SC to examine if succession law applies to 'non-believer Muslims'

The petitioner firmly feels that Sharia law breaches the basic rights provided by the Indian Constitution since it discriminates against Muslim women.

The Supreme Court has decided to look into a controversial matter: why a non-believer Muslim who wishes to discard the Muslim Personal (Shariat) Application Act succession provision that privileges sons and, instead, wants to divide his property equally among his children does not fall under the purview of the secular Indian Succession Act (ISA).

After hearing a Muslim woman describe the terrible situation she and her father—who are non-believers in Islam—found themselves in with regard to property division, a bench of CJI DY Chandrachud shifted their position from saying that "we can't give a declaration that a non-believer Muslim would be governed by the ISA" to saying that the petition had brought up a significant issue that needed clarification from the SC.

Section 58 of the Indian Succession Act, 1925, which applies to all other citizens, excluding Muslims, regardless of their religious ties, was the focus of the bench led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud.

"How can a secular law not apply to Muslims?" The bench made the request and scheduled a follow-up hearing for the second week of July. The bench asked Attorney General R Venkataramani to provide a legal officer to support the court and sent a notice to the Union government.

The woman explained that she and her widowed father were responsible for caring for her brother, who had Down's syndrome. According to Shariat, she said, a daughter is only entitled to half of what a son is entitled to as their father's heir; in this instance, the son would inherit two-thirds of her father's assets, while she would receive the remaining third.

Prashant Padmanabhan, her attorney, said that in the event that "something happened to the son", her portion would go to a father's cousin rather than to her or her daughter. "There is no authority where my father can go and say that he is a non-believer Muslim and that he would like to give effect to an equitable succession through the secular ISA," he said.

The bench stated after reading Section 3 of the Shariat law that the father may avoid the restrictions of Muslim personal law if he does not declare himself to be a Muslim. However, Section 58 of the ISA, which states that "testamentary succession (wills) to the property of any Muhammadan" will not be covered by this law, was examined by the bench led by the CJI.

“The absence of any provision for having the inheritance rights, even after leaving the religion, puts the citizen in a dangerous situation as neither the secular laws of the state nor the religious laws would protect her. As per Sharia law, one who has left Islam will lose her inheritance rights. It is the prayer of the petitioner that she should be governed by the provisions of the Indian Succession Act, 1925,” the petition said.

It further said that the petitioner firmly feels that Sharia law breaches the basic rights provided by the Indian Constitution since it discriminates against Muslim women.

What is the law?

As to Section 3 of the Shariat Act, those who are born Muslims who subsequently repudiate their faith or decide to be non-believers are nonetheless subject to Shariat law until they formally declare their intention to opt out. But even once they do so, the Indian Succession Act's Section 58 prevents them from benefiting from the normal testamentary succession rule. Presently pending before the Supreme Court is another appeal that questions the legality of Section 58 of the Indian Succession Act.

This case raises important issues about the freedom of belief and the right to equality under the law, and it may provide a precedent for how religious law treats those who have intentionally diverted from the faith they were raised in.