Child Custody and Guardianship in Bangladesh: A Complete Legal Guide
Child Custody and Guardianship in Bangladesh are governed by laws that prioritize the best interests and welfare of the child. Courts determine custody and guardianship based on factors such as safety, care, education, and overall well-being. Understanding these legal principles helps parents protect their rights while ensuring a secure future for their children.
Child Custody and Guardianship Matter
In Bangladesh, child custody and guardianship are governed by a combination of religious personal laws (Sharia law for Muslims, Hindu law for Hindus) and the Guardians and Wards Act, 1890. While religious laws provide the initial framework, the Bangladeshi judiciary consistently prioritizes the Welfare of the Minor as the paramount consideration, often overriding traditional custodial rules if they do not serve the child’s best interests.
1. Legal Framework for Muslims
Under Islamic law (Hanafi school), there is a distinction between Custody (Hizanat) and Guardianship.
Custody (Hizanat)
This refers to the physical day-to-day care of the child. Generally, the mother is entitled to custody during the tender years.
- Sons: Until the age of 7.
- Daughters: Until they reach puberty.
Important Nuance: If the mother remarries a man who is not a prohibited relation to the child, she may lose her preferential right to custody. However, courts in Bangladesh (notably in the landmark Abu Bakar Siddique vs. A.B.S. Bakar case) have ruled that the mother can retain custody even after these ages or remarriage if it is proven essential for the child’s welfare.
Guardianship
The father is considered the natural and legal guardian of the child’s person and property. Even while the child is in the mother’s physical custody, the father remains the guardian and is responsible for the child’s financial maintenance and supervision.
2. The Guardians and Wards Act, 1890
This is the primary secular statute used by the Family Courts to settle disputes.
- Section 7: Empowers the court to appoint a guardian if it is satisfied that it is for the welfare of the minor.
- Section 17: Requires the court to consider the age, sex, religion of the minor, character of the proposed guardian, and the wishes of the minor (if old enough to form an intelligent preference).
3. Factors Determining Welfare of the Minor
The court does not look at the rights of the parents but at the rights of the child. Key factors include:
- The child’s safety and emotional well-being.
- The educational opportunities available with each parent.
- The moral atmosphere of the household.
- Existing bonds between the child and the parent.
4. Key Procedural Steps
If you are involved in a custody matter, the process typically follows this path:
1.Filing the Petition: Family Court.
The aggrieved parent files a suit under the Family Courts Ordinance, 1985, or an application under the Guardians
and Wards Act, 1890, in the district where the minor ordinarily resides.
2.Interim Custody: Temporary Relief.
The court may grant interim custody or visitation rights while the main case is pending to ensure the child maintains
a relationship with both parents.
3.Mediation/Conciliation: Mandatory Step.
Under the Family Courts Ordinance, the judge must attempt to settle the dispute through mediation between the
parents before proceeding to trial.
4.Trial and Evidence: Welfare Assessment.
If mediation fails, the court records evidence. The judge may interview the child in chambers to understand their
preference and assess the living conditions provided by each parent.
5. Maintenance
Regardless of who has custody, the father is legally obligated to provide for the child’s maintenance (food,
clothing, medical care, and education) until the sons reach adulthood and the daughters are married. Failure to
provide maintenance can lead to separate legal action under the Family Courts Ordinance.
Note: A mother’s right to custody is not an absolute right but a responsibility. If she is found to be leading an
immoral life or neglecting the child, the court can transfer custody to the father or another relative.