I want to categorical my honest gratitude to MD Sanwar HOSSAIN, LLB (Hons) Wolverhampton College, MSS (Dhaka College), PgDiP (Northumbria College), Barrister at regulation (Hon’ble Society of Lincoln’s Inn), Advocate (Appellate Division) Supreme Court docket of Bangladesh and Managing Associate, S Hossain & Associates regulation workplace, for bringing the Bangladesh courts’ selections to my consideration.
I. Introduction
The breakdown of a world marriage typically results in complicated cross-border disputes, particularly when youngsters are concerned. Tensions can intensify if one dad or mum decides to take the kids to their house nation, typically with out the consent of the opposite dad or mum.
In such instances, when the nations concerned are signatories to the HCCH 1980 Baby Abduction Conference, the Conference’s mechanisms are designed to facilitate the immediate return of kids to their nation of routine residence. This framework goals to stop unilateral relocations that might have lasting impacts on the kid’s stability. Nevertheless, when one or each nations will not be events to the Conference, resolving such instances turns into considerably tougher. In such instances, nationwide courts are compelled to handle competing custody claims, assess allegations of wrongful removing, and decide whether or not they have jurisdiction to listen to the case, all whereas balancing, typically fairly in a different way, one of the best pursuits of the kids concerned.
The case introduced right here is only one of many unreported instances the place a romance relationship turns bitter, resulting in prolonged and contentious authorized battles throughout jurisdictions. This observe will deal with the Bangladeshi courtroom’s therapy of the case, because it affords helpful insights into the courtroom’s strategy to dealing with such complicated cross-border disputes.
II. The Case
1. Underlying Information
X, a Bangladeshi citizen who additionally seems to have additionally a US citizenship, and Y, a Japanese citizen, met one another in Japan the place they acquired married in 2008 in accordance with the varieties prescribed below Japanese regulation. Their marriage resulted within the start of three daughters. From 2020, tensions between X and Y started to accentuate, primarily because of monetary disagreements. By late December 2020, a household dispute arose, after which (on 18 January 2021) Y knowledgeable X of her intention to divorce and ask him to depart their house.
On 21 January 2021, whereas the 2 elder daughters had been on their method house from faculty, X intercepted them and took them to reside with him at a separate residence. On 18 February 2021, whereas Japanese courts had been addressing a custody declare introduced by Y, X left Japan with the 2 youngsters, after acquiring new passports for them. Since then, the daughters have been residing and learning in Bangladesh.
2. Authorized Battle
a) In Japan
On 28 January 2021, Y initiated authorized proceedings towards X within the Tokyo Household Court docket, in search of custody of the kids and an order at hand over the 2 daughters. On 31 Could 2021, the Tokyo Household Court docket issued a decree in favor of Y (Hanrei Taimuzu, No. 1496 (2022) p. 247, Hanrei Jiho No. 2519 (2022) p.60). The courtroom reached its conclusion after assuming worldwide jurisdiction on the grounds that the kids’s domicile was in Japan (Article 3-15, Article 3-8 of the Home Relations Case Process Act), and designating Japanese regulation because the relevant regulation to the case below the related alternative of regulation guidelines (Article 32 of the Act on Basic Guidelines for Software of Legal guidelines). The courtroom additionally refused to consider an interim custody order issued by Bangladeshi courts, given its non-final and conclusive nature.
b) In Bangladesh
i) Custody dispute earlier than the Household Court docket
On 28 February 2021, shortly after arrived in Bangladesh, X filed a lawsuit in search of sole custody earlier than the competent household courtroom in Bangladesh. On the identical day, X obtained from that an interim order on custody and restrained the taking of the kids out of Bangladesh (see earlier paragraph).
ii) Habeas Corpus Petition
In July 2021, Y travelled to Bangladesh, leaving her youngest daughter with the custody of her members of the family. Encountering difficulties in accessing her daughters, Y filed a habeas corpus petition, in search of a dedication on whether or not the kids had been being unlawfully held in custody. Y argued, inter alia, that Japanese courts have correct jurisdiction over the custody declare and that their determination needs to be given impact.
The Excessive Court docket Division of the Supreme Court docket of Bangladesh (hereafter, ‘the Excessive Court docket’) thought-about that, the kids welfare and well-being needs to be paramount and should be assessed independently by Bangladeshi courts, no matter any international judgment. After reviewing the general circumstances of the case, and listening to the kids, the Excessive Court docket dominated that daughters stay in X’s custody, whereas granting Y visitation rights (Writ Petition No. 6592 of 2021 of 21 November 2021. A abstract of the choice is offered by S Khair and M Ekramul Haque, “State Follow of Asian International locations in Worldwide Regulation – Bangladesh” (2021) 27 Asian Yearbook of Worldwide Regulation 146).
Dissatisfied with the order, Y appealed to the Appellate Division of the Supreme Court docket of Bangladesh (hereafter ‘The Appellate Division’). After inspecting related worldwide and home legal guidelines and precedents, The Appellate Division reiterated that the kids’s greatest curiosity needs to be given main consideration. It concluded that the suitable discussion board to resolve the custody dispute is the Household Court docket, the place proceedings had been already pending. The Appellate Division in the end determined to overturn the Excessive Court docket’s determination, putting the kids in Y’s custody, whereas granting X visitation rights till the Household Court docket issued its remaining verdict (Civil Petition for Depart to Attraction No. 233 of 2022 of 13 February 2022. A abstract of the case is offered by S Khair and M Ekramul Haque, “State Follow of Asian International locations in Worldwide Regulation – Bangladesh” (2022) 28 Asian Yearbook of Worldwide Regulation 195).
iii) Continuation of the Proceedings earlier than the Household Court docket
The proceedings resumed earlier than the Household Court docket. On 29 January 2023, the first-instance courtroom dismissed X’s declare on the bottom that the Bangladeshi courts lacked jurisdiction because the custody problem had already been determined in Japan, nation of the household’s final residence. The courtroom additionally emphasised that youngsters’s welfare could be higher ensured with the mom (Dhaka in Household Swimsuit No. 247 of 2021 dated 29 January 2023). The choice was confirmed in attraction on related phrases (Household Attraction No. 22 of 2023 dated 12 July 2023). Dissatisfied, X appealed to the Excessive Court docket.
iv) Ruling of the Excessive Court docket
Earlier than the Excessive Court docket, X challenged the decrease courts’ conclusions. X’s key arguments included the next:
(i) The events had been litigating in Bangladesh for a very long time, thus justifying the jurisdiction of the Bangladeshi courts over the dispute
(ii) The decrease courts actively engaged in discussing the deserves of the case, together with the welfare of the kids, and parental suitability, subsequently, dismissing the declare on jurisdictional floor was illogical,
(iii) The choice rendered in Japan was not binding on the Bangladeshi courts
(iv) The Japanese decree can’t be given impact because it didn’t grant X any visitation proper
In her response, Y argued that the decrease courts appropriately dismissed the case. Y’s arguments embrace – amongst others – the next level:
(i) The reason for motion in casu arose in Japan, the place the kids had been born and raised. As well as, they’d by no means visited Bangladesh earlier than
(ii) All of the events resided in Japan earlier than the dispute arose
(iii) Since Japanese courtroom had already determined the custody problem, Bangladeshi courts lacked jurisdiction.
(iv) The decrease courts totally examined the case, putting emphasis on the kids’s welfare and well-being. As well as, all questions of welfare and custody needs to be addressed on the little one’s routine residence
In its determination (Civil Revision No. 3298 of 2023 dated 13 February 2024), the Excessive Court docket dominated that Bangladeshi courts have jurisdiction over the matter on the bottom that:
(i) Though the kids had been born and primarily raised in Japan, the custody dispute partially arose in Bangladesh the place X and the kids had been residing, on the time when the go well with was filed, and proceed to reside since then.
(ii) the jurisdiction of the Bangladeshi courts couldn’t be ousted by the choice of Japanese courtroom, provided that – as an impartial nation – the courts are empowered to train jurisdiction below home regulation. Such a difficulty ought to have been severely thought-about with due regard to Bangladesh’s sovereignty, rule of regulation and the authorized facets of the nation.
Relating to the custody dedication, the Excessive Court docket emphasised the significance of rigorously contemplating and balancing varied facets of the case, with a selected deal with the welfare and well-being of the kids because the paramount precept. The Court docket thought-about that, as a matter of regulation in Bangladesh, custody ought to at all times be granted to the mom, as that is according to the welfare of the kids. The Court docket additionally harassed the significance of putting explicit emphasis on the opinion of the kids and giving priority to their psychological state and intention. Primarily based on such issues, the Court docket determined to divide the custody between the mother and father: custody of the kid who wished to stick with the daddy was granted to X, whereas custody of the kid who wished to return to Japan was granted to Y. The Court docket additionally urged the events to make sure full visitation rights by amicable association based mostly on the precept of reciprocity.
III. Feedback
The case, together with the style through which it was dealt with by Japanese and Bangladeshi courts elevate a number of vital authorized and sensible questions. Amongst these, the next may be highlighted.
1. Relevance of the 1980 HCCH Conference
First, the case highlights the importance of the 1980 HCCH Conference in addressing cross-border illegal relocation of kids. Had Bangladesh been a contracting state, the decision of the case would have been extra simple, probably avoiding the extended and conflicting litigation that ensued in each jurisdictions. On this respect, one significantly noteworthy side deserves to be talked about. When submitting the writ petition earlier than the Excessive Court docket, Y argued that, regardless of the actual fact Bangladesh not being not a contracting state, the 1980 HCCH Conference might nonetheless be relevant. In help of her argument, Y relied on an earlier Excessive Court docket determination, through which the 1980 HCCH Conference was acknowledged as being “a part of worldwide customary regulation” (RMMRU v Bangladesh and others (2020) 72 DLR 420). The Excessive Court docket, nevertheless, didn’t deal with this problem.
2. Therapy of the Case in Japan and Bangladesh
Second, the contrasting approaches taken by the Japanese courts and the Bangladeshi courts in addressing the custody dispute are putting. In Japan, the courts adopted a extra classical, structured strategy, starting first by figuring out whether or not Japanese courts had worldwide jurisdiction, then figuring out the relevant regulation earlier than continuing to evaluate the deserves of the case. This methodical method to strategy the case was facilitated by the truth that Japan has comprehensively codified its non-public worldwide regulation. The existence of a transparent relevant authorized framework with renders the decision of such instances a matter of simple interpretation and software of the related authorized provisions (for a short overview, see my earlier submit right here).
The scenario in Bangladesh presents notable variations, as guidelines of personal worldwide regulation within the nation stays fragmented and solely partially codified (for an summary, see Mohammed Abdur Razzak, ‘Battle of Legal guidelines – State Follow of Bangladesh’ in S. R. Garimella and S. Jolly (eds.), Personal Worldwide Regulation – South Asian States’s Follow (Springer, 2017) 265). An applicable strategy would have been for the Excessive Court docket to think about whether or not the Japanese decree may very well be acknowledged and enforced in Bangladesh in accordance with the related authorized provisions (for an summary, see Sanwar Hossain, ‘Cross-Border Divorce Regime in Bangladesh’ in Garimella and Jolly op cit. 102, Abdur Razzak, op. cit., 281). The Court docket’s strategy within the first and second determination seems to conflate the precept of “comity of countries” with the kids’s welfare as a paramount consideration that should be independently assessed by Bangladeshi courts, and the difficulty of recognition with that of jurisdiction
3. Absence of Islamic regulation affect
Lastly, one of many outstanding facets of the Bangladeshi courtroom’s selections is the absence of any discernable affect of Islamic regulation on the evaluation of custody, regardless of the repeated references within the selections to the faith of the events. X, for example, is described as a ‘non secular’ individual and ‘a pious Muslim’. The choices additionally point out that X and Y’s marriage was celebrated in accordance with Islamic custom at a neighborhood mosque in Japan, following an earlier ceremony at a Shinto Shrine, and solely after Y transformed to Islam took a Muslim title.
Within the Excessive Court docket 2024 determination, Y is portrayed as an atheist who left Islam and who allegedly threatened X to lift the kids in a ‘Japanese tradition the place consuming alcohol, reside collectively (sic), consuming pork are frequent’. Earlier than Bangladeshi Court docket, X did elevate a number of Islamic ideas associated to little one custody (notably the truth that, below Islamic regulation, custody ought to switch to the daddy as soon as the kids attain a sure age), and emphasizing on his disagreement with Y who, in accordance with him, ‘refused to comply with and respect the Islami life fashion (sic)’.
Given the numerous position of the Islamic ideas play within the Bangladeshi authorized system, particularly in household regulation issues (for a common overview, see Ahmad Nasir Mohad Yusoff and AHM Shafiqul Islam, ‘The Authorized System of Bangladesh: The Duality of Secular and Islamic Legal guidelines’ (2024) Worldwide Journal of Educational Analysis in Enterprise & Social Sciences 14(11) 1965), one may anticipate that the issues talked about above would affect the courts’ selections. For instance, as a matter of common precept, the custody of kids shouldn’t granted to somebody who left Islam, significantly, when that individual lives in a non-Muslim nation (see e.g. the choice of the UAE Federal Supreme courtroom of 10 April 2004 cited in Béligh Elbalti, ‘The Recognition and Enforcement of Overseas Filiation Judgments in Arab International locations’ in N. Yassari et al. (eds.), Filiation and the Safety of Parentless Youngsters (T.M.C. Asser Press, 2019) 397).
Nonetheless, it’s outstanding that none of those issues had been raised or taken under consideration by the judges, who addressed the case in a completely goal method. Much more putting, the Excessive Court docket not solely affirmed Y’s suitability as a custodian, but in addition reiterated its longstanding precept that little one custody ought to typically be granted to moms. This precept was utilized within the current case with none obvious consideration of Y’s change of faith, giving no weight to her non secular background or to the truth that she identifies as a non-Muslim who has left Islam.
