• Research/Scholar Paper name – Guardianship Under Muslim Law: A Mere Prejudice Against Women in India
  • Author:  Aamena Chhagan
  • Co-Author: Jahnavi. S
  • Institution: School of Excellence in Law, Chennai
  • Affiliation: Centre for Study of Contemporary Legal Issues
  • Date of Publication: 23/05/2021

Abstract:

The aim of this paper is to delve into the current statutory law on the matter of natural guardianship under the Muslim personal law and assess the conditions under which natural guardianship of a child should be provided to women as applicable to men under Muslim personal law. Furthermore, the judicial response to the present issue is evaluated through the assistance of varied decided case laws. In addition, this paper seeks to identify an insight into the response of the judiciary to the principle of “the child’s best interest” in the field of determining the matter of guardianship and custody. In the Law Commission report of ‘Reforms in Guardianship and Custody Laws in India’, which is submitted to the ministry, the commission says that the child’s welfare must be paramount in any decision relating to guardianship and custody of a child. Muslim women have been denied their legal rights since times immemorial and their right of attaining the title of a natural guardian has been distinctively suppressed under the Muslim personal laws. This suppression of guardianship rights of their legitimate children clearly violates their fundamental rights which have been guaranteed to them under the Indian constitution. Besides, international treaties and conventions are also being disparaged. The very words “natural guardian” indubitably include both, the mother and father of a child and there is no reasonable ground on which women should be deprived of being a natural guardian of their own children. Mere traditional, conservative and arbitrary implications, which have no legal or just standing cannot hold a place in the Indian legal system and certainly cannot deny women or any person of their constitutional rights. The article resolves with some suggestions and it is substantiated that “Equality must not remain mere idle incantation, but it must become a living reality for the large masses of people”.  Therefore, equality should be made a living reality by allowing Muslim women Natural Guardianship Rights, thus promoting “EQUALITY AMONG EQUALS” as enshrined under our Indian Constitution.

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Guardianship Under Muslim Law: A Mere Prejudice Against Women in India

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