Plea In SC Against Automatic Granting Of Custody Of Male Child To Father In Dawoodi Bora Community

BACKGROUND

• A petition has been filed before the Supreme Court challenging the custom prevalent among the Dawoodi Bohra community according to which the custody of a male child above the age of 7 goes to the husband.
• 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.

FURTHER DETAILS

• 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 plea drawn by advocates Deepak Kumar Singh and Debopriyo Pal and filed through advocate Sriram Parakkat adds.
• In this case, Fatema had gotten married in 2007 and was blessed with a male child in 2010. She separated from her husband in 2013 and has been living separately since then.
• The child was, however, taken away from her after he became 7 years old.
• 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 Fatema’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 subject to grave social evils that find sanction in the Shariat law.
• However, after the judgement of the Supreme Court in Shayara Bano v. Union of India in which the Court struck down the practice of instant Triple Talaq among Muslims, every such custom has to be subject to Part III of the Constitution of India, the petitioner contends.

CONCLUDING STATEMENT

• It has also been claimed that many of evils that are prevalent in Islam are sought to be preserved on the basis of misinterpretations of the Holy Quran and Hadiths. Moreover, Islam as a religion, which values humanism at the highest pedestal, is amenable to change in accordance with contemporary rationalism, Fatema has submitted.
• 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.
• This is the second case of a custom prevalent among Dawoodi Bohra community being assailed in Supreme Court. Another petition challenging the practice of female genital mutilation among the Dawoodi Bohras is also pending before the top court.
• That case will be decided by the Supreme Court after a 9-judge Bench decides on the the larger questions concerning women's rights vis-a-vis religious rights.

WHAT DO YOU THINK ABOUT THIS PLEA? IS GRANTING AUTOMATIC CUSTODY TO THE FATHER IS VIOLATIVE OF ARTICLE 14? SHOULD THE LAWS BE AMENDED? LET US KNOW YOUR VIEWS IN THE COMMENTS BELOW!