In Bangladesh, we follow Family Courts Ordinance, 1985 and Guardians and Wards Act, (GWA) 1890 while dealing with cases related to custody and guardianship of children. As per the legal provisions of law, a father is the legal and natural guardian of the children until they attain the age of majority under the general law of the land, namely the Majority Act 1875. But the mother has the right of custody up to the age of seven years in case of a male child, and up to the age of puberty in case of a female child. Various precedents have also been developed in this connection by the decisions of the higher courts; and the gist of such decisions is that the family court's power to determine the entitlement of a party to the custody of a child is not limited to mere observance of the 'age rule', the paramount consideration is to be the concept of the welfare and best interest of the minor child. Thus, deviation from the literal application of the age rule is permissible where a child's welfare is in question.
Under Islamic law, even if the mother has the physical custody of her children, father continues to be the guardian of the child as he is supposed to support the child financially. However, it should be noted that under the prevailing social setup where the father is not the sole financial contributor and the mother shares financial responsibility and in many cases is the main contributor of the financial needs of the family, then the privilege of 'guardianship of person and property' should vest in her as well (PLD 1963).
In the light of hadith literature available and the decisions of Prophet Mohammad (PBUH) on the cases brought before him on child custody, three principles have been laid down to be considered while deciding upon the custody of a child. Firstly, the mother possesses priority right of child custody so long as she does not remarry. Secondly, in a situation where both parents profess different religions, custody of the child should go to that parent who follows the religion of Islam and lastly when the child has gone past the years of minority (7 years) he will be given an option to choose between both parents. Once a child reaches a mature age, three considerations have to made, the religion of the parents, the choice of the child, best interest and welfare of the child.
Since its independence, the Bangladeshi judiciary has not only accepted the progressive decisions of the Pakistani judiciary but has also made its independent contribution in interpreting child custody rules by taking a more child rights-based approach, without blindly following the rigidity of the classical Hanafi law texts (Zohra Begum v Sh Latif Ahmed). Thus, in Bangladesh, a welcoming trend is discernible from the decisions of the higher judiciary, where the courts have favoured welfare considerations of the child over personal laws in interpreting the GWA. Even though not many of such progressive judgments have ventured into assessing whether welfare is ingrained within the broader framework of Sharia law, the courts have certainly taken a stance in favour of protecting the interests of the child in question.
The true spirit of the Zohra case has been reinforced by the Appellate Division in the well-celebrated case of Abu Baker Siddique v S M A Bakar 38 DLR. Rejecting the traditional age-sex rule of hizanat, the apex court in that case denied the father's entitlement to the custody of his eight-year-old son on considerations of the special needs of the child who was suffering from rare medical complications. Thus, offering a similar reasoning as the Zohra case, the Appellate Division held that: rules of hizanat or custody are seen to differ from school to school.... Hence this rule (a father's entitlement to the custody of a son who has attained 7 years) would not seem to have any claim to immutability so that it cannot be departed from, even if circumstances justified such departure...Thus deviation [from such a rule would seem permissible as the paramount consideration should be the child's welfare. So we should say that custody and guardianship of child can lie both on father &mother equally depending on the best interest of child and circumstances. Similar stances were taken in cases like Ayesha Khanum v Major Shabbir Ahmed, 46 DLR and Rahamatullah v Sabana Islam 54 DLR too where a widow was held not to lose her guardianship on the mere reason of her getting remarried for the protection of the minor.
The courts in our jurisdiction have been showing a tendency of leaning towards the welfare of the children whenever the issue of child custody comes in front of them. The vesting of child custody or guardianship on the mother is not beyond the tenets of personal law; the welfare of the child is what the paramount consideration is - be it of religion or of law. Hence, considering the need and welfare of the children (applying the best interest principle), a change in stance is very much possible and expected as well.
The Writer is an LLM student, North South University.