Anti-woman inheritance provisions in Sharia Law: Kerala HC passes buck to legislature

KOCHI: Declining to interfere on a petition alleging gender-based discrimination in the inheritance provisions of Muslim Personal Law (Sharia), the Kerala High Court on Thursday passed the buck to Legislature and pointed out that the Supreme Court had recommended for implementing a uniform civil code in 2003 itself.
A division bench comprising chief justice Ashok Bhushan and justice AM Shaffique considered a public interest litigation (PIL) filed by three organizations – Khuran Sunnath Society of Kozhikode, Humanist Centre of Malappuram, and NISA of Kozhikode – and two Muslims who have only daughters.BJP leader Subramanian Swamy had joined in the case later as well as Indian Union Muslim League (IUML).
It was alleged in the petition that inheritance provisions in Sharia amounts to gender-based discrimination as it stipulates that Muslim daughters should share inherited property with their relatives, even distant ones, while Muslim sons need not.
Sharia’s inheritance provisions violate fundamental rights, including right to equality (Article 14), prohibition of gender-based discrimination (Article 15), right to freedom (Article 19), protection of life and personal liberty (Article 21), and right to freedom of religion (Article 25), the petition had said.
Central government had filed an affidavit in the case stating that Legislature has necessary competence to make necessary amendments or modifications but it cannot do so as the demand for changing Sharia law is not popular within the Muslim community.
The central government informed that it is its consistent policy not to interfere in the personal laws of the minority communities unless the necessary initiatives for such changes come from a sizeable cross section of such communities themselves. Sharing of inheritance in Sharia is determined on the basis of various considerations including rights and responsibilities imposed by Islam on different persons. Any attempt to change this determined share will disturb the entire harmony maintained among the other legal heirs, government had informed.
Dismissing the petition, a bench led by the chief justice held, “We are of the considered opinion that the issues raised in the writ petition cannot be adjudicated in proceedings under Article 226 of the Constitution of India (high court’s powers) in this public interest litigation. It is for the legislators to consider the issues raised and frame a competent legislation.”
Referring to a 2003 decision (John Vallamattom vs Union of India) by the Supreme Court, the division bench said, “Before parting with the case, observation was made (by the apex court) in paragraph 44 that the Parliament has to step in for framing common Civil Code in the country”.
In the 2003 judgment, the Supreme Court had said, “In Smt. Sarla Mudgal, President, Kalyani and others vs. Union of India and others [1995 (3) SCC 635], it was held that marriage, succession and like matters of secular character cannot be brought within the guarantee enshrined under Articles 25 (right to freedom of religion) and 26 (freedom to manage religious affairs) of the Constitution. It is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.” Case no. WPC 31299 of 2008.