There has been an intriguing development in the Indian judicial landscape that could culminate in fundamental modifications in relation to the personal laws in the country. Safiya PM, a Muslim woman from Kerala, petitioned the Supreme Court and requested that as she is not a believer, the Indian Succession Act should apply to her concerning the matters of inheritance, not the Muslim Personal Law (Sharia Law).
Afterwards, the apex court on 28th January expressed that non-believers and apostates born in other religions should have the same rights if Muslim women who have renounced their faith are permitted to be governed by the Indian Succession Act rather than Muslim Personal Law. The court then ordered the central government to provide an explanation of its stance on the issue within four weeks.
It pointed out the wide-ranging implications of such an amendment in the law, which might determine how religious law applies to people who have rejected the faith they were raised in. The bench was led by Chief Justice Khanna, comprising Justices Sanjay Kumar and KV Viswanathan. The court even stated that “under the Hindu Succession Act, if you convert, your inheritance is taken away, if you convert, you lose your right of inheritance.”
However, Solicitor General Tushar Mehta who was representing the Union of India countered that the Hindu Succession Act’s limitations did not affect the ability to inherit through a will, but the Chief Justice responded that there were also instances of joint Hindu family property and intestate successions. The court highlighted, “There are legal provisions that disqualify persons after conversion or renouncing faith in other religions as well. You will have to put your reply on record,” and granted time to the Centre to file its counter affidavit.
It further stated that any change in the law would necessitate revisions to several legal documents and processes, which would have an impact on different religious communities. The Chief Justice also observed that alterations to official forms would need to be taken into consideration if the petition was successful. “Where (in a form) you have to mention your religion, the option not to mention one’s religion must be there or it ought to be waivable,” he added. According to Justice Viswanathan, such a choice can be categorized as a “private right.”
Tushar Mehta admitted to the court’s evaluation of the issue’s broad ramifications and assured that a “well-considered” response would be submitted. He acknowledged that the petition raised an intriguing query and that the central government should be given the opportunity to submit a comprehensive counter-affidavit.
What is inside the petition
Speaking on behalf of Safiya, attorney Prashant Padmanabhan stated that under Muslim Law, his client would only receive a third of her father’s property and she had to care for her brother, who had autism. She had challenged Section 58 of the Indian Succession Act, 1925, which expressly excludes Muslims from its scope, he further revealed. The Chief Justice asked if her father, who was subject to Muslim law, would be barred from leaving her his entire property. Padmanabhan maintained that a person who abandoned her religion shouldn’t be disqualified or disabled in regard to inheritance or other significant civil rights.
He cited the core secularist tenet that “allows each individual the fullest liberty to believe or not to believe and treats all religions on an even platform.” The plea read, “Persons who do not want to be governed by the Muslim Personal Law must be allowed to be governed by the secular law of the country, viz, the Indian Succession Act, 1925 both in the case of intestate and testamentary succession.”
It further pleaded, “The practices under Sharia Law (Muslim Personal Law) are discriminatory towards Muslim women and violate the fundamental rights guaranteed under the Constitution. The reason why the petitioner is not following the tenets of Islam is discriminatory practices of Sharia Law. It will be a failure of justice if the petitioner is to be governed by Sharia law, even if she officially leaves the religion.”
The petition underscored that even if she received a formal certificate from an authority stating that she was not religious or caste-related, she would still have no way to inherit the property due to the legal void. It mentioned, “The petitioner wishes to get a declaration that she shall not be governed by Muslim Personal Law for any of the matters listed in Sections 2 or 3 of the Muslim Personal Law (Shariat) Application Act, 1937. There is a clear vacuum in the statute which can be plugged by judicial interpretation.” Padmanabhan contended that this situation constituted a clear infringement on the basic freedom guaranteed by Article 25 of the Constitution to believe (or not believe) in a religion.
Who is ex-Muslim Safiya PM
51-year-old Safiya PM, a native of the Alappuzha district in Kerala, described herself as an “ex-Muslim” and is an activist. She also serves as the Kerala Ex-Muslims’ general secretary. The organization was started by ten individuals and was registered in 2020. However, she was catapulted into the spotlight as she is at the centre of the judicial dispute for the property rights of Muslim women who are now non-believers.
According to her writ petition, she would want to be governed by the Indian Succession Act, 1925 rather than Sharia or Muslim Personal Law as she no longer identifies with the religion. Her request, according to activists, is an important step in the struggle for the fundamental rights of those who want the government to accept their identity choice of “No Religion, No Caste.” According to Safiya, those who abandon their religion are put in a dangerous position because neither secular nor religious laws would protect them if there were no provisions for their inheritance rights. A person who leaves Islam forfeits all inheritance rights in accordance with Sharia Law.
She has been divorced since 2004 and reportedly raised her 25-year-old daughter alone. “I am a single mother who got divorced 20 years ago and my daughter is 25. I relinquished the religion and joined the Ex-Muslims of Kerala movement four years ago. Being born to Muslim parents, my religion was mentioned as Islam in the SSLC book. But that was not my choice. I have given up the religion and my father is not a practicing Muslim,” she conveyed.
“My fight is not just for myself, but for Muslim women who cannot leave all of their property to their daughters. The Muslim Personal Law does not allow me to leave all my property to my daughter. Only 50% of the property can be left to a girl child (under Sharia), while the rest is divided among male relatives,” she voiced and further questioned, “Why should religion have a bearing on a person who renounced faith. It is an issue affecting the lives of all women in the country, but unfortunately no one has expressed willingness to implead in the case.”
Safiya against discriminatory Sharia Law, supports UCC
Safiya disclosed that her 71-year-old father, U A Muhammad, a communist and atheist himself, will not be able to split his property evenly between his children, she and her brother with autism, under Sharia Law. If there are other heirs, a Muslim woman is only allowed to inherit a third of the family’s wealth, according to the Muslim Personal Law. A Muslim woman can only receive 50% of the family inheritance if she is the sole heir and the remaining portion will go to male family members.
“Under the personal law, my father cannot write a will that leaves the property to my brother and me,” she stated and declared, “It is a matter of equality assured under the Constitution. I have only one daughter and as per Sharia law, she is entitled to only 50% of my property. But I want to give my entire property to her. My daughter must inherit my property as per the Indian Succession Act, 1925.”
Safiya also explained her reason behind approaching the highest court and expressed, “The Muslim Personal Law is discriminatory against women and it violates the fundamental rights guaranteed under the Constitution. A person who has relinquished the religion should be governed by the Indian Succession Act in case of inheritance. But, though I have renounced the religion, I am still governed by the Muslim Personal Law, under which a woman will get only half of the share entitled to her male counterpart. My only daughter can inherit just half of my wealth and the rest will go to my brother. This forced me to approach the apex court.”
Safiya voiced that she was not aware of the personal law’s shortcomings until she experienced discrimination because of the same and highlighted, “I am all for a secular UCC (Uniform Civil Code) if it can help solve the issue.” The All India Muslim Personal Law Board is one of the prominent Muslim organizations that has regularly opposed UCC, claiming it is “discriminatory.” These Muslim bodies, outfits and leaders allege that it forbids Muslims from adhering to the principles of Islam, notably its personal law.
According to Safiya, her organization has supported her in the battle. “We are called ‘ex-Muslims’ because we face discrimination from the community if we leave the religion. On the other hand, we also have to deal with the phobia towards Muslims since we were born Muslims.” Her group has acquired support from regular people who have turned away from Islam. She stated that they educate people about patriarchal behavior in Islam and other religions.
“If a religion keeps telling you that you are only half a human being with half the rights, why would you want to follow it,” she asked. More Muslims are registering their marriages under Section 15 of the Special Marriage Act in order to circumvent the discriminatory restrictions of the Muslim inheritance legislation, according to a recent RTI application. She however countered, “Registering marriage under the Special Marriage Act will not help avoid the provisions of the Muslim Personal Law.”
She added, “As per Section 29 of the Indian Succession Act, 1925, the provisions for intestate succession, are not applicable to Muslims. Section 58 of the Act also says the provisions with regard to testamentary succession are not applicable to Muslims. We have submitted a petition before the apex court seeking to declare both these exclusions in Act, as unconstitutional, as it is violative of Articles 14, 15, 19, 21 and 25 of the Constitution.”
Supreme Court issues notices to state and centre
The Supreme Court had consented to look at the broader question of whether Muslims could be covered by a secular law controlling wills and inheritance in April of last year. The bench noted that the Indian Succession Act’s exclusion of Muslims created a number of complications, including serious difficulties for people like Safiya who no longer adhere to the religious law they were reared with.
On 29th April 2024, the Supreme Court sent notice to the union and Kerala governments, agreeing to consider a case seeking a declaration that those who do not choose to be ruled by the Muslim Personal Law shall be permitted to be governed by the nation’s secular law. A bench consisting of former Chief Justice DY Chandrachud and Justices JB Pardiwala and Manoj Misra passed a notification and asked Attorney General R Venkataramani to nominate a legal officer who could help the court decide the matter. The bench referred to the case as an “important issue.”
Padmanabhan asserted that the “fundamental postulate of secularism which treats all religions on an even platform and allows to each individual the fullest liberty to believe or not to believe” had already been emphasized by the Supreme Court. A person who abandons her faith should not be disabled or disqualified in terms of inheritance or other significant civil rights, he contended, to truly comprehend what the Supreme Court intended.
There has been discussion of the matter in court before. As the current law expressly excludes Muslims, additional solicitor general (ASG) Aishwarya Bhati, appearing on behalf of the center, contended in October of last year that extending the Indian Succession Act to the community would necessitate legislative action by Parliament.
What does Islamic law say
This development has brought Islamic inheritance law at the center stage. The rules of inheritance for both direct and indirect heirs are spelled forth in detail in Surah Nisa of the Quran. “For men there is a share in what their parents and close relatives leave, and for women there is a share in what their parents and close relatives leave – whether it is little or much. These are obligatory shares,” verse 7 stipulates.
Islam’s universally accepted property distribution laws provide that a daughter receives half of son’s portion. Therefore, if a parent leaves a son a 100-meter plot, the daughter receives only 50-meter or half of the 100-meter land’s worth. Islam states that after marriage, the man is expected to provide for the family’s needs, including housing, food, clothing, and medication, in addition to supporting his wife, his children’s education, and his parents.
If the marriage has children, the wife will receive an eighth of the husband’s property if he passes away before her. If not, she receives a quarter. As long as they are blood relations, paternal uncles, aunts and other relatives also receive a portion. If grandparents are still living, the same applies. If the son dies before them and leaves children behind, each parent receives one-sixth. A challenge arises when a couple has only one or two daughters, as was the case with the Kerala couple.
The Islamic holy book indicates that “if you leave only two or more females, their share is two-thirds of the estate,” meaning that the daughters can only inherit two-thirds of their father’s property. Furthermore, the mother and paternal blood relatives obtain their portion.
The petition has drawn attention to the restrictive character of Muslim Personal Law, which establishes gender inequities in inheritance rights and restricts a Muslim’s ability to will property to one-third of their wealth. It emphasized that Muslims who reject their faith are unable to fully benefit from the provisions of secular testamentary legislation due to the legal void created by Section 58 which governs testamentary succession for all citizens regardless of their religion, except Muslims.
