Abdul Jalil and others Vs.

Sharon Laily Begum Jalil

Abdul Jalil and others (Appellant)

Vs.

Sharon Laily Begum Jalil (Respondent)

Source: 50 DLR (AD) (1998) 55

Supreme Court

Appellate Division(Civil)

JUSTCE

ATM Afzal CJ

Mustafa Kamal J

Latifur Rahman J

Abdur Rouf J

Bimalendu Bikash Roy Choudhury J

Judgment : March 30, 1997.

The Constitution of Bangladesh, 1972, Article 102

Habeas corpus for custody of minor children

Normally the minor children should be with their mother as long as she does not earn any
disqualification for such custody and 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 of the welfare of the said children……………….(33)

Cases Referred to:

Abu Baker Siddique vs. SMA Bakar 38 DLR (AD) 106; Queen vs. Gyngall (1893) 3 QBD 232; Walter vs.
WaIter 55 Cal 730; Saraswathi vs. Dhanakoti 48 (Mad) 299; Ayesha Khan vs. Major Sabbir Ahmed, 46 DLR
399 which again relied upon two Indian decisions, Goher Begum vs. Suggi AIR 1960 (SC) 93 and lmtiaz
Banu AIR 1979 (All) 25.

Lawyers Involved:

Ozair Farooq, Advocate-on-Record —For the Appellants (In Civil Appeal Nos. 56-58 of 1995).

Dr Kamal Hossain, Senior Advocate instructed by Kazi Shahabuddin Ahmed, Advocate-on-Record— For
the Respondent (In Civil Appeal Nos. 56-58 of 1995).

Dr Kamal Hossain, Senior Advocate, instructed by Kazi Shahabuddin Ahmed Advocate on-Recor-For the
Appellant (In Civil Appeal Nos. 59 of 1995).
Ozair Farooq, Advocate-on-Record—For the Respondents (In Civil Appeal Nos. 59 of 1995).

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).

Judgment

ATM 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.1 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 their four minor children, namely, Mohammad Nurul Alam Jalil (born on 23-4-1985)
Jasmin Akhter Jalil (born on 8-9-1988). Sharlean Akhter Jalil (born on 24-4-1991) and Mohammad Shah
Alam Jalil (born on 9-8-1993) became, a matter of great controversy and the mother Mrs. Sharon Laity
Begum Jalil filed the aforesaid 4 writ petitions 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 24-4-1968. Her father is from Bangladesh having been a member of the Dagon
Bhuiyan Union Parishad and her mother being a resident in Middlesborough, England. She was married
to respondent No. 1 Abdul Jail (in the writ petitions) on 12-7-1984 in England and the marriage was duly
registered at the Registrar’s office in Rawtenstall, Hyndburn and Ressendale, county of Lancashire,
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. 1 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.1 received his British residency. She was often subjected to various
kinds of abuse, both physical and mental, by respondent No. 1. The petitioner’s marital life was lived in a
cycle of abuse, fending of assaults by respondent No. 1. The petitioner continued to suffer in silence the
brutal assaults 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.1 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
intention to settle in Bangladesh at any point of time. Respondent No. 1 however, took their passports on
arrival at Dhaka and never returned them, rather he took steps to obtain Bangladesh passport for the
children. Over the next 19 months respondent No.1 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.

6. On 8-5-1995 respondent No. 1 aided by respondent Nos. 2 and 3 deceitfully and illegally removed the
children including the youngest one Mohammad Shah Alam Jail, who was a breastfeeding infant, from her
custody and took 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.1, She was
informed by her father later in the day that respondent No.1 had taken out the children on the plea of
taking them to the park but later on stated that they were being taken to the paternal home in village
Durga Daulatpur P.O. Deotibazr PS Begumganj. District Noakhali and that he had no intention of ever
returning the children to her to custody.

7. On 10-5-95 she received a copy of the notice of divorce dated 9-5-1995 issued by respondent No. 1
under section 7 of the Muslim Family Laws Ordinance 1961. 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. 1 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
traveled to England and filed a suit in the High Court of Justice (Family Division). The said court passed an
order on 12-7-1995 directing that the children be made wards of the court and that they be returned by
respondent No.1 to the jurisdiction of the said Court. By a further order dated 14-7-1995 the said court
directed that respondent No.1 be forbidden from seeking to prevent or delay the petitioner (mother)
from bringing the detenu children to the jurisdiction of the said court and further directing that
respondent No.1 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.

8. 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 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.1 was prone to recurring violence and
abuse and further that the youngest child was a breastfeeding infant, she alleged.

9. The respondents contested the petitions by filing affidavits-in-opposition. The allegations made by the
writ petitioner were generally denied except that she was his (respondent No. 1) legally married wife and
the four children were born Out of their marriage. It has been asserted, inter alia, that their marriage was
solemnised according to Islami Sunna in England. Respondent No. 1 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. 1 to take her and the children to Bangladesh so that they could be brought up in
Bangladesh culture avoiding the evil influence of the western society. According to their mutual
agreement, the family came to Bangladesh on 12-11-l993 and respondent No. 1 hired a house at Uttara
Model Town and got the two elder children admitted in the International School, Dhanmondi. All
arrangements were made by respondent No. 1 for the proper maintenance of the family while he left for
London to his place of business. He, however, visited Bangladesh from time to time. Respondent No.1
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 apologized 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.1 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 all changed and that she totally gave up looking after the children; rather she started showing
hatred towards them including the baby. Respondent No.1 again cane 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.

10. He caused GD 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.1 divorced his wife and her father
took her to his custody. She made a GD entry on that date at the Uttara PS stating that respondent No.1
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 no other claim against the respondent.

11. 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 grand-mother (respondent No.4) assisted by
respondent No.1 and she is competent to look after the minors. 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 that having been divorced by the respondent,
she would be living 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.

12. 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.1 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. 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. 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.

13. The writ-petitioner by filing affidavit- in-reply denied the allegations made by the respondents.

14. It appears from the impugned judgment that the matters were decided wholly and solely relying only
on section 352 of Mulla’s Mohammedan Law without adverting to the various contentions raised by the
parties holding that “in deciding the question regarding custody of minor children we refrain from making
any comment about the disputed question of facts and rival contentions narrated in the petitions affidavit-
in-opposition.” As regards the three children who were found to be below 7 years it was held that the
mother was entitled to their custody and as the eldest child Mohammad Nurut Alam Jalil was above 7
years, the father was held entitled to retain him in his custody. It was also held relying on some decisions
that the writ-petitions were maintainable.

15. Accordingly, the Rules were made absolute in three writ petitions and it was discharged in Writ
Petition No. 1585 of 1985 out of which CA No. 59 of 1995 has arisen at the instance of the writ-petitioner-
mother. Respondent No.1 along with other respondents are appellants in CA Nos. 56 to 58 of 1995 which
arise out of the writ-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.

16. Leave was obtained by the appellants (in CA 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 given to the mother following simply the in section.352 of Mulla’s Mohammedan 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 others, reference was made to the fact that:

1) the mother is not the proper person in view of her conduct and present life;

2) She was a Muslim at the time of marriage and accordingly, she was married to petitioner No.1 but she
has now asserted that she is a British Christian;

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.1) has left England for good and settled in Bangladesh and, as such, he has
no means to maintain minor children in England;

5) the children are 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 as means whereas the mother
has neither the means nor proper education to earn a livelihood for herself.

17. 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 in an unlawful manner and further without
court that there was a guardianship proceeding pending in the Family Court in respect of the said minors.

18. Khandker Mahbubuddin Ahmed taught Advocate, who appeared for the mother respondent, also
appellant (in CA No.59 of 1995), also criticized the impugned judgment but supported the decision so far
it was in favour of the mother, So, leave was granted in all the petitions.
19. 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.

20. 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 the children, but
with the best interests and welfare of the children. The law must operate to the benefit of the children,
Mr. Ozair Farooq, learned Advocate 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.

21. It may not sound an aphorism to say that lea proceeding like this it is not the rights of the parties but
the rights of the child, which are at issue. The General Assembly of the United Nations 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, mentally, morally, spiritually and socially in a healthy and
normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the
best interest of the child shall be the paramount consideration.”

22. 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 section 351. Mohammedan
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.

23. As far as judicial pronouncement is concerned this Court in the case of Abu Baker Siddique vs. SMA
Bakar 38 DLR (AD) 106. upon a review of a large number of decisions held:
“These decisions, while recognizing 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.”

24. 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) 3 QBD 232; Walter vs. Walter 55 Cal 730;
Saraswathi vs. Dhanakoii 48 (Mad) 299.

25. 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 section 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 characterised 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 recognised, and is a concept which transcends time and space. He submitted that
admittedly the children are Muslim children and, as such, the law to which they are subject includes
Muslim law (section 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 be reffered to Mohammedan Law by Syed Ameer Ali Vol. II (1976) 288.

26. Having read the various affidavits of the parties and upon hearing their learned Counsel, it appears to
us that 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 5-9-95. 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 appealant.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 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 based on 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 agency (such as International Social) 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 which report could assist the parties in working
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.”

27. 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 1 ½ year-old child, Akhil lshwar, alleging that the respondent was in illegal custody of the child. The
High Court dismissed the petition taking the view that the respondents custody cannot be said to be
illegal.

28. 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 this or that particular party. The High Court, 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 us 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.

29. 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 1995
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 apprehension
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 father of the respondent wife
for assisting the Court in making some interim orders as regards the custody of the children.

30. Mr. Ozair Farooq argued that 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 the 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.

31. 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 Khan vs. Major Sabbir Ahmed, 46 DLR 399 which again relied upon two
Indian decisions, Goher Begum vs. Suggi AIR 1960 (SC) 93 and Imtiaz Banu AIR 1979 (All) 25, held that
they were maintainable. Mr. Qzair Farooq submits that he does not dispute the said view of principle but
in all the cases referred 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.

32. Dr. Hossain submitted that it is not disputed that after serving divorce notice upon the respondent on
10-5-95 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
disqualified herself for any reason for the custody of her children, it was open for the father to claim their
guardianship in a Court of law. But he could not present a fait accompli by his unilateral act of holding
back the children because of his stronger position and better resources, 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 mother from
protracted and dilatory proceedings under the general law. Dr. Hossain, therefore, submits that in any
case the writ petitions were maintainable.

33. 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 reason unlawful. But then we find substance in the submission
of Dr. Hossain that normal 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.
34. As regards immediate, 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 that were her only occupation and, as such, her yearning for the siblings can
better be felt than described. He refuted the appellant’s allegation that she had no concern for the
children and 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.

35. 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 up keeping of the children within the
jurisdiction of this Court. He prayed that all the children may be put to the care and custody of the mother
as they have grown up together.

36. We are parting with this case still with the hope that eluded us here that it may be possible for the
parties to come to a workable understanding for the benefit and welfare of the 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 Mohammadan Nurul Alam Jalil, who is now a
big by of 12 years, can look after himself and his case can tie legitimately considered differently from that
the others.

37. Considering the facts and circumstances of die case and the present interest of the children, and also
in consideration of the affidavit sworn by Sharon Lily Begum Jalil before the Notary Public, Dhaka on 12
March, 1997 and those of her father Shamsul Haque on same day and on 16 March 1997. all filed 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
Akhter Jalil and (3) Mohammad Shah Alan Jalil shall remain in the custody of their mother Sharon Laily
Begum Jalil pending disposal of Family Suit No. 145 of 1995 of the Family Court and Second Court of Judge,
Dhaka.

38. It is further directed that Mohammad Nurul Alam Jalil shall remain in the custody of his lather Abdul
Jalil.

39. Appellant Abdul Jalil of Civil Appeal Nos. 56-58 of 1985 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 Bailey Road, PS Ramna, Dhaka at a conveniently agreed time within
seven (7) days from date.

40. 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.

41. 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.

42. 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.

43. Civil Appeal Nos. 56-58 of 1995 are dismissed. Civil Appeal No. 59 of 1995 is also dismissed. Both
without costs.

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 : 50 DLR (AD) (1998) 55