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SC allows IA in petition for declaring Shariat on inheritance unconstitutional

According to the intervention application, the practice of inheritance followed by Muslims is discriminatory to women and is violative of the constitutional mandate.

YESTERDAY, the Supreme Court allowed an intervention application (IA) by Safiya Muhamed and six other women in the special leave petition praying for a declaration that Shariat, in respect of the inheritance of Muslim women, is in violation of the Constitution.

The special leave petition is filed by the Khuran Sunnath Society, an organisation based in Kerala that purports to work for the Muslim community.

The petition challenges the decision of the High Court of Kerala at Ernakulam which decided not to interfere with the plea of such a declaration.

The high court had held in 2015 that an amendment to personal law falls under the mandate of the Constitution. Aggrieved by the judgment of the high court, the special leave petition was filed in the Supreme Court in 2016.

The present IA before the Supreme Court claims that the practice of inheritance followed by Muslims is discriminatory to women and is violative of the Constitutional mandate, particularly Articles 14, 15, 19, 21 and 25 of the Constitution.

Indian Muslims are governed by the uncodified Muslim personal law or Shariat. The Muslim Personal Law (Shariat) Application Act, 1937 directs the court to apply Shariat to Muslims in matters of personal law including inheritance, marriage, divorce, maintenance, guardianship, gifts and trusts.

It is noted that under Shariat, women who belong to the same level of proximity as men are only entitled to inherit half of the property as compared to men.

Also, Shariat provides that if a person dies with only surviving daughters and no sons, the daughters are entitled to inherit only two-thirds of the deceased’s property. The siblings of the deceased are entitled to the remaining property.

Other rules of inheritance applied variedly to Sunnis and Shias.

The present IA refers to the decision of the Supreme Court in Shayara Bano versus Union of India & Ors. (2017) which held that as far as the Muslim Personal Law (Shariat) Application Act seeks to recognise and enforce triple talaq, it is within the meaning of Article 13(1) of the Constitution and must be struck down.

In Shayara Bano, the Supreme Court had observed that since the 1937 Act is a law made by the legislature before the Constitution came into force, it would be rendered void if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency.

Further, the IA points out that Shariat has not been applied uniformly across the world. Several Muslim-majority countries have introduced reforms and changes in the application of Shariat, the IA adds.

The IA details the background of seven applicants and points out the anomalies in the application of Muslim inheritance law.

The background of the applicants also highlights the need to uphold the constitutional mandate of gender equality and equal treatment of all citizens irrespective of faith.

According to the IA, the applicants are women for whom the Shariat is applicable, and they are “proper and necessary” parties in the present case.

The applicants pray for their side to be heard along with the main petition and to cite authorities and literature on the subject.

Advocate Prashant Padmanabhan, who is representing Safiya, told The Leaflet, “I wish and hope that just like in the triple talaq case, the Supreme Court will give relief to Muslim women who are treated differently under the Muslims personal law as far as inheritance is concerned.”

The Leaflet