Child Custody After Divorce in Bangladesh: Mother’s Rights, Father’s Guardianship & the Court’s Test

In this guide: Custody and guardianship are different · How the court decides: the welfare test · Where to file · Visitation · Child maintenance · Taking a child abroad · Evidence that wins custody cases

The short answer

Bangladesh law separates custody (who the child lives with day to day, called hizanat) from guardianship (who makes legal and property decisions, traditionally the father). Under Hanafi law the mother is entitled to custody of a son until he is seven and of a daughter until puberty. But under the Guardians and Wards Act 1890 the court’s overriding concern is the welfare of the child, and Bangladeshi courts regularly depart from the age limits when welfare requires it.

Custody and guardianship are different

A mother with custody still needs the father’s involvement for some legal matters, and a father who is the natural guardian does not thereby get the right to take the child away from the mother during her period of hizanat. Most practical disputes, schools, passports, travel, are about where these two rights meet.

How the court decides: the welfare test

Section 17 of the Guardians and Wards Act tells the court to consider the child’s welfare, consistent with the child’s personal law. Courts look at:

• the child’s age and sex, and the child’s own preference if old enough to form one;
• who has actually been caring for the child, and continuity of schooling and home;
• each parent’s character, health, conduct and capacity to care;
• the home environment, including any new spouse;
• any violence, neglect or substance abuse.

In the leading case Abu Baker Siddique v S.M.A. Bakar (38 DLR (AD) 106), the Appellate Division let a mother keep her son beyond the age of seven because that was in his welfare. Later decisions have also held that a mother’s remarriage does not automatically end her custody.

Where to file

Custody and guardianship cases go to the Family Court under the Family Courts Act 2023, normally where the child ordinarily lives. In districts where mandatory pre-case mediation has been rolled out, the dispute first goes to the District Legal Aid Office. Where a child has been snatched or is being unlawfully held, the High Court Division can be moved for an order to produce the child.

Visitation

The parent without custody is ordinarily entitled to see the child. Courts set a schedule, for example alternate weekends, holidays and video calls, and can specify a neutral place for handovers. Obstructing agreed or ordered visits is a factor the court will hold against the obstructing parent later.

Child maintenance

The father’s duty to maintain his children continues regardless of who has custody and regardless of the divorce. The Family Court fixes an amount based on his means and the child’s needs, including schooling and medical costs, and can order arrears.

Taking a child abroad

This is where custody cases become emergencies. A guardian appointed or declared by the court may not remove the child from the court’s jurisdiction without permission (section 26). If you fear removal, apply quickly for an injunction and ask the court to deal with the child’s passport. Bangladesh is not a party to the Hague Child Abduction Convention, so recovering a child once abroad is slow and uncertain. Prevention is everything.

Evidence that wins custody cases

• School records, report cards and teachers’ letters showing who is involved.
• Medical records and vaccination cards.
• Photos and messages showing day-to-day care.
• Proof of income and a suitable home.
• Any GD, police or medical record of violence.