This week your advocate is Barrister Omar Khan Joy of the Supreme Court of Bangladesh and Head of 'The Legal Counsel'. His professional interests include commercial law, corporate law, family law, land law, constitutional law, banking law, arbitration and intellectual property laws. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.
I have a five-year-old son. After seven years of marriage, my husband and I have decided to call it quits. My husband is a Bangladeshi and I am not. I just wanted to be clear on issues with regards to custody of my son. I would like to go back to my home country with my son. I am legally allowed to do that, right?
Thank you for query. From your e-mail I understand that you are going to divorce your husband and now you want to know whether a divorced mother is entitled to custody of his son who is a minor.
For Muslims, the general rule is that the mother is entitled to custody over male children until the age of 7 (classical Hanafi position) and over female children until the attainment of puberty.
A father is a natural guardian of his minor children. Even when the minor children are in the custody of their mother, the legal control of the children vests in the father. But guardianship and custody are not the same. So, in case when the couple divorce, the question arises who will be the custodian of the child. I have already said that the father is the natural guardian and the mother is the custodian of the child till certain age. Mother is entitled to minor's custody even if she had to leave the home of her husband under unavoidable circumstances. This means that the guardian/father will have to perform the duties, including the duty to provide for maintenance of the child though the mother will be able to retain the custody of the child. If your husband accepts this position without any difficulty, then there is no problem. If on the other hand, he retains the custody of your son or tries to create problem in your enjoyment of the custody, then you may go to the court and file an application for custody and also for guardianship under section 25 and section 7 of the Guardians and Wards Act 1890.
The Act stipulates that the court has to consider several matters in appointing guardian. The courts are also directed to consider the age, gender and religion of the minor and the character and capacity of the proposed guardian, as well as considering the minor's own opinion if s/he is old enough to form an intelligent preference. The court shall also consider the character and capacity of the proposed guardian and his nearness of kin to the minor. The mother does not loose the right to custody because of the divorce or even after remarriage. But, if the mother remarries then she looses the preference. But, in every case the court gives supreme importance to the best interest and welfare of the child in determining the custody.
I also understand that you are not a Bangladeshi and you are desirous to go back to your home country with your son. The matter would be much easier if you continue to live in Bangladesh. But, if you are going abroad then two further difficulties arises. Your son is a citizen of Bangladesh and hence is entitled to live in Bangladesh. If you had to retain the custody of the child through court order, in that case you cannot take him beyond the jurisdiction without any courts order. The court can allow this for a temporary period but the court cannot determine whether the child will permanently stay and live abroad. This is largely dependent of the law of your own country on which our court has no expertise. In any some manner, you take your son with you in your homeland, then whether he will be permitted to stay over there and is so for how long will depend on the law of your country.
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