Constitution-of-BD Explanation of Constitituin of Bangladesh

Constitution of BD

1. CONSTITUTIONS OF BANGLADESH LT CDR M ABDUR RASHID Staff Officer (Law) Commander BN Fleet

2. Constitution of Bangladesh " Disciplined force" means - ( i ) the army navy or air force. (ii) the police force. (iii) any other force declared by law to be a disciplined force within the meaning of this definition.

3. "Law" means any Act, ordinance, order rule, regulation, bye-law, notification or other legal instrument, and any custom or usage, having the force of law in Bangladesh. Constitution of Bangladesh

4.   Laws inconsistent with fundamental rights to be void: 1. All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution. 2. The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void. 3. Nothing in this article shall apply to any amendment of this Constitution made under article 142. Constitution of Bangladesh

5. Equality before law : All citizens are equal before law and are entitled to equal protection of law. Constitution of Bangladesh

6. Discrimination on grounds of religion, etc: 1. The State shall not discriminate against any citizen on grounds only of religion, race caste, sex or place of birth. 2. Women shall have equal rights with men in all spheres of the State and of public life. 3. No citizen shall, on grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution. 4. Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens. Constitution of Bangladesh

7. Safeguards as to arrest and detention: 1. No person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice. 2. Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.  Constitution of Bangladesh

8. Protection in respect of trial and punishment : 1. No person shall be convicted to any offence except for violation of al law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from that which might have been inflicted under the law in force at the time of the commission of the offence. 2. No person shall be prosecuted and punished for the same offence more than once. 3. Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law. 4. No person accused of any offence shall be compelled to be a witness against himself. 5. No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. 6. Nothing in clause (3) or clause (5) shall affect the operation of any existing law which prescribes any punishment or procedure for trial. Constitution of Bangladesh

9. Enforcement of fundamental rights : (1) The right to move the High Court Division in accordance with clause (I) of article 102 for the enforcement of the rights conferred by this Part of guaranteed. (2) Without prejudice to the powers of the High Court Division under article 102, Parliament may be law empower any other court, within the local limits of its jurisdiction, to exercise all or any of those powers. Constitution of Bangladesh

10. The President:   1. There shall be a President of Bangladesh who shall be elected by members of Parliament in accordance with law.   2. The President shall as Head of State, take precedence over all other persons in the State, and shall exercise the powers and perform the duties conferred and imposed on him by this Constitution and by any other law.   3. In the exercise of all his functions, save only that of appointing the Prime Minister pursuant to clause (3) of article 56 and the Chief Justice pursuant to clause (1) of article 95, the President shall act in accordance with the advice of the Prime Minister; Provided that the question whether any, and if so what, advice has been tendered by the Prime Minister to the President shall not be enquired into in any court. Constitution of Bangladesh

11.   A person shall not be qualified for election as President if he- a. is less than thirty-five years of age; or b. is not qualified for election a member of Parliament; or c. has been removed from the office of President by impeachment under this Constitution.   5. The Prime Minister shall keep the President informed on matters of domestic and foreign policy, and submit for the consideration of the Cabinet any matter which the President may request him to refer to it. Constitution of Bangladesh

12. War:   1. War shall not be declared and the Republic shall not participate in any war except with the assent of Parliament. Constitution of Bangladesh

13. Ordinance making power:   1. At any time when Parliament stands dissolved or is not in session , if the President is satisfied that circumstances exist which render immediate action necessary, he may make and promulgate such Ordinances as the circumstances appear to him to require, and any Ordinance so made shall, as from its promulgation have the like force of law as an Act of Parliament: Provided that no Ordinance under this clause shall make any provision-. Constitution of Bangladesh

14. which could not lawfully be made under this Constitution by Act of Parliament. for altering or repealing any provision of this Constitution; or c. ontinuing in force any provision of an Ordinance previously made. Constitution of Bangladesh

15. 2. An Ordinance made under clause (1) shall be laid before Parliament at its first meeting following the promulgation of the Ordinance and shall, unless it is earlier repealed, cease to have effect at the expiration of thirty days after it is so laid or, if a resolution disapproving of the Ordinance is passed by Parliament before such expiration, upon the passing of the resolution. Constitution of Bangladesh

16. 3. At any time when Parliament stands dissolved the President may, if he is satisfied that circumstances exist which render such action necessary, make and promulgate an Ordinance authorising expenditure from the Consolidated Fund, whether the expenditure is charged by the Constitution upon that fund or not, and any Ordinance so made shall, as from its promulgation, have the like force of law as an Act of Parliament. Constitution of Bangladesh

17. 4. Every Ordinance promulgated under clause (3) shall be laid before Parliament as soon as may be, and the provisions for articles 87, 89 and 90 shall, with necessary adaptations, be complied with in respect thereof within thirty days of the reconstitution of Parliament. Constitution of Bangladesh

18. Proclamation of Emergency:   1. If the President is satisfied that a grave emergency exists in which the security or economic life of Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance, he may issue a Proclamation of Emergency: Provided that such Proclamation shall require for its validity the prior counter signature of the Prime Minister.   a. A Proclamation of Emergency-   b. may be revoked by a subsequent Proclamation;   c. shall be laid before Parliament; Constitution of Bangladesh

19. 2. shall cease to operate at the expiration of one hundred and twenty days, unless before the expiration of that period it has been approved by a resolution of Parliament: Provided that if any such Proclamation is issued at a time when Parliament stands dissolved or the dissolution of Parliament takes place during the period of one hundred and twenty days referred to in sub-clause Constitution of Bangladesh

20. 3. the Proclamation shall cease to operate at the expiration of thirty days from the date on which Parliament first meets after its re-constitution, unless before that expiration of the meets after its re-constitution, unless before that expiration of the said period of thirty days a resolution approving the Proclamation has been passed by Parliament. Constitution of Bangladesh

21. 4. A Proclamation of Emergency declaring that the security of Bangladesh, or any part thereof, is threatened by war or external aggression or by internal disturbance may be made before the actual occurrence of war or any such aggression or disturbance if the President is satisfied that there is imminent danger thereof. Constitution of Bangladesh

22. Suspension of provisions of certain articles during emergencies : While a Proclamation of Emergency is in operation, nothing in articles 36, 37, 38, 39, 40 and 42 shall restrict the power of the State to make any law or to take any executive action which the State would, but for the provisions contained in Part III of this Constitution , be competent to make or to take, but any law so made shall, to the extent of the incompetence, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect. Constitution of Bangladesh

23. Definition of Marriage : Let us first examine some of the various definitions of a Muslim marriage and then to see which of them is most suitable:   HEDAYA: ‘ Nikah in its primitive sense, means carnal con-Junction. Some have said that it signifies conjunction generally. In the language of the law it implies a particular contract used for the purpose of legalizing generation.’ AMEER ALI: “Marriage is an institution ordained for the protection of society, and in order that human beings may guard themselves from foulness and un-chastity.”   JUSTICE MAHMOOD : “Marriage among Muhammadans is not a sacrament, but purely a civil contract.” Family Laws of Bangladesh

24. M.U.S. JUNG: Marriage though essentially a contract is also a devotional act, its objects are the right of enjoyment, procreation of children and the regulation of social life in the interest of the society.   ABDUR RAHMAN: “The Muhammadan jurists regard the institution of marriage as partaking both of the nature of ibadat or devotional acts and muamlat or dealings among men.”   Among all the above definitions, Abdur Rahman’s definition is the most balanced one. By using the two ingenious words “ ibadat ” and “ muamlat ”, he has summarized the whole concept of Muslim marriage in one sentence. Let us approve of this definition, and proceed to see why Muslim marriage is not purely a civil contract, as Mahmood , J, emphasised , or as to why it is not solely a way to procreate children. Family Laws of Bangladesh

25. Formalities of a valid marriage : Marriage may be constituted without any ceremonial. There are no special rit3es, no officiants , no irksome formalities. Nevertheless, following conditions are necessary:   a. Offer on the part of one party to the marriage.   b. Acceptance by the other party.   c. Presence of two witnesses where the parties are Hanafis ; no witnesses are a. required if parties are Shias .   d. The words with which the marriage is contracted must be clear and unambiguous.   e. The proposal and acceptance must both be expressed in one and the same meeting. Family Laws of Bangladesh

26. Marriages may be either   a. Valid b. Void, and c. Irregular   1. A valid marriage is one which conforms in all respects with the legal requirements, and there should be no prohibition affecting the parties. Classification of marriages

27. 1. When all the legal conditions are fulfilled, the marriage is called Sahih or ‘corrects’, that is, a marriage in which no prohibitions affect the parties. Prohibitions may be either permanent or temporary. If they are permanent, the marriage is void, if temporary, it is irregular. Classification of marriages

28. 2. Void: A marriage which has no legal results is termed as void. A marriage forbidden by the rules of blood relationship, affinity or fosterage is void. Similarly, a marriage with the wife of another, or remarriage with a divorced wife, without ob serving the strict rules set for this occasion, is void. Classification of marriages

29. 3. Irregular Marriage: A Marriage contracted by parties suffering from relative prohibitory or directory incapacity is irregular both according to Baillie and Ameer Ali. An irregular marriage is one which is not unlawful itself; it un lawful for ‘‘some other things’’. As where the prohibition is temporary or relative or prohibition springs from an accidental cause or circumstances and can be made valid e.g. absence of witnesses. Classification of marriages

30. The following are irregular marriages:   a. A marriage without witnesses; b. A marriage with a woman undergoing iddat ; (Waiting period to remarry for divorce -3 month, for death– 04 month 10 days). c. A marriage with a fifth wife by a person having four wives. (by divorcing any wife) Classification of marriages

31. d. A marriage prohibited by reason of difference of religion;( if the woman changes in to a kitabia as Christian or Jew the marriage is valid but if into a fire worshipper/ idolater the marriage is invalid). e. A marriage by unlawful conjunction i,e a man may not have at the same time two wives who are so related to each other by consanguinity, affinity or forestage e.g. two sister or aunt or niece but by divorcing any wife it becomes legal. Classification of marriages

32. Restitution of conjugal rights : The leading case on this point is Munshee Buzloor Ruheem v. Shum- soonissa Begum. It was observed in this case that if either paerty to a marrage contract has withdrawn from the society of the other without any valid reason, or has neglected to perform the marital obligations, the aggrieved party may bring a suit in a civil court for the restitution of conjugal rights. Thus, where a wife refuses to live with her husband,, Classification of marriages

33. the husband is entitled to sue for restitution of conjugal rights. This right, however, is not absolute. There are a number of valid defences available to a wife in a suit for restitution of conjugal rights. She may prove that:   1. It is unsafe for her to live with her husband because of his cruelty; or 2. The husband grossly neglects the performance of the marital obligations; or 3. The marriage is irregular; or the husband has been made an outcaste by his Community. Classification of marriages

34.   Definitions of “ Mahr ”:   BAILLIE: “……the property which is incumbent on a husband, either by reason of its being named in the contract of marriage, or by virtue of the contract itself….. Dower is not the exchange or consideration given by the man to the woman for entering into the contract; but an effect to the contract imposed by the law on the husband as a token of respect for its subject, the woman”. Classification of marriages

35. ABDUR RAHMIM (On the basis of Hedays ): “It is either a sum of money or other form of property to which the wife becomes entitled by marriage…… It is an obligation imposed by law on the husband as a mark of respect for the wife…... (This definition has been adopted by Mulla also). TYABJI: “ Mahr or dower is a sum that becomes payable by the husband to the wife on marriage, either by agreement between the parties, or by operation of law.”   Classification of marriages

36. Kinds of dower :   Broadly, there are two kinds of dower: ( i ) specified, and (ii) unspecified. But the specified dower has been further divided into (a) Prompt, and (b) Deferred. Prompt and Deferred dower. Prompt dower is payable on demand, and deferred dower is payable on the dissolution of marriage by death or divorce. The prompt portion of the dower may be realized by the wife at any time before or after consummation, but the deferred dower could not be so demanded. Classification of marriages

37. The main principles of maintenance may be recounted thus   a person is entitled to maintain if he has no property, is related to the obligor within prohibited degrees, or is the wife or child, and (iii) The obligor is in position to support him. Though a person is under a greater liability to maintain his wife, minor sons, unmarried daughters, mother, father, father’s father and father’s mother, this obligation is also hedged by the factor of their economic condition. Classification of marriages

38. Persons entitled to maintenance :   1. Wife 2. Descendants, 3. Ascendants, and 4. Other relations Classification of marriages

39. Maintenance of Wife : It is incumbent on a husband to maintain his wife, whether she be Muslim or kitabiyyah , poor or rich, enjoyed or un enjoyed, young or old. However, if the wife is too young for matrimonial intercourse, she has no right to maintenance from her husband, whether she is living in his house or with her parents. Classification of marriages

40. To summaries, the wife loses her right to maintenance in the following circumstances :   a. She is minor, incapable of consummation. b. Refuses free access to the husband at all reasonable times. c. is disobedient. d. Never visited his house. e. Refuses to live with him in the conjugal home, without a reasonable excuse. f. Abandons conjugal home without any reasonable ground. g. Deserts him. h. Elopes with another person Classification of marriages

41. The exceptions to the ground of refusal to free access are his cruelty and keeping a concubine by him. Similarly, there are exceptions to the ground of want of consummation-her pre-puberty age, her illness, old age, his inability to consummate. In these exceptions, she retains right to maintenance. Classification of marriages

42. Talak In its literal sense this Arabic word means “taking off any tie or restraint”, and in law it signifies the dissolution of marriage. Classification of marriages

43. Talak In its literal sense this Arabic word means “taking off any tie or restraint”, and in law it signifies the dissolution of marriage. Classification of marriages

44. Guardianship & Custody of Children Concept of guardianship in Islam : In pre-Islamic Arabia, the properties of minors were looked after by guardians taken from among the members of the family. In the absence of any code of conduct, misappropriation and embezzlement where rampant. This necessitated the introduction of most stringent rules for the protection of minors in the Islamic legal system. Family Laws of Bangladesh

45. Appointment of guardian : Under Muslim law, no formal appointment by any authority is necessary for a competent person to act as guardian. The only consideration is, whether he is competent and entitled to be a guardian.   According to Muslim la, a person who has attained the age of 18 years, and who is sane, can act as guardian. Family Laws of Bangladesh

46. In appointing the guardian, the Court shall consider:   ( i ) The welfare of the minor, (ii) Age, sex and religion of the minor, (iii) Character and capacity of the proposed guardian, and his nearness of kin to the minor, (iv) The wishes, if any, of a deceased parent, (v) Any existing or previous relations of the proposed guardian with the minor or his property, and (vi) Preference of the minor, if he is old enough to form an intelligent preference. Family Laws of Bangladesh

47. Kinds of guardianship : Muslim law recognizes three kinds of guardianship, namely:   1. Guardianship of person. 2. Guardianship of property. 3. Guardianship in marriage. Family Laws of Bangladesh

48. Definitions : DURRUL MUKHTAR: “Will is an assignment of property to take effect after one’s death.”   HEDAYA: “ Wasiyat means an endowment with the property of anything after death-as if one person should say to another, ‘give this article of mine, after my death, to a particular person.” TYABJI: “The legal declaration of the intentions of a Muslim with respect to his property, which he desires to be carried into effect after his death. Will ( Wasiyat )

49. Who can make wills : A Muslim who is of sound mind and is major can make a will. Although according to Muslim law majority is dependent upon the age of puberty, which is supposed to be reached at 15 years of age, yet the Indian Majority Act recognizes only the age of 18 years as a requisite for the purposes of will.   But if a guardian of his person or property has been appointed by Court or his property has come in charge of the court of Wards, he will attain majority on completion of 21 years. Will ( Wasiyat )

50. PRELIMINARY Short title and extent . This Act may be called the Hindu Marriage Act, 1955. 2. It extends to the whole of India except the State of Jammu and Kashmir and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories. The Hindu Marriage Act, 1955

51. Application of Act . (1) This Act applies- (a) to any person who is a Hindu by religion in any of its form of development, including a Virashaiva , a Lingayat or a follower of the brahmo , Prathana or Arya Samaj ; (b) to any person who is a Buddhist, jaina or Sikh by religion; and (c) to any other person domiciled in the territories which this Act extends who is not a Muslim, Christian, Paris or Jew by religion, unless it is proved that any such person would not have been governed by the Hindus law or by any custom or usage as part of that law in respect of any of the matters with herein if this Act had not been passed. The Hindu Marriage Act, 1955

52. Explanation: The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case the may be:   Any child legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion; (b) Any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and The Hindu Marriage Act, 1955

53. (c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion . (2) Notwithstanding anything contained in sub-section (1). Nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Art, 366 of the constitution unless the central Government, by notification in the official Gazette, otherwise directs. (3) The expression “ Hundu ” in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section. The Hindu Marriage Act, 1955

54. Conditions for a Hindu marriage . A marriage may be solemnized between any two Hindus. If the following conditions are fulfilled, namely- i . neither party has a spouse at the time of the marriage; ii. at the time of the marriage, neither party –is incapable of giving a valid consent to it in consequence of unsoundness of mind; or though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or has been subject to recurrent attacks of insanity. The Hindu Marriage Act, 1955

55. Ceremonies for a Hindu marriage . – (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. The Hindu Marriage Act, 1955

56. Registration of Hindu marriage . – (1) For the purpose of facilitating the proof of Hindu marriage, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose. The Hindu Marriage Act, 1955

57. Divorce (1) Any marriage solemnized, whether before or after the commencement of this Act, may , on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground gthat the other party-3 ( i ) Has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or ( i -a) Has, after the solmenisation of the marriage, treated the petitioner with cruelty; or The Hindu Marriage Act, 1955

58. ( i -b) Has deserted the petitioner for a continuous period of not less that two years immediately preceding the presentation of the petition; or] (ii) Has ceased to be a Hindu by converstion to another religion; or (iii) Has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. The Hindu Marriage Act, 1955

59. QUESTION

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