Supreme Court to examine if Muslims can opt for secular succession law over Shariat

Can a person born as a Muslim be governed by the Indian Succession Act – a secular law, instead of Shariat even if he/she doesn’t renounce Islam?

Acting on a petition filed by one Naushad KK — a resident of the Thrissur district in Kerala, a bench led by Chief Justice of India Sanjiv Khanna on Thursday issued notices to the Centre and the Kerala Government, ordering that the petition be clubbed with similar cases on the issue pending before the top court.

Naushad submitted that he wanted to be governed by the succession law instead of Shariat without renouncing Islam.

In January this year, the Supreme Court had agreed to examine if a person born as a Muslim be governed by the Indian Succession Act, instead of Shariat, if he/she quit Islam. It had asked the Centre to spell out its stand on the contentious issue raised in a petition filed by Safiya PM – a resident of Alappuzha in Kerala.

“The petitioner lady is a born Muslim. She says she does not believe in Shariat and thinks it is a regressive law,” Solicitor General Tushar Mehta had told a bench led by CJI Khanna, noting that the petition raised an interesting question.

“This will run across faiths. You will have to file a counter affidavit,” the bench had told Mehta.

Safiya, general secretary of ‘Ex-Muslims of Kerala’, had 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.

The top court had on April 29, 2024 asked the Centre and the Kerala Government to respond to her petition. It had also asked Attorney General R Venkataramani to appoint a law officer to assist it.

Maintaining that she has not officially left Islam, Safiya said she was a non-believer and wanted the 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. She 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,” her lawyer had said.

For a Hindu, the fact whether one is a believer or a non-believer is immaterial and they are governed by the succession law, the court had noted.

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

The bench had allowed Safiya to amend her petition suitably to challenge the Indian succession law and other provisions that excluded Muslims.

“As per the 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 contended.

A similar petition filed in 2016 by ‘Quran Sunnat Society’ will now be heard together with the two other petitions.