ABDUL AZIZ Vs. CHEMBUKANDY SAFFIYA

JUDGEMENT

(1.) Does the Qur'an or Hadith specifically prohibit or bar a mother from being guardian of her minor child's person and property? Article 13 of the Constitution says laws cannot be inconsistent with or in derogation of the fundamental rights. 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, asks/queries Sri. Firoz K.M, the learned counsel for the appellants. If it is violative, can the court interfere to set right the injustice, if any, caused? According to the learned counsel, the answer to the first question is an emphatic no and to the remaining part, in the affirmative. Let us examine whether the arguments advanced are tenable or sustainable in the light of the settled position that a Muslim mother cannot be the guardian of her minor child's person or property except movable property. We propose to consider the issues involved herein strictly going by the precedents laid down by the Hon'ble Supreme Court being the law of the land under Article 141 of the Constitution of India.

(2.) Extensive arguments have been advanced by either side by referring to various verses in the Qur'an, Hadith, several decisions of the Privy Council, Apex court, this court and other High Courts, in support of their respective arguments. We heard Sri.K.M.Firoz, the learned counsel for the first appellant; Sri.N.M.Madhu, the learned counsel for appellants 2 to 9; Ms.Namitha V, the learned counsel for first and second respondents and Sri.R.Bindu Sasthamangalam, the learned counsel for sixth and seventh respondents. In the light of the important questions of law raised, Advocate Sri.K.I. Mayankutty Mather was appointed as the Amicus curiae to assist us in the matter. The learned Amicus has also made extensive submissions on the point, more or less supporting the arguments advanced on behalf of the appellants. Before we go into the facts of this case and the impugned judgment, we will first refer to the various arguments advanced relating to the aforesaid aspects.

(3.) On behalf of the appellants, reference has been made to the following verses-