Navigating Child Custody in Bangladesh: 3 Legal Considerations
Navigating Laws in Support of Child Custody in Bangladesh
Introduction:
In Bangladesh, the rate of divorce has become very high as a result of which the custody of the child/children have become a vital factor for the parents of the child/children who are getting divorced. Custody of the child is influenced by religious beliefs, cultural norms, and evolving legal frameworks. Navigating this landscape involves understanding the interaction between Islamic law, national legislation and societal expectations. The laws governing child custody in Bangladesh are crucial legal matters which parents must consider and it is also essential for parents to understand what a child will suffer if the parents will lack to perform their responsibilities in fulfilling the child’s right.
Legal Considerations for Child Custody in Bangladesh:
Religious Aspect:
Child custody laws in Bangladesh are primarily governed by Muslim Personal Law for Muslims and Hindu Family Law for Hindus. Under both legal systems and according to the Majority Act of 1875, the father is the natural and legal guardian until the child reaches adulthood. Bangladesh follows a combination of Islamic and family laws when determining child custody. Islamic principles, such as the welfare of the child and the mother’s right to custody during early childhood, influence these laws.
Connection between Islamic Law and National Law:
The Guardians and Wards Act of 1890 and the Muslim Family Laws Ordinance of 1961 are key legislative instruments addressing child custody matters. The emphasis in Bangladesh is often placed on the child’s best interests and the mother’s ability to provide proper care. These laws prioritize maternal custody for young children, particularly newborns and infants, reflecting traditional societal norms. However, this presumption is rebuttable, and fathers can contest it based on factors like the mother’s fitness or capacity to provide care. The courts assess multiple factors in determining custody, including the child’s age, gender and emotional needs, the parents’ financial and emotional stability, and their ability to provide a nurturing environment. While the “best interests of the child” are a guiding principle, concerns regarding gender equality and potential maternal bias have been raised. If the father is deceased or unable to act as guardian, the mother may be appointed. If both parents are unable, the court can appoint a guardian.
Legal Framework:
- Muslim Family Laws Ordinance, 1961: This ordinance applies to Muslim families and outlines the rights and responsibilities of parents regarding child custody.In Muslim law, the guardianship of a minor (Wilayat-e nafs) and custody (Hizanat) are distinct yet sometimes considered synonymous. It establishes the principle of “Hizanah” (custody) for female children until they reach puberty, and for male children until they attain the age of seven. Guardianship involves the overall supervision of the child during their minority, typically the responsibility of the father (or his executor) or, in his absence, the paternal grandfather. While the mother is not considered a natural guardian under Muslim law, she has the right to custody of her child until a specified age. Generally, the mother is entitled to custody of her son until he is seven years old and of her daughter until she reaches puberty.
- Family Court Ordinance, 1985: This ordinance establishes family courts as the designated forum for resolving family disputes, including child custody matters. It empowers courts to consider the welfare of the child as the paramount concern when making custody decisions. Section 5 of the Family Court Ordinance of 1985 empowers it to address suits related to the guardianship and custody of children. While it is unclear if this applies to non-Muslims, higher court rulings indicate that the Family Court Ordinance does not infringe on the personal rights of litigants of any faith, suggesting that the Act is applicable to everyone regardless of religion.
- Guardian and Wards Act, 1890: This act applies to all families, regardless of religion. It outlines the legal process for appointing guardians for minors and provides guidelines for determining the best interests of the child. In some cases, a conflict may arise between the provisions of the Guardian and Wards Act and Muslim personal law. In such instances, the Guardian and Wards Act of 1890 will take precedence over Muslim personal law. The Act specifies that courts should be guided by the personal law applicable to the minor. According to Section 17(2) of the Guardian and Wards Act, the welfare of the minor is the primary consideration when appointing guardians. The court will consider the minor’s age, sex, and religion, the character and capacity of the proposed guardian, their kinship to the minor, the wishes of any deceased parent, and the existing or previous relationship between the guardian and the minor or their property. Additionally, if the minor is old enough to form an intelligent preference, the court may take this into account.
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Significant Case References:
Child custody disputes can be challenged in court by parents or other interested parties, such as grandparents or relatives. Custody may be awarded to one parent or shared between both. In an exceptional recent case named Imran Sharif vs. Eriko Nakano (2024), where the court granted custody of the three children to their mother Eriko. The father of the children Mr. Imran filed a revision petition in February 2024 then the High Court awarded custody of the eldest and youngest daughter to Eriko. However, considering the mental state and extreme willingness of the second daughter the custody of the second daughter has given to her father Mr. Imran Sharif till attainment of her majority. Another notable recent case which made history is Bangladesh Legal Aid and Services Trust and Ors vs. Bangladesh and Ors (2023), in which the court granted sole custody and legal guardianship to the mother.
Beyond Legal Provisions: Real Scenario
Beyond the boundaries of legal regulations and religious ideas, child custody realities frequently exist in Bangladesh. Custodial arrangements are heavily influenced by societal norms and expectations, especially in conservative and rural areas. Legal standards are not often followed when making custody decisions due to the substantial influence of community leaders and family elders. In addition, Bangladesh does not have a formalized system for alternative dispute resolution in custody cases, informal mediation and reconciliation efforts are sometimes employed which are not adequate to protect custodial interest of a child/children.
Conclusion:
The child custody laws in Bangladesh exhibit notable differences influenced by cultural, legal, and societal factors. Bangladesh draws inspiration from Islamic principles and cultural norms. Understanding the real scenario, it is crucial for policymakers, legal practitioners, and parents to ensure the best interests of the child are met in diverse cultural and legal contexts. As societal norms continue to evolve, it will contribute to the refinement and improvement of child custody laws in Bangladesh. Child custody laws play a crucial role in shaping the lives of children and their parents. Parents should always keep the best interests of the child in mind when making decisions related to custody and support. By doing so, parents can ensure that their children’s needs are met and that they have the best possible future. Ultimately, the well-being and happiness of the children should remain at the forefront of all custody decisions, regardless of any other matter.
References:
- Ahmed, Ishtiaque, “The Guardians & Wards Act,1890 and The Majority Act,1875”, 1st edition- August,2003, pg no.88, (91-93).
- Md. Azadur Rahman, “The Complexities of Child Custody in Bangladesh: Navigating Law, Religion, and Tradition”.
- LACSB (Legal & Consultancy Services Bangladesh), “Child Custody and Support in Bangladesh: Legal Considerations for Parents in Different Scenarios”.
- Imran Sharif vs. Eriko Nakano (2024), Online Legal Research Database Bangladesh – BDLEX
- Bangladesh Legal Aid and Services Trust and Ors vs. Bangladesh and Ors (2023), Manupatra – An Online Database for Legal Research
- BDLex, “Child Custody Laws: A Comparative Study between Bangladesh and Western Jurisdictions” (January 20, 2024)
Available at: https://www.linkedin.com/pulse/child-custody-laws-comparative-study-between-bangladesh-gml4c/. - Hand Book of Muslim Family laws, Obaidul Huq Chowdhury, 7th Edition 2021
- Faizunnesa Taru, “Is joint custody compatible with the Islamic law? A discussion on child custody in Bangladesh as well as different contemporary countries of the world”, (PDF) Is joint custody compatible with the Islamic law? A discussion on child custody in Bangladesh as well as different contemporary countries of the world (researchgate.net)
- Badhon’s Victory as a Mother: The First Woman to Win Legal Guardianship of Child in Bangladesh – Share-Net Bangladesh
- Bangladesh court hands custody of daughters to Japanese mother after lengthy legal battle (bdnews24.com)
- The Divorce Act, 1869 | CUSTODY OF CHILDREN (minlaw.gov.bd)
- Child Protection in Bangladesh: A legal Framework — lawyersclubbangladesh.com