Lawstreet Journal

Plea in Supreme Court Against Automatic Granting of Custody of Male Child to Father in Dawoodi Bora Community

Lawstreet Journal 17 Dec 2020 10:56pm

Image courtesy: Lawstreet Journal Judiciary Plea in Supreme Court Against Automatic Granting of Custody of Male Child to Father in Dawoodi Bora Community

A writ petition has been filed before the Supreme Court challenging the constitutional validity of a custom followed by the Dawoodi Bora community among Muslims, according to which the custody of a male child above the age of 7 automatically goes to the father.

The petition has been filed by a Mumbai-resident, Fatema Quaid Zohar Challawala, stating that the said custom is violative of Article 14 and 15 of the Constitution inasmuch as it arbitrarily deprives a mother from the custody of her male child, without any due process of law.

She has alleged that the impugned custom also violates the right of the children of the Dawoodi Bora community as it ignores the principal of «paramount welfare» of a child. At the same time, she has alleged, the custom goes contrary to the right of a mother to dispute the custody of her child.

She has urged that any custom is subject to Part III of the Constitution, i.e. Fundamental Rights, as per the Supreme Court's ruling in Shayara Bano v. Union of India, 2017 SCC 1, and hence, it is also subject to Article 14 and its species right of Article 15.

If any custom or religious practice that is sought to be protected under Article 25 of the Constitution is in violation of Article 14 and 15, the same ought to be struck down as unconstitutional,the plea stated.

She has submitted that the impugned custom is not an essential religious practice of Islam and has urged… Continue Reading...

Tagged: Supreme Court of India  
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