Landmark judgment on guardianship rights for people with intellectual disabilities
The High Court for the first time has pronounced a judgment addressing the issue of guardianship and custody of an adult person with intellectual disabilities on Tuesday.
A civil suit had been initiated by the father of an adult person with disabilities against his maternal aunt, seeking guardianship and custody under Section 21(1) of the Mental Health Act 2018 (2018 Act).
The senior district judge court, Dhaka had held that the maternal aunt should be the guardian, in the interests of the welfare of the person concerned.
Following a petition by the father, the HC had issued a rule upon the maternal Aunt to show cause as to why guardianship and custody of the person concerned should not be granted to the Father under the 2018 Act.
Upon hearing, the HC bench of justice AKM Zahid Sarwar discharged the rule issued earlier. In discharging the rule the court held that mental illness is distinct from intellectual disability or “mental retardation”, and the Mental Health Act does not apply with respect to determining the guardianship of a person with intellectual disabilities/ mental retardation, says a media release.
Senior lawyer Sara Hossain appearing on behalf of the maternal aunt stated, “This decision marks an important first step for interpretation of the 2013 Rights and Protection of Persons with Disabilities Act and on the issue of guardianship of persons with intellectual disabilities. The 2013 Act was passed to implement Bangladesh’s international treaty obligations under the Convention on the Rights of Persons with Disabilities, 2006.”
“The 2006 Convention recognises the importance of individual autonomy and independence for persons with disabilities, including the freedom to make their own choices, with the opportunity to choose their place of residence, and where and with whom they want to live, on an equal basis with others, without being obliged to live in a particular living arrangement,” she added.
Senior lawyer Habibul Islam Bhuiyan along with Golam Mohammad Chowdhury appeared on behalf of the petitioner father, while senior lawyers Sara Hossain, and Ramzan Ali Sikdar, along with lwyers Kazi Ataul Al Osman and Priya Ahsan Chowdhury represented the respondent aunt.