The fundamental law to regulate guardianship in Bangladesh is the Guardians and Wards Act (G&W Act) which was enacted in 1890 with the purpose of consolidating and amending all laws relating to a minor for whose person or property or both there is a guardian in the country. This Act extends to the whole of Bangladesh and is applicable for all people irrespective of their religion and status.
However, there are few other laws in place which regulate the matter of guardianship for specific group of people. For example, if the parties to any proceeding are Muslims, all questions regarding guardianship shall be determined by the Muslim personal law (Shariat), notwithstanding any custom or usage to the contrary, as per section 2 of the Muslim Personal Law (Shariat) Application Act, 1937.
Again in 1985, the Family Courts Ordinance (FCO) was enacted for the establishment of Family Courts having exclusive jurisdiction to entertain suit relating to ‘guardianship and custody of children’ among other special matters. Though the FCO has provided the Family Courts exclusive jurisdiction to entertain suit relating to guardianship, it has not expressly invalided the application of the G&W Act to questions of guardianship before the Family Courts. Rather according to section 24 of the FCO, the Family Court is required to follow the procedure specified in the G&W Act in dealing with matters of guardianship of a minor.
It is pertinent to mention here that, a non-Muslim can also seek remedy as to the matter of guardianship of a minor in the Family Court because the FCO has not made it clear whether the FCO is applicable to the citizens having any specific religious faith. In the case of Nirmal Kanti Das vs Sreemati Biva Rani, [47 DLR 514] the High Court Division held that, “a person professing any faith has got every right to bring suit for the purpose as contained in section 5 of the FCO.”
In addition, there is another speedy remedy for any person interested to take guardianship or custody of a minor by filing an application under section 100 of the Criminal Procedure Code, 1898 to a Metropolitan Magistrate or Magistrate of the first class or an Executive Magistrate seeking immediate action issuing search warrant though this section does not purport to deal with guardianship.
It appears that there are sets of laws to deal with guardianship and although the G&W Act was enacted with the purpose 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 Act which makes it an overriding law nor makes invalid to appoint or declare a guardian under any other laws in force. Therefore, if a guardian is validly appointed for a child under Muslim personal law, that guardianship will not be cancelled by exercising powers under the G&W Act.
Besides, in some cases, the G&W Act has also created anomalies and confusion and it has some conflicting effect with Muslim Law. Firstly, while a guardian is charged with the ‘custody of the ward’ according to section 24 of the G&W Act, the Sharia law, on the other hand, has clearly distinguished between ‘custodial care’ and ‘guardianship of person’. According to the Sharia law, a mother enjoys the right to ‘custodial care’ only while the father may enjoy the right of both ‘guardianship and custodial care’ at the same time. Apart from that, according to section 361 of the Penal Code, 1860 the term ‘lawful guardian’ refers only ‘care or custody’ of such minor or other person. As per Sharia law, mother can never enjoy the right of ‘guardianship of a minor.
Secondly, according to Sharia law, there is no scope of considering the welfare of minor in appointing guardian while there is a chronology to follow which are— (a) the right of guardianship of person belongs to father first, then to grandfather and other male agnates. (b) right of guardianship of property belongs to father first, then to grandfather and anyone according to their will or anyone appointed by the Court. (c) in case of guardianship of both person and property, no one else other than father and grandfather would be able to enjoy this guardianship. On the contrary, according to section 17 of the G&W Act, in appointing or declaring the guardian of a minor, the Family Court shall have to consider the welfare of the minor. If the minor is old enough to form an intelligent preference, the Court may consider that preference. The Court shall not appoint or declare any person to be a guardian against his will.
In addition, according to section 8 of the G&W Act, any person – desirous of being, or claiming to be, the guardian of the minor, or any relative or friend of the minor, or the Collector of the district – are entitled to apply for guardianship of a minor.
It is now in practice that the Family Court takes cognisance of the suit regarding guardianship of a minor as per FCO and in appointing or declaring guardians, the Court follows the procedure mentioned in the G&W Act along with the FCO, as applicable, instead of following the chronology required for appointing guardians as per Sharia law. In appointing or declaring a guardian of a Muslim, considering any other matter rather than the order prescribed by Sharia law and charging a mother with guardianship of person overrides the provision of the Muslim Personal Law (Shariat) Application Act, 1937.
The writer is a Corporate Legal Practitioner.
