The number of divorce is increasing in Bangladesh. In 2011, 2,864 notices were issued in Dhaka North City Corporation (DNCC). In 2016, the numbers of divorce notices issued in DNCC was 4,847 (Dhaka Tribune, May 14, 2017). From the preceding line it is evident that, in 2016, the number of divorce has increased at the rate of 59.08% in DNCC area in comparison to the number of divorce in 2011. Divorce marks the conclusion of one chapter of a life and commencement of a new one, so it is turning point of one life. To start a new journey, financial support is necessary.
At present in Bangladesh, married women can't claim share over marital property, to which they have contributed during the marriage and at the course of their marriage. After divorce, women have to leave the house where they live in their marital life. It is argued by the women's right advocates that they have no place to go except their parents' house. Throughout their marital life, many of them contribute to matrimonial property in different ways but present legal regime failed to appreciate the fact. As most of the women of Bangladesh are housewives, they often become dependent on their husbands. So it is ironical that they just don't get anything out from the matrimonial property which in fact is made out at the cost of their contribution also. In fact, in spite of having proper education and required skills to do job, many women sacrifice their career to take care of their children, husbands and in-laws. Our patriarchal society compels women to be housewives, and the mindset that women are the care giver and the husbands are the bread earner of the family make women dependent on their husbands. Being housewives, they have no earning source of their own. So in case of divorce, as they are deprived from the share of matrimonial property, they become helpless and dependent on their relatives. This is why many women opt to continue oppressive and abusive marriage.
Present legal regime of Bangladesh has no provision to recognise women's proprietary right over matrimonial property. Also, yet, no divorcee has filed any suit claiming share of the matrimonial property in any court of law in Bangladesh. This is why there is no judicial precedent over the issue except the renowned Hefzur Rahman v Shamsun Nahar Begum and another case. In this case, Justice Mohammad Gholam Rabbani, author judge of the judgment given by the High Court Division of the Supreme Court of Bangladesh, said that a woman who is divorced is entitled to house-hold stuff, utensils, goods, chattels, provision, convenience which is known, recognised, honorable, good, befitting a kindness (para 17). However, this judgment did not sustain in the Appellate Division (Hefzur Rahman v Shamsun Nahar Begum and another). It is to be noted that Appellate Division only rebutted the decision of the High Court Division so far it relates to ensure maintenance of a divorcee wife for indefinite time or till the remarriage of the wife. It didn't talk about Muslim divorcee women's share over the household substances.
However, given the disparity in their financial contributions to the acquisition of matrimonial properties, husbands may argue that they are the sole financial contributors to their acquired property. But they should acknowledge the contributions of their wives towards the family as a whole. So under the principle of constructive trust, their wives are entitled to get just and equitable share of the matrimonial property during the marriage or after divorce. As per constructive trust, if there is a joint venture established by a couple over a period of time it would just be unconscionable for one party to retain the exclusive benefit of the outgrowth of that joint venture. Rather the share of the matrimonial property should be dispersed as per the contributions made, both financially and non-financially, by the couple to that matrimonial property. As we have no legislation over the issue, our judiciary has the option to ensure justice for women considering the existence of constructive trust in matrimonial property and declare the just and equitable share of women over the same. Also our legislators should enact necessary law to recognise women share over the matrimonial property.
The writer is Research Officer (Law), Bangladesh Institute of Law and International Affairs (BILIA).