home Affairs & Others, 10
BLD 301 (1990).
264
Bimal Kanti Roy v. The State & Others, 46 DLR 541 (1994).
265
Universal Declaration of Human Rights, adopted Dec. 10, 1948,
G.A. Res. 217A (II), U.N. Doc. A/810 (1948); the Convention on
the Rights of the Child, adopted Nov. 20, 1989, G.A. Res. 44/25,
U.N. Doc. A/44/49 (1989); Convention on the Elimination of All
Forms of Discrimination against Women, 1249 U.N.T.S 12, 19
I.L.M 33 (December 18, 1970); Convention on the Consent to
Marriage, Minimum Age for Marriage and Registration of Marriage,
G.A. Res. 1763 A (XVII) (November 7, 1962); International
Covenant on Civil and Political Rights, adopted Dec. 16, 1966,
G.A. Res. 2200A(XXI), 999 U.N.T.S 171 (1966); International
Covenant on Economic, Social and Cultural Rights, adopted
Dec. 16, 1966, G.A. Res. 2200A(XXI), 993 U.N.T.S 3 (1966);
Supplementary Convention on the Abolition of Slavery, the Slave
Trade and Institutions and Practices, 226 U.N.T.S 3 (1957).
266
Bangladesh entered reservations to CEDAW, art. 2, which
condemns discrimination against women in all forms, and articles
16(1)(c) and (f) which prescribe equality of rights in marriage and
family, on the basis “they conflict with Sharia law based on the
Holy Quran and Sunna”. Bangladesh entered reservations in
relation to the Convention on the Consent to Marriage, Minimum
Age for Marriage and Registration of Marriage G.A. Res. 1763 A
(XVII) (November 7, 1962) arts. 1 and 2 “in so far as they relate to
the question of legal validity of child marriage, in accordance with
the Personal Laws of different religious communities of the country”.
267
the constitution of BanGladesh, 1972, arts. 25 and 145(a).
268
Hussein Mohammad Ershad v. Bangladesh and Others 21 BLD
(AD) 69 (2001);
aBul hasanat, Using International Law in National
Courts: Bangladesh Perspective, 13(1&2) B
anGladesh journal of
l
aW 49, 50 (2013), available at http://www.biliabd.org/article%20
law/Vol-13/Abul%20Hasanat.pdf.
269
CRC Committee, Concluding Observations: Bangladesh, para. 9,
U.N. Doc. CRC/C/BGD/CO/5 (2015).
270
CEDAW Committee, Concluding Observations: Bangladesh, para.
10, U.N. Doc. CEDAW/C/BGD/CO/8 (2016).
271
Id.
272
Id.
273
CEDAW Committee, Concluding Observations: Bangladesh, para.
10, U.N. Doc. CEDAW/C/BGD/CO/8 (2016).
274
Id., paras. 10-11.
275
Id., para. 16.
276
Id., paras. 4-5.
277
Human Rights Committee, Concluding Observations: Bangladesh,
para. 13, U.N Doc. CCPR/C/BGD/CO/1 (2017).
278
Id.
279
Id., para. 14.
280
Id.
281
Committee on Economic Social and Cultural Rights, Concluding
Observations: Bangladesh, paras. 49-50, U.N. Doc. 12/BDG/
CO/R.1.
282
Id., at 50.
283
Id., at 66.
284
Id., at 51.
285
Id., at 50.
286
Id., at 51.
287
Human Rights Council, Report of the Working Group on the
Universal Periodic Review: Bangladesh, U.N Doc. A/HRC/11/18
(October 5, 2009).
288
Id., at para. 53.
289
Id., at para. 18.
290
Human Rights Council, Report of the Working Group on the
Universal Periodic Review: Bangladesh, para. 147, U.N. Doc. A/
HRC/WG.6/30/L.10 (May, 2018).
291
Id.
292
Rep. of the Special Rapporteur on violence against women, its
causes and consequences, Mission to Bangladesh, supra note 151,
at para. 83.
293
Id., at para. 84.
294
Id., at paras. 86(iv), (v).
295
Id., at para. 86(xiv).
296
United Nations General Assembly Res. 70/1, Transforming our
world: the 2030 Agenda for Sustainable Development, Goal 5 on
Gender Equality, A/RES/70/1 (21 October 2015); see also, U N D P,
UNDP Support to the Integration of Gender Equality Across the
SDGs Including Goal 5, 8 (2016), available at http://www.undp.
org/content/undp/en/home/librarypage/sustainable-development-
goals/undp-support-to-the-implementation-of-the-2030-agenda/;
Economic and Social Council, Report of the Inter-Agency and
Expert Group on Sustainable Development Goal Indicators, U.N.
Doc. E/CN.3/2016/2/Rev.1 (2016).
48
297
Id.
298
Id.
299
Government of BanGladesh, General economics division, millennium
d
evelopment Goals – BanGladesh proGress report 2012, 49 (2012),
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docs/MDG/2012%20Report%20MDG.pdf.
300
Girl Summit 2014, One Year On, available at http://www.
girlsummit2014.org/Commitment/Show [hereinafter One Year On].
301
Heather Barr, Huge Step Backwards on Child Marriage in
Bangladesh,
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302
One Year On, supra note 302.
303
South Asia Initiative to End Violence Against Children (SAIEVAC),
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2018), available at http://www.saievac.org/download/Thematic%20
Area%20Resources/Child%20Marriage/RAP_Child_Marriage.pdf.
304
kathmandu call for action to end child marriaGe in south asia,
endorsed 4 November 2014 at Regional Convening on Using Law
to Promote Accountability to End Child Marriage (2014), available
at https://www.reproductiverights.org/sites/crr.civicactions.
net/files/documents/SA%20End%20Child%20Marriage%20
Brochure_20Nov14(final)-2%20(1).pdf.
305
Id.
306
Bangladesh launches child protection helpline 1098, PM calls
for awareness to stop child abuse, BDNEWS24.COM (2016),
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launches-1098-helpline-for-children (discusses the launch of the
government-initiated helpline).
307
CRC Committee, Concluding Observations: Bangladesh, para. 40,
U.N. Doc. CRC/C/BGD/CO/5 (2015).
308
Id.
309
odhik ar, the Battle continues, supra note 124 at 9.
310
marry Before your house is sWept aWay, supra note 15 at 111.
311
Rep. of the Special Rapporteur on violence against women, its
causes and consequences, Mission to Bangladesh, supra note 151.
312
Id.
313
CRC Committee, Concluding Observations: Bangladesh, para. 41,
U.N. Doc. CRC/C/BGD/CO/5 (2015).
314
CMRA 2017, supra note 4, at 5.
315
Domestic Violence Act 2010, supra note 144 at sec. 15.
316
Special Rapporteur, Thematic report on servile marriage, supra
note 39 at 15.
317
Id., at 15-16.
318
Id.
319
Id.
320
The Children’s Act 2013, sec. 38(24).
321
Id., at 19.
322
CEDAW Committee, Concluding Observations: Bangladesh, para.
12, U.N. Doc. CEDAW/C/BGD/CO/8 (2016).
323
Legal Aid Service Act 2000, sec. 14(4).
324
Id.
325
center for reproductive riGhts, child marriaGe in south asia:
i
nternational and constitutional leGal standards and jurisprudence
f
or promotinG accountaBility and chanGe, 19 (2013).
326
Id. at 74, citing international centre for the research on Women
(icrW), n
eW insiGhts on preventinG child marriaGe: a GloBal
a
nalysis of factors and proGrams, 2 (2007); plan asian reGional
o
ffice, asia child marriaGe initiative: summary of research in
B
anGladesh, india and nepal, 27 (2013), available at https://www.
icrw.org/wp-content/uploads/2016/10/PLAN-ASIA-Child-Marriage-
3-Country-Study.pdf; World Bank Group, Knowledge Brief:
Health, Nutrition and Population Global Practice: Basic Profile of
Child Marriage in Bangladesh, Chata Male and Quentin Wodon,
3 (2016) available at http://documents.worldbank.org/curated/
en/642481468194960409/pdf/105908-BRI-ADD-SERIES-
PUBLIC-HNP-Brief-Bangladesh-Profile-CM.pdf.
327
Centre for Reproductive Rights, Submission to Committee on the
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scheduled for review by the Committee on the Rights of the Child
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328
NDHS, supra note 2 at 20.
329
supreme court of BanGladesh, annual report 2013, available
at;
supreme court of BanGladesh, annual report 2014, available
at http://www.supremecourt.gov.bd/resources/contents/
Annual_Report_2014.pdf.
330
odhik ar, the Battle continues, supra note 124 at 23.
331
Id.
332
Id.
333
Rep. of the Special Rapporteur on violence against women, its
causes and consequences, Mission to Bangladesh, supra note
151, at para. 72.
334
Id.
335
Id.
336
Five Years After Domestic Violence Act, supra note 144 at 40.
337
Id.; See also, Domestic Violence Act 2010, supra note 144 at
secs. 2(4), 7, and 8.
338
Five Years After Domestic Violence Act, supra note 144 at 40.
49
ENDING IMPUNITY FOR CHILD MARRIAGE IN BANGLADESH: NORMATIVE AND IMPLEMENTATION GAPS
Kalika Tower, 1st Floor
Baluwatar-4, Kathmandu, Nepal
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