Child Custody in Bangladesh

by Miss Farzana Khanom

Dispute may arise relating to child custody when a marriage breaks down and ends in divorce and also for other issues. In Bangladesh, The Family Courts Ordinance 1985 and The Guardians and Ward Act 1890 are followed while dealing with cases relating to custody and guardianship. In some cases dispute may arise between the provisions of the Guardian and Wards Act over the provision of Muslim personal law in such case the Guardian and a  Wards Act 1890 will prevail over the Muslim personal law. The Guardian and Wards Act  states that the courts are to be guided by the personal law to which minor is a subject .Section 17 (2) of The Guardian and Wards Act 1890 says that guardians to be appointed in consideration of the welfare of the minor,the court shall have regard to the age,sex and religion of the minor;the  character and capacity of the proposed guardian and his nearness of kin to the minor; the wish of  any of a deceases parent  and any existing or previous relations of the proposed guardian with the minor or his property. Moreover, if the minor is old enough to form an intelligent preference the court may consider that preference too.

Section 5 of The Family Court Ordinance 1985 entitles it to try and dispose of the suit relating to guardianship and custody of child.It is not cleared in the Act if it is applicable for non- Muslims also, but the higher courts have given ruling and judgments in this context that the Family Court Ordinance has not taken any personal right of litigant of any faith. These precedents show that, the Act is Applicable to everyone irrespective of any religion.

Both Muslim and Hindu Laws of guardianship confer the father as the natural and legal guardian of a child again as per the Majority Act 1875, the father is the legal and natural guardian of the children until they attain the age of majority. Under Muslim law the guardianship of the minor person is called Wilayat-e nafs and the custody of the minor is called Hizanat. They are sometimes taken to mean the same thing. The guardianship of a child’s means overall supervision of the child during its minority. Father (or his executor) or in his absence, the paternal grandfather being the natural guardian are in charge of the minor person. On the other hand custody (hizanat) simply means a physical possession of the child up to a certain age. Although mother is not natural guardian under Muslim Law, but she has a right to the custody of her child till the child attains a specific age.: Under all school of Muslim Law, the general rule is that mother is entitled to the custody of her child up to a certain age .Nature itself has given to the mother the custody of her child’s embryo even before it comes in the worldly existence.

Where the child is a son, the mother is entitled to his custody till he attains the age of seven years. On the other hand, where the child is a daughter the mother’s right to custody continues till the daughter attains puberty (fifteen years). Again a mother is entitled to the custody  even if she has been divorced by the husband or has become widow provided she remains unmarried

But the mother may lose her right to custody of her child for following reasons:

1. Where the divorced or the widowed mother, having custody of a child has remarried another husband.

2. Where mother leads an immoral life or is of bad character or is otherwise found guilty of such conduct which is against the interest of the child.

3. Where mother is unable to take proper care of her child.

In the absence of mother or where she is disqualified on account of abovementioned grounds ,the following female relation of the child are entitled to the custody ,in order of priority.Again as per Hindu Minority and Guardianship Act 1956,6(a) , a mother is entitled to the custody of child  till the minor attains five years.Father is entitled to the custody of child at two stages of child’s minority, Firstly in respect of a minor boy under the age of seven years ,and a girl under puberty, the father is entitled to the custody of the child only in absence of mother and other female relations of the child.

Secondly in respect of a boy over the age of seven years and an unmarried girl over the age of puberty (15) the father is entitled to the custody of the child as a natural guardian till the child becomes adult

The father is entitled to have the custody and this right is available to him because he is regarded as a natural guardian under the Muslim personal law.The court has no power to appoint any other person to have the custody of child where the father is alive except where the father is found by the court to be unfit or unsuitable for the purpose.In deciding a father  that a father is disqualified and therefore unfit the court interpret  the word ‘unfit’ as given in section 19(b) of the Guardian and Wards Act,1890 in the light of interest and welfare of the child. However, merely a second marriage by father has not been regarded as a disqualification of the father for having the custody of a child by the first wife. Under the legislation, if the minor is too young or is a female, the courts are directed to give preference to the mother. In all cases the interest of the ward is paramount. Various case has been established in this context by the decisions and precedents of the higher courts.And the moral of this case was the welfare of the child and for this if it needs to deviate the age-rule of Hanafi, then it should be deviated.Thus deviation is permissible from the literal application of the age rule where child welfare is concerned. And in what the welfare of the child lies is to be decided by the court taking in consideration the whole fact and circumstances of the case.For example,  as per classical Muslim law a male child needs to be in custody of father after 7 years to till he becomes major ,but  the conduct of father is bad and he lives an immoral life and cannot take care of the child,in this case if the age-rule is followed then it would be unjust with the child,because in such a situation he won’t grow up in a healthy environment ,he might have a bad effect overall.Again in a case where both parents are unfit ,the custody of child may be given to grandparents or other prescribed relation to the child or make the child a ward of the state.

In the case of Ali Akber v Mst Kaniz Mayryam ,the court gave the custody of the minor son to the father unjustly though it was clear that the welfare of the child was with the mother. Cases likethis should never be decided by fixed rule as it may destroy the whole life of the child and make a bad effect on him . However, the court now giving importance on child’s overall welfare while giving judgments.  In Zohra Begum v. Latif Ahmed Munwar(1965(17) DLR(WP) and PLD 1965 (Lah) (695) case, the Court avoided the age-rule of Hanafi and gave the custody of minor son to its mother. Again in Muhammad Abu Bakar Siddiquev S.M.A. Bakar & others (38 DLR (AD) 1986)  .The court ‘s ruling contradicted the classical dictates of Hanafi law according to which the mother’s custody over a boy ends at seven. The court stated that “indeed, the principle of Islamic Law (in the instant case ,the rule of Hizanat or guardianship of a minor child as stated in the Hanafi school) has to be regarded , but  deviation therefrom would seem permissible as the paramount  consideration should be child’s welfare.”The court  also pointed out that rationale for the departure from classical position is justified as there is no clear and distinct statement of the Quran or Sunnah to rely upon and also because the jurists themselves never reached any consensus.. So it should be said that custody and guardianship of child can lie both on father &mother equally depending on the best interest of child and circumstances.

Moreover Article 27 of The Constitution of Bangladesh guarantees equality of man and women.Besides Article 28(2) of the Constitution of Bangladesh guarantees equal right of women and men in all spheres of state and public life.  Similar examples were established in  cases like Ayesha Khanum v Major Shabbir Ahmed, 46 DLR and Rahamatullah v Sabana Islam 54 DLR too where a widow was regarded  not to lose her guardianship on the mere reason of her getting remarried for the protection of the minor.

Thus the jurisdiction regarding child custody is leaning towards the paramount welfare of the child rather than fixed rule of laws and it is a progressive development in the legal field of Bangladesh.

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