How to Get Child Custody in Bangladesh
Child custody disputes arise primarily from the breakdown of marriages, often following divorce. However, such disputes can also emerge due to other familial or social challenges. In Bangladesh, two principal laws govern child custody and guardianship disputes: The Family Courts Ordinance 1985 and The Guardians and Wards Act 1890. These laws provide the framework for determining custody based on the welfare of the child while considering religious and personal laws. This article delves into the legal principles, precedents, and processes associated with child custody in Bangladesh.
Legal Framework for Child Custody in Bangladesh
1. The Guardians and Wards Act 1890
This Act is pivotal in matters of child custody and guardianship. Section 17(2) emphasizes that courts must prioritize the welfare of the child. The following factors guide the court’s decision:
- Age, sex, and religion of the minor.
- Character and capacity of the proposed guardian.
- Wishes of the deceased parent(s).
- Relationship between the minor and the proposed guardian.
- If the minor is capable of forming an intelligent preference, their opinion is also considered.
2. The Family Courts Ordinance 1985
Section 5 of this Ordinance empowers Family Courts to address issues related to guardianship and custody. The Ordinance applies universally, irrespective of religion, based on judicial precedents that emphasize the overarching welfare of the child over strict personal law interpretations.
Muslim Personal Law on Custody
Guardianship (Wilayat-e-Nafs) vs. Custody (Hizanat)
In Islamic law, guardianship pertains to the supervision and management of the child’s overall welfare, while custody refers to the physical care of the child.
- Natural Guardians: Fathers are regarded as natural guardians, maintaining legal oversight until the child reaches adulthood.
- Custody Rights:
- A mother retains custody of a son until he turns seven and a daughter until she attains puberty (usually 15 years).
- However, custody rights may cease if the mother remarries, is deemed morally unfit, or cannot adequately care for the child.
In cases where both parents are deemed unfit, custody may be granted to other relatives or the state.
Hindu Personal Law on Custody
Under the Hindu Minority and Guardianship Act 1956, the mother has the primary right to custody of a minor child until the age of five. Thereafter, the father assumes custody. For boys over seven and unmarried girls beyond puberty, the father remains the natural guardian unless proven unfit.
Key Considerations for the Court
1. Welfare of the Child is Paramount
While personal laws provide guidelines, courts consistently emphasize the child’s best interests. In several cases, Bangladeshi courts have deviated from rigid rules to ensure a child’s welfare.
Notable Case Laws:
- Zohra Begum v. Latif Ahmed Munwar (1965): The court awarded custody of a minor son to the mother, prioritizing the child’s welfare over strict adherence to Hanafi principles.
- Muhammad Abu Bakar Siddique v. SMA Bakar & Others (38 DLR 1986): The court ruled that deviations from classical Islamic law are permissible when the child’s welfare demands it.
2. Role of Constitution
The Constitution of Bangladesh guarantees equality between men and women under Articles 27 and 28(2). This principle has been instrumental in challenging traditional biases in custody cases, ensuring gender equity.
Grounds for Custody Denial
Custody may be denied to a parent under the following circumstances:
- Immorality or bad character.
- Inability to care for the child.
- Negligence or abuse.
- Remarriage of the mother (under specific circumstances).
Process to Obtain Child Custody
1. Filing a Case in Family Court
A custody suit is initiated in the Family Court, typically located in the district where the minor resides.
2. Supporting Documents
Applicants must provide relevant documentation, including:
- Proof of financial stability.
- Evidence of the child’s current living conditions.
- Character references.
3. Court Proceedings
The court evaluates evidence and testimony from both parties, often seeking reports from welfare agencies or experts to determine the best arrangement for the child.
Child’s Preference
If a minor is mature enough to express an intelligent preference, the court may consider their wishes. This approach ensures that the child’s voice is heard in matters directly impacting their life.
Financial Responsibility
Regardless of custody arrangements, the non-custodial parent, usually the father, is obligated to provide financial support for the child. Failure to do so may result in legal actions.
Modern Developments in Custody Laws
The progressive shift in Bangladeshi courts highlights a growing emphasis on the child’s welfare rather than rigid adherence to traditional laws. This is evident in several landmark judgments.
Case Study: Rahmatullah v. Sabana Islam
The court granted custody to a widowed mother despite her remarriage, recognizing her ability to provide a nurturing environment for the child.
Frequently Asked Questions
1. Who gets child custody after divorce?
- Mothers are typically entitled to custody of sons until the age of seven and daughters until puberty. However, courts may deviate based on the child’s welfare.
2. Can a mother lose custody after remarriage?
- Yes, but only if the remarriage is deemed detrimental to the child’s welfare.
3. Is the father always the natural guardian?
- Yes, under most personal laws, fathers are considered natural guardians.
4. What happens if both parents are unfit?
- The court may grant custody to other relatives or appoint the child as a ward of the state.
5. What documents are required for a custody case?
- Proof of financial stability, current living conditions, and character references are commonly required.
6. Can a child’s preference influence the court’s decision?
- Yes, if the child is mature enough to form an intelligent preference.
7. What role does the Constitution play in custody disputes?
- Articles 27 and 28(2) of the Constitution ensure gender equity, often influencing custody rulings in favor of mothers when justified.
Hire TRW to get your child custody in Bangladesh
| Aspect | Key Details |
|---|---|
| Governing Laws | – Guardians and Wards Act 1890 – Family Courts Ordinance 1985 |
| Court Jurisdiction | Family Courts handle custody and guardianship cases, guided by the welfare of the child and applicable personal laws. |
| Key Custody Principles | – Welfare of the child is paramount. – Courts consider age, sex, religion, parental character, and child’s preference (if mature enough). |
| Custody under Muslim Law | – Mother’s custody: – Son: Until 7 years. – Daughter: Until puberty. – Custody may transfer to father or other relatives if the mother is unfit. |
| Custody under Hindu Law | – Mother: Custody until 5 years. – Father: Custody after 5 years or in the absence of the mother. |
| Role of the Father | Recognized as the natural guardian. Custody may be denied if the father is found unfit or incapable of caring for the child. |
| Grounds for Custody Denial | – Remarriage of the mother (under specific conditions). – Immorality, neglect, or inability to care for the child. – Abuse or unsafe environment for the child. |
| Modern Developments | Courts prioritize welfare over rigid personal law interpretations. Gender equity and constitutional rights often influence decisions. |
| Financial Responsibility | The non-custodial parent (typically the father) is obligated to provide financial support for the child. |
| Child’s Preference | Courts consider the preference of children mature enough to express an intelligent opinion. |
| Notable Case Precedents | – Zohra Begum v. Latif Ahmed Munwar: Custody awarded to mother despite classical Muslim law. – Rahmatullah v. Sabana Islam: Widow retained custody despite remarriage. |
| Custody Process | – File a case in Family Court. – Submit necessary documentation (financial proof, living conditions, references). – Court evaluates the best arrangement for the child’s welfare. |
| FAQs | – Mother retains custody until specific ages (son: 7; daughter: puberty). – Father remains the natural guardian. – Courts prioritize child welfare above strict personal laws. |
| Contact Information | TRW Law Firm – Contact: +8801708000660, +8801847220062, +8801708080817 – Emails: info@trfirm.com, info@trwbd.com, info@tahmidur.com – Offices: Dhaka (Mohakhali DOHS), Dubai (Rolex Building). |
This table provides a concise overview of the legal framework and processes involved in obtaining
Child custody in Bangladesh is a nuanced legal issue guided by both personal laws and overarching statutory frameworks. While fathers are traditionally viewed as natural guardians, the courts prioritize the child’s welfare above all else. This progressive approach reflects a commitment to the child’s holistic development and well-being.
For legal assistance and representation in child custody matters, please contact TRW Law Firm.
Contact Information
TRW Law Firm
- Contact Numbers:
+8801708000660
+8801847220062
+8801708080817 - Emails:
info@trfirm.com
info@trwbd.com
info@tahmidur.com - Global Law Firm Locations:
- Dhaka: House 410, Road 29, Mohakhali DOHS
- Dubai: Rolex Building, L-12 Sheikh Zayed Road.