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Welfare of the child matters most in custodial case

High Court Division
(Special Original Jurisdiction)
Syed Mahmud
Hossain J
ATM Fazle Kabir J
Judgment March 10th, 2010.
Rayana Rahman ...........
.....................     Petitioner
vs
Bangladesh and others ...........
..............Respondents
Constitution of Bangladesh, 1972
Article 102
Custody- The detenu, we are inclined to direct that the detenu will stay with the father five days a week and two days a week, with his mother. The weekly two days will be from Thursday at 6-00 PM till 6-00 PM of Saturday, Respondent No.3 will ensure handing over the detenu at the parent's house of the petitioner and will collect the detenu from there according to the time. The petitioner shall stay with her son on those two days in her parent's house. However, the parties will be at liberty to change the time and day by mutual agreements. ............(19)
Md Abu Baker Siddique vs S M A Baker. 38 DLR (AD) 106: Rumana Afrin vs Fakir Ashrafuddin Ahmed 1 BLC 517 and Abdul Jalil vs Sharon Laily Begum Jalil 50 DLR (AD) 55 ref.
Sara Hossain,  Advocate-For the Petitioner.
Rokanuddin Mahmud, Advocate-- For the Respondent No.3.
Judgment
Syed Mahmud Hossain J : In this application under Article 102 of the Constitution of the People's Republic of Bangladesh, a Rule Nisi has been issued calling upon the respondents to show cause as to why the detenu Ahmed Tawaab Billah son of Ahmed Arif Billah, now detained in the custody of respondent No.3 should not be brought before this Court so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner .
2. The facts leading to the issuance of the Rule, in brief, are:
The petitioner was given in marriage to respondent No.3. The couple was blessed with a male child, namely, Ahmed Tawaad Billah, who is now aged about 3 years. But as ill luck would have it, the marriage was snapped. On 7-6-2009, the petitioner was remarried to one Shaleuz Zaman Khan. After remarriage the petitioner used to see the detenu regularly. She talked to him several times everyday over telephone so that the detenu might not feel lonely. She was very much aware of the well being of her son. On the evening of 16-10-2009, respondent No.3 beyond the knowledge of the members of the petitioner's family took away the detenu by force when the detenu was playing with the maid. The maid protested but could not shout out facing threat from respondent No.3. After that, the petitioner lodged a General Diary being GD No. 1578 dated 17-9-2009 with Gulshan Police Station. The petitioner's parents and some other close relatives several times requested respondent No. 3 and his father time and again to return the detenu but to no avail. Finding no other alternatives, the petitioner filed an application under section 100 of the Code of Criminal Procedure before the Court of Executive Magistrate, Dhaka. The Court passed an order issuing warrant to search respondent No. 3's house for production of the detenu to the petitioner. Respondent No.3 in collusion with police officials of the Gulshan Police Station removed the detenu prior to conducting the search. As such, the search conducted by the police pursuant to Petition Case No. 1336 of 2009 was rendered futile.
3. On 11-10-2009, respondent No.3 filed Family Suit No. 1168 of 2009 in the 15th Court of Assistant Judge, Dhaka against the petitioner praying for guardianship of the detenu. Respondent No.3 filed an application under Order 39, Rules 1 and 2 read with section 151 of the Code of Civil Procedure for temporary injunction restraining the petitioner from interfering with respondent No.3's custody of the detenu. On hearing the application, the trial Court passed an order restraining the petitioner from interfering with the custody of the detenu till 19-102009. On 19-10-2009, the order of stay was extended till the next date fixed with a direction to produce the child before the Court. The petitioner came to know that the order passed in petition Case No. 13360(2009 was stayed by a Division of this Court comprising Mr, justice AFM. Abdul Rahman and Mr. Justice Emdadul Haque Azad on 7-10-2009. The order of production made by the Family Court could not be materialized on account of repeated applications filed by respondent No.3 for adjournment. On 12-11-2009, the Family Court passed an order directing respondent No. 3 to produce the detenu on 29-10-2009 and that the petitioner was asked to take assistance of the Officer-in-Charge of Gulshan Police Station in this regard. The detenu never liked to go to his paternal grandfather's house. The detenu cannot bear a separation from his mother.
4. Finding no other alternatives to get redress of the illegal removal of the detenu, the petitioner obtained this Rule from this Court.
5. Respondent No. 3 filed an affidavit-in-opposition controverting the statements made in the Writ Petition. The case of this respondent, in short, is that the petitioner never asked respondent No.3 about the detenu after 15-9-2009. Since-the interim order passed on 23-11-2009, respondent has been enjoying the custody of the detenu. This respondent also took the stand that since the petitioner has been living with her second husband, the detenu was left behind with her parents. The petitioner had no effective custody over the detenu.
6. By filling a supplementary affidavit, the petitioner has taken the stand that the petitioner did not start living in the house of her second husband following her remarriage but remained with her parents in their house.
7. Ms Sara Hossain, learned Advocate appearing on behalf of the petitioner, submits that the detenu was illegally removed from the custody of the petitioner and that such removal should be declared to have been made without lawful authority. She f