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Guardianship and Adoption under Muslim law and Hindu Law

What is guardianship? Who is a guardian?
Guardianship means legal authority and corresponding duty of a person to care for another person (a child, a disabled, an aged old etc,) relating to his body or property. A person under the protection of another is commonly known as ward.

A guardian is the person who makes the important decisions about the children’s life. S(he) takes on all the duties, rights, responsibilities and powers that a parent has in bringing up that child.

A guardian may be classified as natural or by relationship or by appointment of the Court or respective authority.

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

Guardianship may be either de jure or de facto and it includes the body and property of a child. There is a difference under Muslim law between guardianship and Hizanat (supervise/custody). There is a law in respect of this known as Guardianship and Wards Act, 1890. The Family Court Ordinance 1985 is also applicable for guardianship in Bangladesh.

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 dejure 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 under Hindu Law-
The Guardianship and Wards Act, 1890 is equally applicable for Hindus of Bangladesh like Muslims in determining guardianship. In Hindu Law there is/ was a system of joint family. In India, there is a law known as the Hindu Guardianship and Minority Act, 1956. This Law has codified and consolidated differences on guardianship prevailed in personal laws of various states in India. Bangladesh may follow the Law and enact a new law for Hindus, (if required) to abolish anomalies. In Bangladesh, a guardian may be –
(i) Natural Guardian,
(ii) Guardian appointed by will/ Testamentary Guardian
(iii) Guardian appointed by Court.

The provisions of defacto guardian, adhoc guardian and guardian ad litem is also applicable for Hindus. The natural guardian included The Father, the mother, matenal relations and paternal relations.

Section32 of the Code of Civil Procedure stated on guardian ad litem. There was a law known as the Court of Wards Act, 1879 applicable on the matter.

So, to fix a case on custody of the Child in respect of Hindu Law, one may go to the Family Court under the Family Court Ordinance, 1985 or to the High Court Division through habeas corpus writ or may file a petition under section 25 of the Guardianship and wards Act, 1890. The welfare of the child shall be paramount interest in deciding guardianship of a child under the Act of 1890 and also supported by case decisions such as Hanuman Prashad vs. Mosammat Babui-1856.

The guardianship of an adopted child goes to his adopted father/ mother to his natural parents after adoption process is completed under Hindu Laws.

If the identity of a person could be made regarding paternity of an illegitimate child, that person shall be the guardian of the child otherwise it is duty of the state to take responsibility for such child under the Women and Child Repression Prevention Act, 2000. The concept of illegitimacy of a child is not prevailing now in many western countries.

If any Hindu Changes his religion, he may lose his guardianship. However, the caste Disabilities Removal Act, 1850 stated that guardianship shall not be destroyed/ abolished due to the change of caste.

Guardianship and adultery case-
A person shall file a guardianship case for body (Hizanat) to the Family Court under the Family Courts Ordinance 1985. If the guardianship relates to property of child, a suit shall be filed before the District Court or Family Court. In general, the Family Courts or any Judge may be empowered by the District Judge to try such case following the provisions of the Guardianship and Wards Act, 1890. If the guardianship relates to the body and property of a lunatic, the provisions of the Lunacy Act, 1912 shall be followed for which the District Judge is the competent authority in general.

An adultery case shall be filed by the Husband or guardian of the women against any male partner who committed adultery under sections 497/498 of the Penal Code, 1860. A woman shall never be liable for adultery under existing laws of Bangladesh.

Adultery means willful sexual intercourse with a married woman by a male partner without consent of the spouse/husband.

Age of a child in the context of Bangladesh-
In respect of age of a child the Majority Act ,1875says, 18 years, the Children Act,1974 (now substituted by the Act of 2013) says 16 years; the Child Marriage Restraint Act, 1929 says 18 years for girl and 21 years for male; Women and Child Repression Prevention Act,2000 says 16 years; The Code of Criminal Procedure, 1898 provides 15 years, the Factories Act, 1965 (now repealed) says 16 years and the Penal Code, 1860 provides a child shall not be punished for an offence when he is below nine years of age and if a child is over 9 years of age but below 12 years than the Court shall exercise its discretionary power to punish the child if it presumes that the child had sufficient knowledge about the nature and consequences of the commission of the act.

The Penal Code: sections- 82,83,87,89,90,300
Explanation-5,310 deals with child and the corresponding sections not defined child but woman that includes child u/s-10,317,361,366A,366B,369,372,373,375 Exception,sixthly,376(2)(f) of the PC. If a child who is below 15 years of age is convicted his conviction will be suspended under section-399 of Cr P C and he will be send to a probation officer under the Probation Act, 1861.

The Domestic Violence (Prevention and Protection) Act, 2010 (Act No. 58 of 2010), in section 2 stated that a child means a person not completed 18 years of age. The Human Trafficking Prevention and Suppression Act, 2012 (Act No. 3 of 2012), also mentioned that a child is below 18 years of age. The same is also stated in the Pornography Control Act, 2012.

The Children Act, 2013 stated that a child means a person below 18 years of age. So, most of the Laws as stated above or not stated but prevailing on different perspectives further stated below 18 years or not more than 18 years as the age of a child/minority.

Who is a child? What Laws stated child rights in national and international arena?
According to article-1 of the convention on the Rights of the Child (CRC) 1989 that a child means every human being below the age of eighteen years unless the law (national law) applicable to the child, majority is attained earlier. Although there are many state laws in many particular countries through which a child may attained the age of majority earlier than it is provided in the convention, it is ultimately a state obligation to follow the provisions of the convention in respect of discrimination (article-2), the best interest of a child (article-3), the maximum extent possible the survival and development of the child (article-6) etc. Marriage conducted/professed below 15 years of age or ages as fixed by state law is appropriate age of marriage under International law.

There are some important treaties (international law) deals with the rights of a child which are as follows:
-Declaration of the Rights of the Child 1959;
-Declaration on Social and Legal Principles relating to the Protection and welfare of Children with Special reference to Foster Placement and Adoption Nationally and Internationally 1986;
-Recommendation on consent to Marriage, Minimum Age for Marriage and Registration of Marriages 1956;
-Convention on the Rights of the Child 1989;

Who is minor?
The Majority Act, 1875 states that a minor means a person below 18 years of age. However, if a guardian is appointed, the minority shall be continued upto the age of 21 years.

A person under Muslim (Hanafi) Law becomes sexually adult at the age of 15. An adult i.e. commonly a person above 18 years of age is free to take any decision about himself.

Who is ward?
In law, a ward is someone placed under the protection of a legal guardian.

Adoption-
Adoption is a process whereby a person assumes the parenting of another, usually a child, from that person’s biological or legal parent or parents, and, in so doing, permanently transfers all rights and responsibilities, along with filiation, from the biological parent or parents. Unlike guardianship or other systems designed for the care of the young, adoption is intended to effect a permanent change in status and as such requires societal recognition, either through legal or religious sanction.

Adoption under Muslim Law-
The Holy Qur’an abolished this jahili system of adoption, prohibiting it totally and eradicating all its consequences. Says Allah Ta’ala: …Nor has He made your adopted sons your (real) sons; that is simply a saying of your mouths. But Allah speaks the truth, and He guides you to the (right way). Call them by (the names of) their fathers; that is more just in the sight of Allah. But if you do not know their fathers, they are your brothers-in-faith and your wards….(33:4-5)

But the word “adoption” is also used in another sense, one which is not prohibited by Islam—that is, when a man brings home an orphan or a foundling to rear, to educate, and to treat as his own child; he protects, feeds, clothes, teaches, and loves the child as his own.

The style of Islamic adoption is similar to a Guardianship. If the Guardian considers, the child may get ownership of the property through heba/ donation/ gift/ will etc, but no adopted/orphan child under the Muslim law can claim inheritance in Bangladesh like Hindus.

So, adoption is prohibited/ not allowed under Muslim Laws of Bangladesh but it is practically not impossible as any person can apply to the Court or by Law (Guardianship Act 1890) may become guardian of the body and property of a child.

Adoption under Hindu Law-
In Hindu Law adoption is allowed. Adoption is a process whereby a person assumes the parenting of another, usually a child, from that person’s biological or legal parent or parents, and, in so doing, permanently transfers all rights and responsibilities, along with filiation, from the biological parent or parents.

An adoption under Hindu Law is for religious and spiritual purposes and therefore a male child is allowed to be adopted in religion. However, in statutory laws of India allowed to take male or female child as adoption. The person wanted to adopt must not have any male child under Hindu Law knows as dattaka following kritrima forms. Widow’s power to adopt is also restricted in Bangladesh which is allowed in India followed by the Hindu Adoptions and Maintenance Act, 1956.

According to Hindu Law, “An adopted son shall never take the family name and the estate of his natural father; the funeral cake follows the family name and the estate; the funeral offerings of him who gives his son in adoption ceases” (Manu).

There are religious and other formalities under Hindu Law for adoption which must be complied with statutory law for claiming rights.

Article 118 of the Limitation Act stated that to cancel adoption one must apply within 6 years from the date of his knowledge of adoption.

Adoption and Guardianship-
An adopted child shall be entitled to the property of his adopted parent through inheritance while in case of guardianship it depends on the relationship of the child with his guardian followed by the personal laws of the guardian.

Bangladesh has no statutory provisions governing adoption or legal mechanism for adoptions to exist. Bangladesh law, however, permits its own citizens to apply for legal guardianship of children. Under Bangladeshi law, the 1982 Guardianship and Wards Amendments Ordinances prohibit granting legal guardianship of Bangladeshi children to non-Bangladeshi parents.

U.S. Immigration Requirements for adoption/ guardianship-
A Bangladesh child who is the legal ward of a U.S. citizen must obtain an immigrant visa before he or she can enter the United States as a lawful permanent resident. After entering the United States, the prospective parents are able to finalize the adoption, and the child can then obtain citizenship.

While there are several different types of immigrant visas available to adopted children, since Bangladeshi law does not allow for full legal adoptions, adoptive children in Bangladesh usually qualify for the IR-4 immigrant visa category (orphan whose adoption will be finalized after admission to the United States). In this case, the child must qualify under section 101(b)(1)(F) of the U.S. Immigration and Nationality Act in order to apply for an immigrant visa. The main requirements of this section are as follows:

-At least one of the adoptive or prospective adoptive parents must be a U.S. citizen;
-The child must be under the age of 16 at the time an I-600 Petition is filed;
-If the adoptive or prospective adoptive parent is married, his or her spouse must also be a party to the adoption;
-If the adoptive or prospective adoptive parent is single, he or she must be at least 25 years of age;

The child must be an orphan, as defined by U.S. regulations. Please note that if it is revealed during the IR-4 immigrant visa interview that the child does not meet the qualifications of an orphan as defined by U.S. regulations, the petition may be returned to USCIS.

Requirements for Obtaining Legal Guardianship in Bangladesh as per US Embassy info

(Note: Prospective adoptive parents must be at least 18 years old and provide proof of Bangladeshi citizenship.):

The biological parent(s) must sign an irrevocable release of the child before a Notary Public or Magistrate in Bangladesh.

An application for legal guardianship must be made to the Family Court. In Bangladesh, the Family Court has sole jurisdiction over family matters.

The prospective adoptive parents must obtain a ‘No Objection Certificate’ from the Home Ministry.

The ‘No Objection Certificate’ and legal guardianship documents should be presented to the Bangladesh Passport Office for the child’s passport.    
  
Prospective adopting parents should be listed as the legal guardians in the child’s passport.

The Bangladesh government does not approve adoption agencies or attorneys. The U.S. Embassy can provide a list of Bangladeshi attorneys conversant with family law in Bangladesh. The Embassy can also assist in providing contact information for local established charitable orphanages. The U.S. Embassy Dhaka, Bangladesh assumes no responsibility or liability for the professional ability or reputation of, or the quality of services provided by, the persons or firms mentioned in the list.

To adopt an orphan child, additional proceedings must be followed. See the Department of State’s Intercountry Adoption Website for detailed information on the adoption process in Bangladesh: http://adoption.state.gov/country_information/country_specific_info.php?country-select=bangladesh

Adoption and the Registration Act, 1908-
Section 17 (3) of the Registration Act stated that “Authorities to adopt a son, executed after the first day of January 1872, and not conferred by a will, shall also be registered.” Section- 41 of the Act further provided that –

(1) A will or an authority to adopt, presented for registration by the testator or donor, may be registered in the same manner as any other document.

(2) A will or authority to adopt presented for registration by any other person entitled to present it shall be registered if the registering officer is satisfied-

(a) that the will or authority was executed by the testator or donor, as the case may be;

(b) that the testator or donor is dead; and

(c) that the person presenting the will or authority is, under section 40, entitled to present the same.

Adoption and the Limitation Act, 1908-
Article 44 of the Limitation Act stated that “By a ward who has attained majority, to set aside a transfer of property by his guardian. Can file a suit for cancellation of transfer with in 3 years When the ward attains majority.

Section 19 to 21 of the Limitation Act also applicable in respect of guardianship to admit or acknowledge liability in favour of a minor child and also to pay interest by a defacto guardian.

Adoption and the CRC, 1989-
Article-21 provides that States parties shall recognize and /or permit the system for adoption shall ensure that the best interests of the child shall be the paramount consideration.

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 the Guardians 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.

Guardianship of abandoned child-
For abandoned child there was an ordinance passed by the Government in 1972(P.O. No. 124 of 1972);. However, it is repealed by the Bangladesh Abandoned Children (Special Provisions) Repeal Order, 1982.

Now, a person through Court can apply for guardianship of a minor/abandoned child under the Guardianship and Wards Act, 1890.

Guardianship of a lunatic-
A lunatic, whatever his age, shall be under the custody and maintenance of above legal guardians. The appointment of guardian of a lunatic shall be decided by a District Judge following provisions of the Lunacy Act, 1912.

Edit by- M Shoaib Rahman Advocate

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

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