Muslim Personal Law Shariat Can't Be Tested On Anvil Of Article 14 Due To Binding Supreme Court Precedents: Kerala High Court

Case Title:
Muslim Personal Law/ Shariat Cant Be Tested On Anvil Of Article 14 Due To Binding Supreme Court precedents: Kerala High Court

Date Of Order:
5th July, 2022

Judges:
The Honourable Mr. Justice P.B.Suresh Kumar & The Honourable Mrs. Justice C.S. Sudha

Parties

• Petitioner

1. C.THAHIRA D/O.C.ABDU, AGED 38 YEARS, SUHARA MANZIL, KAITHAVALAPPU, OPP.NEW EVEREST LODGE, PANNIYANKARA AMSOM, DESOM, P.O. KALLAI, KOZHIKODE – 3
2. T.K.FATHIMA, W/O. C.BEERAN KOYA, AGED 61 YEARS NEELO BHAVAN, THIRUVANNOOR ROAD, PANNIYANKARA AMSOM, DESOM, KOZHIKODE, NOW RESIDING AT VINODINI NIVAS, ELATHUR AMSOM,DESOM, VENGALI, ELATHUR P.O., KOZHIKODE (SHOWN IN THE IMPUGNED JUDGMENT AND DECREE AS FATHIMA @ KUNHEEVI WRONGLY)
3. C.BABU S/O.C.BEERAN KOYA, AGED 41 YEARS, NEELO HAVAN, THIRUVANNOOR ROAD, PANNIYANKARA AMSOM, DESOM, KOZHIKODE NOW RESIDING AT VINODINI NIVAS, ELATHUR AMSOM, DESOM, VENGALI, ELATHUR P.O. KOZHIKODE (SHOWN IN THE IMPUGNED JUDGMENT AND DECREE AS C.BAKKAR BABU WRONGLY)
4. C.SAIRA D/O.C.BEERAN KOYA, AGED 37 YEARS, NEELO BHAVAN, THIRUVANNOOR ROAD, PANNIYANKARA AMSOM, DESOM, KOZHIKODE, NOW RESIDING AT VINODINI NIVAS, ELATHUR AMSOM, DESOM, VENGALI, ELATHUR P.O. KOZHIKODE (SHOWN IN THE IMPUGNED JUDGMENT AND DECREE AS SHAHAR BANU WRONGLY)
5. C.NILOFER @ C.NEELOFFER D/O. C.BEERAN KOYA, AGED 34 YEARS, NEELO BHAVAN, THIRUVANNOOR ROAD, PANNIYANKARA AMSOM, DESOM, KOZHIKODE, NOW RESIDING AT VINODINI NIVAS, ELATHUR AMSOM, DESOM, VENGALI, ELATHUR P.O. KOZHIKODE
6. C.NAJITH MUHAMMED S/O. C.BEERAN KOYA, AGED 30 YEARS, NEELO BHAVAN, THIRUVANNOOR ROAD PANNIYANKARA AMSOM, DESOM KOZHIKODE, NOW RESIDING AT VINODINI NIVAS, ELATHUR AMSOM, DESOM, VENGAI, ELATHUR P.O., KOZHIKODE(WRONGLY SHOWN AS C.NAJEED IN THE IMPUGNED DECREE AND JUDGMENT)
7. HAZEENA, W/O. ABDUL MAJEED AGED 41 YEARS, SUHARA MANZIL, KAITAVALAPPU, OPP.NEW EVEREST LODGE, PANNIYANKARA AMSOM, DESOM, P.O. KALLAI, KOZHIKODE - 3
8. SHAMSUDDEEN C S/O. ABDUL MAJEED, AGED 25 YEARS, SUHARA MANZIL, KAITAVALAPPU, OPP.NEW EVEREST LODGE, PANNIANKARA AMSOM, DESOM P.O. KALLAI, KOZHIKODE – 3
9. SHAMRIN @ SHEMRIN D/O. ABDUL MAJEED, AGED 21 YEARS, SUHARA MANZIL, KAITAVALAPPU, OPP.NEW EVEREST LODGE, PANNIYANKARA AMSOM, DESOM, P.O. KALLAI, KOZHIKODE – 3
10. C.MOIDEEN KOYA(DIED) AGED 49 YEARS S/O. C.VEERAN, JAMSHEENA MANZIL, VELLATHUMPADAM, CHERUVANNUR AMSOM, DESOM, P.O. NALLALAM, KOZHIKODE-673003.
11. CHEMBUKANDY SHAMSUDDIN @ ABDUL SALEEMS/O. C.VEERAN, CHEMBUKANDY HOUSE, KAITHAVALAPPU OPP.NEW EVEREST LODGE, PANNIYANKARA AMSOM, DESOM P.O. KALLAI, KOZHIKODE 673003
12. SUHARABI D/O. C.VEERAN, EDAKKORA POTTAMMAL VEEDU, CHELAVOOR AMSOM, DESOM, KOTTAMPARAMBU P.O. KOZHIKODE 673003
13. IMBICHI PATHUMMABI D/O. C.ABU, KAMBI STORE HOUSE, CHAKKIRIKADE PARAMBA NADUVATTAM AMSOM, DESOM, ARAKINAR P.O. KOZHIKODE-673003.

• Respondent

1. ASHA SHAFEENA D/O. ABDUL MAJEED AND W/O.FIROS ELEYEDATH, AGED 23 YEARS, SUHARA MANZIL, KAITAVALAPPU, OPP.NEW EVEREST LODGE, PANNIYANKARA AMSOM, DESOM, P.O.KALLAI, KOZHIKODE -3, NOW PERMENENTLY RESIDING WITH HER HUSBAND AT ELAYODATH HOUSE, PALAPPETTA P.O.PANIPPARA, MALAPPURAM-676541.
2. C.ABDUL LATHEEF S/O.C.ABU, AGED 43 YEARS, SUHARA MANZIL, KAITHAVALAPPU, OPP.NEW EVEREST LODGE, PANNIYANKARA AMSOM, DESOM, P.O. KALLAI, KOZHIKODE -3
3. CHEMBUKANDY SAFFIYA D/O.C.VEERAN, CHEMBUKANDY HOUSE, KAITHAVALAPPU OPP.NEW EVEREST LODGE, PANNIYANKARA AMSOM, DESOM, P.O. KALLAI, KOZHIKODE 673003

SUBJECT

The Kerala High Court stated on Tuesday that it is bound by Supreme Court precedent that a Muslim woman can be appointed guardian of her young child's property. Contrary to that which was held in the case C Abdul Aziz & Ors. v Chembukandy Safiya & Ors.

IMPORTANT PROVISIONS

Indian Constitution

• Article 13

Any laws that were in effect on Indian soil prior to the start of this Constitution that are in conflict with the provisions of this Part shall be invalid to the extent of such conflict.

• Article 14

Within the boundaries of India, the State shall not deny anyone's right to equal protection under the law or equality before the law.

• Article 15

Prohibits discrimination only on the basis of race, caste, sex, religion, or place of birth. It prohibits classifications based on protected grounds, so implementing the general equality principle of Article 14 in particular circumstances.

• Chapter 90: The woman serves as a guardian in her husband's home, according to Hadith 134, which was recounted by Prophet Mohamed's friend Ibn Umar and preserved by Sahih Al-Bukhari. "All of you are guardians and are accountable for your wards," the Prophet said. You are all guardians and are accountable for your wards since the ruler is a guardian, the man is a guardian of his family, the woman is a guardian and is in charge of her husband's home and his children.
• Hadith No. 105 narrated by Abu Huraira, a companion of Prophet Mohamed and recorded by Sahih Al- Bukhari- "I heard Allah's Apostle say, "Among all the women who ride camels (i.e., Arabs), the ladies of the Quraish are the best. They are the best stewards of their husbands' estates because they are forgiving and nice to their children. Mary, the daughter of Imran, never rode a camel, said Abu Huraira.
• Hadith 283 in Riyad as-Salihin reads that the Prophet (PBUH) reportedly said: "All of you are guardians and are accountable for your subjects. May Allah be pleased with them. The lady is a guardian and is responsible for her husband's home and his children, the ruler is a guardian of his subjects, and each of you is a guardian and is accountable for your subjects. Both Muslims and Al-Bukhari

BRIEF FACTS

• It was argued on behalf of respondents 1 and 2 that, if there is any illegality or anomaly in the practise of not recognising the mother as guardian, the same needs to be rectified by the Legislature by bringing necessary legislation in the matter, and it is not for this court to interpret the Qur'an or the Hadiths and conclude either way. This argument was based on the viewpoint held in Shayara Bano (minority view).
• The ruling in Ballabhadas Mathurdas Lakhani v. Municipal Committee, Malkapur, 1970 KHC 495, which said that the High Court could not disregard a Supreme Court decision because they believed that the "relevant provisions had not been brought to the Supreme Court's notice," was cited.
• In order to demonstrate that Privy Council rulings are binding on High Courts as long as the Supreme Court has not overridden them, the judgement in Pandurang Kalu Patil v. State of Maharashtra, 2002 KHC 556 had been referenced.
• Reference was also made to the ruling in Suganthi v. Jagadeeshan, 2002 KHC 122, which held that even if the Supreme Court had established a specific legal position without taking into account any of the relevant issues, the High Court was still bound by that decision and had no authority to overturn it.
• Because of this, it was argued that the Court was bound by earlier rulings of the Hon. Supreme Court holding that Islamic law forbids a Muslim mother from acting as the guardian of her minor child. As a result, it was not for the Court to claim that the arguments raised in the current appeal had not been taken into account in the earlier rulings and that, as a result, the said rulings are not precedents on the point and are therefore not binding on this Court.
• It was argued that because the Qur'an regards men and women equally, it cannot strip a woman of her rights as the natural guardian of her minor child and of managing the kid's property. Therefore, chapter 4 verse 34 must only be interpreted as referring to the husband's duty to care for and defend his wife.
• The Qur'an is the primary source for understanding Islamic law, according to the Apex Court, which has repeatedly held this in a number of judgements. After it, there are hadiths. The Apex Court pronounced this to be the law under Article 141, making it the supreme law of the land. The learned Amicus contends that this court is therefore well within its rights to differ with past rulings by the Privy Council, Apex Court, and other High Courts on the issue because none of the aforementioned decisions took into account the arguments currently being made. The aforementioned rulings are in conflict with Islamic law because no basic Islamic legal principle—which has never barred a Muslim mother from being regarded as the natural guardian of her minor children and managing their real estate—was ever taken into account by the courts.

QUESTION RAISED

• Whether a partition decree can be issued where one of the parties was a mother who served as the property guardian for her kid.
• What is the law that is applicable to Muslims in the matter of guardianship?

ARGUMENTS ADVANCED BY THE APPELLANT

• The appellants, had contended that a woman has in reality been acknowledged as the guardian of both her husband's home and his dependent children. None of the rulings that had held that a mother cannot act as a minor's guardian took these Hadiths into account. The Hedaya or Guide, a commentary on the Islamic laws written by Charles Hamilton, was also mentioned. It was noted that Charles Hamilton's source of law, which he used to reach the aforementioned result, was not made clear.
• They said that, as is obvious from the rulings they quoted, the principles of estoppel and equity are not foreign to Muslim law. As a result, the estoppel principle must also be used in the current instance.

ARGUMENTS ADVANCED BY THE RESPONDENT

• The respondents had argued that neither the Qur'an nor the Hadith make mention of a mother having the authority to act as a guardian.
• They contend that one cannot infer something from the Qur'an or the Hadith that is not there. The claim that a woman has never been granted guardian position has been specifically supported by citations to specific verses in the Qur'an and Hadith.
• They further argued that because both the Qur'an and the Hadith let widows to remarry after the "iddah" time if they so choose, and demand that the man bequeath for the widow a year's support and residence without turning them out, the mother was never supposed to be a guardian.
• This claim was supported by citing the ruling in Sita Ram v. Amir Begam (1886) ILR 8 All 324.
• In the opinion of the responders, the Hadith demonstrates, that a woman has been assigned a highly restricted role. This only designates a woman as a guardian, custodian, or caretaker of her husband's assets and household and as the primary caregiver for raising her children.
• The respondents with reference to some verses of the Hadith aregued that it was made clear that women were never treated or treated as though they were inferior to men at that time, and as a result, the idea of giving them guardianship was never even raised.
• The defendants argued that because the plaintiff had purchased homes using the proceeds from the sale, he was prevented from contesting the validity of the sale deeds he had signed while still a juvenile.

ANALYSIS BY THE COURT

• According to the Hon. Supreme Court, the Qur'an is the "first source of law," hence the Qur'an must be given precedence, and so the court observed that this ment that sources other than the Qur'an should only be used to augment what is supplied in it and to fill what is missing. In other words, there cannot be any Hadith, Ijma, or Qiyas that contradict what the Qur'an explicitly states. Islam is ineluctably pro-Qur'an.
• The court further observed that responses also do not contest the fact that the Qur'an, Hadith, Ijma, and Qiyas are the four main sources of Muslim law. As agreed apon by both sides, there is no text in the Qur'an or the Hadith that expressly forbids the mother from serving as a guardian. It is likewise true, as claimed by the respondents, that nothing that is not expressly mentioned in the Qur'an or the Hadith may be inferred from them. However, since both the Qur'an and the Hadith are silent on this subject, it is likewise false to claim that women are forbidden from serving as guardians. The verses cited by both side simply serve as a guide for the proper course of action.
• The Hon'ble Supreme Court held that if the answer to the question of whether the word "after" in the Section only refers to "after the life time" of the father, the section must be declared unconstitutional because it unquestionably violates gender equality, one of the fundamental principles of our Constitution.

CONCLUSION

The Court accepted the appeal and determined that the parties were bound by the division agreement because it had been signed before the lawsuit was filed, and not because the mother was the child's legal guardian.

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