Clarification on filing divorce under Muslim law

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Applicability of the Shariat Law to proceeding for custody of the children under the Guardians & Wards Act when the parties are governed by Muslim law, is the legal proposition that is dealt with by this article.

The Guardians and Wards Act, 1890, is the enactment that regulates and governs the law relating to appointment and declaration of guardians; duties, rights and liabilities of guardians and all laws relating to the Guardian and Ward. As per Section 4 of the Guardians and Wards Act, 1890 a minor is a person who, under the provisions of the Indian Majority Act is deemed not to have attained the age of majority. As it is well known that the age of majority for a person in India has been defined under Section 3 of the Indian Majority Act, 1875 stipulates “that every person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before”. Thus on the face of it an inference is drawn that all persons are considered minors if he or she has not attained the age of 18 years.

While India being a secular and democratic county, gives privileges and protection for various religions that flourish under the protection of the Constitution. People of different religions are governed by their respective Personal laws in all questions pertaining to succession, inheritance, marriage, divorce, etc.

It is a false presumption that prevails that the Guardians and Wards Act, 1890 applies equally to all persons irrespective of their religion, customs and practices. It is pertinent to note that, the framers of the Guardianship Act were well aware of the diverse religious demography that exists in India. Keeping this in mind section 6 of the G&W Act was enacted, which states that, “in case of a minor, nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property or both, which is valid by the law to which the minor is subject”.

The custody of a minor child in Islam is called Hizanit, which literally means the care of the infant. As per the Shariat law that applies to Muslims, the father is considered to be the natural guardian of his children irrespective of sex, but the mother is entitled to the custody of her son till the age of 7 years and of her daughter till she attains puberty. Thus under the Muslim law a male would attain majority/adulthood when he reaches the age of 7 years and a female would attain majority on attaining puberty.

The question that emerges is whether the Muslim personal law (Shariat) would also be applicable to a proceeding under the Guardianship Act. As stated earlier Section 6 gives scope for the application of the personal law to which the minor is subjected to. Further Section 17 of the G&W Act also stipulates that a guardian has to be appointed in consonance with the personal law by which the parties are governed.

The said legal proposition was amply dealt with by the Hon’ble High Court of Delhi in Akhtar Begum vs Jamshed Munir, which held that “the personal law of the parties has to be kept in view in deciding an application for custody by virtue of the mandate of Section 6 of the Act. If a Court does not keep that in view it would be acting illegally and with material irregularity”.

Further the Hon’ble High Court of Delhi while dealing with a habeas corpus petition in Mohammad Nihal Vs State, has taken the aid of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 which states that, regarding matters pertaining to succession, inheritance, marriage, divorce, guardianship, etc, where the parties are Muslims, the Muslim Personal Law (Shariat) shall be applicable. The Hon’ble Court has held that, “if some doubt prevails pertaining to the applicability of Shariat laws in guardianship matters, it stands clarified by virue of Section 6 of the G&W Act. When a court is called upon to determine the welfare of a minor so far as appointment of a guardian is concerned, this exercise will have to be determined in consonance with Shariat Law”. The Hon’ble Court further reiterated that in consonance with section 2 of the Majortiy act which states that its provisions do not impact on matters of marriage, dower, divorce and adoption, the Indian Majority act cannot be looked into while ascertaining the age of a minor and the personal law of the parties would be the driving factor.

CONCLUSION

Although the personal law of the parties is to be taken into consideration while deciding the custody of the child, the welfare of the Child is of paramount importance and cannot be over-ruled by the personal law and the welfare of the child must be the deciding factor. However, at the same time the personal law cannot be completely sidelined as the personal law would be an important facet of the welfare of the child and must also be taken into consideration.

Advocate Siddhant Sharma LawRato