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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 31
Augsut 4, 2007

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Human Rights Advocacy

Guardianship and Custodian Act

Amendments needed in the interest of mothers

Iffat Zarin

Sultana Yasmin, a 24-year-old pretty working woman, always hurries back home after office hours. She is hardly seen spending any light moment with anybody. She is always gloomy and depressed.

“I rarely have any spare time to spend with colleagues and friends. I'm always worried about my seven-year-old boy thinking what he is doing back at home,” says Sultana, once a witty girl who has gradually withdrawn herself from everything.

What happened to Sultana? Why has she become so unsociable all of a sudden? These are the questions her neighbours and colleagues ask each other everyday.

Sultana was married off to Mozammel Haque, 34, an officer of a private firm, when she passed her HSC examination. Her family members arranged the marriage in a little bit haste and did not bother to properly enquire about Mozammel's education and family backgrounds.

After the marriage, Sultana came to know her hubby was an addict. Frustrated, one day Sultana left her husband with her baby boy and ultimately got separated. And this is how began her hard life. She had to work really hard to bring up the boy and complete her Master's degree. And then she managed a job in a private firm.

As Sultana began thinking 'the ordeal is over, her ex-husband started brewing a new trouble. Now he wants his son back. When Sultana asked the man how he could get the boy back although he had done nothing for him, Mozammel said, “I'm the boy's legal guardian.”

When Bangladesh was under British rule, a law was enacted in 1890 barring women from enjoying the equal rights to the custody and property of their own children. Over the years, there have been extensive changes in the Guardianship and Custodian Act in Britain itself and now a British child is identified as per his or her mother's name.

Unfortunately, there has been no amendment to the law in Bangladesh since its enactment 117 years ago, meaning the women here are being deprived of the very rights they are entitled to. Custody means the power or right to supervise an individual along with his or her property, who is unable to look after him/herself such as minors (under the age of 18) and mentally imbalanced ones. In most cases, the fight between divorced husbands and wives are over the custody of their children.

According to section 6 of the Guardianship and Custodian Act, if there is a question regarding the custody of a minor it has to be considered as per one's family law. There are three types of custody in the Muslim family law -- custody of children, custody of children's property and custody of children's marriage.

In Muslim family law, the father is the natural legal guardian of children. The mother cannot be the guardian. But, a mother can have her sons with her until they reach seven while she can have her daughters till their puberty, which is called 'hijana' (only responsibility). If the mother gets remarried, she will be deprived of the priority of her right, hijana.

As per this law, though the mother is not the real guardian, she can apply for the custody of the children if she feels that the real guardian cannot perform the responsibility. In that case, even the mother gets the custody it will only be 'hijana' and she will only get the right to take care of them. She will have no right to their property whatsoever.

In case of the custody of children's property, the Muslim family law in Bangladesh recognises three types of custody -- legal guardian, guardian determined by court and virtual guardian.

In case of a minor's property, the following people are recognised as guardians. A. Father; B. An executor nominated by him through a will; C. Grandfather; D. An executor nominated by him through a will.

A virtual guardian is that person who willingly takes the physical responsibility of the children and their property with no right to buy or sell the property both moveable and immovable ones. The mother, paternal uncle, brother and father-in-law can be the virtual guardians.

The Guardianship and Custodian Act, enacted by the British rulers, has been applied for 115 years without any amendment. It is applied in determining custody, supervision and dependency of children of all religions.

But the Bangladesh Constitution in its articles 26, 27, 28 and 29, especially article 27, clearly says all the citizens are equal in the eyes of law and everyone is entitled to equal rights.

Section 5 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted in 1979 by the UN General Assembly, states that the issue of recognition of identical responsibilities of both men and women in raising children and their development will have to be included in the family education properly considering motherhood as a social work keeping in mind 'the interests of children are the main things'.

Salma Jabin, an official of Ain O Salish Kendra, an NGO, says, "Among all the laws that are discriminatory to women, the Custody Act is the worst. How come a mother who carries the child in her womb for 10 months and makes him/her a complete person facing various odds, is not the guardian of the child? Nothing can be more painful than this."

Jabin says, "Today's women are miles ahead as the law was enacted in 1890. Nowadays, women are showing success by dint of their merits. They are capable enough to take decision about anything. Unfortunately, we're walking back in an era of globalisation."

Dr Taslima Mansur, the chair of Dhaka University's Law Faculty, says, "There has been no amendment to the law yet simply because of chauvinist attitude. When a father enjoys all the rights, a mother is allowed to rear the children. Amendments to the law have been essential."

Advocate Maksuda Akhter of Bangladesh Mahila Parishad says in the laws of Bangladesh women hardly have any right to guardianship of their kids. 'There is no harm in ensuring this right, this not a big deal.”

Mosharraf Hossain, director of Bangladesh Children's Rights Forum, says, "The provision of equal right for the women relating to children's custody should be in the law so that a mother can be the guardian of children's physique and property in absence of their father.”

Advocate Elina Khan, executive director of Human Rights Implementation Organisation, says, the country's policymakers will have to come forward to change the law, or else, the women will continue to suffer.

- News Network


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