IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. _ _ __OF 2021

IN THE MATTER OF:

An application under Article 102 of the

Constitution of the People’s Republic

of Bangladesh

AND

IN THE MATTER OF:

Md. Jakaria Alam

Son of Md. Shamsul Alam

Of House: 954 Rahat Bhaban Majir

Ghat road, P.O: Sadar 4000,

Doublemouring, Chattogram City

Corporation, Chattogram.

----- Petitioner

-VERSUS-

1. Government of Bangladesh

represented by the Secretary, Ministry

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of Home Affairs, Bangladesh

Secretariat, Ramna, Dhaka.

2. Farhana Chowdhury Lyzu

Daughter of Ismail Chowdhury

Wife of Azizul Haque Shimul

Of House No.: 176/4, West Kafrul, 2nd

Floor, Sher-e-Bangla Nagar, Agargaon,

Taltola, Dhaka.

3. Commissioner of Police, Dhaka

Metropolitan Police, Dhaka.

4. Officer-in-charge, Sher-e-Bangla

Nagar Police Station, DMP, Sayed

Mahbub Morshed Ave, Dhaka.

5. Department of Immigration and

Passports, represented by the Director

 3

General, E-7, Agargaon Shere-E-Bangla

Nagar, Dhaka-1207.

------Respondents

AND

IN THE MATTER OF:

1. Mohammed Fayzan Alam

2. Mohammed Farhan Alam

Both are sons of Jakaria Alam

of House No.: 176/4, West Kafrul, 2nd

Floor, Sher-e-Bangla Nagar, Agargaon,

Taltola, Dhaka.

-------Victim Detnue (Minor sons)

Detained in Custody of the
Respondent no.2

AND

IN THE MATTER OF:

Unlawful manner in which the detenue

(victim minor sons), 1. Mohammed

Farhan Alam aged about 10 years 2.

 4

Mohammed Fayzan Alam aged about 8

years are being detained by the

Respondent No. 2 at House No.: 176/4,

West Kafrul, 2nd Floor, Sher-e-Bangla

Nagar, Agargaon, Taltola, Dhaka.

AND

IN THE MATTER OF:

Unlawful detention of minor sons

(detenue) 1. Mohammed Farhan Alam

date of birth 17.08.2011; 2.

Mohammed Fayzan Alam; date of birth

03.02.2013 by Respondent No. 2 by

restraining the petitioner (Father) to his

access to his sons (the detenue) and set

them at liberty to be with their father

(petitioner).

To

Mr. Justice Syed Mahmud Hossain, the Hon’ble Chief Justice of

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Bangladesh and his companion Justices of the Supreme Court of

Bangladesh.

The humble petition on behalf of the

Petitioner above-named most respectfully-

SHEWETH:

1. That the petitioner is a businessman and a Bangladeshi national by

birth and the petitioner is the father of his two minor sons named

Mohammed Farhan Alam and Mohammed Fayzan Alam (the detenue).

2. That the addresses given in the cause title are correct or the purpose

of serving notices, affidavits and other documents relating to this

petition upon the parties.

3. That the Respondent No. 1 is the Secretary, ministry of Home

Affairs, Bangladesh Secretariat, Ramna, Dhaka, Respondent no.2 is the

mother of the victim detenu sons, the Respondent no.3 is the

Commissioner of Police, Dhaka Metropolitan Police, Dhaka,

Respondent no.4 is the Officer-in-charge, Sher-E-Bangla Police Station

 6

(D.M.P) Dhaka, Respondent no.5 is the Director General of Department

of Immigration and Passports.

4. That the petitioner got married to the Respondent no.2 on

11.10.2008 as per Muslim sharia law and during the conjugal life, the

petitioner and the Respondent no.2 became father and mother of two

sons (the victim detenu) named Mohammed Farhan Alam whose date

of birth 17.08.2011 being Passport No. EE0029858 and Mohammed

Fayzan Alam whose date of birth was 03.02.2013 being Passport No.

EB0994668. There is a possibility that the respondent No.2 may try to

issue new e-Passport for the detenue.

Photocopies of the marriage certificate of the

petitioner and Respondent no.2, Birth

Certificates and Passport of the sons are

annexed herewith and marked as

ANNEXURE-“A, A-1, A-2, A-3 and A-4”.

 7

5. That few days after the marriage the petitioner came to know the

actual characteristic of Respondent no.2. The Respondent no.2 is

involved in with extra marital affairs. From the beginning of the

marriage, the Respondent no.2 was always reluctant to maintain the

conjugal life with the Petitioner and always tried to humiliate him in

front family and outsiders. The Respondent no.2 did not give the

slightest respect and admiration as a husband to the petitioner.

6. That on 23.03.2020, the respondent No.2 issued a notice for divorce

to the petitioner and thereafter on 18.01.2021 Shalishi parishod,

Chattogram dispose of the Shalishi Council case No. 1428-2/2020.

Since, their divorce, the respondent No.2 kept the both sons of the

petitioner in her custody and assured the respondent No.2 that she will

allow him to meet with sons. The petitioner agreed with the proposal of

the Respondent no.2 since he did not want to make any hinderance

between mother-sons relationship. On several occasions after the

divorce the petitioner tried to talk to his sons via phone but the

respondent No.2 did not allow him to talk to his sons. Moreover, the
 8

petitioner tried to meet his sons but the respondent No.2 refused to

allow him to meet his sons. Furthermore, the petitioner tried all the

mode of communication to reach his sons but the Respondent No. 2

purposefully restrained him to communicate with his sons.

Photocopies of the said divorce notice dated

23.03.2020 and Order of the Shalishi

Parishad dated 18.01.2021 are annexed

herewith and marked as ANNEXURE “B &

B-1”

7. That the petitioner made many efforts to contact with the

respondent No.2 and see his minor sons by going to residence of the

Respondent no.2 but till date the respondent No.2 refused to talk to him

and also refused to give him access to see the minor sons and he was

threatened with dire consequences. Moreover, the family members of

the petitioner tried to see the minor sons many times but every time

they failed to meet them as they have been kept detained by the

respondent No.2 in an unusual manner.

 9

8. That the petitioner came to know that the respondent No.2 get marry

with another person. He received this information through his friends

and family and further receives some photographs of that wedding.

Photocopies of the photographs of that

wedding are annexed herewith and marked

as ANNEXURE “C

9. That it is submitted that the respondent No.2 married again and her

husband lives in the United Kingdom. The respondent No.2 has been

planning to leave Bangladesh and planning to reside with her husband

in United Kingdom which will utterly deprive the minor sons from

love, affection and caress of their father; i.e. the petitioner. Moreover,

the respondent No.2 has married again and is a wife a of another man

who is not the father of the minor sons; i.e. Mohammed Farhan Alam

and Mohammed Fayzan Alam. Therefore, the future of the minor sons

of the petitioner are at great risk as they are completely deprived of

love, education and proper family environment.

 10

10.That it is submitted that as per the Family Courts ordinance 1985

and the Majority Act 1875, the father is the natural and legal guardian

of the child. A Muslim mother can never be the guardian of her minor

child rather she can claim only the custody for a very limited period

which is seven years in case of male child. As both the sons; i.e.

Mohammed Farhan Alam aged about 10 years and Mohammed Fayzan

Alam aged about 8 years and hence, the custodianship of the

respondent No.2 no longer exist as per Muslim Sharia Law. Moreover,

custodianship of the respondent No.2 ceases according to the Section

41 of The Guardians and Wards Act, 1890 as she has married again.

Therefore, the Order of custody of the Mohammed Farhan Alam and

Mohammed Fayzan Alam may kindly passed by this Hon’ble Court in

favour of the petitioner for the ends of natural justice.

11.That it is submitted that the petitioner is a reputed businessman and

earns enough to bear the expenditure of his minor sons and the family
 11

members of the petitioner are wealthy enough and well-established as

well as highly educated.

12.That it is humbly submitted that the respondent No.2 is an ill-

tempered and cannot take proper care of her minor sons. The

respondent No.2 with her malafide intention and sinister motive has

been depriving the minor sons from love, affection and caress from

their father. The conduct of the Respondent no.2 is nothing but to

harass and humiliate the petitioner. The welfare of the minor sons will

be at stake, as a result, the petitioner is seriously worried about the

welfare and future of his minor sons.

13.That it is further submitted that the Respondent no.2 is holding the

detenue in her careless custody under life risk and insecure situation is

acting in an unlawful manner which is out and out against the welfare

and better interest of the minor sons. The petitioner as the natural

guardian of the detenue is legally and lawfully entitled to get his sons

under his custody so that the petitioner can take care of his minor sons

for the welfare and better interest of his minor sons and they can grow
 12

up staying in touch of their father and other family members.

14.That it is submitted that the Respondent no.2 having not given any

information of minor sons to the petitioner in respect of keeping the

detenue under her custody with a malafide intention and in sinister

motive held the detenue in an unlawful manner.

15.That it is submitted that the petitioner is fully unaware as to the

position, situation of his minor sons and the petitioner is to pass his

days with agony and mental anguish and considering this emergency

situation an ad-interim order as to custody of the minor sons may

kindly be passed.

16.That in the premises it is imperative that the detenu sons be

produced before this Hon’ble Court without delay so that your

Lordships may examine them and ensure their safety and security and

allow them and ensure their safety and security and allow the detenue

sons to go under the custody of their father, the petitioner.

17.That the Petitioner begs kind permission to swear Affidavit with

 13

photocopy of the said Annexures and undertake to produce the original

at the time of hearing.

18. That in these circumstances being concerned by the imminent

danger to safety and security of the minor sons, as their welfare will be

at stake and under threat as such having no other way for an efficacious

remedy the petitioner most humbly begs to move this writ petition

before your Lordships on the following amongst others: –

GROUNDS

I. For that the Respondent no.2 is not a responsible person to look

after the minor sons and their life (the detenue) will be at risk as

such the petitioner is best for the welfare for the minor. That

holding the detenue in her careless custody under life risk and

insecure situation is acting in an unlawful manner which is out

and out against the welfare and better interest of the minor sons.

The petitioner as the natural guardian of the detenue sons is

legally and lawfully entitled to get the detenue under his custody,

so that the petitioner can take care of his minor sons for the
 14

welfare and better interest of the detenue (minor sons) and the

detenue can grow up staying in touch of their father and other

family members.

II. For that the respondent No.2 married again and her husband lives

in the United Kingdom. The respondent No.2 has been planning

to leave Bangladesh and planning to reside with her husband in

United Kingdom which will utterly deprive the minor sons from

love, affection and caress of their father; i.e. the petitioner.

Moreover, the respondent No.2 has married again and is a wife a

of another man who is not the father of the minor sons; i.e.

Mohammed Farhan Alam and Mohammed Fayzan Alam.

Therefore, the future of the minor sons of the petitioner are at

great risk as they are completely deprived of love, education and

proper family environment.

III. For that as per the Family Courts ordinance 1985 and the

Majority Act 1875, the father is the natural and legal guardian of

the child. A Muslim mother can never be the guardian of her

 15

minor child rather she can claim only the custody for a very

limited period which is seven years in case of male child. As

both the sons; i.e. Mohammed Farhan Alam aged about 10 years

and Mohammed Fayzan Alam aged about 8 years and hence, the

custodianship of the respondent No.2 no longer exist as per

Muslim Sharia Law. Moreover, custodianship of the respondent

No.2 ceases according to the Section 41 of The Guardians and

Wards Act, 1890 as she has married again. Therefore, the Order

of custody of the Mohammed Farhan Alam and Mohammed

Fayzan Alam may kindly passed by this Hon’ble Court in favour

of the petitioner for the ends of natural justice.

IV. For that the petitioner is a reputed businessman and earns enough

to bear the expenditure of the minor sons and the family

members of the petitioner are wealthy enough and well-

established as well as highly educated.

V. For that the respondent No.2 is an ill-tempered and cannot take

proper care of her minor sons. The respondent No.2 with her
 16

malafide intention and sinister motive has been depriving the

minor sons from love, affection and caress from their father. The

conduct of the Respondent no.2 is nothing but to harass and

humiliate the petitioner. The welfare of the minor sons will be at

stake, as a result, the petitioner is seriously worried about the

welfare and future of his minor sons.

VI. For that the respondent No.2 in holding the detenue in her

careless custody under insecure situation is acting in an unlawful

manner which is out and out against the welfare and better

interest of the minor sons. The petitioner as the natural guardian

is legally and lawfully entitled to get the minor sons under his

custody so that he can take care of his minor sons for the welfare

and better interest of them and the detenue can grow up staying

in touch of their father and other family members.

VII. For that the welfare of the minor sons would be secured in the

custody of the petitioner as he is capable to look after them and

support them and also the right of the minor sons needs to restore
 17

to give them a proper atmosphere to grow up so that their welfare

is protected.

Wherefore, it is most humbly prayed that

Your Lordships may graciously be pleased to:

A) Issue a Rule Nisi calling upon the

Respondents to show cause as to why the

detenue (minor sons) Mohammed Farhan

Alam and Mohammed Fayzan Alam now

being held in the custody of the respondents

No.2 should not be brought before this

Hon’ble Court by them so that it may satisfy

itself that they are not being held in the

custody without lawful authority or in an

unlawful manner.
 18

B) Upon perusal of the cause shown, if

any, and hearing the parties make the Rule

absolute;

C) Pending hearing of the Rule, to direct

the Respondents to produce the said

Mohammed Farhan Alam and Mohammed

Fayzan Alam before this Hon’ble Court

within 24 hours;

D) Pending hearing of the Rule, your

Lordships be also pleased to direct the

Respondent no.2 to give the minor sons

namely Mohammed Farhan Alam and

Mohammed Fayzan Alam under the custody

of the petitioner.

E) Direct the respondents not to allow the

detenue sons to cross the border of

Bangladesh.
 19

F) Award costs and/or compensation in

favour of the petitioner and against the

Respondents; and / or

G) And pass such other and further order

and/or orders, as to your Lordships may deem

fit and proper.

And for this act of kindness your humble Petitioner as in

duty bound shall ever pray.

AFFIDAVIT

I, Md. Jakarira Alam son of Md. Shamsul Alam and Rajia Khatun of

House: 954 Rahat Bhaban Majir Ghat road, P.O: Sadar 4000,

Doublemouring, Chattogram City Corporation, Chattogram, aged about

47 years by Faith: Muslim, by Occupation: business, by Nationality:

Bangladeshi, National ID No. 2350595795, do hereby solemnly affirm,

and say as follows:

1. That I am the petitioner of the instant writ petition and am

acquainted with the facts and circumstances of the said case and

competent to sear affidavit.

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2. That the statements made hereinabove in this application are true

to the best of my knowledge and belief.

Prepared in my office.

------------------------
(MD. ABID CHOWDHURY) Deponent
Advocate The Deponent is known to
me and identified by me.

SOLEMNLY AFFIRMED BEFORE

(MD. ABID CHOWDHURY)
ME THIS THE ........... DAY OF Advocate
THE LEGAL EMPRICISM
NOVEMBER, 2021
Tropicana Tower,
45 Topkhana Road, Dhaka-1000.
Mob: +88 01740111555
Membership No. 5889
Room No. 4018 (Annex)

COMMISSIONER OF AFFIDAVIT
SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 21

WRIT PETITION No. of 2021

IN THE MATTER OF:

Md. Jakaria Alam
.... Petitioner.

-VERSUS-

Bangladesh and others.

..... Respondents.

MD. ABID CHOWDHURY

Advocate
For the Petitioner
Tropicana Tower,
45 Topkhana Road, Dhaka-1000
Mob: +88 01740111555
Membership No. 5889
Room No: 4018(Annex)
 22

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION No. of 2021.

IN THE MATTER OF:

Md. Jakaria Alam

....…Petitioner
-VERSUS-
Bangladesh and others.
.......Respondents

INDEX

Sl Description of Papers/Documents Date Page

1. Power
2. Writ Petition
3. ANNEXURE-“A, A-1, A-2, A-3 and
A-4” photocopies of the marriage
certificate, Birth Certificates and
Passport copy of the detenue sons
4. ANNEXURE “B & B-1” 23.03.2020
Photocopies of the divorce notice and 18.01.2021
Order of the Shalishi Parishad
5. ANNEXURE “C Photocopies
of the Wedding Photographs
6. BACK SHEET

MD. ABID CHOWDHURY

Advocate
NOTICE
 23

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION No. of 2021

IN THE MATTER OF:

Md. Jakaria Alam

....…Petitioner.
-VERSUS-
Bangladesh and others.

.............Respondents.

To
The Attorney General
Government of Bangladesh

Dear Sir
Please take notice that an application under Article 102 of the
Constitution of People’s Republic of Bangladesh will be filed and
moved before this Court no. 35 (Annex), a copy of which is enclosed
herewith for your kind information.

ABID CHOWDHURY
Advocate
For the petitioner