Bangladesh • Front Page • Latest • Slide
Law on custody of the children :( Hizanat)
Zahid Ahmed Hero
The requirement of indispensable tolerance and mental understanding in matrimonial life is its basic foundation. The reasonable wear and tear and normal jars and shocks of ordinary married life has to be put up with in the larger interest of their own happiness and of the healthy, normal growth and development of their offspring, whom destiny has entrusted to their joint paternal care. But the couple, however, fell apart and a divorce took place which gives rise to the dispute as to the custody of the children (hizanat) which is usual fallout of a broken home.
Mainly Family Courts Ordinance, 1985 and Guardians and Wards Act, 1890 are very much relevant regarding the instant issue.
As per the legal provisions of law, a father is the legal and natural and guardian of his 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 or hizanat up to the age of 7 seven years in the case of a male child, and up to the age of puberty in the case of a female child. This right however is to be exercised under the supervision of the father, who is responsible for the maintenance of the children.
The right of custody or hizanat can be lost under certain circumstances, a mother who is otherwise entitled to the custody of a child, loses the right of custody-
If she remarries a stranger
If she goes and resides, during subsistence of the marriage, at a distance from the father’s place of residence
If she leads an immoral life
If she neglects to take proper care of the child.
There has also been developed various case-laws in this connection by the decisions and precedents of the Higher Courts, and the gist of such precedents is that the Family Court’s power to determine the entitlement of a party to the custody or hizanat is not limited to mere observance of age rule, the paramount consideration is to be the concept of the welfare and best interest of the minor child and the deviation from the literal application of age-rule is permissible so far as the paramount consideration should be the child’s welfare. And what would be the welfare of the minors child concerned, this decision has to be arrived by the Court after taking into consideration the entire facts and circumstances of each and particular case.
Before going into the aspect of non-Muslims, first of all we have scrutinize the jurisdiction of The Family Courts Ordinance, 1985 and in Section 5 of the Ordinance, it has been provided that Family Court shall have exclusive jurisdiction to entertain, try and dispose of any suit relating to guardianship and custody of the children, maintenance, dissolution of marriage, dower and so on.
Now question arises whether this said Ordinance is applicable to non-Muslims i.e. Hindu, Christian, Buddhists or not? Though in statutory Law, it is not that much clear, but The Higher Courts has given rulings and judgments in this regard in various precedents by case-laws that Family Courts Ordinance has not taken away any personal right of any litigant of any faith, rather Family Courts Ordinance is applicable to all citizens irrespective of their personal religion.
The Higher Court also says that A person professing any faith has got every right to bring suit for the purpose as contained in section 5 of the Family Courts Ordinance, 1985.A Hindu wife is not debarred from bringing a law suit for her maintenance against her husband under this Ordinance, so why not in any other matter like custody of the children. Because this law i.e the Ordinance has to be applied in conformity of the equality clause of our constitution.
LL.B(HON’S) 1ST CLASS
LL.M 1ST CLASS
Dhaka University
Advocate
Supreme Court of Bangladesh