BANGLADESH: THE DOWRY PROHIBITION ACT OF 2018

by Jeremy D. Morley

 

The Dowry Prohibition Act of 2018 (the "Act") of Bangladesh prohibits the giving or receiving of a dowry.  The primary purpose of the Act is to end the custom whereby the bride’s family makes a financial payment to the groom’s family upon a marriage. The system is now seen to be a “social curse,” which frequently leads to disputes between the families and the harassment of innocent parties.

Section 3 of the Act criminalizes the act of directly or indirectly demanding a dowry, punishable by imprisonment of up to five years and/or a significant fine Section 4 of the Act makes it an offense to give or receive a dowry, or to abet such actions, which is likewise punishable by a fine or imprisonment. Section 2 provides that the parties who may be prosecuted for such actions may include the bride, the groom, their parents or legal guardians, “or any other person directly involved in the marriage” from the side of the bride or the groom.

The term “dowry” is defined as "money or any other asset" demanded by a party as the consideration for a marriage. However, it does not include a dower or mahr, in those cases in which the Muslim Personal Law (Shariat) applies to the parties. Nor does it apply to wedding gifts.

Section 5 of the Act provides that any agreement for giving or taking of a dowry is void.

In an attempt to limit the number of false cases and harassment of an innocent party, Section 6 of the Act criminalizes filing a false complaint or causing a false complaint to be filed.

Finally, the offenses committed under the Act are “cognizable, non-bailable, and compoundable.” This means that, as a “cognizable” offense, the police may arrest the accused without a warrant; as a “non-bailable” offense an accused does not have an automatic right to be released on bail; and as a “compoundable” offense the parties are allowed to settle the issue outside of court.

It should also be noted that there are additional remedies available in Bangladesh for dowry-related violence, including the “Nari-O-Shishu-Nirjatan-Daman-Ain, 2000” law, which provides severe penalties for any dowry-related offense which causes hurt, grievous hurt or death, and the Protection of Women from Domestic Violence Act, 2005, which defines "domestic violence" as any conduct which harasses, harms, injures, or endangers an aggrieved person, including any act done with a purpose to coerce an aggrieved person to meet any unlawful demand for a dowry.

 

Fee Award in Hague Abduction Convention Case

by Jeremy D. Morley

It is gratifying that, in its award of legal fees to my client, whose child was successfully returned from New York to Spain pursuant to the Hague Abduction Convention, the U.S. district court’s calculation was based in part on my status as “one of the leading experts” on the Convention, who has lectured, written and testified as an expert on the Hague Convention and international family law. Grano v. Martin, 2021 WL 350016 (S.D.N.Y., Aug. 9, 2021). 

The fee award was granted even though there was some evidence of abuse by the petitioner. The district court ruled that this case, which was almost entirely about psychological as opposed to physical abuse, and in which both sides were less than candid, did not rise to the level of those cases justifying complete denial of an award. Further, an award of at least some fees serves the statutory purpose of deterring future child abductions. 

The Second Circuit’s affirmance of the original return order (Grano v. Martin, 821 F. App'x 26 (2d Cir. 2020)) is an important application of the new U.S. interpretation of the key term of “habitual residence” that was established by the Supreme Court in Monasky v. Taglieri, 140 S. Ct. 719, 722 (2020).  

For a full discussion of the Monasky case, see Jeremy D. Morley, The Hague Abduction Convention: Practical issues and Procedures for Family Lawyers, (Third Edition, 2021, published by the American Bar Association), available here.

JAPANESE LAW ABOUT MARRIED NAMES

by Jeremy D Morley

 

Japanese law requires that married couples share the same surname, which can be that of either the husband or the wife. There appears to be no country other than Japan that requires married couples to adopt the same surname. The Supreme Court of Japan recently ruled that this requirement does not violate the Japanese Constitution.

Human Rights Watch has explained that, “The single-surname system is a legacy of Japan’s traditional patriarchal family system, which placed men at the top of the family hierarchy and viewed women as entering the man’s family upon marriage.” Although the post-World War II Constitution recognized equality between men and women, and abolished much of the traditional family system, the single-surname rule remained. The United Nations Committee on the Elimination of Discrimination against Women (CEDAW) has repeatedly called on the Japanese government to repeal it.

Article 750 of Japan’s Civil Code provides that, “a husband and wife shall adopt the surname of the husband or wife in accordance with that which is decided at the time of marriage.” Likewise, while Japan’s Family Register Act allows divorced spouses to adopt separate surnames, it contains no such provision in case of a marriage. Accordingly, a Japanese couple must decide on their shared last name in order to have their marriage registration accepted.

In recent years, as the Japanese government has encouraged women to play a greater role in Japanese society, there has been a growing demand that married couples should not be required to share the same surname. In 96% of cases, wives take their husband's surname, and it is asserted that this result contravenes the equal rights of husband and wife guaranteed in Article 24 of the Japanese Constitution.

In 2015, the Supreme Court, in a split ten-to-five decision, ruled that the law was not unconstitutional. The basis of the ruling was that, "As a way to refer to families, the bedrock of society, it is logical to have one surname." Several justices suggested at that time that the Japanese Diet should consider amending the law, and the issue was considered, but the ruling Liberal Democratic Party is sharply divided on this issue.

Somewhat surprisingly, the very same issue of the constitutionality of the surname law was heard again by the Supreme Court earlier this year, although the issues were framed a little differently. Even more surprising is that, although in June 2021 the Supreme Court again upheld the law, it did not simply repeat its prior ruling but it was split once again on the very issue that it had decided just a few years earlier. Some of the judges, albeit in the minority, endorsed the position that the Court had a broad right to make public policy decisions when deciding the constitutionality of Japanese statutes. It will be fascinating to see how that idea plays out in future cases.

It should also be noted that a slight liberalization about married names was put in place fairly recently. The maiden name of a Japanese national can now be placed in parenthetical form on a married persons Japanese passport, in addition to the married name.