Who suffers the most in a divorce?

Published by The Bangla Tribune| July 19, 2018 (Link Here)

Some days ago I received a complaint from a 36-year-old woman. She sent me an email which read

“Dear Sanjana, Hope you are doing well. I am Rifat, a 36-year-old mom, living in Dhaka with 2 beautiful daughters (5 and 2 years old). I am in dire need of your expert advices and believe that only you will be able to help me out. I am writing to you with my heart out. I do not know you personally but I believe you are true, honest and dedicated by heart and I can trust you with the custody case of my daughters. I have looked for you so much and trying to get in touch with you. Now, as I write, I can’t stop my tears even as I hope that you would get this mail and show me a way.

I am a survivor of severe domestic violence including sexual, psychological, financial and verbal abuse that went on for 8 years and just 4 months back, I took out the courage to divorce my husband as per the Muslim marriage law of Bangladesh. I died every single day throughout this marriage and my kids were tortured as well. I have to protect my kids from this terror and trauma. My parents are totally against me for the divorce and threatening me to handover my girls to him if I do not go back to him (even when I am divorced now!). I cannot trust anyone right now and I believe, you can guide me properly. Please note that the dower money is partially paid and no maintenance whatsoever has been paid since marriage. I don’t even want the money. All I need is my children’s legal custody to save them from this retarded, paranoid person. Needless to say, it would be life-saving for me if you accept my daughters’ custody case or at least agree to supervise my case through your preferred delegation. Thank you for your time. Desperately waiting to hearing from you soon. Only an angel sent by Allah can save me and my kids now and I believe you to be that angel.
Regards,
Rifat Islam”

Who suffers the most in a divorce?
Custody and guardianship in Bangladesh are governed mainly by the Family Courts Ordinance, 1985 and Guardians and Wards Act, 1890. As per the law, a father is the legal and natural guardian of the children and therefore, legal control vests in the father until they attain the age of majority. However, the mother has the right of physical custody up to the age of seven years in the case of a male child, and up to the age of puberty in the case of a female child. The right of custody, or hizanat, can be lost under certain circumstances. A mother loses the right of custody:

(a) If she remarries

(b) If she goes and resides at a distance from the father’s place of residence

(c) If she leads an immoral life

(d) If she cannot take proper care of the child

In Ayesha Khanum v Major Shabbir Ahmed, 46 DLR, the High Court Division of Bangladesh declared that there is no substitution of motherly love and affection and no one can substitute her and the wellbeing and proper take care can be ensured only by mother. The assumption that mother will not take care of her own children in the event of her remarriage is not acceptable in all situations.

The family court shall have exclusive jurisdiction to entertain, try and dispose of any suit relating to guardianship and custody of the children, maintenance, dissolution of marriage, dower etc.

Being a lawyer, I am formally trained to deal with loss and grief. But each of her words were piercing thorough my heart like hundreds of arrows. Warmth and affection expressed by both the parents to their children results in life-long happiness and success for those children. Parents’ affection and love shape a child’s happiness. Both parents must realize that mother cannot replace the role of a father, so is the father, he cannot perform the role of mother. Children do not want their parents to be separated even if the marriage is full of misery. A child suffers most witnessing loss of love between parents.

Miti Sanjana is a Barrister-at-law from Honourable Society of Lincoln’s Inn and an advocate of Supreme Court of Bangladesh.