Guardianship and custody of children are the most sensitive and crucial of family law issues, especially in case of marital breakdown or parental death. The guardianship and custody issues of the Hindu minority community are governed under Hindu personal law in Bangladesh, though they are uncodified. Instead, they are founded to a great degree on classical texts, custom, and court decisions, especially of the Dayabhaga school of Hindu law, which dominates Bangladesh. 

Abdur Rahim has defined guardianship in the following manner:

“A right to control the movements and actions of an individual who by reason of mental deficiency, is incapable of caring for himself and managing his own affairs, e.g., an infant, an idiot, a lunatic It may include custody of an individual and the authority to manage property of a ward.” 

Guardianship would typically mean legal guidance and responsibility for the upbringing of the child, and custody would mean physical residence with the child and daily care. Despite the need to give precedence to the safeguard of the child, Hindu personal laws reinforce patriarchal tradition and inheritance-related interests above child-oriented values. Also, since Hindu law has not been codified in Bangladesh, unlike that of Muslims and Christians, application of the law of guardianship and custody remains arbitrary and archaic.

This assignment elaborates on the child custody and guardianship laws of Bangladesh under Hindu law, more particularly the loopholes in the law and practical challenges in the family courts. Through an analysis of three leading cases, statute provisions, and comparative insights, this essay will contend that there is an urgent case for legislative reform to give paramount consideration to the best interests of the child in custody and guardianship decisions.

Legal Principles Framework of Guardianship and Custody:

All personal laws, to which this paper is addressed to the people, contain legal provisions on guardianship and custody. These are important issues in relation to the matrimonial affairs and issues. Especially, the distinction becomes unmistakably important in the area of disputes or separation between the parents. So, at a minimum, there are some differences between guardian and custodian. Guardianship is about exercising certain kind of parental authority on the children. Guardianship may sometimes include the custody of the minor as well. The Differences between Guardianship and Custody:

• Guardianship comes into existence by law, automatically, while custody is given to a parent who applies for it.

• A guardian may not be a custodian, and a custodian might not be a guardian. However, a guardian, even if he is not a custodian, can make certain decisions, including matters of marriage or education of the child.

• Guardian is a broader concept, and has more extensive rights than mere custody. 

The Hindu personal law In Bangladesh is founded upon uncodified religious texts, precedents, and customs. The primary school of Hindu law that is applied in Bangladesh is the Dayabhaga school, which differs from the Mitakshara school of Indian Hindu law. In the area of guardianship and custody, Hindu law recognizes several classes of guardians: 

1. Natural Guardians

2. Guardians appointed by father, by will or testamentary guardians

3. Guardians appointed by the court under the Guardians and Wards Act, 1890, and

4. De facto guardians 

The father and then the mother Is the natural guardian of an unmarried female or a Hindu boy who has not attained majority. This sort of patriarchal precedence mirrors ancient values, not contemporary ones. The welfare of the child may not be the foremost consideration in Hindu law; guardianship is a question of property and paternal privilege.

The Guardians and Wards Act, 1890, Is a secular colonial law that is in force in Bangladesh and frequently used by the courts to displace traditional Hindu law in deciding child custody cases. According to this Act, the court may appoint a guardian “for the welfare of the minor,” in which judges are allowed discretion to give importance to the best interests of the child. 

But Hindu personal law is uncodified in Bangladesh, unlike the Hindu Minority and Guardianship Act, 1956 in India. Therefore, judges and lawyers are at a loss while deciding child custody cases, particularly when religious scriptures are silent or conflicting.

In custody cases, the mother is usually given physical custody of very young children on the basis that she will more easily be able to take care of them. Legal guardianship, however, usually stays with the father in the absence of exceptional circumstances. It is ambiguous and weakens the mother’s authority over the child’s affairs.

The law Is still based on patriarchal customs and does not incorporate the changing norms of human rights, gender equality, and child welfare. So, while there is judicial discretion under the act, the lack of a straightforward, codified Hindu family law regime in Bangladesh is a cause of uncertainty in the law.

Legal Gaps and Challenges in Hindu Child Custody and Guardianship Laws in Bangladesh:

The idea of guardianship is usually related to age of minority. Because, it is based on the best interest on child. The Shastric Hindu Law and Statute do have differences about the rules of guardianship which comes under Hindu Law. The Dayabhaga School stipulates that minority ends at age fifteen (15), while the Mitakshara School stipulates minority ends at age sixteen (16). Conversely, The Majority Act 1875 provides that a minor, if the person’s or property of that minor is under the management of the guardian appointed by any order of court or whose property is managed by a court, is by that defined as having arrived at his majority upon the expiration of twenty-one (21) years of age, and in all other cases by fifteen (15) years of age. 

Shastric Hindu Law:

Bangladeshi Hindu personal law is largely unwritten and is based on religious customs and the teachings of ancient scriptures. The Dayabhaga school of Hindu law has supremacy over guardianship and custody. Under this classical model, parties to the contract and 

natural guardian of both sons and unmarried daughters is the father. The paternal character comes in later on after the father has died, etc. 

Though mothers are awarded physical custody of young children, legal guardianship is father and his right is prevailed upon the court as to favor the lady.

Challenges:

Gender bias: The Shastric law is based on patriarchal principles which is discriminatory against women by nature of creating any inherent respect of their rights and obligations in the society compared to men as the fathers takes precedence over maternal links.

Non-codification: With Hindu personal laws not codified in Bangladesh, there has been disparity in interpretation and application of law, which in turn, has resulted in uncertainties in matters of custody and guardianship.

Saturday law:

The Guardians and Wards Act, 1890

This colonial style statute forms the general basis of legislation for appointment of guardians of minors, irrespective of the religion and is binding on all citizens.

o Section 7: Authorizes courts to appoint guardians for minors as needed. training data. 

o Section 7: Allows courts to appoint guardians for children in cases they deem necessary.

o Section 17(1): Requires the courts to consider the best interests of the child as the primary factor in appointing guardians.  

o Section 19(b): States that a guardian shall not be appointed if the father is alive and is not found unfit, restraining the mother’s opportunities to be appointed as a guardian while he is alive.  

Challenges:

Section 19(b) has come under criticism as it is discriminatory to mothers, restricting her eligibility for guardianship based on nothing but the existence (or optional involvement) of the father, without consideration for the best interests of the child. This provision has been challenged in court based on contradictory constitutional right to equality and freedom from discrimination.

2. The Hindu Widows’ Remarriage Act, 1856

This Act recognized the remarriage of Hindu widows as a valid marital status but limited certain rights and provided conditions for remarriage as follows:

o Section 2: The widow’s entitlement to her husband’s property shall cease upon remarriage. 

o Section 3: The relatives of the deceased husband can apply for guardianship of children if the widow remarries. 

Challenges:

Property Rights: The entitlement ceases on remarriage signals the widow to the lack of ownership after remarriage and it encourages economic uncertainty which all will have an indirect impact of children child neglect or unable to care for children.

Guardianship: the inclusion of this provision that allows relatives to claim guardianship through a widow remarrying diminishes motherhood in its possession of agency as a decision maker also deprives the child of the primary care giver.

3. The Hindu Minority and Guardianship Act, 1956

Though the bill was codified as part of the statute on issues related to Hindu guardianship law, it is important to note that this is Indian law inapplicable in Bangladesh, and there are many concerns this law does not cover and our failure to deal with the issues leads to a lack of legally codified Hindu guardianship law and reliance on outdated customary law and out dated male patriarchal law.

3.1. Constitutional and Human Rights Provisions

The Constitution of Bangladesh contains the following:

Article 27: Equality before law. 

Article 28(2): There shall be equality of opportunity for all citizens and the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth in respect of privilege or public employment. 

Challenges:

Current and previous law(s) are barriers to equality for women in very narrow and specific guardianship situations. For instance, under the Guardians and Wards Act, 1890, s.19(b) (that is relevant), states that in deciding "the residence of the ward" the Courts must be conscious to consider the welfare of the child as one of the considerations, if the guardian is a male person there is preference, this blatantly breaches Article 27 of the Constitution which provides equality before the law.

Personal Commentary

The current law concerning Hindu child custody and guardianship in Bangladesh creates significant barriers to women. Non-written Shastric law and the now obsolete Guardians and Wards Act 1890 and the Hindu Widows’ Remarriage Act 1856 lend themselves and create havens for gender discrimination against women and prevent attacking looted women’s rights as mothers.

In Bangladesh, we can see an urgent need for reform of the law on child custody. For example, replacing the ‘shastric law’ of a bygone era with more modern statutes reflecting current norms of gender equality and child welfare. Furthermore, amending provisions which allow gender discrimination against mothers, such as those in section 19(b) of the Guardians and Wards Act, when assessing if a appointment as guardian can be made; to ensure that mothers will never be discriminated against and will always be provided with an equal opportunity to be appointed as guardian of the child, on the principles of its best interests. Besides, providing for the particular property rights of widows; providing that while a widow can remarry, this does not limit the widow’s property rights or ability to take care of her own children.

In shining a light on these areas of law which are deficient and require legislative change, my hope is that Bangladesh would. 

Comparative Legal Deficiencies and Challenges (India v Bangladesh)

1. Codification of Hindu Law: India has passed codified legislation in the form of the Hindu Minority and Guardianship Act, 1956 and the Hindu Marriage Act, 1955, when statutory forms of guardianship and custody are more well defined. Bangladesh applies the colonial Guardians and Wards Act, 1890, a colonial law that does not have codified Hindu personal laws and therefore demonstrates disparities, gaps, and inconsistencies in law.

2. Best Interests of the Child: In India the courts have established a body of jurisprudence where the child’s welfare is the upper-most consideration (Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149). Bangladesh may purport to have the principle of welfare in the 1890 Act, but in a custody dispute the decisions turn to Shastric Hindu law which favours predominantly the father or paternal relatives- moreover this is further exaggerated if a woman is involved in the dispute.

3. Mothers entitlement to guardianship: India has given mothers statutory rights to guardianship after their husband the father (section 6 of the 1956 Act). Bangladesh does not have statutory recognition for mothers and must apply to a court for guardianship which is further complicated by patriarchal customs across the country.

4. Judicial Interpretation: The courts in India exhibit progressive interpretations by balancing adherence and traditional and constitutional rights.

By way of comparison, Bangladeshi courts have no codified Hindu laws to implement but rely on traditional religious texts, based on the life of the Hindu population there is often no application of gender solidarity.

5. Women’s Legal Protection: The legislation in India provides a greater degree of legal protection for Hindu women with respect to custody (including guardianship) and remarriage laws (the Widow Remarriage Act of 1856 without a doubt see[ed] a greater number of applications). 

The flawed customs of Bangladesh and importantly the lack of an `updating` statute with legal remedies for women with respect to custody and guardianship rights.

6. Reform is needed in Bangladesh: This comparison evidences the need for reform in Bangladesh with respect to realizing gender justice as regards access to justice; preventing and protecting children’s welfare; ensuring that any personal law is contemporary context-based only and accords, the constitutional calls for compliance with international human rights obligations and as much as possible contemporary understanding of statutory law.

Case Laws:

1. Chandre Prabuji Jain Temple v. Harikrislun, AIR 1973 SC 2565

Facts In Brief: The case was focused on the guardianship of a Jain family minor, and it led to concerns regarding authority of religion, and the welfare of a minor that was arising from sectarian translation of claims for guardianship. 

Legal Issue: Was a religious body entitled to guardianship regarding a minor under the Guardians and Wards Act, 1890. 

Reasoning: The court concluded that the Act aimed solely at the welfare of the child, and that religious identity, or traditional custodianship could not carry the same weight as the welfare of the child in the guardianship context. 

Analysis/Arguments: The temple as applicants sought claim on the basis of religion, or custodianship or traditional grounds. The court stated the law dealt with emotional and physical caring, but not a custodianship-like religious context.

Judgment/Decision: The Supreme Court of India rejected the claims of the temple, and proclaimed that guardianship must be for the "personal growth, safety, and care" of the minor. They hold that religious institutions cannot be guardians under the welfare standard. 

Relevant to Bangladesh: While this is an Indian case, it is persuasive for how the Guardians and Wards Act, 1890, in particular Section 17 (part of the well-being standards) should have also emphasized the welfare standard over traditional obligations. The welfare standard is the biggest deficiency for the way the Guardians and Wards Act is applied in Bangladesh.

2. Chandra Shaha vs. The State and Others, 30 BLD (2010) (HCD) 584

Facts in Brief: Chandra Shaha sought guardianship of her minor son because family was making competing claims to custody of her son following the death of her husband and, based on the customs of Hindus regarding guardianship. Chandra sought guardianship of her son after the death of her husband. 

Legal Issue: Legally, can the biological mother of a child, during the life of the father and with the death of the father, be a guardian of the child within the confines of the Guardians and Wards Act, 1890? 

Reasoning: The High Court Division said that where the welfare of the child is concerned, the question of guardianship must be decided only on the basis of the welfare of the child, and not merely on matters of faith and religion, or patriarchy.

Analysis: The Court agreed that some Shastric law of Hinduism does state, "the father of the child is the child's natural guardian", however, because society has changed, the mother is the guardian in the best interest of the child. 

Judgment: The court allowed the mother to have guardianship. A total disqualification of a mother from guardianship just on the basis of her being a married female is antithetical to the very principle of a fundamental rights standard and the welfare of the child.

3. Smt. Saroj Rani v. Sudarshan Kumar Chadha, AIR 1984 SC 1562

Summary of Facts: The issue before the court was the enforcement of a Hindu decree of restitution of conjugal rights and further how such issues intertwine with familial and marital relations.

Issue: Whether a clear enforceable restitution of conjugal rights infringed on the right to personal liberty under the Constitution and further how restitution was affiliated to custody or guardianship issues. 

Reasoning: The court recognized the constitutionality of restitution and also recognized the incompatibility between wedding obligations and personal liberty.

Analysis or Argument: Even though this was not a custody or guardianship matter, the decision created an articulation of the need to balance personal liberty with the best interest of the family. This decision has been referred to in following family law cases to show how a court order can affect emotive and guardianship rights. 

Decision/Ruling: The court [held] that it had to enforce any order referred to in the decree but also applies to any order pertaining to any family that considers justice and individual rights.

The relevance to Bangladesh: [The present case] can provide an example for a legal framework to show as well as argue that decisions made in respect of Guardianship, and under a family, must consider both rights as individuals, while protecting individual dignity and making a decision in respect of welfare, particularly when the scenario is patriarchal.

Conclusion:

In Bangladesh, custody and guardianship of children remain founded upon traditional and patriarchal law, which does not reflect the changing social situations of modern society, or more importantly, women’s rights. Because of the Shastric law or its colonial equivalent within the Guardians and Wards Act, 1890, while patriarchal law does have some acceptance, it is nevertheless disadvantageous towards mothers inhibiting their rights to care while at the same time by favoring male welfare and interest. 

While there have been instances in the Bangladesh Courts, which have even taken a more liberal application of Interests of Children, not on patriarchal authority, there is no legislative statutory and enforceable alternative which may crystallize the case as a more modern representation of Hindu families. Without legislation, such as Indian Hindu Minority and Guardianship Act, 1956, Bengali human rights experiences may represent instances of only single recognition of mother’s rights. 

Women, specifically widows and single mothers, are still disadvantaged in systemic ways, when starting guardianship.