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Passing of Hindu Marriage Dissolution Act in Bangladesh is the demand of time.
Adv.Zahid Ahmed Hero
Hindu marriage is treated as a sacrament or a sanskara. Under the Hindu Sastriya Law, the concept of marriage is more of religious than secular institution. According to Hindu religious mandate the marriage is called as the last of ten sacrament enjoined by Hindu religion for purifying the body. So marriage according to the Hindu law is a holy union for the performance of religious duties. But for the solemnization of a Hindu marriage some nuptial rites or religious rituals are absolutely essential for the validity of the Hindu marriage. Amongst the good number of rituals, two are considered as the most important ceremonies for the validity of a Hindu marriage, viz, (a) invocation before the sacred fire, and (b) taking of seven steps by the bridegroom and bride before the sacred fire. Only then the Hindu marriage assumes the sacred character and sacrament which constitutes a relationship of heart to heart, blood to blood, soul to soul, and bone to bone between husband and wife. So marriage according to Hindu Satra law creates an indissoluble tie between husband and wife which last beyond the grave.
Whenever the question of divorce or dissolution of a Hindu marriage arises, it becomes a very thorny question. Hindu law strictly does not allow divorce, so practically divorce is unknown to shasriya Hindu Law. Neither party can divorce the other unless divorce is allowed by long standing custom of some rare communities. But it will not be out of place to mention that, in the context of modern sophisticated life, it cannot be reasonably as well as practicably contemplated that a Hindu wife and a Hindu husband will continue a maladjusted conjugal life forever. Either Party may suffer from unsoundness of mind, one may treat other with cruelty, husband has deserted wife for uncertain period of time, etc there may have several causes for marital dissolution, so if it becomes an indissoluble union, then what is the solution? Since from Hindu point of view a marriage is regarded as an indissoluble union of husband and wife extending to next world.
In India, Hindu Marriage Act,1955 has been passed allowing divorce of Hindu Marriage on some grounds specified therein such as cruelty, unsoundness of mind, desertion, adultery, and this Act has brought some material and important changes in the orthodox Hindu Law relating to marriage, This Act also allowed separation by mutual consent. So, the Civil Court on the petition of either party in due process of law can pass a decree for judicial separation of a Hindu Marriage. Then why not such legislation has been passed here in Bangladesh? So, there is ardent necessity to enact a separate Legislation for the introduction of judicial separation in Hindu Marriage in Bangladesh keeping in mind the socio-economic context of the present society.
In our country, there is a legislation called Family Courts Ordinance, 1985 which deals with matter of marriage, divorce, custody, maintenance and so on.Though in the said ordinance, it has not been made that much clear whether this Ordinance is applicable to the citizens of all religious faith or not. But The Higher Court through establishing judicial precedence says that A person professing any faith has got every right to bring suit for the purpose as contained in section 5 of the Family Courts Ordinance,1985.A Hindu wife is not debarred from bringing a law suit for her maintenance against her husband under this Ordinance, so why not in any other matter like dissolution of marriage. Because this law i.e the Ordinance has to be applied in conformity with the equality clause of our constitution to maintain its constitutional validity.
So a separate and distinct legislation is highly required to be passed for the convenience of Hindu community as Hindu Marriage Dissolution Act like Muslim Marriage Dissolution Act 1939.
If India being a Hindu majority country can do that, then why not we are?
LL.B (HON’S) 1ST CLASS
LL.M 1ST CLASS
Dhaka University
Advocate , Supreme Court of Bangladesh