In Bangladesh Adoption is only approved for Hindus as it follows the principal of traditional Hindu Law
On February 21st, 2017, a group of Bangladesh Chhatra League activists found a newborn in a drain. They rushed the infant they named Ekush to Chittagong Medical College Hospital.
After 14 families applied for his guardianship, on March 29th that year Additional Metropolitan Sessions Judge of Chittagong Jannatul Ferdous, also judge of the Children’s Court of Chittagong, granted custody of Ekush to Dr Jakirul Islam and his wife Shakila Akhter.
Since the family law in Bangladesh is dictated by religion, Muslims cannot legally adopt but be granted guardianship under the Children Act, 2013.
In Bangladesh Adoption is only approved for Hindus as it follows the principal of traditional Hindu Law. Under the law, only a son can be adopted. Hindu Law does not make a distinction between a natural son and adopted son in the matter of inheritance, whether it is in the application of personal law or secular law, the adopted son has the same status with the natural son.
The children’s law empowers judges of the Children’s Court to grant custody of children without parents to deserving applicants as a method of alternative care, without which Ekush would have ended up in an orphanage just like another infant Mehrin.
She was three-days-old when she was found at a public bathroom of the Dhaka Shishu Hospital on May 16th, 2019. She is currently living ChotomoniNibash in Dhaka’s Azimpur even though many families had applied for her guardianship.
As adoption bears a huge stigma in Bangladesh and the law does not allow for adopted Muslim children to inherit property, many people shy away from going through such a legal hurdle.
Most guardianships of a minors come under the Guardians and Wards Act, 1890.
Children adopted under this guardianship act do not share the same rights as biological children, and experts feel that it is high time to amend the act.
Enacting a new law on adoption would be difficult since it would be in conflict with the Muslim Shariah law.
Assistant Professor of the Department of Criminology and Criminal Justice at Dhaka University Khandaker Farzana Rahman told Dhaka Tribune that the main problem is that a child under the guardianship of a set of parents, or a single person, cannot inherit their property.
If somebody wants to take a child under their guardianship, they have to file a prayer to the family court first. It is at the court’s discretion. The decision depends on the to-be-parents’ eligibility to take on responsibilities.
However, when it comes to inheriting property, the person under guardianship can only receive property from their guardian(s), if they gift it to them before their death.
“Foster parenting could be a way to provide hapless children with a home and a family,” she said, adding that “people in this country are still alien to the concept of foster parenting.”
“Children can stay with foster parents until they become an adult. It is widely practiced in many western countries. If we can design something like this for our country, at least a few children would be able to grow up with a family,” said Farzana.
If a set of parents from a different country wish to assume the guardianship of a child from Bangladesh, at least one of the parents needs to be Bangladeshi. There is no way for foreigners to adopt a child from Bangladesh.
Barrister Sabrina Zaman believes that it is high time to amend the existing guardianship act - particularly the part that requires one of the parents to be Bangladeshi in order for them to adopt a child from the country.
“There are so many parents from different countries out there who want to adopt a child from Bangladesh but because of this law, they are unable to do so. The process is very lengthy as well,” she said.
“How many times can someone from abroad come down to Bangladesh for court hearings?” she questioned. “There are real concerns about trafficking but the process should be quick and hassle-free for people who want to adopt a child who needs a family,” she opined.
Requesting anonymity, a High Court lawyer said that sons under the guardianship of a Hindu family can inherit property from their parents, but, in accordance with Muslim family law, children under the guardianship of Muslims cannot. According to the lawyer: "Our society is still hostile towards the idea of adopting a child. One of my clients was without a child for 13 years, after getting married. They adopted a baby eventually but not everyone around them was welcoming."
In the subcontinent, Pakistan has similar laws as Bangladesh, both India and Nepal allow adoption, and Nepal is the only country that does not discriminate based on gender allowing only one child of each sex for adoption except in the cases of twins.