Can ex-Muslims be governed by Indian Succession Act? Supreme Court agrees to examine

Tribune News Service

Satya Prakash

New Delhi, April 30

Can a person born as a Muslim be governed by Indian Succession Act, instead of Shariat, if he/she quits Islam?

Faced with this peculiar legal question, the Supreme Court on Monday asked the Centre and the Kerala Government to respond to her petition. Asking Attorney General R Venkataramani to appoint a law officer to assist it, the Bench posted the matter for further hearing in July.

Petitioner Safiya PM – a resident of resident Alappuzha and General Secretary of 'Ex-Muslims of Kerala’ -- contended that being a non-believer Muslim woman, she wanted to be governed by the secular Indian succession law to deal with her ancestral property rights, instead of Shariat.

“We cannot give a declaration on personal laws like this to parties. You can challenge the Sharia law provision and we will deal with it then. How can we direct that a non-believer be governed by the Indian Succession Act? This cannot be done under Article 32 (under this Article one can directly move the SC for protection of fundamental rights),” a Bench led by CJI DY Chandrachud told the petitioner’s counsel.

However, it later chose to issue notices to the Centre and the Kerala Government on her petition.

Maintaining that she has not officially left Islam, Safiya said she was a non-believer and wanted enforcement of her fundamental right to religion under Article 25. She asserted that the fundamental right to religion under Article 25 must include “the right not to believe” also.

She has sought a declaration that “the 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 i.e. the Indian Succession Act, 1925 both in the case of intestate and testamentary succession”.

Safiya submitted that Muslim women were entitled to one-third share in the property under the Shariat laws. Her counsel said a declaration that the petitioner was not governed by the Muslim personal law has to come from the court; otherwise her father will not be able to give more than one-third of the property.

“My brother is suffering from Down syndrome (a genetic disorder which can cause mental and physical challenges) and he will be able to get two-third of the property,” the lawyer said.

For a Hindu, the fact that one is believer or non-believer is immaterial and they are governed by the succession law, the Bench said.

“There is no provision for me to get such a declaration as needed under section 3 of the Shariat Act [the Muslim Personal Law (Shariat) Application Act, 1937],” her counsel said.

The Bench allowed Safiya to amend her petition suitably to challenge the Indian Succession law and other provisions that excluded Muslims.

“You say you want a declaration that you are not governed by the Muslim personal law on adoption, inheritance wills etc but again the secular law also does not apply then. We thought it was not important. But, now we see it is important. We will issue a notice... We ask the Attorney General to nominate a law officer to appear given the importance of the issue,” it said.

“Fundamental Right to religion under Article 25 of the Constitution must include the right to believe or not to believe, as per the judgment of this in Indian Young Lawyers Assn v State of Kerala (Sabarimala case)... To have meaning for that Right, the person who leaves her faith should not incur any disability or a disqualification in matters of inheritance or other important civil Rights,” the plea said.

“As per Sharia law, the person who leaves her faith in Islam will be ousted from her community and thereafter she is not entitled for any inheritance right in her parental property. Further, the Petitioner is apprehensive about the application of the law in the case of her lineal descendant, her only daughter, if the Petitioner officially leaves the religion,” she submitted.

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