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Judicial Trends in Child Custody Cases in Bangladesh: Traditional Islamic Law Rules versus Welfare Considerations

Published online by Cambridge University Press:  11 July 2017

Taslima YASMIN
Taslima YASMIN*
Affiliation:
University of Dhaka, Bangladesh taslima47@yahoo.com
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Abstract

In Bangladesh, disputes over custody and guardianship involving Muslim parties are principally governed by Muslim personal law. There remains a constant dilemma in judicial decisions over custody and guardianship matters as to what should be the paramount consideration in awarding child custody to a party – should traditional Muslim personal law rules or the welfare of the child prevail? The findings of this study indicate that there is a steady but inconsistent trend towards child welfare considerations. However, it cannot conclusively be said that a child’s welfare is now the most dominant, or the only consideration for the courts. Focusing on this shift towards a welfare approach, this article critically examines some of the leading reported judgments of the Supreme Court of Bangladesh on the issue.

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Articles
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Asian Journal of Comparative Law , Volume 12 , Issue 2 , December 2017 , pp. 233 - 256
Copyright
© National University of Singapore, 2017 

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Footnotes

*

Assistant Professor, Department of Law, University of Dhaka; PhD candidate, Brunel University, London.

References

1. A relevant discussion on judicial activism in Bangladesh with regard to applying Muslim law principles in modern circumstances is Hoque, Ridwanul and Mahmud Khan, Morshed, ‘Judicial Activism and Islamic Family Law: a Socio-Legal Evaluation of Recent Trends in Bangladesh’ (2007) 14 (2) Islamic Law and SocietyGoogle Scholar 204; see also Alamgir Muhammad Serajuddin, Muslim Family Law, Secular Courts and Muslim Women of South Asia: A Study in Judicial Activism (OUP 2011).

2. Serajuddin (n 1) 97.

3. The Supreme Court of Bangladesh comprises the Appellate Division (AD) and the High Court Division (HCD).

4. Courts of Assistant Judges were deemed to be family courts under s 4 of the FCO.

5. Under s 5 of the FCO, the Family Courts have jurisdiction over the following family matters: (a) Dissolution of marriage; (b) Restitution of conjugal rights; (c) Dower; (d) Maintenance; and (e) Guardianship and custody of children.

6. According to s 24(1) of the FCO, a Family Court shall be deemed to be a District Court for the purpose of the GWA and, in dealing with matters specified in that Act, will follow the procedures specified therein.

7. Whereas in a family suit the provisions of the GWA and the personal laws of the minor govern the matter, in a habeas corpus petition the court is mainly concerned with assessing whether the minor is ‘unlawfully confined’ or not. In doing so, the HCD has often ventured into deciding the issue of entitlement of the parties to the custody of the minor in light of the traditional Hanafi law principles, as well as the principles of the welfare of the minor.

8. For further comments on this discussion, see Coulson, N J, A History of Islamic Law (Edinburgh University Press 1964) 164; Hallaq, Wael B, An Introduction to Islamic Law (CUP 2009) 115 Google Scholar.

9. Mohammad Hashim Kamali, Shari’ah Law: An Introduction (OUP 2008) 73.

10. Mahmood, Syed Tahir, The Muslim Law of India (Law Book Company 1980) 34 Google Scholar.

11. Serajuddin (n 1) 18.

12. Some instances of such reliance on the texts are Bazloor Ruheem v Shamsoon Nissa Begum, 11 Moo IA 551 and Aga Mahomed v Kulsun Bibi, 25 Cal 9, cited in Sir Abdur Rahim, The Principles of Muhammadan Jurisprudence: According to the Hanafi, Maliki, Shafi’i, and Hanbali Schools (first published 1911, Cosmo Publications 2010) 44-45.

13. Serajuddin (n 1) 18.

14. Bharatiya, V P and Rashid, Syed Khalid, Syed Khalid Rashid’s Muslim Law (3rd edn, Eastern Book Company 1996) 31 Google Scholar.

15. Hallaq (n 8) 86; Serajuddin (n 1) 18; al-Din al-Marghinani, Burhan, The Hedaya, or Guide: A Commentary on the Mussulman Laws (Charles Hamilton tr, Islamic Book Trust 1982) 138 (hereinafter referred as the ‘Hedaya’)Google Scholar.

16. Legal opinion by qualified Islamic jurists, or muftis.

17. Muslim religious scholars who specialize in Islamic jurisprudence.

18. Serajuddin (n 1) 19.

19. ibid; Neil Benjamin Edmonstone Baillie, A Digest of Moohummudan Law: Compiled and Translated from Authorities in the Original Arabic, with an Introduction and Explanatory Notes, vol 1 (first published 1856, Premier Book House 1965).

20. A relevant discussion on this issue is Rahim (n 12) 44-45.

21. According to Hassan Amid’s Farhang-e Amid [The Amid Persian Dictionary], as cited in Ebrahimi, S N, ‘Child Custody (Hizanat) under Iranian Law: An Analytical Discussion’ (2005) 39(2) Family Law Quarterly 459, 463 Google Scholar.

22. Cowan, J M (ed), Arabic-English Dictionary: The Hans Wehr Dictionary of Modern Written Arabic (4th edn, Spoken Language Services 1993)Google Scholar; Zahraa, Mahdi and Malek, Normi A, ‘The Concept of Custody in Islamic Law’ (1998) 13(2) Arab Law Quarterly 155, 156 Google Scholar.

23. Rahim (n 12).

24. Zahraa and Malek (n 22) 156.

25. Nasir, Jamal J, The Islamic Law of Personal Status (3rd edn, Brill Archive 2009) 186 Google Scholar.

26. Rahim (n 12) 344.

27. W Al-Zuhayli, Al-Islami WaAdilatuhu, Dar Al-Fikr, vol 4 (Damascus, 1989) 140-41, as cited in Zahraa and Malek (n 22) 157.

28. Rahim (n 12) 345; guardianship of the person for a girl can also be in respect of marriage, which is usually dealt with in the Islamic texts separately under the subject area of ‘marriage’.

29. The terms ‘natural guardian’ or ‘legal guardian’ are of English usage and are not used by Muslim jurists. The Arabic term ‘wilayat’ is used instead to mean ‘guardianship’: Bharatiya (n 14) 150. The father holding the guardianship of person of his ward is called the ‘wali’: Mahmood (n 10) 163.

30. Zahraa and Malek (n 22) 157.

31. The Shia father cannot appoint a testamentary guardian if the grandfather is alive; the latter acquires the power only on the father’s death: Bharatiya (n 14) 143.

32. The Hedaya (n 15) 138.

33. Baillie’s Digest (n 19) 435.

34. Nasir, The Islamic Law of Personal Status (n 25) 186.

35. ibid 187.

36. Pearl, David and Menski, Werner, Muslim Family Law (3rd edn, Sweet and Maxwell 1998) 411 Google Scholar.

37. Zahraa and Malek (n 22) 157.

38. Although, as this article will show later, there have been significant departures from this position.

39. The Hedaya (n 15) 139.

40. Nasir, The Islamic Law of Personal Status (n 25) 170.

41. ibid 171.

42. ibid.

43. ibid; Zahraa and Malek (n 22) 167.

44. Nasir, The Islamic Law of Personal Status (n 25) 171; Zahraa and Malek (n 22) 168.

45. Bharatiya (n 14) 144.

46. However, ‘Muslim jurists have often referred to the verse of fosterage (Al-Quran 2:233) which says that the mother should breastfeed their infants for two complete years. It has been inferred from this that in the years of infancy the right of upbringing and fostering remains with the mother’. Aayesha Rafiq, ‘Child Custody in Classical Islamic Law and Laws of Contemporary Muslim World (An Analysis)’ (2014) 5(4) International Journal of Humanities and Social Science 267.

47. A stranger is someone not related to the child by blood.

48. Islamic law prohibits a man from marrying specific classes of women who are related to him through blood, affinity, or by fosterage. See Fardunji Mulla, Sir Dinshaw, Mulla Principles of Mahomedan Law (Iqbal Ali Khan rev, 20th edn, LexisNexis 2013) 339-341 Google Scholar; Nasir, Jamal J, The Status of Women under Islamic Law and Modern Islamic Legislation (3rd edn, Brill 2009) 44-49 Google Scholar.

49. The Hedaya (n 15) 138, Baillie’s Digest (n 19) 436.

50. ‘In fact classical Hindu law did not contain principles dealing with guardianship and custody of children because of the concept of Joint Hindu Family, where the Karta (family head)was responsible for the overall control of all dependents and management of their property, and therefore specific legal rules dealing with guardianship and custody were not thought to be necessary.’ See Law Commission of India, ‘Report of the Law Commission of India on Reforms in Guardianship and Custody Laws in India’ (Report No 257, Government of India 2015), 15.

51. S17 of the GWA.

52. ibid.

53. Serajuddin (n 1) 41.

54. PLD 1956 Lah 484.

55. ibid 489, quoting Mst Basant Kaur v Gian Singh and others, AIR 1939 Lah 359.

56. ibid 488.

57. ibid.

58. ibid 489.

59. Although, as previously discussed, the lower court’s decision was rejected on appeal.

60. PLD 1958 Pesh 26.

61. ibid 28.

62. PLD 1962 Lah 166.

63. ibid 168.

64. PLD 1965 (WP) Lah 695.

65. ibid 702.

66. PLD 1964 (WP) Lah 558.

67. ibid 562.

68. Mst Zohra Begum (n 64) 702.

69. ‘Ijtihad literally means ‘endeavour’ or ‘self-exertion’. In legal usage, it refers to [the] endeavour of a jurist to formulate a rule of law on the basis of evidence found in the sources. Ijtihad is contrasted to taqlid or ‘imitation’, a term which refers to the acceptance of a rule not on the basis of evidence drawn directly from the sources, but on the authority of other jurists.’ See Weiss, Bernard, ‘Interpretation in Islamic Law: The Theory of Ijtihād’ (1978) 26 (2) American Journal of Comparative Law 199, 200 Google Scholar.

70. Muhammad Rashid Rida, ‘al-As’ilah al-Barisiyaah’ (Cairo: Dar-al-Manar, 1367-1374 AH) 5: 295, as cited in Qasim Zaman, Muhammad, ‘Evolving Conceptions of Ijtihād in Modern South Asia’ (2010) 49(1) Islamic Studies 5, 7 Google Scholar.

71. PLD 1953 Lah 73, 80.

72. 20 DLR (1968) (SC) 1.

73. ibid 4.

74. For details on this disqualification, see Mulla (n 48).

75. Hoque and Khan (n 1) 213.

76. This issue will be addressed in greater detail in the later part of this article.

77. 25 DLR (1973) (HCD) 167.

78. 33 DLR (1981) (HCD)139.

79. Commonly referred to as the ‘de facto guardian’ by most of the commentators.

80. However, the court was silent about any linkage between the mother’s ill-treatment and the grandparents’ rights to custody. Hence, Malik commented that the court’s reliance on the ill-treatment of the mother can be appreciated either ‘as an overt attempt to reach a particular result’ or ‘as a bid to broaden the grounds on which a decision in favor of a mother may be justified and rationalized’. See Malik, Shahdeen, ‘Recent Case Law on Custody and Second Marriage in Bangladesh: A Trend Towards Secularization of the Legal System?’ (1995) 28(1) Verfassung und Recht in Übersee [Law and Politics in Africa, Asia and Latin America]Google Scholar 103.

However, even though a clearer indication by the court (as to the ill-treatment against the daughter-in-law is considered a potential threat against the well-being of the grandchild) would have provided a clearer guideline for future cases, it is still considered an important decision that breaks away from the conventional judicial mindset.

81. 38 DLR(1986) (AD) 106.

82. ibid 113-14.

83. Davis, Martha F, ‘Child Custody in Pakistan: The Role of Ijtihad’ (1985) 5(2) Third World Law Journal 119, 124 (discussing inter alia, the role of Ijtihad in a period following the Zohra Google Scholar case).

84. 46 DLR (1994) (HCD) 399.

85. ibid 401.

86. For a similar discussion on the rebuttable presumption, see Davis (n 83).

87. Ayesha Khanam (n 84) 302.

88. AIR 1984 (SC) 1224.

89. Ayesha Khanam (n 84) 302.

90. Rumana Afrin v Fakir Ashrafuddin Ahmed and others 1 MLR (1996) (HCD) 331.

91. 50 DLR (1998) (HCD) 532.

92. ibid 540.

93. 50 DLR (1998) (AD) 55.

94. ibid 59.

95. AIR (1982) (SC) 792.

96. With almost identical facts as the Abdul Jalil case, the HCD in Farhana Azad v Samudra Ejazul Haque and others (2008) 60 DLR (HCD) 12 (arising from a writ petition) gave interim custody to the mother of the minors, until the matter could be adjudicated by a competent court. The court made specific reference to welfare as the paramount consideration based upon which the family court would have to decide to whom the custody of the minors would belong.

97. 14 MLR (2009) (HCD) 465.

98. ibid 469.

99. ibid.

100. 17 MLR (2012) (AD) 49.

101. PLD 1955 Lah 412.

102. ibid 413.

103. AIR 1944 All 202.

104. ibid 204.

105. Amar Ilahi (n 101) 416.

106. Nazeer Begum v Abdul Sattar PLD 1963 (WP) Karachi 465; Haji Ali Baksh v Mst Bhagul PLD 1963 (WP) Karachi 1030.

107. 16 DLR (1964) 695.

108. ibid 698.

109. PLD 1971 Dacca 24.

110. ibid 28.

111. 4 BLD (1984) (HCD) 79.

112. ibid 81.

113. Rumana Afrin v Fakir Ashrafuddin Ahmed and others1 MLR (1996) (HCD) 331; Rahmatullah (Md) and others v Sabana Islam and others 54 DLR (2002) (HCD) 519; Sefina Ferdousi Shimla v Johar Kabir 61 DLR (2009) (HCD) 346.

114. 9 MLR (2004) (AD) 71.

115. ibid 71.

116. Abdul Jalil (n 93) 60 quoting Queen v Gyngall (1983) 3 QBD 232; Walter v Walter 55 Cal 730; Saraswathi v Dhanakoti 48 Mad 299.

117. S 17 considered such a preference as one of the important considerations for the court in determining a child’s welfare.

118. 10 MLR 2005 (HCD) 148.

119. Under s 39 of the GWA.

120. Sayeda Shamsunnar (n 118) 151.

121. S 39 of the GWA.

122. Rehanuddin (n 78) 142.

123. Ayesha Khanam (n 84) 342.

124. Rumana Afrin (n 90) 333.

125. Sayeda Shamsunnar (n 118) 148.

126. Anika Ali (n 100) 56.

127. See Zahida Ahmed (n 97) 465; Abdul Jalil (n 93) 55 and Bangladesh Jatiyo Mahila Ainjibi Samity (BJMAS) v Bangladesh 61 DLR (2009) 371.

128. Art 12 of UNCRC.

129. S 17(3) of the GWA provides: ‘If the minor is old enough to form an intelligent preference, the Court may consider that preference’.

130. Keratul Ain @ Rita (n 114) 71.

131. Anika Ali (n 100) 56.

132. ibid 58.

133. Badrudin Tayabji, Faiz Hassan, The Personal Law of Muslims in India and Pakistan (4th edn, NM Tripathia 1968) 238 Google Scholar.

134. See, for instance, Aktar Masood v Bilkis Jahan Ferdous 50 DLR (1998) (AD) 145.

135. Anika Ali (n 100) 57.

136. ibid.

137. Kurki-Suonio, Kirsti, ‘Joint Custody as an Interpretation of the Best Interests of the Child in Critical and Comparative Perspective’ (2000) 14 International Journal of Law, Policy and the Family 183, 184 Google Scholar.

138. See Rahimullah Chowdhury (n 72).

139. 28 BLD (2008)(HCD) 599.

140. ibid 613.

141. Hoque and Khan (n 1) 223.

142. Tamanna, Nowrin, Hossain, Sara, Amirul Haq, Muhammad, Muslim Women’s Rights under Bangladesh Law: Provisions, Policies and Practices Related to Custody and Guardianship (The South Asian Institute of Advanced Legal and Human Rights Studies 2011) 22 Google Scholar.

143. For a detailed discussion on ‘justice’ in Sharia law, see Kamali (n 9) 30-32.

144. Art 3 of the UNCRC.