Succession refers to the concept of passing down of deceased’s estate after their death. Upon death of a person, their property remains at the need of proper maintenance and control, the lack of which causes wastage and and chaos among members interested in the property. Therefore it is important that succession is regulated by proper rules and procedures. India being a nation of diversity of religion, has embraced distinct principles of succession for different religions that is rooted in their respective faith, history and belief. Likewise we have Hindu Succession Act of 1956 for people of Hinduism, for people belonging to Islam we have The Muslim Personal Shariat Application Act of 1937, for Jains, testamentary succession is govered by The Indian Succession Act of 1925 and entestate succession is governed by Hindu Succession Act of 1956.
To delve into the details of succession laws it is important to understand the two categories of succession i.e. testamentary succession in which there is a will specifying the desire of the deceased as to passing down of their estate and properties and the second category is non testamentary or intestate succession in which there is absence of will specifying the passing down of property after the death of its owner.
Who is a non-believer Muslim?
A non-believer Muslim is a person who disbelieves in the authority of god(Allah), rejects the guidance of Prophet Muhammad. Kafir is the term in arabic that describes a non-believer Muslim. A non-believer Muslim is however not treated right by the Muslim personal laws which is based on Quranic principles and principle scriptures of the religion.
Succession under Muslim personal laws
The Shariat law that forms the basis of succession laws in muslims has always been a part of controversy, it regulates aspects of marriage, divorce, inheretence and family relations. The Act clearly lays down that in matters of personal disputes, the state shall not interfere and it shall be taken to a religious authority for decission based on Quran and Hadith. The concept of inheretence is rooted in the islamic or Quranic principles enumerated by the Prophet. In the case of Abdul Raheem v. Land Acquisition Officer (1989)[1] where the court held that Muslims do not recognise joint family system in respect to inheretence and after death, the rights, title, interest held stops existing and vests in others.
Non-testamentary succession attracts the Muslim Personal Law(Shariat) Application Act 1937. Where the person dies without a will, succession is goverened by Muslim Law applicable as per Shis and Sunnis. In case where the property is immovable and situated in the states of West Bengal, Chennai, Bombay, the Muslims shall be bound by Indian Succession Act of 1925. This is the only exception in testamentary succession.
Position of women in Muslim Personal laws
There have been many scenarios where the rights of women under this religious Act had conflicts with fundamental rights. The most well-known of them is the landmark case of Shah Bano[2] where 62 year old Shah Bano filed a lawsuit seeking alimony from her former husband. However this raised dissatisfaction in the islamic community who considered it to be against the written rules of Quran. It started a controversy regarding court’s authority to interfere with personal laws.
According to the Muslim Personal Law(Shariat) Application Act 1937, there is no difference between rights of men and women. Both men & women become legal heirs after the death to the inherited property. However, the female heir is only entitled to half of that of male heir. This is because as per muslim law, upon marriage a female receives Mehr and maintenance from her husband whereas males only have the ancestral property. Mehr is the property of women received at the time of marriage from husband. This Mehr is however not inherited. The quantum depends upon husband and can only be claimed by the husband, parents, or guardians of the woman if she transfers it on her own will.
Married women
Upon death of the husband, a muslim widow is entitled to one-fourth of the husband’s property, if she does not have any child. When the widow has children and grandchildren, she is entitled to one-eighth share of the property. When the deceased leaves behind more than one wives, the wives are entitled to one-eighth of his property, in case they have chiildren the property they are entitled to becomes one-sixteenth each. A man who dies without consummating the marriage, the widow has no right to property. If a ill husband gave divorce to his wife and soon dies, the woman has right to a share until she remarries.
Women’s right to property after divorce
Section 125 of the Code of Criminal procedure entails that a divorced woman with a minor child can ask for maintenance from her husband until she remarries. In a contrast, Shariat Law considers accepting or offering maintenance is illegal after divorce whereas the Muslim Women(Protection of Rights on Divorce) Act 1986, which was passed by the Indian Legislature that provides reasonable maintenance to women within the iddat period, amount of Mehr, and child maintenance.
Application of Indian Succession Act 1925 on muslim
In case of non-testamentary succession, the Muslim Personal Law(Shariat) Application Act 1925 gets applied. When a person dies testate i.e. his will is created before death, the inheretance is governed under the Muslim Shariat Law applicable to the Shias and Sunnis
In case where the subject matter of property is an immovable property, situated in the state of West Bengal, Chennai, and Bombay, the muslim shall be bound by the Indian Succession Act 1925, this is the only exception for testamentary succession.
Section 58 of part VI of the India Succession Act 1925 deals with general application. It says that this section applies to all other citizens except muslims. The legality of this section is in another appeal before the Supreme Court. However a non believer muslim somewhat falls in the dilemma as there is not any hard binding provisions designated for them. This absence of any provision for inheriting, even after quitting one’s religious ties is a problematic situation as there is neither secular laws, state laws nor personal laws to protect their interests.
As per the Sharia law, if a person leaver her faith in Islam, he/she will be ousted from the community and therefore they will not be entitled to inheritance right in her parental property. This leaves the non believer Muslims in a pitiable situation.
The recent plea by Kerala based woman
A Kerala based woman named Sufiya PM filed a petition seeking relief and said that she is a non believer muslim and hence should be governed by the secular Indian Succession Act of 1925 in terms of inheritance in place of Muslim Personal Law(Shariat). The woman detailed that her father is non-believer Muslim who puts no faith in the authority of Islam & is a non practising Muslim. She and her widowed father are together taking the responsibility of her brother, who is suffering from down’s syndrome. The petition says that as per the Sharia law, a muslim person can not bequeath more than 1/3rd of his properties by way of will. Therefore as per Shariat law, daughter is only entitled to half of what a son is entitled to as father’s heir. In this case the son would inherit two-thirds of the father’s property and the daughter will get the remaining one-third. Prashant Padmanabhan, the petitioner’s attorney said that in case something happened to the son, the portion would go to father’s cousin than her or her daughter. The petitioner also narrated that there is no proper authority to whom they can go and say that being a non-believer Muslim, they would like to be regulated by the secular Indian Succession Act 1925 in terms of inheritance. Mr. Padmanabhan argued that this state of affairs is a direct violation of fundamental right guaranteed under Article 25 of the Constitution of India. The bench consisted of Chief Justice of India DY Chandrachud, Justice JB Pardiwala, and Manoj Misra. This case accentuates the dire situation of non-believer Muslims[3]
The court regarded this case to have brought up a significant issue that needs clarification. The court questioned how can a secular law not apply to non-believer Muslim and asked attorney general R Venkataramani to provide a legal officer to support the court and sent notice to Union government and state government of Kerala.
Constitutional provisions entangled
Article 25 of the Constitution of India says that all people are equally entitled to the freedom of conscience and the right to freely profess, practice and propagate religion. This means that every individual has freedom in relation to his connection with God. It also includes one’s freedom to have belief or disbelief in faith. This includes not only religious doctrines but also religious rituals. The above mentioned case and alike fate of many non-believers are however in far contrast with this provision. Due to lack of proper provision implementing a non-believer’s desire to not be governed by its personal laws, their rights as per Article 25 of The Constitution of India 1950 is somewhat compromised.
Personal Laws are not regarded as laws as per Article 13 of the Constitution of India and therefore can not be challenged on the grounds of violation of fundamental rights. Many verdicts upheld this rule, one of the major landmark one among them is The Youth Welfare Case[4] In this case the court analysed the judgement of Narasu Appa Case4 & Krishna Singh Case[5] and upheld that non-statutory personal laws are not considered laws as per Article 13 of The Constitution of India 1950 and the personal laws therefore will transcend Fundamenal Rights. Due to these complexities and upholding of fundamental rights, Uniform Civil Code is needed.
Way Forward
1)Uniform civil Code: Uniform Civil Code is the proposal in India to replace the personal laws of different faith with common provision governing each citizen. Since these personal laws are based on customs and history of different religion, they often give way for inequal treatments and distinctions. The uniform civil code proposes to cover subjects of marriage, divorce, inheritance, maintenance and adoption. Article 44 of the Constitution of India that falls under the Directive Principles of state policy entails the provision of Uniform Civil Code as duty of the state to implement. Although its not binding, being a directive principle of state policy, its necessity is felt now more than ever. India being a secular nation, inequalities in personal law hampers equal treatment and creates lack of progress. The Shah Bano Case of 1985[6] created a great controversy and ever since the demand for Uniform Civil Code is on the rise. Goa is the only state to have common family Law and therefore only state to have Uniform Civil Code.
2)Codification of personal laws: Personal laws are mostly uncodified and have their origin in scriptures and texts which give rise to stereotypes and prejudices in their regulation. The government should codify the same inorder to bring to light the bias violations attached to the personal laws and rightly implement without compromising the fundamental rights guaranteed to every person.
3)Needful amendments: Needful amendments should be brought in the Indian Succession act 1925 inorder to address the grievances of people who are not addressed by their personal laws due to any reason. Particularly the people who are non-believers of their original faith.
Conclusion
Indian Succession Act 1925 being a secular legislation should pave way for clear secular provisions regulating people who are non-believer of their faith. Succession and inheritance for Indian Muslims are governed by their respective personal laws based on quranic principles. However when it comes to people who do not believe in its authority, the provisions are ousting and biased. There is a crucial need for proper legislation for people belonging to non-believer in Islam division. Gravity of the circumstances and secularistic principles must be taken into account while legislating for the same cause. The rationale behind the proposed Uniform Civil Code also serves as the basis for a faster resolution in this regard.
[1] Abdul Raheem Khan v. Land Acquisition Officer (1989) https://www.casemine.com/judgement/in/56b4903c607dba348fff9847
[2] Mohd. Ahmed Khan v. Shah Bano Begum 1985(1) SCALE 767; 1985(3) SCR 844; 1985(2) SCC 556; AIR 1985 SC 945
[3] “SC notice to centre on plea of non-believer Muslim Woman seeking to be governed by succession law”, April 29,2024, https://economictimes.indiatimes.com/news/india/sc-notice-to-centre-on-plea-of-non-believer-muslim-woman-seeking-to-be-governed-by-succession-law/printarticle/109701943.cms Accessed on May 25, 2024
[4] Youth Welfare Federation vs Union of India 1996 SCC On line AP 748
[5] State of Bombay vs narasu Appa Mali AIR 1952 Bom 84
[6] Mohd. Ahmed Khan v. Shah Bano Begum 1985(1) SCALE 767; 1985(3) SCR 844; 1985(2) SCC 556; AIR 1985 SC 945
Author: Trishita Ghosh
Juris Centre 