Petition Filed In Supreme Court Against Custom Prevalent Among Dawoodi Bohra Community Which Allows Custody Of A Child To Father Without Due Process Of Law
(Judicial Quest News Network)
A petition has been filed in Supreme Court challenging the 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 petition has been filed by a Mumbai-resident, Fatema Quaid Zohar Challawala, stating that the said custom is violative of Article 14 and 15 od the constitution of India inasmuch as arbitrarily deprives a mother from the custody of her male child, without any due process of law.
The petitioner contends that 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 petitioner herein challenges this 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 this Hon’ble Court which keeps their welfare paramount. At the same time, the custom goes contrary to the right of the wife, the petitioner in this case to have the dispute of custody of her child to be decided just like any other case.
It is further submitted that 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 filed through Advocate Sriram Parakkat.
The petitioner was 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 petitioner looked after the young male child in a manner which is acceptable to modern as well as the traditional mind. She blends oriental and occidental values while bringing up the child.
The child has been forcefully taken away from the legal custody of the petitioner and the custom also supports continuing custody of the petitioner’s husband in spite of the fact that it is the petitioner who took care of the son all these years.
She has further submitted that the impugned custom of giving custody to a child above the age of 7 years to the father, without any process of law, encroached upon the civil rights of women and should be declared as unconstitutional.
She says that 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 this Hon’ble Court which keeps their welfare paramount. At the same time, the custom goes contrary to the right of the wife, the petitioner in this case to have the dispute of custody of her child to be decided just like any other case.
However, after the judgement of the Supreme Court in Shyara Banov. 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.
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.
