Guardianship v Adoption: Opinion from a Bangladesh Law Perspective

– by Barrister Shajib Mahmood Alam

Generally a legal guardian is a person who is not a biological parent of a child. But a legal guardian will assume all of the responsibilities that a parent would have.

In Bangladesh “guardian” means a person having the care of the person of a minor or of his property, or of both his person and property [section 4(2) of the Guardianship Act.] Accordingly ‘Legal Guardian’ means a person who has been declared or appointed as a guardian by a court to take care the interest of a minor.

That under section 7(1) of the Guardianship Act, a court can only appoint somebody as legal guardian if it welfare the child.

In Bangladesh there is no uniform personal law. Different religion is ruled by different personal law. All personal laws applicable for ‘Muslims’ has been used the word ‘Legal Guardian’ rather than ‘Adoption’. Similarly all personal laws applicable for ‘Hindu’s has been used the word ‘Adoption’ rather than ‘Legal Guardian’. In addition under Muslim inheritance law the adopted child does not inherit from the legal guardian, in contrary under Hindu inheritance law the adopted child can inherit from the adopted parents. However the objective for legal guardian and adoption is identical i.e. welfare of the child.

In addition Bangladesh is not party to the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption (Hague Adoption Convention) and as such Bangladesh has not any legal obligation to use the word ‘Adoption’. Based on the above analysis it can be opined that there is no practical and legal difference between the terminologies ‘Legal Guardian’ and ‘Adoption’ so far as Bangladeshi law is compared to Western legal systems. The said two terminologies are being used just because of different personal laws applicable in Bangladesh. The paramount purpose of Legal Guardianship and Adoption is same i.e. welfare of child.