ISSN: 2664-1054

Volume: IX ❑ 2021
Issue: I
Jahangirnagar University Journal of Law

Volume IX: 2021

Issue I

Published: 31 December 2021

ISSN: 2664-1054

Editor
Tapos Kumar Das

Journal of the Faculty of Law

Jahangirnagar University
Savar, Dhaka
 Jahangirnagar University Journal of Law
Volume IX: 2021, Issue I
Published: 31 December 2021

Advisors to the Editorial Board

Professor Antony Anghie, SJD
Samuel D. Thurman Professor of Law
University of Utah, USA
Dr. Mohammad. Shahabuddin
Professor in Law, University of Birmingham, UK

Editorial Board

Editor
Tapos Kumar Das
Dean (Acting), Faculty of Law, Jahangirnagar University

Members
Md. Rabiul Islam K M Shazzad Mohashin
Department of Law and Justice Department of Law and Justice
Jahangirnagar University Jahangirnagar University

Shaila Alam Asha Md. Abu Sayeed

Department of Law and Justice Department of Law and Justice
Jahangirnagar University Jahangirnagar University

Ferdous Rahman Preeti Kana Sikder

Department of Law and Justice Department of Law and Justice
Jahangirnagar University Jahangirnagar University

Tamanna Aziz Tuli Bonosree Rani

Department of Law and Justice Department of Law and Justice
Jahangirnagar University Jahangirnagar University

Published by Jahangirnagar University

Savar, Dhaka-1342, Bangladesh
© Jahangirnagar University

ISSN: 2664-1054
Printed by: Momin Offset Press, Dhaka-1205

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Jahangirnagar University Journal of Law © Jahangirnagar University
Volume IX: 2021, Issue I
Published: 31 December 2021

Contents

Biswajit Chanda The Conceptual Framework of Legal 1 - 25

Pluralism and Its Practical Application:
Listening to the Voices of Different Types
of Law in the Case of Legal Reform in
Bangladesh

Suprobhat Paul Elderly Persons’ Right to Maintenance: A 27 - 50

Critical Review of the Existing Legal
Regime in Bangladesh and Exploring
Potential Ideas from Successful
Jurisdictions

M Jashim Ali Chowdhury Jurisdictional and Procedural Dilemmas of the 51 - 71

Asma Bint Shafiq Family Courts in Bangladesh

Tamanna Aziz Tuli Consensual Minimalism: Rape Laws and Rape 73 - 85

Law Reform Movements of Bangladesh in
Context

Farzana Akter Legal Aid as a Means to Combat Poverty in 87 - 97

Bangladesh: An Appraisal

Azhar U. Bhuiyan The Doctrine of Public Trust: Its Judicial 99 - 118

Invocation in Bangladesh and the Future
Potentials

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

The Conceptual Framework of Legal Pluralism and Its

Practical Application: Listening to the Voices of Different
Types of Law in the Case of Legal Reform in Bangladesh

Biswajit Chanda*

Abstract: This paper briefly examines existing theoretical approaches to law in

order to illustrate the inadequacy of a traditional positivist framework. It aims
to explain relevant pluralist theories arguing the need for legal pluralism, since
it seems to make sense for Bangladesh or South Asia too, to subscribe to the
argument that state law is never alone in the wider socio-legal field.1 Analyses
of major legal theories and other associated issues provide a useful tool for
better appreciation of subsequent analyses relating to the realisation of
different sources of law in a particular society or community, and the
apprehension of the position of existing reforms as well as the necessity and
possibility of a further suitable reform policy for the Bangladeshi legal system.
Thus, this paper argues that to effectively appreciate and tackle the legal
system of a plural society like Bangladesh or any of the South Asian nations,
the traditional positivist framework, based on Eurocentric monist legal
methods, needs to be identified as insufficient and too state-centric. Instead, a
more inherently plural, culture-specific and identity-conscious approach needs
to be and is adopted, with due recognition given to all the elements of law or
law-related entities, depending on which approach to legal pluralism
theorising one wants to adopt.
Keywords: Bangladeshi legal culture, construction of identity through law-
making, global legal realism, legal pluralism, legal positivism, legal theories,
natural law, and socio-legal approaches.

1. Introduction
Based on an extensive literature review, this article argues that a Western-
dominated positivistic approach of legal theorising has not been productive for
understanding how effective legal reforms for an internally plural nation such as
Bangladesh, particularly regarding the family laws or personal laws of different
religious and indigenous communities, can be managed. A brief analysis of
existing legal theories and of the emerging voices of legal pluralism offers a
better and deeper understanding of this assertion. There has been hardly any
discussion on methods of legal reforms in Bangladesh and the existing

*
The author is a Professor at the Department of Law and Land Administration, University of
Rajshahi. Currently he is serving as a full-time Member of the University Grants Commission of
Bangladesh. He can be reached at: bchandalaw@gmail.com.
1 Werner Menski, Comparative Law in a Global Context: The Legal System of Asia and Africa (2nd edn,
CUP 2006).

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

discourses have been heavily politicised. Moreover, current domination of legal

minds by the concepts of legal positivism methodically cuts out all other forms of
law or normative orders, though they obviously remain enormously significant
today and cannot just be put aside. This blatantly positivistic attitude has created
a mental block in the case of personal law reforms in Bangladesh and it seems
that the method to unblock this may be to consider the potential use of concepts
of legal pluralism. This is also suggested because using the methodology of
pluralism introduces stronger emphasis on the dynamic nature of law, rather
than merely focusing on the law-making authority of parliament in accordance
with colonially inspired principles of rule of law.2
This article also examines to what extent using legal transplants is an
option for Bangladesh. The scholar who is most referred to for supporting legal
transplants as a means to global unification pictured it mainly as an essentially
‘unitary system’.3 However, his scholarship may raise questions about the
prospect and appropriateness of a unified system of law, as Watson himself
admits that ‘[o]bviously a complete legal union is neither possible nor desirable’.4
For Bangladesh, as well as in general terms, Hoque finds the idea of legal
transplantation a ‘notoriously misleading and multi-epistemic concept apart
from being of imperialistic implications’.5 This research finds the suggestion by
Sack and Aleck ‘to learn to live with the fact that “law” is like a multidimensional
net’6 very appropriate for Bangladesh. Thus, the idea and methodology of legal
transplantation do not fit with the deeply plural legal system of Bangladesh and
a culture-specific form of rule of law will need to be developed.
The paper therefore shows in the following sections that a pluralistic
legal approach is required. Through this the interlinked relationship of state,
society, ethics/morality/religion and international law, the four corners of
Menski’s kite or ghuri in Bangla,7 can be perceived as an operational tool for
useful legal reforms in Bangladesh. This article, based on theoretical
methodology, thus briefly examines existing legal theories and their relevance to
the Bangladeshi legal system to ground the argument that reforms of the
personal laws, especially minority personal laws, are essential for national

2 Werner Menski, ‘Bangladesh in 2015: Challenges of the Iccher Ghuri for Learning to Live Together’
(2015) 1(1) University of Asia-Pacific Journal of Law and Politics 7.
3 Alan Watson, Legal Transplants: An Approach to Comparative Law (First Published in 1974, 2nd edn,
University of Georgia Press 1993) 101.
4 ibid, 100.
5 M. Ridwanul Hoque, ‘Judicial Activism as a Golden Mean: A Critical Study of Evolving Activists
Jurisprudence with Particular Reference to Bangladesh’ (PhD Thesis, SOAS University of London
2007) 243.
6 Peter Sack and Jonathan Aleck (eds), Law and Anthropology (Aldershot 1992) xxvi.
7 Werner Menski, ‘Flying Kites: Managing Family Laws and Gender Issues in Bangladesh’ (2011) 2
Stamford Journal of Law 109; Werner Menski, ‘Flying Kites in a Global Sky: New Models of
Jurisprudence’ (2011) 7(1) Socio-legal Review 1.

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 The Conceptual Framework of Legal Pluralism

progress but require a level of plurality consciousness that goes beyond the
narrow focus on either state law or just Islamic law concerns. Bangladesh is
clearly an intensely plural legal environment in which a monist perspective of
analysis will be insufficient to bring about meaningful and effective reforms.
Specifically, in the context of personal law reforms in South Asia, the
existing Euro-centric positivist mind-set of law-related people and personnel in
Bangladesh systematically undermines other forms of law,8 such as socio-cultural
and religious norms, local customs and traditions that people have followed for
centuries. These other forms of law clearly retain immense importance still now
in the different personal laws in South Asia and cannot be just overlooked.
Traditional natural law concepts and socio-legal understandings of law were not
simply eradicated when positivism started its luminary journey in the sub-
continent during the colonial period.9 Also, the relevance of international laws or
norms in a particular legal system cannot certainly be ignored completely today,
especially if these norms and laws conflict with the local socio-cultural and
religious norms. However, imposition of international law norms by itself is
clearly also not a magic remedy, as law everywhere remains a locally constructed
and managed entity also in today’s globalised world, manifesting as ‘glocal
law’.10 There is, thus, a need to harmonise and manage competing expectations
within the internally plural field of law, and this requires little discussion in the
present day.11

2. The inadequacy of a traditional positivist framework

It is beyond the scope and aims of the present article to launch into a detailed
discussion of all major legal theories.12 However, a succinct analysis of existing

8 The term ‘law-related people’ may include lawmakers, legal academics, lawyers, judges, law
enforcement agencies and associated personnel involved in maintaining law and order in a
particular jurisdiction.
9 Hoque (n 5).
10 Werner Menski, ‘Angrezi Shariat: Globalised Plural Arrangements by Migrants in Britain’ (2008) 10
Law Vision 10; Menski (n 7 & 2).
11 The literature on legal pluralism is by now huge. See Brian Z. Tamanaha, Caroline Sage, and
Michael Woolcock, Legal Pluralism and Development: Scholars and Practitioners in Dialogue (CUP
2012).
12 For comprehensive details on jurisprudence, see John Salmond, Jurisprudence (11th edn, Glanville
Williams (ed), Sweet & Maxwell 1957); J.W. Harris, Legal philosophies (Butterworths 1980); R.W.M.
Dias, Jurisprudence (Butterworths Law 1985); Masaji Chiba (ed), Asian Indigenous Law in Interaction
with Received Law (KPI 1986); Masaji Chiba, Legal Pluralism. Towards a General Theory through
Japanese Legal Culture (Tokai University Press 1989); Brian Bix, Jurisprudence: Theory and Context
(First published in 1996, 3rd edn, Sweet & Maxwell 2006); Wayne Morrison, Jurisprudence: From the
Greeks to Post-modernism (Cavendish 1997); William Twining, Globalisation and Legal Theory
(Butterworths 2000); M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence (Sweet & Maxwell 2001);
Brian Z. Tamanaha, A General Jurisprudence of Law and Society (OUP 2001); Roger Cotterrell, The
Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (LexisNexis 2003); Roger Cotterrell,

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legal theories is indispensable, given that a critical appreciation of the plurality of

legal theories and clear perceptions about law and its functions intensely impact
on the methods and goals of reforms in every legal system today. The traditional
schools of jurisprudence, mainly natural law, legal positivism and the socio-
historical schools, when applied in isolation, intrinsically limit one’s
understanding to the perceived knowledge of Western legal systems. While these
conceptualisations theorise law independently, and are all internally plural in
their different orientations and combinations, it is obvious that exclusive reliance
on any one of them provides too narrow a scope for the study of the Bangladeshi
legal field or its internally complex entirety. For instance, the positivistic notion
of Austin, a nineteenth century English lawyer and a foremost proponent of
positivism arguing in essence that ‘law is the command of the sovereign’,13
undoubtedly entails a denial of the legitimacy of many legal systems, including
that of Bangladesh as well as of other South Asian States, which recognise the
continued validity of religious and customary personal law systems. Bangladesh,
like other legal cultures of the world, should by now have developed her own
ways of ‘law talk and talk about law’,14 which traditional Western positivistic
legal theory has not been able to address in its entirety. Therefore, a critical
reappraisal of old-established Western-dominated concepts and assumptions of
legal theory in the sub-sections below would facilitate appreciation that one
particular legal approach cannot totally exclude all the other types of legal
theory.
The predominant positivist analysis, reflective of a Eurocentric
modernist approach to the study of South Asian personal law systems, conceals
from view a more complex plural legal reality. This reality shows that under the
perceivably single unit of Bangladeshi law lies a complex and internally plural
family of legal systems. To develop an effective appreciation of this assertion, as
the research for this paper suggested, special emphasis needs to be given to
Chiba’s tripartite model of law,15 especially Chiba’s ‘identity postulate’, and the
‘triangular’ and more recent ‘kite’ model of Menski.16 The research also found it
significant to take proper account of the concept of ‘law in culture/community’.17

‘Law in Culture’ (2004) 17(1) Ration Juris 1; Roger Cotterrell, Law, Culture and Society: Legal Ideas in
the Mirror of Social Theory (Ashgate 2006); H. Patrick Glenn, Legal Traditions of the World (3rdedn,
OUP 2007); Menski (n 1 & 7); and Paul Schiff. Berman, Global Legal Pluralism: A Jurisprudence of Law
Beyond Borders (CUP 2012).
13 John Austin, The Province of Jurisprudence Determined (First published in 1832, W. Rumble (ed), CUP
1995).
14 Twining (n 11); William Twining, Globalisation and Legal Theory (Reprint, CUP 2006) 12.
15 Chiba (n 12).
16 Menski (n 1 & 7).
17 Cotterrell (n 12).

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 The Conceptual Framework of Legal Pluralism

The present discussion, based on fieldwork data of this author’s PhD research,18
shows that these models provide a realistic perception of law necessary for
spearheading legal development in Bangladesh, since the narrow viewpoints of
monist approaches restrict rather than facilitate the intellectual scope of the
present analysis.
The analyses in this article present a realistic argument that not only
state-centric Common Law and Civil Laws, but also Hindu Law, Muslim Law,
indigenous laws and many other forms of law co-exist in this world.19 Studying
the intricate case of family law reform in Bangladesh and taking more explicit
account of law’s socio-cultural embeddedness and plurality-conscious analysis,
this article also illustrates that it does not seem sensible to argue for one world
legal system in a culturally plural world.20

2.1. Natural law: ethics, morality or religion matters

The origins of natural law theories arise from moral or religious sets of
assumptions, having validity and authority independent of human enactment.
This means they are at the same time ‘religious’ and secular. Cotterrell finds
natural law ‘as a “higher” or fundamental law against which the worth or
authority of human law can be judged’.21 Cotterrell further notes that contrary to
legal positivism, natural law stands as a tradition of thought adopting a
seemingly diametrically opposed position and that law cannot be properly
understood except in moral terms, so that questions of law’s nature and existence
cannot be secluded from questions concerning its moral value.22 Natural law
theorists find an indispensable link between law and morality for both ‘creation’
and application ‘of all laws’.23 Friedmann sees this as ‘a way of thinking about
law that is not just rule-focused and does not ignore morality’.24 Legal positivism,
as represented by Austin (as indicated above), can almost be defined as the
complete opposite in that it appears to insist on the rigid separation of law and
morality.25 Nonetheless, as Cotterrell notably indicates, ‘legal positivism does not

18 Biswajit Chanda, ‘Family Law Reform in Bangladesh: The Need for a Culture-Specific Legal
System’ (PhD Thesis, SOAS University of London 2017).
19 For a tremendously rich source of information on legal histories and current legal developments,
see Stanley N. Katz (ed), The Oxford International Encyclopedia of Legal History (Published in Six
Volumes, OUP 2009). For highly analytical comparisons of different non-Western legal systems
with Western legal theory, see Menski (n 1).
20 Menski (n 1).
21 Cotterrell (n 12) 115.
22 ibid.
23 Lon L. Fuller, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’ (1958) 71 Harvard Law
Review 630.
24 W. Friedmann, Legal Theory (5th edn, Steven & Sons 1967) 61.
25 Twining (n 12); Twining (n 14) 111. Earlier, also Cotterrell noted this. See Roger Cotterrell, The
Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (Butterworths 1989) 120.

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deny that the substance of law can be subject to moral criticism’,26 while the key
issue for natural law theories of any interpretation is ‘not whether law can be
morally evaluated but whether its essential character must be explained in moral
terms’.27 It appears that this is why many writers find that natural law ideas lack
any convincing theoretical justification,28 reflecting the strength of post-
Enlightenment secular approaches in the conceptualisation of law. They are still
too focused on insisting that only ‘rational’ positive law is really deserving of the
label ‘law’. However, in the 21st century, this approach is being challenged and
we see significant modifications of legal consciousness.29
Freeman finds traces of natural law among almost all peoples,30 but
many legal theorists do not even recognise that non-European cultures may have
something to say on natural law theories as well.31 As we shall see, in
Bangladeshi as well as South Asian legal discourses this restrictive approach is
dominant too. Most natural law theorists have failed to contemplate that there
may be different cultural forms of natural law.32 The German jurist Stammler
(1856-1938) was an exception, though. He developed a theory of ‘natural law
with a changing content’, which embraces that ‘while the ideal of justice is
absolute, its application must vary with time, place and circumstance’.33
Amongst these variations, according to Menski,34 moral attitudes are imperative.
Globally, Eurocentric natural law’s shift from its church-centrism to secularism
with all-encompassing emphasis on ‘reason’ supposedly reflects a universal
element of modernism and modernisation. But secular values are still values, and
thus fall under the ambit of natural law or, to use Chiba’s terminology, constitute
‘legal postulates’.35
Thinking about legal theories, the origins of law, its morality, and its
potential for abuse has arisen everywhere in human societies, from earliest times
and thus ‘it is not the prerogative of the West’.36 Glenn described the chthonic
legal tradition as ‘the oldest of traditions’,37 while Menski similarly finds that the
first forms of natural law ubiquitously must be chthonic as well.38 Since the

26 Cotterrell (n 12) 119.

27 ibid.
28 J. Habermas, Theory and Practice (J. Viertel (tr), Heinemann 1974) 113.
29 Heather Walton, ‘Ancient Practice, New Purpose’ (2015) 39(7) Third Way 7.
30 Freeman (n 12) 103.
31 Werner Menski, Comparative Law in a Global Context: The Legal System of Asia and Africa (Platinium
2000) 80.
32 Menski (n 1) 133.
33 Freeman (n 12) 93.
34 Menski (n 1) 133.
35 Chiba (n 12).
36 Menski (n 1) 131.
37 Glenn (n 12) 60.
38 Menski (n 1) 131.

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origins of natural law that Asian or African, or Indian or Bangladeshi legal

systems encompass are rooted in their own chthonic traditions and in their
respective cultural contexts, Hindu law, Islamic law and other religious and
indigenous laws found in Bangladesh today have their own culture-specific
forms of natural law. This kind of finding clearly rejects the universality claims of
Western natural law.
In opposition to European claims of such universality, conflicting
universalising claims of Islam were also becoming increasingly known even by
the time of St. Thomas Aquinas (1226-74), known as a key figure in the
development of a universal divine law.39 Aquinas’ contention that the Christian
God’s law is always superior to that of man competes with the Islamic thought
that Allah’s law is supreme.40 It is evident that this notion still plays an important
role in law making processes and discourses in Bangladesh, especially for family
law. However, like Western natural law, Islamic law is also not independent of
culture-specific parameters. Nor are the other personal laws in application in
Bangladesh purely a matter of religious doctrine and authority. These aspects of
law are interlinked and connected.
The article takes account of this notion of internal plurality of authorities
whilst discussing the Bangladeshi legal system, in which Muslim law, as the
personal law of the majority, has a prominent position and dominates the family
law of Muslims, in most cases, with the express recognition of official law.41
Simultaneously, family laws of the minority communities in Bangladesh are
governed by their respective culture-specific ‘religious’ personal laws and/or
indigenous personal laws. Natural laws are thus a powerful ancient and
internally plural concept, retaining current relevance all over the world and thus
also in Bangladesh. It is not that the age of positivism led to the disappearance of
natural law concepts.

2.2. Legal positivism: state law is not all-powerful

Presently, the dominant legal theory popularised by Eurocentric universalistic
rhetoric continues to be the approach of legal positivism, which was
strengthened in the subcontinent by colonial intervention. Legal positivism
prefers law as it is, rather than as it ought to be. Hence Friedmann depicts the
separation of law and morality, i.e. of ‘is’ and ‘ought’, as the most fundamental
philosophical postulation of legal positivism.42 Natural law’s long-standing

39 ibid, 146.
40 ibid, 142.
41 For a comprehensive discussion on ‘official law’ as opposed to other forms of law, see Chiba (n 12)
and Menski (31 & 1).
42 Friedmann (n 24) 257.

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engagement in discovering the principles of just law,43 with eventual lack of

studying law as practically applied, led to a significant shift of focus from natural
law to legal positivism towards the end of the 19th century.44 However, much
earlier, Aquinas, who is seen by Menski as an unacknowledged early legal
pluralist,45 assigned a rightfully emerging place to positivism. Menski observes
that ‘his theories are based on the understanding that different types of law co-
exist and interact with each other harmoniously and conflictingly’.46 Among his
four types of law two categories, namely ‘divine law’ as revealed in scripture,
and ‘human law’ as articulated by human authorities, can be marked as ‘positive
law’.47
Today, ‘positive law, in the sense of the law of the state, is something
ascertainable and valid without regard to subjective considerations’.48 Olivecrona
is critical about the use of the term ‘positive’ as he finds that
[n]o rules of law at all are the expression of the will of an authority existing
prior to the law itself. What we have before us is a body of rules that has been
slowly changing and growing during the centuries. It would be no use to call
this body of rules positive law.49

He therefore considers that ‘[t]he adjective “positive” is entirely superfluous; it

might be misleading’, because it gives a wrong impression that ‘the law is
“posited” in the sense of being an expression of the will of a lawgiver’. Hence, he
suggests that it is sensible to call it ‘the law’ without the adjective ‘positive’.
When we look at Menski’s article on Bangladesh, the observation that the most
recent constitutional reforms in Bangladesh presumed law to be a higher entity
than any law made by Parliament may strike us.50 While most lawyers may not
like Olivecrona’s view, the term ‘official law’ as used by Chiba51 is a more
suitable alternative to the term ‘positive law'. Chiba appreciably identifies that
‘official law’ actually consists of two types, directly posited law and pre-existing
forms of law accepted by the state,52 which is what Olivecrona also indicated.53

43 For many previous centuries, positive law was neglected in the universities. There the main study
was the search for just rules that would be applicable in all countries. Surprisingly, this study,
which was to unearth the ‘true science of law’, was not conducted in the study of the various
national or local laws but only in Roman and Canon law, the laws common to the Christian world.
See René David and John E. C. Brierley, Major Legal Systems in the World Today: An Introduction to
the Comparative Study of Law (Free Press 1978) 2.
44 ibid.
45 Menski (n 1) 142.
46 ibid.
47 ibid, 151.
48 Freeman (n 12) 200.
49 Karl Olivecrona, Law as Fact (2nd edn, Stevens & Co. 1971) 77-78.
50 Menski (n 2).
51 Chiba (n 12).
52 ibid.

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The new secular positivist approach did not pay much attention to
natural law, particularly in the West, which sought to divide ‘law’ and ‘religion’.
However, Asian laws still take cautious account of the latter and remain aware of
the invisible links.54 Besides suggesting the implausibility that a law could
absolutely abolish a religion, the modernist positivist approach also fails to
appreciate the more hidden dynamics of social contexts.55 Thus a purely
positivist methodology would hide from view the moral and customary
importance of family laws of different religious and indigenous communities,
also in Bangladesh. Austinian positivism not only methodically disregards and
seeks to curtail the influence of different religious and indigenous expressions of
natural law in Bangladesh, but also refutes any claim to the customary and socio-
legal identity of an individual community.56 Thus the fundamental problem with
legal positivism is that it attempts and claims to be able to analyse law outside of,
or separate from, its social contexts or settings and tries to divide it from ethics.
Since in socio-legal reality this is never fully possible, the present article needs to
build into its analytical framework that there are always considerable limits to
the authority of state law and that, rather than ruling, state law should learn to
listen to the voices of other types of law.

2.3. Socio-historical or socio-legal approaches: law as a social phenomenon

It appears that more legal scholars realise this now and argue today that legal
theory should not overlook the respective law-making roles of communities.57 In
addition to legal positivism or natural law, the socio-legal approaches, which
concentrate on the analysis of law as a social phenomenon, are in essence ‘a
method of studying law in its specific socio-cultural, political and economic
context’.58 Thus, instead of providing a rather myopic monist perspective, this
plurality-conscious approach, more than many others, emphasises the
importance of interdisciplinarity in the study of law. It looks particularly
towards people and social groups as law making entities rather than just the
state or particular religious or value systems. Cotterrell points out that law and
social theory are not like oil and water, ‘as modes of analysis they have some
important characteristics in common’.59 Cotterrell notes:

53 Olivecrona (n 49).
54 Menski (n 1) 6.
55 Tamanaha (n 12); Sally Falk Moore, Law as Process: An Anthropological Approach (Routledge &
Kegan Paul 1978) 214-256.
56 However, as a Benthamite reformer, Austin was certainly not unaware of the need to relate law to
the needs of society. Freeman and Morrison also suggest that Austin was actually acutely
conscious of what we now call legal pluralism. See Freeman (n 12) 220 and Morrison (n 12) 6.
57 Moore (n 55); Cotterrell (n 12).
58 Menski (n 31) 105-106.
59 Cotterrell (n 12) 1.

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Law as institutionalized doctrine can be found outside the ‘official’ legal

system of the state. Law, in some sense, may flourish in social sites and settings
where lawyers or police never venture. Equally, it could be a mistake – looking
at matters sociologically – to think that the state legal system is necessarily a
unified entity.60

Historically, as Chiba notes, two French thinkers, Jean Bodin and Montesquieu
(1689-1755), both particularly interested in the influences of natural or religious
features of geographical regions upon the legal system, respectively in 1579 and
in 1748, directed attention to the cultural aspects of law.61 Chiba suggests that the
French thinker Jean Bodin was an early pioneer; he directed specific attention to
the cultural aspects of law in 1576.62 Later Montesquieu, in his famous works
Lettres Persanes (1721) and De L’espirit des Lois (1748), again drew attention to ‘the
varying customs of different nations (while giving the usual perfunctory salute
… to the supremacy of the law of nature) and suggesting that their variety was
explained by the variety in their surrounding conditions’.63 He developed this, as
Menski observes, by constructing the well-known principle that laws made by
the state should be adapted to suit the actual condition of the people concerned.64
This does not deny the state’s rule-making authority, but places a heavy burden
and responsibility on those who rule, and thus in general on ‘the state’, to
acknowledge law’s social embeddedness, which is what Santos calls
‘interlegality’.65 Bangladesh, hiding behind positivist axioms, has systematically
failed to take full account of such interconnectivities.
In Germany, a little later than in France, Johann Gottfried von Herder
(1744-1803), German critic, theologian and philosopher, an innovator in the
philosophy of history and culture, had rejected the universalising philosophical
tendencies of natural law but was also very doubtful about the state. In his vast
work Ideenzur Philosophie der Geschichte der Menschheit (1784-91; tr. Outlines of a
Philosophy of the History of Man, 1800), Herder developed a major evolutionary
approach to history in which he propounded the uniqueness of every historical
age,66 arguing that every historical period, civilisation and nation had its unique
character and therefore ‘different cultures and societies developed their own
culture specific values’.67 As a consequence, ‘the quality of human life and its

60 ibid.
61 Chiba (n 12) 30.
62 ibid.
63 J.M. Kelly, A Short History of Western Legal Theory (Clarendon Press 1992) 273.
64 Menski (n 1) 86.
65 Boaventura de. Santos, Toward a New Common Sense: Law, Science, Politics in the Paradigmatic
Transition (Routledge 1995).
66 ‘Johann Gottfried von Herder (1744-1803)’, The Columbia Encyclopedia (6th edn, 2008)
<http://www.encyclopedia.com/doc/1E1-Herder-J.html> accessed 13 September 2013.
67 Menski (n 1) 90.

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scope for self-expression resided precisely in this plurality of values’.68 It is

evident that Chiba picks up such ideas when he emphasises that official laws and
unofficial laws are always linked to specific ‘legal postulates’ that change over
time and space.69
The German jurist, legal historian and one of the founders of the
historical school of jurisprudence, Friedrich Karl von Savigny (1779-1861), like
Montesquieu, also opposed the classical religio-centric natural law approach
when he found law an unavoidable part of the culture of a people.70 Savigny
developed the view that the legal institutions of a people are, like their art or
music, an indigenous expression of their culture, and cannot be externally
imposed.71 They are, as Glenn called it much later, ‘chthonic’.72 Savigny’s
thoughts emphasised the Volksgeist (spirit of the people), folk culture, and
national history. Hence, he opposed the movement for legal codification, but did
not oppose legislation altogether.73 His stand was that no official law should be
enacted which would defy local customary norms and the value systems of the
subjects of the law. In Glenn’s terminology, this forced law-related people to take
account of chthonic laws.74 However, Savigny has been criticised for overstating
his historical approach and of treating it as universal. Further he has been
criticised by Freeman, perhaps unfairly, for underestimating the significance of
legislation in modern society and for his failure to appreciate that law may
mould customs, rather than just invalidating them.75 Indeed, in current
discussions about the concept of ‘living customary laws’, which have developed
out of Southern African developments,76 we find explicit recognition that
‘custom’ is not just something ‘traditional’ and ‘static’.
These criticisms connote that social dimensions of law on their own are
also not enough as a foundation of legal theory. A dynamic legal analysis needs
to take all types of impact into consideration. Hence, later theorists like the
eminent Austrian jurist Eugen Ehrlich (1862-1922) started to develop a more

68 Freeman (n 12) 905.

69 Chiba (n 12).
70 Menski (n 1) 90.
71 In 1814, Savigny wrote The Vocation of Our Time for Legislation and Jurisprudence (tr. 1831), which
developed this view. See ‘Friedrich Karl von Savigny’, The Columbia Encyclopedia (6th edn, 2008)
<http://www.encyclopedia.com/doc/1E1-Savigny.html> accessed 10 September 2013.
72 H. Patrick Glenn, Legal Traditions of the World. Sustainable Diversity in Law (OUP 2000).
73 Menski (n 1) 91; Menski rightly comments that ‘Savigny merely warned that careless or rushed
legislation would lead to negative consequences, … [it] reflects what Montesquieu had said
earlier’.
74 Glenn (n 72 & 12).
75 Freeman (n 12) 908.
76 Manfred O. Hinz, Without Chiefs There Would Be Bo Game: Customary Law and Nature Conservation
(Out of Africa Publishers 2003).

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

plurality-conscious sociologically oriented legal approach, discussed in the

following section.
This socio-legal approach provides a seemingly important methodology
when analysing the role of society or custom within the Bangladeshi legal
system. Essentially it appears, as a result, that different communities in
Bangladesh have a legitimate claim to their own customs, affecting the operation
of official law. However, since neither the discussion on personal laws as identity
markers nor a plurality-conscious legal education system has been developed in
Bangladesh, such debates have so far not taken place, adding to the significant
mental blockages when it comes to reform of minority personal laws in this
important South Asian jurisdiction.

2.4. International law as an unsuitable remedy for improving local laws

There is no doubt that international law and human rights are very important
elements of law. Professor Mizanur Rahman, the then Chairman of the National
Human Rights Commission, Bangladesh rightly stated that ‘[i]t is not without
reason that the understanding of human rights has become a critical component
of modern legal systems’.77 In today’s world, it may not be wise to keep
international law out of the scene, because it may be wrong to think that
international law is not plurality-conscious at all and it takes the customary laws
or culture of a people away or it argues for absolute equality only. Although the
ultimate goal of this law is to ensure equal rights to all, especially to both sexes
(or, in more modern language, to all genders), it also protects the customs and
customary laws of Adivasi/indigenous peoples as far as they are not contrary to
provisions relating to women’s equal rights. For example, article 8(1) of the
Indigenous and Tribal Peoples Convention, 1989 reads as follows: ‘In applying
national laws and regulations to the peoples concerned, due regard shall be had
to their customs or customary laws’.78 Broadly speaking, this concerns the right
to culture, which has been debated in much depth in South African laws
recently, but not so far in Bangladesh. The International Covenant on Civil and
Political Rights (ICCPR) 1966 gives minorities the right to enjoy their own
culture, to profess and practise their own religion and to use their language.79
The Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities gives minorities the right of survival, the

77 S.M. Zakir Hossain, The International Covenant on Economic, Social and Cultural Rights: A Study on
Bangladesh Compliance (National Human Rights Commission, Bangladesh 2012) forward.
78 International Labour Organization (ILO), Indigenous and Tribal Peoples Convention (entered into
force 5 September 1991), art 8(1).
79 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force
23 March 1976) 999 UNTS 171 (ICCPR), art 27.

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 The Conceptual Framework of Legal Pluralism

right to promote their identity80 and also the right to enjoy their own culture,
religion and language.81
Modern Constitutions have incorporated human rights recognising it as
one of its important components. Many countries, including some South Asian
countries, too, have recognised many provisions of human rights as fundamental
rights which have been guaranteed by the Constitution. Many of them, which
have monetary involvement and financial and economic implications, serve as
fundamental principles of state policy, which may not be constitutionally
guaranteed, but are nevertheless important and fundamental in the governance
of the respective country.82 In Bangladesh, most of the rights enshrined in the
ICCPR have been incorporated in the Constitution as fundamental rights and
most of the rights from the International Covenant on Economic, Social and
Cultural Rights (ICESCR) 196683 have taken a place in the Constitution as
fundamental principles of state policy.84 But considering its economy and
resources, Bangladesh has not been able to guarantee economic, social and
cultural rights. However, Bangladesh is trying to realise some of these right
within its ‘maximum available resources’ as has been expected by the ICESCR.
For example, Bangladesh has made primary education free and compulsory for
all and it now provides free books to all primary students. The Human
Development Index shows that Bangladesh is in a better position than some of its
neighbouring countries today, and public health and sanitation in this country is
much better than in the neighbouring countries.85 As for child and maternal
health and nutrition, the following observation by Indian scholars shows how
well Bangladesh is doing in these sectors and thus has been trying to cope with
ESC rights:
[C]ompared to other countries in South Asia such as Sri Lanka, Bangladesh and
Nepal, India’s progress towards the achievement of its Millennium
Development Goals (1, 4 and 5 specifically) is quite concerning. Despite having
their own “local” problems, Bangladesh and Nepal have achieved or nearly
achieved many of their MDG targets of optimal maternal and child health and

80 UNGA Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities (adopted 18 December 1992) UN Doc A/RES/47/135, art 1.
81 ibid, art 2.
82 See Constitution of the People’s Republic of Bangladesh 1972; Constitution of India 1950.
83 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966,
entered into force 3 January 1976) 993 UNTS 3 (ICESCR).
84 Hossain (n 77).
85 See United Nations Development Programme, ‘Human Development Report 2015: Work for
Human Development, Briefing Note for Countries on the 2015 Human Development Report on
Bangladesh’ (2015) <http://hdr.undp.org/sites/all/themes/hdr_theme/country-notes/BGD.pdf>
accessed 12 March 2016. Also, see Anonymous, ‘Bangladesh Static in Human Development Index’
The Daily Star (20 December 2015) <http://www.thedailystar.net/country/bangladesh-static-human-
development-index-190033> accessed 12 March 2016.

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

nutrition and Sri Lanka is already in its post-MDG phase. However, as far as
India is concerned, the achievement of MDGs seems way off target.86

Hossain observes that:

[t]he Government of Bangladesh has taken various measures in realising the
ESC rights in line with its human rights obligations. However, it is still clear
that more could be done within available resources to improve the situation of
the ESC rights within the country.87

The above examples may have nothing to do with family law reform, but may be
able to show that Bangladesh does care for international law and human rights
as long as they do not go against this nation’s socio-cultural or religious norms.
For instance, this Muslim-dominated state would certainly not be able to legalise
LGBT rights or same-sex marriages.88 Further, although Bangladesh had ratified
the Convention on the Elimination of all Forms of Discrimination Against
Women (CEDAW) 1979,89 it had to set reservations in a couple of articles giving
importance to shari’a.90 Islam rightly notes that:
[r]eservations and declarations are reflective of state practice and provide
evidence of a state’s response to norms espoused subservient to the overriding
supremacy of constitutional, religious and cultural norms.91

86 Pavithra Rajan, Jonathan Gangbar, and K Gayathri, Child and Maternal Health and Nutrition in South
Asia: Lessons for India (The Institute for Social and Economic Change 2014) 1.
87 Hossain (n 77) 68.
88 According to section 377 of the Penal Code 1860, a British-Indian colonial law as in application in
Bangladesh, homosexuality is an unnatural offence and a punishable criminal offence. Also,
Bangladesh voted against the resolution submitted by South Africa requesting a study on
discrimination and sexual orientation (A/HRC/17/L.9/Rev.1) passed in the UNHRC on 17th June
2011.
89 Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18
December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW).
90 Mahmuda Islam, ‘CEDAW and Bangladesh: A Study to Explore the Possibilities of Full
Implementation of CEDAW in Bangladesh’ in Shaheen Sardar Ali (ed), Conceptualising Islamic Law,
CEDAW, and Women’s Human Rights in Plural Legal Settings: A Comparative Analysis of Application of
CEDAW in Bangladesh, India, and Pakistan (UNIFEM-South Asia Regional Office 2006) 79. Not only
Bangladesh ratified CEDAW five years before India’s ratification but also eight years before the
accession by Pakistan. India and Pakistan also kept reservations as Islam notes:
‘Bangladesh initially entered reservations on Articles 2, 13(a) and 16.1(c) and (f) on the basis that it
conflicts with Sharia law based on the Sunna and the Holy Quran. Pakistan entered a general
declaration that the provisions of the convention are subject to the Constitution of the Islamic
Republic of Pakistan; it also has a specific reservation on Art 29(1) (on the arbitration of disputes).’
India has entered several reservations to the convention. It has declared that it cannot comply with
Art 5(a) (on sex role stereotyping and prejudice based on cultural, social customary practices) and
Art 16(1) (on marriage and family relations) because of its policy of non-interference in the
personal laws of different religious communities in India. It has further declared that it cannot
comply with Art 16(2) (registration of marriages) because of the impracticality of the application of
the article in a vast country such as India. India also has a reservation on Art 29(1) (arbitration of
disputes).
91 ibid, 78-80.

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 The Conceptual Framework of Legal Pluralism

This also shows that the massive countries of South Asia face specific practical
implementation issues, which the smaller nations of the world can more easily
manage and control.
When we talk about legal reform, we need to consider the issue of
sustainability. Most scholars will agree that the circumstances might be
problematic surrounding the implementation of human rights, especially in non-
Western countries, allegedly because of basic lack of respect for the essential
value of human rights among so-called under-developed peoples, otherwise in
contrast, the real cause in their traditional cultures.92 Examining this problem in a
global theoretical perspective, everyone needs to be conscious that good theory
must relate to sustainable practice and should avoid accepting the ‘intolerable’.93
Hence, the context of globalisation has brought a shift of emphasis towards
international law and human rights concerns, but this has also not replaced the
other types of law.94 Although international law and human rights have become
important elements of law, a legal system like Bangladesh needs to take all the
other elements of law into account while it tries to bring about reforms,
especially in personal/family laws.

3. Relevant pluralist theories: the need for legal pluralism

The key argument in the present section is that pluralist legal theories can help to
unblock closed minds and can assist in deliberations about reforms to the
personal law system in Bangladesh without fundamentally challenging (as many
Muslim observers have claimed with reference to the perceived threat of
‘secularism’) the religious linkages of the various types of law. John Griffiths
offers an elaborate pluralist theoretical analysis,95 when relying on Moore,96 he
defines legal pluralism as ‘the presence in a social field of more than one legal
order’.97 Practically, legal pluralism is certainly not a recent approach and is
found particularly among people ‘who live ecological lives by being chthonic’.98
As indicated in sub-section 2.1 above, chthonic legal traditions are the oldest
forms of legal tradition in the world as ‘all people of the earth are descended
from people who were chthonic’ and ‘its chain of tradition is as long as the

92 Masaji Chiba, ‘Seeking for Intermediate Variable of Human Rights’ (2000) 16(1) The International
Journal of Humanities and Peace 94.
93 William Twining (ed), Human Rights, Southern Voices (CUP 2009).
94 Manfred O. Hinz, ‘Jurisprudence and Anthropology’ (2003) 26(3–4) Anthropology Southern Africa
114.
95 John Griffiths, ‘What is Legal Pluralism?’ (1986) 24 Journal of Legal Pluralism and Unofficial Law
1.
96 Moore (n 55).
97 Griffiths (n 95).
98 Glenn (n 12) 59-60; Glenn duly acknowledges that the description of chthonic people was used in
such a lucid way by Edward Goldsmith. See Edward Goldsmith, The Way: An Ecological World View
(Rider 1992).

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

history of humanity’.99 While John Gilissen’s Le Pluralisme Juridique100 was the

first pioneering study on legal pluralism,101 Barry Hooker’s book on legal
pluralism,102 though remaining rather state-centric, first introduced the term
‘legal pluralism’ into Anglophone scholarship.103 Thus, also theoretically,
plurality consciousness is not really a new approach. However, it is possible to
see with the benefit of hindsight that there were different stages in the
development and elaboration of legal pluralist thought. Hooker,104 for example,
has been criticised by several later writers during the 1980s, particularly Chiba,105
as merely illustrating ‘weak’ legal pluralism, basically highlighting the internal
diversity and plurality of state law.
We have seen in the above section that many early thinkers, jurists and
anthropologists made significant contributions to this gradually emerging field.
Jean Bodin’s concentration on the cultural aspects of law was a way forward to
legal pluralism.106 Montesquieu, in his recognition for the variability of law, is
perhaps the first legal anthropologist of the modern period.107 Various branches
of legal scholarship recognise him as a central character of the legal pluralist
approach,108 because he rejected a fixed attitude towards law and considered law
as a changeable entity that varies according to society, time and place and
pioneered a so-called holistic perspective which also spurned the evolutionary
model109 and resurfaces in Stammler’s concept of ‘the right law’, discussed above.
The foremost English jurist, Jeremy Bentham, was influenced by
Montesquieu’s work while formulating his renowned concept of utilitarianism.110
Bentham was not a pure positivist, however. Twining notes that through
considering the influence of time and place upon legislation, he also was in
favour of giving some weight to local customs and circumstances.111 He was thus
more sensitive compared to most of his successors to the limitation of ‘black box’
theories.112 Menski considers Bentham’s intellectual contribution still relevant

99 ibid, 60.
100 John Gilissen (ed), Le Pluralisme Juridiqu (Editions de l’ Université de Bruxelles 1971).
101 Anne Griffiths, ‘Legal Pluralism’ in Reza Banakar and Max Travers (eds), An Introduction to Law

and Social Theory (Hart Publishing 2002) 290.

102 M. Barry Hooker, Legal Pluralism. An Introduction to Colonial and Neo-colonial Laws (Clarendon

1975).
103 Menski (n 1) 86.

104 Hooker (n 102).

105 Chiba (n 12).

106 ibid, 30.

107 Norbert Rouland, Legal Anthropology (Athlone Press 1994) 20.

108 Tamanaha (n 12) 27.

109 Rouland (n 107) 20.

110 Menski (n 1) 87; Utilitarianism is the principle of the greatest happiness for the largest number. On

Bentham, see Twining (n 12); Twining (n 14) 15-20; Freeman (n 12) 200-207.
111 Twining (n 14) 20.

112 ibid, 250.

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 The Conceptual Framework of Legal Pluralism

today113 and it seems that Bentham’s acknowledgment of local customs and

circumstances will always be relevant for every legal system, including that of
Bangladesh. A critical question to ask then would be, rather, why state-centric
positivism came to ignore such plurality-conscious visions and became so
dominant in the age of modernity.
Ehrlich discussed legal pluralism comprehensively, though he did not
use the term explicitly. He is discussed by Freeman under sociological
jurisprudence,114 while Menski notes that Ehrlich developed a socio-legal
approach similar to legal pluralism by minimising the differences between law
and other norms of social control, and situating the state and its attempts at legal
regulation on a clearly lower footing than positivists.115 He did not completely
isolate and separate the elements of social customs and posited law but focused
on how posited law’s function is affected in practice by societal norms. Ehrlich
introduced the concept of ‘living law’ as law ‘which is not fixed in legal
statements and yet dominates life’.116 According to Menski, what Ehrlich denoted
by this is that all law as ‘living law’ is a complex combination of rules laid down
as official law and social and other norms that affect their operation.117 Hence it
‘is never just “custom” or the law as officially laid down by the state but the law
as lived and applied by people in different life situations as an amalgam’.118 If
what people do in such life situations is officially recognised as ‘law’, then it
becomes Chiba’s ‘official law’,119 but, as Menski also observes, much of Ehrlich’s
living law appears to remain under the ambit of Chiba’s ‘unofficial law’.120 Chiba
and others confirm for the late twentieth century that Ehrlich’s approach has not
lost any of its relevance.121 The notion of ‘living law’ is strongly present in
Chiba’s model of legal pluralism, arguing that, in social reality, official law
cannot deny the existence of unofficial law and legal postulates. Living law is
thus fundamental to a globally focused legal analysis and is therefore also vital

113 Menski (n 1) 87.

114 Freeman (n 12) 670.
115 Menski (n 1) 96.
116 Eugen Ehrlich, Grundlegung der Soziologie des Rechts (Duncker & Humblot 1913); Eugen Ehrlich,
Fundamental Principles of the Sociology of Law (Harvard University Press 1936) (as cited in Menski (n
1) 95). For a detailed discussion of Ehrlich, see also Menski (n 1) 92-98.
117 Menski (n 1) 96.
118 ibid; The emergence of Muslim law in Britain as angrezi sharia or in the United States as
amrikanshari’a applies and proves Ehrlich’s theory of ‘living law’. A more live ‘living law’ is
actively in operation in the legal system of Bangladesh. For details, see David Pearl and Werner
Menski, Muslim Family Law (Sweet & Maxwell 1998); Saminaz Zaman, ‘Amrikan Shari’a: The
Reconstruction of Islamic Family Law in the United States’ (2008) 28(2) South Asia Research 185.
119 Chiba (n 12).
120 Menski (n 1) 96.
121 Chiba (n 12).

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

for any efforts of understanding law and legal reforms in Bangladesh.122 Legal
pluralists believe that the plural nature of law itself is a fact.123
This is an evident reality for the Bangladeshi and South Asian legal
systems as well since the main three institutions, precisely society, religion and
state, play significant roles in the legal system of Bangladesh moreover,
increasing pressure from international law is now also a matter of fact. Hence,
this article argues that for a fruitful reform of the Bangladeshi legal system, a
pluralistic approach is necessary that takes account of all these elements of law.
Menski through his triangular model of law124 and more recently through the
‘kite’ model,125 which explicitly incorporates international law and human rights
norms, shows how different elements of law can and do interact and become
important parts of a plural legal system.
Faced with such intrinsic pluralities, theoretical analyses of law, over
many centuries, have not been able to bring a global consensus on the
fundamental definition of ‘law’. Hence, there is simply no globally agreed
definition of ‘law’.126 Hart’s (1907-92) model of the interaction of primary and
secondary rules in reality is clearly a failed model of universal application, since
his theory could not incorporate the conceptually challenging legal realities of
laws in Asia and Africa.127 Hooker’s differentiation of ‘weak’ and ‘strong’ legal
pluralism128 was later correctly criticised as an insufficient effort, since both types
of law remain dependent on state sanction and are simply different types of
statist official law.129 Griffiths notes that Hooker’s concept of legal pluralism was
not moving away far enough from legal centralist ideology.130 Hooker remained
shackled by positivist concepts of law, whereas early postmodern pluralist
scholars such as Moore,131 Allott,132 Griffiths,133 and Chiba134 offer more precise

122 Roger Cotterrell, ‘Seeking Similarity, Appreciating Difference: Comparative Law Communities’, in
Andrew Harding and Esin Orucu (eds), Comparative Law in the 21st Century (Kluwer 2002) 35.
Cotterrell finds it essential to develop appropriate interdisciplinary legal approaches akin to those
of Ehrlich.
123 Griffiths (n 95); Gordon R. Woodman, ‘Ideological Combat and Social Observation: Recent Debate
about Legal Pluralism’ (1998) 42 Journal of Legal Pluralism and Unofficial Law 21.
124 Menski (n 1).
125 Menski (n 7).
126 Menski (n 1) 32.
127 H.L.A. Hart, The Concept of Law (Clarendon Press 1961). For a detailed discussion on Hart, see
Menski (n 1) 98-103.
128 Hooker (n 102).
129 Chiba (n 12); Griffiths (n 95); Griffiths (n 101).
130 Griffiths (n 95) 9.
131 Moore (n 55).
132 Antony N. Allott, The Limits of Law (Butterworths 1980).
133 Griffiths (n 95).
134 Chiba (n 12).

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 The Conceptual Framework of Legal Pluralism

accounts of the polycentric nature of law, which is explicitly debated in such

terms by Petersen and Zahle.135
Chiba’s basic but actually quite sophisticated three-level structure of
law distinguished ‘official law’, ‘unofficial law’ and ‘legal postulates’. He
136

unambiguously observed that official law did not have to be made by the state,
but was often recognised by a particular state from among pre-existing traditions
or cultural norms. Thus there can be different types of ‘official law’: much of
‘customary law’ and ‘religious law’ could in fact be official law, as we clearly
find also in Bangladesh, for example in the provisions of the Muslim Family
Laws Ordinance (MFLO) 1961,137 which was inherited from Pakistan. Unofficial
law for Chiba is the legal system and its components not officially authorised by
any legitimate authority, but applied in practice by the general consensus of a
certain circle of people, whether within or beyond the bounds of a country.138 It
appears that many local forms of law-related, informal activities in countries
such as Bangladesh are falling within this ‘unofficial’ sphere, and are then
sometimes seen to challenge the official law. An example would be the informal
methods of dispute settlement that fall under the broad label of shalish.139 The
third element in Chiba’s model,140 legal postulates, is the particular values or
ideas specifically connected with a particular legal system, which acts to found,
justify and guide as well as criticise and revise individual legal rules in the
system.

135 Hanne Petersen and Henrik Zahle (eds), Legal Polycentricity: Consequences of Pluralism in Law
(Dartmouth/Ashgate 1995).
136 Chiba (n 12).
137 Muslim Family Laws Ordinance, 1961 (Ordinance No. VIII of 1961).
138 Chiba 1986 (n 12) 6; Chiba 1989 (n 12) 150.
139 Shalish is in fact of two types: (i) officially recognised or formal and (ii) unofficial/informal and
thus not officially recognised by the state. Official shalish is conducted by the local government
representatives and legally it is called Village Court (Gram Adalat). The aggrieved party can file
an appeal against the ‘decree’ or ‘order’ of the Village Court before the Court of Assistant Judge or
the Court of Judicial Magistrate, depending on the civil or criminal nature of the case. Sections 6, 7
and 9 of the MFLO, 1961 also provide provisions relating to ‘Arbitration Council’. The decision of
this council is also formal and under sections 6 and 9 of this Ordinance, any party may prefer an
application for revision to the Assistant Judge concerned and his decision shall be final and shall
not be called in question again in any Court. However, the decision of unofficial or informal shalish
is not legally binding upon the parties, however, as admitted by a report of a reputed NGO BRAC,
in practice it plays an important role in societal level. Anyway, no appeal/revision application can
be filed/preferred against the decision of any local unofficial/informal shalish. Even any party may
decline to take part in such an unofficial/informal shalish. But they may become bound if the shalish
takes place under the leadership of locally and politically influential persons (ibid). In addition to
these, where applicable, if both parties enter into any formal and mutual legally valid
agreement/contract that might fall under the Contract Act, 1872. See Village Courts Act, 2006 (Act
No. XIX of 2006); MFLO (n 137); Abdul Md Alim and Tariq Omar Ali, NGO-shalish and Justice-
seeking Behaviour in Rural Bangladesh (Research and Evaluation Division, BRAC Centre 2007);
Contract Act, 1872 (Act No. IX of 1872).
140 Chiba 1986 (n 12) 6; Chiba 1989 (n 12) 150.

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In his concluding analysis of major theoretical schools of jurisprudence,

Menski finds that ‘positivist analysis has been criticised for being too narrowly
focused on rules, natural law theories are viewed with suspicion for ending up as
“religious positivism”, and socio-legal approaches face fears about fuzziness’.141
Hence Menski introduces a methodology which not only efficiently applies
Chiba’s tripartite model of law, but also presents a new ‘triangular model of legal
pluralism and interlegality’,142 in which the interlinking legal forces of state,
society and religion are clearly represented. This model incorporates the
dynamic negotiations of all three major traditional schools of jurisprudence to
comprise a more sophisticated appreciation of law and its interactions under the
postmodern heading of ‘global legal realism’.143

Global legal realism: The triangle144

Menski’s triangular model proposes a plurality-focused model of understanding

of law that, rather than focusing on only one theory, takes account of all three
major elements of law, their intrinsically plural nature, and their constant
dynamic interaction. Menski’s basic volatile structure of a triangle matches the
three major theories of law commonly studied by lawyers: the three angles are, to
reiterate, firstly those of the socio-legal approaches which takes account of law in
society or community that creates its own norms, secondly the state and
positivism, and thirdly natural law, in the form of concepts of religion, ethics,

141 Menski (n 1) 173.

142 ibid. For reviews on this model, see Maxwell O. Chibundu, Book Review on Werner Menski,
Comparative Law in a Global Context: The Legal System of Asia and Africa, 2nd edn, CUP 2006
(2007) 17(8) Law and Politics Book Review 713-719; Jaakko Husa, ‘Global Comparative Law: Right
Cure for the Wrong Disease?’ (2006-2007) 13 Tilburg Foreign Law Review 393); and R. Gordon
Woodman, 'Book Review on Werner Menski, Comparative Law in a Global Context: The Legal
System of Asia and Africa, 2nd edn, CUP 2006' (2006) 52 Journal of Legal Pluralism and Unofficial
Law 207.
143 ibid, 173-90, 594-613.
144 ibid, 612.

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 The Conceptual Framework of Legal Pluralism

morality and values.145 Legal pluralism is located in the vast central space of the
triangle, within a more spacious and dynamic circle, since it denotes all those
scenarios and conflict situations in which neither of the three major law making
elements rules the roost completely, implying potential situation-specific justice
as the outcome of a naturally unstable equilibrium between the different
competing forces, with a continuous need for renegotiation of this central ideal.146
Without explicit reference to Derrida,147 this takes account of the assumption that
‘justice’ is never finally arriving and ‘law’ is never a static entity.
Although culture is not visible in his triangular model, Menski confirms
that he finds ‘culture’ in every corner, within the triangles of
religion/ethics/morality as well as society, and to some extent even within the
triangle of the state.148

Menski subsequently turned his ‘triangle’ into a ‘kite’ model to show

‘international law and human rights’ as a separate corner and thus explicitly
recognised the importance of international law and human rights as a new form
of natural law in the fourth corner of the kite image.149 In traditional legal
systems, international law or human rights claims and the global dimensions
were included in the natural law/values corner (corner 3 of Menski’s triangle),150
and even Chiba and his 'postulates' included international law and human rights

145 ibid, 187-88, 611-13; Menski (n 7); Menski explains the particular sequence of numbering, based on
the understanding that all law is located in society, but has revised this model more recently to
favour a more historical approach without falling into the trap of evolutionist positioning that sees
one element replaced by the next.
146 ibid, 186-187.
147 Jacques Derrida, ‘Force of Law: “The Mystical Foundation of Authority”’, in Drucilla Cornell and
Michael Rosenfeld (eds), Deconstruction and the Possibility of Justice (Routledge 1992).
148 Menski (n 1) 189.
149 Menski (n 7).
150 Menski (n 1).

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

in that as modern natural law.151 The real progress comes by separating corner 3
of Menski’ triangle152 into corners 1 and 4 (which were still conflated by Chiba’s
theorising) in the new kite model, showing the huge potential conflict between
these two kinds of law in countries such as Bangladesh, but really everywhere.153
The basic principle of the key to understanding global legal pluralism is,
then, that all voices of law in the semi-autonomous social or legal field should be
heard and recorded in some form, and that no one type of legal theory can totally
exclude all the other types of legal theory. This realisation helped Menski to add
the fourth corner to his structure of the original triangle.154 As discussed in sub-
section 2.4 above, international law is clearly a form of law that needs to be built
into this pluralistic model as an important element and cannot be left outside it.
It also appears as a recognition of the claims of the human rights specialists to
honour international norms in various aspects of domestic law, perhaps without
harming the culture and identity of a people.
The argument for reforms in Bangladeshi family laws is to the effect that
the state needs to act, as the existing laws are out of date and discriminatory. The
transition from Chiba155 to Menski156 and then Menski’s traiangle and kite
represent a testing of different models and options. Menski’s kite was chosen and
data are collected by Chanda157 to give this theoretical foundation a practical
focus. The paper takes Chiba’s model158 as a basis, with the co-existence of official
law, unofficial law and legal postulates, and uses Menski’s kite159 as a vision for
the nation, but questions whether the people of Bangladesh actually want
comprehensive legal reforms or not.
The present article thus applies this kite model to the Bangladeshi legal
system, because through an open-minded analysis of this kind, one will easily
feel the presence of all these corners of the kite in the Bangladeshi legal system.
Hence when one talks about reforms of Bangladeshi laws, one has to take all
these elements of law into account to offer an effective and acceptable method of
reform, especially for family laws.

151 Chiba (n 12).

152 Menski (n 1).
153 Menski (n 7).
154 ibid.
155 Chiba (n 12).
156 Menski (n 31, 1, & 7).
157 Chanda (n 18).
158 Chiba (n 12).
159 Menski (n 7).

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 The Conceptual Framework of Legal Pluralism

4. Implementation: the construction of identity through law-making

Chiba observed that it is the task of every nation to construct an identity
postulate for itself that matches its specific cultural, religious and other value-
related characteristics.160 The identity postulate161 of Bangladeshi legal culture is
an important factor for our present analysis, since it is presumed that it can
provide the socio-legal entity of Bangladeshi legal culture, like any other legal
culture, with the criteria which both promote and limit the entity’s choice as to
how and to what extent the existing legal system, socio-legal order and legal
culture should be modified, replaced or preserved; and particularly as to how
and to what extent the legal system should adopt or reject indigenous and
foreign factors.162
British legal influence in terms of substance and/or legal education,
unchecked reception of international law or human rights laws, or too aggressive
Islamising trends, inter alia, may create a cultural crisis for the Bangladeshi
people because of the possibility that their cultural identity may be disturbed or
even obliterated. Thus the choice as to whether international human rights laws,
or some of its features, are to be adopted, with or without reformulation, has to
be made in such a way which allows the continuation of cultural identity in
law.163 From the experience of the Japanese legal modernisation process, Chiba
finds that cultural identity can be maintained by accommodating certain aspects
of foreign law or integrating international law and indigenous law, and it then
potentially provides a new or modified legal postulate which enables ‘people to
behave flexibly so as to adapt themselves to changing circumstances insofar as it
is possible to maintain their individuality/identity.’164 Or, in other words, it can
constitute the new legal postulate, which allows people to ‘maintain their
cultural identity in law by making a choice between foreign law and indigenous
law, and by reformulating both forms of laws insofar as they were adopted’.165 It
is a quality that is indispensable to every system of law which wants to remain –
and it is argued here needs to remain – culturally connected and thus to some
extent dependent on such non-legal entities.
As for Bangladesh, the role of identity postulates may be performed by
shariah in Islamic law, dharma in Hindu law and distinctive concepts of law or,
more precisely, the respective customary laws and concepts of different
indigenous communities in Bangladesh, particularly those which they still follow
for their family/personal law related matters.

160 Chiba 1986 (n 12).

161 ibid.
162 Chiba 1989 (n 12) 166-167.
163 ibid, 155-156.
164 ibid, 156.
165 ibid.

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

The legal culture of a socio-legal entity maintains its identity in a plural

legal structure. Chiba calls a legal postulate the ‘identity postulate of a legal
culture’,166 which works to maintain the identity of a legal culture as well as to
facilitate change of its constituent variables to allow room to changing
circumstances.
Menski suggests that it would be a big mistake in constructing an
appropriate national identity if naked positivism is taken as the ground rule of
legal reform.167 A properly conceived rule of law model or strategy needs the
input of different perspectives and greater respect for plurality and diversity.

5. Concluding remarks
Finally, it seems evident that relying on any one of the three or now four major
global legal theoretical approaches to law provides too narrow a scope for the
study of the Bangladeshi legal field. In the simplest case, the Eurocentric
positivistic notion of law quite clearly implies a repudiation of the legitimacy of
many legal systems, including that of Bangladesh, which for its different family
laws has quite clearly expressed that religious and/or indigenous personal laws
have to be the basis, although timely reform is a necessity. As law operates
within a pluralistic matrix in all societies, particularly in non-Western ones, the
role of law-related personnel and the state should be seen in the context of a
culture-specific, identity-conscious and plurality-conscious approach. Even in
pluralist legal systems like those of South Asia, realising the spirit of sensible
legal pluralism is, however, a challenging task for the law-related actors and
state agencies. Their particular challenge is to act as an essential equaliser to
ensure that the rights of those marginalised on the basis of ethnicity, gender,
religion, culture and language are well protected. Ensuring respect to the culture
and identity of all and not merely of the dominating group or a fortunate few is a
special responsibility of the state and its public law with its legislative and law-
enforcement agencies. This requires socially and culturally sensitive agencies
adequately informed of the imperatives of legal pluralism. In attaining plurifocal
legal reform, the doctrine of legal pluralism, thus, may lend its instrumentality
by informing law-related personnel and the general public of the usefulness of
resorting to interdisciplinarity and of accommodating national specificities as
suggested in Menski, particularly in the ‘kite’ model.168
This paper also, besides considering Chiba’s ‘identity postulate’,169
analyses the academic discourse about the relationship of ‘law’ and ‘society’,
finding much relevance in Cotterrell’s understanding of ‘society’ and

166 ibid, 166.

167 Menski (n 7).
168 Menski (n 1 & 7).
169 Chiba (n 12).

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 The Conceptual Framework of Legal Pluralism

‘community’170 and endorses the significance he places on the need for legal
theory to now take account of the notion of ‘culture’.171 But focusing only on ‘law
and culture’ still risks avoiding talk about ‘religion’ and ‘values’, and in countries
and jurisdictions such as Bangladesh, as shown in Chanda,172 this is clearly not
possible. Whether we portray the resulting plural image explicitly as ‘legal
pluralism’ or choose some other form of words, the fact that ‘law’ as a global
phenomenon manifests itself in so many different forms and also has multiple
limits173 can never be left aside in the case of legal reform, especially reforms in
personal or family laws in Bangladesh as well as in any South Asian State.

170 Cotterrell (n 122).

171 Cotterrell (n 12) 1.
172 Chanda (n 18).
173 Allot (n 132).

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

Elderly Persons’ Right to Maintenance: A Critical

Review of the Existing Legal Regime in Bangladesh and
Exploring Potential Ideas from Successful Jurisdictions

Suprobhat Paul*

Abstract: Approximately 8.10% people of Bangladesh are the elderly citizens

(over 60 years)1 and most of them have no sufficient means to afford the basic
necessities of life to survive. So, the maintenance of elderly people needs a
serious attention both from social and legal perspective. To find legal solution
for miserable life of elderly citizens of Bangladesh, this research examines the
recent enactment for maintenance of aged parents in Bangladesh. It analyses
Hindu and Muslim personal laws along with a comparison with maintenance
laws of Singapore, China, and India. It reveals that our maintenance laws are
weak in comparison with those of the above-mentioned jurisdictions. On the
one hand, it is silent regarding the issues of childless parents and responsibility
of the offsprings having no means to support their parents. On the other, it
overemphasises the criminalisation of offsprings’ failure to maintain their aged
parents rather than ensuring proper financial support to the elderly. Therefore,
it suggests that legislature should review or reconsider the Act. However, it
should be mentioned that only legislative provisions are not enough for the
betterment of elderly people, if our social values are not prevalent within the
younger. So, the state should take responsibility on its own shoulder to ensure
social security for elderly citizens.

Keywords: Ageing problem, elderly person, family law, right to maintenance,

and social security.

1. Introduction
To Bangladesh the issue of demographic ageing is relatively new since its
demographic transition started recently.2 The quite impressive growth rate of the
aged people3 juxtaposed with the increasing lifespan of the population leads to a
projection that the numbers of elderly people is certain to increase markedly with

*
The author is an Assistant Professor at the Department of Law & Justice, Jahangirnagar University.
He can be reached at: skpshuvro@juniv.edu.
1 Aditya Gaur, ‘Demographic Transition of Bangladesh’ (2019) 8(12) International Journal of Science
and Research 666, 669.
2 M Nazrul Islam and Dilip C Nath, ‘A Future Journey to the Elderly Support in Bangladesh’ [2012]
Journal of Anthropology 1, 2.
3 Jakir Hossain and Saifur Rahman, ‘Ageing in Bangladesh: Issues and Challenges’ [2000] Centre for
Policy Dialogue, Dialogue held at the Senate building of Rajshahi University on December 22, 1999.

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

time in Bangladesh.4 Scholars opine that such growing numbers of the elderly
people may set down several socio-legal concerns, i.e., their status in family,
accommodation, food and other living arrangements, health support, social
security and overall well-being of the elderly.5 To mitigate all these concerns, the
first and foremost issue is to ensure the financial support to the aged parents.
Unfortunately, the society is witnessing a gradual decrease in this financial
support to the elderly over time, and the problem has reached at an alarming
situation.
In past, the society and legal system was so structured that the elderly
had a great decision-making power in the family. A family was regarded as a
unit in ancient Hindu legal system.6 At the head of the family was the oldest
male person, who had absolute authority over the family members and claimed
absolute obedience from them.7 In consequence, offsprings were bound to obey
the elderly and to contribute and place their resources at the disposal of elders
for prudent handling. Such status and roles of the elderly in the family continued
as a social norm until the end of nineteenth century. During the last century this
system slowly eroded, and the elderly evidenced abuse and neglect from their
offsprings as a consequence. Though there are significant number of cases, where
offsprings are unable to maintain their aged parents, the number of offsprings
unwilling to maintain the aged are certainly not less than the number of indigent
offsprings. As a result, most of the elderly, particularly widows, widowers, and
the childless parents suffer from some basic human problems, such as, poverty,
hunger, malnutrition, senile diseases, absence of proper medical care, exclusion,
deprivation of accommodation, etc.
Available literatures in this field mainly tries to find out the causes
responsible for discontinuity of long cultural and religious tradition of looking
after the elderly, 8 which created a legitimate expectation that “families and

4 Samad Abedin, ‘The Demographic Aspects of Ageing in South Asia with Special Reference to
Bangladesh: Trends and Implications’ (1995) Paper presented at the Conference of CMIG, Calcutta.
5 Samad Abedin, ‘Social and Health Status of the Aged in Bangladesh: Issues and Challenges’ (1999)
Paper presented at a conference arranged by Centre for Policy Dialogue in Rajshahi, 22 May 1999.
6 VD Kulshreshtha, Landmarks in Indian Legal and Constitutional History (Revised by BM Gandhi, 7th
edn, Eastern Book Company 1995) 2-3.
7 ibid, 3.
8 Samad Abedin, The Elderly: Emarging Issuses (Bangladesh Association of Gerontology 2005); Abedin
(n 4 & 5); Islam and Nath (n 2); Hossain and Rahman (n 3); P. Chakrabarti, ‘Perception of Old Age
Problem in Rural Nadia’ (1996) 3 The India Journal of Gerontology 1; Susan Erb, ‘A Study of Older
People’s Livelihoods in Bangladesh’ [2011] Help Age International <https://www.helpage.org/
silo/files/a-study-of-older-peoples-livelihoods-in-bangladesh.pdf> accessed 06 January 2021; Md.
Delower Hossain, ‘The Law of Maintenance and its Implementation in Bangladesh: A Comparative
Study’ (2006) 1(7) Rajshahi University Law Journal 85.

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 Elderly Persons’ Right to Maintenance

communities will care for their own elderly members.”9 Poverty seems to be the
single biggest factor that is weakening the traditional norm of caring old parents
in the family.10 Also, the gradual extinction of joint families is a good reason for
deteriorating our old eulogistic traditions.11 Since daughters are not expected to
directly support their old parents, older parents generally live with their sons
within the same house. Therefore, living arrangements of the elderly are co-
residence with their earning son.12 Though the moral duty of each and every
child to maintain parents under divine law has been accepted worldwide, “the
process of development tends to bring rapid changes in social behaviour and
institutions, which might have adverse implications for the care and well-being
of the elderly persons.”13 Because the protection of parents under divine laws is
being violated with the gradual decline in this moral duty and the breaking-up of
family bondage, statutory provisions addressing the needs and protection of
aged parents are being introduced.
In this perspective, this paper deals with the right to maintenance and
support of aged parents under existing statutory and personal laws in
Bangladesh. It mainly concentrates on the lacuna of laws and nature of barriers
to implement the rights of aged parents in Bangladesh. Also, it seeks to find out
the loopholes of existing legal framework in order to realise how this deadlock
situation can be removed to ensure maintenance and support for aged parents.
To this end, the study undertakes a cross jurisdictional analysis examining the
family laws of some selected Asian countries having specific laws on the
maintenance and welfare of elderly persons.

2. Elderly people in Bangladesh

Those who are young today in course of time will surely be elderly. Everybody is
to be elderly inevitably overcoming the restlessness of time of romanticism of
youth one by one, i.e., in the assessment of time everybody is to reach a
particular limit. However, there is no specific method to determine the actual
number of the elderly people of Bangladesh as there is no particular age limit in
respect of definition of old age. In Bangladesh, the elderly people can be defined
in four ways. Firstly, the United Nations includes people aged sixty or more into

9 Islam and Nath (n 2) 2.

10 Md. Ahsan Kabir, ‘Rights and Care for Elderly People: Bangladesh Perspective’ (2006) 1(6)
Rajshahi University Law Journal 71, 84.
11 ibid.
12 AKM Shafiul Islam, Social Aspects of Ageing in Bangladesh: A Case Study of Rajshahi City (Rajshahi
University Press 2001) 6.
13 M Kabir, ‘Demographic and Economic Consequences of Ageing in Bangladesh’ (1999) Paper
presented at a Dialogue held at the Senate building of Rajshahi University, 22 December 1999.

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the elderly class in Asia and the Pacific region. 14 Secondly, the Bangladeshi
government servants retire at 59 years15 while, the judges of the Supreme Court
and the teachers at the Universities retire at the age of 67 and 65 years
respectively.16 In measurement of upper limit of retirement age, people of 65 and
more may be regarded as elderly. Thirdly, a government servant is to take
preparation before retirement; that’s why the persons yet to retire can be
considered as elderly from the time of taking preparatory leave for the
retirement. Lastly, the expected average span of life for the Bangladeshi is
approximately 64 years. In this respect, the individuals reaching the age of 55
years may be called as elderly.17 The statistics of various censuses indicate that
the rate of increasing the elderly people is faster and more than that of total
population. In 1951 the number of people of 55 years or above was 6.5% of the
total population and in 1991, it increased to 7.2%. As per Bangladesh
Demographics Profile 2013, the percentage of people over 55 years is 10.6% that
amounts to 17 million approximately. Study reveals that “the numbers of elderly
people will increase six-fold by mid-century, creating a large burden on the
health system, especially for chronic illnesses.”18
Old age, in fact, is a different social problem concerning development
and value. In the cultural environment of Bangladesh, the old age case is a
significant chapter. The elderly people of Bangladesh do face various types of
problems. Among them, economic problem comes first for which they are to
select begging for living. In addition, loneliness and deprivation of family and
community make an elderly man’s life intolerable. Besides, they have the
problems of hygiene, treatment, housing, recreation, security etc. Of course, these
problems vary according to socio-economic situation and regional position of the
country. Usually, the disadvantaged elderly people face several problems.
One of the chief problems of the elderly people of Bangladesh is financial
insolvency, for which they face acute problems at every step of their living.
Among them, uncertainty of maintaining the daily living, scarcity of resource,
lack of job opportunities and above all, gradual degradation of traditional social
support system, etc. are principally responsible for their sufferings. For earning
money, they are forced to engage themselves in such employments that are not
suitable for their physical ability. Though they are not appropriate to their

14 Md. Nurul Islam, Social Action, Social Reform and Social Legislation (Tasmia Publications 2004) 82.
15 Public Services Act 2018 (Act No. LVII of 2018) s 43. Under this section, the freedom fighters are
entitled to serve the country one year more. Their retirement age is 60.
16 Constitution of the People’s Republic of Bangladesh 1972, art 96; Public University Teachers
(Retirement) (Special Provision) Act 2012 (Act No. XXIX of 2012), s 3.
17 Islam (n 14) 82.
18 AKM Nurun Nabi, ‘Population Challenges for Bangladesh’ The Daily Star (July 2012)
<https://archive.thedailystar.net/forum/2012/July/population.htm> accessed 6 February 2021.

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 Elderly Persons’ Right to Maintenance

physical state at all, for their living there is no other alternative open to them. At
such old age, for earning money, they are forced to pull rickshaws and carts,
break bricks, excavate earth and other hard labours. Those who are able to labour
physically and take pride in living with the earning in such a way, take part in
such professions or occupations. Otherwise, for living they are to depend on the
mercy of others or select begging. Those who have no support from family or are
unable to earn money for living, face extreme insecurity of money. In villages,
the elderly people, particularly issueless widows face the worst economic
wretchedness, because economic status in villages is comparatively lower than
that in towns. Usually, it is noticeable that the elderly people themselves do not
take preparation to cope with economic crisis at old age; they become destitute to
cope with the daily necessity and do not get scope to think about their future.
In the final stages of old age, immeasurable condition of housing is more
fatal. Inadequacy of proper housing facility is more heart-rending for the elderly
people than their financial insufficiency. But in rural areas, housing problem is
not so much serious matter. An old man can live with his offspring if s/he has no
house. The elderly, who have no issue, can take shelter in their near relatives’
house. Generally active old women afford their food and housing facility from
any of their relatives and neighbour in exchange of their assistance in some
domestic works of that family. But in case of an old man, getting such type of
family support is harder than that of an old woman. Housing problem for urban
aged people is more acute than the rural aged people. In urban society, getting
such type of support from relatives is a rare scenario, if such relative is not very
near one. Housing problem also exists for the elderly people having both family
and property. In most cases, the offspring are not willing to give housing facility
in their own house to their old parents. Rather they are more excited to take the
possession of their parents’ property. The descendants consider their parents
burdensome. Even in some cases, it is seen that they have no definite living space
in their own house. The old parents have to move from one child’s house to
another one, even in some not least, they are forced to take shelter to their sons-
in-law.
With the gradual increase of age of the elderly, their immune system
decreases day by day. As a result, they are attacked by different types of
diseases. Some diseases are specially related with the old age people, such as
eyesight, hearing power, memory power, digestive power, etc., decrease; blood
pressure and cardiovascular diseases attack; and liver and kidneys become weak.
That means the insight activity in all parts of their body becomes easily
vulnerable. Besides, some mentionable problems are also seen, such as, sciatica,
backbone pain, etc. There are some diseases like stroke, anaemia, asthma,
paralysis, scurvy, malnutrition, pneumonia, leukaemia, schizophrenia, etc.,
which attack only the older people. For this reason, in proportion to their

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increasing age, the necessity of proper treatment becomes urgent. In most cases,
these problems attack the elderly for want of proper nutrition, unhealthy living
condition, and unhygienic environment. So, the magnitude of diseases is more
for these people. But the medical facilities are very limited for the old aged and
the existing facilities are merely urban based, though they are not easily
accessible for the disadvantaged section. As a result, the physical condition of the
elderly who live in rural areas is more miserable. They have to die earlier and
past their last stage of lives in illness condition.
In this transitional period, the main problem for the Bangladeshi elderly
people is psychological one. One who is now old has shown their loyalty to the
family and their previous generation. So, they can expect the similar loyalty and
respect from their next generation. But they do not get so for the change of time
and moral turpitude of the young generation. In their youth, they gave all their
belongings to the family integration, and they did it in expectation of loyalty and
respect from their descendants in their old age. But the practical phenomenon
does not go to that way at all. All kinds of deprivation from society and
community result in their mental problem. When the level of disappointment
goes up to the highest position, some elderly chooses the way of suicide to get
rid of all the problems, which is a very heart-rending graph.
Gradual deterioration of traditional values and customs are the main
causes for creating many problems of the elderly people in domestic and social
cases. The customs of joint family system, which have been working as a
talisman for the elderly since the ancient time, are degrading at present because
of the breaking-up of that system. The ever-increasing emergence of nuclear
family system has great adverse impact on the safety of the elderly. In nuclear
family system, the elderly persons are regarded as extra burden, even by their
own family members. Besides, the separate living or staying in the abroad of
their offspring always makes the lives of the elderly painful. In this circumstance,
the social problem becomes more acute when it is accompanied by above
mentioned ones.

3. Right to maintenance as social security of the elderly

Maintenance can be easily defined as a financial support given by one person to
another person, who is dependent on the former on any reasonable ground. In
general, “Maintenance signifies all those things, which are essential to the
support of life,”19 though in common parlance it is limited to food. It therefore
comprehends food, cloths, lodging, toilet requisites, medical attention, and other

19 DF Mulla, Principles of Mahomedan Law (Pak Publishers 1968) 338.

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necessaries to life,20 but not merely necessities of life.21 Therefore, “maintenance

must vary according to the position and status of a person.”22 Generally, persons
of four categories are entitled to maintenance. Firstly, descendants include minor
children, unmarried daughter, married daughter (if she is poor, but moral
obligation) and adult son, if he is indigent. Secondly, ascendants include parents
and grandparents. The others are collaterals and wife.
Focusing on the idea that the middle-aged group or working generation
should repay the old for help they received as dependent children, Wynne
defines social security and other arrangements for the support of the elderly as
reciprocity system. 23 As Vladimir Rys observes, the terms “Social Security”
mainly denotes:
the securing of a financial support to take the place of earnings when they are
interrupted by unemployment, sickness or accident, to provide for retirement
through age, to provide against loss of support by the death of another person
and to meet exceptional expenditures.24

Accordingly, Barua opined that:

the concept of social security can be said to be inherent in the traditional joint
family system which has been prevalent in our society since ages. With the
growth of industrialisation in the wake of World War I, and under the impact
of modern economic forces, the joint family system came to be gradually
undermined. So, the modern concept of social security attracts attention of the
state authorities.25

Therefore, modern concept of social security generally refers to social insurance,

social assistance, family allowance and a variety of social services designated to
reduce economic burdens of a family.26 Historically people, however, look to
their family members, even the religious groups as well, to meet their need for
social security. So, the social security of a person can never be imagined without
maintenance or financial support from the relatives. For this reason, maintenance
or financial assistance should be provided for those, who, during their old age,
are incapable of affording the basic needs (such as food, clothing, housing,
medical facility, etc.) because of poverty, unemployment, sickness, or disability.
To speak with due deliberation, the amount of maintenance should be enough to
meet these needs, and therefore, subject to a comprehensive assessment of social

20 Faiz-Badruddin Tyabji, A Handbook on Muhammadan Law (All Pakistan Legal Decisions 1966) 100;
Neil BE Baillie, Digest of Moohummdan Law (Premier Book House 1965) 441.
21 Aliyar v Pathu [1988] 2 KER LT 446.
22 Kesarkoinverb v C.I.T [1960] AIR (SC) 1343.
23 Edward A Wynne, Social Security: A Reciprocity System under Pressure (Westview Press 1980) 12.
24 Vladimir Rys, ‘Comparative Studies of Social Security’ (1966) 19(1) Bulletin of ISSA 7, 8.
25 Nayan Barua, Social Security and Labour Welfare in India (Ashish Publishing House 1995) 11.
26 Md. Ali Akbar, Elements of Social Welfare (College of Social Welfare and Research Centre 1965) 9.

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and financial situation of the parties. At last, it can be concluded that the noble
objective of social security to ensure standard lifestyle for a person is never
possible but with private financial security or sufficient maintenance and support
from the relatives.

4. Elderly persons’ right to maintenance in Bangladesh

The exploitation and abuse of aged parents within the families and societies are
very rampant. Examples of deprivation of aged parents from their wealth and
property and their forced labour in their own house are not rare in our society.
They are also deprived of due respect from their descendants, whom they made
a huge contribution for in their period of ability. The state alone is not
responsible party for such ignorance of the rights of aged parents. The family
members, the society, and the victim aged parents themselves are responsible for
this state of affairs. But Bangladesh did not have any special legislation for the
aged parents before 2013 and the absence of such law was a good ground for the
endless sufferings of aged parents. However, it should be admitted that our
traditional religious laws were very much positive in this regard. But the lack of
proper vigilance among the society members including the victims and the state
mechanisms, especially the courts of law result in the non-enforcement of the
aged parents’ rights under the personal laws.

4.1. Right to maintenance under personal laws

The family related issues in Bangladesh are purely determined by the personal
laws of the respective individuals. It is undeniable that maintenance is a matter
of personal law. In every religion, this matter has been emphasised merely to
ensure better lives for those who cannot support themselves. However, the paper
concentrates on Hindu and Muslim laws regarding maintenance of aged parents,
since most of the people in Bangladesh belong to two major religions, Santana
and Islam. It is the limitation of the paper not to cover the Christian and
Buddhist laws on this topic, though some populations of these religions also exist
in Bangladesh.

4.1.1. Islamic jurisprudence and Muslim law on maintenance of aged parents

The holy Quran (17:23) has ordered the offsprings to be kind to their parents.
Following the above verse, it has been accepted without any difference of
opinion that it is incumbent upon a Muslim to maintain his parents and
grandparents, if they are in necessitous circumstances. 27 The difference of
religion creates no impediment for providing maintenance to parents. The Quran

27 Muhammad Faiz-ud-din, A Textbook on Islamic Law (Shams Publications 2008) 150.

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(31: 15) also commands, “make good behaviour with them (parents) in this
world.” The spirit of this verse is to provide maintenance to the parents even if
they are infidels.
Regarding the obedience and maintenance to parents the Prophet
Muhammad (peace be on Him) said, “Your father is your middle door. Now it is
up to you to protect it or destroy it.” 28 He also said, “the pleasure of Allah
depends on the pleasure of your father and the displeasure of Allah depends on
the displeasure of your father.”29 He further said “both your father and mother
are either your paradise or hell.”30 The spirit of these Hadiths is that anybody can
achieve paradise by providing maintenance and good treatment to his parents. If
any Muslim, despite his ability to provide maintenance to his parents, neglects to
do so, he then, of course, creates their displeasure, which will lead them to hell. It
is, therefore, incumbent upon a son to maintain his parents whatever they are
Muslims or not.
Parents have the next position in the right of maintenance after wife and
minor children. The liability to provide maintenance to the parents solely rests
on the offsprings and no one else shares with the offsprings the obligation of
maintaining his parents.31 However, there are disagreements among the eminent
Muslim Jurists as to the extent of such right of parents and preference of mother
to father. They have formulated some principles in this regard. Financially
affluent sons and daughters are always bound to maintain their poor parents,
whether they are Muslims or not and whether they are able to earn anything for
themselves or not. And, the liability of all sons and daughters to provide
maintenance to their parents is equal.32 In contrast, when an offspring has both
parents, but cannot afford maintenance to either of them, he should take them to
live with him so that they may participate in what food he has for himself.
If an offspring is unable to maintain both of his parents, mother has the
better right, that is, in this case, mother will be preferred over father. 33
Particularly, the right to maintenance of a poor mother cannot be qualified by
financial hardness of the son. To simplify, a son, even being in a straitened
circumstances himself, is bound to maintain his poor mother, though she may
not be infirm.34 Whereas, a poor son, is bound to provide maintenance to his
father, only if the father is poor and earns nothing. On this issue, Baillie opined

28 ibid.
29 ibid.
30 ibid.
31 Baillie (n 20) 465.
32 BR Verma, Mohammedan Law (Delhi Law House 1978) 238.
33 Baillie (n 20) 466.
34 ibid.

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that “if the son has wife and minor children, all that he can be compelled to do is
to bring his father to live into his family, but he is not obliged to give separate
maintenance.”35 In other words, the person of limited income can be compelled
to maintain his father if he has any surplus. This difference of opinion raises a
question whether a poor father, who is forced to do laborious works to earn and
survive, is entitled to maintenance.
Under the Shia law, the rights of the two parents are equal. Also, the
right of the parents and children are equal. Maintenance must in each case be
divided equally. But the parents are preferred to grandparents.36 Parents and
offsprings are jointly liable for a person’s maintenance. Thus, if a poor man has
both father and a son who are not poor, the liability falls equally upon them.
Also, there are disagreements among different schools as to the extent of
the liability of son and daughter to maintain the parents. Specifically, Shaefi law
is undecided on the question whether the heirs are jointly liable for maintenance
or only in proportion to their respective shares. In this perspective, Ameer Ali
opines that “the liability should be in proportion to the shares of inheritance.”37
Another opinion is that if there is considerable difference in the means,
maintenance is to be provided in proportion to the means. For example, in Shia
law “the liability is apportioned according to the individual means of the persons
who are bound to maintain.”38 However, the proposition that the duty to support
should be equally incumbent upon son and daughter seems to be better.
Accordingly, grand-children are bound to maintain their grand-parents
to the same extent to which the offsprings are bound to maintain the parents,
provided that if a necessitous person has got both grand-parents and grand-
children, who are not poor, they will be liable to provide maintenance in
proportion of one-sixth and five-sixths. 39 But the grand-children of a person
would not be liable to maintain if there is a husband, offsprings or parents, who
would be under a duty to maintain, even though they may be entitled to inherit.
Thus, if a man has a daughter or father and a grandson, the daughter or the
father must maintain him. The grandson would not be bound to maintain him
even though he is entitled to inherit. But where there are both grand-parents and
grand-children, the liability would be of both proportionately to the extent of
their shares in inheritance. Thus, if there is a grandfather and a grandson, they
must provide maintenance in proportion of one-sixth and five-sixths. 40

35 ibid.
36 ibid, 102-104.
37 Syed Ameer Ali, Mahommedan Law (Law Publishing House 1965) 431.
38 Verma (n 32) 239.
39 Baillie (n 20) 466.
40 ibid, 468.

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 Elderly Persons’ Right to Maintenance

According to the Shaefi law, maintenance is due from all the descendants
together, but they are not equal in all respects. The obligation is on the nearest. If
there is equality in the degree of relationship, the obligation is on the persons
who will be heirs.41
However, in Muslim law, the right to maintenance can be curtailed by
gift since a Muslim can validly transfer his property in whole by way of gift, but
that is not so in case of will. Yet, any amount payable as maintenance under the
order of Arbitration Council or Family Court, if not paid in due time, will be
recoverable as arrears of land revenue.42

4.1.2. Hindu philosophy and law on maintenance of aged parents

In Monosonghita/Manusmriti, also known as the Code of Monu (an important
source of Hindu law) Monu has said “the support of the group of persons, who
should be maintained, is the approved means of attaining heaven, but hell is the
man’s portion if they suffer.”43 Therefore a Hindu should carefully maintain that
group of persons. Monu has further said “the aged parents, a virtuous wife and
an infant child must be maintained even by doing a hundred of misdeeds.”44 So,
a Hindu should maintain his/her parents with a view to gaining the spiritual
benefits after death. The liability to maintain aged parents is imperative and
independent of inherited assets.
The liability of a Hindu to maintain others arises in some cases from the
mere relationship between the parties, independently of the possession of the
property; while in other cases, it depends altogether on the possession of the
property. Thus, the liability of a Hindu to maintain the members of his family is
of two kinds, i.e., personal liability and liability dependent on the possession of
the property. Among these two forms of liability, to provide maintenance of the
aged parents is a personal liability. In Satyanarayanamurthy v Ram Subbamma
case45 it was held that the liability to maintain one’s parents is clear both from
shastric law and the decided cases. The Madras High Court in Subbarayana v
Subbakka case46 confirmed that a Hindu is under a legal obligation to maintain his
aged parents irrespective of that he has inherited any property from father or
not.
However, Hindu law makes a clear distinction between a legal and a
moral obligation of a person to provide maintenance for certain persons. Where

41 Verma (n 32) 239.

42 Muslim Family Laws Ordinance 1961 (Ordinance No. VIII of 1961), s 3(3).
43 SK Routh, Elements of Hindu Law (Comilla Law Book House 2008) 231.
44 ibid.
45 [1964] AAP 105.
46 [1885] 8 Mad 236.

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it is legal, it is necessarily enforceable against him. Where it is only moral, it

cannot be enforced; rather it is a matter between him and his conscience.47 Some
persons can claim to be maintained on moral grounds, while others have a legal
claim to be maintained. The legal obligation exists only in favour of a limited
number of his relations, provided that certain conditions, of course, are fulfilled.
In Savitribai v Laximibai case48 it was held that the obligation to maintain these
relations is personal in character and arises from the very existence of the relation
between the parties. Yet, there is a disagreement as to the right to maintenance of
stepmothers from stepchild. The Bombay High Court in Bai Daya v Natha case49
held that a Hindu is under no personal obligation to maintain his stepmother. It
is to be noted that the obligation to maintain the stepmother depends upon the
condition that the son has inherited available assets from his father. But the
Madras High Court in Audemma v Varadareddi case50 held that a stepson, if he
inherits his father’s estate, he is legally bound to maintain her out of the estate,
because his father was legally bound to maintain her as his wife.
Apart from the personal liability of a Hindu, Joint family property is
liable for the maintenance of every member of the family. So far the family
remains joint, the funds of the family are brought to the common chest and dealt
with for the maintenance and support of the family according to its needs. The
manager is bound to maintain the members of the family, that is, the coparceners
and their descendants. So, if the aged parents and offsprings are members of a
joint family governed by the Mitakshara law, the aged parents are entitled to
maintenance out of the joint family property. Even on the death of aged father,
aged widow mother cannot be deprived of the maintenance from joint family
property, since under the Hindu Women’s Right to Property Act 1937, a widow
has in the joint family property the same right as her husband himself had.51
In Hindu law, the right to maintenance is a personal right. The right is so
secured that it cannot be transferred nor can be attached.52 Whereas, the arrears
of maintenance may be so attached or transferred.53 Unlike Muslim law, A Hindu
cannot dispose of his entire property by gift or by will so as to defeat the right to
maintenance, which a person is entitled to under Hindu law.54 If he does so, the
donee or devisee must hold the property subject to the right of maintenance and

47 SV Gupte, Hindu Law in British India (NM Tripathi Private Ltd. 1947) 1058.
48 [1878] 2 Bom 573.
49 [1885] 9 Bom 279.
50 [1948] Mad 803.
51 Hindu Women’s Right to Property Act 1937 (Act No. XVIII of 1937) s 3. DF Mulla, Principles of
Hindu Law (NM Tripathi Private Ltd. 1990) 279-372.
52 Narbadabai v Mahadeo [1881] 5 Bom 99.
53 Jogendra v Fulkumari [1900] 27 Cal 38.
54 Joytara v Ramhari [1884] 10 Cal 638.

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the right can be enforced against it.55 The right to maintenance was at one time
spoken of as a charge on estate but after the passing of Transfer of Property Act
1882, which has defined a charge that it is not so unless it is fixed and charged on
a specific portion of the estate by contract or decree. In Kuloda Prosad v Jogeshwar
case,56 the court held that where the maintenance has been made a charge upon
the property and the property is subsequently sold, the purchaser must hold it
subject to charge. But debts contracted by a Hindu take precedence over the right
to maintenance.57
However, no hard and fast rule can be laid down as to the amount to be
awarded to a person entitled to maintenance. In determining such amount, the
court may take into account various factors. So, every case must be determined
based on its own facts. Hence, it shall be in the discretion of the court to
determine what amount shall be awarded to the aged and infirm parents and in
doing so, the court shall have due regard to the circumstances of the given case.
The amount of maintenance to be awarded to the aged parents largely depends
on gathering together of all the facts of the situation, the amount of free estate,
and the conditions of life in addition to their necessities and rights. However, a
reasonable view of circumstance, which may possibly change in the future,
should be taken into consideration. So, due regard, of course, must be had to the
scale and mode of living. In short, it is out of a great category of circumstances
that a sufficient and reasonable induction is to be made by a court of law in
arriving at a fixed sum. In determining the amount of maintenance, the court of
law can take into consideration the factors, which were approved in various legal
decisions. They are the means of the person, who is bound to maintain or the
value of the estate which is liable;58 the position and status of the person bound
to maintain;59 the wants and exigencies of a person in the position and rank of the
life of the claimants, including not only the ordinary of living but also for
religious and other duties of a Hindu;60 the past mode of life, and conduct of the
claimant;61 the age, habits, wants, and class of life of the parties;62 and the claims
of other persons or other members of the family.63 In Devi Pershad v Gunwanti
case,64 it was held that the extent of the property would be material in deciding
whether the wants of the claimant could be provided for consistently with justice

55 Becha v Mothina [1901] 23 All 86.

56 [1900] 27 Cal 194.
57 Adhiranee v Shona Malee [1876] 1 Cal 365.
58 Tagore v Tagore [1872] 9 Beng. LR 377.
59 Ekradeshwari v Homeshwar [1929] 56 I.A. 182.
60 Rangubai v Subaji [1912] 36 Bom 383.
61 Surampalli v Surampalli [1908] 31 Mad 338.
62 Sobhanadramma v Narasimhaswami [1934] 57 Mad 1003.
63 Gupte (n 47) 1084.
64 [1895] 22 Cal 410.

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to other members. But the extent of the property is not a criterion of the
sufficiency of the maintenance. So, the very amount should be a question of fact.

4.2. Statutory law on maintenance of parents

The religious laws are archaic in character, and therefore, their unwritten form
adds with more problems. So, these laws need to be updated through
codification, otherwise the end of justice cannot be reached. For that purpose, the
House of Nation has enacted the Maintenance of Parents Act 2013 to implement
the rights of the aged parents to get maintenance from their descendants. At the
earlier stage, several enactments were made to ensure maintenance for both
Hindu and Muslim women. Among them, the Hindu Married Women’s Right to
Separate Maintenance and Residence Act 1946 deals with the maintenance of
Hindu women; and the Muslim Family Laws Ordinance 1961 and the Family
Court Ordinance 1985 deal with the maintenance of Muslim women. But it is a
matter of great regret that the law makers did not concentrate on the
maintenance of parents until 2013.
The Maintenance of Parents Act 2013 has made provisions for
maintenance of only natural parents excluding adoptive parents and stepparents.
Now both son and daughter are equally bound to provide their parents with
maintenance,65 which includes food, cloths, medical care, housing facility, and
giving company. If any parent has more than one child, the offsprings have to
ensure their parents’ maintenance by mutual discussion.66 Even if any parent
lives separately from their offsprings, then his/her every child has to regularly
provide him/her with a reasonable amount of money from their daily or monthly
or annual income. 67 The Act has also imposed on the offsprings the duty to
maintain the paternal grandparents in the absence of their father. Similarly, they
have to provide maintenance to the maternal grandparents in the absence of their
mother.68
The offsprings must also ensure the living of their parents in a same
place and they cannot force their parents to live separately as against their (aged
parents) willingness. The aged parents cannot be compelled to live in old age
homes as well.69 Besides, the offsprings are legally bound to take care of health of

65 Maintenance of Parents Act 2013 (Act No. XLIX of 2013), s 2(b).

66 ibid, s 3(2).
67 ibid, s 3(7).
68 ibid, s 4.
69 ibid, s 3(4).

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 Elderly Persons’ Right to Maintenance

their parents and to provide medical service if necessary.70 In case of separate

living of the parents, the offsprings must visit them regularly.71
A person responsible to maintain his/her parents, upon the proof of
failure to perform the duties prescribed by the Act of 2013, will be liable to be
fined up to one lac taka and in default of which punished with imprisonment,
which may extend to three months.72 If wife, husband or child of such person
prevent him to do so, they will also be liable to be punished for the same
offence.73 The offence under this Act has been made cognizable, bailable, and
compoundable in nature.74 And this offence is within the jurisdiction of first class
Judicial Magistrate.75 However the court can refer the case to the chairman of
Union Council or Mayor of the City Corporation or Pourashova, as the case may
be for amicable settlement of the dispute.76
Before the enactment of the Maintenance of Parents Act 2013, the issue of
maintenance was solely dealt with by the Family Courts established under the
Family Court Ordinance 1985. But the Ordinance does not clarify whether the
aged parents can file a suit for maintenance in the family courts on the one hand,
and on the other, there was a confusion whether the Ordinance be applicable to
only Muslims or others as well. However, the supreme court in its several
decisions has made it clear now. The High Court Division in Meher Negar v
Mojibur Rahman case77 held that the provisions of this ordinance are applicable
not only to the Muslim community but also to other communities constituting
the populace of Bangladesh. In Nirmal Kanti Das v Sreemati Biva Rani case,78 it was
confirmed that a person professing any faith has got every right to bring suit for
the purpose as contained in section 5 of the ordinance. Therefore, the ordinance
has just provided the forum for the enforcement of some of the rights under
various personal laws, 79 in which the poor parents may also file a suit for
maintenance from their opulent offsprings.80

70 ibid, s 3(5).
71 ibid, s 3(6).
72 ibid, s 5(1).
73 ibid, s 5(2).
74 ibid, s 6.
75 ibid, s 7.
76 ibid, s 8.
77 [1995] 47 DLR 18.
78 [1995] 47 DLR 514.
79 Pochon Rissi Das v Khuku Rani Dasi [1998] 50 DLR 47.
80 Jamila Khatun v Rustom Ali [1996] 48 DLR 110.

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5. Provision for maintenance and welfare of elderly persons in other

jurisdictions
The topic of the elderly supports and maintenance was not an issue for
discussion in most of the developing countries so long ago. Because a small
proportion of population survived beyond middle age, those few were solidly
entrenched into the family support system. 81 The changing age structure of
population due to demographic ageing requires the change in legal systems as
per the demands of old population of the countries. Consequently, various legal
systems across the world have responded to the challenge of the time to a
varying extent and at varying speed giving recognition of the right to
maintenance of aged parents and imposing corresponding legal duty on the
descendants.
At the first United Nations World Assembly on Ageing in 1982, some
consideration was given to human rights issues.82 However, no official United
Nations document, except a Draft United Nations Declarations on the Rights of
Older Persons, has ever identified and specified what rights the elderly have and
why they are important. As per article 2 of the Draft, “states shall take effective
measures to protect older persons from all forms of exploitation, abuse and
marginalisation.” The older persons have the right to adequate food, water,
shelter, clothing, and health care. So, the states shall take measures to ensure the
provision of an adequate income, family and community support, and
opportunities for older persons to exercise financial independence and care for
themselves in the same capacity as other adults.
Despite the existence of the Universal Declaration of Human Rights,
older people are not recognised explicitly under the international human rights
laws that legally oblige governments to realise the rights of all people. So, a UN
Convention on the Rights of Older Persons is necessary to ensure that older
persons realise their rights. In absence of a law universal in character, it is
necessary to depend on the domestic laws of some countries for better analysis
and understanding of the issue. That’s why the paper draws a comparative
analytical sketch of the extraordinary legal development regarding the elderly’s
right to maintenance at domestic level, focusing on Singapore, China, and India.
The reasons behind the selection of these countries are availability of data
essential for the research and their recent initiatives to enforce the right to
maintenance of elderly persons through adopting new enactment. By critically
evaluating the ongoing jurisprudential trend from a cross-country perspective,

81 Islam and Nath (n 2) 3.

82 Robert N Butler, ‘Declaration of the Rights of Older Persons’ (2002) 42(2) The Gerontologist 152,
153.

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the study unfolds the nature and extent of the right in these jurisdictions, which
in turn may appreciate our laws (both personal and statutory).

5.1. Singapore
To ensure that the aged can in fact continue to rely upon the family and will not
be abandoned by their offsprings, the Singapore Parliament passed the
Maintenance of Parents Act 1995. Under the Act, an elderly person unable to
maintain himself adequately, may apply to the Tribunal for an order that one or
more of his offsprings pay him a monthly allowance or any other periodical
payment or a lump sum for his maintenance.83 A parent, whose total or expected
income and other financial resources are inadequate to provide him/her with
basic amenities and basic physical needs including (but not limited to) shelter,
food, medical costs, and clothing, will be considered as unable one.84 Though
only the persons above 60 years of age have been considered as the elderly under
this law,85 a person below the specified age may get such maintenance if the
Tribunal is satisfied that he is suffering from infirmity of mind or body which
prevents him from maintaining or makes it difficult for him to maintain himself
or that there is any other special reason.86
Where an applicant is unable to make an application for maintenance
order (whether by reason of physical or mental infirmity or for any other reason),
such application may be made on his behalf by any member of his family, any
person in whose care he resides or any other person whom the applicant has
authorised to make such application.87 Even if that parent resides in care of an
old-age home or an organisation, an approved person of that home or
organisation may also apply to the Tribunal for a similar order for the purpose of
defraying the costs and expenses of maintaining the parent.88 Besides, the law
has made provision for the appointment of adequate number of Commissioner,
Deputy Commissioners, and Assistant Commissioners to make an application for
maintenance on behalf of an applicant and represent such applicant in any
proceedings or appeal.89 Apart from the legal proceedings, the Commissioners
also help parents to organise mediation sessions with their offsprings, to help
them reach an agreement on the amount of maintenance or level of support to be
given to parents, and to assist parents in exploring other non-legal options such
as community resources.

83 Maintenance of Parent Act 1995, s 3(1).

84 ibid, s 3(4).
85 ibid.
86 ibid, s 3(5).
87 ibid, s 11.
88 ibid, s 3(2).
89 ibid, s 12(2).

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The Act, in lieu of mentioning any specific amount of money to be

prescribed in the maintenance order, has empowered the Tribunal to determine
the amount of maintenance in the light of the circumstances of the given cases.
Hence the Tribunal should make an objective assessment of the facts of a case
before fixing the figure of money to be provided as maintenance to an applicant.
To be specific, the Tribunal shall have regard to all the circumstances of the case
(i.e., financial needs of the applicant taking into account reasonable expenses for
housing and medical costs, earning capacity and other financial resources of the
applicant and the respondent as well, any physical or mental disability of the
applicant, expenses incurred by the respondent in supporting his spouse or
children, and financial or other contributions and provisions made by the
respondent for the maintenance of the applicant), but not limited to them.90

5.2. China
Amid the nation’s rapid development, China’s traditionally revered elderly, are
now a forgotten section of population, and therefore, their stories of
abandonment and mistreatment are not uncommon.91 In response to that, the
government of China enacted a law called Protection of the Rights and Interests
of Elderly People Act 1996, having nine clauses that lay out the duties of children
(both son and daughter) and their obligation to tend to the spiritual needs of the
elderly. Along with the legal obligation to provide maintenance for the elderly,
they are also bound to care for and look after them.92 The elderly suffering from
illnesses must be provided with medical expenses and nursing care by the
supporters. 93 The spouses of the supporters are also under the obligation to
provide for the elderly. Such obligations of the supporters have been made
absolute irrespective of inheriting the property of the elderly. Even if the children
give up their right of inheritance, they cannot refuse to perform their duties of
providing maintenance for the elderly on that ground. 94 Neither sons nor
daughters cannot seize the houses owned or rent by the elderly. Rather, they can
be compelled to properly arrange for the housing of the elderly and refrained
from compelling the latter to move to inferior houses.95 Moreover, the supporters
cannot ask the elderly to do any work beyond their ability. However, the sons
and daughters may conclude an agreement between themselves on their duty to

90 ibid, s 5(2).
91 Michelle Flor Cruz, ‘China Enacts Law Requiring Adult Children to Visit Their Elderly Parents,
But Can It Be Enforced?’ The International Business Times (2 January 2013) <https://www.ib
times.com/china-enacts-law-requiring-adult-children-visit-their-elderly-parents-can-it-be-1329639>
accessed 6 February 2021.
92 Protection of the Rights and Interests of Elderly People Act 1996, art 10.
93 ibid, art 12.
94 ibid, art 15.
95 ibid, art 13.

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provide maintenance for the elderly, subject to approval by the latter.96 In that
case, neighbourhood committees, villagers’ committees or the organisations of
the supporters, as the case may be, may supervise the fulfilment of the
agreement. When the elderly has disputes with their family members over their
support, or over housing or property, they may ask the organisations where their
family members are employed, the neighbourhood committees or the villagers’
committees to mediate.97 They may also bring a civil lawsuit for maintenance and
criminal case if any of his family members steal, defraud, seize, extort or
deliberately damage the property of the elderly.98
Besides the legal obligation of the children, the State has established old-
age insurance system to ensure pensions and other material benefits for the
elderly.99 The local governments are responsible for making the arrangements of
financial relief, food, clothing, housing, medical care, and burial expenses for the
elderly, who are unable to work and have no sources of income. 100 Different
medical insurance systems have been established to provide the elderly with
appropriate aid for medical expenses.101 Besides, private medical institutions are
encouraged to provide free treatment of elderly patients. Above all, to meet the
needs of the elderly, service facilities and networks for the daily life, cultural and
sports activities, nursing, and rehabilitation of the elderly are being gradually
installed and established.

5.3. India
“There has been a steady rise in the population of older persons in India, because
of an appreciable increase in the life expectancy.”102 But the increasing numbers
of elders are not being maintained by their children, as was the normal and
traditional social practice. Consequently, they are now exposed to emotional
neglect, lack of physical and financial support, and social insecurity.103 To force
the children to maintain their parents so that this vulnerable section of society
can get rid of old age sufferings, Indian Parliament passed an enactment for
welfare of the Parents and Senior Citizens under the title of The Maintenance and
Welfare of Parents and Senior Citizens Act 2007.

96 ibid, art 17.

97 ibid, art 45.
98 ibid.

99 ibid, art 20.

100 ibid, art 23.

101 ibid, art 26.

102 Runa Mehta Thakur, ‘Philosophy of Maintenance and Welfare of Parents and Senior Citizens Act,

2007 in India: An Appraisal’ (2012) 1(4) International Journal of Advancements in Research and
Technology 1.
103 ibid.

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A senior citizen including parent, who is unable to maintain himself

from his own earning or out of the property owned by him, is entitled to get
maintenance from one or more of his children not being a minor. The Act has
defined parent as “father or mother whether biological, adoptive or stepfather or
stepmother, as the case may be, whether or not the father or the mother is a
senior citizen.” 104 So, it is clear to say that an adoptive parent can claim
maintenance from his/her adopted child under the Act. Similarly, a stepfather or
stepmother is entitled to get maintenance from his/her stepchild. Moreover, the
definition of children ‘including son, daughter, grandson and grand-daughter’
has signified two phenomena. 105 Firstly, both son and daughter are equally
responsible to provide their aged parents with proper maintenance. Secondly,
grandparents can claim maintenance from their grandchildren under this Act. In
case of a childless senior citizen, the application can be made against his/her
relatives, 106 who is in possession of or would inherit his property after his
death.107 The obligation of the children or relative, as the case may be, to maintain
a senior citizen extends to the needs of such citizen so that senior citizen may
lead a normal life.
The unique character of this Act is borne by the provisions for
application for maintenance. Under section 5 of the Act, an application for
maintenance of an incapable parent or senior citizen can be made by any other
person or organsation authorised by him. Moreover, the Tribunal may take
cognizance suo motu as well. In case of neglect or refusal to maintain a parent or
senior citizen by children or relatives the Tribunal may order the latter to make a
monthly allowance for the maintenance of the former.108 For every breach of the
order, the amount due can be levied by a warrant of the court and in the manner
provided for levying fines.109
Apart from this legislation, there are two separate enactments which deal
with the maintenance of parents. They are the Code of Criminal Procedure
(CrPC) 1973, and the Hindu Adoptions and Maintenance Act 1956. Under the
CrPC, persons having sufficient means can be ordered by the court to make a
monthly allowance for the maintenance of such father or mother, if the court is
satisfied that he neglects or refuses to maintain his impoverished parents. 110
Giving a plain meaning to the provisions, the Bombay High Court held that:

104 Maintenance and Welfare of Parents and Senior Citizens Act 2007 (Act No. LVI of 2007), s 2(d).
105 ibid, s 2(a).
106 ibid, s 4.

107 ibid, s 2(g).

108 ibid, s 9(1).

109 ibid, s 5(8).

110 Code of Criminal Procedure 1973 (Act No. II of 1974), s 125.

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two circumstances which have to be gone into for the purpose of deciding a
claim under the section 125 appear to be that the father and mother must be
unable to maintain himself or herself and secondly, the person against whom
an order is sought must have sufficient means to maintain the father and
mother and yet neglects or refuse to maintain them.111

However, “the obligation to maintain an aged and infirm parent is not subject to
the fulfilment of parents’ obligation to maintain and bring up the children during
the childhood of the children.”112 By several case laws, this provision has been so
developed that it has a wider application now. The Supreme Court of India has
made daughters and sons, married or unmarried, equally responsible to
maintain their parents.113 Besides, recognising the Hindu philosophy of adoption,
courts permit adoptive parents to claim maintenance from their adopted child.114
Similarly “a childless step-mother may claim maintenance from her step son
provided she is widow or her husband, if living, is incapable of supporting and
maintaining her.”115 The Karnataka High Court, in Siddanna Kamballi and others v
Gangabai case, 116 reasoned that “to grant maintenance to such helpless
stepmothers would be a motherly act and in consonance with the social object of
providing maintenance to the destitute widow of the community.”117
The Hindu Adoptions and Maintenance Act 1956 is applicable to the
Hindu community only, whereas the previous laws are equally applicable to all,
irrespective of their religious faith and religious persuasions. Under this Act,
every Hindu son or daughter, during his or her lifetime, is under obligation to
maintain his or her aged and infirm parent. This obligation extends in so far as
the parent is unable to maintain himself or herself out of his or her own
earnings.118 But there is no absolute test for determining whether the parent is
aged or infirm. It totally depends on the facts and circumstances of the case.

6. Legislative drawbacks in Bangladesh

The evaluation of the provisions regarding the maintenance of aged parents in
Singapore, China, India, and Bangladesh in foregoing sections finds some
considerable differences between the laws of Bangladesh and those of other
countries. Such differences identify a few grey areas in the Maintenance of

111 Pandurang Bhaurao Dabhade v Baburao Dabhade and others [1980] 82 BomLR 116.
112 ibid.

113 Mrs. Vijaya Manohar Arbat v Kashirao Rajaram and Another [1987] AIR SC 1100; Mst. Areefa Beevi v Dr.
K. M. Sahib [1983] CriLJ 412.
114 Madhav Dagadudange v ParvatibaiDagaduDange [1978] CriLJ 1436.

115 Kirtikant D. Vadodaria v State of Gujarat and Another [1996] 4 SC 479.

116 [2003] CriLJ 2566.

117 ibid.

118 Hindu Adoptions and Maintenance Act 1956 (Act No. LXXVIII of 1956), s 20.

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

Parents Act 2013. The areas should be worked upon so that the Act can safeguard
the rights of the elderly to the optimum level.
Firstly, the Act does not make it entirely clear about how the children
unable to afford to pay for their parents will be dealt with. If the son is also
poverty-stricken, how can he maintain his parents and grandparents? How
would the Tribunal adjudicate such disputes? In this situation, the indigent son
has no option than to go behind bars. Then, what benefit can such imprisonment
of offsprings bring for the destitute parents. In contrast, the dependents on the
accused offspring may also be deprived of the maintenance rights. Moreover,
delay in the legal proceedings, since this matter will be dealt with by regular
criminal courts, will frustrate the noble purpose of this Act.
Secondly, the Act has prescribed fine or imprisonment for the children
upon the proof of failure to provide their parents with maintenance. Whereas the
order for financial allowance, which could serve the interests of aged parents
best, is totally ignored by the law makers. In Singapore, China, and India, the
order for monthly allowance has been considered the first and foremost remedy
as it can bring desired outcomes and satisfy the objective of law. Though India
has also criminalised the failure to provide aged parents with proper financial
support, but that remedy is resorted as secondary way to realise the primary
relief.
Thirdly, no provision has been made in this Act for the maintenance of
stepparents, though the step-children are bound to maintain them under the
personal laws. Also, the Act does not address the needs of the childless and
indigent aged parents. Notwithstanding the adoption is valid under the
traditional Hindu law in Bangladesh, the Act did not include the adoptive
parents in the definitions of ‘Father’ and ‘Mother’.
Fourthly, the Act provides that the children have the obligation to
provide their parents with a reasonable amount of money from their monthly or
annual income. But the Act does neither indicate any standard to determine the
reasonable amount of money nor prescribe the minimum amount of
maintenance.
Lastly, the big issue is that parents often feel ashamed and become
discouraged under various social pressures to take their children to the court for
obtaining maintenance or allowance from them. Obviously, their sentiment to
their children will prevent them to approach to the court. Moreover, the fear of
sentencing their children in default will also weaken them emotionally to do so.

7. Options on the table for legislative reform

After considering whole practical situation and keeping in mind public and
social concern for ensuring maintenance and social security of aged parents some

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 Elderly Persons’ Right to Maintenance

reforms should be made to existing laws. In this regard, Government should first
make provisions for setting up supporting organisations, Counselling Centres
etc., to serve the psychological and emotional needs of the elderly people, who
often spend their twilight years lonely, in a state of negligence and deprivation.
Secondly, Provisions should be made for financial security of childless
people by taking measures like group insurance and old age pension at the early
age. Or, government should set up sufficient number of old age homes.
Otherwise, many of issueless parents will be forced either to beg or to die of
starvation and uncared for.
Thirdly, the definitions of ‘Father’ and ‘Mother’ should be enlarged to
include stepparents and adoptive parents so far as the respective personal laws
recognise their rights. So, the definition of Parents may be substituted by the
word ‘Lawful Parents’.
Fourthly, Provisions should be made for recompensing the victim
parents by creating charge on the estates of their respective children or from the
money paid as fine by the respective convicted children. In that case the amount
of fine needs to be practical so as to meet the needs of the parents. The provision
for order of monthly allowance to indigent parents could be better alternative to
sending the children into the jails. Whereas, the local government institutions
should be activated to take responsibility of the elderly persons, whose children
are also in need of money. The enhancement and transparency of social safety
nets, i.e., old age allowance, widow allowance, etc., can work as well.
Fifthly, to ensure speedy trial, a separate and special tribunal compared
to regular criminal courts should be given the jurisdiction to try the cases
brought under this Act. In this regard, the Family Courts established under the
Family Court Ordinance 1985 may be vested with this jurisdiction.
Finally, the Act needs more publicity to achieve its real purpose. People
are to be sensitised about the agonies of the elderly citizens of our country.
Specially, attempts should be made to sensitise the children to support and live
with the elderly. Hence, including the ageing problem in the syllabus of school
and college will be fruitful to encourage future generation to support their aged
parents. Moreover, if public-private partnership is encouraged by engaging
NGOs, community organisations, and corporate sectors for this program, it will
become cost free and easier for the government to work on it.

8. Conclusion
In Bangladesh, innumerable aged parents are leading an inhuman life, even
having one or more well-earned and well-off children. At the end of the day,
when all efforts of parents get failed and they have to face a painful experience
that their own children are abusing them, they actually do not have anything to

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

do other than accepting this harsh reality. When a stranger does anything wrong
with an elderly person, they may easily accept it. But when their own children
start doing injustice with them breaking the expectation of trust, love, and
respect, they only remain silent and want to hide it. But this practice should be
changed. When someone’s moral values completely break down and cause
injustice, they should be punished accordingly. No injustice should be allowed to
be taken place at any cost, especially towards the elder people who have no one
beside them to help. Since a parent can be compelled by law to maintain his/her
children and a husband can be forced to support his wife, a child should also be
compelled to maintain and support his/her parents.
No doubt, there is lack of adequate social security for the elderly people.
Keeping in view the growing problems of the elders, the legislators should
earnestly endeavour to come forth with effective reforms for better solution of
the problem. Mere change in law is not enough to ensure welfare of the helpless
aged people unless the Judiciary plays a pivotal role to put the paper rules into
action. What is essential is that the judges also need to be sensitised to the
growing menace of which the parents have become victims.

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

Jurisdictional and Procedural Dilemmas of the Family

Courts in Bangladesh

M Jashim Ali Chowdhury*

Asma Bint Shafiq**

Abstract: The Family Courts Ordinance (FCO) 1985 was touted as a very
significant development in the personal law enforcement regime. It sought to
establish a civil court of exclusive jurisdiction to dispose of family suits. The
court was supposed not to follow the rules of regular civil process codified in the
Code of Civil Procedure (CPC) 1908. Instead, the Ordinance tried to provide a
framework of rules that would avoid the protracted CPC process and ensure
speedy disposal of the family suits. Additionally, a two-stage system of
mediation was introduced in a hope that the avenues of alternative dispute
resolution would help reducing case load of the courts and ease the sufferings of
the litigants. The FCO also attempted to make the court’s decree execution
process less cumbersome and more litigant friendly. This paper suggests that the
system has failed in almost every aspect of its so-called specialty - exclusivity of
its jurisdiction, avoidance of the CPC, the two-stage mediation and efficient and
the timely execution of decrees. After explaining how this is the case, the paper
concludes with some recommendations touching upon key weaknesses of the
system.
Keywords: family court, exclusive jurisdiction, civil procedure, pre-trail
mediation, post-trail mediation, execution of decrees.

1. Introduction
The Family Courts Ordinance 1985 (hereinafter the FCO) established special civil
courts in Bangladesh to deal with family matters. The family courts are vested with
exclusive jurisdiction over five areas of family laws e.g., dissolution of marriages,
restitution of conjugal rights, dower, maintenance and guardianship and custody
of children.1 The FCO sought to streamline the procedural and institutional aspects
of family laws. Procedure prescribed in the FCO is admittedly a short-circuited
version of the regular civil court process found in the Code of Civil Procedure 1908
(hereinafter CPC).2 The FCO thereby attempted a special arrangement for speedy
and efficient remediation of grievances through an approach less formal than that

* The author is a PhD Candidate at the King’s College London, London, UK. He can be reached at the
email: m.chowdhury@kcl.ac.uk.
** The author is an Associate Professor, Department of Law, University of Chittagong. She can be
reached at the email: asmabs04@yahoo.com.
1 Family Courts Ordinance 1985 (FCO), s 5.
2 Code of Civil Procedure 1908 (CPC).

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

of the CPC.3 Prior to the establishment of family courts, these matters were dealt
with by regular civil courts in Bangladesh. It was believed that specialization and
institutionalization of family law enforcement system would help alleviate
particularly the sufferings of poor women who are otherwise vulnerable to the
scourges of theocratic, gender-biased, and clientelist attitude of the society.
After around 35 years of its introduction in 1985, this paper analyses the
case laws from the Supreme Court of Bangladesh and also the relevant provisions
of the FCO to assess whether the law has made to its original promises. It appears
that the family court is facing deeply rooted problems in relation to many of its
institutional and procedural aspects. Institutionally speaking, the FCO has
conspicuously failed to materialize the so called ‘special courts’ with ‘exclusive
jurisdiction’ in family matters. From a procedural consideration, a more-than-
imagined intrusion of CPC into the courts’ process has turned the so called
‘summary procedure’ into a misnomer. Uncharted avenues and insufficient tools
to execute the courts’ decrees have undermined the grievance remediation process
badly. Another of the courts’ widely boasted features - alternative dispute
resolution – has been clogged with institutional conflicts, psychological inertia and
capability deficits.
The paper is organized in six parts. Part 2 deals with the institutional
problems of the court with its subject matter specialty and jurisdictional
exclusivity. Parts 3-5 analyse the procedural stumbling blocks that prevent the
family court from realizing its goal of speedy and summary administration of
justice. Part 3 addresses the problematic application of the CPC in the family court
process. It analyses the relevant case laws from the Supreme Court that arguably
offer incoherent justifications for selective application of the CPC in family courts’
process. Part 4 considers the complexities and conflicts within the family court
sponsored mediation process. Part 5 the paper tries to identify loopholes of the
decree execution process prescribed in the FCO. Each of the parts put forward
some specific recommendations in relations to the problems identified. Part 6
concludes the paper.

2. The family courts’ (non-) exclusive jurisdiction

Section 5 of the FCO vests in the family court, in plain terms, an ‘exclusive
jurisdiction’ to try suits relating to five specified family matters namely – restitution
of conjugal rights, dissolution of marriages, dower, maintenance and
guardianship. In addition, section 3 of the FCO contains a notwithstanding clause
which guarantees that provisions of this law would apply despite anything

3 Zahidul Islam, Strengthening Family Court: An Analysis of the confusions and uncertainties thwarting the
family courts in Bangladesh (Bangladesh Legal Aid and Services Trust 2006) <https://www.blast.
org.bd/content/publications/family_courts.pdf>accessed 22 July 2021.

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contained in any other laws relating to civil and/or criminal suits. A study of the
legal system of Bangladesh, however, suggests that there are at least four types of
family matters in which the regular civil and/or criminal courts still retain
jurisdictions. Those are discussed below.

2.1. Civil suits on issues ‘relevant to or allied with’ exclusive subject matters
There are matters incidentally or substantially related to any of the five principal
heads of jurisdiction which are still amenable to other civil courts’ jurisdiction. For
example, issues like genuineness of a kabinnama and legitimacy/illegitimacy of a
child are not covered in the FCO. These issues, if raised, would control the
outcome of a restitution, maintenance, dower and/or custody suit lodged with
family courts. In a series of cases, the High Court Division of the Supreme Court
of Bangladesh (hereinafter the HCD) tried to offer a solution by holding that the
family courts will have jurisdiction to dispose of all matters ‘relevant to or allied
with’ those mentioned in section 5, FCO. In crafting the solution, the HCD relied
on justifications like ‘common sense’, ‘interest of speedy remedy’ or ‘implied
jurisdiction of the family court’, etc.
In Md Chand Miah v Rupnahar4, the defendant husband was facing a suit
for conjugal rights. He denied the marriage itself and filed a separate declaration
suit in another civil court.5 The family court found that there was a marriage
existing between the parties and accordingly decreed the suit in the wife’s favour.6
In the HCD, the moot question was whether the family court had jurisdiction to
determine the existence of marriage. It was argued that since the matter of conjugal
rights depended on the existence of marriage itself, the husband’s suit in another
civil court must be determined first.7 The HCD held that the family court was
competent to dispose of any matter ‘relating to or arising out of’ the matter before
its hand. For the HCD, any view contrary to this would be ‘preposterous’.8
A similar situation arose in Shafiqul Huq v Mina Begum.9 There, pending
the family suit, one of parties questioned the existence of marriage before another
civil court. This time also, the question was whether a family suit should be put on
hold until the other civil court decides the marriage question.10 Like the Chand
Miah v Rupnahar decision, the HCD purposively expanded the family court’s
jurisdiction over ‘related matters.’ This time, however, the HCD based its decision
on the interest of offering speedy remedy rather than on the exclusivity of family

4 Md Chand Miah v Rupnahar [1999] 51 DLR (HCD) 292.

5 ibid.
6 ibid [2].
7 ibid [5].
8 ibid [14].
9 Shafiqul Huq v Mina Begum [2002] 54 DLR (HCD) 481.
10 ibid [2], [6].

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

court jurisdiction. Since “nobody can surely say when such title suit [in the other
civil court] would find the end of the tunnel”, the HCD felt that keeping the wife’s
claim on hold for an indefinite time “would be [like] acting to frustrate the very
purpose of the [Family Court] Ordinance”.11
Next, the HCD applied an implied power argument in Abul Hashem v
Mahmuda Khatun12. There the legitimacy of child, whose maintenance allowance
was being claimed in family court, was questioned. Emdadul Hoque J. held:
In my considered view, section 5 of the [Family Court] Ordinance impliedly
empowers a family court to decide the issue of legitimacy of child if it arises as
part of the decision on guardianship or maintenance.13 [Emphasis supplied]

While the decisions of HCD in Md Chand Miah, Shafiqul Huq and Abul Hashem
appear consistent, their solution to the problem of multiple and concurrent suits
remained partial. None of the three decisions would effectively bar the statutory
or common law jurisdictions of other civil courts. Statutory reform or express
judicial nullification14 of concurrent jurisdictions over these types of issues is
important for a very important reason. Say for example, situations may arise
where such incidental matters could be litigated before a family suit was lodged.
Now, the question would be whether the subsequent family suit would put the
already pending civil suit on hold or vice versa. As per the doctrine of sub judice,
where there are two proceedings filed over the same cause of action, the later
proceeding would remain on hold until disposal of the earlier one. This rule is
defined in section 10 of the CPC and applicable to family court cases.15 A combined
reading of Md Chand Miah, Shafiqul Huq, and Abul Hashem seems to take an
exception to this rule and prioritize the family courts’ jurisdictional exclusivity.
But this assumption is in clear conflict with another precedent of the HCD where
the sub judice rule was declared binding upon family courts.
In Abdur Rahman v Shahanara Begum16, Mrs Shahanara Begum lodged a
petition with civil court seeking permission to sue as a pauper. This was lodged
just two months before the enactment of FCO. If the petition was granted, she

11 ibid [7].
12 Abul Hashem v Mahmuda Khatun [2012] 64 DLR (HCD) 494.
13 ibid [41].
14 To take an example, section 488 of the Code of Criminal Procedure (CrPC) 1898 has been a constant
source of confusion in relation to maintenance claims. Section 488 conferred jurisdiction in regular
criminal courts to entertain suits for maintenance. In light of section 5 of the FCO (exclusivity of
jurisdiction), the Supreme Court of Bangladesh has declared the section 488 jurisdiction of judicial
magistrates redundant (Kawsar Chowdhury v Latifa Sultana (2002) 54 DLR (HCD) 1755). Later in 2009,
the parliament had to omit the section from CrPC.
15 Section 20 of the Family Courts Ordinance runs as: “Save as otherwise expressly provided by or
under this Ordinance, the provisions of the Evidence Act, 1872 (I of 1872), and of the Code except
sections 10 and 11 shall not apply to proceedings before the Family Courts.
16 Abdur Rahman v Shahanara Begum [1991] 43 DLR (HCD) 599.

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 Jurisdictional and Procedural Dilemmas of the Family Courts in Bangladesh

would receive government funding for suing to recover her dower, maintenance
etc.17 After the establishment of family courts, Shahanara Begum filed her
maintenance case there. Her lawyers advised her to absent from the hearing of her
pauper petition and allow it to be dismissed accordingly. Unfortunately, the
family court also dismissed her suit arguing that her case was pending in the civil
court before the FCO was enacted. Section 27 of the newly enacted FCO expressly
required any pre-FCO era case to continue in their original forum.18 Her lawyers
before the HCD tried to argue that section 27 could not foreclose her scope to
choose after the family court’s coming into existence.19 The HCD accepted the
argument and held that section 27 was a saving clause for proceedings pending in
other courts. It would not prohibit the family court from entertaining a self-same
claim in deserving cases. In such cases, the subsequent one of the two pending
suits would remain on hold until disposal of the previous one.20 So instead of
dismissing Shahanara Begum’s case straight, the family court should have waited
to see the result of her pauper petition.
As indicated earlier, this holding of Abdur Rahman stands in conflict with
Md Chand Miah, Shafiqul Huq, and Abul Hashem decisions which indicated that the
family court would whisk away a regular civil suit on matters incidental or related
to its exclusive jurisdiction. Either of these positions leads us to uncertainty and
incongruity on the exclusivity of family courts’ jurisdiction on the incidental or
related matters.

2.2. Criminal suits on domestic violence and adultery charges

There are number of criminal statutes dealing with offenses of bigamy, polyandry,
adultery and domestic violence. Those would raise causes of criminal action
triable by general or specialized criminal courts under criminal statutes like the
Penal Code 1860, the Prevention of Women & Children Repression Act 2000and
the Domestic Violence (Prevention and Protection) Act 2010. All of these again are
justiciable issues of concern in dissolution of marriage, conjugal rights,
maintenance, and guardianship suits before the family courts.
Unlike the simultaneous civil suits on incidental or related issues, there
are no judicial or statutory indications that such criminal cases will have to give
way to the family suits. While both the suits may lawfully continue in both the
forums, the freezing impact will most likely be on the family court proceedings.

17 ibid [9].
18 Section 27 of the Family Courts Ordinance provided that all suits, appeal and other legal proceedings
relating to, or arising out of any matter specified in section 5 pending in any Court immediately
before the commencement of this Ordinance shall continue in the same Court and shall be heard and
disposed of by that Court as if this Ordinance had not been made.
19 Abdur Rahman (n 16).
20 ibid [9].

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

This is because the litigants are more prone to vindication through criminal
proceedings and likely to adopt every possible dilly-dallying technique to thwart
the family court proceeding.21 Such a scope of forum shopping also affects the
alternative dispute resolution process in family courts. Female litigants, for
example, are likely to file case under the Prevention of Women and Children
Repression Act 2000 against their husband while they also lodge family court
claims for realization of dower and maintenance or dissolution of marriage.22 A
husband already arrested and prosecuted under the excessively harsh law of
200023 would rarely agree to compromise during the family court’s pre-trial and
post-trial mediation stages, which are discussed at length below.

2.3. Claims under the Maintenance of Parents Act 2013

The beneficiaries of the family courts’ maintenance jurisdiction are unspecified. It
has been an established rule that a mother can claim children’s maintenance on
their behalf.24 Cases of parents’ maintenance, however, remains problematic as
before. Before the passage of Maintenance of Parents Act 2013 (hereinafter MPA),
Jamila Khatun v Rostom Ali25 decision in the Appellate Division of the Supreme
Court (hereinafter AD) allowed the parents to file maintenance suit in family
courts. Similarly, poor and disabled relatives, even servants of a destitute woman,
were held to be entitled to file a suit for maintenance in the family court. The MPA
however has invited a criminal court to the scene. It imposes a legally enforceable
burden upon the children to maintain their parents and grandparents upon
penalty and punishment.26 Under the law, parents will have to move to the
criminal court of a First-Class Magistrate or Metropolitan Magistrate.27 It has a
notwithstanding clause which is silent on exclusivity rule of FCO section 5.It
therefore remains uncertain whether the MPA has cut down the family court’s
exclusive jurisdiction over maintenance suits.

21 For example, in Saleha Begum v. Dilruba Begum [2001] 53 DLR (HCD) 346, Saleha Begum, the
grandmother of a minor, filed application u/s 100 of the CrPC before the Court of Magistrate,
obtained a search warrant and took the custody of Amena Akhter while the mother was pursuing
her custodial case in the Family Court.
22 Barrister Quazi Maruf, ‘Preventing abuse of law’, The Daily Star, Law and Our Rights (Dhaka, 23
March 2013) <https://www.thedailystar.net/news/preventing-abuse-of-law> accessed 22 July 2021.
23 All the offences punishable under the Prevention of Women and Children Repression Act 2000 have
been made cognizable, which means the police may arrest anyone almost immediately after the
complaint is made (Section 19 of the Act). Though there is time limit to finish investigation, it may
be extended by the Tribunal (section 18 of the Act) which means that the accused will have to
undergo a prolonged imprisonment even before the investigation is over.
24 Bazlur Rahman Sikder v Tahera Begum Shamima [1998] 18 BLD (HCD) 519.
25 Jamila Khatun v Rostom Ali [1996] 48 DLR (AD) 110.
26 Rafea Khatun, ‘What Do Grown Children Owe Their Parents? A Moral Duty and Legal
Responsibility in Bangladesh’ (2018) 32 International Journal of Law, Policy and The Family 363.
27 Maintenance of Parents Act 2013 (Bangla Version), s 7.

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 Jurisdictional and Procedural Dilemmas of the Family Courts in Bangladesh

2.4. Simultaneous writs on family matters

Section 5 of the FCO does not bar the writ jurisdiction of the HCD on any of the
five ‘exclusive’ family matters. Writ jurisdiction could be availed by any party if
they can show that “there is no other equally efficacious remedy”.28 In certain
circumstances, a father or mother claiming lawful custody of a child may think of
a writ of habeus corpus instead of a guardianship suit in the family court. This
possibility was materialised in Farhana Azad v Samudra Ejazul Haque29 where a
mother - contemplating an indefinite future of her family suit and also facing an
immediate risk of her husband taking her minor children away from Bangladesh
- moved the HCD with a writ of habeus corpus petition.30 While allowing the writ
petition, the HCD relied on Abdul Jalil v Sharon Laily Begum31. In an almost similar
situation, the Abdul Jalil court held that a mother aggrieved by unilateral removal
of the children from her custody would have the right to move the HCD for
immediate custody of the children.32 While the permissibility of constitutional
writs in exceptional and extra-ordinary emergencies do not cast a serious
repercussion on the family courts’ jurisdiction, possibility of its abuse as a delaying
tactic cannot be turned down. It may be argued that family courts could offer
“efficacies remedies” through temporary and injunctive orders in such cases. As
we turn to the next, this procedural device would appear very problematic.

2.5. Solving the puzzle of “exclusive jurisdiction”

It appears that bringing of a wide range of domestic issues within family court
jurisdiction may contribute substantially in alleviating much of concern arising out
of additional criminal proceedings between the same parties. Very often spouses
involved in family disputes or otherwise commit excesses which constitute
criminal offences under the Penal Code 1860, and accordingly, FIRs or complaints
are lodged against each other. Sometimes such complaints are the result of
ongoing litigation between parties. Such offences, usually or minor in nature
including kidnapping, abduction of children from the custody of lawful custodian,
illegal detention of wife, threats/criminal intimidation, assault, defamation, and
minor bodily injuries, etc. These types of offences may constitute grounds for
dissolution of marriage. To this end, the jurisdiction of the family courts could be
extended to address disputes relating to inheritance, adoption, registration of

28 Constitution of the Peoples Republic of Bangladesh 1972, art. 102.

29 Farhana Azad v Samudra Ejazul Haque [2008] 60 DLR (HCD) 12.
30 ibid [3].
31 Abdul Jalil v Sharon Laily Begum [1998] 50 DLR (AD) 55.
32 ibid [11].

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

birth, marriages and death, prevention of dowry and domestic violence to provide
an efficacious forum for adjudication of family disputes.33
In Pakistan domestic violence became a subject for family courts when the
Pakistan Family Court Act of 1964 (hereinafter PFCA) was amended in 2002.34
Bangladesh has a separate Domestic Violence Act with a criminal approach to the
problem. The Act has defined different types of crimes qualifying as ‘domestic
violence’. While transfer of the crimes of domestic violence to the family court
would no doubt require a huge paradigm change in the administration of justice,
it is not unusual in Bangladesh to assign the civil court officers in criminal courts.
In jurisdictions like the United States, Canada and Australia, the object-oriented
use of therapeutic justice in family violence matters has resulted in the
establishment of a separate family law jurisprudence.35 This would require
training not only for judges, but also for other actors including the defense counsel,
psychologists, police, investigation officers, etc. Training is an integral
requirement of any sort of special court system that seeks to be successful.

3. Incoherent arguments for application of the CPC

FCO’s summarized trial process aimed at facilitating dispute resolution within the
shortest possible delay. Traditional civil court procedure outlined in the CPC
being discredited for severely delayed administration of justice, the question for
family court was whether it should apply CPC or not. Section 20(1) of the FCO
answered it in the negative. It clearly provided that the provisions of CPC, except
sections 10 and 11, would not apply in family court proceedings. Unfortunately,
the FCO’s attempt to replace the CPC regime was piecemeal and inadequate. Its
half-hearted attempt to avoid the CPC and at the same time to cherry pick from it
has resulted in some very confusing and contradictory decisions by the Supreme
Court. Experiences show that the initial question as to “whether” CPC applies in
family court later turned into one of “how much”. Several factors contributed to
this incremental change of paradigm.
First, the FCO’s attempt to substitute the CPC was partial rather than full
proof. It was silent on a wide range of procedural issues. For example, section 12
provides a simmering version of the CPC rules regarding record of evidence. The
family court is given discretion to dispense personal appearance of parties and

33 Bangladesh Legal Aid and Services Trust, Report on Legislative Initiatives and Reforms in the Family
Laws (BLAST 2009) <https://www.blast.org.bd/content/publications/ Legislative_Inititiatives_
Family_Law.pdf> accessed 22 July 2021.
34 The Pakistan Family Courts Act 1964, s 5(2); See also, Muhammad Amir Munir, ‘Family Courts in
Pakistan: In Search of ‘Better Remedies’ for Women and Children’, (2006) LAWASIA Journal 191.
35 J. Halley and K. Rittich, ‘Critical Directions in Comparative Family Law: Genealogies and
Contemporary Studies of Family Law Exceptionalism’ (2010) 58 The American Journal of
Comparative Law 753.

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 Jurisdictional and Procedural Dilemmas of the Family Courts in Bangladesh

allow witnesses through affidavit.36 The court was also empowered not to
summon witnesses unless required by the parties.37 Absent the witnesses, section
12 remained silent on how a document could be proved or whether these could be
shown as exhibit or not. This is an important question since a document which is
not proved and shown as exhibit will not be accepted in evidence. Absent any clue,
the family courts had to apply relevant provisions of the CPC. Secondly, some of
the FCO provisions were total imitation of similar rules from the CPC. For
example, sections 6 to 19 of the FCO detailing some stages of the court procedure
were copied from similar rules of CPC. Also, the procedure of issuance and service
of summons38 was adopted from the CPC, which has long been identified as a
major source of delay in civil proceedings.
While dealing with the inadequacy and in some cases the total absence, of
alternatives in the FCO, the courts opted to apply CPC. In justifying those
attempts, the Supreme Court had to apply many ambiguous concepts like ‘ends of
justice, ‘lack of alternative’ and ‘inherent nature of a civil court’, etc.

3.1. The ‘ends/causes/requirements of justice’ argument

Understandably, it is a matter of first principle that CPC would not apply in family
cases unless it is expressly made applicable by the FCO. As Mohammad Hamidul
Haque J. put it:
The [Family] Court will always be guided by the concept that the FCO is a special
law which aims at providing affordable remedies within the speediest possible
time frame. Therefore, norms and practices of CPC will be used only when the
requirement of justice calls for it.39

Over the years, Justice Haque’s ‘requirement of justice’ criteria got supplemented
by concepts like ‘cause of justice’, ‘court’s power to do complete justice’, and
‘justice of the case’ etc. In Md Maqbul Ahmed v Sufia Khatun40, a petitioner prayed
for temporary injunction to restrain his wife from remarrying until disposal of his
restitution of conjugal rights suit.41 It was argued that purpose of the restitution
suit would be frustrated, if temporary injunction was not granted and his wife
married another person. Problem with this claim was clear. The FCO did not
mention anything about temporary injunction. The family court was invited to
apply section 141 of the CPC and grant the injunction.42 Section 141 of CPC
provides that the procedure provided in CPC shall be followed as far as applicable

36 FCO (n 1), s 12(6).

37 ibid, s 12(2).
38 ibid, s. 7(3).
39 Justice Mohammad Hamidul Haque, Trial Process: Civil and Criminal (first published 2016, Universal
Book House) 207.
40 Md Maqbul Ahmed v Sufia Khatun [1998] 40 DLR 305.
41 ibid [2].
42 ibid [4],[8].

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in all proceedings of a civil court. The HCD bench comprising Mahmudul Amin
Chowdhury J. held that section 141 CPC could not be applied in family court
proceedings.43 While the court ‘understood’ the petitioner’s agony and ‘well-
founded’ cause of apprehension, it expressed its inability to apply the CPC by way
of interpretation, especially when the law makers barred such application
expressly.44 Subsequently, the parliament would address the problem by
amending FCO and allowing interim or interlocutory orders by the family courts.45
Thereby the debate on permissibility of interim order was solved. However, the
debates on the applicability of the CPC were not.
In Azad Alam v Jainab Khatun46 the Appellate Division of the Supreme
Court refused to allow an amendment of pleadings under CPC rules in view of
section 20 prohibition against the application of CPC. The courts had to rethink its
position few months later. After the decision in Azad Alam v Jainab Khatun, a HCD
bench in Nazrul Islam Majumdar v Tahmina Akhtar47 expressed a completely
opposite view. In that case, the wife divorced her husband after he initiated a
family suit and wanted to bring the divorce to judicial notice of the court.
Accordingly, an amendment of plaint was sought by the wife.48 The HCD held
that, omission of the FCO on amending pleadings could be filled up through rules
borrowed from CPC - for ‘the ends of justice’ of course.49

3.2. The ‘absence of alternative’ argument

Occasionally, the Supreme Court resorted to ‘absence of alternatives’ argument to
apply CPC in family court process. Again, case laws in this area suggest that the
fill-in-gaps tactic was used in highly inconsistent ways.
In Yunus Mia v Abida Sultana,50 a pardanshin Muslim lady, applied for
examining herself on commission as per Order 26 of CPC. The other party claimed
that there was no scope of issuing such commission under the FCO.51 The family
court issued the commission under CPC and the HCD upheld the decision on the
ground that there was no provision in FCO in this regard.52

43 ibid [7].
44 ibid [12].
45 The newly added Section 16A reads as follows: “Where at any stage of a suit, the Family Court is
satisfied by affidavit or otherwise, that immediate action should be taken for preventing any party
from frustrating the purpose of the suit, it may make such interim orders as it thinks fit.”
46 Azad Alam v Jainab Khatun [1996] 1 BLC (AD) 24.
47 Nazrul Islam Majumdar v Tahmina Akhtar [1995] 47 DLR (HCD) 235.
48 ibid [4].
49 ibid [8].
50 Yunus Mia v Abida Sultana [1995] 47 DLR (HCD) 331.
51 ibid [3].
52 ibid [12].

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Question of applying the CPC rules also arose in matters involving the
powers of family appellate courts. As per section 17 of the FCO, appeal against the
decisions of family courts would lie with the Court of District Judge or Additional
District Judge –the designated family appellate courts. In Hosne Ara Begum v Alhaj
Md Rezaul Karim,53 a wife stranded in her father’s house for a long time filed a suit
for recovery of maintenance from her husband. The court partially decreed her
case. The court of family appeal set aside the decree and remanded it back for
retrial and fresh hearing.54 Now the wife moved the HCD and sought a revision of
the family appellate court’s order. Question for the HCD was whether the family
appellate court’s decision of remanding the suit back to the trial court was lawful.
It was held that the order of remand was illegal. Section 17 of the FCO did not
expressly endorse such power in family appellate court.55 This argument again is
problematic because section 17 of the FCO is almost silent on the powers of family
appellate court. Section 17 deals with time-limit for disposing an appeal, the form
and documents to be submitted with the appeal bundle, and the way the trial
court, i.e., the family court would comply the decision of family appellate court.
Absent any guidelines on the way of dealing the appeal itself, the HCD’s decision
was confusing.
The problem resurfaced more acutely in Saleha Begum v Dilruba Begum.56
The family appellate court’s decision to take evidence by itself was questioned in
this case.57 The petitioner argued that there was no scope under the FCO, or even
the CPC, to hold trial of a case or record full evidence of witnesses at the appellate
stage.58 The respondent however argued that evidence taken by the appellate court
was necessary for the ‘ends of justice’.59 This time the HCD found itself in a
trilemma. First, the bar on application of CPC suggested that the appellate court
was not entitled to initiate a fresh and full-scale inquiry by using a CPC rule.
Secondly, the Hosne Ara Begum decision would suggest that sending the case back
or remanding it to the family court would be unacceptable. Thirdly, the family
court in this case passed an order within 24 hours and after a single sitting with
the parties involved. It was apparent that all the necessary evidence were not taken
in the trial which might have resulted in failure of procedural justice.60 Facing
problem, the HCD held that instead of taking the evidence himself, the family
appellate court should have sent the case back to the family court.61 This, however,
again is contrary to the Hosne Ara Begum decision of the same court. It sounds

53 Hosne Ara Begum v Alhaj Md Rezaul Karim [1991] 43 DLR (HCD) 543.
54 ibid [4].
55 ibid [11].
56 Saleha Begum v Dilruba Begum [2001] 53 DLR (HCD) 346.
57 ibid [6].
58 ibid [7].
59 ibid [8].
60 ibid [11].
61 ibid [15].

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anomalous to note that an appellate court cannot remand a case back for fresh trial
under the CPC, while it may send it back for taking of additional evidence
following the same CPC.

3.3. The ‘inherently civil court’ argument

A third argument used by the HCD in these types of cases is ‘Inherent powers of
a Civil Court’. This argument confers in family courts the same inherent powers
of ordinary civil courts mentioned in sections 141 and 151 of the CPC. Inherent
powers would empower it to do things not otherwise regulated by the FCO for the
purpose of doing justice among the parties. Though the HCD initially rejected the
inherent power argument62, it could not stop it.
In Swapon Kumar Gain v Amita Golder63 the question was whether taking
additional evidence by the appellate court would be permissible. Realizing the
failure of the ‘absence of alternative’ argument noted earlier, the HCD sought to
designate the family appellate court as ‘an inherently civil court’ which could take
additional evidence when required.64 This is a position clearly opposed to the
HCD’s position in Hosne Ara Begum, Selina Begum, and Shafiqul Huq cases discussed
earlier. Given the context, it now appears that family appellate court can freely
apply any provision of the CPC in disposing an appeal originating from the family
court, while the family courts cannot do such in trying the original suit.

3.4. Clarifying the limits of applying the CPC

The Family Courts’ entanglement with the application and non-application of the
CPC appears a constant obstacle towards the speedy disposal of family disputes.
To alleviate the concerns with unnecessary prolongation of family court process,
there could be a bar to appeals against the interlocutory orders of the family courts
by amending section 17(1) of the Ordinance. Instead of appeal against such interim
orders, a provision for review by the family court itself may be made. Section 14(3)
of the Pakistan Family Court Act accommodates such a rule aiming at speeding
up the proceedings.
Order V, CPC as currently incorporated65 need be amended suitably to
incorporate modern and electronic service of notices alongside conventional
modes of service like the process server of the court, registered acknowledgment
due letter and courier services. The family courts currently serve summons either
by registered post or by in person delivery by the Nejarot Department. In either
case, the court waits for 30 days for the parties to appear before the court, which

62 Shafiqul Huq v Mina Begum [2002] 54 DLR (HCD) 481, [5].

63 Swapon Kumar Gain v Amita Golder [2006] 58 DLR (HCD) 26.
64 ibid [8].
65 FCO (n 1), s 7(3).

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is no doubt a huge delay in family disputes. As electronic mail (email) is becoming

a fast and reliable mode of communication between individuals and businesses
throughout the world, service of summons and notices using this medium should
be allowed and should be incorporated into the FCO. E-mail service would be
particularly important for cases where parties reside abroad.

4. Dilemmas and multifariousness of mediation

Family court’s power to attempt pre-trial and post-trial mediation is touted as an
important restorative justice feature. Section 10 of the FCO provides for pre-trial
mediation once the pleadings are filed with the court. The court fixes a date,
ordinarily within thirty days of submission of pleadings, for a pre-trial hearing.
On the designated day, the court examines the plaint, written statement (if any)
and summary of evidence filed and hears the parties. After ascertaining the issues
in dispute, the judge attempts a compromise or reconciliation between the parties.
If it fails to reach a compromise, the court proceeds to frame the issues of the suit
and fix a date for recording evidence. However, at this stage, the door for
mediation is not closed for good. Section 13 of the FCO provides another scope
after closing of evidence and before pronouncement of judgment. At this stage, the
court would again try to reach a compromise or reconciliation between the parties.
If this is a success, a compromise decree will be passed keeping the trial and
evidence apart.66 If this second attempt fails, the court would move to pronounce
its judgment and decree.
Though the introduction of this two-tier mediation process was a welcome
invention, it revealed over time that there are at least three obstacles in the way of
effective mediation. First, given the law’s failure to make pre-trial mediation
compulsory, judges find it unattractive and burdensome to venture the route.
There is no recorded history of mediation attempt by family courts during the first
one and a half decade of family courts. Mediation attempts started only in 2000
under a pilot project sponsored by the USAID and Bangladesh Legal Study
Group.67 Secondly, the Legal Aid Act 2000 as amended in 2013 has created a
confusing scope of non-judicial mediation side by side with the family court’s one.
Thirdly, the divorce execution process prescribed in Muslim Family Laws
Ordinance1961(hereinafter MFLO)68 requires yet another post-judgment
compulsory mediation.

66 The FCO (n 1), s 14.

67 Zahidul Islam (n 3).
68 The Muslim Family Laws Ordinance 1961<http://bdlaws.minlaw.gov.bd/act-305.html> accessed 18
July 2021.

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4.1. Mediation as a discretionary course

Mediation is neither a compulsory route for the judges nor was a mandatory pre-
action protocol for the parties. The FCO and rules made thereunder did not
prescribe any procedure for the court to follow.69 It is left open to the discretion of
the judges. Judges working in the family courts are overburdened with other
responsibilities in their regular civil matters. They usually find it difficult to spend
a lot of their time and efforts in reaching a compromise through counselling,
conversation and persuasion. To encourage the judges, a system of awarding
professional credits for each successful and unsuccessful mediation attempt was
introduced later. Credits so awarded however hardly match the rigor, efforts and
time required for such mediation. The situation is worse for an Assistant Judge
who is entrusted with the responsibilities of family court in addition to his/her
traditional civil court jurisdictions.

4.2. Non-judicial mediation vis-a-vis court sponsored mediation

The Legal Aid Act 2000 (hereinafter LAA) was amended in 2013 to insert a new
section 21A which empowers the Legal Aid Officer to mediate in cases whose
litigants move to him for legal aid. As per the 2013 amendment to LAA, the district
legal aid officer, whose primary responsibility is to decide whether to offer legal
aid to the litigant or not, is now empowered to effect mediation in his office and
pass an award on that basis. While this additional scope of mediation may help
reduce the caseload of the family courts, there are problems not foreseen by the
legislators. Consider the situation of a litigant who goes to the legal aid office for
financial aid after instituting his/her case in the family court. Had there been any
successful mediation at legal aid office, how would the family court react to the
resultant award? How could the court enforce the award upon parties who might
later change their mind? Neither the LAA nor the FCO is clear on the issue.
Facing the dilemma, one of the Legal Aid officers we talked to suggested
that the FCO could be amended to transfer the tasks of section 10 pre-trial
mediation to the Legal Aid office. Depending on the success or failure of mediation
there, the family court will move with the rest of the trial process.70 This proposal
has both merits and demerits. A family court judge attempting and persuading the
parties to mediate might be seen as biased by the party who is reluctant to go for
a reconciliation. Legal aid officer on the other hand would be more suitably
positioned to create peer pressure and make the parties come to a compromise.
Also, when a family court attempts mediation and succeeds in it, it has to pass a
compromise decree accordingly. The compromise decree so passed cannot order
the parties to withdraw any other criminal or civil cases filed by them in relation

69 Md. Majibar Rahman, Muslim Family Laws in Bangladesh (first published 1987, Aligarh Library) 84.
70 Interview with Mr Sabbir Mahmud Chowdhury, Joint District Judge, The Judicial Service of
Bangladesh and ex-District Legal Officer, Dhaka (date).

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to this dispute. Family Court statutorily lacks the power to effect compromise on
disputes that may be pending in some other forums. A Legal Aid Officer, on the
other hand, is suitably placed to make the parties to come to agreement to
withdraw all of the pending proceedings between the parties as part of a single
compromise. The award so passed by the Legal Aid Office would help reduce the
huge backlog of cases in the judiciary in general.
On the other hand, demerits of legal aid office mediation include, among
others, confusions as to multiplicity of mediation, complexities with enforcement
of awards passed by the legal aid officer and the problem of co-ordination between
the family court and legal aid office. It might possibly further prolong the family
dispute resolution process by inviting an extra-player to the field. Another
problem with the approach is with the non-mandatory nature of mediation. While
a Legal Aid officer may persuade the parties to come to agreement, they may
subsequently change their mind and start the process a fresh.

4.3. Judicial mediation vis-a-vis local mediation

As per section 23(2) of the FCO, a decree of divorce between Muslim litigants must
be sent by the family court to the Chairman of the Local Arbitration Council. Upon
receipt of the decree, the Chairman would proceed as if it was an intimation of
divorce by the parties themselves. As per sections 7 and 8 of the MFLO, such types
of divorce could be effective only after the passage of 90 days after pronouncement
of divorce and communication of notice to the other party. In the meantime, the
Chairman of the Local Arbitration Council is obliged to attempt reconciliation
between the divorcing parties. The divorce shall be effective only after the passage
of 90 days or the failure of reconciliation whichever comes later. While the section
7 of the MFLO was confined to the divorces through extra-judicial act of the
parties, it is difficult to understand why the FCO had to redirect some judicially
enforced divorces to a local government body. Leaving the confirmation of a
judicial decree in the hands of a non-judicial authority seems unusual.71 Also, the
rationale behind a third, or possibly fourth (in cases where the Legal Aid officer
attempts one), attempt to reconcile between divorcing parties seems impractical
and unnecessarily delaying the otherwise ‘speedy’ family court process.

4.4. Making the mediation work

As the discussion above shows, the force, effect and efficiency of the family court
mediation are doubtful. Some of the problems are ingrained within the Ordinance
whereas some others arise from the institutional structures of mediation. As the
Ordinance provides no mode or procedure for effecting conciliation, it is left open

71 Dr. Muhammad Ekramul Haque, Muslim Family Law Sharia and Modern World (first published in
2015, London College of Legal Studies South) 485-86.

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to the discretion of the judge keeping in mind the peculiar circumstances of each
case. The lacuna can be filled by effective training of family court judges in judicial
academies where they can learn modern and result oriented ADR techniques. As
regards the involvement of Legal Aid officers in the mediation process, some of
the drawbacks discussed above might be mitigated by amending the FCO in a way
that would transfer the tasks of section-10-pre-trial mediation to the Legal Aid
office and also provide strict time-limit and guidelines to be followed in such cases.
To this effect it is vital that the FCO is amended to borrow or incorporate
the process of sections 89A and 89B, CPC regarding the modes and modalities of
out of the court settlement through alternative dispute settlement process. Section
89A of CPC details the process of appointing a mediator and related mediation
process which if successful result in amiable settlement of cases. Section 89B on
the other hand facilitates dispute settlement by arbitration under the process of the
Arbitration Act 2001. It is also suggested that the requirement of a judicial decree
of divorce to go through another round reconciliation attempt at the local level
under the MFLO process is a redundancy and hence be scrapped.

5. Deficiency in the execution of decrees

In the FCO, a trial court is designated the executing court for any decree passed by
it.72 This unification of trial and executing court, which is not the case with CPC,
has alleviated much of the difficulties associated with filing separate execution suit
with a separate executing court. Additionally, had there been any decree for
dissolution of marriage, the family court would automatically send a certified
copy of the decree within seven days of passing such decree to the concerned
Chairman of the Arbitration Council.73 It means that the litigants are absolved from
taking an extra-hassle of applying a fresh for execution of the decree of dissolution.
Still the hassle with local reconciliation process remains for them.
On the flip side of the picture however a criticism that execution of
monetary decrees in family suits is highly ineffective. Initially it was understood
that any money decreed would be executed by the District Judge as a public
demand, which has a very protracted process under Bangladesh’s age-old Public
Demands Recovery Act of 1913. This being proved ineffective, the legislature tried
to change the way monetary decrees would be executed. Later in 1989, a
substituted section 16(3) of the FCO provided the family court a two-way track to
enforce its money decrees.Still, due to some inherent and apparent defects in
section 16(3), the execution process remains in chaos and confusion. First, though
the forum for trial and decree execution has been amalgamated, the process was
not. Separation of the trial and execution process has been a major cause of diluted

72 FCO (n 1), s 16(4).

73 FCO (n 1), s 23(2).

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efficacy of family court decrees. Secondly, the two-way track – civil and criminal
routes - of execution prescribed by sections 16(3), (3A) and (3B) creates more
problems than it solves. Thirdly, the imprisonment route of decree execution risks
a total avoidance of paying the decretal money. Fourthly, the execution of non-
money decrees is left completely in the hands of CPC, the very thing the FCO
wants to avoid.

5.1. Problems of separate trial and execution process

In family suits, when it is decreed, the defendant-husband usually fails to pay the
money voluntarily and make the petitioner wife, initiate a new execution
proceeding. Section 16(3) requires the execution suit to be filed within one year
after the expiry of the time frame set by the family court for voluntary payment of
decretal money. While the welfare of minors, destitute wives and divorcees would
require that the decree be executed at the end of a long drawn legal battle, section
16(3) drags the matter towards yet another round of protracted legal battle.

5.2. Problems of a two-track process

As per section 16(3), a decree may be executed in two ways, i.e., (a) as a decree for
money of a Civil Court under the CPC, or (b) as an order for payment of fine made by a
Magistrate under the CrPC. In the first method, the family court shall be considered
a civil court and shall have powers of a civil court. In the second method, the
family court shall be a criminal court and shall have all the powers of a criminal
court. It is, however, unclear from section 16(3) as to who is to decide in which
way the decree for money would be executed. Is it the executing court or is it the
decree holder/judgments debtor? Which route, civil or criminal, should be
prioritized by the executing court?
As per section 16(3A), if the parties and family court chose a civil mode of
execution, provisions of Order XXVI, rules 30, 31, 37, 41-49 of the CPC will apply.
Under this process, immovable property of the judgment-debtor may be attached
and sold in realization of the decretal money. Instructions may be issued to the
District Collector to realize the decretal amount by attachment and sale of movable
and immovable property of the judgment debtor.
If the court prefers to act like a criminal court and go to imprison the
judgment debtor, sections 386 and 387 of the CrPC should apply. There is,
however, a problem with imprisonment approach. As per the proviso of section
386 CrPC, if someone undergoes imprisonment for failure to pay fine, new warrant
of arrest will not be issued against him for realization of the fine a fresh. Section
16(3B) FCO, on the other hand, permits scope of successive imprisonments in
default of every single instalment of payments.

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Pitched against the dilemma, it may be argued that the choice of modes
should be left with the parties. This, however, would not solve the problem fully.
If the parties are to choose, they are highly likely look for imprisonment of the
judgement-debtor rather than realization of their monetary entitlements.74 This
tendency, if encouraged, would risk changing the nature of family proceedings all
together. As an essentially civil court under the FCO, realization of decretal money
should be the priority for family courts and imprisonment should be the last resort.

5.3. Problems of execution through imprisonment

Maximum 3 months’ imprisonment as prescribed in section 16(3B) is not
favourable for realizing of the decretal money of dower and maintenance. If the
amount is bigger, the defendants may choose to suffer three months’ civil
imprisonment instead of paying the decretal amount. The problem, however, does
not end there. Section 16(5) of the FCO provides that the court may direct payment
of money in instalments.75 Considering the scope of imprisoning the judgement-
debtor for the whole or any part of the decretal amount under section 16(3B), a
defendant may suffer imprisonment for up to three months for failure to pay each
and every instalment.76
In this regard, the HCD came out with a very strong opinion in Md. Abdul
Mannan Khan v Bangladesh.77 It was held in this case that an order of civil
imprisonment is meant for a failure to comply with the court’s order to pay, not
for the failure to pay the decretal amount. The accused would not be allowed to
exercise his option by undergoing imprisonment for default in payment of fine.
The defaulter could be imprisoned as many times as may be required until his
unpaid debt remains outstanding. It will be realized out of his estate in case he
dies as a defaulter.78 Now, it is not being clear as to how many terms a judgment
debtor might be imprisoned, he would always carry the risk of consecutive
imprisonments for every single instalment of the decretal amount. Thus, he might
be imprisoned for an indefinite term until an instalment or the whole of the
decretal amount is paid. Even this approach of continuous imprisonment fails to
provide a guarantee that the decretal money will be paid to the wife or the children
at the end.

74 Islam (n 3).
75 Md Alamgir v Habeba Begum [2000] 52 DLR (HCD) 157.
76 Maksuda Akhter v Md Serajul Islam [1999] 51 DLR (HCD) 554, 556-57; Md Serajul Islam v Maksuda Akhter
[2000] 20 BLD (AD) 84, [4].
77 Md. Abdul Mannan Khan v Bangladesh [2008] 28 BLD (HCD) 121.
78 ibid [37].

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5.4. Execution of non-money decree

The FCO, as it stands now, leaves the execution of non-money decrees in the hands
of CPC regulated process. Marking a clear departure from the FCO’s declared
objective of avoiding CPC, section 16(3C) provides that if the decree is not a money
decree (e.g., decree for restitution of conjugal rights, custody and guardianship,
etc), such decrees will be executed in the same way as non-money decrees are
executed by civil courts. The powers of civil courts in relation to execution of
money and non-money decrees are explained in Rules 30-36 of Order XXI of the
CPC, 1908.
If, for example, a decree is for a specific movable property, return of some
furniture or marital gifts, the property may be seized, kept in attachment and
ultimately sold in execution.79 The problem, however, is that seizure, attachment,
execution sale and realization of monetary amount fixed in lieu of the movable
item, etc are extremely time consuming. Apart from a separate proceeding of
attachment, it involves yet another proceeding for execution sale. Unless the
decree holder initiates a fresh proceeding for execution sale, the judgment-debtor
may release the attached property after three months of such attachment, without
actually paying the money.80

5.5. Ways towards the efficient execution of decrees

Execution of decrees has been a major sign of weakness of the family court.
Experience tells that when a suit is decreed, the defendant-husband tries to avoid
the execution of the decree, which, by law, is required to be filed by the
plaintiff/decree holder as an independent execution application. The welfare of
minors and widows demands that a separate application for execution should not
be required for maintenance decrees. Rather, when the decree is passed, it should
automatically be converted into execution proceedings and there should be no
break between the end of litigation and the start of execution proceedings, unless
the parties have reached an agreement. Family courts should be bound to pass
maintenance decrees with modes of execution stated in the final judgment and
decree and imposing an obligation on the defendant or judgment debtor to start
making payments according to the judgment and decree immediately. Of course,
this order would be subject to any appeal. This would lessen the difficulties
currently faced by mothers and children in enforcing maintenance decrees. It is
suggested that these amendments be introduced together with a change in the
language of the present law.
Next, the maximum 3 months’ imprisonment as prescribed in section
16(3B) of the FCO is not significant and favorable for realizing of the decretal

79 CPC (n 2), O. XXI, r. 31.

80 CPC (n 2), O. XXI, r. 31(3).

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money of dower and maintenance. If the amount to be paid sounds bigger, the
defendants would rather choose to suffer the three months’ civil imprisonment
instead of paying the decretal amount. The length of imprisonment therefore
should be increased on the basis of the amount of money of the decree.
Another option could be to take surety from the defendant when he first
appears in a family suit, in terms of details of his personal movable and immovable
property so that if he loses the suit, any decree may be satisfied from such
properties. The family court may pass an interim order to preserve and protect any
property in dispute in a suit and any other property of a party to the suit, the
preservation of which is considered necessary for satisfaction of the decree, if and
when passed. Such an order requiring securities would not be subject to appeal or
revision.
Additionally, it is also worth consideration to empower the family courts
to issue interim injunctions to check a well feared alienation of movable or
immovable property by the defendant during pendency of the suit. This will help
in ensuring the effective enforcement of maintenance decrees. As has been
outlined earlier the HCD has confirmed the scope for family courts to grant interim
order, if required by the justice of the case.
As an additional guarantee of successful execution, a separate procedure
for direct auction-sale of the judgment debtor’s property could be initiated instead
of requiring a fresh application from the decree-holder.
The Law Commission of Bangladesh has suggested requiring an
amendment in Section 17 of the FCO 1985 which would require submission of 50
per centum of the total decretal amount before any party lodge an appeal.81
Considering the judgment debtors’ unwillingness to cooperate the decree
execution process, this suggestion appear worthy of serious consideration.
Decree of restitution of conjugal rights and guardianship and custody of
children are distinctive than that of the decree of dower and maintenance. While
the FCO mandates the Court to act like a Civil Court executing its non-money
decree, separate and specific provisions regarding execution of the decree of
restitution of conjugal rights and guardianship and custody of children should be
inserted in the FCO.

6. Concluding remarks
As its fundamental lacunas transpire, the FCO has utterly failed to create a special
court with any specialty of expertise, procedure and remediation. The family court

81 Law Commission, Proposed Bill for Amendment of the Family Courts Ordinance 1985 (Dhaka:
Bangladesh Law Commission, 1999) <http://www.lawcommissionbangladesh.org/reports/26.pdf>
accessed 22 July 2021.

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has not been freed from the protracted stages of ordinary civil suits. The suit which
starts with the presentation of a plaint before the Court of Assistant Judge having
territorial jurisdiction upon the subject matter of the suit, does not always end with
the judgment of the court. It might have to go through the four tiers of judiciary.
The trial on appeal often continues indefinitely to the great disadvantage and
hardships of the litigants, particularly the poor female litigants.82 Thus, the final
disposal of the suits takes years.
Additionally, the FCO’s silence in many areas, insufficient alternatives to
the CPC rules and the courts’ occasional helplessness in acting like civil courts
have adversely affected the family courts’ original motivation. Although the FCO
states that the provisions of the CPC except sections 10 and 11 shall not apply to
proceedings before the family courts, the fact is that the provisions of Ordinance
are almost same as they exist under CPC. Thus, the current system is unable to
provide effective relief because of substantive and procedural defects surrounding
it. Failure of the system not only increases the sufferings of the litigants but also
affects the whole society. Had it been successful by this time, the family court
could have opened a whole new branch of cross-religious family jurisprudence in
Bangladeshi legal system. Reform of the existing family suit resolution system is
therefore a pressing necessity. To this end, the court should be made accessible to
the poor and illiterate litigants on the first place. Substantive and procedural
matters discussed in this study if taken seriously could mark the beginning
towards a meaningful reform of the system.

82 Justice K. M. Hassan, ‘A Report on Mediation in the Family Courts: Bangladesh Experience’(25th

Anniversary Conference of the Family Courts of Australia, Sydney, Australia, 2001).

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

Consensual Minimalism: Rape Laws and Rape Law

Reform Movements of Bangladesh in Context

Tamanna Aziz Tuli*

Abstract: The zeal of the reformers sometimes causes them to have a misplaced
faith in the ability of law to change long embedded cultural norms and the
behaviour that manifests those norms.1 We all are well aware of the loss of rape
cases in Bangladesh that starts from the part of the law enforcing agencies to
consider the first report and finally ends at the judiciary’s failure to convict.
Many of us, if not all, are used to evaluating this awful state of rape laws in our
country from two aspects. Firstly, the most contested issues in rape cases are
procedural law rather than substantive2 what is popularly said is that it is not
the fault of the law rather its poor implementation. Secondly, the extension of
the amount of punishment, specifically the death penalty, for the rapist would
serve to reduce the number of rape crimes committed. Still, some people
believe otherwise and suggest that the definition of rape paves the way to deny
justice to victims of sexual offences.3 The recent movements in Bangladesh to
reform the rape laws are more about giving an inclusive definition of rape,
mainly focusing on extending the scope of rape law to be accessible to all rape
victims. With due respect to all involved in or anyhow connected with the
ongoing fight to reform the existing rape laws in Bangladesh, this paper argues
that the current consent-based reform movement is conceptually flawed and
normatively misguided; therefore, they shall head us nowhere. This paper
explores the dynamics of existing rape laws and rape law reform movements to
reform these laws in Bangladesh.
Keywords: Active resistance, consent, consensual-minimalism, rape, rape laws
reform, sexual intercourse.

1. Introduction
Rape, as defined under the penal laws of Bangladesh, as intercourse that
happened by the use of force or against a woman’s will, is a notion of common
law legislative scheme. Surprisingly, despite several reforms for decades, the
rape laws of Bangladesh still worship this traditional common law
understanding. The recent rape law reform movements attract considerable
interest for this paper because of its promising commitment to move our criminal

* The author is a Lecturer at the Department of Law and Justice, Jahangirnagar University. She can
be reached at: tamannatuli@juniv.edu.
1 George C. Thomas III, ‘Realism About Rape Law: A Comment on 'Redefining Rape’ [2000] Buffalo
Criminal Law Review, 527, 534, 537.
2 Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and The Failure of Law (Harvard
University Press, 1998).
3 David P. Bryden, ‘Redefining Rape’ (2000) 3 Buffalo Criminal Law Review 317, 319, 324.

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

justice system forward in a progressive direction that was unwarranted in the

earlier reforms. However, optimism about the recent reforms campaigns declines
in a blink of an eye if we look at the basic construction of the reforms that they
demand. Despite incorporating some of the praiseworthy initiates, the ongoing
reforms are silent about the structural loopholes of the existing laws that
typically criminalize only physically violent sexual intercourse and neglect an
array of other prevalent forms of sexual violence. This paper argues that the
consent-based framework as followed in defining rape under the statutes of
Bangladesh are inept at identifying the harm and wrongdoing of sexual abuses
that many victims still experienced; therefore, the contemporary rape law reform
movement fails to effect any instrumental change in the existing rape laws.
In this article, two distinct tasks are undertaken to be taken care of. First,
this article outlines what progress we’ve made in case of rape laws and what
issues are left behind that we still need to address. Secondly, I want to explore
the doubt that the ongoing rape law reforms movement represents a well-
intentioned intervention as they follow a conceptually flawed structure. To
explore these issues within the confines of this article, I shall discuss them in
several parts. After this introduction in part I, part II articulates an overview of
the major laws related to rape in Bangladesh. Part III portrays a picture of past
and present movements to reform rape laws in Bangladesh. Part IV critically
appraises the rape laws and the movements to reform those laws as already
discussed under part II and part III of this paper and identifies that the statutory
laws, interpretation of these laws, and the movement all three are recurring
consensual minimalism. Part V discusses marital rape as an example to reveal the
conceptual and empirical flaws of uncritical consent-based rape law. Part VI is
the conclusion.

2. Overview of the laws related to rape in Bangladesh

In our country, particular provisions of two significant legislation, namely the
Penal Code, 1860 and the Women and Children Repression Prevention Act, 2000,
deal with the definition and punishment of rape. Section 375 of the Penal Code,
1860 has identified several circumstances under which ‘sexual intercourse’4 shall
be criminalized as rape. As per this section, a man shall be punished for
committing rape who is involved in sexual intercourse with a woman in any of
the following circumstances- (i) against the will of that woman; (ii) without the
consent of that woman; (iii) with consent of that woman but when she is
compelled to consent because of fear; (iv) with consent of that woman when the
consent is obtained by the man fraudulently impersonating him as her lawful
husband; (v) if the woman is under fourteen years of age.5 Whereas, it has been

4 Under section 375 of the Penal Code, 1860 penetration is enough to constitute sexual intercourse.
5 Penal Code 1860, s 375.

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saved in this section that intercourse between a husband and a wife is not rape
even though that intercourse has happened in any of the forbidden
circumstances mentioned thereby.6 In other words, all wives of thirteen years or
more are barred by law to bring an action of rape against their husband under
the Penal Code.
As outlined in section 357 of the Penal Code, the definition has been
carried on without or with some textual modifications in all the penal laws
enacted after this Code in Bangladesh. For example, even though the Women
and Children Repression Prevention Act is a special law relating to offences
against children and women, it does not define rape separate from the Penal
Code. Under Section 2, the definition that has been given under the Penal Code
has been accepted without any modification.7 Section 375 of the Penal Code, 1860
contains one exception, one explanation, and five descriptions, where five
circumstances of committing rape have been mentioned. Under the exception
clause to section 375 and the explanation clause to section 9(1) of the Women and
Children Repression Prevention Act, 2000 a shameful exemption has been
provided to a married man who had intercourse with his wife against her will or
without having consent.
We can identify two critical points from the exception clause of Section
375 of the Penal Code, 1860, and the Explanation clause of Section 9(1) of the
Women and Children Repression Prevention Act, 2000. Firstly, the age line under
which wives of thirteen or more are presumed not to be harmed from non-
consensual or unwilling sex, whatever they endure, rationalizes a condition of
sexual coercion. This age line implicates that one day a wife can claim legal
remedies against her husband, whereas the next day, she becomes unentitled to
bring any legal allegation against her husband. Secondly, in general, rape laws in
Bangladesh divide women into spheres of consent according to the nature of the
relationship to men. Whether a woman is entitled to claim, far from getting a
remedy, depends upon whom she is relative to that accused man, not what has
happened to her. This categorization provides a list to men who are open season
to them and fated to be abused legally by him.

3. Outlines of the initiatives (past and ongoing) to reform rape laws in

Bangladesh
In Bangladesh, there has been an almost continuous process of legislative
tinkering to combat existing problems. Since her independence in 1971,
Bangladesh has enacted, repealed, and re-enacted several laws against rape as
part of its generous efforts to check on, if prevention is impossible, violence

6 ibid.
7 Section 2(e) ‘Rape’ means rape as defined under section 375 of the Penal Code 1860.

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against women.8 For the first time, a reform was made in 1983 in the name of the
Cruelty to Women (Deterrent Punishment) Ordinance, 1983. The Ordinance
retained the definition of rape intact in the Penal Code, whereas increased the
punishment of rape that might extend to the death penalty.9 A decade later,
another change was initiated by an Act, namely the Repression Against Women
and Children (Special Provision) Act, 1995, which replaces the 1983 Ordinance.
Like its predecessor, this Act also primarily concentrates on increasing the
amount of punishment already has. The Act provides for the death penalty if
anyone causes death to any child or woman while committing rape under
Section 6.10 The most significant change came in 2000 by the Women and
Children Repression Prevention Act, which repealed and replaced the 1995 Act.
Without changes to the definitional level, this Act affirms and continues the
definition given under the Penal Code. However, unlike earlier reforms, the Act
introduced some measures to provide minimum protection to rape victims. Some
measures are like the prohibition on disclosing a rape victim’s identity,11
initiating a camera trial of rape cases if required, and providing an immediate
medical examination of rape victims.12 Nonetheless, this reform’s focus was
mainly on procedural safeguards and protections, with the substantive issues
remaining the same.
The rape law reforms movement has taken a new turn recently. A
nationwide rape law reform movement has been going on since 2018 by the
name Rape Law Reform Law Campaign. As part of this Campaign, a Rape Law
Reform Coalition (RLRC) forum was formed in 2019, comprising the seventeen
major Bangladesh organizations.13 RLRC demands the reforms of existing rape
law, identifying the gaps in both the legal and institutional framework that
causes the failure of justice to the victims, and issued a 10-points demand14
formulating reform proposals.15 The first demand is to reform the rape laws in
conformity with the rights both under the constitution of Bangladesh and
International Laws to ensure access to justice to all the rape victims without any

8 Taqbir Huda, ‘The colonial legacy of rape laws’ The Daily Star (Thu Nov 28, 2019).
9 ibid.
10 Whoever rapes any child or woman shall be punished with death or lifelong imprisonment and
whoever causes the death of any child or woman in or after committing rape shall be punishable
with death.
11 Women and Children Repression Prevention Act, s 14.
12 ibid, s 32.
13 Acid Survivors Foundation, Action Aid, ASK, BMP, BLAST, BNWLA, Bondhu Social Welfare
Society, BRAC, Care Bangladesh, JANO, ICDDRB, MJF, Naripokkho, WDDF, We Can, Women for
Women, Young Women's Christian Association.
14 For detail you may have a look at Taqbir Huda, ‘Ten reforms we need to end impunity for rape’
The Daily Star (Tue Mar 9, 2021) https://www.thedailystar.net/opinion/news/ten-reforms-we-need-
end-impunity-rape-2057173 accessed 25 July 2021.
15 ‘Rape Law Reform Now Campaign’ (Sat Dec 8, 2018) <https://www.blast.org.bd/rapelawreform>
accessed 25 July 2021.

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discrimination. The second and third demands are related to redefining rape
under Section 375 of the Penal Code to cover all forms of non-consensual
intercourse that happened with someone regardless of gender, age, and marital
status. It has also been demanded that a definition of penetration beyond its
conventional gender-binarism should be provided.16 The fourth demand is about
the principle of proportionality, which suggests that criminals should be
punished according to its magnitude. Number Fifth and sixth are about the
reformation and modernization of the Evidence Act, 1872, abolishing the
relevancy of character evidence of the victim. The Seventh and eighth are related
to the witness and victims’ protection, safeguard, and compensation. Demands
number nine and ten are concerned about the institutional reformation necessary
to ensure justice.17 According to Ain-o-Salish Kendra, a pioneer Bangladeshi
human rights organization found that between January and September 2020, at
least 975 rape cases were reported in Bangladesh leaving behind many cases
unreported.18 A nationwide street demonstration happened for the reformation
of the existing rape laws incorporating the death penalty as the highest
punishment and ensuring a speedy trial for the ends of justice to the rape
victims. On October 12, the cabinet approved the Women and Children
Repression Prevention (Amendment) Bill, 2020 introducing capital punishment
as the highest punishment for rape convicts instead of life imprisonment. Since
the parliament was not in session at that time on the following day, a Bill was
promulgated through an ordinance by the president named as the Women and
Children Repression Prevention (Amendment) Bill, 2020. The parliament passed
the bill on November 17, 2020, coming into force with immediate effect.
Besides activism, even a court-room initiative has been initiated by
four renowned members of RLRC 19 against the exception clause of Section
375 of the penal Code, 1860 and Section 9(1) of the Women and Children
Repression Prevention Act, 2000 where a man has been exempted from legal
culpability despite having non-consensual sexual intercourse with his wife
obviously with a definite age line.20 The writ petition was filed under
Article 102 of the Constitution of the People’s Republic of Bangladesh has
challenged the legality of these two provisions for not complying with its
constitutional promises to protect the rights to life, personal liberty, equality,
and non-discrimination of all people within its jurisdiction irrespective of sex,
gender or status.21 On 3 November 2020, a Division Bench of the High Court
Division called upon the Government to show cause as to why the laws that

16 ibid.
17 ibid.
18 ‘Countries with the highest rape incidents’ The Business Standard (13 October, 2020).
19 BLAST, Brac, Naripokkho, and Manusher Jonno.
20 HCD 3 November, 2020 WP 7758.
21 ibid.

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

allow for rape of married women aged above thirteen should not be declared to
be void and why the respondents should not be directed to take necessary action
to repeal these general provisions.22

4. A critical appraisal of prevailing rape laws and rape law reform

movements: identifies consensual-minimalism
From the criminal law literature of Bangladesh, as discussed above, it is
identified that consent, with all its limitations, is understood as a deontic
transformer23 that means consent can make any sexual intercourse permissible
that would otherwise be culpable. Thus, sexual intercourse is forbidden because
it has been performed without the required consent is not culpable if it is
performed with consent. Alan Wertheimer suggests that consent without
removing the actual harm that happened to the consent giver negates her right to
complain about the harm.24 Hurd, therefore, has labeled consent as ‘moral magic’
considering how consent performs a normative power over another person's
limits of liberty and duty towards others. 25
Anyone might get very much ambitious from the overuse of the term
consent; nonetheless, till now, it is one of the most contested legal concepts. From
random use of the concept of consent in the legal periphery, we get the
suggestion that consent is the perimeter of delimiting rape from other
permissible sexual intercourses. However, this suggestion gets complex in the
absence of any legal definition of consent. To take care of this statutory void, the
judiciary stepped in as it was expected and required. Unfortunately, its
jurisdiction to interpret has created more problems pushing the idea to
conceptually flawed navigation. Dissection of the two major sections from the
Penal Code, 1860 and the Women and Children Repression Prevention Act, 2000
reveal that ‘against her will’ and ‘without her consent’ are two determining
parameters to distinguish rape from other lawful sexual activities. From the
material analysis of these sections, it is observed that ‘against her will’ and
‘without her consent’ are not conjunctive requirements for an offense of rape to
commit; rather, the statutes have used them disjunctively, leaving the scope of
discretion for a judge to decide a case without applying force standard or
requiring resistance always.26 Every act done against the will of a person is done
without his consent, but an act done without a person’s consent is not necessarily

22 Naimul Karim, ‘Bangladesh's High Court questions ban on marital rape prosecutions’ Reuters (3
November, 2020) <https://www.reuters.com/article/us-bangladesh-rape-lawmaking-trfn-idUSKBN
27J1WZ> accessed 27 July 2020.
23 Alan Wertheimer, Consent to Sexual Relations (Cambridge University Press, 2003) 120.
24 ibid.
25 Heidi M. Hurd, ‘The Moral Magic of Consent’ (1996) 2 Legal Theory 121, 141.
26 Ragib Mahtab and PsymheWadud, ‘An Outline of ‘Consent’ in Rape Jurisprudence: From General
to the Specifics in Bangladesh’ (2020) XIX JATI 227.

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against the will of the person. The expression an act is done ‘against her will’
imports that the act is done despite the person’s opposition.27 The idea ‘against
her will’ equates with the demonstration of active physical resistance.
Anatomical analysis of section 375 does not direct that resistance requirement is
a must to prove rape. However, it is identified that there has been a judicial
inclination to interpret these sections in a way that results in a typical minimalist
baseline of consent. The judiciary showed their conviction towards the force
standard, completely ignoring the passive standard. In several cases, the
judiciary has observed that upon being raped, vital parts of the body28 of the
victim ‘should have’ marks of violence.29 In one instance, when the victim
claimed that she offered resistance to the alleged accused, injuries were searched
for because 'before the victim could be subdued and completely overpowered by
the aggressor, the struggle should inevitably have left marks on ... her body.’30
The judiciary took a similar stance was taken in several other cases.31 In addition
to scratches and bruises, in one case, signs that the victim would be likely to
experience difficulty in walking and pain in micturition,’32 with extraordinary
marks of violence were sought,33 when the victim claimed to have been raped by
a 'macho hero of youthful exuberance. This is how the judiciary has narrowed
the idea of consent to the demonstration of active resistance. Despite having no
positive obligation to seek physical force under the law, the court has interpreted
force interchangeably with consent. So how can we expect that this narrowest
interpretation will successfully be championed against rape within a marital
framework?
The courtroom culture plays a contributory role in causing the failure of
justice to the rape victims equalizing the absence of active resistance with
consent. Therefore, this minimalist interpretation results in an oversimplification
that all sexual intercourse is consensual in some reasonably straightforward
sense, like if active physical resistance from the end of the woman is absent there.
Any circumstances of absence of force, coercion will be sufficient in itself to grant
any sexual contact consensual.34 Constructing consent in this manner protects the
man from any subsequent culpability of rape by precluding the woman from
bringing any claim against him.35 It does not detail how individuals experience
intersectional discrimination to their ethnicity, caste, disability, location, or

27 Khalilur Rahman v Emperor (1933) 34 CrLJ 696.

28 Akhter Hossain and others v State (1999) 4 BLC 236.
29 Masud Mia v State (2004) 56 DLR 352.
30 ibid.
31 Abdul Aziz v State (1997) 2 BLC 630.
32 Saleh Muhammad v the State (1996) 18 DLR 67.
33 Mansur Ali v State (2000) 5 BLC 374.
34 Alan Wertheimer, Consent to Sexual Relations (Cambridge University Press, 2003) 130.
35 Heidi M Hurd, ‘The moral magic of consent’ (1996) 2 Legal Theory 121, 133.

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status, including statelessness in securing justice for rape.36 Our judiciary has
followed the narrowest interpretation of consensual minimalism in rape cases.
Now we shall explore to what extend reform movements are
conceptually different from the general understanding of rape by the judiciary
and what substantial changes might happen if those movements succeed. The
rape laws of Bangladesh had gone through several reforms in the past, and some
major reform movements are ongoing; still, there is a substantive amount of
dissatisfaction with these laws. The major reforms related to rape laws in
Bangladesh can be stratified into three different waves.37 Whereas the first two
waves are primarily associated with extending the punishment threshold for the
rapist and providing minimum protection measures to the victim, it at least
introduced minimum victim protection measures, such as discussed under part
III. The meager practical effect of this wave is their minor positive impact on
victim reporting, charging practices, and conviction rates. However, the focus
primarily rests on increasing the threshold of imprisonment, with the substance
of the rape offense being left unchanged.
Third-wave initiates to fill up the lacunae at the definitional level. In this
wave, states follow different approaches to change the definition of rape to make
it more up-to-date. At this level, reformation aimed at becoming more acceptive,
being non-discriminatory, clearing marital exemption, withdrawing gender and
age barriers, and so on. But the basic framework of the law of rape has remained
substantively the same as they demand nothing against the conceptual defaults
of existing laws. All reform movements of Bangladesh stop at this point.
Therefore, apparently, Bangladesh’s most promising movement will fail
to bring any qualitative change if we cannot deal with dilemmas of consensual
frameworks. Let’s contemplate a hypothetical scenario where the Judiciary of
Bangladesh has interpreted consent liberally as most moderate feminists seek by
extending the scope of non-consent. They suggest including situations that fall
short of actual violence, hoping to eradicate the gender gap. However,
Schulhofer argues that expanding the force definition is neither practically
workable nor politically realistic, and thus it is bound to fail.38 This liberal
approach is misdirected to be identified as too radical and too conservative at the
same time. 39 They are identified as too radical since there is no stopping line. On
the contrary, they are too conservative because of their compliance to nothing
but the notion of force, which our judiciary interprets in the narrowest terms

36 Special Rapporteur on Violence against Women, Its Causes and Consequences <https://ww
w.ohchr.org/en/issues/women/srwomen/pages/srwomenindex.aspx> accessed 29 September 2021.
37 Stephen J. Schulhofer, ‘Reforming the Law of Rape’ (2017) 35 Minnesota Journal of Law and
Inequality 333.
38 Stephen J. Schulhofer ‘Taking Sexual Autonomy Seriously’ [1992] Springer 63, 79.
39 Schulhofer (n 37) 335-343.

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leaving women unprotected against other types of exploitation like socio-legal,

cultural, or religious.

5. Marital rape in Bangladesh: a possible worst example of consensual-

minimalism
Consent, as understood traditionally, disregards the affiliation its interplay with
culture, religion, existing relational dynamics, and the prevalent economic
inequality, therefore, overlooks the surrender of a Muslim wife’s sexual
autonomy to meet a prescriptive standard of piety where a wife is made to
believe that to that’s the way of being certified as a good Muslim woman.40
Women, therefore, agree to those sexual intercourses they don’t initiate, want or
desire, but still voluntarily agree to.41 Being voluntary, these are legitimate sexual
intercourses. How does consensual minimalism accommodate a situation within
its legal periphery when a woman believes it is her obligation, being influenced
by religion, culture, or social stereotypes, to satisfy the husband physically? To
what extent consensual minimalism might be accessible for these women? This
part of the paper examines the theoretical limitations of the expression consent
itself with the help of some real life cases.
‘Sex is a husband’s right and co-operative towards my husband’s need is
one of my religious duties as has been mentioned in Qur’an- Hadith. I even feel
guilty about not being a good wife if unable to fulfill my religious duty.42 This
case refers to sexual intercourse that is not desired but driven by a religious
imperative and cultural ethics that requires participation in sexual activities as a
condition to be included in a high-status group ‘good wives.’43 Therefore, how
consensual minimalism encounters these religious beliefs that result in a woman
routinely submitting to have sex with her husband without desiring it? 44
‘It happened enormous times with me when despite my un-wanting, I
had to intimate with my husband because I know if I would disagree next
morning, he would send me away to my father’s home or have to spend my
whole life having Satin. The practical consequence of divorce takes precedence to
any sexual violence that happened to me.'45 Many women accept un-pleasurable
sex for maintaining a relationship she has an emotional attachment with.46 It is
relevant to mention that Shaiah Law allows a male to marry four wives at a

40 Zohreh Ghorashi, Mohammad Najafi & Effat Merghati Khoei, Religious teachings and sexuality of
women living in Rafsanjan: A qualitative inquiry (2017) 15 IJRM 771, 780, 788.
41 ibid.
42 Interview with Shafia khatun, domestic worker (Arunapalli, Savar, 4 May 2021).
43 Robin West, ‘Sex, Law and Consent’ in Franklin G. Miller and Alan Wertheimer (eds), The ethics of
consent (OUP 2010).
44 ibid.
45 Interview with Razia Begum, baby sitter (Arunapalli, Savar, 4 May 2021).
46 ibid.

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time.47 It is needless to say that the Muslim Family Laws Ordinance (MFLO),
196148 has permitted polygamy only with some limitations like a prior
permission from the Arbitration Council49 is required if a man desires to remarry
in the existence of a marriage. In such a circumstance, his husband’s threat of a
second marriage can easily manipulate an unwilling wife to consent.
Nonetheless, this compulsion would successfully constitute this intercourse as
consensual within the existing legal framework of Bangladesh.
‘He is the breadwinner of the family. So, what else can I do to please him
sexually even if I am not wanting? So, it’s been my fate that he will come to bed
at night and I’ve to have sex with him. If I even dare to deny him, he will divorce
me without having a second thought. Neither I do anything, nor will my brother
or anyone from my father’s home bear my expenses. I would have died from
hunger.’50 Again, divorce law in Bangladesh allows the husband to orally divorce
his wife without showing any just cause giving her maintenance of three months
of obligatory iddat and having no equally affordable, if not a better alternative,
toleration of abuse becomes the only option. The existing legal framework
equated her tolerance with consent and exempted the husband from criminality.
Robin west has referred to this ‘commodified sex’ as unwanted, un-pleasurable
sex that is not coerced but is a part of a trade for money or in-kind necessities.51
Some people argue that this sexual intercourse in consideration of social and
economic security is reciprocal, and virtually all consensual sex is reciprocal
since each party consents because they expect to be better off by their standards
and values.52 On an unsophisticated understanding of the reciprocity model,
their claim might seem right so. A sophisticated sense of reciprocity does not
expect the parties are benefited in terms of their prima facie values and
preferences, but also that those values and preferences have themselves been
subjected to a process of personal critical reflection.53 Thus, the fact that a woman
tolerates her husband and has intercourse in consideration of maintenance fails
to render intercourse permissible unless she has ‘endorsed’ these preferences and

47 Sura An-Nisa "If you fear that, you will not deal fairly with orphan girls you may marry whichever
another woman seems good to you, two, three or four. If you fear that you cannot be equitable to
them, then marry only one.”
48 Under section 6(1) of the MFLO, No man, during the subsistence of an existing marriage, shall,
except with the previous permission in writing of the Arbitration Council, contract another
marriage.
49 An Arbitration Council is a body that is constituted with the local chairman and the
representatives nominated by previous wife.
50 Interview with Rina Begum, housewife (Tarabari, Tangail, 16 July 2021).
51 Robin West, 'Sex, Law and Consent' in Franklin G. Miller and Alan Wertheimer (eds), The ethics of
consent (OUP 2010).
52 Vanessa E. Munro, 'Concerning Consent: Standards of Permissibility in Sexual Relations' (2005) 25
Oxford Journal of Legal Studies 335, 342.
53 West (n 51).

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values.54 Alternatively, unless she has hitherto reconciled her providing sexual
services in exchange for maintenance as a coherent aspect of her self-identity and
life-plan.55 Therefore, variation Standards of permissibility in the sexual relations
approach would render the intercourse that occurs impermissible if a woman’s
experience of self-alienation reflects an absence of welcomeness and critical
reconciliation between her immediate choices and a more profound sense of
personal values. 56
‘What shall people say if I disclose that my husband forces me to get
intimate with him every night, and will it increase the honor of my family? Not
really. It's not that we can do anything with our family's honor once we are
married to some other guy.’57 Even the notion of shame of the individual's family
and community impacts how the consent is given. Besides self-interest, there are
often other interests such as those of the individual's family, and the community
at stake also plays a vital role for some women. A sensitive understanding of the
impact of culture might reveal it that notion of self-interest acts for someone who
has a conviction towards community.58
None of the above instances would be recognized as rape under the
present law of Bangladesh since they don’t fall under any of the circumstances
mentioned under the Penal Code. Here for some women, sex is about the
husband’s pleasure; few internalizes sex as an obligation to be upgraded as a
socially or culturally nominated class ‘good wives’ some women tolerate sexual
abuses as considering maintenance, necessities, better lifestyle. Women’s
narratives revealed not any single rather multi-dimensional aspects of sexual
behaviors and in profoundly messy contexts, within which gender power
dynamics, socio-economic stratifications, inter-personal relations, and
contradictory impulses of desire often coalesce.59 This construct constrains both
our substantive decisions and our perception of the options available to us to
choose from. Only the most abstract and detached understanding of sexual
autonomy can ignore this reality, and yet, once this fact is acknowledged, the
standards against which voluntariness and harm are to be evaluated become
both complex and contested.60 What is crucial here is that law could not

54 Ronald Dworkin, ‘Foundations of liberal equality’ in G. Peterson (ed), The Tanner Lectures on
Human Values (University of Utah press 1990).
55 ibid.
56 Vanessa E. Munro, Concerning Consent: Standards of Permissibility in Sexual Relations (2005) 25
Oxford Journal of Legal Studies 335, 337.
57 Interview with Akifa Zahid, student (Tangail, 28 July 2021).
58 Aisha Gill, ‘Violence against women in South Asian communities: a culture of silence’ in Clare
McGlynn and Venessa E. Munro (eds), Rethinking Rape Law (Routlage 2010) 309.
59 Vanessa E Munro, ‘An Unholy Trinity? Non-Consent, Coercion and Exploitation in Contemporary
Legal Responses to Sexual Violence in England and Wales’ (2010) 63 Current Legal problems PL
45, 49.
60 Gill (n 58) 314-319.

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

understand her silence that was influenced by a myriad of cultural forces that
undermined her interest. Her cultural background mandated that she preserve
the family ‘honor’ at all costs, even though this prejudiced her defense. The law
does not appear to fully appreciate the circumstances that labeled her, in legal
eyes, a consenter and whatever happened between her and her husband as
consensual.

6. Conclusion
Consensual minimalism can rarely identify the complex ways in which deep-
rooted socio-sexual norms act to constrain not only a women’s ability to say no to
male sexual demand but also even more problematically to say yes in an
unchecked manner.61 In a context where these social and legal landscape
dynamics are prevalent, uncritical faith in the ideal of consent initiates nothing
more than a desire to escape from reality.62 While searching for what accounts for
the failure of the rape law reform movements in Bangladesh, this article
identifies that all the previous and even the ongoing reform movements have
been entrusted to the unsophisticated consent-based framework so far. Consent-
based sexual laws have been showing their inadequacy to accommodate the
complex interplay of social and psychological elements of consent in rape.63
Criminal law, in general, presumes that one will not give away that which is his
to a thief, whereas in rape cases, it makes a reversed presumption. Thus, proving
that a woman did not expressly consent does not raise a presumption of non-
consent but consent. Only through the demonstration of overt action or active
resistance can the prosecution meet its burden of proving non-consent.
Interpreted in this way, a woman’s right to control sexual access to her body is
not absolute but conditional on her affirmative assertion to deny the access in
any circumstance.64 On the other hand, a man wishing to participate in sexual
intercourse with a woman may presume consent from that woman since the rape
laws do impose upon her has no obligation to affirmative indications of her
willingness to engage in such activity. If the woman does not resist actively, he
may presume that the woman is ready to have sex with him.
There is an alternative suggestion from the liberal theorists that
extending the boundaries of the principal tool of understanding consent, e.g.,
voluntariness, dominance, and force, can sort out the problem carried by the
traditional consensual framework. While on the contrary, this paper suggests it is

61 Vanessa E. Munro, Constructing Consent: Legislating Freedom and Legitimating Constraint in the
Expression of Sexual Autonomy (2008) 41 Akron Law Review 923.
62 ibid.
63 Michal Buchhandler-Raphael, ‘The Failure of Consent: Re-Conceptualizing Rape as Sexual Abuse
of Power’ (2011) 18 Michigan Journal of Gender & Law 147.
64 Lani Anne Remick, ‘read her lips: an argument for a verbal consent standard in rape’ (1993) 141
University of Pennsylvania Law Review 1103.

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 Consensual minimalism: Rape Laws and Rape Law Reforms Movements ...

high time to rethink an alternative conceptual understanding of rape shifting

away from the consent model, where the accused would be required to show
why it was a fair transaction between the parties. An important implication of
the alternative approach advocates reform towards a reasonableness standard
that focuses on the defendant's perspective.65 The focus of the reasonableness
inquiry is to be based on all the circumstances, and the sexually interested party
is permitted to proceed if he has treated the other party fairly and responds in a
reasonable manner considering the circumstances of both of them.66 And an act is
permitted means no more than that the reasons against performing it are
insufficient to determine that it ought not to be done. In this sense, a person is
permitted to act if and only if it is not the case that he ought, all things
considered, to refrain from it.67 Nothing can ameliorate the current condition of
rape laws so long we grapple with constraints of consensual minimalism.

65 Vanessa E. Munro, ‘constructing consent: legislating freedom and legitimating constraint in the
expression of sexual autonomy’ (2008) 41 Akron Law Review PL 923.
66 Alan Wertheimer, ‘What Is Consent? And Is It Important?’ (2000) 3 Buffalo Criminal Law Review
557.
67 Joseph Raz, ‘Permissions and Supererogation’ (1973) 12 American Philosophical Quarterly 161.

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

Legal Aid as a Means to Combat Poverty in Bangladesh:

An Appraisal

Farzana Akter*

Abstract: The article examines whether or not the government operated legal
aid system of Bangladesh is effective in combating poverty and thus, enhances
meaningful justice for the poor of the country. Poverty is multidimensional and
is not limited to economic considerations only. The ineffective functioning of
the Bangladeshi legal aid system does not further the collective interests and
needs of the poor. This also fails to bring social reforms by changing the status
of the poor; it rather maintains inequality and justice gap in the society. As a
result, the poverty cycle continues and the poor cannot come out ahead in
establishing their rights and challenging oppressions. The article suggests that
the government should take into account the collective interests and needs of
the poor and, accordingly develop the legal aid system of the country.
Keywords: Access to justice, equality, legal aid, lawyers, and poverty.

1. Introduction
The poor face the violation of human rights in many cases, but in few instances
are able to enforce their rights.1 The enjoyment of human rights works on paper
for them despite the recognition of such rights both in constitutions of countries
and in international covenants, and even if judicial mechanisms are put in place
for the enforcement of those rights at the national level.2 Therefore, poverty in
economic capacity and poverty as regards the realisation of human rights are
closely linked to each other.3 Legal aid is crucial in promoting access to justice for
the poor since it guarantees equality before the law, the right to have lawyer’s
assistance and the right to a fair trial.4 It functions by eradicating the
impediments that limit the poor’s ability to obtain justice by offering lawyers’
assistance and access to the formal courts of the state.5

* The author is an Associate Professor at the Department of Law, University of Dhaka. She can be
reached at: akter.farzana@du.ac.bd.
1 Eva Brems and Charles Olufemi Adekoya, ‘Human Rights Enforcement by People Living in

Poverty: Access to Justice in Nigeria’ (2010) 54(2) Journal of African Law 258-9.
2 ibid.

3 ibid.

4 Bernard Hubeau and Ashley Terlouw, ‘Legal Aid and Access to Justice: How to Look at and

Evaluate Legal Aid Systems?’ in Bernard Hubeau and Ashley Terlouw (eds) Legal Aid in the Low
Countries (Intersentia 2014) 5.
5 Gabriela Knaul, ‘Report of the Special Rapporteur on the Independence of Judges and Lawyers’

(A/HRC/23/43, 15 March 2013) para. 27 <https://documents-dds-ny.un.org/doc/UNDOC/GEN/G

13/119/35/PDF/G1311935.pdf?OpenElement> accessed 27 October 2020.

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

In Bangladesh, various constitutional provisions incorporate the right of

equality before the law and the right to a fair trial for all citizens of the country.6
However, the poor are not able to approach and utilise the legal system when
they consider it necessary.7 This results in the denial of justice and demonstrates
the ineffectiveness of legal institutions and processes. The government
promulgated the Legal Aid Services Act8 in 2000 in order to provide legal aid
service across the country in a coordinated manner. In this context, the present
article investigates whether or not the government run legal aid system of
Bangladesh is effective in combating poverty and thus, enhances meaningful
justice for the poor of the country. In doing so, the article first draws a link
between the alleviation of poverty and a functional legal aid system. It then
investigates how the Bangladeshi legal aid system is functioning towards the
goal of promoting access to justice by reducing poverty of the beneficiaries.

2. Correlation between poverty and legal aid

The traditional definition of poverty is premised on economic considerations,
because economic hardship or low income is considered a dominant factor in
most definitions of the term.9 However, the views towards poverty have
undergone substantial changes in recent years. Poverty is now regarded not
merely as an economic concern; it is rather a multidimensional concept that
incorporates both financial considerations and the basic capabilities to lead a
dignified life.10 Amartya Sen has linked poverty to a wider concept of human
development because he considers that poverty is not limited to income only; it
embodies the refusal of capabilities and freedoms that disallows individuals to
achieve what they are able to.11 Sen’s capability approach, thus, focuses on
people as the central feature of development agenda and considers them as both
“the means and ends of development.”12 Development occurs by expanding the
scope of choices and capabilities of individuals with a view to achieving the lives
they value. Capabilities refer to the choices and opportunities within the reach of

6 Articles 27 and 33 contain such provisions in clear terms.

7 Sumaiya Khair, Legal Empowerment for the Poor and the Disadvantaged: Strategies Achievements and
Challenges. Experiences from Bangladesh (Dhaka, Department of Justice Canada’s CIDA Legal Reform
Project in Bangladesh 2008) 41-52.
8 Act No. VI of 2000.
9 OHCHR, ‘Guiding Principles on Extreme Poverty and Human Rights’ (2012) 2 <https://www.oh
chr.org/Documents...R_ExtremePovertyandHumanRights_EN.pdf> accessed 30 December 2020.
10 WHO, ‘Human Rights, Health and Poverty Reduction Strategies’ (2005) 5 Health and Human
Rights Publications Series, 10 <https://www.who.i...ws/HRHPRS.pdf> accessed 30 December 2020.
11 Center for Economic and Social Rights, ‘Human Rights and Poverty: Is poverty a violation of
human rights?’ (2009) 1 Human Rights Insights 2 <https://www.cesr.org/sites/default/files/CES
R_Brie...Human_Rights_and_Poverty_-_Draft_December_2009.pdf> accessed 30 December 2020.
12 Solava Ibrahim, ‘Introduction: The Capability Approach: From Theory to Practice — Rationale,
Review and Reflections’ in Solava Ibrahim and Meera Tiwari (eds), The Capability Approach
(Palgrave Macmillan 2014) 2 <https://doi.org/10.1057/978113700143> accessed 30 December 2020.

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 Legal Aid as a Means to Combat Poverty in Bangladesh

individuals in order to attain lives they consider worthy of.13 This approach has
been accepted by the UNDP in its Human Development Reports. The Human
Development Report 2000 suggests that poverty is an infringement of freedom,
and the elimination of poverty should be considered as a basic a human right
and not a mere act of charity.14
The human rights community takes into account the issues associated
with ‘poverty’ in several ways despite the absence of specific definition of the
term in the international human rights instruments. The Universal Declaration of
Human Rights15 and the International Covenant on Economic, Social and
Cultural Rights16 mention about the right of every individual to have a
recognized standard of living that involves various factors, such as, satisfactory
food, clothing, accommodation, medical facility and other essential social
services.17 The Committee on Economic, Social and Cultural Rights provided the
definition of poverty in 2001. It considers the term as “a human condition
characterized by the sustained or chronic deprivation of the resources,
capabilities, choices, security and power necessary for the enjoyment of an
adequate standard of living and other civil, cultural, economic, political and
social rights.”18 Therefore, poverty involves the deficiency of tangible amenities
and benefits, such as “employment, ownership of productive assets and savings”
on the one hand, and the deficiency of personal and social services, for instance,
“health, physical integrity, freedom from fear and violence, social belonging,
cultural identity, organizational capacity, and the ability to live a life with respect
and dignity” on the other.19 Poverty, in this way, creates ‘disempowerment’ and
‘exclusion’ in the society, 20 and can be said to be both a reason and effect of the
infringement of human rights.21 It further generates an enabling situation that
triggers the violation of other human rights.22

13 ibid.
14 UNDP, ‘Human Development Report’ (2000) 2 <http://www.hdr.undp.org/sites/default/files/repor
ts/261/hdr_2000_en.pdf> accessed 30 December 2020.
15 The United Nations General Assembly promulgated the Declaration on 10 December 1948 (UNGA
resolution 217A) “as a common standard of achievements for all peoples and all nations”
<https://www.un.org/en/universal-declaration-human-rights/> accessed 30 December 2020.
16 It was adopted and opened for signature, ratification and accession by General Assembly
resolution 2200A (XXI) of 16 December 1966 and became effective on 3 January 1976, in accordance
with article 27 <https://www.ohchr.org/en/professi...ages/cescr.aspx> accessed 30 December 2020.
17 WHO (n 10).
18 Economic and Social Council, ‘Substantive Issues Arising in the Implementation of the
International Covenant on Economic, Social and Cultural rights: Poverty and the International
Covenant on Economic, Social and Cultural rights’ (E/C.12/2001/10) para. 8 <https://undocs.org
/en/E/C.12/2001/10> accessed 30 December 2020.
19 OHCHR, Frequently Asked Questions on a Human Rights-Based Approach to Development
Cooperation’ (2006) 10 <https://www.ohchr.org/docu...ons/faqen.pdf> accessed 30 December 2020.
20 ibid.
21 OHCHR (n 9).
22 ibid.

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

In order to achieve substantial progress in reducing poverty, the poor

need access to the justice system to claim their rights, challenge inequality and
oppression or hold the perpetrators accountable for the violations of their
rights.23 Therefore, access to justice services is critical in ensuring citizens’
welfare, inclusive growth and healthy public administration.24 However, the
poor lack the ability to approach the formal justice system due to excessive cost,
delay, ignorance and other cultural and procedural barriers. This resulting justice
gap impairs equality in society and causes adverse consequences in different
aspects of life including income loss, family disputes and various employment
issues.25 The poor’s incapability to deal with legal problems further reduces
economic and inclusive growth, and eventually prolongs the poverty cycle.26
According to Francioni, legal aid is crucial to enhance access to justice
because it makes judicial remedies available to those who do not have economic
resources to satisfy the fees of lawyers and other ancillary costs of the justice
system.27 The United Nations Special Rapporteur on the Independence of Judges
and Lawyers considers legal aid as a basic component of ‘a fair and efficient
justice system’ established on the ‘rule of law’.28 It functions by defeating the
barriers to access to justice that limit the capacity of those living in poverty to
afford legal representation and receive a fair outcome from the court processes.29
The Declaration of the High-level Meeting of the 67th session of the General
Assembly on the Rule of Law reaffirmed the commitment of Member States to
take requisite actions to render “fair, transparent, effective, non-discriminatory
and accountable services” that ensure “access to justice for all, including legal
aid”.30 In 2012, the General Assembly consensually endorsed the UN Principles
and Guidelines on Access to Legal Aid in Criminal Justice Systems31 to set up
basic standards for ensuring the right to legal aid in criminal matters and also to
provide realistic and functional models with regard to the effective
implementation of the legal aid programme. The UN Principles and Guidelines
is the pioneer international instrument that solely covers on the right to legal aid.
It considers legal aid as “an essential element of a fair, humane and efficient
criminal justice system that is based on the rule of law. Legal aid acts as the basis

23 Open Society Justice Initiative, Delivering Justice through the UN's 2030 Development Agenda
(2015) <https://www.justiceinitiative.org/publications/delivering-justice-through-the-uns-2030-dev
elopment-agenda> accessed 30 December 2020.
24 OCDE, Access to Justice <https://www.oecd.org/...ss-to-justice.htm> accessed 30 December 2020.
25 ibid.
26 ibid.
27 Francesco Francioni, ‘The Development of Access to Justice in Customary Law’ in Francesco
Francioni (ed), Access to Justice as a Human right (Oxford University Press 2007) 1.
28 Knaul (n 5) para. 20.
29 ibid, para. 27.
30 ibid, para. 12 and 14 <https://www.un.org/ruleoflaw/...-RES-67-1.pdf> accessed 30 December 2020.
31 (67/187) <https://www.ohchr.org/documents/publications/faqen.pdf > accessed 30 December 2020.

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 Legal Aid as a Means to Combat Poverty in Bangladesh

for the enjoyment of other rights including the right to a fair trial.”32 The
International Covenant on Civil and Political Rights (ICCPR)33 also contains
definite provisions concerning the right to legal assistance. Article 14 states that
the State Party of the Convention undertakes the duty to safeguard the right to
legal assistance in criminal cases without payment where the person lacks
requisite ability to offer the payment for it or where the ‘interests of justice’
require so.34 Thus, legal aid enables those without adequate financial resources to
receive legal assistance to exercise their rights and to defend themselves before
the courts of law. In addition, legal aid advances Goal 16 of the United Nations
Sustainable Goals by “promoting peaceful and inclusive societies for sustainable
development” and, by rendering “access to justice for all”. It further seeks to
establish “effective, accountable and inclusive institutions” at respective levels in
a country.

3. Legal aid system in Bangladesh and its effectiveness in combating

poverty
As Muralidhar says, the Bangladeshi government took the first formal initiative
to establish a legal aid system across the country in 1994 and introduced a fund
towards this end.35 The Ministry of Law, Justice and Parliamentary Affairs
adopted a resolution that culminated in the establishment of a National Legal
Aid Committee in 1997.36 The Resolution further established committees at the

32 Annex, Introduction, para 1.

33 The ICCPR was adopted by the General Assembly resolution 2200A (XXI) of 16 December 1966
and entered into force on 23 March 1976. <https://www.ohchr.org/Documents/Professional
Interest/ccpr.pdf> accessed 6 December 2020.
34 Article 14(3) says, “In the determination of any criminal charge against him, everyone shall be
entitled to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he understands of the nature and
cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defence and to communicate
with counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his
own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal
assistance assigned to him, in any case where the interests of justice so require, and without
payment by him in any such case if he does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against him;
(f) To have the free assistance of an interpreter if he cannot understand or speak the language used
in court;
(g) Not to be compelled to testify against himself or to confess guilt. The person is also entitled to
choose the lawyer under this provision.”
35 S. Muralidhar, Law, Poverty and Legal Aid: Access to Criminal Justice (LexisNexis/Butterworth 2004)
357.
36 S.R.O. No. 74-Law/1997.

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

district levels. The District and Sessions Judges chaired these committees. But
due to the absence of official records of the services of this system, it is not
possible to evaluate the activities of this mechanism37. However, Chowdhury and
Malik state that the legal aid system was substantially ineffective and the
allocated fund was accordingly not utilized to achieve the goal.38 The number of
legal aid cases amounted to only 70 within two years after the programme had
started operating all over Bangladesh. It is reported that seven district
committees endured special arrangements with a view to delivering the service.39
Thus, the 1997 Resolution was not able to establish a service oriented legal aid
system. In the following years, the government undertook various activities to
endorse a specific law on legal aid.40 In 2000, the government finally
promulgated the Legal Aid Services Act41 (hereinafter LASA) that establishes a
nationwide legal aid system in the country. The Legal Aid Services Policies were
adopted next year that determined the criteria for eligible legal aid recipients.42
However, the government amended the Policies in 2014.43 Besides the Policies,
the Legal Aid Services Regulation 2001 was also adopted that covers various
issues involving procedure for legal aid applications, selection of legal aid
lawyers, lawyers’ fees and other related matters. The Regulation underwent
amendments in 2015.44 The LASA provides for the establishment of a central
organization called the National Legal Aid Services Organization for
implementing the objectives of the Act.45 It has also established legal aid
committees at the district, upazilla (sub-district) and union (lowest
administrative unit) levels. In 2016, provisions were made to form committees in
the Supreme Court, Labour Courts and Chouki Courts.46
The LASA has defined the term legal aid by saying that it is a kind of
assistance that incorporates provisions for legal advice, fees of lawyers, litigation
expenses, and other related costs provided to financially restrained groups and
to those who for different socio-economic reasons do not have the capacity to

37 Nazmul Ahsan Chowdhury and Shadeen Malik, ‘Awareness on Rights and Legal Aid Facilities:
The First Step to Ensuring Human Security’, in A.T.R. Rahman and D. Solongo (eds), Human
Securityin Bangladesh: In Search of Justice and Dignity (United Nations Development Programme
2002) 43–4.
38 ibid.
39 ibid.
40 Nusrat Ameen, ‘The Legal Aid Act, 2000: Implementation of Government Legal Aid versus NGO
Legal Aid’, (2004) 15 The Dhaka University Studies Part F 63.
41 Act No. VI of 2000.
42 S.R.O. No. 130-Law/2001.
43 The Legal Aid Services Policies, 2014, S.R.O. No. 194-Law/2014.
44 The Legal Aid Services Regulation 2015, S.R.O. No.166-Law/2015.
45 LASA, Sec 3.
46 S.R.O. No.33-Law/2016. Chouki Courts are established in far-off areas that have long distance from
headquarters of districts with a view to promoting access to justice for the people of such areas.

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 Legal Aid as a Means to Combat Poverty in Bangladesh

access justice.47 As per the Legal Aid Services Policies, 2014 read with Section 7(a)
of the Act, legal aid is available to persons who are not able to approach the
formal justice system because of economic hardship, destitution, helplessness
and for various socio-economic considerations. In particular, those who are
financially weak can apply for legal aid under the Bangladeshi system and their
eligibility is assessed based on their yearly average income ceiling that equals to
less than 1000,000 taka.48 Therefore, the Legal Aid Services Policies prescribe that
people who lack the ability to claim their right or to defend themselves before the
courts due to financial hardship, those who are detained without trial and are
unable to defend themselves because of financial calamity, persons regarded by
the court as poor or helpless and those referred to by the jail authority as
economically feeble are eligible to seek legal aid in Bangladesh. The LASA
further allows some defined groups of persons the right to legal aid without
specifying any financial eligibility criteria for them. These groups include women
and children who become victims of human trafficking; those who are allocated
land or housing in an ‘ideal/model’ village49; women and children suffering from
acid-attacks; poor widows, and physically or mentally handicapped persons
lacking ability of earning and thus enjoying no means of subsistence. This
indicates that some specific categories of persons enjoy an unequivocal right to
legal aid under the provisions of the LASA and the Legal Aid Services Policies.
According to the statistics of the NLASO, the number of legal aid
beneficiaries follows an increasing trend over the years. During the financial
year 2018-19, the number of beneficiaries amounts to 100,806 which is clearly
higher than previous years; for instance, the number of beneficiaries was
approximately less than 50, 000 in the financial year of 2015-16.50 Therefore, it can
be said that the need for legal aid is substantial and such demand for the service
is rising in years. It should be noted that a comprehensive and effective legal aid
system enables the poor to claim legal services for the purpose of resolving their
matters and achieving a fair outcome. This protects their freedom and choices
and eventually combats poverty by upholding the spirit of social justice.51 In this
context, it is essential to analyse whether or not the Bangladeshi legal aid system

47 Sec. 2(a).
48 However, the financial eligibility threshold requires being less than 150,000 taka for matters filed
before the Supreme Court. In addition, freedom fighters whose annual income limit does not
exceed 150,000 taka are allowed to apply for legal aid as per the provisions of the Legal Services
Policies 2014.
49 The model village approach aims to enhance the livelihoods of the poor by establishing one
community as a role model for adjoining villages. It focuses on specific issues like health and
hygiene, access to water, agriculture and others.
50 National Legal Aid Services Organisation <http://www.nlaso.gov.bd/sites/default/files/files/nlaso.
portal.gov.bd/annual_reports/...fcc 9_487c_906a_1b440b231d.pdf> accessed 30 December 2020.
51 Farzana Akter ‘Legal Aid for Ensuring Access to Justice in Bangladesh: A Paradox?’ (2017) 4 Asian
Journal of Law and Society 272-3.

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

functions adequately to repel poverty and its multidimensional aspects by

meeting the needs of the beneficiaries.
Legal aid programme is operated to safeguard the rights and interests of
its beneficiaries.52 However, as Abel says, such scheme reflects the struggle
between the rich and poor and is designed to legitimize the benefits enjoyed by
the affluent of the society.53 It is due to the fact that legal services maintain a
market oriented procedure and a portion of such services is granted to the poor
as a part of the legal aid programme. The government decides to provide the
service to the target groups as one of its political decisions.54 The prevailing
criteria for determining the eligibility of the legal aid beneficiaries in a given
country is a vital factor in evaluating the government’s position or intention in
establishing the mechanism.55 In Bangladesh, as noted earlier, a financial
eligibility test applies to legal aid seekers and they must pass it to receive the
service. According to Akter, this standard is based exclusively on the income of
the service seekers; it does not consider other issues that are crucial in
determining the condition of the applicants. These issues include the rate of
inflation, costs of living and related financial liabilities of the applications.56 A
study of 2017 (the study was based on both empirical data and literature review)
shows that the living cost follows an upward spiral in Bangladesh and the
difference between the annual income and the living expenses is meager.57 As a
result, the eligibility test of legal aid applicants (less than 100,000 taka in a year
and more than 8,000 taka monthly) is not proportionate with the social and
economic conditions of the state; rather it is excessively low and unrealistic. It
prohibits many people who might approach the court in case they find it
necessary.58 This restricted eligibility criteria functions to continue the justice gap
between the wealthy and deprived sections of the society.59 It further frustrates
the aim of the legal aid scheme as it expels many of those who might be willing
to approach the system to claim their rights and benefits.60 In addition, it
contradicts the principle of equality before the law for every citizens of the
country by granting the service to a limited number of people. Also, the
impractical eligibility test maintains the market- oriented attitude of the legal

52 Farzana Akter, ‘Examining the Scope of Legal Aid Clients: Bangladesh Perspective’ (2019) 30
Dhaka University Law Journal 77.
53 Richard L. Abel, ‘The Paradoxes of Legal Aid,’ in Jeremy Cooper and Rajeev Dhaveen (eds), Public
Interest Law (Basil Blackwell 1986) 383, 388.
54 ibid, 386.
55 Clifford M. Greene, David R. Keyser and John A. Nadas, ‘Depoliticizing Legal Aid: A
Constitutional Analysis of the Legal Services Corporation Act,’ (1976) 61 Cornell L. Review 775–6.
56 Akter (n 51) 257, 261.
57 ibid, 262-3.
58 ibid.
59 ibid.
60 ibid.

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systemin the sense that legal services are available only to those who have the
ability to compensate the price of lawyers and various related expenses of the
court proceedings.61
An adequate publicity about the nature, types and extent of service is
essential to inform the potential beneficiaries so that they become able to make
decisions whether or not to approach the authority and apply for the service.
According to Moran, 97% of respondents in the study are ignorant of the
Bangladeshi government sponsored legal aid programme and those who are
somehow aware of the scheme are not clear about the nature and the quality of
the service.62 It has been even said that the legal aid system has not been widely
publicised among the common populace of the country; and even if it is done in
some cases, such publicity lacks coordination among the authorities.63 Akter has
identified another reason for the lack of publicity of the legal aid programme in
Bangladesh. The government has prescribed a limit of expenses that should be
utilised for making the programme well publicised. In pursuance of the Legal
Aid Services Regulation 2015, District Legal Aid Committees enjoy the right to
spend 10% of the amount allocated to them for the purpose of conducting
activities relating to publicity and other issues.64 However, this amount is not
reasonable with the purpose of arranging prescribed programmes and
developments.65 As a result, inadequate publicity prevents potential beneficiaries
from accessing the service to claim or enforce their rights through the courts of
law.66 It also demonstrates the lack of willingness on the government’s part to
establish a functional system that is able to change the attitude of those who
might ask for the service in times of their need.
The meaningful service delivery in the legal aid system of Bangladesh is
also interrupted by the allocation of inadequate financial, human and logistical
resources.67 The budget allocation is not commensurate with the increasing trend
of the recipients and the economic standards of the country.68 Moreover, the
system suffers from inadequate infrastructural and logistical supports that
impede the effective functioning of the scheme.69 This eventually fails to provide
service that would enable the poor to capably assert their rights on a par with the
affluent in the society.

61 ibid.
62 Greg Moran, ‘Access to Justice in Bangladesh: Situation Analysis’ (Summary Report, Justice Sector
Facility Project, 2015) 25 <http://www.bd.undp.org/content/bangladesh/en/home/library/democrati
c_governance/access-to-justice-in-bangladesh-situation-analysis.html> accessed 9 August 2019.
63 Akter (n 51) 264.
64 The Legal Aid Services Regulation 2015, s. 11.
65 Akter (n 52) 89.
66 ibid, 89.
67 Akter (n 51) 265-7.
68 ibid.
69 ibid.

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The service delivery by legal aid lawyers is another crucial factor in

evaluating the effectiveness of the system. As Akter states, the selection process
of lawyers is not able to nominate capable and efficient lawyers as it exclusively
depends on the lawyers’ years of experience.70 Moreover, lawyers are not
committed and put emphasis on their personal interests rather than protecting
the interests of clients.71 Senior and well known lawyers show reluctance towards
the legal aid service of Bangladesh and therefore, the service is provided by less
experienced lawyers.72 Also, legal aid lawyers do not function effectively by
following the recognised professional norms and ethics. Legal aid clients are not
represented appropriately and the assistance does not satisfy their need.73 The
insincerity and reluctance of lawyers towards the legal aid service is related to
the poor payment offered to them.7475 In addition, the government does not have
a vigorous and efficacious monitoring system to assess and supervise the
activities of lawyers.76 All these result into ineffective service delivery by legal
aid lawyers that fails to satisfy clients’ requirement and exigency. It further
dissuades potential service seekers to apply for the service assuming that they
would receive perfunctory service.77

4. Conclusion
The article has shown that poverty is multidimensional and is not limited to
economic considerations only. It also involves the violation of freedom, choices
and capabilities that degrades the quality of human life. In addition, poverty
restricts people’s opportunities and choices to lead a life they have reason to
value. Given that poverty comprises of various aspects, the poor are the deprived
sections of the community and are not able to establish their rights through the
formal courts of law. This is because they lack resources to hire lawyers and
manage other incidental expenses of legal proceedings. The role of the legal aid
system in a country is considerable in enhancing access to justice. However, the
above discussions indicate that the government sponsored Bangladeshi legal aid
system does not run effectively due to various factors and, thus, is not able to
satisfy the needs of the poor to promote their access to justice.78 It is undeniable
that ineffective service is as good as no service. The ineffective functioning of the

70 ibid, 269. Lawyers who have five years of experience are eligible to be selected as panel lawyers as
per section 15 of the LASA.
71 ibid, 269-71.
72 ibid.
73 ibid.
74 Jamila Ahmed Chowdhury, ‘Legal Aid and Women’s Access to Justice in Bangladesh: A Drizzling
in the Desert’ (2012) 1 International Research Journal of Social Sciences 8, 11.
75 Akter (n 51) 269-70.
76 ibid, 271-2.
77 Khair (n 7) 235.
78 Akter (n 51) 272-3.

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Bangladeshi legal aid system does not further the collective interests, urgencies
and needs of the poor. This also fails to bring social reforms by changing the
status of the poor; it rather maintains inequality and justice gap in the society. As
a result, the poverty cycle continues and the poor cannot come out ahead in
establishing their rights and challenging oppressions. The article suggests that
the government should take into account the collective interests and needs of the
poor and, accordingly develop the legal aid system of the country. The forceful
commitment, durable strategy and sincerity of the government are essential to
improve the system. The provisions of the LASA should also reflect the needs
and interests of the poor. The legal aid lawyers should be motivated and
compensated in a way so they deliver the service to best protect the interests of
the beneficiaries. In short, the substantial service of legal aid system would
improve the quality of life of the poor. Further, it would enable them to
contribute to social development by the alleviation of poverty.

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

The Doctrine of Public Trust: Its Judicial Invocation in

Bangladesh and the Future Potentials

Azhar U. Bhuiyan*

Abstract: The Doctrine of Public Trust (DPT), despite its south Asian root and
constitutional base, was introduced late into the constitutional law of
Bangladesh. In 2010, the Supreme Court of Bangladesh felt it was time for them
to adopt DPT, and thus without offering any methodological justification as to
how they are bringing a US doctrine in our constitutional jurisprudence, the
Court applied the DPT in a matter involving protection of a natural resource-
gas. However, while the DPT could play its role in the protection of public
properties in Bangladesh in only a limited number of cases, that too after 2010,
it does have the potential to play bigger role in Bangladesh given its growth in
other parts of the world. This article traces the development of this doctrine in
Bangladesh and its application. At the same time, it responds to the existing
critiques of the DPT that are raised against its judicial invocation in the west
from the perspective of Bangladesh. Lastly, this article will project the future
path of the DPT in Bangladesh. This article adds significantly to the existing
body of legal literature by theorising a test with the existing judicial
developments of the doctrine in Bangladesh.

Keywords: Constitution of Bangladesh, doctrine of public trust, and public

property.

1. Introduction
Despite being an evolving issue, the Doctrine of Public Trust (DPT) has not
received any scholarly attention in Bangladesh. Even, the Supreme Court of
Bangladesh (SCB) has raised this concern in one of its recent observations.1
The Doctrine of Public Trust (DPT) has prominently developed as an
enforceable legal doctrine in the 20th century United States (US) with the seminal
article authored by Professor Joseph Sax.2 Sax grounded the basis of the doctrine
in ancient Roman law and common law. In the south Asian subcontinent, the
Indian Judiciary was the first to incorporate the entire domain of US
development of the DPT through MC Mehta v Kamal Nath.3 All these
developments based on the ancient Roman concept of res communis has been
questionable by US academics on the ground that Roman Law did not have any

* The author is a Lecturer at the Department of Law, Bangladesh University of Professionals. He can
be reached at: azhar.uddin@bup.edu.bd.
1 Human Rights & Peace for Bangladesh v Bangladesh (2019) WP No 13989/2016 at 257.
2 See for details, Joseph L. Sax, ‘The Public Trust Doctrine in Natural Resource Law: Effective
Judicial Intervention’ (1970) 68 Michigan Law Review 471.
3 M C Mehta v Kamal Nath &Ors (1997) 1 SCC 388.

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Jahangirnagar University Journal of Law, Vol. IX, 2021, Issue I

concept of preserving public trust properties and Magna Carta had nothing to do
with the community rights of the citizens.4 While relying much on the western
notion of the DPT, the south Asian courts have ignored, what the International
Court of Justice did not, the south Asian autochthonous origin of the doctrine.
This article attempts to point out the south Asian autochthonous origin of the
doctrine and traces its historical trajectory in Bangladesh.
At first this paper investigates the historical evolution of the DPT as it
was developed. It starts by focusing on the widely accepted belief that the DPT
has its origin in ancient Roman law and later on was borrowed by the English
Common Law through the incorporation of the doctrine in the Magna Carta. The
paper addresses the concerns raised by Professor Huffman and shows that even
if his claim is true, the DPT has its autochthonous south Asian root. Therefore,
the shaky history in the west cannot overrule the development of the DPT in this
part of the world. In the next part, the paper analyses the current status of the
DPT in Bangladesh in view of all four cases - Shah Abdul Hannan,5 Faridul Alam,6
HRPB (2010),7 HRPB (2019),8 decided by the SCB. It also discusses the role of the
legislature apart from the court in fulfilling the obligation stemming from the
DPT as incorporated in the Constitution of Bangladesh. It analyses the fiduciary
duties of the trustees of the public trust properties in light of the latest judicial
development in Bangladesh.
Later, this paper points out the criticism of the DPT in the context of
Bangladesh and addresses such criticisms. It points out three popularly raised
criticisms: shaky legal background, apparent inconsistency with the concept of
rule of law and finally the issue of separation of powers. In the next part, this
paper emphasises on the role of the legal community in not creating any bar in
the development of the DPT. This paper asserts that the DPT is an important
legal fiction acknowledged and utilized by the SCB. At the same time, it theorizes
a cost-benefit analysis test taking into consideration the overall development of
the doctrine in Bangladesh. This paper ends by projecting the future use of the
DPT in Bangladesh.

4 See for details, James L Huffman, ‘Speaking Inconvenient Truths: A History of Public Trust
Doctrine’ (2007) 18 Duke Environmental Law and Policy Forum 1 (argues that the origin of DPT is
not based on true facts to the extent of preserving public rights).
5 Shah Abdul Hannan v Bangladesh (2011) 16 BLC 386.
6 Faridul Alam v Bangladesh (2010) 18 BLT 323.
7 Human Rights & Peace for Bangladesh v Bangladesh (2010) 22 BLC 48.
8 Human Rights & Peace for Bangladesh v Bangladesh (2019) WP No 13989/2016.

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2. The historical trajectory of the public trust doctrine

2.1. A transplantation from ancient roman law or one of south Asian

autochthonous origin?
A big majority of the legal scholars from the west trace the origin of the DPT in
the concept of ‘common properties’ (res communis)9 as found in the ancient
Justinian Code of 530 A.D where it was stated: “by the law of nature, these things
are common to mankind – the air, running water, the sea, and consequently the
shores of the sea…”.10 On the contrary, it has been argued that relying on this
provision of Justinian Code to locate the origin of ‘public trust’ was a ‘creative
judicial misunderstanding’ of the Roman Law.11 The reason behind such an
argument is the qualifiers after the above quotation from Justinian Code, “whilst
he abstains from damaging farms, monuments, edifices, etc. which are not in
common as the sea is”, have been always ignored except the minority opinion in
the Glass v Goeckel.12 Moreover, in the Roman Empire, sea shores or submerged
lands were often privately owned and were free to be taken.13Therefore, it seems
that there is a debate as to the origin of the DPT in Roman law. The High Court
Division (HCD) of the SCB has also endorsed the trend in the U.S. academia and
maintained that the current conception on the ‘environment’ bears a close
resemblance to the roman origin of DPT.14While adopting such a position, this
south Asian court seems to ignore the South Asian origin of the doctrine in Sri
Lanka.

9 See for details, Joseph L. Sax, ‘Liberating the Public Trust Doctrine from its Historical Shackles’
(1980) 14(2) University of California Davis Law Review 185.
10 See for example, Robert Haskell Abrams, ‘Governmental Expansion of Recreational Water Use
Opportunities’ (1980) 59(2&3) Oregon Law Review 159, 162; Seldon, ‘Wherever the Water Flows:
Lyon Applies the Public Trust to Non-Tidal Water’ (1983) 11 Ecology Law Quarterly 21, 26.
However, there is an interesting argument on the origin of the doctrine in Sri Lanka. See for
details, Rajitha Perera, ‘The Public Trust Doctrine’ (2016) 4 Judicial Service Association of Sri
Lanka Law Journal <https://www.academia.edu/37942953/The_Public_Trust_Doctrine> accessed
16 April 2020. On the other hand, tracing the origin of the public trust doctrine has been
considered as another ‘creative judicial misunderstanding' of the Roman Law. See for details, Carl
Shadi Paganelli, ‘Creative Judicial Misunderstanding: Misapplication of the Public Trust Doctrine
in Michigan’ (2007) 58 Hastings Law Journal 1095, 1096.
11 See for details, Carl Shadi Paganelli, ‘Creative Judicial Misunderstanding: Misapplication of the
Public Trust Doctrine in Michigan’ (2007) 58 Hastings Law Journal 1095, 1096; also see James L.
Huffman, ‘Protecting the Great Lakes: The Allure and Limitations of the Public Trust Doctrine’
(2016) 93 University of Detroit Mercy Law Review 239.
12 Glass v Goeckel (2005) 703 N.W.2d 58.
13 See for details, Patrick Deveney, ‘Title, Jus Publicum, and the Public Trust: An Historical
Analysis’ (1976) 1 Sea Grant Law Journal 13, 30.
14 See for details, Faridul Alam v Bangladesh (2010) 30 BLD 500; Human Rights & Peace for Bangladesh v
Bangladesh (2019) Writ Petition No 13989/2016 <http://www.supremecourt.gov.bd/resources/
documents/1048627_W.P.13989of2016.pdf> accessed 17 April 2020.

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The concept of guardianship over public properties in south Asia,

specifically in Sri Lanka dates back to the third century BC.15 According to the
historical accounts16, in 223 BC, the King of this region Devanampiya Tissa went
for an animal hunting. Emperor Asoka’s17 son Arahat Mahinda preached to him
the following sermon:
O great King, the birds of the air and the beasts have as equal a right to live and
move about in any part of the land as thou. The land belongs to the people and
all living beings; thou art only the guardian of it…18

Although the Justinian Code and the Mahāvaṃsa19 (the Great Chronicle of
Ceylon) conceptually overlaps in providing protection to the elements of
environment, public property, a critical look into these two sources shows that
the latter imports deeper and advanced version of environmental philosophy.
Justinian recognized the air, running water, the sea, and consequently the shores
of the sea, as ‘common property’ or in other words property enjoyable by all. On
the contrary, the Mahāvaṃsa’s thoughts go deep down to the preservation of
such elements of nature and the role of the king (or ruler, i.e. government) as the
guardian of such public properties. The most significant part of the Sri Lankan
origin is that the king or the ruler was placed in the position of guardian which
we can directly relate to the modern concept of ‘public trust’.20Therefore, there
remains no doubt as to the south Asian origin of the doctrine.

2.2. European civil and common law antecedents

Although there is debate as to the origin of the doctrine in Rome or in South
Asia, there is no question on the fact that it is the English Law that finally gave
legal shape to the DPT to restrict the proprietary control of the King over certain
natural resources. The pedigree of the doctrine can be found in Chapters 1621 and
2322 of the Magna Carta although it is correct to say that these chapters have a
very thin link to the modern understanding of the doctrine. At the same time, it

15 Hungary v Slovakia (Gabčikovo-Nagymaros Project) [1997] ICJ Rep 7.

16 Such an account has been cited even in the judgment of the International Court of Justice in the
Gabcikovo-Nagymaros Project Case.
17 Ashok, also known as Ashoka the Great, was an Indian emperor of the Maurya Dynasty, who
ruled almost all of the Indian subcontinent from c. 268 to 232 BC.
18 See for details, Walpola Rāhula, History of Buddhism in Ceylon: the Anuradhapura period, 3d century
BC-10th century AC. (M.D. Gunasena, 1956) 217-221.
19 See generally, Wilhelm Geiger and Mabel Haynes Bode, The Mahāvaṃsa, Or, The Great Chronicle of
Ceylon by Mahanama (Asian Educational Services, 1993).
20 See for details, Rajitha Perera (n 10) 1-4.
21 Chapter 16 of Magna Carta states: “No riverbanks shall be placed in defense from henceforth
except such as were so placed in the time of King Henry, our grandfather, by the same places and
the same bounds as they were to be in his time.”
22 Chapter 23 of Magna Carta provides that: “All weirs for the future shall be utterly put down on
the Thames and Medway and throughout all England, except on the seashore.”

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must be admitted that the concept of public trust doctrine was finally given a
legal shape by the European civil and common law antecedents. Spain
recognized a public right to navigable waterways in the thirteenth century.23 The
French Civil Code maintained that navigable rivers and streams, beaches, ports
and harbors shall be treated as common property.24 Incorporation of this doctrine
into the legal texts to impose obligation on the government or the ruler to protect
the properties, however, was oblivious to grant public rights that could be legally
enforceable against a recalcitrant government for a long time.25

2.3. Trajectory of DPT in Bangladesh through India: inspiration from the

United States
For a long time, almost the entire sub-continent was ruled by the British
colonizers. Inspirations from Magna Carta and other common law precepts,
however, did not reach the subcontinent. Understandably, the intention of the
colonizers was to exploit the resources of the sub-continent to enrich
themselves.26 There was no intention in the British colonizers to preserve and
protect any resources of the sub-continent. That is perhaps the most plausible
reason why the countries in south Asian sub-continent had to wait till 1997 to
recognize the ‘DPT’ formally within their laws of the lands.27
In the south Asian sub-continent, India is the first country to recognize
DPT as a law of the land. In M C Mehta v Kamal Nath28, the petitioner built a motel
at the delta of a river while it changed the course of the river. The Ministry of
Environment was responsible for overlooking such activities. Notably, the DPT
did not specifically exist in the constitutional law of India then. The change of
course of the river caused flooding in the nearby villages. To adjudicate the case,
the Indian Supreme Court relied on the reasoning offered by the celebrated work
of the U.S. Academic Joseph Sax29 where he argued that the public must have an
enforceable right against the government to protect the natural resources of the
country from commercial exploitation. The Court located the origin of the DPT in
the common law and ended up adopting the entirety of the American version

23 See for details, Samuel Parsons Scott (ed) Robert I. Burns, Las Siete partidas, Vol IV (in English
Family, Commerce, and the Sea: The Worlds of Women and Merchants) (Philadelphia: University of
Pennsylvania Press, 2001) (“Rivers, harbors, and public highways belong to all persons in
common . . . .”).
24 French Civil Code, Article 538.
25 M C Mehta v Kamal Nath & Ors (1997) 1 SCC 388.
26 For an account of the approach of the British colonizers in ruling the Indian sub-continent, see
Shoshi Tharoor, An Era of Darkness: The British Empire in India (Aleph Book Company 2011).
27 M C Mehta (n 25).
28 ibid.
29 See for details, Joseph L. Sax, ‘The Public Trust Doctrine in Natural Resource Law: Effective
Judicial Intervention’ (1970) 68 Michigan Law Review 471.

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DPT in a wholesale basis.30 Within the next three years, the Supreme Court of
India could find the constitutional abode of the DPT in Article 21 by widening
the ambit of the right to life.31 However, till date there exists no legislation in
India to regulate the scope of the DPT.
The journey of DPT in Bangladesh started from the very beginning of its
independence. Two reasons can be attributed behind this. Firstly, Bangladesh has
also been a part of the British colony and the legal system is deeply influenced by
the common law traditions. Secondly, it has been often argued by the historians
that one environmental disaster prior to 1971 made the destined break-up of
Pakistan speedy.32 Therefore, the political leadership of independent Bangladesh
was really aware of the environmental needs of the country and thus
incorporated the DPT in Article 21 of the Constitution. However, SCB took long
time to flesh out the DPT as such from the language of Article 21. As a result,
there has been only 4 cases so far where the SCB utilized the concept of DPT. As
summarised in the following table, they also seem to have followed the Indian
line of reasoning:

Name of the Case Judge Reasoning Relied on Subject matter

Shah Abdul A.H.M. a) DPT is part of English MC Mehta v Natural

Hannan v Shamsuddin Common Law Kamal Nath34 Resources: Gas
Bangladesh33 (2010) Choudhury b) Time has come to
adopt the theory Indian
judiciary adopted

FaridulAlam v Md. Mamtaz DPT is part of English a) MC Mehta v Lease for

Bangladesh35 (2010) Uddin Common Law 36 hotel/motel in
Kamal Nath
Ahmed b) Joseph Sax’s the Coxs’ Bazar
Article Sea beach area

Human Rights & Md. Rezaul The Indian adoption of M C Mehta v Preservation and
Peace for Hasan DPT is of great persuasive Kamal Nath38 protection of
Bangladesh v value. ‘Karnaphuli’
Bangladesh37(2010) river

30 M C Mehta (n 25) para 269, 270.

31 M.I. Builders Private Ltd. v Radhey Shyam Sahu (1999) 6 SCC 464, 466.
32 See for details, Naomi Hossain, ‘The 1970 Bhola cyclone, nationalist politics, and the subsistence
crisis contract in Bangladesh’ (2018) 42(1) Disasters 187-203.
33 Shah Abdul Hannan v Bangladesh (2011) 16 BLC 386.
34 M C Mehta (n 25).
35 Faridul Alam v Bangladesh (2010) 18 BLT 323.
36 M C Mehta (n 25).
37 Human Rights & Peace for Bangladesh v Bangladesh (2010) 22 BLC 48.
38 M C Mehta (n 25).

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 The Doctrine of Public Trust: Its Judicial Invocation

Name of the Case Judge Reasoning Relied on Subject matter

Human Rights & Md. Ashraful a) Article 21 (duties of a) MC Mehta v Preservation and
Peace for Kamal citizens and of public Kamal Nath protection of
Bangladesh v servants) b) Joseph Sax’s ‘Turag’ river
Bangladesh39 (2019) b) Article 18A (protection Article
and improvement of
environment and
biodiversity)
c) Article 31 (right to
protection of law) and 32
(protection of right to life
and personal liberty)

Figure 1: Cases involving DPT in Bangladesh

If we critically delve into the root of the DPT in Bangladesh, it is evident that the
judiciary was, at first, not certain about the constitutional position of the doctrine
in Bangladesh. Rather the judiciary kept taking a functionalist approach to the
doctrine relying on the English Common Law precepts and persuasive authority
of the Indian cases. In the first two cases, the judges as well as the lawyers,
refrained from referring to any constitutional provision in Bangladesh. This
raises an important question as to the methodology of transplantation of
constitutional doctrines. However, in the third case, the Judiciary could reach a
more transparent position. In this case, the Court was of the view that although
Article 18A was later entrenched into the constitution through an amendment
after 39 years of its establishment and the right to life was yet show its elasticity,
the constituent assembly led by father of the nation Bangabandhu Sheikh
Mujibur Rahman incorporated the concept of public trust in the Part II
(Fundamental Principles of State Policy (FPSP)) of the 1972 Constitution making
the it the first constitution ever to recognize DPT. Article 21(1) of the Bangladesh
Constitution states that:
It is the duty of every citizen to observe the Constitution and the laws to
maintain discipline, to perform public duties and to protect public property.
(emphasis on the italic portion)

Although following the classical position of the FPSPs, it can be argued that
provisions of the part II are not judicially enforceable, it is submitted that
considering the modern developments in several case laws40 and academic
commentaries41, the Part II provision of the Constitution is definitely negatively

39 Human Rights & Peace for Bangladesh v Bangladesh (2019) WP No 13989/2016.

40 See for details, Chairman, National Board of Revenue v Advocate Julhas Uddin (2010) 15 MLR (AD)
457; Major General K M Shafiullah v Bangladesh (2009) Writ Petition no. 4313/2009.
41 See for details, Muhammad Ekramul Haque, ‘Legal and Constitutional Status of the Fundamental
Principles of State Policy as Embodied in the Constitution of Bangladesh’ (2005) 16(1) Journal of
the Faculty of Law 45-81; Muhammad Ekramul Haque, ‘The Bangladesh Constitutional
Framework and Human Rights’ (2011) 22 (1) Dhaka University Law Journal 55-79; Muhammad

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enforceable if not positively. On the other hand, even before these judicial
pronouncements and academic commentaries, there was no doubt as to the
constitutional obligation on the state to consider the provisions of Part II in the
governance of Bangladesh, to apply them while making laws, to use them as a
guide to interpretation of the constitution and of other laws, to use them as the
basis of the work of the state and of its citizens.42 Therefore, a close reading of
these case law, academic commentaries and the clear constitutional provision in
Article 8(2) read with Article 21(1) provides that there is at least a negative
obligation on the state to protect public property. The concept of DPT develops
on the concept of public property.43 In addition after the entrenchment of the
Article 18A in the Bangladesh Constitution, and expansion of the meaning of
right to life under Article 32 of the Constitution, there remains no doubt as to the
constitutional abode of the DPT in Bangladesh. This is how so far the DPT has
developed in Bangladesh.

3. The public trust doctrine in Bangladesh: analyzing the present

3.1. Meaning and scope

Constitutional Law jurist in Bangladesh Mahmudul Islam relied on the definition
of the Black’s Law Dictionary to define the DPT. It defines as follows:
The doctrine provides that submerged and submersible lands are preserved for
public use in navigation, fishing and recreation and State as a trustee for the
people, bears the responsibility of preserving and protecting the right of the
public to the use of the waters for those purposes.44

The opinion of Mahmudul Islam in the context on 2020 seems a bit backdated
because around the globe DPT has evolved beyond the traditional concept of
navigation, fishing and recreation rights. However, Mahmudul Islam actively
referred to the approach of the Indian Supreme Court in the MC Mehta v Kamal
Nath on which the SCB relied on in the Faridul Alam. Bangladeshi courts as well
the jurists are highly persuaded by the MC Mehta dictum where the court
“quashed a lease of forest land by the side of a river for interfering with natural
flow of the river and ordered the lessee to pay compensation by way of
restitution of the environment and ecology.”45 Bangladesh court, however,
expanded the meaning and scope of the doctrine in three subsequent cases.

Ekramul Haque, ‘Does Part II of the Constitution of Bangladesh contain only economic and social
rights?’ (2012) 23(1) Dhaka University Law Journal 45-51.
42 Constitution of Bangladesh, art 8(2).
43 Human Rights & Peace for Bangladesh (n 39) 157.
44 Henry Campbell Black, Black’s Law Dictionary (6th edn, West Publishing Company 1996) cited in
Mahmudul Islam, Constitutional Law of Bangladesh (3rd edn, Mullick Brothers Ltd 2012) 258.
45 See for details, Mahmudul Islam (n 44) 258.

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In Shah Abdul Hannan, the petitioners sued “with honest and sincere
desire” to protect natural resources, e.g., gas and coal. Though the case was
46

finally disposed of on a different issue, it was all agreed by both the parties and
Shamsuddin Chowdhury J. that DPT is part of English common law and thus it
is part of the law of the land. Accordingly, the ‘natural and mineral resources’
like natural gas is entitled to the protection of public trust. The Court
transplanted the Indian doctrine of public trust and said that the state’s duty is
essentially akin to that of a Trustee of a Public trust, a fiduciary duty to act as
protectors. By doing so, the Court expanded the scope of the DPT giving
protection of public trust to the natural resources. In the second one, Faridul
Alam, the court did not need to go beyond the traditional meaning of the DPT.
Here the DPT was used to direct the government to take steps to protect the
ecologically critical area of Cox’s Bazar sea beach. In the third one, Turag River,
the court utilized the DPT to declare the encroachment of the occupier unlawful
and unconstitutional. In this judgment, Ashraful Kamal J. declared all the rivers
in Bangladesh a legal person relying on the DPT. Thus, so far, the scope of DPT
in Bangladesh has extended to natural resources like gas and coal, sea beach, and
rivers. However, the HCD of the SCB has expressly said that new elements shall
be added in future in the scope of the DPT.47 Therefore, at the moment, it is not
possible to provide a conclusive definition or comprehensive scope of the DPT in
Bangladesh. Whatever, the definition will turn out to be in future, according to
the DPT, the Constitution did not grant the state ownership of forest, wild
animals, sea, sea-beach, rivers, and canals. Rather the state is merely in the
position of a trustee whose obligation is to protect and develop the public trust
properties.
The leading authority on the DPT, Professor Sax found three types of
restriction on the authority of the government in dealing with public trust
property.48 Firstly, the public trust property must be held accessible for use by
the general public. Second, the public trust property is invaluable, i.e. the
government cannot transfer the property for any amount of compensation.
Thirdly, the governmental conduct for relocating the public trust property or
subjecting it to uses for the interest of the private persons shall be sceptically
looked into by the Judiciary. As the study of cases above shows, the Judiciary of
Bangladesh has typically maintained a similar position on the DPT with regard
to the restrictions on the governmental authority.

46 Hannan (n 33) para 4.

47 Human Rights & Peace for Bangladesh (n 39) 81.
48 See for details, Joseph L. Sax, ‘The Public Trust Doctrine in Natural Resource Law: Effective
Judicial Intervention’ (1970) 68 (3) Michigan Law Review 471.

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3.2. Application of the doctrine

While the Bangladesh Supreme Court’s recognition, reasoning and expansion of
the DPT is a welcome development, in general there remains critical questions to
be answered in relation to its application in Bangladesh. In the following the role
of the courts and the legislature with regard to the DPT shall be discussed with
particular focus on the substantive elements of the doctrine.

3.2.1. Role of the courts

Judicial Review of the Administration of the Trust: The HCD of the SCB is
constitutionally empowered with the authority of judicial review and thus it can
inquire into and provide remedy by “directing a person performing any
functions in connection with the affairs of the Republic or of a local authority, to
refrain from doing that which he is not permitted by law to do or to do that
which he is required by law to do”.49 From the above discussions, the obligation
upon the state towards public trust property is clear. In this circumstance, the
courts can make sure that the public trust property is not being used for any
purpose other than public’s benefit under the constitutional authority of the
court. The court can also adjudicate the issue: whether the state has fulfilled its
obligation to maintain the public trust. Moreover, the court is the final authority
to decide if any particular legislation has questionable content in itself which can
be deemed unconstitutional because of being contrary to the DPT.
In all four cases involving DPT in Bangladesh, the suit was filed by
public spirited individuals or organizations and the courts readily granted them
locus standi.50 When a Public Interest Litigation is filed on issues relating to the
affairs of the public trust property, the court is obliged to grant locus standi and
‘strictly scrutinize’51 the legality of the affairs of the trust property. Thus, if any
legislative action or executive action is contrary to the preservation of public
trust property, the courts must step in by inquiring if there is any compelling
government interest and if there is no other alternative to do that. However,

49 Constitution of Bangladesh, Article 102(2) (a).

50 Over the past two decades, the concept of locus standi has been liberalized to a wide extent only
to face the abuse of the liberal interpretation and thereafter the courts had to narrow down the
scope of the widened locus standi. With the judgment on NBR v Abu Sayeed (2013) 18 BLC (AD)
116, the position of the law came to a settled position. See for details, Md Rizwanul Islam and Md
Tayeb-Ul-Islam Showrov, ‘Sifting through the Maze of ‘Person Aggrieved’ in Constitutional
Public Interest Litigation: Has Abu Saeed Case Ushered a New Dawn?’ (2017) 28 Dhaka
University Law Journal (Dhaka University Studies Part-F) 155-168.
51 Although there is no study on the implication of ‘doctrine of strict scrutiny’ in Bangladesh, the
equality clauses of the Constitution of India and Bangladesh are similar. Moreover, the
Bangladeshi courts routinely rely on the Indian constitutional jurisprudence unless the
constitutional texts are different. For implications of the doctrine of strict scrutiny in India, see
Moiz Tundawala, ‘Invocation of strict scrutiny in India: Why the Opposition?’ (2010) 3 NUJS Law
Review 465.

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while doing so it is important for the judges to be cautious if they are

transgressing the limits of the Constitution itself.
Role of the Legislature: Under the DPT, it is the ‘state’ that is in charge of the
public trust property. It purports to mean that all three branches of the state shall
play its expected role to preserve and protect the properties. As the law-making
branch of the state, the legislature or the Parliament of Bangladesh has to play its
role by enacting laws respecting public trust property. The legislature is the
principal trustee of the public trust properties. The Constitutional basis of the
DPT is an indication that if any legislative action fails to meet the fiduciary
standard of care for the trustees, such actions and standards can be strike down.
Moreover, it is also the obligation of the legislature to promote the DPT by
enacting legislation for different sectors. Fortunately, the Parliament of
Bangladesh has tried to incorporate the concept of DPT into different legislation
from the very beginning. Justice Ashraful Kamal in the Turag river52 has
identified all the legislation that incorporated the concept of DPT, enacted so far:
a) ‘The Bangladesh Wild Life (Preservation) Order, 1973
b) The Bangladesh Petroleum Act, 1974
c) The Environment Conservation Act, 1995
d) The Environment Conservation Rules, 1997
e) The Environment Court Act, 2000
f) The Play-ground, Open space, Park and Natural Wetland
Conservation Act, 2000
g) The Climate Change Trust Act, 2010
h) The Wildlife (Preservation and Security) Act, 2012
i) The National River Protection Commission Act, 2013
j) The Bangladesh Water Act, 2013
k) The Bangladesh Bio-diversity Act, 2017

3.2.2. Fiduciary duties of the trustees

3.2.2.1. Substantive duties
The duty of the public servant: Since the public servants are appointed by the
people of this country with the support of the Government, the government
officials are legally obliged to maintain the public trust properties.53 If there is
any inconsistency in fulfilling the obligation, they are accountable to the people.
The people can ensure such accountability through the Government or the
Judiciary.

52 Human Rights & Peace for Bangladesh (n 39).

53 ibid, 260.

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The duty of the National River Protection Commission: The National River
Protection Commission has been declared as the legal guardian (person in loco
parentis) of all the rivers of Bangladesh.54The Court also imposed obligation on
them to protect and develop the rivers and recover those which were encroached
unlawfully. Moreover, the organizations of the Government are also made
responsible to assist the National River Protection Commission fulfil their
responsibilities.55
The duty of Bangladesh Bank: The Court imposed an obligation on the central
bank of Bangladesh, Bangladesh Bank, to direct all the banks of Bangladesh by a
circular to take necessary measures so that no amount of loan is granted against
any individual or company who is alleged to be an encroacher of public trust
property.56 However, mere allegation cannot be considered as a conclusive proof
of an offence. Thus, the Banks may be instructed to postpone the entire process of
granting loan when the decision makers of the Bank have knowledge about the
illegal encroachment of the loan applicant. If after the due process, the loan
applicant is acquitted of the charges, the Bank can definitely resume the loan
application.
The duty of the National Election Commission: The Court has directed the
National Election Commission to include the unlawful encroachment and
destroyer of public trust property in the list of conditions for ineligibility in
elections in all levels including union, sub-district, district and Parliament.57
The duty of protection: The duty of protection to the public trust properties
requires an active role on the part of the state. Therefore, the state, i.e. the
executive Government and the legislature must take an active role or affirmative
actions to preserve and protect the public trust properties. If any backsliding in
their role is noticed, the beneficiaries of the public trust properties can sue the
state in the court of law for proper remedies. Thus, if any permit of any
developmental project involving the public trust property is granted, as the
trustee, the state must take an active interest over the project, continue
supervision over such project and put an end to such project when it becomes
harmful for public interest.
The duty against waste: The Constitution of Bangladesh provides protection for
environment not only for the present generation but also for the future
generation, thereby including inter-generational equity principle in itself.58Indian
Supreme Court is of the view that the DPT looks beyond the need of the present

54 ibid, 278.
55 ibid.
56 ibid, 281.
57 ibid.
58 Constitution of Bangladesh, Article 18A.

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generation and also suggests that certain resources are invested with a special
nature.59 Thus the trustees shall have a duty to make sure that the public trust
properties are not being wasted.
3.2.2.2. Procedural duties
The duty of precaution: It is required of the state to take pre-cautionary measure
to protect public trust property in all the development related functions. The
Court in the Turag river has clarified that it is a legal obligation on the part of the
state to abide by the obligations it took upon itself from Rio Declaration.60
Principle 15 of the Declaration incorporates the duty of the state to take
precautionary measures.
The duty to enforce polluter pays principle: In the Turag river, the court adopted
the polluter pays principle in Bangladesh. The court made it clear that the hard-
earned income of the people and their tax money cannot be used for restoring the
Turag River back to its original form due to the encroachment and pollution of
the river. While doing so, the Court relied on the authority of Principle 16 of the
Rio Declaration which states that: “the polluter should in principle bear the cost
of pollution with due regard to the public interest”.61 The court read Article 21 of
the Constitution with Principle 16 of the Rio Declaration to observe that it is the
obligation of the citizens to protect, preserve and not to cause destruction of the
public trust property. Thus Ashraful Kamal J. declared that the court shall be the
resort of the citizens if anyone destroys the public trust properties under its writ
jurisdiction under Article 102(1) of the Constitution. It might be a moot question
if actions in the writ jurisdiction can be brought against private persons.
Following the Dataphin test62 from the UK jurisdiction, the SCB has also adopted
similar test utilizing the leeway in Article 102(1) of the Constitution. Since
maintenance of the public trust property inevitably falls within the ‘affairs of the
Republic’, suit can be brought against ‘any person’.63 Thus if any person
aggrieved brings a suit in the writ jurisdiction against any person who was
caused injury to the public trust property, the Court shall be obliged to grant an
order directing the polluter to pay such amount of damages as may be necessary
to restore the public trust property.

59 T.N. Godavarman Thirumulpad v Union of India AIR 2005 (SC) 4258.

60 Human Rights & Peace for Bangladesh (n 39) 268.
61 ibid, 269.
62 R (Datafin plc) v Panel on Take-overs and Mergers (1987) 1 All ER 564.
63 Such an approach was taken in Moulana Md. Abdul Hakim v Bangladesh (2014) 34 BLD 129.
However, the development of this concept is yet in its early stage and there has no decision on
this issue by the Appellate Division of the Supreme Court. But see Ridwanul Haque, ‘The
“Datafin” Turn in Bangladesh: Opening Up Judicial Review of Private Bodies’ (Adminlawblog, 25
October 2017) <https://adminlawblog.org/2017/10/25/ridwanul-hoque-the-datafin-turn-in-banglad
esh-opening-up-judicial-review-of-private-bodies/> accessed 21 April 2020.

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The duty towards sustainable development: The needs of the future generation
cannot be overlooked in the name of fulfilling the needs of the present
generation. The Constitution of Bangladesh recognises the obligation of the state
in ensuring the protection and improvement of the environment for the future
generation.64 Moreover, the Stockholm Declaration65 and the Rio Declaration on
Environment and Development66 is also reflective of principle of striking a
balance between environment and development. Thus, the environment, natural
resources and bio-diversity cannot be destroyed for economic development of
the country. The state must make a balance between the need for economic
development and environmental pollution.67 Such an approach is reflective of the
sustainable development policy of the state.
The duty of furnishing information to beneficiaries (duty of accounting): Under
the Private Trust Law, a trustee is bound to maintain clear and accurate accounts
of the trust property.68 However such an obligation upon the trustee is inherent
in the trust law. In Bangladesh, there is no legislation to regulate the public trusts
in general although there are laws to regulate the religious and charitable trusts.69
Even in the absence of any specific law, the trustee of the public trust properties
shall be responsible to make all the information about the accounts of the public
trust property available in the online platform and update them regular in the
online and offline site.

4. Critiques and responses to the critiques of public trust doctrine in

Bangladesh
The legal literature in Bangladesh on the issue is seriously under-developed. The
fact that there has been no literature on the critique of the DPT in Bangladesh is
just one case-study of it. However, taking into consideration the U.S. academic
scholarships, quite a few criticisms have been identified. In the following these
identified criticisms shall be addressed in the context of Bangladesh.

4.1. Shaky origin

There has been huge criticism against the roman and common law roots of the
DPT in the US legal academia. This criticism stems from Huffman’s account that
the Roman law and common law had nothing resembling to the concept of

64 Constitution of Bangladesh, Article 18A.

65 Stockholm Declaration on Human Environment 1972 U.N. Doc. A/CONF.48/4 at 2-65, Principles 1
and 2.
66 Rio Declaration on Environment and Development 1992 UN Doc. A/CONF.151/26 (vol. I), 31 ILM
874 (1992), Principles 1, 4, 15, 16.
67 Human Rights & Peace for Bangladesh (n 39) 260.
68 Trust Act 1882, s 19.
69 Charitable and Religious Trust Act 1920.

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public trust and that Magna Carta had nothing to do with public rights.70 In
Bangladesh, the SCB have adopted the Saxion version of DPT by relying on the
principle enunciated in MC Mehta.71 In doing so, the SCB has ignored a south-
Asian root of the concept which has been even acknowledged in an International
Court of Justice Decision.72 Therefore, even if one day the court decides to
overturn its reliance of Saxion version of history, the Bangladeshi courts can still
rely on the South Asian narrative of the development of the doctrine. Moreover,
in Bangladesh the DPT has been developed as a constitutionally entrenched
doctrine.73 Ashraful Kamal J. observed that the DPT was incorporated into the
original constitution of Bangladesh in Article 21 of the Constitution.74 Later on,
with the entrenchment of Article 18A and expansion of the meaning of Article 32
has only given it a solid grounding. Therefore, such a critique of shady historical
background cannot stand in Bangladesh.

4.2. Inconsistent with rule of law

The DPT has also been alleged to be inconsistent with the concept of rule. The
reason behind such an allegation is the contention that DPT allows the courts to
“modify or abandon established common law principles in the name of present
day notions of the public interest and public rights”.75 Even if such an account is
correct in those jurisdictions where DPT has developed as a common law based
concept, such a contention does not hold true in Bangladesh because DPT has
been a constitutionally entrenched provision since the its inception.

4.3. Judiciary led governance

The most prominent criticism against the DPT is that it has given too much
power to the courts by incorporating a judiciary-based model of governance for
the public trust properties.76 Such a criticism stems from the traditional concept
of separation of powers with the belief that only the legislature and executive
possess the competency to deal with complex problems of environmental

70 See for details, James L Huffman, ‘Speaking Inconvenient Truths: A History of Public Trust
Doctrine’ (2007) 18 Duke Environmental Law and Policy Forum 1 (argues that the origin of DPT
is not based on true facts to the extent of preserving public rights).
71 In all four cases involving DPT in Bangladesh, the Court has actively relied on the principle of M
C Mehta (n 25).
72 See for details, Hungary v Slovakia (n 15).
73 See for details, Human Rights & Peace for Bangladesh v Bangladesh (n 39).
74 Ibid.
75 See for details, James L Huffman, ‘Background Principles and the Rule of Law: Fifteen years after
Lucas’ (2008) 35 Ecology Law Quarterly 1, 27.
76 James L. Huffman, ‘Why Liberating the Public Trust Doctrine is bad for the Public’ (2015) 45(2)
Environmental Law 337-377 (identified issues involving separation of powers, rule of law and
due process).

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concern.77 However, it has to be kept in mind that the nature and environment
has significantly deteriorated over the years although there has been consistent
efforts of the legislature and executive government. This has happened due to
the lobbying efforts of the big industries and the vulnerability of the government
to such lobbying efforts. However, in Bangladesh the question about supremacy
of any particular branch of the government does not arise because it is the
Constitution that is supreme.78 Therefore, all the branches of the government
shall function according to the Constitution of Bangladesh. Moreover, since
complete separation of powers is not feasible and non-existent even in the United
States, following the global practice, Bangladesh has also adopted the doctrine of
check and balance.79 The doctrine of check and balance requires the judiciary to
oversee the legality of the actions of legislature and the executive. In the name of
water-tight compartmentalization, the judges cannot bypass their constitutional
obligation towards public trust properties when there has been a manifest
violation of citizen’s right to enjoy public property. In this situation it is
imperative that the members of the public are given the opportunity and legal
standing to oversee the management of the public trust properties.

5. Future of public trust doctrine in Bangladesh

5.1. Importance of allowing the DPT to develop
The future of DPT in Bangladesh is really bright. It requires further academic
discussion as to how the doctrine will gradually evolve and what areas it will
touch. At the same time, it is important for us to let DPT develop itself. The
reason is very obvious. The DPT is causing no harm to the rule of law,
preservation of public trust properties although the potential development of the
DPT can fill up the vacuum in the legislative framework which is very essential
for the protection of various resources. Moreover, DPT plays at least two major
roles in protecting the public properties. First, in the absence of any legislation,
the DPT fills up the regulatory gap. Second, not only DPT fills up the legislative
vacuum, it also sets the normative standard for the legislature in providing
protection to the public trust property.
The prime reason why DPT should be let develop is that it fills the
vacuum in the legal framework to give protection to the natural resources and
ensures permanent sovereignty over natural resources. The multi-national
corporations are constantly trying to siege the communal value of the natural

77 Richard J. Lazarus, ‘Changing Conceptions of Property and Sovereignty in Natural Resources:

Questioning the Public Trust Doctrine’ (1986) 71 Iowa Law Review 631, 633; Barton H Thompson
Jr, ‘Judicial Takings’ (1990) 76 Virginia Law Review 1449.
78 Constitution of Bangladesh, Article 7.
79 Bangladesh v Aftab Uddin (2010) 30 BLD (AD) 1.

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resources80 and public properties. This is the same reason there is lack of positive
law addressing the concerns of natural resources.81 At the same time there are
other areas beyond natural resources where the judiciary needs tool to protect
the public properties which shall be discussed in the following. Moreover, the
DPT gives a normative standard and other tool to enact legislation on the area
that are not being regulated by the positive law. Therefore, it is wise for the
environment sensitive people to advocate for allowing the DPT to develop to
address the unnoticed public properties.

5.2. Ways DPT can develop

5.2.1. Transformation of DPT into a cost-benefit analysis
Incorporation of Article 18A in the Constitution of Bangladesh makes a bold
statement about the state’s emphasis on the environmental protection and
preservation. However, since it is assumable that the environmental
consciousness will regularly be in violent clash with our developmental goal, the
state shall move towards a balance of both interest transforming the entire DPT
into a cost-benefit analysis. It requires to be mentioned that over the last century,
the United States has also transformed into such a paradigm.82 In the sub-
continent, the Indian Judiciary has engaged in, respecting separation of power
theory, cost-benefit analysis between environmental concern and fundamental
rights of the citizens.83 Even in Bangladesh, the beginning of the journey to a cost-
benefit analysis test can be noted. In Human Rights and Peace for Bangladesh v
Bangladesh84 (‘Thermal Power Plant’, hereinafter), the Court had to make a
somewhat cost-benefit analysis between the need of the energy supply and
preservation of marine life. The court finally directed the government to look for
sites that will cause lesser or minimal harm. In Advocate Asaduzzaman Siddiqui and
others v Bangladesh85, the court acknowledged that since no nation can deny
economic development and economic development itself is an antithesis of
natural balance, all the developed nations are found to strike balance between
economic development and its cost upon environment. Keeping the damage at
the minimal Level has always been the policy everywhere. Thus, in future the

80 See for details, Hope M Babcock, ‘The Public Trust Doctrine: What a Tall Tale they Tell’ (2009) 61
South Carolina Law Review 393.
81 Mary Christina Wood, ‘Advancing the Sovereign Trust of Government to Safeguard the
Environment for Present and Future Generations (Part II): Instilling a Fiduciary Obligation in
Governance’ (2009) 39 Environmental Law 91, 103.
82 For details on the US approach to the situation see, Matthew Thor Kirsch, ‘Upholding the Public
Trust in State Constitutions’ (1997) 46 Duke Law Journal 1169.
83 Narmada Bachao Andolan v Union of India (2000) 10 SCC 664; Rural Litigation and Entitlement Kendra,
Dehradun and Others v State of U.P. and Others AIR 1985 SC 652; Karnataka Industrial Areas
Development Board v Sri C. Kenchappa and Others AIR 2006 SC 2038.
84 Human Rights and Peace for Bangladesh v Bangladesh (2012) Writ Petition No. 8282/2010.
85 Advocate Asaduzzaman Siddiqui and others v Bangladesh (2013) WP No.10937/2013, para 5.

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DPT will impose ban on state actions unless that passes the cost-benefit test.
However, taking into consideration the current developments so far, the
following threefold test can be theorized:
1. Has the government taken necessary measures to minimize the
negative impact on the public trust property to the maximum level?
2. Is there any other alternative place where the project can be shifted
for better preservation of the public trust property?
3. Whether the socio-economic impact of the project would supersede
the negative impacts on the public trust property?
5.2.2. Expansion of the public trust to new resources
The Constitution of Bangladesh in its Part II embodies the Fundamental
Principles of State Principles. The constitutional status of this part of the
constitution is as follows:
8(2). The principles set out in this Part shall be fundamental to the
governance of Bangladesh, shall be applied by the State in the making
of laws, shall be a guide to the interpretation of the Constitution and of
the other laws of Bangladesh, and shall form the basis of the work of the
State and of its citizens, but shall not be judicially enforceable.

Unlike the Indian Constitution86, the Bangladesh Constitution does make it

imperative for the judiciary to use part II provisions as a “guide to interpretation
of the Constitution”. The academic commentators are also of the same view that
using the leeway in “guide to interpretation”, the courts can at least develop
contents in enforcing a constitutional obligation on the part of the state.87 With
time the courts will try to widen the ambit of the DPT in Bangladesh. Thus it will
try to incorporate the contents from the explicit environmental protection article

86 Similar provision of the Indian Constitution can be found in Article 37 where it states: “The
provisions contained in this Part shall not be enforceable by any court, but the principles therein
laid down are nevertheless fundamental in the governance of the country and it shall be the duty
of the State to apply these principles in making laws.” While interpreting the Bangladesh
Constitution, I argue that looking at the relevant provision through the lens of Comparative
Constitutional Law of India is important since the Constituent Assembly of Bangladesh explicitly
debated on the model of Indian Constitution.
87 See for details, M Waheduzzaman, ‘Judicial Enforcement of Socio-Economic Rights in
Bangladesh: Theoretical aspects from comparative perspective’ in Mizanur Rahman (ed), Human
Rights and Environment (Dhaka: ELCOP, 2011) 57-80; M Waheduzzaman, ‘Economic, Social and
Cultural Rights under the Constitution: Critical Evaluation of Judicial Jurisprudence in
Bangladesh’ (2014) 14(1 & 2) Bangladesh Journal of Law; M Waheduzzaman, ‘Inclusion and
Enforcement of ESC Rights under State Constitutions: An Appraisal’ (2015) 3 Jahangirnagar
University Journal of Law; M Jashim Ali Chowdhury, ‘Does inconsistency with Fundamental
Principles of State Policy invalidate a Law?’ (2009) 5 BRAC University Journal 71-75; Md. Reajul
Hasan Shohag and ABM Asrafuzzaman, ‘Enforcing Socio-Economic Rights Judicially:
Experiments in Bangladesh, India and South Africa’ (2012) 3 Northern Uni. Journal of Law 87.

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of the Bangladesh Constitution and extend the protection to “bio-diversity,

wetlands, forests and wild life for the present and future citizens”.88 Moreover,
the DPT can also expand its purview to provide protection to national cultural
traditions, heritage of people of Bangladesh, local culture and tradition of tribes,
minor races, ethnic sects and communities.89 If we look into the whole discussion
from a bird’s eye view, it is clear that the DPT can turn to be epitome of negative
enforcement of entire part II of the constitution. That means if the state actions
are manifestly contrary to the objectives of the Part II provisions of the
Constitution, the Court shall impose ban on those state actions.

5.2.3. Developing privacy regulation

The Constitution of Bangladesh guarantees to right to privacy of the
correspondence and other means of communication of the citizens.90 However,
such a constitutional provision is inadequate to give protection to the citizens
from data leakage out of big data industries. Back in 2016, when the Government
of Bangladesh initiated a mandatory biometric sim registration, questions were
raised as to the legality of the system since it places tremendous trust on the
Telecommunication corporations. Thus when a writ petition was filed, the court
issued a rule as to the legality of the biometric registration.91 The government
took the position that the mobile phone operators were merely cross checking the
finger prints with the database of the National ID card.92 After a hearing on the
rule, the Court legalised the biometric sim registration. However, such a
legalisation brings into forefront the issue of government responsibility in
protecting the most delicate data of the individuals of the country. The legal
regime is totally silent in placing obligation on the part of the government. This
loophole creates a possibility that such a vacuum shall be addressed by judicial
innovation, i.e. considering the national database a public trust property. The
government shall be under the obligation to take all sorts of measure to protect
the database.

6. Conclusion
Although the DPT has been a part of Bangladeshi law since the beginning of the
constitutional framework of Bangladesh, it took time for the judiciary to
acknowledge it and use it as a tool to provide protection to the public properties.

88 Constitution of Bangladesh, Article 18A.

89 ibid, Article 23.
90 ibid, Article 43.
91 Ashutosh Sarkar and Muhammad Zahidul Islam, ‘HC questions legality: Issues rule on
authorities amid public fear of misuse of their personal data’ The Daily Star (Dhaka, 15 March
2016) <https://www.thedailystar.net/frontpage/hc...legality-791446> accessed 26 April 2020.
92 UNB, ‘No fingerprint stored during SIM re-registration: Tarana’ The Independent (Dhaka, 12 June
2016) <http://www.theindependentbd.com/post/47244> accessed 27 April 2020.

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Unlike many jurisdictions, the DPT has a constitutional root in Bangladesh and
has an autochthonous South Asian origin. Therefore, the popular criticisms
against the doctrine does not hold value at all. Moreover, in this article, the
proper meaning of the DPT and the scope of such doctrine has been elaborated
taking into consideration all the judicial decision by the SCB so far. It shows that
the DPT can be utilized in areas far beyond its current usage for protecting
natural resources and environmental elements.
This article theorized a threefold test for the judiciary to use it as a tool to
adjudicate matters related to natural resources or public properties at large. It is
expected that the judiciary will take the threefold test in judicial approval of
projects involving harm to the public trust properties. The government also
needs to run the threefold test before initiating any project involving public trust
properties. The legislature should consider the test to ensure none of their Acts
are violative of the constitutional mandate to protect public trust properties. This
Article also predicts that the judiciary shall extend the ambit of the DPT in
Bangladesh in view of the Part II provisions of the Constitution and in
developing protection for privacy issues in the absence of any legislative
framework. With concerted efforts from all three branches of the state
machinery, the public trust properties can be properly protected and preserved.

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