Legal and Judicial Responses to Muslim Mother’s Rights to Guardianship in Bangladesh

Abstract

The Legal framework on guardianship of minors emerged under the Roman law. Later on, Islamic Law also addressed the issue in a progressive and dynamic manner. Though, most of the jurists have failed to appreciate the beauty of that dynamism thereby could not interpret it in a manner which is conducive to the changing needs of the society. During the British rule in the Indo-Pak Sub-continent, the Principal legislation governing the guardianship and custody of the children in Bangladesh was enacted, keeping the personal laws intact. The law apparently favours fathers and in practice tilted towards father as an absolute guardian of minor in any case irrespective of the interest and betterment of the children. International law dealing with the rights of the children also called upon the states to give the paramount importance on the best interest of the children on any matter including the guardianship. But our precedent setting courts could not go beyond the black letters of law and largely remained indifferent on their role in removing justice and in establishing substantive equality and justice in the society. In many cases where mothers are found as competent enough and fit as a guardian but the courts refused their stance. Only exceptionally, our higher court has given the guardianship to mothers. But as a matter of fact, those progressive decisions have not received mainstream attention by the country-wide Family Courts. However, as a routine matter, Family Courts are granting the absolute right to guardianship to father and refusing the mothers‘ rights to guardianship in any case without fully understanding the implications of existing laws and judicial decisions. Mothers‘ role for rearing and caring of children is well known but beyond these mothers can also play a pivotal role in protecting and managing the property of children which is ignored for long. The submission in this research is to break down the silence which leads to grave injustice. It is found in the present research after an in-depth doctrinal analysis that, there is no bar legally to grant the guardianship to the mothers. The empirical studies showed the competence of mother to work better as a guardian of minor children. It is further submitted to have more proactive role by the higher judiciary of Bangladesh at the same time the lower judiciary i.e. Family Courts should not hesitate to grant guardianship to the mother when they are found as a competent.