The basic law to regulate guardianship in Bangladesh is the Guardians and Wards Act (G&W Act) which was enacted in 1890 for the purpose of consolidating and amending all laws relating to a minor for person or property or both there is a guardian in the country. This law extends to the whole of Bangladesh and is applicable to everyone, regardless of their religion and status.
However, there are few other laws in place that regulate the issue of guardianship for a specific group of people. For example, if the parties to a proceeding are Muslim, all matters regarding guardianship will be determined by Muslim personal law (Shariat), notwithstanding any custom or usage to the contrary, in accordance with section 2 of Personal Law Enforcement. Muslim (Chariat). Law, 1937.
Also in 1985, the Family Courts Ordinance (FCO) was enacted to establish family courts with exclusive jurisdiction to hear cases relating to “guardianship and custody of children”, among other matters. special. While the FCO has granted family courts exclusive jurisdiction to hear guardianship lawsuits, it has not expressly struck down the application of the G&W Act to guardianship matters in family courts. According to Article 24 of the FCO, the family court is required to follow the procedure specified in the G&W Act to deal with matters of guardianship of a minor.
It is relevant to mention here that a non-Muslim can also seek redress in matters of guardianship of a minor in family court because the FCO has not clarified whether the FCO is applicable to citizens with a religious faith. specific. . In the case of Nirmal Kanti Das vs. Sreemati Biva Rani, [47 DLR 514] the Division of the High Court held that “a person professing any faith has the right to bring an action for the purposes set out in Article 5 of the FCO”.
In addition, there is another quick remedy for anyone interested in exercising the guardianship or custody of a minor by filing an application under article 100 of the 1898 Code of Criminal Procedure with a metropolitan magistrate or d ‘a first class magistrate or executive magistrate immediately seeking action issuing a search warrant although this article does not purport to deal with guardianship.
It appears that there are sets of laws dealing with guardianship and although the G&W Act was enacted with the aim of consolidating and amending all laws relating to guardian and ward, the G&W Act has failed to consolidate all applicable laws on guardianship. There is no express provision in the G&W Law which makes it overriding law or invalidates the appointment or declaration of a guardian under any other applicable law. Therefore, if a guardian is validly appointed for a child under Muslim personal law, that guardianship will not be terminated by exercising powers under G&W law.
In addition, in some cases, the G&W Law has also created anomalies and confusion and has contradictory effects with Muslim law. First, while a guardian is responsible for “the custody of the ward” in accordance with section 24 of the G&W Act, Sharia, on the other hand, has clearly distinguished between “the custody of the children” and “the custody of the children”. guardianship of the person ”. According to Sharia, a mother only enjoys the right to “custody” while the father can enjoy both the right of “guardianship and custody”. Apart from this, according to article 361 of the Penal Code of 1860, the term “legal guardian” refers only to “the care or custody” of such a minor or another person. According to Sharia, the mother can never enjoy the right of “guardianship of a minor”.
Second, according to Sharia, there is no possibility to consider the welfare of the minor in the appointment of a guardian while there is a timeline to follow which are – (a) the guardianship right of the no one belongs first to the father, then to the grandfather and other agnate men. (b) the right of guardianship over property belongs first to the father, then to the grandfather and to any person at his will or to any person designated by the court. (c) in the event of guardianship both over the person and over the property, no one other than the father and the grandfather can enjoy this guardianship. On the contrary, according to section 17 of the G&W Act, when appointing or declaring the guardian of a minor, the family court must take into account the welfare of the minor. If the minor is old enough to form a smart preference, the court may consider that preference. The court will not appoint or declare a guardian against his will.
In addition, in accordance with section 8 of the G&W Act, any person – desiring to be, or claiming to be, the guardian of the minor, or any relative or friend of the minor, or the district collector – has the right to request for the guardianship of a minor.
It is now in practice that the family court takes cognizance of the action concerning the guardianship of a minor according to the FCO and by appointing or declaring guardians, the court follows the procedure mentioned in the G&W law with the FCO , if applicable, instead of following the timeline required for the appointment of guardians in accordance with Sharia law. In appointing or declaring the guardian of a Muslim, considering any matter other than the ordinance prescribed by the Sharia and making a mother responsible for the guardianship of the person takes precedence over the provisions of the 1937 law. on the application of Muslim personal law (chariat).
The author is a company lawyer.