A Critical Analysis of the Legal and Social Implications of Rearing Non-Biological Children in Bangladesh

Abstract

Mainstream Muslim law bans the traditional concept of adoption with outright prohibition. Despite being a Muslim majority country, the practice of adoption among Muslim under the veil of guardianship or custody is still prevalent in Bangladesh either in institutionalized or non-institutionalized nature. People resort to the Guardians and Wards (GW) Act, 1890 as a workaround for rearing of non-biological children but this system is unsustainable and is fraught with legal complexities as well as uncertainties as this Act is not designed for this purpose. Parties (Muslims), government authorities as well as courts face acute hardship in matters relating to rearing of non-genetical babies, applied by Muslims, due to lack of law and proper guidelines in this regard. The paper aims to assess the impact of traditional concept of adoption which is expressly banned in Islam and the practiced across the globe including in several Muslim majority countries. By comparing the practice of rearing nonbiological children in different Muslim countries as well as secular practices in this regard the paper seeks to find out whether there is an urgency to introduce a directive for Muslim community to refer identical rules related to rearing non-biological children in Bangladesh or not. To reach the research objectives the authors collect Primary data by conducting relevant field visits, analysing case studies and by arranging interviews with the KIIs through structured questionnaire. The authors use secondary data by reviewing relevant literature to get a clear understanding on the prevailing contrast between the Shariah and real-world practice of rearing non-biological children by Muslims. After analysing the court practices, case studies including both institutionalized and non-institutionalized adoptions and relevant literatures the authors conclude the study by referring the possibility of introducing provisions as like as the other Muslim States related to the rearing of non-biological children in Bangladesh. In alternative, at least a provision consistent with the Islamic principles related to this matter may be included in the Guardians and Wards Act, 1890, to resolve the prevailing complexities between Shariah and practice by the Muslims in Bangladesh.

Rajshahi Uni. Law Rev.Vol. XIII, 2024; p211-230