Md. Abu Baker Siddique vs S.M.A. Bakar & others
Reference : 38 DLR (AD) [1986] 106
Jurisdiction : Bangladesh
Appellant : Md. Abu Baker Siddique
Respondent : S.M.A. Bakar
Facts :
The plaintiff, Md. Abu Baker Siddique married the defendant, S.M.A Bakar in 1973. They had a son named Suja, who was born in 1976. The father, Md. Abu Baker Siddique, was an engineer and the mother, S.M.A. Bakar, was an MBBS doctor. In 1977, due to professional reasons, the defendant left Bangladesh and went to Saudi Arabia leaving her son with the plaintiff. She returned to Bangladesh in 1978 but left for Saudi Arabia again two months later, taking her son with her. The Plaintiff afterwards also went to Saudi Arabia and came back to Bangladesh in 1981 leaving Suja with his mother. Their marriage dissolved in 1982 after the defendant filed for divorce. In 1984, the defendant returned to Bangladesh and left her son with some relatives before going back to Saudi Arabia.
At this point, the father, Md. Abu Baker Siddique, claimed the son’s custody under Section 25 of The Guardians and Wards Act, 1890. In the meantime, Suja was suffering from a serious medical condition. He had already undergone surgery under his mother’s care in the UK and might have required further surgery.
Despite the father’s financial stability and the general rule under Hanafi Law, which grants custody of a son above seven years to the father, the mother’s actions demonstrated her commitment to Suja’s welfare. She had left her job to focus on the child’s care and, as a qualified doctor, was particularly well-equipped to manage Suja’s medical needs.
Issues :
1. Does the plaintiff have an automatic right of custody over Suja under Islamic Law?
2. Does the child’s welfare, medical condition, and preference to stay with his mother’s family outweigh the father’s right to custody?
Arguments :
- Learned Advocate Mr. Fazlul Karim was the counsel for the plaintiff, Md. Abu Baker Siddique. He presented his arguments that since the plaintiff was an engineer he was solvent enough to bear all the medical expenses of Suja. The plaintiff had also arranged the necessary steps for the treatment. Moreover, according to the Hanafi School, Suja was above seven years, so the custodial rights automatically fell to the plaintiff. According to Islamic Law, father has the first priority in guardianship. In addition, the learned advocate also stated that the mother’s remarriage could create issues for the son if the custodial rights were granted to the defendant.
- On the contrary, Advocate Md Nurul Haque, who was the counsel on behalf of the defendant, S.M.A. Bakar, stated that, the defendant took care of the child and bore all the medical expenses during the surgery that Suja underwent, whereas the plaintiff did not bear any expenses for the treatment. The mother also gave up her well-paid job for the welfare of the child. Moreover, when the child was asked with whom he wanted to stay, he preferred his mother to his father. Another argument was presented by the learned counsel that the mother was an MBBS doctor who knew how to properly care for the ill child.
Decisions :
After hearing both parties, the Appellate Division of the Supreme Court of Bangladesh, the Apex Court, stated that even though Islamic laws regarding the father’s guardianship could be applied here, the welfare of the child is paramount. The Court dismissed the appeal and handed the custodial rights to the mother. It was seen that, the mother, who was a doctor, was more capable of taking care of the child than the father. Moreover, the mother’s dedication and the child’s preference to stay with his mother led the Court to prioritize the welfare of the child over the father’s entitlement. Thus, no costs were awarded.
The Best Interest of the Child Principle :
This case is one of the most important cases in Bangladesh in light of guardianship. The case established the principle of ❝The Best interest of the Child❞ in Bangladesh. The principle states that the welfare of the child is the paramount consideration in appointing the custodian.
Relevant Law :
- The Guardians and Wards Act, 1890
- Section : 25
Author :
1. Nusiba Hasan Ohee
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