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Guardianship and custody of children

High Court Division [Civil] Present: Mr. Justice Syed Md. Ziaul Karim Civil Revision No.4680 of 2005 Jaymala Baroy @ Shamsun Naher ... Petitioner. -Versus- Dilip Kumer Baroy .... Opposite party Mrs. Suraiya Begum, Advocate ....... For petitioner No one appears. . ... For the Opposite party Heard on : 04-11-2009 and Judgment delivered on: 04-11-2009. The Family Court Ordinance, 1985 (XVIII of 1985) Section - 5(e) Guardianship and custody of children It is well settled that mother is entitled to custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by father of child, unless she marries a second husband in which case custody belongs to father. [Para-7] Judgment Mr. Syed Md. Ziaul Karim, J : This Rule, at the instance of defendant appellant petitioner calls in question the legality and propriety of judgment and order dated 23.08.2005 passed by learned Additional District Judge, Sixth Court, Dhaka dismissing Misc. appeal No.312 of 2004 and affirming those of dated 21.10.2004 passed by learned Assistant Judge, Additional Second Court, Dhaka dismissing Misc. Case No.14 of 2003 for default. 2. Material facts are that plaintiff instituted Family Suit No.333 of 2002 in the Family Court, Dhaka against the defendant for custody of his male child Shajib aged about 2.50 years. The Trial Court by the judgment and decree dated 09.06.2008 decreed the suit exparte. Against which the defendant filed Misc. Case No.14 of 2003 under Order 9 Rule 13 C.P.C for set aside which was dismissed for default on 21.10.2004, against which the defendant as appellant preferred Misc. Appeal No.312 of 2004 which was dismissed by the impugned order. Hence the Rule. 3. The learned Advocate appearing for petitioner submits that the petitioner was prevented by sufficient cause not to appear in Misc. Case when the same was called on for hearing but the court of appeal below without considering such cause dismissed the appeal which caused serious miscarriage of justice. 4. The Rule is not opposed. 5. In order to appreciate her submissions I have gone through the record and given my anxious consideration to her submissions. 6. The point for consideration, whether the impugned judgment and order calls for interference by this Court. 7. On going to materials on record it transpires that defendant No.1 was the wife of plaintiff and during their wedlock a male child named Shajib born. It is pertinent to point out that defendant No.1 embraced Islam and married a second husband herein defendant No.2 and she has been residing at conjugal home of defendant No.2. It is well settled that mother is entitled to custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by father of child, unless she marries a second husband in which case custody belongs to father. In such view of legal aspect, if the suit be restored, then it will nothing but fruitless exercise and it will increase the litigations between the parties. Therefore the court of appeal below after appreciating the materials on record, by dismissing the appeal committed no error of law. 8. Moreover the impugned judgment and order in its entirety are well founded in the facts and circumstances of the case. So, the grounds urged and contentions advanced by the learned counsel for the petitioner are not the correct exposition of law. 9. In the light discussions made above, I am of the view that the impugned judgment and order suffers from no legal infirmity which calls for no interference by this Court. Thus the Rule having no merit fails. 10. In the result, the Rule is discharged without any order as to cost. The order of stay granted earlier by this Court stands vacated. 11. Office is directed to send down the records of this case at once.