W.P.(C). No. 31299 of 2008 (S). Case: Khuran Sunnath Society and Ors. Vs Union of India and Ors.. High Court of Kerala (India)

Case NumberW.P.(C). No. 31299 of 2008 (S)
CounselFor Appellant: K. Ramakumar, Sr. Adv. and J.R. Prem Navaz, Adv. and For Respondents: P. Parameswaran Nair, ASG of India and N. Nagaresh, Assistant Solicitor General
JudgesAshok Bhushan, C.J. and A. M. Shaffique, J.
IssueCode of Criminal Procedure, 1973 (CrPC) - Sections 125, 127, 127(3)(b); Constitution of India - Articles 13, 14, 15, 19, 21, 226, 25, 26, 32, 38, 39, 39A, 44; Indian Succession Act, 1925 - Section 118; Muslim Personal Law (Shariat) Application Act, 1937 - Section 2
Judgement DateJuly 02, 2015
CourtHigh Court of Kerala (India)

Judgment:

Ashok Bhushan, C.J.

1. This Writ Petition filed as a Public Interest Litigation prays for the following reliefs:

(a) To declare that the practice now followed by the Muslims based on Shariat, which is a Law under Article 13, in regard to inheritance of Muslim women is violative of Articles 14, 15, 19, 21 and 25 of the Constitution of India and therefore, void and unenforceable.

(b) To issue such other writs, orders or directions as this Honourable Court may deem fit and proper in the circumstances of the case.

2. Writ Petition has been filed by several petitioners. The 1st petitioner claims to be a Society, viz., Khuran Sunnath Society founded for the faithful and correct implementation of Quran. The 2nd petitioner claims to be an Organization working mainly for the prevention of certain practices which are discriminatory and particularly against women. The 3rd petitioner is a Muslim by birth, a citizen of India and resident of Kerala who has only two daughters. The 4th petitioner is also a Muslim by birth who has three daughters. The 5th petitioner is the President of an Organization, viz., 'NISA', a progressive Muslim Women's Forum.

3. Petitioners plead in the Writ Petition that the Shariat law which is applicable with regard to succession in Muslim Community is based on misinterpretation of various Quranic principles. It is pleaded that there is discrimination on the ground of sex in so far as inheritance is concerned regarding females in Muslim Community, i.e., a female child does not get equal share to male child born to Muslim father. A female child gets less share as compared to her brother. Petitioners submitted that the misinterpretation of holy Quranic edicts as now practiced in India leads to patent discrimination against female children alone, while the sons who succeed to their mother's or father's property need not share any portion of the inherited properties with anyone of the deceased's relatives other than spouse and parents of the deceased. It is further pleaded that among Shiyas and Sunnis also there is a distinction regarding succession. It is pleaded that if a deceased Muslim happens to leave only daughters, those daughters will not get a share equivalent to that of the share she would get if she was a male and will have to share the properties along with not so close relative of the deceased. At the same time if the deceased leaves only a male child, he takes the entire property needing to share it only with the spouse and parents of the deceased. It is submitted that it will lead to brazen discrimination among Indian citizens only on the ground of sex. Petitioners further submitted that Muslim Scholars and legal experts have always given opinion that the Shariat law is not immutable and should receive change contextually responsive to social needs. It is further pleaded that various Muslim Countries including Pakistan, Egypt, Malaysia, etc., have introduced legislation to implement the true Quranic principles by changing the law on various subjects. It is further submitted that religious practices cannot be altered, Shariat certainly can be made more practicable and workable to adapt itself to the changing needs of the Society. Petitioners submitted that inequality meted out to women among Muslims in the matter of inheritance and succession will have to be removed and they should be given equal right in terms of the great constitutional principles under Articles 14, 15 and 25 of the Constitution of India. It is pleaded that Muslim Personal Law as followed in the present day carries discrimination based on gender in the matter of inheritance which cannot have the acceptance of the constitutional principles enshrined in Articles 14, 15, 19, 21 and 25 of the Constitution of India. On the aforesaid pleadings petitioners have filed the Writ Petition.

4. In the Writ Petition counter affidavits have been filed by the respondents including counter affidavit by the Union of India, State of Kerala, Muslim Personal Law Board and other respondents. Respondent pleads that for succession and inheritance Muslims are governed by their Personal Law. Reference has been made to the enactment, Muslim Personal Law (Shariat) Act No. 26 of 1937. It is submitted that the said Shariat Law has got statutory recognition which governs Muslim Personal Law.

5. In the counter affidavit filed by some of the respondents it is submitted that there is no misinterpretation of Quranic edicts and the Shariat is based on Quranic principles and other law. It is submitted that in any view of the matter this issue cannot be entertained in a Public Interest Litigation and it has to be left to the wisdom of Legislature which is competent to enact law on the subject.

6. We have heard Shri K. Ramakumar, learned Senior Advocate, Shri N. Nagaresh, Assistant Solicitor General of India, Shri P.K. Ibrahim, and Shri M.R. Hariraj.

7. Before we proceed to consider the submissions of the learned counsel for the parties, it is useful to refer to certain portions of the pleadings in the Writ Petition to know as to on what basis and grounds petitioners have prayed for the reliefs sought.

8. In paragraph 5 the following is pleaded:

The petitioners respectfully submit that the misinterpretation of holy Quranic edicts, as now practiced in India leads to patent discrimination against female children alone, while the sons who succeed to their mother's or father's property need not share any portion of the inherited properties with anyone of the deceased's relatives other than spouse and parents of the deceased.

In paragraph 6 the following is pleaded:

This it is submitted is patently discriminatory as there is discrimination not only between men and women but also between Shiyas and Sunnis in the implementation of the Shariat, which it is respectfully submitted is a clear deviation from the Quranic principles. The practice currently followed among large sections of Muslims in India is that if it is a daughter she has to share the property with...

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