Appellate Division Cases
(Civil)
PARTIES
(C.A.Nos.56-58 of 1995) Abdul Jalil and others ………………Appellants.
-vs-
Mrs. Sharon Laily Begum Jalil …………………………..Respondent.
(C.A.No.59 of 1995) Mrs. Sharon Laily Begum Jalil …………..Appellant.
-vs-
Abdul Jalil and others ………………………………….Respondents.
JUSTICE
A. T. M. Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Muhammad Abdur Rouf J
Bimalendu Bikash Roy Chowdhury J
JUDGEMENT DATE: 30th March 1997
The Muslim Family Laws Ordinance 1961, Under Section 7, (25)1
The Family Courts Ordinance, Section 5 Dr. Mrs. Veena Kapoor, AIR 1982 SC 792
Admittedly appellant No.l Abdul Jalil of Civil Appeal Nos. 56, 57 and 58 of 1995 and
appellant Mrs. Sharon Laily Begum Jalil of Civil Appeal No.l 59 of 1995 were man and wife and the latter having been divorced by the former in the month of May, 1995 following a breakdown of marital relations, the question of custody of their four minor childern, namely, Mohammad Nurul Alam Jalil (born on 23.4.1985), Jasmin Akhter Jalil (born on 8.9.1988), Sharlean Akhter ……………..(2)
Apart from the legality of the impugned judgment, contentions were raised, bitter
at times, as to the unacceptability of the contending parents seeking custody of the
children. There was, however, agreement on one point that nothing is more paramount, not even the rights of the parties under the rules of personal law or statutory provisions, than the welfare of the children which must be the determining factor in deciding the question of custody of children whether in a proceeding in the nature of habeas corpus or in a proceeding for guardianship under the Guardians and Wards Act, 1890 ……………….(23)
It is now settled that the term ‘welfare’ must be read in the largest possible sense as
meaning that every circumstance must be taken into consideration and the Court
must do what under the circumstances a wise parent acting for the true interests of
the child would do or ought to do. The moral and religious welfare of the child
must be considered as well as its physical well-being. Nor can ties of affection be disregarded vide queen vs. Gyngall (1893) 2 QBD 232; Walter vs. Walter 55 Cal 730; Saraswathi Vs. Dhanakoti 48 Mad 299………………….(29)
Dispute between the parties as to custody of the children should be decided upon taking evidence but it is our human concern which impels us to make some provisional orders without causing any prejudice to the parties concerned. It was heartening to note that both sides expressed genuine concern for the interest and welfare of the children and it was good to see that the party’s lawyers also contributed to it, particularly Dr. kamal Hossain who committed himself personally in working out assurances on behalf of the mother for the safe upkeeping of the children within the jurisdiction of this Court. He prayed that all the children may be put to the care custody of the mother as they have grown up together……….. (40)
Civil Appeal Nos. 56 to 59 of 1995. (From the Judgment and Order dated August
30, 1995 passed by the High Court Division, Dhaka in Writ Petition Nos.1582, 1583, 1584 and 1585 of 1995).
Ozair Farooq, Advocate-on –Record……….. For the Appellant (in C.A.56-58/95)
Dr. Kamal Hossain, Senior Advocate, instructed by Ka:i Shahabuddin Ahmed,
Advocate-on -Record……………… For the Respondent (in C.A. 56-58/95)
Dr. Kamal Hossain, Senior Advocate, instructed by Kazi Shahabuddin Ahmed,
Advocate-on-Record …………………….For the Appellant (C.A.No.59/95)
Ozair Farooq, Advocate-on-Record……………….. For the Respondents C.A. 59/95)
JUDGMENT
1. A.T.M. Afzal CJ : These four appeals by leave arise out of the same judgment and
order dated 30 August 1995 passed by a Division Bench of the High Court Division in
Writ Petition Nos.1582, 1583, 1584 and 1585 of 1995 making the Rules absolute in the first three cases and discharging the same in the last case.
2. Admittedly appellant No.l Abdul Jalil of Civil Appeal Nos. 56, 57 and 58 of 1995 and
appellant Mrs. Sharon Laily Begum Jalil of Civil Appeal No.59 of 1995 were man and
wife and the latter having been divorced by the former in the month of May, 1995 following a breakdown of marital relations, the question of custody of then four minor
childern, namely, Mohammad Nurul Alam Jalil (born on 23.4.1985), Jasmin Akhter Talil
(born on 8.9.1988), Sharlean Akhtcr. Jalil (born on 24.04.1991) and Mohammad Shah
Alam Jalil (born on 9.8.1993). became a matter of great controversy and the mother under article 102 (2) (b) (i) of the Constitution of the People’s Republic of Bangladesh alleging that the said children were being held in custody by the father Abdul Jalil without lawful authority and/or in an unlawful manner and further seeking an order for the custody of those children.
3. Facts as disclosed by the mother in her writ petitions, briefly, are that she is a British citizen having been born in England on 24-041968. Her lather is from Bangladesh having been a member of the Dagon Bhuiyan l.’nion Parishad and her mother being a resident in
Middlesborough, England. She was married to respondent No.l Abdul Jalil (in the writ-
petitions) on 12.7.1984 in England and the marriage was duly registered at the Registrar’s
office in Rawtenstall. Hyndbum and Ressendala. County of Lanchashirc. England.
She was a full-time house-wife engaged in bringing up her four young children as named
above.
4. All the children were born in England and are citizens of the United Kingdom. A few
days after the marriage she was informed by respondent No.l that he was not in fact a
British resident and had entered Britain illegally and she was instructed by him to apply
to the Immigration Authority for leave (for him) to remain in Britain by reason of the
marriage. The relationship between them. however, began to deteriorate as soon as
respondent No.l received his British residency. She was often subjected to various kinds
of abuse, both physical and mental, by respondent No.l. The petitioner’s marital life was
lived in a cycle of abuse, fending of assaults by respondent No.l. The petitioner continued
to suffer in silence the brutal assaulis in the desperate hope that the abuse would cease and in an attempt to somehow keep the marriage going.
5. In November 1993 respondent No.l brought her and their four children to Bangladesh for a visit and she had agreed to come to Bangladesh with her children on the clear understanding that they had no indention to settle in Bangladesh n! any poim of time
Respondent No.l. however, took their pass ports on arrival at Dhaka and never returned
them, rather he took steps to obtain Bangladesh passport for the children.
6. Over the next 19 months respondent No.l returned to England on several occasions
spending only a few months with her and the children. He rented a house for the family
where they stayed during his absence. She pleaded for returning to their home in England
with the children but she was only subjected to further physical abuse.
7. On 8.5.1995 respondent No.l aided by respondent Nos.2 and 3 deceitfully and illegally
removed the children including the youngest one Mohammad Shah Alam Jalil, who a breastfeeding infant, from her custody and look them to his paternal home where they have been residing since then. She came to learn that her father had come to their house
that morning having been sent for by respondent No. i. She was informed by her father
later in the day that respondent No.l had taken out the children on the plea of iaking
them to the park but later on stated that they were beuiu taken to the paternal home in village Durga Daulatpur, P.O. Deotibazar. P. S. Begumganj. District Noakhali and that he had no intention of ever returning the children to her custody.
8. On 10.05.95 She received a copy of the notice of divorce dated 9,5.1995 issued by
respondent No.l under section 7 oi the Muslim Family Laws Ordinance 1061. She
and her father were then ordered to leave the house. She made entreaties on several occasions through family members seeking custody of the children but respondent No.l not only turned them down but threatened to kill her if she made any attempt to recover the children from his custody. In a desperate attempt to recover the children she travelled to England and filed a suit in the High Court of Justice (Family Division). The said Court
passed and order on 12.7.1995 directing that the children be made wards of the Court and
that they be returned by respondent No.l to the jurisdiction of the said Court. By a further
order dated 14.7.1995 the said Court directed that respondent No.! be forbidden from seeking to prevent or delay the petitioner (mother) from bringing the detenu children respondent No.l forthwith hand over the children to the physical care of the petitioner (mother) and that they remain in the interim care and control of the mother until further order.
9. She alleged that in the circumstances stated above the children are being illegally detained by the respondents and they are obliged under the law to return the children to the lawful custody of the petitioner (mother). According to established law it is in the interest and welfare of the children to be in the custody of their mother, particularly in view of the fact that respondent No.l was prone the recurring violence and abuse and further that the youngest child was a breastfeeding infant, she alleged.
10. The respondents contested the writ-petitions by filing affidavits-in- opposition. The
allegations made by the writ-petitioner were generally denied except that she was his
(respondent No.l) legally married wife and the four children were born out of their marriage. It has been asserted, inter alia, that their marriage was solemnized according to Islami Sunna in England. Respondent No.l was running a restaurant business in London at that time and his wife being disgusted with the life-style of the teenaged children there asked respondent No. i to take her and the children to Bangladesh so thai they could be brought up in Bangladeshi culture avoiding the evil influence of Lhe Western society. According to their mutual agreement ihe family came to Bangladesh on 12.11.1993 and respondent No.l hired a house at Uttaru Model Town and got the two elder children admitted in the International School, Dhanmondi. All arrangements were made by respondent No.l for the proper maintenance of the family while he left for London to his place of business, lie, however, visited Bangladesh from time to time. Respondent No.l noticed in course of time and came to know from various sources that his wife was living an immoral life taking advantage of his absence from Dhaka and was not taking any care of the children at all. He came back to Bangladesh on 19.1.1995 and ascertained about the allegations against his wife and found all to be correct. She apologised for her activities and assured respondent No. 1 that she would forget her past and be at home with the children and would not keep contact with any boy-friend including one Masud. Respondent No.l thought that she would rectify herself in the interest and for the welfare of the children and he again left for London to run his business there in February 1995. He was reported, however, that she had not at all changed and that she totally gave up looking after the children; rather she started showing hatred towards them including the baby. Respondent No.l again came back to Bangladesh on 28.4.1995 and discovered the activities of his wife including her future plans regarding her intention to marry aforesaid Masud as well as her association with immoral life.
11. He caused G. D. entries to be made at the Uttara Police Station relating to many incidents that took place in connection with his family affairs. On 10.5.1995 respondent No.l divorced his wife and her father took her to his custody. She made a G. D. entry on that date at the Uttara P. S. stating that respondent No.l had taken her passport and that the children were taken to Noakhali and that if she was given back her British passport she would have on other claim against the respondent.
12. Respondent No. 1 alleged that his (Former) wife had totally disregarded her responsibilities to the minor children in his absence which had seriously affected them both physically and mentally. The children were living (presently) under the care of their grandmother (respondent No.4) assisted by respondent No.l and she is competent to look after the minors.
13. He already filed an application under section 25 (1) of the Guardian and Wards Act
read with section 5 of the Family Courts Ordinance before the Family Court (Assistant
Judge. 2nd Court. Dhaka) on 30.7.1995, being Family Suit No. 145 of 1995 praying for custody of the children. It was submitted that since the mother was not leading a good moral life she should not be allowed the custody of the minor children and her previous conduct clearly proved that she cannot look after the welfare of the minors and in England beyond the territorial jurisdiction of Bangladesh. It was also submitted that in the facts and circumstances of the case the petitions under article 102 (2) (b) (i) of the Constitution were not maintainable.
14. In a supplementary affidavit-in-opposition, it was alleged that the father of the petitioner is a Bangladeshi citizen and her mother is a British national and few years after the birth of the petitioner, the mother of the petitioner was divorced and since her mother was not looking after the petitioner who was a minor at that time, she was married to respondent No.l at the age of 16 years only. The mother of the petitioner is living in the United Kingdom as an unemployed lady with the allowance from the department of social security. The father of the petitioner is now permanently living in Bangladesh and he has taken a second wife and they have now their own family with a number of children.
15. The petitioner has no financial support either in Bangladesh or in the United
Kingdom and if the children are given to her care she will take them to the United
Kingdom and the respondent will be deprived of looking after the welfare of his minor children.
16. The respondent apprehended that the children would be converted to the Christian faith after taking them to the United Kingdom because the petitioner’s mother is a Christian lady. The welfare of the children could be jeopardized if the petitioner was allowed to take them to the United Kingdom in an alien and un-Islamic culture because welfare also includes environment, namely, social, cultural and religious in which the children are likely to grow up.
17. The writ-petitioner by filing affidavit-in reply denied the allegations made by-the
respondents. 18. It appears from the impugned judgment that the matters were decided wholly and solely relying only on section 352 of Mulla’s Mahometan Law without adverting to the various contentions raised by the parties holding that “in deciding the question regarding custody o! minor children we refrain from making any comment about the disputed question of facts and rival contentions narrated in the petitions alTidavii-in -opposition.” As regards the three children who were found to be below 7 years it was held that the………………… was entitled to their custody and as the eldest child Muhammad Nurul Alain Jalil was above 7 years, the father was held entitled his custody. It was also held relying on some decisions that the writ-petitions were maintainable.
19. Accordingly the Rules were made absolute in three writ-petitions and it was discharged in writ petition No. 1585 of 1985 No.59 of 1995 has arisen at the
instance of the writ-petitioner then. Respondent No. I along with other respondent
are appellants in C.A. Nos. 56 to 58 of 1995 which arise out of will-petitions in which the
Rules were made absolute. The respondents were directed to hand over the 3 (three) Minor children to the custody of the writ-petitioner by 12.00 noon of the following day. The operation of the impugned judgment and order was however, stayed by this Division following filing of provisional petitions for leave to appeal from the said judgment.
20. Leave was obtained by the appellants (in C. A. Nos. 56-58 of 1995, raising various
grounds but the main ground seemed to be that the impugned judgment was flawed on a
basic principle that the High Court Division did not at all consider the ‘welfare’ of the
minor children in the context of the allegation of facts made by the appellant father against his former wife, namely, the respondent mother. The custody of the minor children was given to the mother following simply the principle in S. 352 of Mulla’s Mahomedan law but ignoring altogether the various facts alleged by the father in the several affidavits filed by him for showing that applying the test of ‘welfare’, the mother was not at all entitled to the custody of the said children. Among other reference was made to the fact that :
1) the mother is not the proper person in view or her conduct and present life;
2) she was a Muslim at the time of marriage and accordingly she was married to petitioner No.l but
3) the Muslim children should not be given to the custody of a Christian mother who apparently wants to take them back to England to live on the charity of the British Government;
4) the husband (petitioner No.l) has left England for good and settled in Bangladesh and as such he has no means to maintain the minor children in England;
5) the children arc not only with their father but their grand-mother is also there to look after them:
6)the children will be much better off under the care of their father who is a man of means whereas the mother has neither the means nor proper education to earn a livelihood for herself.
21. The other important ground raised for consideration was that the writ petitions were
wrongly held to be maintainable in the absence of any finding that the children were
deceitfully removed from the custody of the mother on 8.5.95 and being detained as
alleged or that the custody of the children by the father was without lawful authority or that they were being detained m an unlawful manner and further without considering that there was a guardianship proceeding pending in the Family Court in respect of {he said minors
22. Khandker Mahbubuddni Ahmed, learned Advocate, who appeared for the mother
respondent, also appellant (in C. A. No. D9 of 1995), also criticised the impugned judgment but supported the decision so far it was in favour of the mother. So, leave was granted in all the petitions.
23. At the hearing of the appeal, apart from the legality of the impugned judgment, contentions were raised, bitter at times, as to the unacceptability of the contending parents seeking custody of the children. There was, however, agreement on one point that nothing is more paramount, not even the rights of the parties under the rules of personal law or statutory provisions, than the welfare of the children which must be the determining factor in deciding the question of custody of children whether in a proceeding in the nature of habeas corpus or in a proceeding for guardianship under the Guardians and Wards Act, 1890.
24. Dr. Kamal Hossain. learned Counsel for the respondent mother, has aptly submitted
that the law of custody is not concerned with ‘protecting “proprietary” rights asserted by the father over ;He children, but with the best interests arid welfare of the children. The law must operate to the benefit of the children. Mr. Ozair Farooq. learned Advocaie-on-Record for the appellant father, does not dispute the proposition of law but his grievance is that the High Court Division completely ignored this basic principle and granted custody of the children to the undeserving mother to the detriment and prejudice of those children.
25. It may not sound an aphorism to say that in a proceeding like this it is not the rights of the parries but the rights of the child which are at issue. The General Assembly of the United Nation adopted and proclaimed on 20 November 1959 the Declaration of the Rights of the Child and among the principles proclaimed, it was said: “The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, menially, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom an dignity. In
the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.”
26. Fortunately our law has already provided in section 17 of the Guardian and Wards Act the aforesaid principle which corresponds With the principle of Muslim Personal Law (vide S. 351, Mahomedan Law-Mulla) in matters of appointing guardian for a minor. It is as follows: 17. MATTERS TO BE CONSIDERED BY THE COURT IN APPOINTING GUARDIAN – (1) In appointing or declaring the guardian of a minor, the Court shall subject to the provisions of this section, be guided by what consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. 2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any. of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. 3) If the minor is old enough to form an intelligent preference, the Court may consider that preference. 4) Omitted. 5) The Court shall not appoint or declare any
person to be a guardian against his will.
27. As far as judicial pronouncement is concerned this Court in the case of Abu Baker
Siddique Vs. S.M.A. Bakar, 38 DLR (AD) 106. upon a review of a large number of decisions held :
28. These decisions, while recognising the principle of Islamic Law as to who is entitled
to the custody of a minor son with reference to his or her age and sex. Simultaneously took into consideration the welfare of the minor child in determining the question. Courts in all these cases, seem reluctant to give automatic effect to the rules of Hizanat enunciated by Islamic jurists. If circumstances existed which justified the deprivation of a party of the custody of his child to whose custody he was entitled under Muslim Law. Courts did not hesitate to do so. it may be argued, as the appellant’s Counsel did. that the welfare of the child would be best served if his custody is given to a person who is entitled to such custody. Nevertheless, court’s power to determine the entitlement of a party to the Hizanat is not limited to mere observance of age rule so as to exclude the consideration of the interest of the child which would, however, depend on the facts and circumstances of a given case.
29. It is now settled that the term ‘welfare’ must be read in the largest possible sense as
meaning that every circumstance must be taken into consideration and the Court must
do what under the circumstances a wise parent acting for the true interests of the child would do or ought to do. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can ties of affection be disregarded vide queen vs.
Gyngall (1893) 2 QBD 232; Walter vs. Walter 55 Cal 730; Saraswathi Vs. Dhanakoti 48
Mad 299.
30. In the present case, the High Court Division did not make any exercise on the
‘welfare’ principle which was incumbent upon it but merely relied on the simple rule of age and sex as in S. 352 of Mulla’s book for giving custody of the children to the mother. The appellant has made grave imputations against the respondent as to her character and conduct and raised several other objections, including her being a British citizen and a Christian, without any ostensible source of income and of little education which do not conduce to the welfare of the children in comparison to the appellant who is a man of means and permanently settled in Bangladesh and as such more suitable to safeguard the welfare of the children. Dr. Kamal Hossain refuted the alleged grounds of unsuitability of the mother and submitted that the decision of the High Court Division was otherwise right because the concept of hizanat (custody) or the preferential right of the mother to custody which could just as well be characterized as the “entitlement” of the children to be with their mother, which was part of the corpus of Muslim law over 1400 years ago is now universally recognized, and is a concept which transcends time and space. He submitted that admittedly the children are Muslim Law (S.351 Mulla’s book). As to the fact that the mother is a Christian, Dr. Hossain submitted that a mother who is a kitabia is entitled to the same rights as a Muslim mother in relation to hizanat. The milk of a Muslim mother is not more nutritious than the milk of a Christian mother, he submits. In this connection he referred to mahommedan Law by Syed Ameer Ali Vol.11 (1976) 288.
31. Having read the various affidavits of the parties and upon hearing their learned
Counsel, it appears to us thai the disbelief of the appellant in the respondent is too many
and too deep which cannot be ignored even though the mother, it cannot be denied, is generally and eminently suitable for the caring of the children. At the same time the father being the first and primary natural guardian has an abiding interest in the welfare of the children. Indeed he made a very conciliatory offer to maintain the children “even in the custody of the respondent in Dhaka City in the same environment and with the same facilities at his costs” while making a prayer for stay of the impugned judgment on 5.9.1995. Before we started hearing the appeal, we asked the learned Counsel of the parties to try and make an agreed arrangement on the basis of the said offer of the appellant. Unfortunately. The parties could not come to terms, rather they started finding more faults with each other. In the circumstances, we have come to the conclusion that the custody issue be decided upon evidence as to where the interest and welfare of the children actually lie. The High Court Division has not done it and we consider it
inexpedient in the facts of the present case to decide the issue merely on the basis of affidavits and submissions. Dr. Hossain himself suggested in one of his applications for directions before the hearing began that: “Further, to assist in the proper disposal of this
matter, it is prayed that directions may be issued to the District Judge/an Advocate
Commissioner appointed by this Court to examine parties and the children, and take
other relevant evidence relating to the present conditions of the children, and to submit a
report to this Hon’ble Court by a stipulated date, and further or in the alternative, if the
parties so agree, to appoint an independent agency (such as International Social Services.
an international agency which provides in the course of its work, welfare reports to courts
throughout the world on matters concerning children, and which has a national representative in Bangladesh who is a government servant and an officer of the Department of Social Welfare) to issue a welfare report on the children out an arrangement and which may ultimately assist this Hon’ble Court in disposing of this matter consistently with the basis of the paramount consideration in matters of custody being the welfare of the children, and in exercise of its jurisdiction in loco parentis.”
32. Dr Hossain also brought to our notice the case of Dr. Mrs. Veena Kapoor, Air 1982 SC 792, which is quite instructive and lends support to the view which we have already taken and the steps we are going to take in this matter. In that case, the lady who was living separately after estrangement with her husband filed a habeas corpus petition in the High Court of Punjab and Haryana asking for the custody of her 1½ year old child, Akhil
Ishwar, alleging that the respondent was in illegal custody of the child. The High Court
dismissed the petition taking the view that the respondent’s custody cannot be said to be illegal.
33. The order that was passed by the Supreme Court in that matter is so near to our own
thinking in the present case that we would like to reproduce verbatim some portion of the
said order. It said: 2. It is well settled that in matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of without adverting to this aspect of the matter, has dismissed the petition on the narrow ground that the custody of child with the respondent cannot be said to be illegal. 3. It is difficult for in this habeas corpus petition to take evidence without which the question
as to what is in the interest of the child cannot satisfactorily be determined. We. therefore, direct that the learned District Judge, Chandigarh, will make a report to us before 23rd of this month on the question as to whether the custody of the child should be handed over to the petitioner-mother, taking into consideration the interest of the minor. The learned Judge will give liberty to the parties to adduce evidence on the question in issue. The learned District judge may either take up the matter himself or assign it to an Additional District judge, if there is any at Chandigarh.
34. Admittedly, the parties are already before a Family Court, Assistant judge, 2nd Court. Dhaka at the instance of the appellant father, in a guardianship proceeding for the children, Family Suit No. 145 of 195 which, we are told, has not made much progress because of the pendency of these appeals. It will be an appropriate forum, in our opinion, where the parties can usefully lead evidence and the Court will be at a greater advantage to decide the question of custody on the principles which we have taken some pains purposely to allude as above without burdening this judgment with disputed facts and dark apprehensions expressed by the appellant against his former, British Christian, wife, namely, the respondent. Dr. Hossain has insisted pending disposal of the Family Court proceeding for an interim order of custody in favour of the mother again mainly on the ground of immediate necessity of care and affection of the siblings by their mother, At our instance the parties filed affidavits including one by the further of the respondent wife for assisting the Court in making some interim orders as regards the custody of the children.
35. Mr. Ozair Farooq argued the High Court Division ought to have dismissed the. writ
petitions as not maintainable because there was no finding made by it that the appellant
had illegally removed the children from (he custody of the mother on 8.5.95 as alleged in
the writ petitions or that the appellant had been holding them without any lawful authority or in an unlawful manner. He further argued that since a proper Court, namely, the Family Court was in seisin of the matter of guardianship, the High Court Division ought not to have exercised its discretionary jurisdiction and foreclosed the said proceeding.
36. It appears that the High Court Division considered the question of maintainability on a different perspective whether the writ petitions were maintainable for the custody of the
minors in the face of specific provision in the Family Courts Ordinance. 1985 in that behalf and relying upon a Division Bench decision in the case of Ayesha Khanm Vs. Major Sabbir Ahmed. 46 DLR 399 which again relied upon two Indian decisions. Goher begum Vs. Sugszi AIR 1060 (SC) 93 and Imtiaz Banu AIR 1997 (All) 25. held that they were maintainable. Mr. Ozair Faiooq submits that he does not dispute the said view on principle but in all the cases refereed to there, was either a finding as to illegal removal from the lawful custody or it was found that the custody complained of was not lawful which is not the case here.
37. Dr. Hossain submitted that it is not disputed that after serving divorce notice upon the
respondent on !0.05.95. she was made to go away from the house at Uttara with her father to his (father’s) village home keeping all the children back. But even if she was divorced, the children could not be held back from their mother particularly when there was even a breastfeeding child among them. If the mother had children, it was open for the father to claim their guardianship in a Court of law. But he could not present a fail accompli by his unilateral act of holding back the Dr. Hossain submitted. To drive the mother to a protracted proceeding in the Family Court because of the unilateral act of the father would amount to a denial to the children of that care and loving which they are entitled to at all times from their mother. Dr. Hossain submits that the High Court Division has an extraordinary jurisdiction, namely, the habeas corpus remedy, to assure immediate protection to the children. In a case like the present, it is effectively an “intensive care” jurisdiction which can and should be invoked, where children need
emergency protection, to decide questions of immediate custody and to protect the other
from protracted and dilatory proceedings under the writ petitions were maintainable.
38. It is true that the High Court Division gave no consideration, not to speak of making any finding, to the story of alleged deceitful removal of the children on 8.5.95 by the
appellant father nor was it held that the custody of the appellant was for any reson unlawful. But then we find substance in the submission of Dr. Hossain that normally the minor children should be with their mother as long as she does not earn any disqualification for such custody and if there is a breach of this normal order brought about by an unilateral act of the father or anybody on his behalf, the aggrieved mother has the right to move the High Court Division under Article 102 of the Constitution for immediate custody of the children which may be ordered in the interest and for the welfare of the said children.
39. As regards immediate custody. Dr. Hossain submitted that the children have long
been separated from their mother since May. 1995 and it is fit and proper that they should
not be deprived of their mother’s care any longer. He said that the respondent, who is a
young mother, married at the age of 16 only, has been bringing up the children which was
her only occupation and as such her yearning for the siblings can better be fell than
described. He refuted the appellant’s allegation that she had no concern for the children
and that she might remove them to England to live on the charity of the British Government as she had no means of income and that cannot be in the welfare of the children when the father can afford the best of everything in the country.
40. We have already indicated that the dispute between the parties as to custody of the children should be decided upon taking evidence but it is our human concern which impels us to make some provisional orders without causing any prejudice to the parties concerned. It was heartening to note that both sides expressed genuine concern for the interest and welfare of the children and it was good’ to see that the party’s lawyers also contributed to it, particularly Dr. kamal Hossain who committed himself personally in working out assurances on behalf of the mother for the safe upkeeping of the children within the jurisdiction of this Court. He prayed that all the children may be put to the care custody of the mother as they have grown up together.
41. We are parting with this case still with the hope which eluded us here that it may be possible for the parties to come to children who are too precious for any bargain to both of them. As for the present, we propose to make an interim order as best as possible under the circumstances of the case. The eldest son Mohammad Nurul Alam Jalil, who is now a big boy of 12 years, can look after himself and his case can be legitimately considered differently from that of the others.
42. Considering the facts and circumstances of the case and the present interest of the children, and also in consideration of the affidavit sworn by Sharon Laily Begum Jalil Before the notary public, Dhaka on 12 march, 1997 and those of her father Shamsul Haque on the same day and on 16 March 1997. all filed in Court, and particularly in view of their undertaking that the children will not be taken out of the jurisdiction of this Court save and except with leave of this Court, it is directed that (1) Jasmin Akhter Jalil (2) Sharlean Akther Jalil and (3) Mohammad Shah Alam Begum Jalil pending disposal of Family Suit No. 145 of 1995 of the Family Court and Second Court of Assistant Judge, Dhaka.
43. It is further directed that Mohammad Nurul Alam Jalil shall remain in the custody
of his father Abdul Jalil.
44. Appellant Abdul Jalil of Civil Appeal Nos.56-58 of 1995 is hereby directed to hand
over the aforesaid three children to the custody of their mother in the house of Ms. Sara
Hossain, learned Advocate of the mother -writ petitioner at 7/C, New Baity Road, P.S.
Ramna, Dhaka at a conveniently agreed time within seven (7) days from date.
45. At the time of taking custody of 3 (three) children. Sharon Laily Begum Jalil is directed to furnish in writing to Abdul Jalil her present address and notify any change of residential address in future.
46. The father will have the right to visit the Children at a conveniently agreed time, place and period on not more than three occasions in a week. The mother will have right to visit the eldest son on similar terms. In case of any disagreement, the parties will be free to seek necessary direction from the Family Court.
47. The Family Court concerned is directed to dispose of Family suit No. 145 of 1995 within six months of receipt of this order by the said Court.
48. Civil Appeals No.56-58 of 1995 are dismissed. Civil Appeal No.59 of 1995 is also
dismissed. Both without costs.
49. Let a copy of this judgment and order be sent to the Family Court concerned, the
British High Commission at Dhaka and the Ministry of home Affairs (for attention of the
Immigration authorities).
Ed.
Source: IV ADC (2007), 8