An overview of violation of mother’s right to custody of child and patriarchal influence: A critical analysis in reference to existing statutes and case laws
Rumana Sharmin Barsha
In Bangladesh, disputes over custody and guardianship involving Muslim parties are principally governed by Muslim personal law. There remains a constant dilemma in judicial decisions over custody and guardianship matters as to what should be the paramount consideration in awarding child custody to a party – should traditional Muslim personal law rules or the welfare of the child prevail? Custody of minor children is a very brittle and susceptible issue. Typically the term child custody is used in family law courts to the exemplified legal guardianship of a child under the age of eighteen. When the spouses are divorced then the question of child custody arises. Every parent have an equal right in the time of custody of their child even they are separate. The social practices of Bangladesh are institutionalized within a patrilineal and patrilocal system. Family, kinship and marriage play a major role in shaping social gender practices. The patriarchal structure of our society, seclusion of women from others, women subordination and factors like discrimination against women are not letting them enjoy their natural rights of womanhood. In consequence, the women in Bangladesh are getting deprived of their natural right to get the custody of their children and to some extent also from the guardianship. However in this write up an attempt has been taken to focus on the issues that in the unequal fight for custody between the sexes, it is regularly the women who lose because of their social disabilities and monetary constraints but behind which they themselves had no fault. Moreover, there is no stipulation that how much the child will proliferate both mentally and physically being in stroke with the mother. As both the shariah law and statutory law in our country is conferring the responsibility of maintenance of the children to the father and father is also considered as the legal guardian, therefore mothers‘ financial condition cannot be a decisive factor to justify her capability to get the custody of her child. Although, much has been talked about this instant issue but owing to patriarchal mind-set and women subordination, the mother’s right to get the custody is very much within the theory and mostly not in practice.