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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: 45
November 24, 2007

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Law analysis

Familiar family fathers

Mufassil M M Islam

I remember the time, many Eid crescents ago, under a lamp post in the old Dhaka city, a cripple with an empty plate in one hand and holding his daughter with the other, laughing at the meaning of life as he was signing to the hearts of the people for mercy in alms. I also remember, a woman crying at my desk for justice as she was thrown away after being brought to USA by her husband leaving a new born baby in her lap with a condition to take care of the infant only if she had given up her rights to motherly care.

The faces of our fathers remind us of love, caring, strong will and vigour. The word 'father' should denote to cherishing, nourishing, evolving and protection. Human society boasts of civilisation and parents toiling themselves away for a better future of their children. Here, in the humans' world, we are the only known living beings where fathers, not only mothers (which are common in almost all other living beings except a few like the sea-horses) engineer the future of their children in conjunction with the mothers. This mark of human pride is complex and often misconstrued.

Family laws in Bangladesh, are guided by religious tenets, laws and rulings. Islam plays a major role in our laws relating to the custody of children after the couple split. It is not worth mentioning the minute details of the laws herein as there are plenty of scholarly writings and debates on the matter which may include the names of DF Mulla, Fatwa Alamgiri, Hamilton's Hedaya. But the general rule is that the father is the custodian of the son after he had reached the age of 7 ( as Salat becomes a binding issue then) and the mother is the custodian of the daughter until the daughter's wedding or she had attained puberty (as she would need security). But these rules are all subjective to the child's better opportunities and other considerations like the character, financial situation, social needs and above all love of the parents which would be weighed by the Judge. The mother is the primary custodian of the children in warring times between the parents and a child usually goes through tormenting dilemmas whilst choosing between loving parents.

In the West, these battles have reached a newer height where the mothers do not have to worry about confirming their primary rights, rather an extreme view at the rights of the fathers is beaconing for desperate steps by pressure groups (for example, Father 4 Justice in UK www.fathers-4-justice.org), Government Ministers paving ways of new laws. The Care of Children Bill 2000 of New Zealand mentions in its introduction that the Bill will help parents, families and children by:

* ensuring the legislation has a stronger focus on the rights and voice of the child;
* promoting co-operative parenting;
* removing discriminatory provisions that present barriers to families;
* recognising the diversity of family arrangements that exist for the care of children;
* providing meaningful court processes for guardianship proceedings.

The Bill went far in recognising the rights and responsibilities of biological father (even if not married to the mother).

'Fatherhood' is the pride for the man. It has serious social repercussions to alienate father from the society and family just because he does not get along with the mother and it is equally harmful for a child to be reared up in a domestic violence. Amicable split should also ensure future respect among the parents in rights towards the children. The children are not properties of either parent rather treasures which grow into desirable futures (which the parents had always dreamt for their own lives) only with equal loves from the parents.

In England, the rights of the fathers to have shared custody of their children and their visitation rights are termed 'Contact' rights which are now-a-days considered as an insulting terminology. There have been enormous writings and researches on the crisis in fatherhood within the last few years in the developed world. David Popenoe writes in his book 'Life Without Fathers' (http:// mensightmagazine. com/Articles/Popenoe/nofathers.htm):

'Growing up without a father may be a root cause of many social illsfrom crime to academic failure.The decline of fatherhood is one of the most basic, unexpected and extraordinary trends of our time. Its dimensions can be captured in a single statistic: In just three decades, between 1960 and 1990, the percentage of children living apart from their biological fathers more than doubled, from 17 percent to 36 percent. By the turn of the century, nearly 50 percent of American children may be going to sleep each evening without being able to say good night to their dads'

In our country, where our mothers are neglected at pregnancy, left at unwanted child-birth, killed for dowry, beaten for household chores, the fathers are surprisingly respected, revered and immortalised in the hearts of their children to a large extent by their ever devoted mothers who are eternally respectful towards their husbands even when they are abusive. Our society has bred fathers like I had mentioned at the beginning of my writing and has produced fathers who alienated their children to avoid parental responsibilities.

The women pressure groups in Bangladesh deserves praises in their fights against atrocities against women but they must also bear in mind their responsibilities so that we do not stir anti-male sentiment which has brewed to the worst possible scenario in many parts of the world hitting the very base of family values. To expect parental cooperation we would also have to ensure that our laws are not misapplied to the detriment of male legal interests. The 'Nari Nirjaton' law is a commendable baton against vicious male chauvinists but its misuse would imbibe fear in men in creating homes.

There is a staggering rise of unmarried couples who vehemently propagate against marriage (especially) in fear of lengthy and expensive divorce battles and as a result there are too many single mothers whose children are without any support from their biological fathers. Lack of support, moral and financial from fathers (even though there are welfare supports from the government) pushes the family to financial crisis and the mothers do at many times suffer from severe depressions.

Our law-makers, lawyers, social workers, women's rights activists and even people engaged in literature should not only criticise the roles of failing fathers, but should also encourage family values and try utmost to keep the couple together. But needless to say, it is at the same time not expected for any human being to live a hellish life with incorrigible abusers. We should have serious readings of any Bills amending family laws as to its future repercussions by studying the impacts of such amendments in societies where they have done so.

Time has come when we have examples of countries in front of us where the laws have grown enough and the protections have stretched enough to ensure equal rights of both the sexes but the balancing act must be in keeping with the long-run effect in the future of the social lives. We, fathers, must understand, value and respect our duties towards our children and our society as the dream of a swan is always beautiful to even to a blind who has understood it but a wrong assessment might tend to believe the swan to be like that of an elephant's trunk.

The writer is Human Rights advocate, President and CEO, Islam and Associates.


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