When a foreign court must decide a question of Bangladesh law, it does not apply that law from its own bench; it hears it from a witness. In custody, matrimonial-property and enforcement disputes with a Bangladesh connection, the quality of that witness frequently decides the outcome. US and UK litigators routinely retain an expert who knows the statutes but has never conducted a suit in the Family Court, and the opinion that results reads like a summary of a textbook. Foreign courts notice the difference.
Foreign Law Is a Question of Law, Proved by Opinion
Under the Evidence Act 1872, section 45, when the court must form an opinion on a point of foreign law, the opinions of persons specially skilled in that law are relevant facts. Section 38 separately makes relevant statements of law contained in books printed under the authority of a government. Bangladesh has therefore long accepted that a court may be assisted by an expert on a legal system other than its own, and the same logic runs in the other direction when a foreign tribunal looks to Dhaka.
The receiving courts have procedural routes of their own. In the United States, Rule 44.1 of the Federal Rules of Civil Procedure lets a court consider any relevant material or source, including testimony, whether or not it would be admissible under the Rules of Evidence, and treats the court's determination as a ruling on a question of law. Many state rules, including Indiana's Trial Rule 44.1, follow the same model. The practical consequence is that an expert opinion on Bangladesh law is offered to a judge, not a jury, and it is weighed on its reasoning and on the witness's demonstrated familiarity with how the law operates in practice. An objection that the opinion is not a conventional evidentiary summary can often be met by tendering it under the foreign-law rule in the alternative.
What the Expert Must Actually Explain
The most common failure in cross-border custody evidence is a collapse of two distinct concepts. Bangladesh law separates guardianship (wilayat) from custody (hizanat). The Guardians and Wards Act 1890 governs the appointment and declaration of guardians, and the Family Courts Ordinance 1985 vests the Family Court with jurisdiction over custody and guardianship suits. A foreign judge asked whether a parent has "custody rights" under Bangladesh law needs to be told which of the two the question concerns, because the answer differs.
The second point is that the traditional age-based rules are not the end of the analysis. The Appellate Division held in Abu Baker Siddique v S.M.A. Bakar, 38 DLR (AD) 106 (1986) that the welfare of the child is the paramount consideration and that the rigid Hanafi age rule may be departed from when welfare requires. The High Court Division applied the same approach in Jahida Ahmed (Liza) v Syed Noor Uddin Ahmed, 14 MLR (HCD) 465 (2009), and more recently in Farhana Karim v Bangladesh, 75 DLR 578 (2023), where the court framed the minor's welfare, not the parties' legal rights, as the controlling question. An expert who recites the seven-year rule without these authorities gives the foreign court an incomplete and misleading picture of how a Bangladesh Family Court would in fact rule.
Credibility Is Built on Practice, Not Credentials
Opposing counsel will test whether the witness has appeared in the courts whose practice the opinion describes. An expert who has litigated in the Family Court can say what a plaintiff must plead, how long a suit takes, whether interim orders are obtainable, and how a decree is executed. That is the information a foreign judge needs when deciding whether an alternative forum is adequate or whether a Bangladeshi order is likely to be obtained at all.
Bangladesh courts apply the same instinct to their own expert evidence. In Tarak Chandra Majhi v Atahar Ali Howlader, 8 BLC (AD) 67 (2003), the Appellate Division held that a court should not decide the genuineness of a signature by its own naked-eye comparison under section 73 of the Evidence Act. The underlying principle, that a tribunal is better served by a qualified specialist than by its own impression, is the one a foreign court applies when it asks for evidence of Bangladesh law.
Four disciplines separate a persuasive opinion from a weak one. First, confine the opinion to law and identify every statute and authority relied on, with full citations. Second, state the assumptions of fact that the opinion is based on and do not argue the facts. Third, distinguish settled law from areas where Bangladesh authority is thin or divided, and say so; a foreign judge who finds an overstatement on cross-examination will discount the rest. Fourth, prepare for the witness to be examined remotely, with the opinion, the statutes and the authorities open and permissible to consult, and with nothing in the working papers that is not ready to be produced to the other side.
Practical Takeaway
Counsel abroad who anticipate a Bangladesh-law issue should instruct the expert early, before pleadings are settled, so that the foreign-law notice is accurate and the opinion shapes the case rather than patching it. Instruct someone who has conducted contested Family Court and High Court matters and who has testified before a foreign court. Our senior practitioners have done so, including in a Virginia circuit court, and advise overseas counsel on custody, guardianship, matrimonial and enforcement questions with a Bangladesh dimension. SCL handles expert opinions and testimony on Bangladesh law for foreign proceedings, and we are glad to discuss scope and timing at the outset of a matter.