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UNDERSTANDING THE LAW AND SOCIETY THROUGH THE CASE MOHAMMED MUSHTAQ GK V. AYESHA BANU

Updated: Feb 4

Author: Palak Rastogi, I year of B.A.,LLB (Hons.) From NMIMS School Of Law.


INTRODUCTION

Karnataka High Court’s verdict on Mohammad Mushtaq GK v. Ayesha Banu seems reasonably sound but not socially progressive. The court’s attitude towards women, especially mothers are a misogynist in this case. Conflating the attributes of a ‘good’ mother with the biological mother is highly contentious in this case. Demonizing the stepmother in the statement given by the court is morally and socially alarming even when the court tries to act sensitively towards the biological mother. Reading between the lines of the case will reveal how legally sound verdicts could also be patriarchal in nature. This case is evident enough of the patriarchal mentality of the court where motherhood is innate and instinctive rather than conditioned by societal norms. This case law focuses both on the social institution and social group as a major part of society.


The case explores the legal affinities linked with the family and marriage as the social institutions and women as a paramount social group in humankind. The objective is to study the judgement given by the Karnataka High Court to understand the cause for the legal battle between the estranged spouses for the custody of a minor child and also to familiarize with the biased perception regarding the ‘Motherhood’ existing in the Indian society.


The Judgement of the case is given by Justice Krishna S Dixit. One of the things he does well is problematising the issues of a family linked with marriage in society by dismissing a petition challenging the order of a Family Court in Bangalore, denying the father for custody of the minor child but according to the visitation rights.


The background of the case showcases the petitioner–husband as employed in a renowned MNC namely Honeywell Technology Solutions, Bangalore. His nikah was solemnized on 30.4.2009 in Bangalore with Ayesha Bano and a child was born on 1.8.2013 named Mohammed Shahraan Hussain. Because of the apparent temperamental differences, the marriage broke down and the wife as the respondent filed a suit for dissolution of the marriage. In the same course of time, the petitioner had married another woman according to the Muslim Personal Law and was residing with her and had a child with her as well. He admitted to living a happy life with his new wife.


BRIEF FACTS OF THE CASE

The plea was filed by the petitioner contending that he was in a better position to take care of the child from a financial perspective and provide the child with the best upbringing, education, and a complete family environment. It was also the petitioner’s contention that the respondent (biological mother) had neglected her duties towards the minor child and the petitioner before. The single-judge also stated that an affidavit from the second wife that she would take care of the child would be of little solace to the biological mother.


KEY QUESTIONS ADDRESSED BY THE KARNATAKA HIGH COURT

  • In a society like ours, the disputes concerning child custody by their very nature are complex, no matter religion or faith to which the parties belong.”

  • Mother, step-mother & child: What if the custody was given to the petitioner, the mother would end up all alone while the petitioner will live with the child and a wife.

  • What reasons recognizes the need for a writ petition to be filed under articles 226 and 227 of the Constitution of India praying for interim custody of the child by the court.


Similar case law to substantiate the above-mentioned case was delivered by Madras High court in 1911 used as a reference point to articulate the misandrist views in the society. In this regard, the Karnataka High Court placed reliance on a judgment of the TN. Muthuveerappa Chetty vs. T.R. Ponnuswami Chetty which held the following:

It does not appear that, excepting the respondent’s wife, there is any female relation living with him competent to take proper care of the child. It would be hardly safe to presume that his wife, the child’s stepmother, would be willing to do so… There is good reason for believing that the maternal relations have a strong affection for the child.”


Madras High Court’s assumption about motherhood begins and ends with a biological mother. Such judgements as reference points for justice as used by Karnataka High Court leads to more orthodox and socially regressive thinking in the society.


Karnataka High court leaves no stone unturned to justify their insistence on the direct relationship between biological mother and affection for the child. Of the extracts from the poem listed by the judge to demonstrate what a biological mother means to a child that cannot be better explained than by quoting “To My Mother” (1849) the poem penned by an American poet Edgar Allan Poe:

Because I feel that, in the Heavens above,

The angels, whispering to one another,

Can find, among their burning terms of love,

None so devotional as that of ‘Mother’...


This poem portrays how the stepmother is denied fair treatment by the court on the grounds of ‘ideal motherhood’ and by giving more solace and consolation to the biological mother within the tightly-policed circle of the patriarchal regime, held up by Judge S Dixit as a historical sign of disrespect for women in the community.


The Verdict on Mohammad Mushtaq GK v. Ayesha Banu 2021 summoned by paternal mindset firmly revolves around the vision of ‘Ideal Motherhood’ by stating, “Stepmothers would not ordinarily be able to take care of and show affection to children which biological mothers instinctively would, the Karnataka High Court recently observed while denying interim custody of a child to the father on the ground that he had remarried.”Additionally, the Court opined that the idea that if the custody of the child was given to the petitioner, the respondent would be all alone and the petitioner would have two children at his hands along with the second wife “offends the very sense of justice, to say the least.”


The decision pronounced by the court can per se sounds legally competent but lacks in fulfilling the societal cause. The burden of such a phobic attitude towards mothers is suffered by women in society in general, which is the reason why we experience “The Shame.” in understanding that, being a biological mother does not fulfil the ideal criteria to shed the love and warmth needed as a mother. The verdict by the Karnataka High Court stands absurd and vague in defining the role of a mother based on a biological identity.

The picture used by the court uses silhouettes to depict the relation of a mother and child. Silhouettes as a visual model of depiction do not discriminate against different kinds of mothers. Love and affection between the mother and child matter the most. However, the verdict by court says otherwise and assumes that stepmothers are less affectionate than biological mothers.


The controversial judgement made by the Karnataka High Court has a significant Social Impact by targeting women as a crucial part of social groups in India:

  • “Being a mother is biological but motherhood is the construction of a social identity and it falls under a part of common procedure as a family.’’, the judgement solely fails to highlight the importance of the mother-child relationship in society rather than focuses on the types of mothers.

  • The judgement affirms enmity among women where a woman is assumed to think ill of the other women and they are always enemies to each other. Also, lacks the social concern regarding the biased decision given by the court on questioning motherhood and their affinities towards children.

  • The discriminatory element used by the court and by arguing that the social status of the women does not provide behavioural impunity, the court was also unsuccessful to recognise the sentiments of women in the society as a whole even behind seemingly respectable facades.

  • More precisely, the court's attitude towards the marriage, in this case, is also unjust to the spouse, by only considering the relation of a child with the biological mother and consequently, ignoring the petitioner's i.e father's love and affection towards the child.

  • The judgement is mostly an account of the arguments made by the court that fails to cover the flaws and also reflects the absence of socially appropriate behaviour towards women and especially mothers so far.

As a result, the judgement may stand legally correct but for sure is socially regressive. This is a welcome intervention in a country and a legal profession that is intensely hierarchical, stratified and paternalistic with women inevitably ending up at the bottom of the pile. The Karnataka High court may try to use emotions as a means to share solidarity with mothers but breaks down the reasonability needed by the court to promote social significance bypassing the decision in the regard to women. In Conclusion, these judgments have a great social impact on society and no decision should defame the special social groups and social institutions that exist in humankind. The Karnataka High court intends to issue writs under Art 226, but cannot turn blind eye to the biased decision against women and specifically targeting mothers in the society.


References

MONDAQ,https://www.mondaq.com/india/court-procedure/691090/articles-226-and-227-of-the-constitution-of-india-their-scope-powers-and-difference(last visited Jan 11, 2022)

Shagun Suryam, Stepmothers might not have the same affection for child-like biological mothers: Karnataka High Court, BAR & BENCH (Published on: 22 Dec 2021, 3:44 pm) https://www.barandbench.com/news/stepmothers-might-not-have-same-affection-for-child-like-biological-mothers-karnataka-high-court

LawUpdates.in,https://lawupdates.in/stepmothers-might-not-have-same-affection-for-child-like-biological-mothers-karnataka-high-court/( last visited Sunday, January 09, 2022)

Legitquest,https://www.legitquest.com/case/mohammed-mushtaq-g-k-v-ayesha-banu/20B4C9 (last visited Jan 10, 2022)

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