CUSTODY OF CHILD (BY FATHER WITHOUT FILING DIVORCE)

Published by The Daily Star on 3rd June, 2014 (Link Above)

This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, ‘Legal Counsel’, which has expertise mainly in commercial law, corporate law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies.

Query
We have been married for almost 6 years and have a 5 year old son. Since last 5 months my wife is staying with her parents that prevents our child going to school and learn the Holy Quran. I am educating him in English medium school as well as teaching him Quran simultaneously but my wife opposes on this. I do not want to lose out on this time because this is the best age for him to learn as many things as possible. In this backdrop, I need your advice on the following:
1.    Can I obtain legal custody of our son without divorce (so as to have him with me for educational purposes) as I do not want to divorce her for this reason
2.     If yes, how (what is the legal procedure for this custody?) as per Bangladeshi Muslim Family Rules.
3.    Is there any other legal way for this matter?

Mainuddin

Response
Thank you for your query. Please find the below mentioned legal provisions relevant to your queries.
You, by virtue of being the father of the child, can be considered to be the natural guardian of the child (unless guardianship has officially been vested in another person). On the other hand, since the child is currently aged 5 years, your wife, by virtue of being the mother of the child, has priority for the custody of the child (until the age of 7 in case of a male child). As such, even though the son is presently residing with your wife, legal control of the child still vests in you by virtue of your guardianship, and thus, you can make an application to the appropriate Court in order to regain custody of your child. You are not required to file a divorce in order to make such an application.

Procedure for application:
You are entitled to make an application to the court pursuant to S.25 of the Guardians and Wards Act- 1890. This section provides for the situation where a ward (i.e. the child in this situation) leaves or is removed from the custody of the guardian and the Court opines that it will be for the welfare of the child to return to the custody of his guardian. In considering the application, the Court is guided to decide what appears to be for the welfare of the child, and in relation to this, Courts are required to have regard to the age, sex, and religion of the child, the character and capacity of the proposed guardian ( I.e you, in this situation ) and his nearness of kin to the child, and any existing or previous relations of the proposed guardian with the child or his property. In assessing such matters, the court is also likely to hear evidence relevant to the child’s welfare.
On an application being made, it is opined that you (and your legal representatives) should be adequately prepared to present evidence of the fact that your son’s education has been effectively carried out by you when you had custody of the child. It should further be clarified that in order to continue this education, and to facilitate the overall well-being of your son, you should be granted custody of the child.  Further, if the Court is of the opinion that the minor is old enough to form an intelligent preference, the Court may consider that preference. Therefore, it is advisable, on your part, to take any possible steps in ascertaining your son’s wishes, and considering their consequences prior to the application being made under S25.

Other legal Procedures relevant to the issue:    
As clarified previously, filing a divorce is not a pre-requisite to making the aforementioned application under S25. In the situation where the application is rejected, you can further consider the avenue of making an appeal against the decision under S 47© of the Guardians and Wards Act-1890.  The appeal shall lie to the High Court Division from an order made by a Court, and thus, you might avail a further opportunity of presenting your case and your reasons for demanding custody of your son in order to ensure his welfare. However, in a continuing marital relationship, it is not the wisest idea commence litigation over the custody of the child. Rather, I would strongly suggest that try to solve the matter amicably with the help of the elderly persons from both the families.
I hope the above shall help you to ascertain your legal position and take the best decision for your child.

For detailed query contact: omar@legalcounselbd.com.