Point of Law : Partition Deed – Accepting the partition and execution of subsequent deeds – Principle of estoppel and equity applies.

JUDGMENT :

C.S.Sudha, J.

Does the Qur'an or Hadith specifically prohibit or bar a mother from being guardian of her minor child's person and property? Article 13 of the Constitution says laws cannot be inconsistent with or in derogation of the fundamental rights. If that be so, will not prohibiting a Muslim mother from being guardian of her minor child's person and property, be violative of Articles 14 and 15 of the Constitution, asks/queries Sri. Firoz K.M, the learned counsel for the appellants. If it is violative, can the court interfere to set right the injustice, if any, caused? According to the learned counsel, the answer to the first question is an emphatic no and to the remaining part, in the affirmative. Let us examine whether the arguments advanced are tenable or sustainable in the light of the settled position that a Muslim mother cannot be the guardian of her minor child's person or property except movable property. We propose to consider the issues involved herein strictly going by the precedents laid down by the Hon’ble Supreme Court being the law of the land under Article 141 of the Constitution of India.

2. Extensive arguments have been advanced by either side by referring to various verses in the Qur'an, Hadith, several decisions of the Privy Council, Apex court, this court and other High Courts, in support of their respective arguments. We heard Sri.K.M.Firoz, the learned counsel for the first appellant; Sri.N.M.Madhu, the learned counsel for appellants 2 to 9; Ms.Namitha V, the learned counsel for first and second respondents and Sri.R.Bindu Sasthamangalam, the learned counsel for sixth and seventh respondents. In the light of the important questions of law raised, Advocate Sri.K.I. Mayankutty Mather was appointed as the Amicus curiae to assist us in the matter. The learned Amicus has also made extensive submissions on the point, more or less supporting the arguments advanced on behalf of the appellants. Before we go into the facts of this case and the impugned judgment, we will first refer to the various arguments advanced relating to the aforesaid aspects.

3. On behalf of the appellants, reference has been made to the following verses-

(i) Hadith 134 narrated by Ibn Umar, a companion of Prophet Mohamed and recorded by Sahih Al-Bukhari -“Chapter 90: The woman is a guardian in her husband’s house. The Prophet Said, “All of you are guardians and are responsible for your wards. The ruler is a guardian and the man is a guardian of his family; the lady is a guardian and is responsible for her husband's house and his offspring; and so all of you are guardians and are responsible for your wards.” (Emphasis supplied)

(ii) Hadith No. 105 narrated by Abu Huraira, a companion of Prophet Mohamed and recorded by Sahih Al-Bukhari-“I heard Allah's Apostle saying, “Amongst all those women who ride camels (i.e., Arabs), the ladies of Quraish are the best. They are merciful and kind to their off-spring and the best guardians of their husbands' properties.' Abu Huraira added,” Mary the daughter of Imran never rode a camel.”

(iii) Hadith 283 in Riyad as-Salihin reads: Ibn Umar (May Allah be pleased with them) reported: The Prophet (PBUH) Said, “All of you are guardians and are responsible for your subjects. The ruler is a guardian of his subjects, the man is a guardian of his family, the woman is a guardian and is responsible for her husband's house and his offspring; and so all of you are guardians and are responsible for your subjects.” [Al-Bukhari and Muslim]

3.1. Referring to the aforesaid Hadiths, it was argued on behalf of the appellants that, a woman has in fact been recognized as guardian of her husband's house as well as his wards. These Hadiths were never considered in any of the judgments which have held that the mother cannot be the guardian of her minor child. Reference was also made to the Hedaya or Guide, a commentary on the Mussulman laws by Charles Hamilton, the relevant portion of which reads:

"If a person bestow any