The legal relationship, created when a person or institution is named in a will or assigned by the court to take care of minor children and incompetent adults is called guardianship. Section 4(2) of The Guardian and Wards Act 1890 states, “Guardian” means a person having the care of the person of a minor or of his property, or both of his person and property. In the process of appointing a guardian of a child, either the party intending to be the guardian or another family member, a close friend or a local official responsible for the minor’s welfare will file a petition in the court to appoint the guardian. The court supervises the guardianship of a minor child until the child attains majority. But when someone is named in a will as the guardian of a minor child in occurrence of the death of the parent, the judge takes it as a preference to the requests of all those who are not in the will. The property of the ward must not be used by the guardians for their own benefits, and the guardians in some cases are required to account to the court on periodic basis. In some cases, the guardian may get repayment for attorney fees related to the guardianship.
The Guardian and Wards Act, 1890 applicable to the citizens of Bangladesh nearly resembles the guardianship provision of traditional Muslim law. The Act introduced one innovation that the court is given the authority to appoint any person as guardian for the welfare of the minor. While implementing the welfare doctrine of the minor the highest court has disregarded the basic rules of Islamic law and Hindu law in certain cases. In the case of Farhana Azad vs Samudra Ejazul Haque case the High Court gave custody of two children aged 8 and 6 years respectively to their mother denying the authority of their father (60 DLR). In the case of Rahmatullah vs Sahana Islam the High Court appointed a mother as guardian of the person and property of her minor son in preference to paternal grandmother and full paternal uncles. In another case the High Court said where minor has changed his or her religion different from that of his or her parents, the parents are declared unfit for guardianship of the apostate minor (38 DLR).
Concern for the welfare of the minor/ward guides the courts in the appointment of a guardian to the person or property of a minor under the Guardian and Wards Act 1890. This is evident from the language of sections 7 and 17. Simultaneously, section 19(b) restricts the court to exercise its power to appoint anyone else as the guardian, unless it finds the father or mother to be particularly unfit to be a guardian.
In India, the Hindu Minority and Guardianships Act was passed in1956. The importance placed on the welfare principle is the point of difference between the Guardianship and Wards Act and the Hindu Minority and Guardianship Act. Under the Guardian and Wards Act, parental authority replaces the welfare principle, while under the Hindu Minority and Guardianship Act, the welfare principle is of highest consideration in determinig guardianship.
In Bangladesh, the court does not give importance to the re-marriage of the husband and does not consider it injurious to appoint him as the custodian of the child, even though the busyness of a father is irrelevant whereas this point is strong enough against the mother of the custody of her child. Due to poor economic condition, sometimes the mother is being deprived of her right to custody of her child. The point that she is not financially sound enough to support the child is one of the common excuses for denying her the right. The Courts do not directs the father to provide sufficient expenses of the child while it is in the custody of the mother in accordance with the living standard.
In this heap of problems, formulation of a secular Uniform Family Code is an immense need of time. The progressive quarters of the society firmly believes that Bangladesh is under an obligation to maintain the principle of equality under the Constitution and also in accordance to international human rights mechanisms.
Artcles 10, 19, 27, 28, and 29 state that there is no such restriction in the constitution rather it encourages the Govt. to remove social and economic inequalities among the citizens. In fact, free democratic environment is the prerequisite for the reforms of Hindu laws.
In Bangladesh, Christians are governed by century old civil laws. These laws are not enough to provide women equal rights. The scenario is even worse in the case of Catholic women who are morally bound by the Law of the Catholic Church. But it is high time that the laws are brought in conformance with the changing world.
Article 28(1) of the Constitution of Bangladesh pledges not to discriminate on the basis of ground of gender. As Bangladesh is a ratifying country of Convention on Elimination of Discrimination Against Women (CEDAW)-1979 and it has no reservation towards Article 15, Bangladesh is bound to secure equality of women in all spheres of public as well as personal life. The mother is the best person to avail the custodial right of an infant, her right is not absolute. Her right is rather conditional, under control and superintedence of the father. The courts have been resorting to the welfare doctrine to determine the custody of the child; but the convenience of this doctrine mostly goes to the father.
The government should enact enough laws to abolish discrimination regarding guardianship and custody of children between father and mother and take proper measures to ensure preferential rights concerning guardianship of children. Like many western countries, Joint custody of child can also be introduced in Bangladesh to ensure equality of custodial right between the father and the mother. The financial condition of the mother should never be a concern in case of denying the custody of the child to the mother rather the principle of welfare should be taken into consideration and mother should for eternity get main concern to get hold of the custody of the child.
Md. Reaz Karim
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