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

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

The interim ruling was welcomed and animatedly debated by members of the Forum For Muslim Women’s Gender Justice, a collective demanding gender equality in Muslim inheritance law.

The ruling by Mavelikkara Family Court Judge Hafes Mohammed was received with an element of pleasant surprise because under Muslim inheritance law, a deceased person’s spouse and children have no right to inherit the person’s ancestral property. And yet, on March 13, the court asked Kunjumon, a native of Kayamkulam, to take care of his late 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 his house.

“Happy, timely,” wrote Ramlath Puthusseri, a lawyer and joint convener of the Forum, while sharing the news on social media on Saturday.

Forum for Muslim Women’s Gender Rights Vice President Dr. Kadeeja Mumtaz (centre) and joint convener Ramlath Puthusseri (right). Photo: Special Arrangement

On the same day, the women fighting for equality in the Muslim inheritance law grabbed 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 late parents’ property at Vadakara in Kozhikode. Bushara has 11 siblings – seven brothers and four sisters. The Subordinate Judge’s Court at Vadakara divided the estate of Dr. Saleem and Suhara – Bushara’s parents – according to the Muslim law of inheritance by giving daughters only half the share allotted to sons. The subordinate court held that Bushara’s share is only 4.82 cents from the total land pool of 124.42 cents. If she was divided equally between the siblings, she would get about 10 cents.

The bench headed by Justices Murari and Karol asked the brothers if they were not interested in giving equal shares to the sisters.

To that, Zulfiker Ali PS representing the brothers said the partition was done according to 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 his response to the affidavits. The court listed the case after six weeks.

“Usually the judges depend on religious texts to make observations or reject petitions challenging the Muslim inheritance law. But here at least the judges raised a question of equality. We take it positively,” says Kadeeja Mumtaz, doctor, author and writer . deputy chairman of the Forum for Muslim Women’s Equality.

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

“Several lawyers did not take up her case, assuming that the grandfather had no responsibility towards the grandson. But Muslim inheritance law has provisions for that,” he said.

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

Meanwhile, the family court in Mavelikkara ordered Kunjumon to give Rs 5,000 every month to support the grandson till the age of 18. “It can vary according to needs,” Thaha said.

The court relied on the ‘Sunni Code of Muslim Personal Law – Applied by Courts in India’ drafted by Supreme Court lawyer MM Aliyar to order the maintenance.

Quoting from the book, Thaha said that grandfathers and great-grandfathers had the responsibility of taking 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, as 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.

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

“That provision can be used by grandparents to transfer part of their wealth to their grandchildren if their children die. In many Islamic countries, it is legally binding for grandparents to use wasiyath and transfer property to surviving grandchildren. But in India, ie not the case,” Thaha said.

Bushara’s larger legal issues
Indeed, in several Islamic countries the Shariat has been changed so that sons and daughters can equally share their parents’ property. But it is not like that in India. Bushara can change that.

The Supreme Court is hearing her ‘special leave petition’ demanding an equal share in her parents’ estate.

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

Bushara Ali is 68 years old and her husband Ali Peringalon is 75 years old. He previously ran a private security firm in Mumbai. The elderly couple now want to return and settle in Vadakara, her hometown. But things are messy at 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 øre each.

More than 14 years later, in 1994, Bushara filed a suit in the Court of Subordinate Judge at Vadakara for partition under the Muslim Succession Act.

In January 1995, the court passed the interim decree stating that 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 under the Muslim Succession Act.

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

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.

Third, NHAI acquired 63.58 cents from 144 cents in the first plot for widening of NH66. The acquired part also included the family’s ancestral house. Now the family is left with only 80.42 øre.

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 hectare to the local body. The family paid the government the market price in 1972 to keep the remaining 44 cents.

Bushara gave up her claim to 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 made a fresh interim decree, said lawyer Bijo Mathew Joy, representing Bushara in the Supreme Court.

But the court, with the help of the Advocate Commissioner, made the necessary changes in the interim 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 lawyer Atul Sohan, who is representing her in the High Court and the Supreme Court.

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

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

The Supreme Court dismissed her Regular First Appeal (RFA) challenging the final decree of partition on the ground that she did not challenge the interim decree. But the Supreme Court has admitted her case challenging the final decree of the Subordinate Judge in Vadakara.

Bushara’s lawyer Joy asked the Supreme Court to tag her case with the special leave petition filed by Khuran Sunnath Society and gender activist VP Zuhara challenging the Muslim Inheritance Act. “At this point, the court has not accepted it. So we can’t second-guess the court’s thinking,” Joy said.

Meanwhile, Bushara’s writ challenging the Muslim Inheritance Act is still with the High Court. She has asked the court to declare the pre-independence Muslim Personal Law (Shariat) Application Act, 1937, which governs the Muslim inheritance law, as violating the fundamental right to equality based on gender (Article 15 of the Constitution).

She has also cited Article 13, paragraph 1, and Article 13, subsection 2

Constitution which states that any law prior to the constitution or part of a law which violates the fundamental rights shall be void and the government should also not introduce laws which violate the fundamental rights.

“We can try to bring Bushara’s public interest litigation before the Supreme Court,” Joy said.

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