J&K Shariat Act, 2007 Paramount In Nature, Overrides All Customary Laws Within Domain Of Personal Law Matters: High Court

Upholding the order of a lower forum in terms of which it has set aside a mutation done in contravention to the Act Justice Javed Iqbal Wani observed,

“Section 2 manifestly postulate that the Act of 2007 is enjoined upon to apply the Muslim Personal Law in all cases relating to the matters specified therein notwithstanding any customs or usages to the contrary”.

Justice Wani was dealing with a writ petition filed by Ghulam Mohammad Bhat alias Gull Bhat challenging an order of the Joint Financial Commissioner (Revenue) upholding the decision of the Additional Deputy Commissioner, Shopian.

Background of the Case:

The case involved a dispute over the inheritance of landed property by the legal heirs of Satar Rather, who had two children - a son, Ghulam Mohammad Rather (Muma Rather), and a daughter, Mst. Azizi.

After Satar Rather's death, a mutation was attested in 2010, dividing the property equally between Muma Rather and Mst. Azizi. However, Muma Rather challenged this mutation before the Additional Deputy Commissioner, Shopian, claiming that Mst. Azizi was not entitled to an equal share as a daughter under the Act of 2007.

The ADC ruled in favor of Muma Rather, setting aside Mutation No. 538 and ordering a de novo enquiry. This decision was upheld by the Joint Financial Commissioner (Revenue).

Gull Bhat, the legal heir of Mst. Azizi, challenged these orders in the High Court. He argued that Mst. Azizi inherited the property as a "Khana Nisheen Daughter," a customary practice in Kashmir that gives a daughter inheritance rights similar to a son.

The respondents, however, contended that the Act of 2007 superseded all customary laws and that Mst. Azizi's inheritance rights would be determined according to Sharia law, which grants a daughter a smaller share than a son.

Court's Observations and Discussion on Section 2 of the Act:

Adjudicating upon the matter Justice Wani observed that Section 2 of the Act of 2007 clearly states that the Muslim Personal Law (Shariat) shall apply to all matters related to inheritance, notwithstanding any customs or usages to the contrary.

The Court held that Mutation No. 538, attested in 2010 after the enactment of the Act, could not have been based on customary law.

“Although the matter of inheritance qua the landed estate of the original estate holder Satar Rather have had opened immediately upon his death yet the devolution of such inheritance inasmuch as the shares therein have had to devolve upon his legal heirs under the law of inheritance of Muslims.”, the bench remarked.

Acknowledging the pending suit filed by Mst. Azizi's legal heirs claiming her right to inherit as a "Khana Nisheen Daughter." the Court refrained from commenting on this specific claim, stating that it would be decided by the competent civil court.

In dismissing the petition, Justice Wani thus upheld the decisions of the lower forums, citing the correct interpretation of the Act of 2007.

Case Title: Ghulam Mohammad Bhat Alias Gull Bhat Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 100

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