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. --------------------------------------------------------------------------- Also Read: Inadequacies and Errors of Classical Islamic Fiqh - Inheritance Related Calculations --------------------------------------------------------------------------- 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. ---------------------------------------------------------------- Also Read: Inheritance Related Calculations Based On the Quran ---------------------------------------------------------------- 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. ------------------------------------------------------------------ Also Read: India Is Already A Shariah-Compliant State In The Matters Of Marriage, Divorce, Re-Marriage, Inheritance, Court Witnesses, Waqf, Gender Relations ------------------------------------------------------------------ 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 New Age Islam, Islam Online, Islamic Website, African Muslim News, Arab World News, South Asia News, Indian Muslim News, World Muslim News, Women in Islam, Islamic Feminism, Arab Women, Women In Arab, Islamophobia in America, Muslim Women in West, Islam Women and Feminism