On Monday, the High Court issued a Rule Nisi upon the Government to show cause as to why section 19
(b)) of the Guardians and Wards Act, 1890 should not be declared to be ultra vires the Constitution as
being violative of fundamental rights as guaranteed under the Constitution, in particular Article 26
(laws inconsistent with fundamental rights to be void), Article 27 (right to equality before law) and
Article 28 (prohibition of discrimination on grounds of sex, religion etc)

The High Court also directed the Respondent No. 2 (Ministry of Women and Children Affairs) and
and the Respondent No. 4 (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 within 4 (four) months of issuance of the Rule i.e by 4 August 2024.

A Division Bench of the High Court Division of the Supreme Court of Bangladesh, comprising Madam Justice Naima Haider and Madam Justice Kazi Zinat Haque, issued the Rule and directions in a writ filed by five petitioners – namely Think Legal Bangladesh, Bangladesh Legal Aid and Services Trust (BLAST),  Bangladesh Mahila Parishad, Naripokkho and the Academy of Law and Policy (ALAP).

The respondents to the petition are the Ministry of Law, Justice & Parliamentary Affairs, the Ministry of Women and Children Affairs, the Law Commission, Bangladesh and the National Human Rights Commission, Bangladesh.

Sara Hossain, Senior Advocate, Supreme Court of Bangladesh, said-“This order today is an important step in moving us 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.”

Barrister Anita Ghazi Rahman, Advocate, Supreme Court of Bangladesh and Trustee, Think Legal
Bangladesh, said- “ This Guardians and Wards Act, 1890 is 134 years old coonial Act when women
had not any legal statrus nor any rights which is absolutely not applicable in this 21 st era.

This is an excellent first step to recognizing mothers’ rights as the guardian of the children and we hope that the reports that will disseminated on the 4 th August will go towards that uphelding womens in terms of
guardianship.”

Advocate Masuda Rehana Begum, Joint General Secretary, Central Committee, Bangladesh Mahila
Parishad, said- “This is a landmark order towards upholding women's rights. This gender
discriminatory law not acceptable at all in the 21st century. If this law is amended regarding the
custody and guardianship of the children, then women particularly mothers’ equal rights will be
ensured in the society.”

Advocate Kamrunnahar, Member of Naripokkho, said- “ Although our society and culture glorify
mother and motherhood, it always fosters a demeaning view of women. We can see its reflection in
existing discriminatory laws regarding custody and guardianship of children.

Due to this discrimination, many women have to live with the deprivation and pain of not having children. We hope that today’s revolutionary order will create an opportunity to move forward in the elimination of
discrimination in assessing guardianship issues.”

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.

Background

The petitioners filed this writ in the public interest impugning section 19(b) of the Guardians and Wards
Act, 1890, 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.