C Abdul Aziz v/s Chembukandy Safiya ILR2022(3) Kerala760

C Abdul Aziz v/s Chembukandy Safiya ILR2022(3) Kerala760

C Abdul Aziz v/s Chembukandy Safiya ILR2022(3) Kerala760

C Abdul Aziz v/s Chembukandy Safiya
Corum: Justice P. B Suresh Kumar and Justice C.S Sudha
Facts of the Case

The property in question initially belonged to two brothers, namely, Chempumkandy Veeran and Chempumkandy Abu. The respondents are the children of Veeran. In the year 1969, the said properties were partitioned in which deed, in addition to the respondents, their mother Ayishabi and Abu were also parties. The respondents were minors at the time of execution of partition deed. The respondents have ratified the act of their mother by executing a release deed dated 13/05/1989. The respondents, arguing that the partition deed of 1969 executed by the mother for and on behalf of them is void, filed a suit for partition. The III Additional Sub Court, Kozhikode decided in favour of the respondents. Hence, an appeal was preferred by the appellants.

1. Whether 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?
2. Whether the respondents are estopped from seeking partition?


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.

Observation & Decision

The Division Bench of Justice P. B Suresh Kumar and Justice C.S Sudha observed that while there was nothing in the personal law prohibiting the same, it was bound by the precedents of the Supreme Court which have established that the Muslim mother cannot be the guardian of her minor child’s person or property except for movable property.

The Court added that the argument of the appellants that prohibiting Muslim mothers from being guardians of their minor child’s person and property is violative of Articles 14 and 15 of the Constitution does not stand since as per Shayara Bano v. Union of India, AIR 2017 SC 4606 the Shariat Act is not a State legislation, and hence cannot be tested on the anvil of Articles 14 or Article 15.

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