Outdated custody laws spell more woes for troubled parents, children

It was a busy Thursday at a family court in Old Dhaka's Johnson Road in late July. A four-year-old girl sprinted out of the courtroom, her mother rushing behind her. She finally caught up with the child and took her back to the courtroom.

Elsewhere, a man broke into tears after seeing his eight-year-old daughter. His daughter also burst out in tears, her cries bringing court proceedings to a temporary halt.

The corridors outside the court rooms rang with the shouts of children, some busy playing on the court verandah. They were among the hundreds, including their parents, who had gathered at the three family courts in Dhaka.

Here, the fates of many children would be decided.

Although court sources said most cases could be settled in six months, the battle could also rage for years, with cases taken to the High Court (HC) and even the Appellate Division.   

Ishrat Hasan, a Supreme Court (SC) lawyer, said although the HC had instructed family courts to solve custody-related matters within six months, a manpower crisis and dissatisfaction with a verdict would mean the deliberations could be prolonged.

"In many cases, those who lose guardianship go to the District Judge Court and even the High Court or Supreme Court. The ego problem after divorce makes the child's ordeal lengthier.  If any aggrieved parent goes to the High court, the trial court judge cannot give any further order or implement the earlier order," she added.

Add to that a number of outdated laws, which made the process even more difficult.

According to the court sources, more than 12,000 cases are being trialled in these three courts where around 30% cases are related to child custody disputes.

There is, however, no concrete data on how many custody cases are pending across the country.

According to the SC, the districts or divisions have more than 3,000 family cases with separate family courts.

The child custody cases are lower in districts and rural areas— a highest of 5% of the total family court cases.

Big cities, on the other hand, have the bulk of custody disputes.

Ishrat also said that in some cases, parents who lose guardianship may kidnap the children or even take the child abroad without informing the court while the trial is going on.

Few happy reunions

Nyma Nargis had separated from her ex-husband a few years back.

The couple had a nine-year-old son, who stayed with his father. During the Covid-19 outbreak, the father did not allow the child to meet his mother.

When pandemic restrictions were lifted, Nyma took the matter to the Dhaka Family Court.

After a few days of hearing, the court ordered the father to let his ex-wife meet their son twice a week.

But soon after, the father stopped heeding to the court order. He also did not appear before the court for two consecutive hearing dates.

Sensing foul play, Nyma informed the court of the situation and told her that her husband might leave the country with her son.

Although the court ordered that the duo be stopped from travelling abroad, the father of the nine-year-old kid fled the country on 25 June.

Following the incident, Nyma, a hypertension patient, stopped taking her medicines and her health deteriorated.

On 14 July, she succumbed to her illness, not getting the chance to bid her only child a proper farewell.

Her demise caused an uproar on social media, with many expressing their discontent with the legal hassles centring guardianship.

Nyma was not alone in facing legal tangles, which left her with no recourse in the end.

In 2018, Maksuda Rahman* and her husband separated after almost a decade of matrimony.

At the time they had two sons, one around eight and another six.

In 2020, the former couple reached a mutual agreement to let the child stay with the mother, while the father would bear their expenses.

He would also see them twice a week.

In June 2021, the couple officially divorced and the father remarried in December of the same year.

This is also when he stopped paying the child support payments he had committed to.

In February 2022, Maksuda, a government official like her former husband, got the opportunity to attend a professional course abroad. She left her two sons with her ex-husband.

When Maksuda returned at the end of her two-month course, her husband refused to let her take back her sons.

Maksuda told The Business Standard that as her husband got married again and as per mutual agreement she is the legal custodian of her two sons.

"As he has tied the knot again, they [sons] are not safe in his home. I want my children back. From April till now, I have passed my days in such pain that I cannot explain.

"What haven't I done forgot my children back. I went to the police station, I filed a general diary and also sent him two legal notices, but he didn't respond."

Maksuda finally filed a case with the Dhaka Family Court on 26 April, but her former partner had filed a similar lawsuit just five days earlier.

Since then, their legal battle has continued, with no end in sight.

In another case, a 40-year-old Bangladesh Betar official has been fighting another lawsuit over guardianship of his only child.

After two years of legal battles, the father got the verdict in his favour and was supposed to reunite with his eight-year-old daughter.

After the verdict, however, the mother was asked to appear before the court and hand over the girl.

Instead, she fled Dhaka. Later, the court asked the local police station to find the whereabouts of the child, but they failed.

Earlier this year, the court again asked RAB-3 and RAB headquarters to submit a report and to find the child.

"I was pretty sure that my ex-wife went into hiding at her paternal home in Naogaon, but I couldn't go there out of fear even with the RAB team. My ex-wife's family would have me killed," he said.

The RAB headquarters finally submitted a 200-page report to the court and the mother came to Dhaka to appeal before the Dhaka Judge Court against the Family Court013's verdict.

The case is ongoing.

Barrister Sara Hossain, an SC lawyer, told The Business Standard, that the current laws are not sufficient for child guardianship disputes, with no specific laws even made in this regard.

"Most of the laws are against women in the country. Some were amended, but all the laws are not women-friendly. Even we collaborated with Hindu law, Muslim law and other religious laws but we don't have any specific family rights law," she said.

The vagueness of law may also lead to a lengthy and complicated legal process.

Israt Hasan, another SC lawyer, said in most cases everyone fights to the highest courts possible with the affluent even going to the Appellate Division, meaning the case can go for 5-6 years.

Draining, with a toll on mental health

Experts also say that the child who has to go through the complicated process will always hold on to some of the trauma from the incident.

In another case, Family Court-13 had to involve the Interpol after the custody battle lasted around three years.

A politician and businessman of the ruling party from Rangpur had filed a lawsuit over custodianship of his then 10-year-old daughter.

During the trial, the politician's wife went to the United States without taking permission from the court and the child's father was not sure about her whereabouts.

Later, the judge asked Bangladesh Police's National Center Bureau (Interpol Desk) to communicate with the New York Police Department and issue a search warrant.

Following the court order, the NYPD found the whereabouts of the child after three months.

She was then put on a flight from New York to Dhaka on her own, arriving at Hazrat Shahjalal airport only to find two sides of her family involved in a scuffle.

Later, with the court order, the daughter is now with her father.

"The battle between father and mother may also harm the children's life. Going to court may leave them with a lifelong trauma. Even the tussle between parents may hamper the child's mental and physical life," said Dr Helaluddin Ahmed of the National Mental Health Institute.

"It is better to ease the legal process and also the courts should be child-friendly," he added.

In this regard, Tasmiah Nuhiya Ahmed, an SC lawyer, told TBS that while dealing with a custody matter, paramount consideration should be given to the welfare of the minor involved.

"Whenever a divorce takes place, the child is turned into a weapon to take revenge. We forget that we have to help this child grow in a child-friendly environment and the legal battle takes a toll on their mental well-being," she said.  

She also said that many women are not getting married after a divorce in fear of losing custody of their child, which was alarming.  

"A mother marrying a stranger does not totally exclude her from such right if she was found otherwise fit by the court according to the Guardians and Wards Act of 1890," she said.

"We are still stuck in the so called Age Sex Rule for determining the custody of a child. Even the Hadith tells us to take into account a child's preference for determining custody matters [if they are over seven-years-old]," she added.

Ishrat Hasan, the SC lawyer, said that after visiting the Dhaka family courts, she observed too many people gathering in very small, congested rooms. "All over Dhaka districts and the metropolitan there are only three courts. The courtrooms are not child-friendly.

Some parents even come with infants. The courtroom should be child friendly…after all they aren't criminals," she added.

On how people managed to escape the country, Mohammad Fayez Uddin, assistant superintendent of police of the National Central Bureau (NCB Interpol Desk) at Police Headquarters told TBS that they are getting such notices/court order to bring back the children over guardianship cases. 

"But we respectably reply to the court that the process needs the foreign ministry's help instead of the Interpol desk." 

Even in some cases they go to immigration police to halt children's travel abroad, but these need the embassy of the concerned to intervene. 

He, however, said the immigration police should take measure according to the court order, if there is any ban and the embassy should not issue any visa for that child.