by Miss Farzana Khanom
A dispute may arise relating to child custody when a marriage breaks down and ends in divorce and also for various other reasons. 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, a dispute may arise between the provisions of the Guardian and Wards Act over the provision of Muslim personal law. In such a 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 particular law to which a minor is a subject. Section 17 (2) of The Guardian and Wards Act 1890 indicates that guardians are 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 the deceased 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 a child. It is not clear if it is also applicable for non-Muslims, but the higher courts have given rulings 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 applies to each and everyone irrespective of religion. Both Muslim and Hindu Laws of guardianship confer the father as the natural and legal guardian of a child. 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 means overall supervision of the child during his or her minority. Father (or his executor) or in his absence, the paternal grandfather being the natural guardian, is in charge of the minor. On the other hand, custody (hizanat) means physical possession of the child up to a certain age. Although the mother is not a natural guardian under Muslim Law, she has a right to the custody of her child until the child attains a specific age. Under all schools of Muslim Law, the general rule is that the mother is entitled to the custody of her child up to a certain age. Nature itself has given the mother the custody of her child’s embryo even before it comes into 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 female, the mother’s right to custody continues until the daughter reaches puberty (fifteen years). Again, a mother is entitled to custody even if she has been divorced by the husband or has become a widow provided, she remains unmarried. But the mother may lose her right to custody for the following reasons:
1. Where the divorced or the widowed mother, having custody of a child has remarried another husband.
2. Where the 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 the mother is unable to take proper care of her child. In the absence of the mother or where she is disqualified on account of the abovementioned grounds, the following female relation of the child is entitled to custody, in order of priority. As per Hindu Minority and Guardianship Act 1956,6(a), a mother is entitled to the custody of a child till the minor attains five years. Father is entitled to the custody of a child at two stages of a child’s minority. First 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 the absence of the mother and other female relations of the child. Second, 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 an adult. The father is entitled to have 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 a 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 interprets the word ‘unfit’ as given in section 19(b) of the Guardian and Wards Act 1890 in the light of the interest and welfare of the child. However, merely a second marriage by the 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 laws have been established in this context by the decisions and precedents of the higher courts. The moral of these cases being the welfare of the child and for this, if it needs to deviate from the age-rule of Hanafi, then it should do so. Thus, the deviation is permissible from the literal application of the age rule where child welfare is concerned. The welfare of the child is to be decided by the court, taking into consideration all of the facts and circumstances of the case. For example, as per classical Muslim law, a male child needs to be in the custody of the father once he has attained the age of seven years and until he becomes a major. If however the conduct of the father is reduced, and he lives an immoral life unable take care of the child, in which case, if the age-rule is followed then it would be unjust for the child as in such a situation he cannot grow up in a healthy environment, he might have an adverse effect overall. Again, in the case where both parents are unfit, the custody of a 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 Maryam, the court gave the custody of the minor son to the father unjustly, although it was clear that the welfare of the child was with the mother. Cases like the above should never be decided by rigid rule as it may destroy the whole life of the child and create an adverse effect on him. However, the court now giving importance to a 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 his mother. In Muhammad Abu Bakar Siddique S.M.A. Bakar & others (38 DLR (AD) 1986). The court’s ruling contradicted the traditional 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 the child’s welfare. The court also pointed out that the rationale for the departure from the 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. As such, it should be safe to say that the custody and guardianship of a child can lie both on father & mother equally depending on the best interest of the child and circumstances. Moreover, Article 27 of The Constitution of Bangladesh guarantees equality of men and women. Besides Article 28(2) of the Constitution of Bangladesh guarantees the 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 Rahmatullah 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.
In light of the above, it can be concluded that the jurisdiction regarding child custody is leaning towards the paramount welfare of the child as opposed to a fixed rule of laws, and this is a progressive development in the legal field of Bangladesh.