By Anika Mardiah Chowdhury
A legal guardian is a person who takes all the responsibilities or duties that a parent would have for the benefit of the minor. Section 4(2) of The Guardian and Wards Act, 1890 defines the guardian as a person having the care of the person of a minor or his property or both his person and property. Please also note that as formal adoption is not allowed in Bangladesh, guardianship through the Court is the formal process for legalizing indirect adoption.
As per section 7(1) of the guardianship Act, the Court will appoint only the persons as legal guardians for the welfare of the minor. Section 3 of the Majority Act, 1875, every minor of whose person or property or both a guardian has been appointed or declared or will appoint by any court (other than a guardian for a suit within the meaning of Schedule I, Order XXXII of the Code of Civil Procedure, 1908) before the minor has attained the age of eighteen years. Every minor of whose property the superintendence has been given shall be assumed by any Court of Wards before the minor has attained that age shall or in any other enactment, be deemed to have attained his majority when he shall have completed his age of twenty-one years and not before notwithstanding anything contained in Succession Act, 1925.
The Bangladesh Guardian and Wards Act of 1890 applied to the citizens of Bangladesh in terms of guardianship provision. Under this Act, the Court is given the authority to appoint any person as guardian for the welfare of the minor. In terms of appointing a guardian, any party intending to be a guardian or any family member or any local official responsible for the minor’s welfare will file an Application in the Court to appoint the guardian, and the Court supervises the guardianship of a minor child until the child attains majority.
Duties of the Guardian: According to section 27 of the Guardian and Wards Act, 1890 Act, a guardian is bound to take care as a man of ordinary prudence and would deal with guardianship as if it were his own and subject to the provisions of Chapter III of the said Act, he may do all acts which are reasonable and proper for the realization, protection or benefit of the proper. It is to be mentioned that the Court may, from time to time, define and restrict its power. Also, a guardian appointed or declared by the Court may apply by petition to the Court for the opinion of the Court into any matter or advice or direction on any present question respecting the management or administration of the property of the minor. The guardian stating in good faith the facts in the petition and acting upon the opinion, advice, or direction given by the Court shall be deemed, so far as regards his responsibility, to have performed his duty as guardian in the subject matter of the application.
Court’s Jurisdiction in terms of Appointing Guardian: According to section 7 of the Guardian and Wards Act, 1890, if the Court is satisfied with the welfare of a minor, an order should be made for appointing a guardian, then the Court may declare any person as guardian of the minor Provided that no person other than a citizen of Bangladesh shall be appointed or declared to be a guardian of a minor who is a citizen of Bangladesh. A case to mention here, i.e., Md. Abu Bakar Siddique v. S.M.A Bakar 38 DLR 106 AD, The Appellate Division of the High Court Division, held that in terms of the guardianship, the Court to whom an application is made under the Guardian and Wards Act, 1890 must be satisfied that the welfare of the minor requires the appointment of a particular person as his guardian.
It is to be mentioned that when a guardian has been appointed by will or other instruments, an order under this section appointing or declaring another person to be the guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of the following Act. Section 17 of the following Act states some directions for the Court in terms of appointing a guardian. Firstly, in appointing a guardian, one must look for consistency with the law and if the circumstances are required for the welfare of the minor. Then, in terms 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 wishes, if any of the deceased parent and any existing or previous relations of the proposed guardian with the minor or his property. It is to be mentioned that the Court shall not appoint or declare any person to be a guardian against his will.
Trial and Procedure: The Family Court takes cognizance of the suit regarding guardianship of a minor, and the Family Courts Ordinance (FCO), 1985 was enacted for the establishment of Family Courts having exclusive jurisdiction to try suits relating to ‘guardianship and custody of children and as per section 24 of the Family Courts Ordinance (FCO), 1985 the Family Court is required to follow the procedure specified in the Guardian and Wards Act, 1890 in dealing with matters of guardianship of a minor.
As the Family Court Ordinance is applicable to all citizens of Bangladesh, a non-Muslim can also seek remedy as to the matter of the guardianship of a minor in the case of Nirmal Kanti Das vs. Sreemati Biva Rani47 DLR 514; the High Court Division held that a person professing any faith had got every right to bring suit for the purpose as contained in section 5 of the Family Courts Ordinance.
Exceptions where a Guardian will not be appointed by the Court in certain cases: Section 19 of the said Act states some exceptions for the Court in terms of appointing a guardian or declaring a guardian of a minor, they are who is a married female and whose husband is fit to be guardian of her person or subject to the provisions of this Act with respect to European British subjects or a minor whose father is living and is not in the opinion of the Court, unfit to be guardian of the person of the minor or a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian.
It is a general rule that upon filing such an application for guardianship, the Court shall review the character and capacity of the proposed guardian to take care of the child. On 2 August 2009, three human rights bodies Bangladesh Legal Aid and Services Trust (BLAST), Bangladesh Mahila Parishad, and Naripokkho jointly filed a writ petition seeking legal guardianship of mothers of their children and the High Court Division stated that a mother can be the sole legal guardian of her children. Also in the case of Rahmatullah vs Sahana Islam the High Court appointed a mother as guardian of the person and property of her minor son in preference to paternal grandmother and full paternal uncles.
Personal Laws regarding guardianship– in Muslim Law, the father is the legal guardian of a minor, and in the absence of the father, his executor is a natural guardian. It is to be mentioned that the minor’s brothers or sisters are not natural guardians unless so appointed by a court, also if the mother of the minor sells any property without court permission then such action shall be void. The father of the minor or parental grandfather may appoint the mother or brother or any other person as the legal guardian of the minor.
On the other hand, there is a significant gender imbalance when it comes to the guardianship of children under Hindu family law. In Hindu Law, a mother cannot be a legal guardian; rather, a father is the natural guardian of the minor if any person is appointed by the father or the Court appoints any person under the Guardians and Wards Act of 1890. Also, a mother can be deprived by the father by will in appointing a guardian. It is a gender-biased law and contradictory to the law of equality.
In addition, Christian law follows the Guardian and Wards Act of 1890 in matters relating to the guardianship of minors with respect to their person and property.
Lastly, it appears that there are sets of laws to deal with guardianship, and the Guardian and Wards Act of 1890, though made with the purpose of consolidating and amending all laws relating to guardian and ward, has no overriding effect nor makes them invalid to appoint or declare a guardian under any other laws in force. Thus, the Guardian and Wards Act of 1890 is not sufficient in dealing with guardianship. Rather, in Bangladesh, in terms of appointing a guardian, the doctrine of welfare, as mentioned in the following Abu Bakar Siddiqui case, is given paramount importance to the Court to determine the guardianship of the minor.
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Please note that in Bangladesh, there is no formal process to adopt a child, and should someone be planning to adopt a child, they have to proceed under the Guardian and Wards Act, 1890 to be appointed as a Guardian of the Child.
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