The present case arose out of an partition deed executed by mother in favour of the minoer child by the mother, could it be enforced was in question.

Though by the trail of judgements following from Dastane v Dastane[1] to Indian young Lawyers' Association v Union of India [2] famously the Sabrimala judgment held that the personal laws fall in the ambit of Article 13 and are hit by the doctrines of severability, eclipse enshrined in the article. By the recent judgment the Kerala High court a contrary view appears.

Case Summary: C Abdul Aziz & Ors. v Chembukandy Safiya & Ors.
Citation: 2022LiveLaw(Ker)332
Court: Kerala High Court
Bench: Justice P. B Suresh Kumar and Justice C.S Sudha

When questioned on whether the does the Qur'an or Hadith specifically prohibit or bar a mother from being guardian of her minor child's person and property? 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 and thereby be liable to struck down under article 13.

Arguments Advanced
The arguments advanced by appellants, relying of Hadith and Hedaya, a commentary on the Mussulman laws by Charles Hamilton argued that nowhere the texts says that the mother can't be the guardian in fact it depicts otherwise as the Hadith allow her to be the guardian of her husband and wards. Though on the appellant side it was argued that the laws must be interpreted in a manner conducive to the current/existing social background.

Reference was also made to the decision in Githa Hariharan v. Reserve Bank of India [3], and it was submitted that the Apex court moving with the times and in consonance with the provisions of the Constitution has interpreted Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (the HMG Act) and Section 19(b) of the Guardians and Wards Act, 1890 (the GW Act) and recognized a Hindu mother as a natural guardian. The reference grounded itself in Article 14 and 15 of the constitution.

In contrast to the respondent's claim that the Quran and Hadith can be read into when silent, the court referred to the case of Sita Ram v. Amir Begam, which dealt with the issue of mother as a guardian of minor's property. The ease of divorce on the one hand, and the remarriage of widows on the other, account for why this doctrine of Muhammaden law is not followed.

Several verses were cited to demonstrate that women are never treated as equals and are only responsible for protecting their husband's property. In various decisions, including the Shayara Bano, the Supreme Court has stated that:
The Quran is the first source of law, and other sources such as Giyas are secondary. In other words, no Hadith, Ijma, or Qiyas can contradict what is explicitly stated in the Qur'an. Islam cannot be anti-Qur'an.

The argument was made that because other countries, such as Pakistan and the United Arab Emirates, still do not recognise mother as the guardian, India will be correct if it follows suit.

On the contention that the Muslim law may violate article 14,15 the amicus listed that the Hindu Marriage Act list mother can be a natural guardian but in Muslim law no provision lists so.

Judgement
The court notes guardianship similarly placed in Sarla Mudgal v. Union of India, where it was held that succession and similar secular matters cannot be brought within the guarantee enshrined in Art.25 and Art.26 of the Constitution.

However, because it was bound by the law established by the Supreme Court under Article 141, even though new material such as Hadith were posted for the first time, the overriding effect of the law established by the Supreme Court was considered.

In Shayara Bano[4], the Hon'ble Supreme Court has held that after the Shariat Act, the Muslims are to be governed only by there personal laws for the matters listed in section 2, that marriage, dissolution of marriage, guardianship, including talaq, the section 2 reads as follows:

Application of Personal Law to Muslims:
Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, Marriage, Dissolution Of Marriage, including Talaq, Ila, Zihar, Lian, Khula And Mubaraat, Maintenance, Dower, Guardianship, Gifts, Trusts And Trust Properties And Wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat) .

As a result, because the personal laws are silent on the mother being the guardian of a minor child, the court is obligated to follow the law as written, and thus the mother cannot be the guardian of a minor child.

End-Notes:

1. AIR 1975 SC 1534
2. (2019) 11 SCC 1; 2018 (8) SCJ 609
3. (AIR 1999, 2 SCC 228
4. AIR 2017 9 SCC 1