Muslim personal law/ Shariat can't be tested on anvil of Article 14 due to binding Supreme Court precedents: Kerala High Court

The Kerala High Court on Tuesday observed that it cannot hold that a Muslim woman can be guardian of her minor child's property since it is bound by the precedents of the Supreme Court to the contrary [C Abdul Aziz & Ors. v Chembukandy Safiya & Ors.]..A division bench of Justices PB Suresh Kumar and CS Sudha noted that even thought personal law which prevents Muslim women from being guardians can be argued to be violative of Articles 14 and 15 and hence void, the High Court cannot go into the same since it is bound by the precedents set by the top court.The Court relied heavily on 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.Since there are several decisions of the Supreme Court which categorically hold that a Muslim mother cannot be a guardian of her minor children, the High Court said it 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."It is no doubt true that in this modern age, women have scaled heights and have slowly but steadily stormed several male bastions. As pointed out, many Islamic countries or Muslim dominated countries have women as their heads of State. Women have been part of expeditions to the space too...Be that as it may, this court is bound by the decisions of the Hon’ble Supreme Court," the Court said..The Court framed the main question posed for consideration by the appellants as follows:"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? If it is violative, can the court interfere to set right the injustice, if any, caused?"The appellants answered the first question with an emphatic no and to the remaining part, in the affirmative..Referring to a few Hadiths, the appellants argued that a woman has in fact been recognized as guardian of her husband's house as well as his wards. They submitted that there is absolutely nothing in the Quran prohibiting a mother from being the guardian. Further, it was contended that an interpretation which finds no place in the Quran or Hadith cannot be adopted in interpreting Muslim law.It was pointed out that these Hadiths were never considered in any of the judgments of the Supreme Court in this regard. Having been passed sub-silentio, those decisions cannot be precedent of a position which has never been considered or adjudicated, the appellants argued..On the other hand, the respondents contended that neither the Quran nor the Hadith say that a mother can be the guardian and in fact, several verses of the Quran have stated otherwise.Moreover, one cannot read into the Quran or Hadith something which is not there. It was argued that if there is any illegality or anomaly in the practice being followed in not recognizing 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 the court to interpret the Qur'an or the Hadiths and conclude either way..The Amicus Curiae put forth arguments which by and large supported those of the appellants.He pointed out that a verse in the Quran that is quite often quoted to argue that the mother cannot be the natural guardian contained in Chapter 4 verse 34. This verse, called the “DNA of patriarchy”, is one among the most hotly debated verses in Muslim scripture. However, the amicus argued that this verse has to be understood, interpreted and applied in its correct perspective and the question in the appeal can be judged only after a proper evaluation of the status given to women in the Quran.Going through several verses in the Quran regarding the rights of women and referring to Chapter 4 Verse 6 of the Quran, he submitted that the Quran in fact permits a woman to be a natural guardian and dispose of their immovable property in cases of dire necessity as it doesn't specify if the guardian must be male or female..The Court observed that even though the Quran does not specifically say in so many words that a mother cannot be the guardian but it is not up to the Court to interpret the same, especially in the light of the view taken by the Supreme Court (the minority view) in Shayara Bano that courts must not decide what is a valid practice under the Muslim personal law, Shariat.Further, it was held in Shayara Bano that after the Shariat Act, in respect of matters enumerated in Section 2, the law that is applicable to Muslims shall only be their personal law, namely, the Shariat.Guardianship is also referred in the said section so the Court concluded that the law that is applicable in the case of guardianship can only be the Shariat. Even though the precedents holding that a mother cannot be guardian were issued sub silentio, the Court noted it has also been held in in Ballabhadas Mathurdas Lakhani v Municipal Committee, Malkapur that the High Court cannot ignore a decision of the Apex court because they think that "the relevant provisions were not brought to the notice of the Court". .The question before the Court was thrown up over the course of considering an appeal against a decree of partition in which one of the parties was a mother who acted as guardian of her son's property.The Court allowed the appeal and held that the parties are bound by the partition deed, not because the mother was a rightful guardian but because the deed was executed by the parties before filing of the suit. .[Read Judgment]