Cross-religious marriage and custody of children

Published by The Daily Star | December 8, 2023  (Link Here)

Cross-religious marriage and custody of children

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, family law, labour law, land law, constitutional law, criminal law, and IPR.

Query

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I am a Hindu woman and had married a Muslim man under the Special Marriage Act 1872, but my husband also registered our marriage in a Kazi Office, which I did not know. Now after three years of marriage, we have decided to part ways. But now he wants to take custody of our only child. What should I do regarding this issue? My husband claims that I had married him under the Muslim Law by submitting the marriage registration form.

Response

Thank you very much for your query.

It is understood that you are Hindu and married a Muslim man under the Special Marriage Act 1872 (‘the 1872 Act’). However, at the time of the marriage, your husband has also registered your marriage in a Kazi Office, and you were unaware of it. Currently, you and your husband have decided to separate after three years of marriage, and he wants to take custody of your only child by claiming that your marriage was solemnised under the Muslim Law.

In light of the aforementioned facts and circumstances, I will firstly elaborate the relevant legal provisions for your understanding. It is vital to be aware of legal matters with the increase in cross-religious marriages.

Marriage is a social and legal union of a man and a woman to live together and often (and certainly not always) have a child. Different laws are applicable to the followers of different religions in Bangladesh. The provisions of the Muslim law are applicable to the Muslims, whereas the Hindu Law provisions are applicable to the Hindus. The 1872 Act legalised cross-religious marriages. However, the 1872 Act is applicable to certain types of marriages. Section 2 of the 1872 Act clearly states that this Act will be applicable only in two circumstances: 1) where neither of the bride or bridegroom is Christian, Jew, Hindu, Muslim, Parsi, Buddhist, Sikh or Jaina, or, 2) where each of the party professes Hindu, Buddhist, Sikh and Jaina religion.

Therefore, on one hand, it is significant to note that under the first circumstance, the man and the woman getting married must not be following any of the abovementioned religions, meaning that they would practically be non-believers/ atheists. While on the other hand, the second circumstance explains that the man and the woman getting married must belong to any of the four stated religions, where Islam is not mentioned. Furthermore, it is strictly prohibited for a Muslim man to marry a Hindu woman unless she converts and vice versa.

In Bangladesh, a Muslim person cannot convert to Hinduism, so the alternative would be to become a non-believer (i.e., declare to renounce religions) for the marriage to be legalised or the Hindu person would have to convert to Islam. Moreover, as you are unaware of the registration of the marriage with the Kazi Office, it means that you have not signed any such document and hence, the same is legally questionable from such perspective. Therefore, the fact that your husband has registered the marriage with the Kazi Office would not be considered as valid.

On the contrary, the question arises as to whether your marriage has been legally solemnised under the 1872 Act. To answer that, at the time of marriage under the 1872 Act, both parties are required to sign a ‘Declaration Form’, confirming the points and the information in the form is true. Hence, while signing the declaration form, both of you declared yourselves as non-believers.

The courts primarily focus on the best interest or welfare of the child when deciding who should get the custody of the child.

The rules for taking custody depend on the personal laws of the religion the parties follow. However, in your case, since it is a cross-religious marriage, in order to take custody of your child, my advice would be to make an application for guardianship of your child under the Guardians and Wards Act 1890. As you were married 3 years ago, your child must be at the age of 2 years or less. Hence, as a mother you have greater right to custody of the child of such a tender age. I refrain from advising on the divorce matter, as you have not solicited for the same. However, a divorce for marriage solemnised under the Special Marriage Act may prove to be a lengthy and cumbersome proceeding. I hope my answer will help you find a solution to your problem.