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Muslim personal law/ Shariat can't be tested on anvil of Article 14 due to binding Supreme Court precedents

Team SoOLEGAL 7 Jul 2022 2:15pm

Muslim personal law/ Shariat can't be tested on anvil of Article 14 due to binding Supreme Court precedents

New Delhi: The Kerala High Court ruled on Tuesday that it cannot rule that a Muslim woman can be the guardian of her minor child's property because it is obligated by Supreme Court precedents to the contrary.

Even though it may be possible to argue that a personal law prohibiting Muslim women from serving as guardians violates Articles 14 and 15 and is therefore invalid, the High Court cannot address this issue because it is constrained by precedents set by the Supreme Court, according to a division bench of Justices PB Suresh Kumar and CS Sudha.

The Shayara Bano case, in which it was determined that Muslim personal law-Shariat practices cannot be required to abide by the provisions of Part III - Fundamental Rights of the Constitution applicable to State actions, under Article 13 of the Constitution, was heavily cited by the Court.

"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 Supreme Court has ruled in several cases that a Muslim mother cannot be the guardian of her minor children, so the High Court declared that it must uphold this ruling as required by Article 141 of the Constitution.

The Court acknowledged that if succession and other secular matters have nothing to do with religion, then guardianship would also fall under this category.

The Court stated, "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 framed the main question raised by the appellants as follows:

"Does the Qur'an or Hadith specifically prohibit or bar a mother from being the guardian of her minor child's person and property? Article 13 of the Constitution says laws cannot be inconsistent with or in derogation of fundamental rights. If that be so, will not prohibit a Muslim mother from being the 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?"

The appellants did answer the first question emphatically no and the remaining questions affirmatively.

The appellants argued, citing a few Hadiths, that a woman has been recognized as the guardian of her husband's house and also his wards.

They claimed that there is nothing in the Quran that forbids a mother from being the guardian. Furthermore, it was argued that an interpretation that does not appear in the Quran or Hadith cannot be used to interpret Muslim law.

It was noted that these Hadiths were never regarded in any of the Supreme Court's decisions on the subject. The appellants contended that because those decisions were made in secret, they cannot be precedent for a position that has never been considered or adjudicated.

Respondents, on the other hand, asserted that neither the Quran nor the Hadith state that a mother can be the guardian, and in fact, numerous verses of the Quran state the opposite.

Furthermore, one cannot read something into the Quran or Hadith that is not there.

Furthermore, it was held in Shayara Bano that after the Shariat Act, the law applicable to Muslims in respect of the matters listed in Section 2 shall only be their law, namely the Shariat.

Guardianship is also mentioned in the section, so the Court concluded that the applicable law in the case of guardianship can only be Shariat.

Even though the precedents holding that a mother cannot be a guardian were issued sub silentio, the Court stated in Ballabhadas Mathurdas Lakhani v Municipal Committee, Malkapur that the High Court cannot overlook an Apex Court decision because they believe "the relevant provisions were not brought to the Court's notice."

The issue before the Court arose while the Court was hearing an appeal against a partition decree in which one of the parties was a mother who acted as guardian of her son's property.

The Court granted the appeal and held that the partition deed binds the parties, not because the mother was a rightful guardian, but because the deed was executed by the parties before the filing of the suit.


Tagged: Muslim   Kerala High Court  
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