Reconciling ‘best interests of the child’ with the traditional Muslim law rules on child custody: Trends in the judicial decisions of Bangladesh

Abstract

In Bangladesh respective religion-based personal laws generally govern the family matters of individual religious communities. In respect of the rules of Muslim personal laws, there had been significant efforts on the part of the higher judiciary in Bangladesh to progressively interpret these rules according to the needs of the changing social realities. This progressive judicial approach can be traced back to the post-colonial period when the courts in the Indian subcontinent had given a number of liberal interpretations in awarding custody of children. However, such departure from traditional rules to ensure child’s welfare had instigated a persistent judicial debate between the two considerations and the debate still continues in Bangladesh as well as in India and Pakistan. The liberal interpretations in the custody decisions are consistent with the best interests principle as encompassed in Article 3(1) of the Convention on the Rights of the Child, which is ratified by Bangladesh. However, Bangladesh’s commitment towards ensuring best interests particularly in matters of child custody, which has a direct impact on child rights, does not always get reflected in the judicial decisions. Particularly, the decisions of the family courts in Bangladesh are still largely influenced by the traditional rules of child custody. The thesis thus examines the trends in the judicial decisions in Bangladesh in applying Muslim law principles of child custody weighing their considerations against the principle of best interests of the child. Considering the common legislative history, the thesis also gives an overview of the judicial trends on custody, in India and Pakistan. Upon evaluation of the decisions, the thesis draws an analysis of how far the courts in Bangladesh – both the Supreme Court and the family courts, are reconciling their efforts to uphold ‘best interests of the child’ with the traditional Muslim law rules on child custody.