Progressive evolution of guardianship laws in Bangladesh

A "guardian" is someone who takes care of a child, looks after the child's property, or both, according to Section 4(2) of the Guardians and Wards Act, 1890. However, under Muslim law, guardianship is divided into two types based on function: Waliyat alal Nafs and Waliyat alal Mal.

Waliyat alal Nafs refers to the guardianship of a minor's person, which includes all aspects of personal care and supervision, such as education, marriage, and other personal matters. The father is regarded as the natural guardian of his minor child, and this right is considered absolute. His authority as guardian continues irrespective of who has the actual custody of the child. Even if the mother or another person has physical care of the child, the father remains the legal guardian of both the person and the property of the minor. It is worth noting that, along with this right of guardianship, the father bears the primary duty of maintaining his child. In the absence of the father, the right of guardianship passes to the male agnates according to a specific order. After the father, the paternal grandfather becomes the guardian, and upon his death, the responsibility may pass to the adult brother, then to the adult sons of the brother, and finally to the paternal uncle (Haque 2015).

Waliyat alal Mal on the other hand, concerns the management and protection of a minor's property. The father is also the legal guardian of the child's property. If the father dies, the paternal grandfather assumes the same authority. After the death of both the father and the paternal grandfather, the guardianship may be exercised by a person appointed through a will (wasiyat) made by either of them. In absence of such an appointment, the court may designate a guardian known as a statutory guardian, whose appointment is guided by the best interest and welfare of the child.

Consequently, under classical Sharia law, the mother does not have the right of guardianship over her child, even in the absence of the father. This position is supported by Section 19(b) of the Guardians and Wards Act, 1890, which states that the court cannot appoint another person as a child's guardian if the father is alive and considered fit to take that responsibility. However, this provision has recently been challenged in Bangladesh on the grounds of equality and gender-based discrimination. In a landmark judgment, the High Court Division in the Azmeri Haque Badhon case declared Section 19(b) unconstitutional for being inconsistent with Articles 26, 27, and 28 of the Constitution. As a result, Azmeri Haque Badhon became the first mother in Bangladesh to be recognised as the full legal guardian of her daughter despite the father being alive. Previously, in 2009, a collective initiative by three human rights organisations- Bangladesh Legal Aid and Services Trust (BLAST), Bangladesh Mahila Parishad, and Naripokkho led to a writ petition demanding that mothers be recognised as the legal guardians of their children for school registration and admission. In this case, the court also responded progressively, stating that even a single mother alone would suffice as the legal guardian. These rulings represent a significant step toward gender equality in family law and have broadened the scope for equal rights of guardianship for both father and mother.

Although the mother holds the first right to hidanat or custody, this right is limited to physical care and upbringing and does not extend to making legal or financial decisions for the child. For a son, this right continues until he reaches the age of seven, and for a daughter, until she attains puberty. When a child reaches the age of discretion, usually around seven years or upon attaining maturity, the court may take the child's preference into account regarding which parent they wish to live with. However, the final decision ultimately rests with the court, guided by the best interest of the child.

Section 17 of the Guardians and Wards Act, 1890, provides that in appointing or declaring a guardian, the court must always consider what would best serve the interest of the minor. Factors such as the age, sex, and religion of the minor, the character and capacity of the proposed guardian, and the child's own preference, if mature enough, must all be taken into account. The Md. Abu Bakar Siddique v. S.M.A. Bakar (1986) case established an important precedent in this regard, holding that the welfare of the minor can override traditional age- and sex-based rules of custody under Muslim law.

Thus, the laws of guardianship and custody under Muslim family law in Bangladesh reflects a gradual evolution from classical interpretations to modern, welfare-oriented approaches. Traditionally, the father's authority was regarded as paramount, but recent judicial developments, which maintain a harmonious balance between Islamic jurisprudence and the constitutional principles of equality and justice, have initiated a progressive shift toward recognising the mother's equal capacity as guardian.

The writer is official contributor to Law & Our Rights, The Daily Star.