High Court of Kerala dismisses PIL challenging the constitutionality of Shariat Law
The High Court of Kerala vide a recent judgment has dismissed a Public Interest Litigation (PIL) filed seeking a declaration in law that the Shariat law- applicable 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. A Division Bench of the High Court comprised of Chief Justice Ashok Bhushan and Justice A.M. Shaffique dismissed the petition on the ground that the issues raised in the Writ Petition cannot be adjudicated in proceedings under Article 226 of the Constitution of India and that it is for the Legislature to consider the issues raised and frame a competent legislation.
The writ petition was filed among others by a Society, viz., Khuran Sunnath Society stated to be founded for the faithful and correct implementation of Quran.
The petitioners averred 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. They 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 was further pleaded by them that among Shias and Sunnis also there is a distinction regarding succession.
They pointed out that that if a deceased Muslim happens to leave behind 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.
The petitioners submitted that it will lead to brazen discrimination among Indian citizens only on the ground of sex. They further contended 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 was further pleaded in their petition 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. The petitioners averred that Shariat certainly can be made more practicable and workable to adapt itself to the changing needs of the Society and that the 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.
Accordingly they sought a declaration from the Court 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.”
The respondents which included Dr. Subramanian Swamy (appearing as party in person), the All India Muslim Personal Law Board, Union Government and State government among others contended on the other hand that Shariat Law has got statutory recognition which governs Muslim Personal Law and that there was no misinterpretation of Quranic edicts and the Shariat is based on Quranic principles and other law. They also submitted that in any view of the matter the 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.
The Court after scrutinizing the pleadings and grounds urged in the writ petition observed that for modifying the personal law a declaration is sought by petitioners that Shariat Law regarding inheritance of Muslim women violates Articles 14, 15, 19, 21 and 25, and that “these are the issues which are to be taken by the Legislature. The said issues are not the issues which can be adjudicated by this Court in a Public Interest Litigation”.
The High Court of Kerala relied upon the decision of the Apex Court in Maharshi Avadhesh v. Union of India ( Suppl. 1 SCC 713) where the Apex Court considering the prayer of the petitioner in the Writ Petition that the respondents be directed not to enact Shariat Act in respect of those affecting dignity and rights of Muslim Women, observed that those are matters for Legislature.
The following was laid down by the Apex Court:
“This is a petition by a party in person under Article 32 of the Constitution. The prayers are two-fold. The first prayer is to issue a writ of mandamus to the respondents to consider the question of enacting a common Civil Code for all citizens of India. The second prayer is to declare Muslim Women (Protection of Rights on Divorce) Act, 1986 as void being arbitrary and discriminatory and in violation of Article 14 and 15 Fundamental rights and Articles 44, 38 and 39 and 39A of the Constitution of India. The third prayer is to direct the respondents not to enact Shariat Act in respect of those adversely affecting the dignity and rights of Muslim women and against their protection. These are all matters for legislature. The Court cannot legislate in these matters. The Writ Petition is dismissed.”
Placing reliance on the Apex Court’s decision (supra), the Division bench of the Kerala High Court held that “the issues raised in the Writ Petition cannot be adjudicated in proceedings under Article 226 of the Constitution of India in this Public Interest Litigation. It is for the Legislature to consider the issues raised and frame a competent legislation.” Accordingly, the writ petition was dismissed.
Read the Judgment here.