Children’s Rights
Children's Rights refer to the status of children in Bangladesh. Bangladesh has both constitutional provisions and other legal enactments that seek to ensure and protect children's rights and welfare.
The question of rights of children in Bangladesh has an international setting. The Declaration of the Rights of the Child, 1924 was adopted by the Fifth Assembly of the League of Nations where the rights of the child were first mentioned in an international document. The 1924 Declaration was followed by the Declaration of the Rights of the Child in 1959, which aimed at granting children a series of benefits, protections and priorities. The rights granted in the 1959 Declaration were later reaffirmed in the International Covenant on Economic, Social and Cultural Rights adopted by the UN General Assembly in 1966.
The Convention on the Rights of the Child (CRC) was adopted in 1989. Bangladesh is a signatory to the Convention. Bangladesh, however, has expressed reservation on Articles 21 and 14(1) of the CRC. The reservation on Article 21 which deals with adoption of a child has been specifically expressed in view of the fact that Muslim Law does not recognise the practice of adoption. Apart from this, Bangladesh no longer encourages inter-country adoption, a widespread practice that helped relocate the war-babies in the wake of independence.
Public opinion was against inter-country adoption, both on religious and ethical grounds. It soon became evident that in many cases babies were sold in the name of adoption. The next reservation made by Bangladesh was with regard to a child's right to freedom of thought, conscience and religion. While the state recognises such rights of a child, the prevailing social belief is that a child, being immature and incapable of dealing with the complexities of the issues in question, is hardly in a position to make a voluntary choice of its own in this regard. In the circumstances, a child is likely to act under pressure and influence, neither of which is conducive to its normal, natural and healthy growth.
The Constitution of Bangladesh has provisions relevant to children's rights in its directive principles of state policy [Articles 15, 17 and 25(1)], the fundamental rights [Articles 27, 28(1)(2)(3)(4), 31, 32, and 39(1)(2)], and the power of judicial review' [Articles 26(1)(2)]. Articles 27, 28 and 31 of the Constitution lay down the general principles regarding the protection of children from all forms of discrimination. The Constitution in these articles provide that all citizens being equal before the law and being entitled to equal protection, must be treated in accordance with law without any discrimination.
The other laws relating to the protection and welfare of children in Bangladesh are not contained in a single statute; rather they can be found scattered over numerous laws and statutes, such as:
1. The Penal Code of 1860 states in sections 82 and 83 that full criminal responsibility only commences after the age of 12, as it is construed that any person below that age has not attained sufficient maturity to understand the nature and consequences of his/her conduct. Section 90 provides that consent given by a person under the age of 12, shall not be regarded as consent in the strict sense of the term. However, in case of marital intercourse the offence of rape will not be held to have been committed if the wife is above 13 years of age. The kidnapping of a male under 14 years and a female of less than 16 years from lawful guardianship is an offence under section 361. The kidnapping or abduction of a person below the age of 10 is also an offence under section 364A.
2. The Divorce Act of 1869 which applies to Christians in Bangladesh deals with the custody, maintenance and education of minor children while their parents are engaged in law suits for separation, divorce or nullity.
3. The Contract Act of 1872 regards a minor as incompetent to enter into contracts. A minor’s contract is void under section 11 of the Act. However the guardian of a minor can enter into a contract of sale on behalf of the minor either out of legal necessity or for the benefit of the estate.
4. The Guardians and Wards Act of 1890 empowers a designated court to appoint a guardian of the minor’s person, property or both. The court, however, has to be satisfied that it is for the welfare of the minor, and in the circumstances cannot appoint anyone as guardian against the will of the minor.
5. The Criminal Procedure Code, 1898 directs, through a designated court, a person having sufficient means, who is neglecting or refusing to maintain his wife or child (whether legitimate or illegitimate), to provide a monthly allowance for their maintenance. Section 562 of the Code empowers the court to release certain first convicted offenders under the age of 21 on probation for good conduct instead of sentencing them to imprisonment.
6. The Mines Act of 1923 prohibits the employment of a person below 15 years of age in any mine. The Act provides regulations for the employment of a person above the age of 15 and below the age of 17.
7. The Child Marriage Restraint Act, 1929 (amended in 1984) prohibits the marriage between a male under 21 and female under 18 years of age, and imposes punishment on parents and guardians involved in child marriages.
8. The Partnership Act, 1932 under section 30 provides that a minor cannot be a partner in a firm, but s/he may, with the consent of all partners for the time being, be admitted to the benefits of partnership.
9. The Suppression of Immoral Traffic Act of 1933 lays down penal measures for forcing a girl under 18 years into prostitution. Abetment by anyone having either custody or the charge of the girl is also punishable. If any female below the age of 10 years is employed as a prostitute, she is to be considered a victim of willful intent and therefore, innocent of any offence.
10. The Children (Pledging of Labour) Act, 1933 penalises the parent, or the guardian in the event of their entering into an agreement to pledge the labour of a child or employing a child whose labour has been pledged.
11. The Employment of Children Act, 1938 prohibits the employment of children in any occupation in specified industries like transport, or the selling of goods within the limits of any port. Employers contravening the provisions of this Act are liable to be punished.
12. The Dissolution of Muslim Marriages Act of 1939 gives certain rights to a minor girl given in marriage to repudiate the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated.
13. The Maternity Benefit Act of 1939 directs employers to provide maternity benefit to women workers, and to regulate their employment for some time before and after child birth.
14. The Vagrancy Act, 1943 regulates powers conferred on various authorities to arrest and incarcerate people who are unemployed and homeless, and who live on the earnings of others through begging. For the purposes of this Act a child is a person under 14 years of age.
15. The Maternity Benefit (Tea Estate) Act, 1950 prohibits the employment of women in tea gardens or processing factories for a certain period before and after childbirth and, provides for maternity benefits during the time.
16. The Minimum Wages Ordinance, 1961 provides for the payment of minimum wages to all workers including juveniles, and prohibits employers from paying juveniles (below the age of 18 years) less than the minimum rates fixed by the Board set up under this Act. Any contravention is met with punishment.
17. The Shops and Establishment Act, 1965 prohibits the employment of children below the age of 12 years in shops and commercial establishments. The Act also regulates the working hours of persons below the age of 18 years.
18. The Factories Act, 1965 prohibits the employment of young persons below the age of 14 years in hazardous occupations, and lays down regulations for a secure and healthy working environment for a child or adolescent. The Act also provides for creche facilities for children under 6 years of age whose mothers are workers in a factory.
19. The Children’s Act of 1974 and Children’s Rules of 1976 are intended to protect the child’s best interests during all kinds of legal processes. They require the court to have regard for the age and character of the child and other related factors before passing any order under the Act. The Act provides for separate juvenile courts and forbids the joint trial of an adult and a child offender even where the offence has been jointly committed. The Act lays down measures for the care and protection of destitute and neglected children, including children under the care of parents/guardians who habitually neglect, abuse or ill-treat them.
20. The Repression Against Women and Children (Special Provision) Act, 1995 imposes severe punishments, including capital punishment, for various crimes committed against women and children. These include rape, trafficking, kidnapping, dowry deaths and so on.
21. Apart from the aforesaid formal laws the personal and religious laws regulating marriage, divorce, custody, guardianship, adoption and inheritance contain specific provisions on children. In this regard, the muslim family laws ordinance, 1961 and the Family Court Act, 1964 are special legislations, which provide enhanced rights to women and children.
Although the principle of non-discrimination as envisaged in the CRC is also embedded in the fundamental rights set out in the Bangladesh Constitution, the broader cultural and religious traditions work in unison to create situations which very often result in discrimination. Children suffer from two kinds of discrimination, one based on age and the other on gender. [Sumaiya Khair]
Bibliography Sumaiya Khair, Taking Children's Rights Seriously: Areas of Concern in Towards Gender Equity, Poverty, Rights and Participation, Report of the Regional Workshop, 15-18 February, Dhaka, 1998; UNICEF, Children of Bangladesh and Their Rights, Dhaka, 1997.
