May 272019
 

Pulack Ghatack: Abida Sultana (not her real name), daughter of a sex worker, was brought up in a safe home near the Daulatdia Brothel in Dhaka’s outskirt and she does not know her father’s name. Diagonozed as hepatitis-B positive patient, condition of Abida deteriorated in 2007 and she was badly in need of a passport to travel to India for better treatment.

But the authorities did not allow her to obtain a passport, as she could not disclose the name of her father in the petition. “I cannot help you. You can go to India through an underground tunnel,” the Security Branch (SB) official retorted with a rude sarcasm, as Abida repeatedly sought his assistance to get the passport.

“Many times I thought it would be better for me to commit suicide, as the society and the state are not accepting me as a human being. What is my fault? Is it a crime for me to be a child of a sex worker,” Abida told the Daily Observer.

Abida is an honors graduate and is now working with a foreign NGO to serve the distressed Rohingya refugees in the Cox’s Bazar coastal district in Southern Bangladesh. At last, she had to sacrifice her principle to apply for a passport and mentioned a false name as her father, for the existing law requires her to cite the name of her parents in all official works.

A number of victims like Abida narrated their plights to this correspondent. They face problems in obtaining birth certificates, getting admission in educational institutions, obtaining national IDs or voter cards and also to get a job for their survival.

Shahajadi Begum, a development worker, who researched on lives in the brothels in Bangladesh, said, “Woes of sex workers’ children are unspeakable. They do not inherit wealth from any father, who is unknown in reality. They face troubles in getting admission to schools and also in securing a job in the government or private offices.”

Not only for the children of sex workers, disclosures of father’s identity in official papers is an embarrassing question for many, including the street children, children of surrogate mothers, rape survivors, children abandoned by father and also children born through IVF (in vitro fertilization) technology.

The Daily Observer has examined the existing laws and talked to some legal experts to delve deep into the issue and found only plightful details of many victims, without finding any seamless solution in the existing legal system.

Article 27 of the Bangladesh Constitution says that “All  citizens  are  equal  before  law  and  are  entitled  to  equal protection of law.” The Article 28 of the supreme charter also unequivocally forbids any discrimination “against any citizen on grounds only of religion, race, caste, sex or place of birth.”

But discrimination runs rampant making the lives of thousands vulnerable by denying them state facilities only due to their identities by birth.

Father is the legal guardian of a child, while a mother can be considered simply as a custodian in absence of the father according to Muslim Family Law. Mother has no role in guardianship of kids also as per customary Hindu laws prevalent in Bangladesh.

However, the Ministry of Women and Children Affairs issued a gazette notification on August 27, 2000 making it mandatory to include mother’s name beside the name of father for all official purposes.

But no initiative has been taken to codify or amend the existing family laws to make the official procedures simple and implementable for all citizens, even if there are complicacies in disclosing parents’ identities.

“Rather than simplifying the mater, the government gazette has made the things complicated and tougher for many, who have problems over parental identity,” human rights activist Khusi Kabir has said.

A child was discovered from the bathroom of Shere-e-Banglanagar hospital in Dhaka on May 14. Her mother has fled living her in the bathroom, while the father is also trace-less. Is there any legal obligation for this child to acknowledge the mother or father, if found after many years?

“It is a humane question and true for both mother and father,” Khusi Kabir said as she was approached. “I have found a good number of cases, where the mothers left their children just after birth and the father reared the children up. So a person, if he or she is unwilling to bear the name of an irresponsible mother, cannot be forced to be identified by the mother’s name,” she added.

She demanded that the law be amended, so that the people in identity crisis can get the option to include the name of anybody or the state or an organization as their legal guardians, bypassing their biological father or mother.

Rahela (pseudonym), a rape victim, has got a child from the rapist. However, she wants her child to grow up with the identity of another man as father, whom she married later. But there is no legal provision to this effect and there are so many complications over it.

Firstly, adoption is forbidden in Muslim family law. If her husband agrees to adopt the son of the rapist, there will come the question of inheriting his wealth, as he has another child from her former wife.

Secondly, the alleged rapist has denied the allegation in the court. He cannot be held as the biological father, until the court declares it. If the court finds him guilty, then will come the question, whether the child will be eligible to inherit wealth of the rapist as a son.

A girl in Cumilla district was gang raped and later gave birth to a child, causing an identity mess over the baby’s father. Three persons confessed to have committed the offense before the court and it could not be determined, who the father of the child is.

Attorney General Mahbubey Alam said, “There is no specific provision of the state on these issues. As this reporter asked for a legal solution to the problems, he just said, “It is a matter of the state’s policy.”

Asked about the provisions and practices for issuing National ID Card and enrolling the adult children of sex workers and others who have identity problems, Election Commissioner Kabita Khanam said, “There is no clear cut law or rule in this regard. We provide them identity cards, on the basis of the information they provide.”

“During the training sessions of our staff, we instruct them not to deprive any adult person to become a voter or in getting ID card, even if they cannot disclose the name of their fathers. However, in most of the cases, the children of the sex workers name someone as their father,” she said.

“It could be better, if there was a specific law about it,” Kabita Khanam said.

Indian Supreme Court in a historic verdict in the Abc vs State (NCT of Delhi) case on July 6, 2015 ruled that an unwed mother is allowed to apply for sole guardianship of her child without having to send ‘the mandatory notice’ to the uninvolved father.

Moreover, she may not be forced to reveal the name of the father against her wish. At the same time, the identity of the father may also not be required for obtaining the child’s birth certificate.

The appellant of that case was a follower of Christian faith, who had raised her son without any assistance of his biological father. To appoint her son the nominee of her savings, she was asked to either to disclose the name of the father or get a guardianship/adoption certificate from the court. The Supreme Court came to her rescue.

The Madras High Court (HC) of India in a verdict on July 14, 2018 ruled that single mothers cannot be forced to disclose name of child’s father for birth certificate.

“There are also cases where women are constrained to raise children with their own sources in view of their unwilling and unconcerned partners. It would be totally unjustifiable to insist such single or unwed mothers to compel them to declare the name of the father of the child who has chosen to abandon the child,” the court said.

Mathumitha Ramesh was the petitioner. She had given birth to a child through intrauterine fertility treatment. Being a divorcee, she had resorted to insemination with the help of a semen donor.

The Delhi HC in a landmark verdict, earlier on May 21, 2016, held that only the mother’s name is sufficient to apply for a passport, which is regarded as a big boost for single mothers as well as unwed mothers in India.

Authorities cannot insist on mentioning the name of one’s biological father in passport in certain cases where she is a single parent, the court said.

In Bangladesh, the HC on August 3, 2009 issued a rule on the government authorities seeking explanation why the mandatory provision for mentioning father’s name for appearing for secondary or higher secondary examinations will not be annulled.

The court issued the rule upon a petition by Bangladesh Legal Aide and Services Trust (BLAST), Mahila Parishad and Naripokkho, as an SSC (Secondary School Certificate) examinee in Thakurgaon district was denied permission to appear for SSC examination due to her failure to disclose father’s name.

The girl was brought up by her mother alone after her father did not provide for or recognise either her or her mother. The Secondary and Higher Secondary Education Board of Rajshahi refused to issue an admit card to her for not filling up the entry for ‘father’s name’ in the Student’s Information Form required prior to sitting for SSC examinations.

However, the ministries of Education, Civil Administration, Women and Children Affairs and the Directorates of the Education Boards have not given any reply to the rule so far, and the case has been remaining unresolved till now.

The HC issued another rule on May 20, the latest of its kind, asking the government to explain why it should not be directed to properly implement the gazette notification that mandated the use of mother’s name along with the father’s name in all identity documents.

Noted lawyer and human rights activist Dr Sara Hossain said, “A High Court order can resolve the complicacies over the issue. Hearings on both the cases can be conducted simultaneously for getting a better solution.”

Former law minister Barrister Shafique Ahmed said, “Law cannot make someone to do something, which is impossible to do. Sex workers’ children do not know the names of their fathers. So they cannot be forced to name someone. It would be unjust.”

“This is same to the children of rape victims. The state cannot make it mandatory for them to name the rapists as their father, if they are unwilling to do so,” the noted jurist added.

Activist Khusi Kabir said, “Bangabandhu Sheikh Mujibur Rahman, the founding father of Bangladesh, instructed all to mention him as the father of any child, who were born due to rapes by Pakistan army and their collaborators during the War of Liberation in 1971. As the head of the state, he took the responsibility of the war-children having identity crisis.”

“Now the state should come forward to take the responsibility of the rape victims and children of sex workers,” she said.

Pulack Ghatack is a Bangladeshi journalist working with the Daily Observer.
Contact: ghatack@gmail.com

# The report was first published in the Daily Observer, Bangladesh.

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