Muslim mother cannot be a guardian of minor children rules Kerala HC

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Kochi, July 7:  A division bench of the Kerala High Court has observed that it cannot hold a Muslim woman can be guardian of her minor child's property since it is bound by the precedents of the Supreme Court.

The division bench of Justices P.B. Suresh Kumar and C.S. Sudha observed that even though the personal law which prevents Muslim women from being guardians can be argued to be violative of Articles 14 and 15 and hence void, they cannot go into the same since it is bound by the precedents set by the apex court.

The court observed this while hearing a petition filed by C. Abdul Aziz from Kozhikode and a dozen others over a partition deed in which a Muslim mother acted as a legal guardian of her son's property.

Relying on the 'Shayara Bano's case, in which it was held that the practices of the Muslim personal law-Shariat cannot be required to satisfy the provisions contained in Part-III – Fundamental Rights of the Constitution applicable to State actions, in terms of Article 13 of the Constitution.

"That being the position, as the Shariat Act has been held to be not a State legislation, it cannot be tested on the anvil of Articles 14 or Article 15 of the Constitution as argued on behalf of the appellants," the Court held in its judgment.

The court further pointed out that since there are numerous decisions from the apex court, which holds that a Muslim mother cannot be a guardian of her minor children, the High Court is bound to follow the law declared by the apex court as provided under Article 141 of the Constitution.

The court admitted that if succession and like matters of secular character has nothing to do with religion, the same would be the position with the case of guardianship also.

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