NEW DELHI, Apr 29 : The Supreme Court on Monday sought responses from the Centre and the Kerala government on a plea of a non-believer Muslim woman that instead of Shariat, she wanted to be governed by the secular Indian succession law to deal with her ancestral property rights.
Safiya P M, a resident of Alappuzha and general secretary of ‘Ex-Muslims of Kerala’, said though she has not officially left Islam, but she is a non-believer and wanted enforcement of her fundamental right to religion under Article 25, saying it must include “the right not to believe” as well.
She has also 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, that is the Indian Succession Act, 1925 both in the case of intestate and testamentary succession”.
A bench comprising Chief Justice D Y Chandrachud and justices J B Pardiwla and Manoj Misra was initially of the view that the court cannot give a declaration in the matter of personal law that a non-believer will be governed by the Indian Succession Act.
“We cannot give a declaration on personal laws like this to parties. You can challenge the Sharia law provision and we will deal with it then. How can we direct that a non-believer be governed by the Indian Succession Act? This cannot be done under Article 32 (under this Article a plea can be filed in the SC alleging infringement of fundamental rights),” the bench said.
Safiya, in her PIL filed through lawyer Prashant Padmnabhan, said the Muslim women are entitled to one-third share in the property under the Shariat laws.
Referring to a provision of the Shariat Act, the bench said the issue of intestate succession will be governed under it.
The lawyer 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,” the lawyer said.
The bench said for a Hindu, the fact that one is believer or non-believer is immaterial and they are governed by the succession law.
“There is no provision for me to get such a declaration as needed under section 3 of the Shariat Act [the Muslim Personal Law (Shariat) Application Act, 1937],” the lawyer said.
The bench said though it was advising the lawyer, the petitioner may challenge Section 58 of the Indian Succession Act which says it does not apply to Muslims.
Later, the CJI-led bench agreed to the submissions and decided to issue notices to the Centre and the Kerala government on the plea and also directed Attorney General R Venkataramani to appoint a law officer to assist the bench in the hearing.
“You say you want a declaration that you are not governed by the Muslim personal law on adoption, inheritance wills etc but again the secular law also does not apply then. We thought it was not important. But, now we see it is important. We issue notice… We ask the Attorney General to nominate a law officer to appear given the importance of the issue,” it said.
While listing the plea for hearing in July, the bench also permitted Safiya to amend the petition suitably to challenge the Indian Succession law and other provisions for excluding Muslims.
“Fundamental Right to religion under Article 25 of the Constitution must include the right to believe or not to believe, as per the judgment of this in Indian Young Lawyers Assn v State of Kerala (Sabarimala case)… 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,” the plea said.
It said the petition is having wide ramifications throughout the country and urged the bench to interfere.
It said the earlier pending case in the Supreme Court was for all Muslim women. But the present petition is for those who were born Muslim but wanted to leave the religion, Safiya said.
“As per 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,” the plea said.
It said the petitioner wishes to get a declaration that she shall not be governed by Muslim Personal Law for any of the matters listed in section 2 or 3 of the Muslim Personal Law (Shariat) Application Act.
“But there is no provision either in the Act or in the Rules wherein she can obtain such a certificate. It is submitted that this is a clear vacuum in the statute which can be plugged by judicial interpretation. As of now, the petitioner will not be governed by the secular laws of the country, viz, the Indian Succession Act even if she officially gets a no-religion, no-caste certificate from any authority,” it said.
It said the precious fundamental Rights under Article 25 to practice or not to practice religion are made meaningless by the absence of such a protection from the State. (PTI)
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