Muslim mother cannot be child’s legal guardian: Kerela High Court considers sharia consider above constitution 

The Kerala High Court said on Wednesday that it had to follow Supreme Court precedence in stating that a Muslim woman could not be the guardian of her young kid and the property.

“That being the position, as the Shariat Act has been held to be not a State legislation, it cannot be tested on the anvil of Articles 14 or Article 15 of the Constitution as argued on behalf of the appellants,” the Court held in its judgment.

The court was reportedly considering the appeal submitted by C Abdul Aziz of Kallai, Kozhikode, and 12 other people who were represented by attorney KM Firoz. When compared to provisions 14 (equality) and 15 (discrimination) of the Indian Constitution, the bench of Justices PB Suresh and CS Sudha found that Muslim personal law prohibits Muslim women from serving as guardians to their minor children, but it is null and void. The Court was reminded that it must abide by the precedents established by the Supreme Court.

It further stated that the Supreme Court had already ruled in a number of cases that a Muslim woman could not serve as the guardian of her young children.

“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,” the court said adding that it is bound by the decisions of the Supreme court.

In the meantime, the appellant argued with reference to the Hadith and claimed that the woman was also acknowledged as the guardian of her husband’s property. They said that neither the Quran nor the Hadith forbade a woman from being the guardian of her son or his belongings. Additionally, they stated that Hadiths were never taken into account in any of the Supreme Court’s rulings on this matter.

“Does the Qur’an or Hadith specifically prohibit or bar a mother from being guardian of her minor child’s person and property? Article 13 of the Constitution says laws cannot be inconsistent with or in derogation of the fundamental rights. If that be so, will not prohibiting a Muslim mother from being guardian of her minor child’s person and property, be violative of Articles 14 and 15 of the Constitution? If it is violative, can the court interfere to set right the injustice, if any, caused?” it said.

In contrast, the responses said that neither the Quran nor the Hadith support the idea that a mother can serve as a guardian, and that numerous verses of the Quran explicitly support the opposite view. The Court ruled that even while the Quran did not expressly indicate that a mother cannot serve as a guardian, it was not for the Court to interpret this in light of the Supreme Court’s position.

The Shariat Statute is the sole law that applies to Muslims in the situations listed in Section 2 of the act, which includes guardianship, according to the Court, citing the Shayara Bano case.

The petition was brought up in relation to a partition deed where a Muslim mother served as the property guardian for her son. The Kerala High Court noted that the partition agreement obliged the parties, but it refused to recognise the mother as the child’s legal guardian.