New Delhi: The Supreme Court on Wednesday sought the Centre’s response on a PIL challenging the constitutional validity of uncodified rules governing inheritance and succession among Muslims on grounds of gender discrimination under the Muslim Personal Law.
The top court, which issued notices to the ministries of Youth Affairs and Sports and Law and Justice, agreed to examine the plea filed by Imtiazhussain Shahabuddin Mulla.
The plea said that the existing framework institutionalizes gender discrimination by allocating female heirs half the inheritance share of their male counterparts and denying women equal rights in ancestral and family property.
A bench comprising Chief Justice Surya Kant and justices Joymalya Bagchi and V Mohana took note of the submissions of lawyers M Singh and Anil C Nishani that such unequal treatment violates fundamental rights under Articles 14 (right to equality), 15 (prohibition against discrimination), and 21 (right to life and personal liberty) of the Constitution.
Nishani said that personal laws cannot claim immunity from constitutional scrutiny when they result in manifest arbitrariness, analogous to the landmark Shayara Bano judgement.
The plea urged the apex court for an authoritative determination on gender-equal property and succession rights among Muslims.
The petition sought directions from the apex court to ensure equal inheritance and succession rights for Muslim women, including in ancestral and family property.
“Issue an appropriate writ… declaring that any rule, practice, interpretation or application of Muslim Personal Law governing intestate succession, insofar as it accords differential proprietary and inheritance rights to similarly situated male and female heirs solely on the ground of sex, is violative of Articles 14 and 15 read with Article 21 of the Constitution and is consequently unconstitutional and unenforceable to the extent of such discrimination,” the plea said.
The plea challenged the continued operation and legal recognition of principles governing Muslim intestate succession, insofar as they allegedly result in differential proprietary rights between male and female heirs.
“The statutory framework assumes particular significance in view of the Muslim Personal Law (Shariat) Application Act, 1937. Section 2 of the said Act provides that, notwithstanding any custom or usage to the contrary, in matters including intestate succession, the rule of decision where the parties are Muslims shall be Muslim Personal Law,” the plea said.
It said the Muslim Personal Law (Shariat) Application Act of 1937 provides statutory recognition to the application of Muslim Personal Law in the field of intestate succession, while leaving the substantive rules of succession substantially uncodified.
“The very statutory structure therefore gives rise to a constitutional question as to whether rules which determine valuable civil and proprietary rights, and which are alleged to produce differential consequences on the basis of sex, can continue to receive statutory recognition and judicial enforcement consistently with the fundamental rights guaranteed under Part III of the Constitution,” it said.
In several situations, female heirs receive a share that is half that of a male heir of the same degree and that Muslim law does not contain a concept analogous to coparcenary under Hindu succession law where daughters acquire a right by birth in ancestral property.
Drawing a comparison with the Hindu Succession Act, particularly its 2005 amendment, the plea referred to the statutory recognition of equal coparcenary rights for daughters in Hindu joint family property, saying that the absence of comparable reform in Muslim succession law creates a disparity in inheritance rights.
The petition also relied on the judgement in Shayara Bano v. Union of India, referring to the court’s consideration of constitutional limitations on practices associated with Muslim Personal Law.
It said that rules affecting civil and proprietary rights should not be insulated from constitutional scrutiny merely because they are characterised as personal law.
The plea sought a direction declaring that Muslim women are entitled to equality in matters of inheritance and succession, including in ancestral property, in a manner consistent with constitutional guarantees.
