Islamic law

Reports say the Supreme Court sought the Union Government’s response to a petition filed by a woman, born a Muslim, now a non-believer, wanting to be governed by secular statutes rather than Shariah, CJI Chandrachud, heading a 3-judge bench, issued notices to the Union and State of Kerala, for hearing. Now another petitioner has come on board. The challenge intensifies. It is considered improper to comment on a pending case, but this is intended as a “thinking aloud” response to media reports and, since the matter will excite interest and controversy, set forth interesting aspects that can eventually come up in court and possible legal debates in Bar Associations. à The Shariat Application Act 1937 itself says that it applies only to Muslims so I do not see how it would apply to the lady who is no longer a Muslim. Incidentally if she gets married under the Special Marriage Act or re-registers her marriage performed by other means under that Act, automatically succession to her property and that of her children stands governed by the Indian Succession Act. Registration of marriages celebrated in other forms.―Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872, or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely:― (a) a ceremony of marriage has been performed between the parties and they have. been living together as husband and wife ever since; (b) neither party has at the time of registration more than one spouse living; (c) neither party is an idiot or a lunatic at the time of registration; (d) the parties have completed the age of twenty-one years at the time of registration; (e) the parties are not within the degrees of prohibited relationship… Effect of registration of marriage under this Chapter.―Subject to the provisions contained in sub-section (2) of section 24, where a certificate of marriage has been finally entered in the Marriage Certificate Book under this Chapter, the marriage shall, as from the date of such entry, be deemed to be a marriage solemnized under this Act, and all children born after the date of the ceremony of marriage (whose names shall also be entered in the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents: Provided that nothing contained in this section shall be construed as conferring upon any such children any rights in or to the property of any person other than their parents in any case where, but for the passing of this Act, such children would have been incapable of possessing or acquiring any such rights by reason of their not being the legitimate children of their parents. Succession to property of parties married under Act.―Notwithstanding any restrictions contained in the Indian Succession Act, 1925 (39 of 1925), with respect to its application to members of 9 certain communities, succession to the property or any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the said Act and for the purposes of this Act shall have effect as if Chapter III of Part V (Special Rules for Parsi Intestates) had been omitted therefrom. Matters of civil rights Her counsel stated the Supreme Court already underscored the “fundamental postulate of secularism which treats all religions on an even platform and allows to each individual the fullest liberty to believe or not to believe.” To realise the full meaning of that, he said a person who leaves her faith should not incur any disability or disqualification in matters of inheritance or other important civil rights. à This is slightly skewed. True every individual has the freedom to believe or not to believe … or ought to, what with the reports that we are increasingly seeing in the media about people being made the subject of hostile attention because of what they choose to believe in … or wear or eat or even pray! What the petition actually seems to drive at is that notwithstanding your opting out of a certain identity the law as applicable to that identity must continue to apply to you even though your circumstances have changed. I was a Muslim. The Shariah applied to me. I ceased to be a Muslim. The Shariah no longer applies to me. Nevertheless I want certain parts of Shariah that would benefit me to continue to apply to me! The noble sounding statement that “a person who leaves her faith should not incur any disability or disqualification in matters of inheritance or other important civil rights” glosses over the fact that what is actually sought is that an entitlement that could be vested in her if she were to remain part of the community to which that entitlement applied should, despite her change of status, nevertheless continue to be vested in her. à Now consider a matter that arises from application of Hindu law: specifically secs. 26 and 27, Hindu Succession Act, which read Convert’s descendants disqualified: Where, before or after the commencement of this Act, a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens. Succession when heir disqualified: If any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate. Moot question à If the Supreme Court were to consider this matter and take the thought process to its logical conclusion one might ask whether a person who was a Hindu but has ceased to be a Hindu and has converted to another religion or become an atheist can, despite such conversion, or such atheism, require that the inheritance law of Hindus should apply to him as if there was no conversion or atheism involved? Another question that would then arise is as to what would happen when that individual has, let us say, two children one born prior to conversion/atheism, and one born after, appreciating that neither child is involved with the decision nor even aware of it! Discriminatory, right?! The reports say the petition continued “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.” à That, as already stated above, would automatically be triggered if you were to choose to marry under the Special Marriage Act or re-register your marriage performed by other means under section 18 of the Special Marriage Act. Nothing prevents or obstructs that desire. You can be governed by whichever law you want, but what you seem to be indirectly actually seeking here is, that the restrictive sections of a law which would not apply to a non-Muslim, such as (i) restriction on making will for more than one-third of one’s estate, or (ii) making will in favour of a legal heir, be held inapplicable, and thus you are indirectly seeking a mandamus against your predecessors (read parents) without making them a party to the lis! You want them effectively compelled to cease being governed by Muslim Law, against their will!! à Stated differently what you seek is that, basis your conversion, your parents be compelled to conduct their affairs in a manner that you would desire for your benefit. However, they have not sought to opt out of the application of the Shariah. They are comfortable being governed by that law. Tomorrow, if your children were to revert to Islam, would a claim lie from them, that the succession to your property should be governed by Shariah, and not the secular law of the country? Would such a claim succeed in the face of your disinclination to concur? Just asking. The lady, from ‘Ex-Muslims of Kerala’, said once she leaves her faith in Islam, she will be ousted from her community and is not entitled to any inheritance right in her parental property. Ousted or moved out? à I am not aware of “being ousted from the community”: I prefer to think she opted to leave the community! However, let us take it that the lady’s stand is a correct expectation of what she thinks is likely to happen. Now let me twist my queries a bit: can the lady compel her parents by decree of court, in this situation of her conversion, to make a will in her favour, or compel them by decree of court, to make a grant of property in her favour? Effectively then, is that not what she seeks from the implementation of a judgement of the court if it comes in her favour? “The petitioner wishes to get a declaration that she shall not be governed by Muslim Personal Law for any of the matters listed in Sections 2 or 3 of the Muslim Personal Law Application Act, 1937, but there is no provision either in the Act or in the Rules wherein she can obtain such a certificate. There is a clear vacuum in the statute which can be plugged by judicial interpretation,” the petition noted. à Why she needs a declaration, and which authority asked her for it, is not clear to me. I doubt if there is a provision in the Hindu Succession Act or any other Act of a similar nature for a person to get a declaration that that Act does not apply to that person. Shariah applies only to Muslims. She has ceased to be a Muslim. Shariah, or Muslim law, has no application to her. Is her declaration not a complete and adequate renouncement? Or would this claim qualify as a disguised one where what she really seeks is that the Court declare Muslim law, which continues to govern her parents, ceases to govern her parents because she has converted?! Can a causus omissus be supplied by judicial overreach, effectively legislating? Legal vacuum It noted that the legal vacuum would leave the petitioner with no recourse to succeed to her parental property even if she officially got a no-religion, no-caste certificate from an authority. à The issue then is not what the law postulates. The issue is property. No problem. Yet, Muslim law permits her parents as absolute owners of their property to gift it away, put it in trust for beneficiaries maybe even excluding petitioner, create a charity for their sawaab-e-jaariya, or give it to the Nobody Cares Fund! Then, when her parents suffer demise, there is nothing for her to inherit. Can she now compel her parents, by Court decree, not to deal with or dispose of their property because after their death she wants their property preserved for her to inherit? This state of affairs was a direct violation of the fundamental right to believe (or not to believe) in a religion under Article 25 of the Constitution, her counsel argued. à Actually what is involved in this case is not the right to believe or not to believe: what is actually involved seems the desire of a citizen that the law which continues to apply to her parents consequent upon her conversion to another religion should, because of her conversion, cease to apply to them, that the Indian Succession Act should govern them, because therein lies her material benefit. Options available If a person converts thus, and assuming for the sake of argument that such a petition does succeed and the Court rules in favour of the petitioner, what other options can be available to those around her? That simply requires a trust to be created, giving away the property to the trust with the trust deed terms requiring what would happen under Shariah application, to be implemented by the trustees, where the lady, at her parents’ desire, can be included or excluded with no say in what the consequences are. Interested, anyone? Jai Hind. Shafeeq R. Mahajir is a well-known lawyer based in Hyderabad. Note from the editor: If anyone is interested to know more about the background of this opinion piece, is recommended to read the following link:https://timesofindia.indiatimes.com/india/sc-seeks-centre-reply-on-muslims-opting-for-secular-inheritance-law/articleshow/120393397.cms

Islamic law

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