Kerala Muslim Woman Challenges Islamic Law of Inheritance
By
Arshad Alam, New Age Islam
31 December
2022
She Is
Pleading That The Shariat Act Of 1937 Violates The Constitution
Main
Points:
1. The
petitioner argues that Islamic law of inheritance is violative of Articles 15
and 13 of the Indian Constitution.
2. Islamic
Sharia law till now apportions half the shares to females as compared to males.
3. Muslims will
make better sense if they do not see this as a grand conspiracy against their
religion.
4. They should
take this an opportunity to start a conversation about reforming their gender
unjust laws.
5. There is a
need to develop an autonomous a-theological discourse around rights within
Islam rather than seeing everything as a command from God.
-----
A Kerala
Muslim woman has approached the High Court challenging the provisions of the
Shariat Application Act 1937 and Shariat Application (Kerala Amendment) Act of
1963, on the ground that they discriminate against male and female intestate
successors. As we know, the question of intestate succession arises when the
head of the family (usually a male) dies without leaving a will. We also know
that the Muslim Personal Law, as enunciated through the Shariat Application
Act, 1937, do not give equal share to males and females within the family; the
share of women being half as compared to that apportioned to men. The petitioner
has urged in her plea that:
“As per
Shariat, female children are discriminated against as against male children,
i.e. the share a female inherits is only half of what a male child inherits.
This is a clear violation of Article 15 of the Constitution of India. The
Sharia law applicable to the extent of not giving equal share to a female
compared to a male is void by virtue of Article 13 of the Indian
Constitution”.
The
petitioner is primarily seeking to challenge the unequal law of Islamic inheritance
which is violative of the general thrust of the Indian constitution which favours
equality between genders. In particular, Article 15 prohibits discrimination on
various grounds including sex and gender and clearly the Shariat Law is
discriminatory on this very ground. Moreover, Article 13 of the constitution
argues that all laws preceding 1950, which are not in harmony with the
constitutional provisions of equality should be reviewed. Thus, the petitioner
has a strong ground on which she is making her case and the High Court has also
agreed to look into the case, but it will be a while when we will know the
outcome of the case.
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Also
Read: Inadequacies and Errors of Classical Islamic Fiqh -
Inheritance Related Calculations
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In many
ways, this challenge was long overdue. There is no denying the fact that Muslim
religious law is discriminatory towards women. And not just in matters of
inheritance but also in terms of divorce, custody of children, etc. That it is
being challenged should not surprise us. Sooner or later, someone would have
done it. There are other challenges lying in various courts of the country and
in time they will be debated too.
An argument
is being made that such cases are coming to court at the behest of the BJP
government in centre. This is a lame accusation. Those having any familiarity
with the Shah Bano affair will agree that Muslim women have been challenging
such discriminatory provisions since decades, even when the ‘anti-Muslim’ BJP
government was not in power. Those who are oppressed by such laws will welcome
help from any quarter; whether from within the community our outside it. Given
the regressive theological sway of the Mullahs within the community, it is
understandable why some Muslim women of late have been demanding the
intervention of the state to rectify some of the blatantly discriminatory
practices of the Muslim Personal Law.
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Also
Read: Inheritance Related Calculations Based On the Quran
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Early in
the 20th century, Muslim women across the subcontinent had property rights
given to them by custom. Women in parts of Kerala, because they came from
matrilineal communities, had enjoyed property rights since centuries. Because
of the reformist currents within Muslims, certain laws, enacted between
1914-1918, effectively curtailed women from exercising their property rights.
The Muslim reformists were basically trying to bring the cultural and social
realities in harmony with the Islamic precepts. In fact, the whole of the
matrilineal system was dubbed as un-Islamic and Muslims were asked to dump this
system in favour of patriliny and patrilocality, as prescribed in the Sharia.
The situation became so hostile for the traditional matrilineal system that at
some places, local Qazis were issuing decrees that any Muslim who did not
advocate for men inheriting property would be labelled as a Kafir. There were
similar customary practices in other parts of the country which invested Muslim
women with some property rights. However, all that was taken away from them
when the demand for an all-India Muslim personal law arose. The Shariat
Application Act of 1937 effectively put a hard stop to such customary rights
and replaced it with a standard Islamic canon.
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But that
was not all. The Act of 1937 excluded Muslim women from inheriting ancestral
agricultural land, which had no justification within the Islamic law. Thus, it
was not just the application of Islamic law which limited women from acquiring
property, but also the attitude of men who grouped together to sideline women
from whatever little the Islamic law had to offer them in terms of agricultural
property.
Defenders
of the Shariat generally argue that since the Islamic legal system is a God
ordained law, hence it cannot be changed by the application of human will. But
this is a flawed argument. Inheritance is a matter of rights of people; it is
not about duties towards the Creator like praying, fasting, etc. The domain of
rights evolves through time, depending on changing morality of the period.
There was a time when child marriage was considered normal in all societies,
including the Muslim ones. But with the passage of time, despite the presence
of scriptural sanction, very few Muslims today are willing to indulge in such a
practice. With time, the morality about what constitutes right and wrong have
changed. So, although the Quran and the Hadis sanction it, Muslims no longer
conform to that because it infringes on the rights of the girl child.
Similarly, allocating half the share of property to women today constitutes
denial of rights of women and hence there is a need to change it.
Muslims
should themselves take the initiative and banish such a discriminatory law from
within their midst.
----
A regular contributor to
NewAgeIslam.com, Arshad Alam is a New Delhi based independent researcher and
writer on Islam and Muslims in South Asia.
URL: https://newageislam.com/islam-women-feminism/muslim-woman-islamic-law-inheritance/d/128762
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