Guardianship and Legal Clarification
Guardianship (rights/responsibilities granted) and provisions for adoption as per Bangladeshi law:
According to Section (2) of The Guardian and Wards Act,1890 “guardian” means a person having the care of the person of a minor or of his property, or of both his person and property:
Mionirity means (1) “minor” means a person who, under the provisions of the Majority Act, 1875, is to be deemed not to have attained his majority:
Age of majority of persons domiciled in Bangladesh: Under Section 3 of. Majority Act, 1875, Subject as aforesaid, every minor of whose person or property or both a guardian, other than a guardian for a suit within the meaning of Schedule I, Order XXXII of the Code of Civil Procedure, 1908,] has been or shall be appointed or declared by any Court of Justice before the minor has attained the age of eighteen years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age shall, notwithstanding anything contained in Succession Act, 1925,] or in any other enactment, be deemed to have attained his majority when he shall have completed his age of twenty-one years and not before.
Power of the Court to make order as to guardianship
Section 7. (1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made-
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian, the Court may make an order accordingly :
Provided that no person, other than a citizen of Bangladesh, shall be appointed or declared to be a guardian of a minor who is a citizen of Bangladesh.]
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.
Persons entitled to apply for order
Section 8. An order shall not be made under the last foregoing section except on the application of-
(a) the person desirous of being, or claiming to be, the guardian of the minor, or
(b) any relative or friend of the minor, or
(c) the Collector of the district or other local area within which the minor ordinarily resides or in which he has property, or
(d) the Collector having authority with respect to the class to which the minor belongs.
Matters to be considered by the Court in appointing guardian
Section 17. (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.
(5) The Court shall not appoint or declare any person to be a guardian against his will.
Guardian not to be appointed by the Court in certain cases
19. Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person-
(a) of a minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person, or
(b) 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, or
(c) of a minor whose property is under the superin-tendence of a Court of Wards competent to appoint a guardian of the person of the minor.
Rights/responsibilities of Guardian:
Variation of powers of guardian of property appointed or declared by the Court
Section 32. Where a guardian of the property of a ward has been appointed or declared by the Court and such guardian is not the Collector, the Court may, from time to time, by order, define, restrict or extend his powers with respect to the property of the ward in such manner and to such extent as it may consider to be for the advantage of the ward and consistent with the law to which the ward is subject.
Right of Guardian so appointed or declared to apply to the Court for opinion in management of property of ward
33. (1) A guardian appointed or declared by the Court may apply by petition to the Court which appointed or declared him for its opinion, advice or direction on any present question respecting the management or administration of the property of his ward.
(2) If the Court considers the question to be proper for summary disposal, it shall cause a copy of the petition to be served on, and the hearing thereof may be attended by, such of the persons interested in the application as the Court thinks fit.
(3) The guardian stating in good faith the facts in the petition and acting upon the opinion, advice or direction given by the Court shall be deemed, so far as regards his own responsibility, to have performed his duty as guardian in the subject-matter of the application.
Obligations on guardian of property appointed or declared by the Court
34. Where a guardian of the property of a ward has been appointed or declared by the Court and such guardian is not the Collector, he shall,-
(a) if so required by the Court, give a bond, as nearly as may be in the prescribed form, to the Judge of the Court to ensure for the benefit of the Judge for the time being, with or without sureties, as may be prescribed, engaging duly to account for what he may receive in respect of the property of the ward;
(b) if so required by the Court, deliver to the Court, within six months from the date of his appointment or declaration by the Court or within such other time as the Court directs, a statement of the immoveable property belonging to the ward, of the money and other moveable property which he has received on behalf of the ward up to the date of delivering the statement and of the debts due on that date to or from the ward;
(c) if so required by the Court, exhibit his accounts in the Court at such times and in such form as the Court from time to time directs;
(d) if so required by the Court, pay into the Court at such time as the Court directs the balance due from him on those accounts, or so much thereof as the Court directs; and
(e) apply for the maintenance, education and advancement of the ward and of such persons as are dependent on him, and for the celebration of ceremonies to which the ward or any of those persons may be a party, such portion of the income of the property of the ward as the Court from time to time directs, and, if the Court so directs, the whole or any part of that property.
Duties of guardian of the person
Section 24. A guardian of the person of a ward is charged with the custody of the ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires.
Duties of guardian of property
27. A guardian of the property of a ward is bound to deal therewith as carefully as a man of ordinary prudence would deal with it if it were his own, and, subject to the provisions of this Chapter, he may do all acts which are reasonable and proper for the realisation, protection or benefit of the property.
Powers of testamentary guardian
28. Where a guardian has been appointed by will or other instrument, his power to mortgage or charge, or transfer by sale, gift, exchange or otherwise, immoveable property belonging to his ward is subject to any restriction which may be imposed by the instrument, unless he has under this Act been declared guardian and the Court which made the declaration permits him by an order in writing, notwithstanding the restriction, to dispose of any immoveable property specified in the order in a manner permitted by the order.
Adoption as per Bangladeshi law:
Adoption is not permitted under Bangladeshi law. Bangladesh law permits its own citizens to apply for guardianship of children. But It is permitted under Hindu Law.
Bangladesh is not party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption ( Hague Adoption Convention ). Therefore, when the Hague Adoption Convention entered into force for the United States on April 1, 2008, intercountry adoption processing for Bangladesh did not change.
Bangladeshi law does not allow for full adoptions of Bangladeshi children. Americans considering adoption of Bangladeshi children must obtain guardianship from a Bangladeshi court and subsequently adopt the child in the United States. Prospective American guardians may also want to refer to our flyer on Islamic Family Law for more information on this issue.
Note: Only citizens of Bangladesh may be appointed/declared guardians of a Bangladeshi child. Since Bangladesh allows for dual citizenship, however, American citizens who are also Bangladeshi citizens may be appointed guardians of Bangladeshi children.
Who Can Adopt
To bring an adopted child to United States from Bangladesh, you must be found eligible to adopt by the U.S. Government. The U.S. Government agency responsible for making this determination is the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS). Learn more.
In addition to these U.S. requirements for prospective adoptive parents, Bangladesh also has the following requirements for prospective guardians:
• RESIDENCY REQUIREMENTS: There are no residency requirements; however, prospective parents must provide proof of Bangladeshi citizenship.
• AGE REQUIREMENTS: Prospective guardians must be at least 18 years old.
• Family Court Requirements : An application for legal guardianship must be made to the Family Court. In Bangladesh, the Family Court has sole jurisdiction over family matters.
• MARRIAGE REQUIREMENTS: There is no legal requirement regarding marital status.
• INCOME REQUIREMENTS: While there is no specific income requirement, prospective adoptive parents must be able to provide food, shelter, and education for the proposed ward.
• OTHER REQUIREMENTS: While there is no specific income requirement, prospective adoptive parents must be able to provide food, shelter, and education for the proposed ward.
Who Can Be Adopted:
Bangladesh has specific requirements that a child must meet in order to be eligible for adoption. You cannot adopt a child in Bangladesh unless he or she meets the requirements outlined below.
In addition to these requirements, a child must meet the definition of an orphan under U.S. law for you to bring him or her back to the United States. Learn more about these U.S. requirements.
ELIGIBILITY REQUIREMENTS:
Relinquishment Requirements:
The biological parent(s) must sign an irrevocable release of the child before a Notary Public or Magistrate in Bangladesh.
Abandonment Requirements:
There is no specific requirement regarding abandonment, but if the legal guardians are alive, they will have to relinquish their rights of guardianship.
AGE REQUIREMENTS:
The child must be under 18 years of age.
Please note that U.S. immigration requirements state that children over the age of 16 are not eligible for entry into the United States unless being adopted as part of a sibling pair or group.
Sibling Requirements:
There is no specific provision of the law relating to the guardianship of siblings. Guardianship proceedings for siblings can be completed together.
Requirements for Special Needs or Medical Conditions:
There are no legal requirements for obtaining guardianship of children with special needs or medical conditions.
Differences in terms of guardianship from natural parents and from an orphanage:
Ans.-3:Actually there are no basic differences in terms of guardianship from natural parents and from an orphanage under The Guardian and Wards Act,1890. Moreover, here is deference on the basis of Guardian of person. In guardianship from an orphanage there is no order of precedence. On the other hand, guardianship from natural parents, there is order of precedence, it can be classified under following points;
A) Custody Of minor children: : General rules of child Custody is that divorce is entitled to custody until age of 7 for males (classical Hanafi position) and puberty for females, subject to classical conditions, though there is some flexibility as wards best interests are considered paramount under terms of Guardians and Wards Act 1890; in Md. Abu Baker Siddique v. S.M.A. Bakar & oths (38 DLR (AD) 1986) classical Hanafi rules ending mother’s rights over custody of male children at the age of 7 were deviated from in best interests of the child; mother’s name must be included with father’s name in child’s documents. The following relatives on order of precedence will have the right to the custody of the children.
1.Mother,2. Mother’s mother h.h.s. by such way………….
B) Custody of children after the term of seven years for male and for female who has attained puberty, his or her custody belongs to father.
