Two Muslim women challenge Sharia inheritance law with two cents | Kozhikode

Kozhikode: A family court at Mavelikkara in Basic Puzha district ordered a rich Muslim man to maintain his three-year-old grandchild, whose father died in 2020.

The interim ruling was welcomed and hotly debated by members of the Muslim Women’s Gender Justice Forum, which calls for gender equality under Muslim inheritance law.

The order by Mavelikkara family court judge Hafees Mohammed was met with happy surprise as under the Muslim inheritance law, the deceased’s spouse and children do not have the right to inherit a person’s ancestral property. And yet the court on March 13 asked Kunjumon, a native of Kayamkulam, to take care of her 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 evicted her and the child from her house.

“Good, topical,” wrote lawyer and forum joint convener Ramlath Puthusseri when he shared the news on social media on Saturday.

Forum for Muslim Women’s Gender Justice Vice President Dr. Kadeeja Mumtaz (center) and Joint Convener Ramlath Puthusseri (right). Image: Special Arrangement

On the same day, women fighting for equality in the Muslim inheritance law grabbed another straw of hope – this Supreme Court.

A bench of Justices Krishna Murari and Sanjay Karol allowed the petition filed by Bushara Ali (68) seeking equal share in the estate of his deceased parents at Vadakara in Kozhikode town. Bushara has 11 siblings – seven brothers and four sisters. The Vadakara sub-judicial court divided the property of Dr Saleem and Suhara – Bushara’s parents – according to the Muslim inheritance law, giving the daughters only half the share given to the sons. The lower court estimated that Bushara’s share is only 4.82 cents of the total land bank of 124.42 cents. If divided equally between the siblings, he would get about 10 cents.

A bench headed by Justices Murar and Karol asked the brothers if they are not interested in giving equal shares to the siblings.

To this, Zulfiker Ali PS, representing the brothers, said that the distribution was done according to the law of the Muslim-dominated country. The court gave the siblings four weeks to submit their affidavits and another two weeks for Bushara to file his reply to the affidavit. The court listed the case after six weeks.

“Usually judges rely on religious texts to make observations or dismiss petitions challenging the Muslim inheritance law. But here at least the judges raised the question of equality. We welcome it,” said Kadeeja Mumtaz, a doctor, writer and author. Vice-president of the Muslim Women’s Equality Forum.

Similar but so different battles
The cases of Bushara and Hairunnisa may seem similar. But in Hairunnisa’s case, the family court resorted to Muslim personal law, or Sharia, to ask the grandfather to take care of his minor grandchild, said her lawyer M Thaha, who retired as a court judge in 2019.

“Several lawyers did not take up his case, assuming that the grandfather had no responsibility for the grandchild. But the Muslim inheritance law includes it,” he said.

Not so much for widows, Thaha said. By the time of the marriage, Hairunnisa’s father had given her 400 grams of gold ornaments, worth 22,000 rupees today, and 5,000 rupees to Kunjumon. He has also sought help from the family court to get the gold ornaments and money back.

For now, the Mavelikkara family court ordered Kunjumon to give Rs 5,000 every month for the maintenance of the grandchild till the age of 18. “It can vary depending on the needs,” Thaha said.

The court resorted to alimony while ordering the “Sunni Code of Muslim Personal Law – Applied by Courts of Justice in India” compiled by Supreme Court advocate MM Aliyar.

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

Unlike secular laws, in Islam, grandchildren do not inherit their grandparents’ property if their parents die before their grandparents, as in Mujeeb’s case.

But in Islam, there is an order to transfer up to one-third of your property through a will or wasiyath to illegitimate heirs.

In Islam, there is an order to transfer up to one-third of your wealth by will or wasiyath to illegitimate heirs. File photo

“Grandparents can use this provision to transfer some of their property to their grandchildren if their children die. In many Islamic countries, it is legally binding for grandparents to use wasiyath and transfer property to their surviving grandchildren. But in India, that is not the case,” Thaha said.

Bushara’s larger legal issue
It is certain that in many Islamic countries the Sharia has been changed so that sons and daughters can share their parents’ property equally. But this is not the case in India. Bushara might change that.

The Supreme Court is hearing her “special leave petition” seeking an equal share in her parents’ estate.

But he has also filed a public interest litigation in the Kerala High Court challenging the “discriminatory” and “constitutionally bad” Muslim inheritance law, which gives a double share of daughters to sons.

Bushara Ali is 68 years old and her husband Ali Peringalon is 75 years old. He ran a private security firm in Mumbai. The aged couple now wants to return and settle in their hometown Vadakara. But things are messed up at home.

Bushara’s father Dr. Saleem, who ran Saleem’s nursing home at Kunhippally near Vadakara, died on April 1, 1981, without dividing his property. He had two plots of 144 cents.

More than 14 years later, in 1994, Bushara filed a suit in court to partition Vadakara under the Muslim Inheritance Act.

In January 1995, the court issued a preliminary decree that Bushara and the other four daughters were entitled to 7/152 shares; sons received 14/152 shares; and their mother Suhara was entitled to a 19/152 share of the estate under the Muslim Inheritance Act.

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The cases of Bushara and Hairunnisa may seem similar. But in Hairunnisa’s case, the family court resorted to Muslim personal law, or Sharia, to ask the grandfather to take care of his minor grandchild, said her lawyer M Thaha. Photo: Canva

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

Third, NHAI got 63.58 cents out of 144 cents for the first widening of NH66. The acquired part also included the family’s ancestral house. Now the family has only 80.42 cents left.

Later, the government found that 144 cents of Saleem’s second plot was government land or “poromboke” land. The family handed over 100 cents or a hectare to a local entity. The family paid the government the 1972 market price to keep the remaining 44 cents.

Bushara waived his claim for the second plot for 44 cents on the condition that he be compensated with a piece sufficient to build a house on the first plot (80.42 cents).

Given the three important developments, the court should have gone back and drafted a new preliminary ruling, said lawyer Bijo Mathew Joy, who is representing Bushara in the Supreme Court.

But the court, with the help of the Advocate Commissioner, made the necessary changes in the preliminary order and passed the final order on 6-10-2022.

The final decree did not take into account Bushara’s share in the second plot and allotted only 4.82 cents to him in the first plot, said lawyer Atul Sohan, who is representing him in the High Court and Supreme Court.

The lot is too small and too close to the highway, he said. If he gives away five meters from the highway as required by NHAI rules, there will be no space for the house, he said. Adv Joy said the plot allotted to him is also close to the landfill.

These unjust actions have led Bushara to question not only the final decree but also the Muslim inheritance law.

His regular first appeal (RFA) challenging the partition order was dismissed by the Supreme Court as he did not challenge the preliminary decree. However, the Supreme Court has accepted his case challenging the decision of the lower judge in Vadakara.

Bushara’s lawyer Joy requested the Supreme Court to list her case in the special leave petition filed by Khura Sunnath Society and gender activist VP Zuhara challenging the Muslim Inheritance Act. “Right now the court hasn’t agreed to that. So we can’t second-guess the court’s thinking,” said Joy.

Meanwhile, Bushara’s writ petition challenging the Muslim Inheritance Act is still pending in the Supreme Court. He has asked the court to declare the pre-independence Muslim Personal Law (Shariat) Implementation Act, 1937, which governs the Muslim inheritance law, null and void as it violates the fundamental right to gender equality (Article 15 of the Constitution).

He has also quoted Article 13(1) and Article 13(2) of the Act

A constitution which says that a pre-constitutional law or part of a law that violates fundamental rights is void, and the government is also not allowed to introduce laws that violate fundamental rights.

“We may try to take Bushara’s public interest litigation to the Supreme Court,” Joy said.

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