As per the custom, the custody of a male child above the age of seven, goes to the husband.
By: Shruti Sunil Rebhankar, ILS Law College, Pune.
A writ petition has been filed before the Supreme Court by a young Indian mother Fatema Quaid Zohar Challawala, based in Kuwait, before the Supreme Court, challenging a ‘custom’ in the Dawoodi Bohra community which allows a man to take over from his estranged wife the custody of their child who is above seven without any due process of law.
The petition is filed through Advocates Sriram P. and Debopriyo Pal.
The petitioner, represented by advocate Sriram P., said the custom was in clear violation of the Supreme Court verdicts which have consistently held that the welfare of the child is paramount while deciding custody.
The custom which allows the father “continuous custody” was against the welfare of both the child and the mother, said the petitioner. The custom also impinges upon the right of the wife to have the dispute of custody of her child to be decided just like any other case.
The petitioner, Fatema Quaid Zohar Challawala, who is herself a Dawoodi Bora woman, has contended that the custom is “without any due process of law” and contrary to the judgments of the Supreme Court as per which custody of the child should be given taking into account the welfare of the child.
“Dawoodi Bora Community in which the petitioner and her husband belongs to, grants the custody of a minor boy child to the father without any process of law and merely on the basis of custom. The custom violates the right of the children of the Dawoodi Bora community as their custody is not rules in accordance with the judgments of the Supreme Court which keeps their welfare paramount,” the petition states.
The petitioner said that she got married in 2007 and was blessed with a male child in 2010. She separated from her husband in 2013 and claimed that her 10-year-old son was forcibly taken from her. The petition states that the Shariat law governs the personal lives of all Muslims by virtue of Muslim Personal Law (Shariat) Application Act of 1937 (Shariat Act).
It is petitioner’s argument that even though various enactments came into force since the passage of the Shariat Act, including the Dissolution of Muslim Marriages Act, 1939, the Muslim Women (Protection of Rights on Divorce) Act, 1986, etc., the women who practice Muslim faith are still subjected to grave social evils that find sanction in the Shariat law.
“If any custom or religious practice that is sought to be protected under Article 25 of the Constitution is in violation of Article 14 and 15, the same ought to be struck down as unconstitutional,” the plea states and prays that the custom be declared unconstitutional.
She has urged that any custom is subject to Part III of the Constitution, i.e. Fundamental Rights, as per the Supreme Court’s ruling in Shayara Bano v. Union of India, 2017(9) SCC 1, and hence, it is also subject to Article 14 and its species right of Article 15.
“The custom violates the right of the children of the Dawoodi Bohra community as their custody is not in accordance with the judgments of the Supreme Court, which keeps their welfare paramount. At the same time, the custom goes contrary to the right of the wife…” the petition said.
The petitioner has, therefore, prayed that the practice of granting custody of male child to the father after the child attains 7 years of age be struck down as violative of right to equality enshrined under Article 14 of the Constitution.