This document summarizes several court cases related to guardianship and custody in Bangladeshi family law. The key points are: 1) The courts have consistently ruled that the welfare and best interests of the child are the paramount consideration in guardianship and custody cases, even if it means departing from traditional rules. 2) Custody has been granted to mothers, stepmothers, and even strangers if it was deemed in the child's best interest over biological relatives' claims. 3) Traditional rules around fathers receiving custody of sons at age 7 are not immutable, and circumstances can justify departing from such rules based on the child's welfare. International law principles also influence interpretations when not contradictory

1. Guardianship
related casesCOMARATIVE FAMILY LAW

2. Rahela Khatun v Ramela Khatun, PLD
1971 Dacca 24
• The court observed that the marriage of a
female with a stranger does not annul her
custody right absolutely, provided the female
in question is found to be the best of all
persons to whose charge care of the minor
may be given.

3. Rahimannessa v Ashraf Mia 25 DLR
(1973) (HCD) 167
• The stepmother of the minor was given
custody of his ‘person and property’ in
preference to the claim by the minor’s
grandmother and full paternal uncles. In
interpreting section 17 of the GWA, the court
concluded that the ‘welfare of the minor is the
dominant consideration’ and if the minor’s
welfare so requires, even strangers can be
appointed as guardians as against near
relations.

4. Mvi Rehanuddin v Azizun Nahar 33
DLR (1981) (HCD)139
• Despite admitting that in the absence of the
father, the paternal grandfather is the natural
guardian of the minor according to settled
rule, the court, on the consideration that the
minors’ mother was ill-treated by her in-laws,
allowed the application of guardianship filed
by the mother under the GWA, as against the
paternal grandfather.

5. Abu Baker Siddique v S M A Bakar 38
DLR(1986) (AD) 106
• The Appellate Division rejected the traditional age-sex rule of
hizanat and granted custody of an eight-year-old son to the
mother based on considerations of the special needs of the child
who was suffering from rare medical complications.
• The Appellate Division held that: Rules of Hizanat or custody are
seen to differ from school to school ... [T]here was no consensus
among the jurists of these schools on the question of
guardianship of minor children leaving scope for difference of
opinion, there being no definite rule in the Quran or Sunnah on
that matter... [Hence] this rule [a father’s entitlement to the
custody of a son who has attained 7 years] would not seem to
have any claim to immutability so that it cannot be departed
from, even if circumstances justified such departure ... [Thus]
deviation [from such a rule] would seem permissible as the
paramount consideration should be the child’s welfare.

6. Abdur Razzaque Sarder vs. Mosammat
Jahanara Begum 16 BLD (AD) (1996)
163
• The father sought the custody of his daughter
aged about 15 years 9 months but the
daughter wanted to live with her mother who
was divorced long ago by the father. The
father had married a second time and he
failed to take any care of his minor daughter
and pay any maintenance to her . THE HCD
refused to grant the petitioner father the
custody of the daughter after taking into
consideration the welfare of the child.

7. Abdul Jalil v Sharon Laily Begum 50
DLR (1998) (AD) 55
• The Court opined: “nothing is more
paramount, not even the rights of the parties
under the rules of personal law or statutory
provisions, than the welfare of the children
which must be the determining factor in
deciding the question of custody of children
whether in a proceeding in the nature of
habeas corpus or in a proceeding for
guardianship under the Guardians and Wards
Act 1890.”

8. Amirul Bor Chowdhury vs. Nargis
Sultana 54 DLR 2002 519
• Plaintiff suit was decreed by the
AD in favour of the Petitioner as
the defendant –petitioner has got
married again and as such the
welfare of the twin sons will not
be protected in the hands of the
step-mother.

9. Rahmatullah (Md.) and others vs.
Sabana Islam 54 DLR 2002 519
• Welfare of child of paramount
consideration. A mother married
to a stranger loses her
preferential right of custody over
a minor child but it will not totally
exclude her from being
considered.

10. Zahida Ahmed v Syed Noor Uddin
Ahmed 14 MLR (2009) (HCD) 465
• The HCD departed from the
traditional age-sex rule of Hanafi
law and awarded an interim
custody to the mother, on a
habeas corpus petition, despite the
fact that the child was a ten-year-
old boy, on the ground that the
minor was deceitfully removed by
his father from the custody of his
mother.

11. • The Court did not deny that under traditional law
the father is undoubtedly entitled to the custody
of his minor son when he attains the age of seven
years. However, it opined that, The rule of
hizanat has not given any unfettered right to the
father to remove a minor son aged about 10
years from the custody of his mother at will. By
resorting to deceptive means ... [the father] has
taken [the] law in[to] his own hand without
waiting for adjudication of the custody and
welfare of the children in an appropriate forum.

12. Anika Ali v Rezwanul Ahsan 17 MLR
(2012) (AD) 49
The Highest Court held:
the order in relation to custody of a child should
never be presumed to be inscribed in stone.
Matters such as custody must always remain
fluid since change in circumstances may at any
time require the terms of the custody of the
child to be varied upon a fresh application in
order to comply with the age-old principle
that the welfare of the child is a paramount
consideration and in modern parlance ‘the
best interests of the child’ must be given due
consideration.

13. The Appellate Division has pragmatically
held the principle that unless
provisions of international instruments
are contrary to the domestic laws, the
beneficial provisions of such
instruments may be referred to and
implemented in appropriate cases