Question:
My elder brother and his wife have been married for almost 3 years, but their relationship has always been bad, with no communication between their families. They have a one-and-a-half-year-old son. Now, if they want to separate, how will the responsibility of the child and other issues be resolved according to Hindu customs?
Answer:
In Bangladesh, Hindu marriage and family law are governed by the Hindu Marriage Act, 1955 and customary practices, along with provisions from Bangladesh Family Court Laws. If your elder brother and his wife decide to separate, here’s how issues related to child custody and other matters might be handled:
1. Child Custody in Hindu Separation:
- In Hindu customs, child custody is usually determined with the child’s best interests in mind, rather than rigid adherence to any set law.
- For a child under 7 years of age, Hindu law traditionally favors the mother’s custody, especially if the child is a minor. Since the child is only 1.5 years old, it’s more likely that the mother will get primary custody.
- However, the father may seek visitation rights and may petition for shared custody if the circumstances are suitable.
2. Child Support and Maintenance:
- The father is typically responsible for providing maintenance for the child after separation or divorce, ensuring that the child’s needs (such as education, health, and other welfare) are met.
- The court can order the father to pay monthly maintenance to the mother for the child’s upbringing.
3. Hindu Divorce and Separation:
- Hindu marriage can be dissolved in specific cases (such as cruelty, adultery, or desertion), but there is no provision for divorce in the Hindu Marriage Act unless the parties have specific grounds. Separation may take place without formal dissolution of the marriage.
- In this case, the couple can approach the Family Court to seek a divorce and resolution of issues related to child custody, maintenance, and property.
4. Property and Other Issues:
- If there is a dispute over property or assets between the husband and wife, the court will decide based on the contributions of both parties and the need to provide for the child.
- Mutual agreement: If the parties agree, they can settle these matters outside of court through mediation.
5. Mediation or Family Court Involvement:
- Since communication is strained between the families, it may be necessary to involve the Family Court or a mediator to help resolve custody and maintenance issues fairly.
- Mediation can provide a way for both parents to agree on the best arrangement for the child’s welfare, without a long legal battle.
6. Recommendation:
- Your brother and his wife should approach a Family Court in Bangladesh to formally initiate the separation or divorce proceedings, especially if they want to ensure legal custody and support arrangements for their child.
- A family lawyer can help guide them through the legal process of separation, child custody, and maintenance.