The Kerala High Court on Tuesday observed that a partition deed executed by a Muslim mother on behalf of her minor children acting as their guardian is not valid going by the precedents of the Supreme Court.
The Division Bench of Justice P. B Suresh Kumar and Justice C.S Sudha observed that while there was nothing in the personal law prohibiting the same, it was bound by the precedents of the Supreme Court which have established that the Muslim mother cannot be the guardian of her minor child's person or property except for movable property.
"There is nothing in the Qur'an or the Hadith prohibiting or barring women from being considered as guardians of their minor offsprings...Be that as it may, this court is bound by the decisions of the Hon'ble Supreme Court."
The Court added that the argument of the appellants that prohibiting Muslim mothers from being guardians of their minor child's person and property is violative of Articles 14 and 15 of the Constitution does not stand since as per Shayara Bano v. Union of India, the Shariat Act is not a State legislation, and hence cannot be tested on the anvil of Articles 14 or Article 15.
The Court was adjudicating upon an appeal filed against a decree of partition in which one of the parties was a mother who acted as guardian of her son's property.
Counsels appearing for the appellant, Advocates K M Firoz and N M Madhu raised the argument that a woman has in fact been recognized as the guardian of her husband's house as well as his wards. These Hadiths were never considered in any of the judgments which have held that the mother cannot be the guardian of her minor child. Furthermore, it was argued that there is absolutely nothing in the Quran prohibiting a mother from being the guardian.
On the contrary, counsel appearing for the respondents, Advocate Namitha, submitted that neither the Quran nor the Hadith specifically says that a mother can be a guardian, therefore, one cannot read into the Quran or Hadith something which is not there. Specific reference has been made to certain verses in the Quran and Hadith to substantiate the argument that a woman has never been given the status of a guardian.
Advocate K I Mayankutty Mather, appointed as Amicus curie made extensive submissions on the matter, more or less supporting the arguments advanced on behalf of the appellants.
The Court found that if succession and like matters of secular character has nothing to do with religion, the same would be the position with the case of guardianship also.
"It is no doubt true that in this modern age, women have scaled heights and have slowly but steadily stormed several male bastions. As pointed out, many Islamic countries or Muslim-dominated countries have women as their heads of State. Women have been part of expeditions to the space too."
However, since there were categoric Supreme Court decisions laying down that women cannot be the guardian of their minor child's person or property except for movable property, the Bench opined that its hands were tied from ruling otherwise.
In Shayara Bano, it was held that the practices of the Muslim personal law- Shariat cannot be required to satisfy the provisions contained in Part-III of the Constitution of India, applicable to state actions, in terms of Article 13 of the Constitution. Similarly, there are several decisions of the Apex Court which hold that Muslim mothers cannot be guardian of person and property of their minor children, the Court held that it is bound by the decisions in those cases as provided under Article 141 of the Constitution.
Further, in Shayara Bano (supra), it has been held that Qur'an is the "first source of law". However, for matters included in Section 2 of the Shariat Act, the only law applicable would be the Muslim personal law and guardianship is referred to in the said section. Therefore, the Court drew the conclusion that the law that is applicable in the case of guardianship can only be the Shariat law.
The court thereby allowed the appeal and held that the partition deed executed in favour of the minor children is invalid.
Case Title: C Abdul Aziz & Ors. v Chembukandy Safiya & Ors.
Citation: 2022 LiveLaw (Ker) 332