On Wednesday, the Kerala High Court said that it was bound by the precedents from the Supreme Court to observe that a Muslim woman cannot be the guardian of her minor child and the property. Though there is no bar in Quran or Hadith on a Muslim woman’s right to be a child’s guardian, the Court said that it was bound to follow the law as interpreted by the apex court under Article 141 of the Constitution.
According to the reports, the Court was hearing the appeal filed by C Abdul Aziz of Kallai, Kozhikode, and 12 others who were represented by Advocate KM Firoz. The bench of Justice PB Suresh and Justice CS Sudha noted that the Muslim personal law prevents Muslim women from being guardians to their minor children but it stands void when discussed with articles 14 (equality) and 15 (discrimination) of the Indian Constitution. However, the Court is bound by the precedents set by the apex court, it reiterated.
It also added that there were several previous judgments delivered by the Supreme Court in which it had categorically held that a Muslim woman cannot be a guardian of her minor 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 space too…Be that as it may, this court is bound by the decisions of the Hon’ble Supreme Court,” the Court said.
The appellant meanwhile argued referring to the Hadith, and said that the woman was recognized as the guardian of her husband’s property as well. They said that there was nothing in the Quran or Hadith that prohibited a woman from being a guardian of her son or his property. They also added that Hadiths were never considered in any of the judgments of the Supreme Court in this regard.
On the other hand, the respondents stated that neither the Quran nor the Hadith says that a mother can be the guardian and in fact, several verses of the Quran have stated otherwise. The Court stated that though Quran did not specifically mention that a mother cannot be the guardian, it was not up to the Court to interpret the same, especially in the light of the view taken by the Supreme Court.
Further, the Court referring to the Shayara Bano case, said that the Shariat Act is the only law that applies to Muslims in the matters stated in section 2 of the act which includes Guardianship.
The petition was filed over a partition deed in which a Muslim mother acted as a legal guardian of her son’s property. The Kerala High Court observed that the parties were bound by the partition contract but denied considering the mother as a rightful guardian.
