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The Kerala High Court has ruled that the partition deed signed by the mother on behalf of the children’s guardianship is invalid.

Report by Ishika Sehgal

The Kerala High Court stated on Tuesday that based on Supreme Court precedents, a partition deed signed by a Muslim mother acting as the guardian of her minor children is invalid.

According to the Division Bench of Justices P. B. Suresh Kumar and C. S. Sudha, even though there is nothing in personal law that forbids it, the Muslim mother cannot be the guardian of her minor child’s person or property, with the exception of movable property. It has been established by the various precedents.


Invoking the Hadiths, the appellants made the case that a woman has been acknowledged as the guardian of both her husband’s home and his wards. These Hadiths were never taken into account in any of the rulings that found that a mother cannot serve as a minor’s guardian. Furthermore, there is nothing in the Quran that prevents a mother from serving as a guardian


The renowned attorney for the respondents, however, stated that neither the Quran nor the Hadith mentions a mother becoming a guardian. She holds that one cannot infer something from the Quran or Hadith that is not there. The Quran and the Hadith both permit widows to remarry after the “iddah” time if they so choose and demand that the man bequeaths for the widow a year’s maintenance and residence without turning them out, therefore the mother was never supposed to be a guardian. Further, she made reference to Sita Ram v. Amir Begam (1886) ILR 8 All 324 case, wherein it has been decided that even though the appellant’s children were minors, she was ineligible to act as their guardian in these situations and hence could not exercise any power of disposition over their property.


The Kerala High court stated that “There is nothing in the Qur’an or the Hadith prohibiting or barring women from being considered as guardians of their minor offsprings…Be that as it may, this court is bound by the decisions of the Hon’ble Supreme Court.”

The court further observed that it is undoubtedly true that the arguments put out by the knowledgeable appellants’ attorney, in this case, were never brought before the Hon’ble Supreme Court in any of the rulings. But According to the ruling in Ballabhadas Mathurdas Lakhani, the High Court cannot disregard a ruling by the Supreme Court if it believes that “the relevant clauses were not brought to the Court’s attention.” In the Shayara Bano case, it was decided that the Muslim personal law system, or Shariat, cannot be forced to comply with the laws outlined in Part III of the Indian Constitution, in accordance with Article 13 of the Constitution. Similar to this, the Apex Court has ruled in a number of decisions that Muslim mothers are not permitted to act as guardians of their underage children or property. The Court ruled that, in conformity with Article 14 of the Constitution, it is bound by past rulings.

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