Constitutional Validity Of Shariat Act In Regard To Succession

Public interest litigation not maintainable

Turning to the Muslim Law of Succession, the High Court of Kerala by a recent judgment in Khuran Sannath Society v Union of India dismissed public interest litigation seeking a declaration that the Muslim Personal Law (Shariat) Application Act, 1937 (IND) (Act of 1937), applicable in regard to the inheritance of Muslim women, violates Arts 14, 15, 19, 21 and 25 of the Constitution of India and is therefore void and unenforceable. The High Court dismissed the petition on the ground that the issues raised in the writ petition were for the legislature to consider and to frame laws and they could not be adjudicated in proceedings under writ petition ie Art 226 of the Constitution of India. The petitioners, aggrieved by Muslim succession law, had made the following submissions:

1. There is discrimination on the ground of sex in so far as inheritance is concerned regarding females in the Muslim community, ie a female child does not receive an equal share compared to a male child born to a Muslim father;
2. A female child receives a lesser share as compared to her brother;
3. Misinterpretation of holy Quranic edicts as practiced in India leads to patent discrimination against female children alone, while the sons who succeed to their mother’s or father’s property need not share any portion of the inherited properties with anyone of the deceased’s relatives other than the spouse and parents of the deceased;
4. If a deceased Muslim happens to leave only daughters, those daughters will not receive a share equivalent to that of the share which she would receive if she was a male, and will have to share the properties along with not so close relatives of the deceased; but if the deceased leaves only a male child he takes the entire property needing to share it only with the spouse and parents of the deceased;
5. The Muslim Personal Law as followed carries discrimination based on gender in the matter of inheritance which cannot have the acceptance of the constitutional principles enshrined in Arts 14, 15, 19, 21 and 25 of the Constitution of India.

The respondent raised preliminary objection as to sustenance of the aforesaid issue in public interest litigation and submitted that legislation challenging the personal law applicable to Muslims could be brought into effect only by the competent legislature. The respondent mentioned Mohd Ahmed Khan v Shah Bano Begum wherein the court had the occasion to consider the Act of 1937 in the context of S. 125 and S.127 of the Code of Criminal Procedure, 1973. The Supreme Court in Mohd Ahmed Khan, after observing that there is no conflict between the Code and the Muslim Personal Law, contemplated the desire of the government for the Muslim community to take the lead and for Muslim public opinion to crystallize on the reforms in their personal law.

A Division Bench of the Kerala High Court comprising Ashok Bhushan CJ and AM Shaffique J in Khuran Sannath relied on Maharshi Avadhesh v Union of India where the Supreme Court, considering the prayer of the petitioner in the Writ Petition that the respondents be directed not to enact the Shariat Act which affected the dignity and rights of Muslim women, observed that those were the matters for the legislature. The Supreme Court, while dismissing the petition in Maharshi Avadhesh had made the following observation:

to declare Muslim Women (Protection of Rights on Divorce) Act, 1986 as void being arbitrary and discriminatory and in violation of Article 14 and 15 Fundamental rights and Articles 44, 38 and 39 and 39A of the Constitution of India and to direct the respondents not to enact Shariat Act in respect of those adversely affecting the dignity and rights of Muslim women and against their protection are all matters for legislature. The Court cannot legislate in these matters.

The Kerala High Court in Khuran Sannath accordingly ruled that “the issues raised in the Writ Petition cannot be adjudicated in proceedings under Article 226 of the Constitution of India in this Public Interest Litigation. It is for the Legislature to consider the issues raised and frame a competent legislation”. The Court missed an opportunity to give its opinion on the constitutional validity of personal law. The Court, with regard to the constitutional validity on issues related to personal law in earlier cases of a similar nature, has abstained from giving its opinion. In Mary Roy v State of Kerala the Supreme Court had the opportunity to consider the constitutional validity of the Travancore Christian Succession Act, 1092. The Supreme Court determined that the provisions of the Travancore Christian Succession Act, 1092 were superseded by ISA, 1925 on the technical ground that, after independence, the laws enacted by princely states, which were not expressly saved by the Part B State (Laws) Act 1951 (IND), had been repealed, and ISA, 1925 became applicable to the intestate succession of property of members of the Indian Christian community in the territories of the erstwhile State of Travancore. However, the Court declined to examine the provisions which affected the property rights of women belonging to that State.

In Madhu Kishwar v State of Bihar (1996) , challenging the constitutional validity of the Chhota Nagpur Tenancy Act, 1908 (IND), which disentitled tribal women to inheritance rights, the Supreme Court upheld the discriminatory provisions but allowed the women to assert their rights without declaring that the custom of disinheriting the daughter offended Arts 14, 15, and 21 of the Constitution. The Supreme Court struck down S.118 of ISA, 1925 as being unconstitutional on the basis that it violated Art 14 of the Constitution even when the law was a pre-Constitutional personal law. Such an approach from the Supreme Court is desirable, but the Court generally adopts a cautious approach when considering the constitutional validity of personal laws and is yet to give a definite ruling and declare that personal laws are “laws” or “laws in force” under Art 13 of the Constitution of India. By engaging with the constitutional validity of personal laws, the Supreme Court could have set a precedent for examining gender discrimination under other personal laws.

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Place Order

Hanafi law of inheritance: Full sisters a sharer or residuary in presence of daughter: The right of full sisters to inherit property in the presence of a daughter of the deceased under Hanafi law recently came before the Bombay High Court in Khairunnisabegum v Nafeesunisa Begum . The deceased left behind his widow and daughter (the defendants) and two sisters (the plaintiffs), but no male issue. The issue was to decide the inheritance status of the sisters in the presence of the widow and daughter of the deceased.

As per the Hanafi law of inheritance, heirs are classified into three classes:

• Quranic heirs or sharers – whose share is fixed in the Quran;
• Residuaries – after allocation of shares to the sharers, the residue is allocated to the residuaries; and (3) distant kindred – when there are no sharers and residuaries, the property is inherited by distant kindred.

According to the Table of Sharers, a full sister is a sharer if there is no child or child of a son, howsoever low, and at the same time shows that a full sister in default of a full brother takes the residue, if any, if there be a daughter or daughters, etc. The right of a full sister had come for consideration before the Jammu and Kashmir High Court in Maqsooda Begum v Shahnawaz Khan . The question for determination before that Court was whether a full sister is an heir under the Mohammadan law. In that case, the deceased was survived by a widow, two daughters and a sister. The Jammu and Kashmir High Court considered the view of Hussain, wherein the rights of a sister to inherit the property of a Sunni Muslim are enumerated as follows:

The full sister inherits in three capacities:

• a. She takes as sharer if there is no child, child of a son his father, true grandfather or full brother and she is entitled to 1/3 share (or 2/3 collectively when there are two or more sisters).
• b. She inherits as a residuary with her full brother.
• c. She inherits as a residuary with daughter or sons daughter or one daughter and a son’s daughter provided there is no nearer residuary.

The Court observed that a sister has an interest in the property of the deceased and even if she does not receive the share as a sharer, she receives it as a residuary. It accordingly held that a sister has a residuary interest in the estate even in the presence of a wife and children. The Supreme Court also had the opportunity to decide the rights of a full sister in Newanness alias Mewajannessa v Shaikh Mohamad ,where the deceased widow had left her two daughters and one sister. The Supreme Court considered the views of Mulla and observed that if there are no sharers, or if residue is left after satisfying their claim, residuaries also inherit in the order set forth in the Table. In the absence of descendants, ie a son, son’s son and ascendants like father and grandfather, then the descendants of the father take in the order mentioned therein, first to full brother, then to sister. The Supreme Court accordingly granted one-third share to the full sister and one-third share each to both the daughters. Placing reliance on the clear pronouncement of law by the Supreme Court as corroborated by the observations of the High Court of Jammu and Kashmir and in Mulla, the Bombay High Court in Khairunnisabegum concluded that after the allocation of shares to the sharers, ie to the widow and the daughter, the residue passes on to the full sister as residuary. The interpretation of the court is logical and justified. A full sister is either a sharer or residuary in a given circumstance. If she could not claim as a sharer due to absence of conditions attached but is a residuary due to the fulfillment of other conditions, she then inherits as a residuary.

Conclusion

Contemporary Indian society has refused to give up traditional ideologies and continues to perpetuate age-old patterns of ownership in material assets. India’s agrarian transition has been slow, uneven and highly gendered . Deprivation of property rights is the root cause of the secondary status of women in India . Across castes and religions, they share the similar difficulty of their lack of economic independence which leads to their oppression and subjugation . Indian women have been struggling for more than half a century to bring the attention of the legislature as well as the judiciary to their property rights. The pace of the legislature has been slow in amending the laws but the judiciary in recent times has taken progressive steps in interpreting the law in favor of women. Despite some progressive interpretations and innovative legal maxims, the path to justice has not progressed in a linear trajectory for the property rights of Indian women. There is a far greater imperative to follow the principles under the Constitution of India of equality, justice and non-discrimination than to retain the archaic, irrational, arbitrary and discriminatory personal laws which demean the status of women in India.