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, called hizanat (who the child lives with day to day), from guardianship (who takes 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 she reaches puberty. The Guardians and Wards Act 1890 then requires the court to put the child’s welfare first, and Bangladesh courts regularly depart from those ages when welfare requires it.

Custody and guardianship are different

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

How the court decides: the welfare test

Section 17 of the Guardians and Wards Act tells the court to decide by the welfare of the child, consistent with the child’s personal law. In practice the court looks at:

• the child’s age and sex, and the wishes of a child old enough to form a sensible view;
• who has actually been caring for the child, and continuity of home and school;
• each parent’s conduct, health and ability to care;
• the home on offer, including any new spouse and step-children;
• any violence, neglect or drug use.

In Abu Baker Siddique v S.M.A. Bakar, 38 DLR (AD) 106, the Appellate Division allowed a mother to keep her son beyond the age of seven because it was in his welfare. Later decisions have held that a mother’s remarriage does not automatically end her custody. For Hindu and Christian children there is no hizanat rule at all: the court decides on welfare alone.

Where to file

Custody, guardianship and visitation 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 is in force, the dispute goes first to the District Legal Aid Office. If a child has been snatched or is being unlawfully held, the High Court Division can be asked to order the child’s production, and the Family Court can make urgent interim orders.

Visitation

The parent without custody is ordinarily entitled to see the child. Courts set a schedule, for example alternate weekends, part of the school holidays, and video calls, and can name a neutral place for handovers. A parent who obstructs ordered visits damages their own case: the court remembers it when custody is reviewed.

Child maintenance

The father must maintain his children whoever has custody and whatever happened in the marriage. The Family Court fixes the amount from his income and the child’s actual needs, including school and medical costs, and can order arrears. Withholding maintenance to force a custody deal is a mistake that courts notice.

Taking a child abroad

This is where custody cases become emergencies. A guardian appointed or declared by the court may not take the child out of the court’s jurisdiction without permission (section 26 of the Guardians and Wards Act). If you fear removal, apply at once for an injunction and ask the court to deal with the child’s passport, and notify immigration through your lawyer once you have the order. Bangladesh is not a party to the Hague Child Abduction Convention. Once a child is taken abroad, getting the child back is slow and uncertain. Prevention is the only reliable remedy.

Evidence that wins custody cases

• School records, report cards and letters from teachers showing who is involved day to day.
• Medical and vaccination records.
• Photographs and messages showing ordinary care: meals, homework, doctor visits.
• Proof of income and a stable home.
• Any GD, police or medical record of violence or neglect.

Evidence of who has actually been raising the child usually outweighs arguments about religious rules or about the other parent’s character.