Muslim Mother’s Right to Custody of Children: A Comparative Analysis of Judicial Precedents of the 21st Century in Bangladesh and India

Abstract

This paper examines different reasons behind judicial decisions in Bangladesh and India, focusing on their identical legal frameworks regulating the custody rights of Muslim mothers. It’s found that both countries follow Hanafi Islamic law, the Guardians and Wards Act of 1890, and have signed the Convention on the Rights of the Child. Despite these similarities, women still face greater difficulties getting custody in Bangladesh than in India. This paper highlights the differences and similarities in judicial reasoning and suggests best practices that Bangladeshi judges could adopt from India. Additionally, the analysis of judgments from the 21st-century Bangladesh Supreme Court and High Court Divisions reveals a strict application of traditional rules by the Family Court, which automatically transfers custody to the father at seven years, disqualifies the mother’s remarriage without considering specific circumstances, and permits the father’s financial capacity to override the mother's rights of custody of her children. Conversely, the Indian court views conventional rules as rebuttable presumptions and considers emotional attachment, caregiving capacity, and psychological impact systematically. However, this divergence in judicial approaches is important because it determines whether thousands of mothers receive genuine custody protection or lose their rights automatically. The main findings of this paper are that courts read the same laws differently and resulting in various outcomes. It concludes that Bangladeshi courts, especially the Family Court, tend to mechanically apply traditional laws, whereas Indian courts adopt a welfare-oriented analysis focused on the child’s best interests. Finally, this paper offers some practical recommendations advocating for judges to scrutinize current laws more thoroughly instead of enacting new legislation. Hence, this approach could allow Bangladesh to strengthen mother’s custody rights through court flexibility by prioritizing specific facts over strictly applying rigid rules.