HC questions legality of father as sole natural guardian of a minor

The High Court has questioned the legality of clause ‘b’ of Section 19 of the Guardians and Wards Act, 1890, that describes only the father as the natural guardian of a minor.

The High Court issued a rule upon the concerned bodies of the government to explain as to why the clause ‘b’ of Section 19 of the Guardians and Wards Act, 1890, should not be declared unconstitutional.

Law Secretary, Women and Children Affairs Secretary, Law Commission and National Human Rights Commission (NHRC) have been asked to comply with the rule.

The High Court bench of Justice Naima Haider and Justice Kazi Zinat Haque passed the order after hearing a writ petition filed by five rights organisations.

Think Legal Bangladesh, Bangladesh Legal Aid and Services Limited (BLAST), Bangladesh Mahila Parishad, Naripokkho and Academy of Law and Policy (ALAP) filed the petition. 

According to Section 19(b) of the act, "Nothing in this Chapter shall authorize the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Ward or to appoint or declare a guardian of the person subject to the provisions of this act with respect to European British subjects, of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor."

The High Court also directed the Ministry of Women and Children Affairs and National Human Rights Commission to constitute a committee comprising the respondents and independent experts to formulate detailed criteria and guidelines to help decision-makers assess guardianship issues and submit the said guidelines to the Court by August 4, 2024.

Barrister Sara Hossain, Senior Advocate, appeared for the petitioners with Barrister Anita Ghazi Rahman, Barrister Rashna Imam, Advocate Masuda Rehana Begum and Advocate Ayesha Akhter. Deputy Attorney General Amit Das Gupta was present on behalf of the government.

Sara Hossain told the FE that this order is an important step in moving towards ensuring equality for women in relation to rights within the family and to guardianship of children, and away from the discriminatory attitudes and concepts that were embedded in colonial laws and continue to prevail in society.

The petitioners filed this writ in the public interest, impugning Section 19(b) of the act as being violative of the fundamental rights of women to equality and non-discrimination, and praying for a declaration that women and men be treated on an equal footing for the purpose of being appointed or declared as the guardian of a minor under the Guardians and Wards Act, 1890 in accordance with the fundamental rights guaranteed under Article 26, 27, and 28 of the Constitution.

[email protected]