On Monday (29th April), the Supreme Court of India issued notices to State and Union governments while hearing a writ petition seeking a declaration that a person who was born a Muslim, but ceased to be a believer, would not be governed by the Shariat law. After elaborate arguments, the bench comprising Chief Justice of India DY Chandrachud, Justices JB Pardiwala, and Manoj Misra issued notices on the petition, terming it an “important issue.”
The bench also requested the Attorney General for India to nominate a law officer who can assist the Court. The next hearing in this case will take place in the second week of July 2024.
The writ petition has been filed by a Kerala-based woman, Safiya PM who is the general secretary of an organisation of ex-Muslims of Kerala. In her plea, Safiya seeks a “declaration that 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, viz, the Indian Succession Act, 1925 both in the case of intestate and testamentary succession”.
Initially, the bench was reluctant to entertain the petition as well as regarding the argument that a non-believer wouldn’t be governed by the Shariat Act.
Responding to the petitioner’s counsel Advocate Prashant Padmanabhan, CJI Chandrachud said, “The moment you are born as Muslim you are governed by the personal law. Your rights or entitlement are not governed by being a believer or non-believer.”
The bench also questioned how the Court could issue a declaration regarding the non-applicability of personal law to a person under Article 32 of the Constitution when the petitioner has not challenged any statutory provision.
During the arguments, the CJI highlighted the provisions of Section 3 of the Muslim Personal Law (Shariat) Application Act, 1937. He pointed out that a person will not be governed by the Act unless they specifically make a declaration, under this section, to be governed by the Act.
The CJI noted, “You don’t have to seek that declaration. Because Section 3 of the Shariat Act says that unless you make a declaration, you will not be governed by the provisions of the personal law in the matter of wills, adoptions, and legacies. So if you don’t make a declaration, your father doesn’t make a declaration, they are not governed by the personal law.”
However, the court noted that there was a problem as a void existed for such scenarios as Section 58 of the Indian Succession Act makes a specific declaration that the Succession Act will not apply to Muslims. Nonetheless, the bench noted that the petitioner had not challenged Section 58 of the Indian Succession Act.
Highlighting that a legal void exists in such scenarios, CJI D Y Chandrachud ruled, “There is a problem. Because if you don’t have a declaration, there is still a void because the secular law doesn’t apply. When we started reading it, we said what kind of a petition is this. Now that you have got into it…it’s an important point. We will issue a notice.”
Arguments of the petitioners following which the Court agreed to issue notices
The plea said the petitioner, “a born Muslim woman to a non-practicing Muslim father, who has not officially left the religion, is facing the peculiar problem in protecting her precious civil rights”.
Petitioner’s counsel, Padmanabhan submitted that according to personal law, a Muslim person cannot leave more than 1/3rd of his properties by way of Will to his daughter. He pointed out that the petitioner’s father is also not a believer. The counsel further submitted that Muslim women are entitled to only 1/3rd of the share of male heirs.
According to the plea, her father can only leave her one-third of the property and the rest of the two-thirds will go to her brother who was suffering from Down’s syndrome. The plea added that the petitioner had a daughter. But after her death, the entire property would not be passed to her daughter because her father’s brothers would also get a claim.
The plea has relied on the SC’s Sabarimala judgement in which the court observed that the fundamental Right to Religion under Article 25 of the Constitution of India, must include the right to believe or not to believe.
The plea said, “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.”
Regarding the court’s observation that the petitioner had not challenged any statutory provision, Padmanabhan replied that Section 58 is under examination in another petition filed by the Quran Sunnath Society. The counsel added that the petitioner in this case has also intervened in that petition. Following the counsel’s assertion, the bench agreed to consider the matter.
Meanwhile, the counsel also submitted that he would raise the grounds regarding Section 58 after which the bench granted liberty to amend the petition.
