Child Custody After Divorce in Bangladesh

Child Custody After Divorce in Bangladesh

Child custody becomes a critical issue when a marriage ends in divorce in Bangladesh. The primary concern in custody matters is the welfare and best interests of the child. In Bangladesh, child custody laws are influenced by personal laws (Muslim, Hindu, Christian) as well as provisions of the Guardians and Wards Act, 1890. Courts have discretion to override customary or religious laws when it is necessary to protect the child’s welfare.

Legal Framework

The following laws govern child custody in Bangladesh:

• Guardians and Wards Act, 1890
• Muslim Personal Law (Shariat) Application Act, 1937
• Family Courts Ordinance, 1985
• Relevant personal laws for Hindus, Christians, and others

The Family Court has exclusive jurisdiction over custody disputes following a divorce.

Types of Custody

Type of Custody	Description
Legal Custody	The right to make decisions regarding the child’s education, health, etc.
Physical Custody	The right to keep the child with the parent or guardian physically
Temporary Custody	Interim custody during the pendency of court proceedings
Permanent Custody	Long-term custody order granted after final judgment
Joint Custody	Rare in Bangladesh; both parents may share decision-making, not physical custody

Custody Under Muslim Law

• Mother’s Right (Hizanat):
  • Sons: up to age 7
  • Daughters: until puberty or marriage
  • However, the Family Court may extend or reduce this based on the child’s best interest.
• Father’s Right:
  • Natural guardian; gets custody after mother’s term ends
  • Entitled to make legal decisions regarding the child
  • Obliged to maintain the child financially
• Exceptions:
  • Mother may lose custody if she remarries someone not related to the child by blood.
  • A father who is abusive, absent, or deemed unfit may be denied custody.

Custody Under Guardians and Wards Act, 1890

Section 7 of the Act empowers the court to appoint a guardian for the welfare of the child, considering:

• Age, sex, and religion of the child
• Preference of the child (if of sufficient age)
• Capacity and character of the parents
• Prior agreements or conduct
• Child’s welfare as the paramount consideration

The court can override personal law rules if they conflict with the child’s welfare.

Custody Under Hindu and Christian Law

• Hindu Law: Follows traditional rules but custody decisions are governed by the Guardians and Wards Act where applicable.
• Christian Law: Governed mainly by the Divorce Act, 1869 and Guardians and Wards Act.
• In all cases, the Family Court may grant custody in line with the child’s best interest.

Procedure to Claim Custody

1. Filing a Custody Suit

• A parent can file a case for custody, visitation, or guardianship in the Family Court under Section 5 of the Family Courts Ordinance, 1985.

2. Interim Custody

• Either parent may seek interim custody or visitation rights during the pendency of the case.

3. Final Hearing and Judgment

• The Family Court hears both parties, evaluates evidence, and may interview the child.
• Based on the best interest of the child, the court grants permanent custody.

Factors Considered by the Court

• Age and gender of the child
• Emotional attachment with each parent
• Stability of living environment
• Financial capability of each parent
• Child’s educational continuity
• Parental conduct, past abuse, or neglect
• Remarriage or change of residence of a parent

Visitation Rights

• The non-custodial parent (usually the father if the mother gets physical custody) may be granted visitation rights.
• Visits can be supervised or unsupervised, regular or conditional, based on the child’s age and well-being.
• Denial of visitation rights without court permission can lead to legal action.

Enforcement of Custody Orders

• Custody orders are enforceable under Family Court jurisdiction.
• Disobedience may lead to contempt of court proceedings.
• If a child is wrongfully detained, a parent may seek writ of habeas corpus in the High Court Division under Article 102 of the Constitution.

Role of Mediation

• Family Courts often encourage settlement or mediation before trial.
• Mediation can result in mutually agreed arrangements on custody and visitation.

Child Maintenance

• The parent who does not have custody (typically the father) is legally obliged to pay maintenance under:
  • Muslim Family Laws Ordinance, 1961
  • Family Courts Ordinance, 1985

Failure to pay may lead to execution suits and even arrest warrants.

Change of Custody

Custody orders are not final and may be revised upon new circumstances such as:

• Change in financial or marital status
• Abuse, neglect, or harm to the child
• Change in the child’s preference or welfare needs

The court has continuing jurisdiction to modify custody arrangements in the child’s best interest.

Child custody cases in Bangladesh are handled with sensitivity by the courts, focusing primarily on the welfare of the child. The role of an experienced family lawyer is crucial in navigating custody claims, securing rights of visitation, or defending against unjust claims.