Shariat inheritance law: The million (muffled) mutinies in Muslim homes

Kozhikode: On International Women’s Day (March 8), a couple married for 28 years will register their marriage under the Special Marriage Act of 1954. The couple, senior advocate C Shukkur and Sheena Shukkur, Head of the Department of Law at Kannur University, are doing it not to renew their vows or relive their wedding memories but to overcome the Muslim Law of Inheritance, which they say is discriminatory and humiliating for girls and women.

"Registering our marriage under the Special Marriage Act is the only way we can ensure our three daughters are not humiliated after we are gone," says Adv Shukkur, who played 'Shukkur Vakkeel' in Nna Thaan Case Kodu (Sue Me), a courtroom satire.

The Shukkurs are among the growing number of Muslim couples who are signing up for the secular Special Marriage Act to bypass the Muslim Law of Inheritance, which is based on Islamic principles of Shariah Law and governs the distribution of a deceased person's assets among their heirs. It is widely held to be discriminatory towards women as it gives them a lesser share of inheritance compared to male heirs, who could also be paternal uncles or their sons.

The Muslim Law of Inheritance also requires women to get the consent of male relatives, sometimes distant relatives, to claim the insured money after the death of their husbands in a road accident, or claim compensation from the government after a natural disaster. Often, they don't get consent until they agree to share the money or asset with their relatives, say gender activists.

When a Muslim couple registers their marriage under the Special Marriage Act of 1954, they cease to be Muslims for purposes of inheritance.

The inheritance of the estate of such Muslims will be governed by the Indian Succession Act 1925, which does not distinguish between sons and daughters, wives and husbands, and parents. Property is divided equally among them. In the case of the Shukkurs, their three daughters would inherit 100 per cent of their estate now.

Had Adv Shukkur left it to the Muslim Law of Inheritance, his three daughters would be entitled to only two-thirds of their estate. The remaining one-third would go to his brother under the assumption that he ought to "protect" his sibling's daughters.

"So my brother would get 33.33 per cent and each of my daughters would get 22.22 per cent of our estate. They would need my brother's permission even to sell our car or change its ownership," he says.

Under Muslim law, Shukkur's children are entitled to two-thirds of the estate because he has more than one daughter. "If I had only one daughter, she would get only half of my estate. The other half would go to my brother," he says. If his only child were a boy, he would inherit all.

If he had a son and a daughter, the son would get double the share of his daughter.

Parents are legal heirs in both succession laws, but in Muslim law, distant relatives also come into the picture, with male relatives sometimes cornering larger shares, he says.

If a husband dies childless, the wife would get only one-fourth of his estate. If he has children, his wife would get only one-eighth, under the Muslim Law of Inheritance. On the contrary, if the wife dies childless, her husband would get half of her property. If she has children, the husband would still get one-fourth of the property, and the rest would be divided among the children, but not equally. Sons would get more than daughters.

Shukkur and Sheena's daughters are aged 25, 21, and 14 years. "We raised them as independent and equal citizens. We cannot think of them being dependent on others for what is their right," he says.

At least two wealthy Malayali businessmen, who have only daughters as their offspring, have taken refuge under the Special Marriage Act to save their daughters from the Muslim inheritance laws, he says. Some politicians and religious teachers publicly defending the Muslim Law of Inheritance also use the Special Marriage Act to protect the interest of their daughters, said Adv Shukkur.

For a Muslim born in India, there is no other way to opt out of the Muslim Law of Succession, which is listed under the Muslim Personal Law (Shariat) Application Act passed in 1937. "No Muslim born in India can escape the discriminatory laws of succession governing their lives," Shukkur says.

Robbing a daughter's rights

Not many ordinary Muslims are aware of these laws, which are often used by relatives to appropriate their parents' assets, says Rubiya Sainudheen, a 26-year-old single child and resident of Muvattupuzha in Ernakulam district.

Her father C H Sainudheen, a wholesale lottery agent, died of Covid on November 30, 2020. He left behind a few commercial buildings and two houses for his ailing wife and daughter.

Six months after Sainudheen's death, his elder brother filed a civil suit in Muvattupuzha court seeking a property worth Rs 6 crore, citing the Muslim Law of Inheritance. If a deceased man is survived by a single girl child, she is entitled to only 50 per cent of his property. His brother is entitled to the other half.

"I was shocked. I did not know of such a law. I took it for granted that my father's property belongs to me. Is this not India?" says Rubiya, a BCom graduate.

She is particularly riled because her uncle, who is also her neighbour, did not bother to take care of her and her mother, an acute kidney patient, when they were in quarantine after her father's death.

Rubiya was then a divorcee and engaged with Shuhaib Karippakattil Thaha (30), an airport manager in Dubai and a native of Fort Kochi. "Shuhaib's mother brought us food from Fort Kochi. Our uncle did not even bother to check on us," she says.

"But he wants a property worth Rs 6 crore on which there is no liability. I have no intention to give in to his demand. I have hired a good lawyer to fight the case," she says.

Shuhaib, now married to Rubiya, says he had ignored his wife's opposition and tried to talk the paternal uncle out of it. "But he refused to budge saying he is entitled to the share in Sainudheen's assets," he says.

The uncle is well-off. He and his son own commercial buildings in Muvattupuzha.

If Rubiya were Sainudheen's son, the uncle would not be eligible to make this claim, says Adv Shukkur, a former public prosecutor in Kasaragod.

"Once the uncle gets his share from Sainudheen's assets, the entire share will go to his son when he dies. Rubiya will have no right on it," he says.

Rubiya says she raised the matter with her mosque committee. "The mahal committee members support my uncle," she says. They are exploiting Islamic laws, says Shuhaib. "The political parties and leaders will not support us because they care only about votes," he says.

Rubiya's family has an ustad, a religious teacher. He has two daughters and did not know that they were entitled to only two-thirds of his estate. "So when my uncle filed a case against me, the ustad got time to transfer his property to his two daughters," she says.

Relatives troop in after husband dies

Not everyone gets the time like the ustad. Entrepreneur Ashmal S S* and Mubera*, a doctor, fell in love and got married in 2009.

The young couple shifted to Kozhikode, 55km from their village. Mubera started practising in the city. Ashmal started his first venture in January 2010. He went on to start several businesses, prominent among them were a supermarket and a restaurant. The happy couple loved travelling. They became parents to a boy and a girl.

In March 2021, Ashmal was diagnosed with colon cancer.

On October 17, 2021, on their son's 10th birthday, Ashmal was stretched into the 'chemo room'. That was Ashmal's last journey. He was 39.

Soon, Ashmal's brother flew in from Dubai and took charge of the supermarket and restaurant. Ostensibly, he is standing in for his aged parents, who are also the legal heirs of Ashmal's estate.

According to the Muslim Law of Inheritance, Ashmal's father and mother will inherit one-sixth, of each, of his estate. That is, the parents will together control 33.34 per cent of businesses.

Mubera, as his widow, is entitled to only one-eighth or 12.50 per cent of his estate. The son, now 11 years old, is entitled to 36.11 per cent of the estate, and the daughter, now seven years old, is entitled to only half of what her brother gets, which is 18.06 per cent.

In reality, the brother-in-law edged Mubera out from the day-to-day management of the businesses. He gives her money every month according to the share determined by the Shariat.

Mubera is miffed. "Both my son and daughter go to the same school and have the same expenses. I treat them equally. How can they slash my daughter's share to half of my son's?" she says.

Mubera, a fiercely independent woman, does not want others to run her husband's businesses. "But men make the rules and they decide only males can handle businesses," she says.

Soon after Ashmal's death, he won the lot for KSFE's chit prize money. Mubera wanted the money to settle Ashmal's liability. But she had to plead with her father-in-law to give consent to withdraw the money.

Ashmal started the businesses on his own by partnering with his friends and borrowing money from banks. He did not take money from his parents or his brother.

Back then, the brother-in-law was running a successful business in Dubai. He has exposure to the world. He is well-off. Yet, he wants to financially control Mubera and her children.

And when the father-in-law and mother-in-law die, their 33.34 per cent stake will go to their son who is alive, but not to Mubera and her children because the predeceased son is not considered a legal heir.

Mamukkoya's play told Mubera's story 50 years ago

In the 1960s, educationist and social reformer C N Ahamed Moulavi (1905-1993) wrote a play called 'Manushyan' or 'Man'. Actor Mamukkoya played a key role in the drama that critiqued the Muslim Law of Succession, particularly the section that denies the spouse and children of a deceased person the right to inherit his or her ancestral estate.

"We could stage the play only once I think," recalls Mamukkoya. "It faced a lot of resistance saying it was questioning the religion," he tells Onmanorama.

In the play, the protagonist was ailing from tuberculosis and was staring at an imminent death. He had a wife and four children. He knew if he died before his father, his children, and his wife would be deprived of his share of his father's property. Only, living children are considered for inheritance, according to the Muslim Law of Succession.

So, the man killed his father and courted arrest. He told the judge that he was saving his children from beggary. "I snuffed out an old life to save several lives," the protagonist told the judge. "Was I wrong in doing that?" The court had no answer.

More than 50 years after the play was written, Mamukkoya's anger against the discriminatory rules has not subsided. "What kind of rule is that? They are made by greedy men to usurp the inheritance rights of the dead," the 76-year-old actor tells Onmanorama.com during a phone conversation.

"You are throwing your grandchildren under the bus because their parents are not alive. Everybody knows it is an injustice to grandchildren," he says.

And if the deceased person has only one daughter, they would not give "the full property" to her. "Such rules cannot be in the religion," he says.

'Why should I fall at my uncle's feet?'

Mashood K*, who retired as an Arabic teacher from a government higher secondary school in Kozhikode, died in 2012. He was survived by three adult daughters and an elderly wife. They have a small house on a 6.5-cent plot at Nadakkavu, a commercial area in Kozhikode city.

As Mashood's two daughters have houses, they decided to give the house to their sister Sabirah A V* (45), a yoga teacher.

But when Sabirah applied for the legal heir certificate, a document needed for changing the ownership of property, she was shocked to see the name of her father's brothers on it.

The village officer explained to her that according to Muslim Personal Law, the father's brothers are legal heirs when he has only daughters as children.

Sabirah could not believe it. But the officials told her that it was only a technicality and she could transfer the house to her name if she gets written consent from her uncles. Easy, she thought.

Now for the past 10 years, she has been trying to get her uncles to give up their "right" to the house.

"My mother wants me to be humble, be subservient and fall at their feet to convince them. But why should I? This is my father's house," she says, not hiding her indignation.

She neither has the support of her family nor the social capital to take on her uncles. She has no money to go to court, either. Even if she does, the law may not be on her side.

"Last week, too, I held talks with my uncles. They said I can live in the house but will not give up their right to the house," she says.

"The fact is they don't have any right on the house," she says. "My father bought this plot and house with his savings in 1991 when Nadakkavu was a small residential area."

Sabirah says her uncles are well-settled and have houses in Kozhikode city. Their one son is running a business in Dubai, another one is in the IT sector in Bengaluru and another one is in the renewable energy sector.

"Yet, they are eyeing my father's house because of its location," she says.

Sabirah wants to settle the matter soon because once the uncles are gone, their children will also have a claim on the house, making her life more complicated.

High Court passes the buck to govt, the govt to community leaders

In 1986, six years after K K Abdul Ali Moulavi retired as an Arabic school teacher, he registered his marriage with M C Rabia under the Special Marriage Act of 1954. "We did that because we saw how the government ditched Muslim women after the Shah Banu case," says Abdul Ali, who has two daughters.

After studying inheritance law, he wrote 'The Muslim Law Of Inheritance - A Comprehensive Study' (Muslim Pinthudarchaavakaasha Niyamam - Oru Samagra Padanam).

The book lists around 30 combinations and permutations of legal heirs in which female Muslims are discriminated against by the Muslim Law of Inheritance.

"I have two daughters and did not want them to lose their rights to the Muslim Law of Succession. The government will always succumb to community leaders," he says.

Abdul Ali Moulavi was referring to the Muslim Women (Protection of Rights on Divorce) Act brought in by the Rajiv Gandhi government in 1986 to nullify the Supreme Court ruling which ordered Shah Bano's divorced husband, Mohammed Ahmad Khan, a known lawyer in Indore, to provide her maintenance.

According to the Muslim Personal Law or Shariat, divorced men need to provide maintenance to their former wives only during the period of 'iddat', which is usually three months when women wait and are not supposed to remarry. Shah Bano was 70 years old in 1986.

Then Chief Justice of India Y V Chandrachud -- the present chief justice D Y Chandrachud's father -- upheld the decision of the High Court that ordered Ahmad Khan to provide maintenance to Shah Bano saying "morality cannot be clubbed with religion". The five-member bench of the Supreme Court had increased the maintenance.

But the Rajiv Gandhi government overturned the verdict with the new law, which said the magistrate could direct the Wakf Board to provide sustenance to the divorced women and her children.

Despite the setback faced in the maintenance law, Ali Moulavi's wife M C Rabia, gender activist V P Zuhara and three others filed a joint petition challenging the gender discrimination in Muslim Laws of Succession in the High Court of Kerala in 2008.

Rabia succumbed to cancer in 2010. But like the judge in Mamukkoya's play 'Manushyan', the Kerala high court too did not give an answer.

After taking another five years, the then chief justice Ashok Bhushan and justice A M Shaffique dismissed the petition in 2015 saying "it is for the legislature to consider the issues raised and frame a competent piece of legislation".

It is revealing what the Union government said in its affidavit filed before the high court. The government said it will not 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" and "there is no such demand from the community concerned".

The government also said that "the right of inheritance of women and the share determined in their favour are based on various considerations, prominent among them is the 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 recognized in Islamic law".

The All India Muslim Personal Law Board (AIMPLB); the Indian Union Muslim League, through its leader K P A Majeed; Jamaat-e-Islami Hind though Justita; Kerala Nadvathul Mujahideen (KNM), a progressive organisation; Kerala Muslim Jamaath Council; and the two factions of Samastha Kerala, apex bodies of Sunni clerics, have all opposed the petition.

Scholars defend the inheritance law

British India introduced the Muslim Personal Law (Shariat) Application Act in 1937. Section 2 of the Act says Muslim Personal Law will be applicable to Muslims in India on 10 subjects including intestate succession, special property of females, marriage, dissolution of marriage, and maintenance.

But Section 3 of the Act says that those who desire to obtain the benefit of Section 2 should submit their declaration in the prescribed form. "And thereafter the provisions of section 2 shall apply to the declarant and all his minor children and their descendants...," it says.

But in reality, all Muslims -- whether they agree with the Muslim Law of Inheritance or not -- are subjected to the law, says Adv Shukkur.

On March 2, popular Islamic scholar and televangelist M M Akbar wrote a long post on Facebook slamming the "sisters who release pamphlets" against the inheritance laws.

He equates those who oppose the inheritance laws to critics of Islam, and says "the majority of Muslim women and men living in India are satisfied with the responsibilities and rights provided by the Islamic Sharia".

He justifies the shares given to deceased parents' siblings saying it will make them more conscious and aware of their responsibility of protecting the "orphans".

Adv Shukkur says the 'so-called pious Muslims' may follow Shariat while dividing their property. "But it should not be thrust on non-consenting Muslims who want a secular inheritance law that treats sons and daughters equally," he says.

Today, many Muslims either take the recourse of the Special Marriage Act or transfer their assets to their daughters and sons. "That proves that the Muslim Law of Inheritance is outdated and inadequate," he says. But only living spouses can make use of the Special Marriage Act. "That is not the solution we want," he says.

Indian Union Muslim League's Kannur district committee member and lawyer K P Munas blames the discriminatory inheritance law on the patriarchal or male interpretation of the Quran. "Ordinary people should not interpret the Quran," he says. The golden rule of interpretation of the law is to keep in mind the best interest of its beneficiary, he says. Here, the beneficiaries should be children and women. "Islam cannot be about promoting inequality and injustice," says Adv Munas, who has two daughters.

The wheels of justice stuck in time

The petitioners seeking equality in inheritance law moved the Supreme Court in October 2015, four months after the Kerala High Court dismissed their petition. Abdul Ali Moulavi impleaded for his deceased wife M C Rabia.

"If the Supreme Court rules in our favour, V P Zuhara will be considered the Mary Roy of the Muslim community," says Mubera, the Kozhikode-based doctor who lost her husband to cancer. "She is fighting our fight," she says.

Zuhara, president of Nisa, a forum for Muslim women in Kozhikode, says the petition before the Supreme Court has two key demands. "One, sons and daughters should be treated equally when it comes to inheritance. It is a fundamental right enshrined in the Constitution for all citizens of India. Two, spouses and children of deceased persons should be considered as legal heirs while dividing their ancestral estate," she says.

The problems faced by women are manifold because of the discriminatory Shariat laws of inheritance, she says. "If a Muslim person dies in a road accident, their spouse cannot claim the insured amount without the consent of the legal heirs decided by Shariat," she says.

Female Muslims face the same problem while claiming compensation from the government in the case of a natural disaster or after giving up land for public projects such as road widening. "Women have to share the compensation with their distant relatives as per Shariat. If they don't agree, the men will not give their consent," she says.

Zuhara says she moved the court after coming across hundreds of such complaints. "We submitted petitions to political parties and political leaders, including Sonia Gandhi. We got no response. The governments talk to male religious leaders and are happy to get their response saying the Shariat is not discriminatory. And they file that in their affidavits to the courts," she says.

Zuhara is not restricting her fight to the courts. She and like-minded women have formed the Forum For Muslim Women's Gender Justice and are conducting awareness programmes in schools and colleges and public spaces.

One point the speakers highlight in the meetings is that they want equality specifically in inheritance law and are not rooting for a Uniform Civil Code.

It is a long fight. The petition filed in the Supreme Court was registered after more than five month in April 2016. The case was last listed before a bench on May 10, 2018, and is tentatively listed for the next hearing on March 14, this year.

"We must be fighting this fight for our daughters who are yet to be born," says Zuhara.

* Names changed on request