In a historic verdict, the Hon’ble High Court Division of Bangladesh has ruled that a mother can now be the sole legal guardian of her children. Now, mothers will be recognized as legal guardians of children on official documents relating to educational institutions, expanding options for guardianship in a landmark judgment. The judgment stemmed from a case of a young girl from Thakurgaon district in Rajshahi Education Board of Bangladesh who was refused to participate in the SSC examination as she could not fill the student information form with her father's name as he had abandoned them. Previously, students were required to name their fathers as their legal guardians on forms related to public exams. From now on, educational bodies and institutes will not be able to refuse registration or admission to a student for not naming their father. That young girl was ultimately denied a better future prospect because of the requirement of her father’s signature. Now that the mothers are recognized in this regard, this will prevent any minor from suffering the same fate.
The father is the natural guardian (Wali) of the person and property of the minor child, according to the principles of established Muslim jurisprudence. In Muslim Law, the mother is not the natural or the legal guardian of the child, and is merely entitled to preferential custody up to certain ages. In practice, the legal guardian applies to the court for the body and property of the minor and to act in the best interest of the child which includes but is not limited to taking decisions related to education, healthcare and personal property for the child.
The crucial question that arises is whether women have equal recognition in all aspects as legal guardians after the verdict?
To answer this let’s know more about a case I dealt with personally. A troubled man, Shawon Khan, came to my chambers last year in respect of a property-related matter. His younger siblings in connivance with their uncle, dispossessed and misappropriated Mr. Khan from his inherited property. The sudden news of Shawon’s untimely death came as a shock to me. Shawon left a family of two, his wife, Rinki, and Arisha, his 5-year old daughter. Rinki was uneducated and required guidance regarding finances. According to Muslim Inheritance Law, his daughter is entitled to 50% and Rinki is entitled to 12.5% of his property. The remaining shares goes to Shawon’s siblings. Had this been the case if Arisha was a son, he would have inherited 87.5% shares of the property.
When Rinki visited the bank, they requested for a succession certificate. To obtain a succession certificate and withdraw Arisha’s share of inheritance, a guardianship certificate is also required. In the absence of Shawon, the law only recognizes the Executor appointed by father’s will or Father’s father as the legal or natural guardian for the guardianship of the property of minors. Arisha does not have an executor or grandfather; the court is the guardian in this regard. This notion appears to be patriarchal and discriminatory as it features the male figures as her legal guardian despite her mother being present for the welfare of Arisha. To become a legal guardian, Rinki must submit an application to the court. A succession certificate takes approximately 6 months to obtain and an additional 6 months to obtain legal guardianship certificate due to the backlog of cases. Half of this procedure could have been circumvented if there was no need to apply for legal guardianship. The requirement of guardianship certificate prolonged Rinki and Arisha to access their inheritance.
...the current law only recognizes mothers as legal guardians of children on official documents only relating to educational institutions. The current law needs to expand the opportunity for mothers to obtain guardianship for their minor children also in property related matters to ensure social justice
This unnecessary battle for mothers amidst family crises can easily be prevented if our laws favored them. It needs to be highlighted that the current law only recognizes mothers as legal guardians of children on official documents only relating to educational institutions. The current law needs to expand the opportunity for mothers to obtain guardianship for their minor children also in property related matters to ensure social justice for individuals like Arisha who rightfully deserve it.
In conclusion, the pertinent matter arising out of this landmark notion is to address the legal roadblock for guardianship of mothers for their minor children. Can the option of legal guardianship for mothers be expanded to maintain the property of minors? Should the option of legal guardianship for mothers be available on official documents relating to educational institutions only? Could the father and mother be given the equivalent legal status of guardianship for their minor children?
The answers to these remain uncertain and sometimes unanswered.
Khandoker Asif Mohammad is a Barrister-at-Law, Lincoln’s Inn and an Advocate, District and Sessions Judge Court, Dhaka. He is currently working as an Associate at Khandoker & Associates.
Comments