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Child Adoption Procedure in Bangladesh and Guardianship under Muslim Law

Previously, in 1972 the procedure of an adoption was simple, mainly for speeding up the adoption by the foreign foster parents of the children who lost their parents in the liberation war. But this procedure was amended in 1981.

The 1981 amendment states that the foster parents can now only get the guardianship of a child.

However, only Bangladeshi citizens are eligible to apply for guardianship of Bangladeshi children. Granting guardianship of Bangladeshi children to non-Bangladeshi parents is prohibited by the 1982 Guardianship and Wards Amendments Ordinances.

A Bangladeshi citizen, who is interested in adopting a child, may contact organizations who are working for the child adoption like an NGO, an orphanage or may be an individual, who are willing to give a child up for adoption.

There are some documents required for obtaining for legal guardianship of a child and those are:

– Birth Certificate of the minor

– An irrevocable release of the child must be signed by ‘biological parents’ before a Notary Public or Magistrate here in Bangladesh.

– An application for legal guardianship must be made to the Family court which has the sole jurisdiction over family matters.

– A ‘No Objection Certificate’ must be obtained from the Home Ministry.

– Some other documents may also require for individual cases.

Therefore, the foster parents must collect all of these documents and reach out to the Family court to get permission as custodian or guardian of the adopted child.

If s/he/foster parents get the permission from the court, s/he/foster parents are legally permitted to take the child’s guardianship. After getting the permission from the court s/he/foster have to submit the court’s permission to the respective person or organization who has the guardianship of the child.

Once the permission documents are presented, the foster parents or person can take the child in custody and the adoption procedure is completed.

The ‘No Objection Certificate’ and ‘legal guardianship’ documents should be presented to the Bangladesh Passport Office for the child’s passport.

Guardianship under Muslim Law
Father is always a lawful guardian and mother is the custodian of a child. Muslim Law in case of custody prefers mother. After the death or divorce of mother when she remarries, relatives of maternity relations will get priority over relatives of paternity character. Mother is defacto guardian. A brother, uncle or father in-law etc, is also defacto guardian. Defacto guardians are not entitled to transfer property of the minor without permission of Court.

Father is guardian. Father need not require any permission to work as guardian of the body and property of a child. However, in some cases such as- a mother died leaving property where 2 sons and husband remain alive. In this case father must require permission from the Court to manage and utilize property of the child for which they shall become shareholder/heir/owner of their deceased mother’s property.

After father, guardian of a minor shall be appointed according to will of father or father’s father/ grand father and thereafter as per will of grand father.

The Court can appoint a person as guardian as stated below under different laws of Bangladesh.

Guardianship for marriage-
Husband after marriage becomes guardian of a woman except in the case when the girl is a minor. A husband can not appoint a guardian for a wife. Under the Muslim Marriage and Divorces Registration Act, 1974 and the Rules made thereof, there is a provision of guardianship in marriage (Kabinnama/ Nikahnama form clause nos. 2,4, 7,8,11).

Guardianship for body-
Father is always an ordinary lawful guardian of a child and in his absence the Wasi of father i.e. the grandfather.

According to section-7 of the Guardianship and Wards Act, 1890 a Court may appoint a person as the guardian of a minor.

The following persons can apply to be the guardian of a minor under the Guardianship and Wards Act, 1890 in Bangladesh:

(i) The person who wants to be a guardian or who claims himself as the guardian of the minor,
(ii) Any relative or friend of the minor;
(iii) Collector of the area where the minor resides or where his property is situated;
(iv) Collector who has influence upon the castes or classes of a minor. Under section-19 a husband of a minor girl may be a guardian of that girl and a collector may be a guardian as functus officio. The relationship of a guardian with a minor is based on uberimae fiedi

A guardian either appointed or declared may get remuneration for his service. A guardian is bound to follow the rules of maintenance, health, education and others for the benefit of the minor as stated in section-24. If any Wards abandons the custody of a guardian, the court may issue a warrant to arrest the Ward and to retain him to the custody of the guardian if it is beneficial for the Ward. A guardian may be discharged from his post as mentioned in sections 38 and 39 for many grounds such as inability to perform duty or abuse of trust or death or insolvency or changing residence outside court’s jurisdiction etc. A guardian may be punished under section-44 for six month imprisonment in civil jail or one thousand taka fine.

Guardianship for property-
In respect of property a guardian will be bound to preserve, protect and do all necessary acts as it is necessary for the benefit of the property as his own. If any guardian is appointed through will he must follow the provisions of will in respect of mortgage, trust, sale, gift, exchange or other kinds of transfer of property. If any body is appointed as a guardian through Court he will not be allowed to change the character of the property by any means as mentioned in section-29 to 34A of the Guardianship and Wards Act, 1890.

If any property of the ward or minor is transferred by a guardian without consent of the minor, after attaining majority (i.e. 18 years of age), the child/ ward/minor can deny such transfer and apply within 3 years (i.e. 18+3=21) to cancel such transfer (Article 44 of the Limitation Act, 1908).

Custody of the child (Hizanat)-
According to Muslim Laws of Bangladesh, A boy below or upto 7 years shall be in the custody of mother after divorce and thereafter shall go to the custody of his father. A girl child shall remain in custody of mother till puberty or up to her marriage. However, the Family Court shall consider welfare of the child (during trial for providing better opportunity of the child and his/ her mental growth and development) in deciding his/ her custody and shall apply its own discretion except in the case of mutual settlement among the parties to a marriage. Marriage between a male and female is the valid form in the context of Bangladesh which is guided by the personal or religious laws of different communities.

The Appellate Division in Abu Bakar Siddiq vs. A B Siddique granted custody of an eight year old boy to his mother considering the welfare of the child as of paramount interest.

If mother marries further after her divorce, she will lose her right to hizanat over her child.

In that case of 2nd marriage of mother or after death of a mother, minor child shall remain in custody of his/ her (i) mothers mother how high so ever (ii) fathers mother how high so ever etc,.. If above guardians no longer exists father or fathers father will be entitled to take custody or hizanat of the child along with other male relatives.

Guardianship and Family Court-
A suit/ case for guardian ship shall be filed under section 5 of the Family Court Ordinance, 1985. However for appointment of a guardian, the Court shall follow the provisions of the Personal law and also the Guardianship and Wards Act, 1890 (section 24). An Appeal against the order of the Family Court shall lie to the District Judge within 30 days. The Family Court ha sits own proceedings and be treated as a Civil Court. However, in some cases it can exercise its jurisdiction like a Magistrate to execute warrant.

Section-5. Subject to the provisions of the Muslim Family Laws Ordinance, 1961 (VIII of 1961), a Family Court shall have exclusive jurisdiction to entertain, try and dispose of any suit relating to, or arising out of, all or any of the following matters, namely:-

(a) dissolution of marriage;

(b) restitution of conjugal rights;

(c) dower;

(d) maintenance;

(e) guardianship and custody of children.

Section-24. (1) A Family Court shall be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890 (VIII of 1890), and notwithstanding anything contained in this Ordinance, shall, in dealing with matters specified in that Act, follow the procedure specified in that Act.

(2) Notwithstanding anything contained in theGuardians and Wards Act, 1890 (VIII of 1890), an appeal from an order made by a Family Court as District Court under that Act shall lie to the Court of District Judge, and the provisions of section 17 shall apply to such appeal.

Guardianship and the High Court Division-
If a child is denied to send to his mother’s custody and detained in father’s custody a writ of habeas corpus (article 102 of the constitution) may be filed to the High Court Division for releasing the child.

Unlawful confinement and Cr P C,1898- Section 100 of the Code of Criminal Procedure, 1898 may also be applied in exceptional cases to save a child from unlawful confinement.

Guardianship and the District Judge’s Court-
The District Judge shall Act as an Appellate Court for any dispute regarding appointment of guardianship/guardian passed by an order or judgement or decree by a Family Court (section-17 of the Family Court Ordinance, 1985). An appeal shall be filed within 30 days. However, the District Judge can act as a Court for the appoint of guardianship under the Lunacy Act, 1912.

Who can apply for guardianship?
The following persons can apply to be the guardian of a minor under the Guardianship and Wards Act, 1890 in Bangladesh:

The person who wants to be a guardian or who claims himself as the guardian of the minor,
(ii) Any relatives or friends of the minor;
(iii) Collector of the area where the minor resides or where his property is situated;
(iv) Collector who has influenced upon the castes or classes of a minor.Father is a natural guardian of the child. Parents are always natural guardian. However, parents can not transfer property of a minor child/ ward without permission of the Court (section24 of the Family Court Ordinance to be followed). If any property of the ward or minor is trasferred without consent , after attaining majority (i.e. 18 years of age), the child/ ward can deny such transfer and apply within 3 years (i.e. 18+3=21) to cancel such transfer (Article 44 of the Limitation Act, 1908).

Summary of the Guardianship and Wards Act, 1890-
According to section-7 of the Guardianship and Wards Act, 1890 a Court may appoint a person as the guardian of a minor.

The following persons can apply to be the guardian of a minor under the Guardianship and Wards Act, 1890 in Bangladesh:

(i) The person who wants to be a guardian or who claims himself as the guardian of the minor, (ii) Any relative or friend of the minor; (iii) Collector of the area where the minor resides or where his property is situated; (iv) Collector who has influenced upon the castes or classes of a minor. The above persons can apply to be a guardian of the minor following the format as mentioned in section-10 of the Act and it will be filed like a plaint under CPC. Based on the application the Court shall issue notice, take evidences and may pass interim order. At the time of appointing guardian the court shall give priority the personal law of the minor, benefits of the minor, his religion, relative’s priority and disqualifications to be a guardian and also the court shall follow strictly if there is any will of the parents of the minor.(section-17).Under section-19 a husband of a minor girl may be a guardian of that girl and a collector may be a guardian as functus officio. The relationship of a guardian with a minor is based on uberimae fiedi. A guardian either appointed or declared may get remuneration for his service. A guardian is bound to follow the rules of maintenance, health, education and others for the benefit of the minor as stated in section-24. If any Wards abandons the custody of a guardian, the court may issue a warrant to arrest the Ward and to retain him to the custody of the guardian if it is beneficial for the Ward. In respect of property a guardian will be bound to preserve, protect and do all necessary acts as it is necessary for the benefit of the property as his own. If any guardian is appointed through will he must follow the provisions of will in respect of mortgage, trust, sale, gift, exchange or other kinds of transfer of property. If any body is appointed as a guardian through Court he will not be allowed to change the character of the property by any means as mentioned in section-29 to 34A. A guardian may be discharged from his post as mentioned in sections 38 and 39 for many grounds such as inability to perform duty or abuse of trust or death or insolvency or changing residence outside court’s jurisdiction etc. A guardian may be punished under section-44 for six month imprisonment in civil jail or one thousand taka fine.

Edit by- Advocate Shoaibur Rahman

(লেখাটি স্বত্ব সংরক্ষিত, অন্যত্র কপি/নকল বারিত।তবে স্বত্ব উল্লেখপূর্বক হুবহু প্রিন্ট অথবা শেয়ার করতে বাধা নেই।)

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