Just a month ago, the world celebrated International Women’s Day. When one talks about women empowerment, what needs to be looked into is how institutional discrimination against women can be eliminated. In India, there are still some customs and laws that are not only discriminatory towards women but also deeply inhuman. India is a sovereign republic where the constitution ensures the right to equality for all its citizens irrespective of their gender, caste, religion, place of birth etc. However, surprisingly, the strange Dawoodi Bohra custom that allows the husband to take over from his estranged wife custody of the male child above seven years of age without any due process of law has gone unchallenged so far.
A Dawoodi Bohra woman by rule cannot get custody of her child in case she seeks to divorce and end her marriage. A Bohra child’s custody automatically, without any due process, is given to the father and his family. The custom might sound out downright discriminatory to most, but unfortunately, for years, it has gone unquestioned.
The odd custom of child custody not only violates the rights of the mother who wishes to have custody of her minor children but also the right of the minor children of Dawoodi Bohras as their custody is not ruled in accordance with the various judgments of the Supreme Court, which keeps their welfare paramount. This custom is not only morally wrong but is unconstitutional in as much as it is violative of Article 14 of the constitution that provides equality before the law and equal protection of law to every person. Where on the one hand this custom forces women to stay in abusive and irreparable marriages, on the other, it compromises the security and well-being of minor children.
Recently, a woman from the Bohra community had knocked the doors of the Supreme Court, seeking to end this extremely biased custom. After the apex court in the case of Shayara Bano Vs Union of India, quashed the practice of instant triple talaq as unconstitutional — although it refused to intervene when moved against the practice of talaq-e-biddat, leaving the issue for the parliament to settle — the hopes of Muslim women seeking to end evils prevalent in Islam arose. Every such custom amongst the Muslims must be subject to Part III of the Constitution of India, which deal with fundamental rights.
Petitioner Fatima Quaid Zohar Challawala, who is herself a Dawoodi Bohra woman, has contended that the peculiar norm of child custody does not follow the due process of law and should be declared unconstitutional. Many will argue it’s a personal law issue and courts should not interfere with the religious freedom of the followers of Islam. But the Mumbai-based petitioner goes on to question all Muslims across the world. She says, ”(The) Qur’an is the guidance from Allah then why Islam laws are not based on what (the) Qur’an says? (The) Qur’an never mentions about custody age or that father gets custody after 7 or 9.”
This isn’t the first time the question of custody of a child from the Muslim Bohra community has come to light. There have been a number of civil suits filed for settling the issue of custody of children and succession in the Bohra community. The well-known dispute of custody of nine children and claims to correct Syedna, spiritual head of a wealthy Dawoodi Bohra community, before the Bombay High Court is only one such example.
Being one of the wealthiest and most educated of sub-communities among Muslims, the Dawoodi Bohra community truly seems to be struggling between conservatism and reform. However, now when the murmurs are heard from within the community — that the practice of automatic grant of custody of children to husband is not only biased and unconstitutional but is also against the teachings of the Qur’an — it is high time that this practice was done away with.
The true meaning of democracy will be achieved only when Muslim women have equal rights before the law of the land as Muslim men. There can be no custom contrary to the due process of law.