Plea In Supreme Court docket In opposition to Computerized Granting Of Custody Of Male Baby To Father In Dawoodi Bora Group
A written petition has been submitted to the Supreme Court calling into question the constitutional validity of a custom of the Dawoodi Bora community among Muslims that custody of a male child over the age of 7 automatically rests with the father.
The petition was filed by Fatema Quaid Zohar Challawala, a Mumbai resident, stating that the custom violated Articles 14 and 15 of the Constitution by arbitrarily removing a mother from custody of her male child without custody of the law.
She has alleged that the attacked practice also violates the rights of the children of the Dawoodi Bora community by ignoring the principle of the “highest well-being” of a child. At the same time, the custom violates a mother’s right to contest custody of her child.
She has urged that all custom be subject to Part III of the Constitution, i.e. Fundamental Rights, according to the Supreme Court decision in Shayara Bano v Union of India, 2017 (9) SCC 1, and therefore also subject to Article 14 and its Species Law Article 15.
“If a custom or religious practice that is to be protected under Article 25 of the Constitution violates Articles 14 and 15, it should be classified as unconstitutional,” the plea reads.
She argued that the offending custom was not an essential religious practice of Islam and asked the court to take a progressive view of the personal laws of Muslims regarding the rights of their women.
She submitted that the objectionable custom of transferring custody to the father of a child over 7 years of age without any legal process interferes with the civil rights of women and should be declared unconstitutional.
Indeed, the petitioner has alleged that her husband is in an illegal relationship with another woman and that he is not at all interested in the child’s welfare. Despite this, the child was forcibly removed from the petitioner’s custody, despite the fact that it was the petitioner who had looked after his son over the years.
The petition is submitted by lawyers Sriram P. and Debopriyo Pal.