Zahida Ahmed (Liza) Vs. Syed Noor Uddin Ahmed and another (Syed Mahmud Hossian, J.)

….years son of Zahida Ahmed (Liza) now detained in the custody of the respondents should not be brought before this Court so that this Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner.

1. 2.      The facts leading to the issuance of the Rule, in brief, are:

The petitioner was given in marriage to respondent No. 1 on 27.2.1998. The petitioner is the mother of the detenu child. She has been residing in London, England for the last 6 years. Currently, she has been enrolled in two years’ diploma course in business management and marketing at LondonReadingCollege, London, England. She has also been employed part time as a child care worker at City Literacy Institute. Respondent No. 1 is the father of the detenu. He had been employed in a number of jobs, most recently as a kitchen porter in Park Town Casino, London until his sudden departure from the U.K in December 2008.

1. 3.      On 6.11.1998, the detenu Ayon was born to the petitioner and respondent No. 1 and he is now ten years old. He has been living with his parents in London since he was three years old. After arrival in London, the detenu was diagnosed with significant psychological and physical health problems and had been suffering from chronically poor growth and difficulty in eating. He requires regular treatment and care for his condition and has been receiving such specialist treatment and care while living   in London. The detenu has been enrolled in the reception class (nursery) at the Holy Trinity St. Sailors Primary School, Camden, London. He had been studying there for the past six years prior to his wrongful removal from the petitioner’s custody. The detenu had been receiving specialized support for his speech and language difficulties. He had been cared for and nurtured exclusively by his mother (petitioner), since his birth and had never been parted from her until his removal from her custody by respondent No. 1 on 29.12.2008.
2. 4.      The petitioner is aggrieved by the deceitful removal of the detenu by the respondents from her custody without her consent. As a result, the detenu is being deprived of his right to access to his mother and also to appropriate and specialized healthcare, nutrition and education facilities. In September 2008, the petitioner and respondent No. 1 had a blazing argument after which respondent No. 1 forcibly prevented the petitioner from leaving the house stating that if she were to leave, he would take no responsibility for her or for the detenu child.
3. 5.      In October 2008, the petitioner left the house with the detenu and started living in a rented house. By mutual agreement, respondent No. 1 had regular contact with the detenu, speaking to him daily on the telephone every weekend but did not make any payment towards his maintenance including food or clothing except for the fees for a coaching centre attended by the detenu. In November 2008, respondent No. 1 informed the petitioner that he wished to take the detenu child on a five days’ family visit to his relatives in Ireland. Respondent No. 1 also repeatedly assured the petitioner that the child would be returned to her custody within five days.
4. 6.      On 31.12.2008, the petitioner came to learn that respondent No. 1 left for Dhaka, Bangladesh on Ettihad Airlines accompanying by Mrs. Rokhsana Chowdhury, aunt of the detenu. On 31.12.2008, the petitioner’s sister telephoned respondent No. 2 who informed her that neither respondent No. 1 nor the child was there and that he did not know their whereabouts.  On 1.1.2009, respondent No. 1 informed the petitioner over telephone that he is a Bangladeshi and that according to Bangladesh law the child was his and refused to let her to speak to the child. The petitioner made a missing child complaint with the Barnet Police Station, which was recorded as Case No. 08MIS031027. The police thereupon questioned Mr. Mamun Chowdhury, uncle of the detenu, and thereafter arrested Mrs. Rokshana Chowdhury who admitted that she accompanied respondent No. 1 and the detenu child to Bangladesh. The petitioner thereupon filed a petition before the High Court of Justice, Family Division, Principal Registry, in London (England) in respect of the detenu child and recovery of his custody against respondent No. 1 and Mr. Mamun Chowdhury. The petitioner’s Barrister in London on 23.1.2009 contacted the respondents by telephone but they refused to let the child speak to the petitioner. The High Court of Justice, Family Division, in London on 26.1.2009 was pleased to pass an order making the detenu child a ward of the Court and further directing respondent No. 1 to return him to the jurisdiction of England.
5. 7.      The petitioner returned to Bangladesh on 12.2.2009 after making all effort to take the detenu from the custody of the respondents but to no avail. Therefore, the petitioner had to file the instant Writ Petition and obtained the Rule Nisi.
6. 8.      Respondent Nos. 1 and 2 filed an affidavit-in-opposition denying all the material allegations made in the Writ Petition. Their case, in short, is that the detenu was not diagnosed with psychological or mental disability. He had been studying at the school with other students for the last six years. The detenu successfully passed the exams in previous years after competing with the other students. After his coming to Bangladesh, the detenu was taken to the doctor who found no psychological or mental disability in the detenu. The detenu is about ten years old, who can form his own opinion. The petitioner was never subjected to torture or oppression. The detenu is a Muslim child who is above seven years of age. According to Muslim law his father (respondent No. 1) is entitled to retain the child in his custody. Moreover, according to section 17 of the Guardian and Wards Act, 1890 the paramount consideration will be the welfare of the minor. Since the petitioner is a lone mother in the U.K. and since she is on student visa there, she can only work limited hours. It would be difficult for her to maintain herself and the child. After attending class and doing the job, she would have a little time left for the child. The detenu child is now with his father who is the legal guardian of the child. The child is now growing up with care of his grandmother, uncle and aunty. So, the welfare of the child will be best protected if he is allowed to remain in the custody of his father.
7. 9.      Ms. Sara Hossain, learned Advocate appearing for the petitioner, submits that the detenu was illegally removed from the custody of her mother while he was in London and as such the removal of the detenu from the custody of the petitioner is without lawful authority. She further submits that though the detenu is aged about ten years, he cannot be removed from the custody of her mother without the consent of the petitioner. The learned Advocate lastly submits that the welfare of the child is the paramount consideration and that the petitioner being the mother is entitled to his custody till she remarries.
8. 10.  Mr. Md. Ashraf Ali, learned Advocate for respondent Nos. 1 and 2, on the other hand, submits that admittedly the child detenu is aged about ten years and that according to the Mohammedan law, the father being the legal guardian is entitled to the custody of his son (detenu). He further submits that the mother is a student and that she has been working part time and therefore, it is not possible on her part to safeguard the welfare of the detenu.
9. 11.  Admittedly, the detenu was in the custody of the petitioner. It has not been denied in the affidavit-in-opposition that respondent No. 1 did not remove the detenu from the custody of the petitioner and that the detenu was brought to Bangladesh without her consent. From the statement made in Writ Petition, it appears that the petitioner made a missing child complaint with the Barnet Police Station, Camden, London, which was recorded as Case No. 08MIS031027. The detenu was taken from the custody of his mother while he was in U.K. The law of the U.K. does not permit such a removal. In addition, Islamic Sharia law does not have any application in the U.K although Dr. Rowan Williams, the Archbishop of Canterbury, suggested adopting parts of Islamic Sharia law to resolve martial disputes or financial matters of the Muslims living there. But the British Prime Minister Gordon Brown believed that British law should be based on British values. (Internet edition of BBC news dated 7.2.2008). Father is not even the natural guardian in U.K where Children Act, 1989 in section 2(4) provides that the rule of law that father is the natural guardian of the legitimate child is abolished. According to Mohammedan law of hizanat, it is no doubt that father is entitled to the custody of his minor son when he attains the age of seven years. But the law relating to the custody does not permit deceitful removal of the detenu from the custody of his mother while he was in a foreign country where such removal is not at all permissible. The rule of hizanat has not given any unfettered right to the father to remove a minor son aged about 10 years from the custody of his mother at will. By resorting to deceptive means, respondent No. 1 took the temporary custody of detenu from his mother on pretext of going to a family visit to Ireland and then brought the detenu to Bangladesh. By doing so, respondent No. 1 has taken law in his own hand without waiting for adjudication of the custody and welfare of the child in an appropriate forum.
10. 12.  Meanwhile, on 1.3.2009 the petitioner filed Family Suit No. 126 of 2009 before the 3^rd Court of Additional Assistant Judge, and Family Court, Dhaka praying for the custody of child under section 25(1) of the Guardian of Wards Act, 1890 read with section 5(ka) of the Family Court Ordinance, 1985. It is, of course, true that the question of welfare will be dealt with by the Family Court which will take into account in whose custody the welfare of the child will be best protected. After issuance of the Rule, we directed the learned Advocate for respondent Nos. 1 and 2 for production of the child as it is evident from the order dated 2.3.2009. Accordingly, the detenu was produced on 9.3.2009. Both of us had the occasion to speak to the detenu. We found that the detenu could not speak properly and that he was not looking healthy as well. Sitting here in the writ jurisdiction we cannot decide the welfare of the child but we have observed the physical condition of the child while deciding the question of illegal detention. The Family Court must take into account the physical condition of the child as well as the law involved for deciding the question of custody. The age of the detenu can not be the sole basis for deciding the question of custody. In this connection reliance may be made on the case of Md. Abu Baker Siddique Vs. S.M.A Bakar and Others, 38 DLR (AD) 106. The above case arose out of Guardian and Wards Act, 1890 and the boy was above seven years of age. The learned District Judge found that welfare of the boy would best served if he was allowed to live with his mother’s relations in preference to the father. The judgment of the learned District Judge was upheld upto the Appellate Division which, among other findings, held as under:

“ Indeed, the principle of Islamic Law (in the instant case, the rule of hizanat or guardianship of a minor child as stated in Hanafi School) has to be regarded, but deviation therefrom would seem permissible as the paramount consideration should be the child’s welfare”.  (Emphasis is ours)

1. 13.  In this connection we would like to refer to the case of Rumana Afrin Vs. Fakir Ashrafuddin Ahmed and Others (1996) 1 BLC 517 in which this Division held as under:

“Thus, the Islamic law of hidnat is that the mother has absolute right against the father over the minor child till she remarries. It is to be noticed that the hadith quoted above does not specifically state that the right of hidnat will cease if she remarries. The hadith indicates that the right of hidnat of the mother then will be at par with that of the father and the case of the mother versus the father is to be decided vis-a-vis the minor’s welfare.

1. 14.  In this case Abdul Jalil Vs. Sharon Laily Begum Jalil (1998) 50 DLR (AD) 55 the Appellate Division has held that a Writ Petition at the instance of the mother in the form of habeas corpus is maintainable against wrongful removal of the children by the father from her custody during pendency of the Family Suit for guardianship. The Appellate Division has also held: “It is well settled that in matters concerning the custody of the minor children, the paramount consideration is the welfare of the minor and not the legal right of this and that particular party.”
2. 15.  The General Assembly of the United Nations adopted the International Convention of the Rights of the Child, 1989. The document is a binding treaty to which 176 nations including Bangladesh became “state parties”. Article 3(1) of the Convention provides “In all actions concerning children, whether undertaken by public or private social welfare institution, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
3. 16.  We do not like to make any comment about the judgments and the convention discussed above. The Family Court will look into the cases referred to above and come to a finding in whose custody the welfare of the detenu will be better protected. In short, the child’s welfare is the supreme consideration, irrespective of the rights and wrongs of the contending parties.
4. 17.  But the fact remains that the detenu was illegally removed from the custody of his mother while he was in the U.K.  We have already stated that the law of U.K. does not permit such removal of a child from the custody of his mother without her consent. Before adjudication of the Family Suit the detenu must be restored to his earlier custody, that is, in the custody of the petitioner. Therefore, we are of the view that removal of the detenu from the custody of his mother is without lawful authority and that he is being held in the custody of the respondents in an unlawful manner.
5. 18. 
   

   The State Vs. Md. Rafique And another, (Zubayer Rahman Chowdhury, J.)

   Any delay in determining the question of custody is likely to prejudice the welfare of the child. Therefore, we are of the view that the Family Court should dispose of the Family Suit within a specified time. Till disposal of the suit, we would like to ensure that the mother shall remain in Bangladesh and she must deposit her passport with the concerned Family Court.

1. 19.  In this result, the Rule is made absolute and the detention of the detenu Syed Shafin Ahmed  (Ayon), aged about 10 years in the custody of respondents is declared to be unlawful and he is being held in their custody in an unlawful manner.
2. 20.  Respondent No. 1 is directed to handover the detenu to the custody of the petitioner by 23.3.2009 in presence of the learned Advocates for both the sides. Before handing over the detenu in the custody of the petitioner, the petitioner shall deposit her passport with the concerned Family Court which shall retain the passport till disposal of the suit. The Family Court is directed to dispose of the Family Suit within one month from the date of receipt of this judgment. The Family Court is also directed not to allow adjournment to either of the parties. During pendency of the suit in the Family Court, the father (respondent No. 1) shall have the right to visit his son at a conveniently agreed time, place and period twice a week.
3. 21.  Let a copy of the judgment be communicated to the 3^rd Court of Additional Assistant Judge, Family Court, Dhaka by a special messenger of this Court.

      There is no order as to costs.

Ed.

HIGH COURT DIVISION

(Criminal Appellate Jurisdiction)

Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain ( XVIII of 1995)

Sections 8 and 12

The ingredients or elements necessary for invoking sections 8 and 12 of the Ain of 1995 are missing in the instant case. There is no evidence on record to show that the victims were transferred to the custody of some other persons nor any documents like passport, airline ticket were recovered showing that there was any intention to send the victim to Pakistan, as alleged by the victims themselves. The statement of the victims made under section 164 of the code of Criminal Procedure, reveal that they are not abducted by the accused persons; rather they went away on their own volition. There is no evidence whatsoever to indicate that they were “bought” or “sold” or “exported” or “imported” or “transferred” for any such illegal or immoral act, as contemplated in section 8 of the Ain of 1995. The preconditions for application of the aforesaid two sections were not fulfilled in the instant case and as such the order of conviction and sentence appears to be without any legal basis.