Two Muslim women challenge the Shariat's inheritance law with their two cents

Kozhikode: A family court in Mavelikkara in Alappuzha district ordered a rich Muslim man to provide maintenance to his three-year-old grandchild whose father ended his life in 2020.

The interim verdict was welcomed and animatedly discussed by members of the Forum For Muslim Women's Gender Justice, a collective demanding gender equality in the Muslim Law of Inheritance.

The order by Mavelikkara Family Court judge Hafees Mohammed was received with an element of a pleasant surprise because under the Muslim Law of Inheritance, a deceased person's spouse and children have no inheritance right on the person's ancestral estate. And yet, the court on March 13 asked Kunjumon, a native of Kayamkulam, to take care of his deceased son Mujeeb's three-year-old child.

The petition was filed by Mujeeb's widow Hairunnisa of Muttom in Thodupuzha in November 2020, after Kunjumon ousted her and the child from his house.

"Happy, timely," wrote Ramlath Puthusseri, a lawyer and joint convenor of the Forum, while sharing the piece of news on social media on Saturday.

The same day, the women fighting for equality in the Muslim Law of Inheritance clutched on another straw of hope -- this one from the Supreme Court.

A bench of Justices Krishna Murari and Sanjay Karol admitted a petition filed by Bushara Ali (68) seeking equal share in her deceased parents' estate at Vadakara in Kozhikode. Bushara has 11 siblings -- seven brothers and four sisters. The Subordinate Judge's Court of Vadakara partitioned the estate of Dr Saleem and Suhara --Bushara's parents -- as per the Muslim Law of Inheritance by giving daughters only half the share allotted to sons. The subordinate court estimated that Bushara's share is only 4.82 cents from the total land pool of 124.42 cents. If divided equally among the siblings, she would get around 10 cents.

The Bench-led by Justices Murari and Karol asked the brothers if they are not interested in giving equal shares to the sisters.

To that, Zulfiker Ali P S, representing the brothers, said the partition was done as per the law of the land governing Muslims. The court gave the siblings four weeks to file their affidavits and another two weeks for Bushara to file her reply to the affidavits. The court listed the case after six weeks.

"Usually, the judges rely on religious texts to make observations or dismiss petitions challenging the Muslim inheritance law. But here the judges at least asked a question of equality. We are taking it positively," said Kadeeja Mumtaz, a medical doctor, writer and vice-president of the Forum For Muslim Women's Gender Equality.

Similar, yet so different battles
The cases of Bushara and Hairunnisa might look similar. But in Hairunnisa's case, the Family Court relied on Muslim Personal Law or Shariat to ask the grandfather to take care of his minor grandchild, said her lawyer M Thaha, who retired as a judicial magistrate in 2019.

"Several lawyers did not take up her case assuming that grandfather had no responsibility towards the grandchild. But Muslim Law of Inheritance has provision for it," he said.

Not so much for the widow though, Thaha said. At the time of marriage, Hairunnisa's father had given her 400g of gold ornaments, worth Rs 22 lakh today, and given Kunjumon a cheque of Rs 5 lakh. She has also sought the help of the family court to get her gold ornaments and the money back.

In the interim, the Family Court in Mavelikkara ordered Kunjumon to give Rs 5,000 every month towards the maintenance of the grandchild till the age of 18. "It can vary according to the needs," said Thaha.

The court relied on the 'Sunni Code of Muslim Personal Law - Applied by Courts of Justice in India' compiled by high court lawyer M M Aliyar to order the maintenance.

Quoting from the book, Thaha said grandfathers and great-grandfathers had the responsibility to take care of children who lost their father, or if the father is too poor.

Unlike in secular laws, in Islam, grandchildren will not inherit their grandparents' property if their parents die before their grandparents, like in the case of Mujeeb.

But in Islam, there is a provision to transfer up to one-third of your wealth through a will or wasiyath to non-legal heirs.

"That provision can be used by grandparents to transfer a portion of their wealth to their grandchildren if their children die. In many Islamic countries, it is legally binding on grandparents to use wasiyath and transfer property to surviving grandchildren. But in India, that is not the case," said Thaha.

Bushara's bigger legal question
To be sure, in several Islamic countries, the Shariat has been amended so that sons and daughters may equally share their parents' estate. But that is not the case in India. Bushara might change that.

The Supreme Court is hearing her 'special leave petition' seeking equal share in her parents' estate.

But she has also filed a public interest litigation in the High Court of Kerala challenging the 'discriminating' and 'constitutionally bad' Muslim Law of Inheritance, which gives double the share of daughters to sons.

Bushara Ali is 68 years old and her husband Ali Peringalon is 75 years old. He used to run a private security firm in Mumbai. The aged couple now wants to return and settle in Vadakara, her hometown. But things are messy back home.

Bushara's father Dr Saleem, who used to run Saleem's Nursing Home at Kunhippally near Vadakara, died on April 1, 1981, without dividing his property. He had two plots of 144 cents each.

More than 14 years later, in 1994, Bushara filed a suit in the Court of Subordinate Judge at Vadakara for partition as per the Muslim Law of Inheritance.

In January 1995, the court passed the preliminary decree saying Bushara and the other four daughters were entitled to 7/152 shares; the sons were entitled to 14/152 shares; and their mother Suhara was entitled to 19/152 shares of the estate as per the Muslim Law of Inheritance.

But before the final decree, three important things happened. Her two brothers, Rizwan Ahammed and Iqbal Ahammed gave their shares to the mother in 1999; later, the mother died on July 17, 2010.

Thirdly, the NHAI acquired 63.58 cents from 144 cents in the first plot for widening NH66. The acquired portion included the family's ancestral house, too. Now the family is left with only 80.42 cents.

Later, the government found that the 144 cents in Saleem's second plot was government land or 'poromboke' land. The family gave up 100 cents or one acre to the local body. The family paid the government the market price of 1972 to retain the remaining 44 cents.

Bushara gave up her claim on the second plot of 44 cents, on the condition that she would be compensated in the first plot (80.42 cents) with a piece good enough to build a house.

Given the three important developments, the court should have gone back and drawn up a new preliminary decree, said advocate Bijo Mathew Joy, representing Bushara in the Supreme Court.

But the court, with the help of the Advocate Commissioner, made the required changes to the preliminary decree and passed the Final Decree order on October 6, 2022.

The Final Decree did not consider Bushara's share in the second plot and earmarked only 4.82 cents in the first plot to her, said Advocate Atul Sohan, who represents her in the High Court and the Supreme Court.

The plot is too small and too close to the highway, he said. If she gives up 5m from the highway as required by the NHAI rules, there is no space for a house, he said. Adv Joy said the plot assigned to her is also close to a dumping yard.

These acts of injustice have pushed Bushara to not only challenge the Final Decree but also the Muslim Law of Inheritance.

The high court dismissed her Regular First Appeal (RFA) challenging the Final Decree of partition on the grounds that she did not challenge the Preliminary Decree. But the Supreme Court has admitted her case challenging the Final Decree of the Subordinate Judge in Vadakara.

Bushara's advocate Joy did ask the Supreme Court to tag her case with the Special Leave Petition filed by the Khuran Sunnath Society and gender activist V P Zuhara challenging the Muslim Law of Inheritance. "As of now, the court has not agreed to it. So we cannot second guess the court's thinking," said Joy.

Meanwhile, Bushara's writ petition challenging the Muslim Law of Inheritance is still with the High Court. She has asked the court to declare void the pre-Independence Muslim Personal Law (Shariat) Application Act, 1937, which governs the Muslim Law of Inheritance, because it violates the fundamental right of equality based on gender (Article 15 of the Constitution).

She has also cited Articles 13 (1) and 13 (2) of the

Constitution which say that any pre-Constitution law or part of a law that violates the fundamental rights shall be void, and the government too should not bring in laws that violate the fundamental rights.

"We may try to bring Bushara's public interest litigation to the Supreme Court," said Joy.