FA M I LY L AW
Muslim Personal Law (Shariat) Application Act, 1937
S UMMARY
Provides that in matters relating to marriage, dissolution of marriage, maintenance, guardianship, gift, trust,
and succession where “parties are Muslims,” the applicable law shall be the Muslim personal law (Shariat).
AP PL ICAB IL IT Y TO RO H I NGYA
This Act applies to “Muslims in Bangladesh” (without reference to citizenship) who satisfy certain requirements.
Therefore, any Rohingya individual of Muslim faith is arguably covered by this Act, provided she or he:
• is competent to contract under the criteria in Section 11 of the Contract Act, 1872 (i.e. any person “of the age
of majority” in law and of sound mind);
• a resident of Bangladesh;23
• has made a relevant declaration before the government authorities indicating their willingness to be bound
by Muslim personal law.
P ROTECTIO N N OT ES
Rohingya Muslims “of the age of majority,” that is, above the age of 18, should be able to choose that Shariat be
the rule of decision in cases where the involved parties are Muslims, and therefore be permitted to access
Family Courts in order to resolve relevant disputes that fall under the jurisdiction of these Courts.
If access to Family Courts to resolve family disputes is granted, Rohingya persons would be able to benefit from
protection-oriented interpretation and application of Muslim personal law, which has in recent years provided
the basis for some progressive judgments which grant protections to women and children.24
Guardians and Wards Act, 1890
(as amended up until 1973)
S UMMARY
This Act gives courts the authority to declare an individual the guardian of a minor ward, and to make orders
regarding custody of children.
AP PL ICAB IL IT Y TO RO H I NGYA
The Act applies to the whole of Bangladesh; however, only Bangladeshi citizens may be appointed as the
guardian of a Bangladeshi minor.
P ROTECTIO N N OT ES
Multiple judgments of the High Court Division have asserted that, in the context of granting custody of a minor,
the welfare of the child is to be given paramount consideration.25 In the event of a Rohingya minor’s custody
being determined by court order, the Court must uphold this consideration.
25
BE YOND REFU GE: ADVANCING LEG AL PROTECTIONS FOR ROHINGYA C OMMUNITIES IN BANGL ADESH