New Publication: Chapter on India in Parental Care and the Best Interests of the Child in Muslim Countries

Jean-Philippe Dequen treats India in the recently published volume by Nadjma Yassari et al. (eds.), Parental Care and the Best Interests of the Child in Muslim Countries, The Hague: T.M.C. Asser Press 2017, p. 29-61

Despite India not being a Muslim country, its Muslim citizens are nonetheless governed by Islamic law in matters relating to custody and guardianship through a personal legal system. Irrespective of the large number of Muslims it affects, Muslim personal law remains however a minority law, and it is both administered and fashioned within a secular legal framework inherited from British colonisation. This chapter seeks, through a legal-historical approach, to present the evolution of Islamic guardianship and custody laws in India, particularly in relation to the Guardians and Wards Act of 1890, which still holds force today. After briefly detailing the place of Islamic law within the Indian legal order, it will be shown how the Guardians and Wards Act 1890 has profoundly changed the legal characterisations pertaining to guardianship and custody, which but partially reflect the classical Islamic dichotomy between wilāya and ḥaḍāna. It is argued that the subsequent ‘secular’ legal categories of ‘guardianship of the person’ and ‘guardianship of property’, upon which Muslim personal law is applied, have had an adverse effect on both the rights of the mother and on the minor’s property. Furthermore, it is submitted that the status of Islamic law as a minority law in India has also hindered the enforcement of the notion of the ‘best interests of the child’. Although Islamic law has traditionally integrated this concept within its jurisprudential framework, its transformation into Anglo-Muhammadan law within the British Raj has impeded the incorporation and development of the ‘best interests of the child’ principle within Muslim personal law, especially if compared to the evolution of Hindu personal law or English law in that regard.