Law on child custody

When a marriage breaks down irrevocably and ends in a divorce, it may give rise to disputes over custody of any children involved. 

In Bangladesh, mainly the Family Courts Ordinance, 1985 and Guardians and Wards Act, 1890 are very much relevant regarding the issue of custody.
As per the legal provisions of the law, a father is the legal and natural guardian of the children until they attain the age of majority under the general law of the land, namely The Majority Act 1875. But the mother has the right of custody up to the age of seven years in the case of a male child, and up to the age of puberty in the case of a female child. This right, however, is to be exercised under the supervision of the father, who is responsible for the maintenance of the children.
The right of custody, or hizanat, can be lost under certain circumstances. A mother, who is otherwise, entitled to the custody of a child, loses the right of custody: 
(a)  If she remarries another person
(b)  If she goes and resides at a distance   
       from the father’s place of residence
(c)  If she leads an immoral life
(d)  If she neglects to take proper care of 
        the child
Various case laws have also been developed in this connection by the decisions and precedents of the higher courts. And the gist of such precedents is that the family court’s power to determine the entitlement of a party to the custody of a child is not limited to mere observance of the ‘age rule’, the paramount consideration is to be the concept of the welfare and best interest of the minor child. Thus, deviation from the literal application of the age rule is permissible where a child’s welfare is concerned. 
And what would constitute as the welfare of the minor child, that decision has to be arrived by the court after taking into consideration the entire facts and circumstances of each particular case. For example, if a father who has rightful custody leads an immoral life or neglects the child in his care, the court can reassess the custody arrangement. In a case where both parents are deemed unsuitable for taking care of a minor, a court may award custody to grandparents or other relatives, or make the child a ward of the state. 
Before going into the custody aspect of non-Muslim families, first of all we have to scrutinise the jurisdiction of the Family Courts Ordinance, 1985. In Section 5 of the Ordinance, it has been stipulated that the family court shall have exclusive jurisdiction to entertain, try and dispose of any suit relating to guardianship and custody of the children, maintenance, dissolution of marriage, dower, and so on.
Now the question arises whether this Ordinance is applicable to non-Muslims, including Hindus, Christians and Buddhists, or not? Though in statutory law, it is not that much clear, the higher courts have given rulings and judgments in this regard in various cases to ensure that the Family Courts Ordinance has not taken away any personal right of any litigant of any faith. These precedents show that the Family Courts Ordinance is applicable to all citizens, irrespective of their religion.
The Higher Court also says that a person professing any faith has got every right to bring suit for the purpose as contained in Section 5 of the 1985 Ordinance. For example, a Hindu wife is not debarred from bringing a law suit for her maintenance against her husband under this Ordinance. So, she should be able to do the same in any other matter mentioned in the section, like custody of children. Besides, the Family Courts Ordinance has to be applied in conformity with the equality clause of our constitution. 

The writer is an Advocate of the Supreme Court of Bangladesh.