The Supreme Court of India.
Credit: PTI File Photo
New Delhi: The Supreme Court on Monday decided to examine if an ex-Muslim would continue to be governed by the Muslim personal law, the Shariat Act of 1937, or by the secular laws of the country in matters of succession.
A bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra issued notice to the Union government on a writ petition filed by a Kerala woman Sofiya PM, saying it was an important question.
After hearing her counsel Prashant Padmanabhan, the bench asked the Attorney General for India R Venkatramani to nominate a law officer to assist the court.
“You want to get a declaration that you won’t be governed by Muslim Personal Law. You do not have to seek that declaration because the Section 3 of the Shariat Act says unless you make a declaration you will not be governed by the personal law in matters of wills, adoption, and legacies. If you do not make a declaration, your father hasn’t made a declaration, they are not governed by the personal law," the bench said.
The bench, however, added that there is a problem, because if you do not make a declaration there is still a void that the secular law does not apply.
The counsel said when his client exercises her free choice or the right not to believe, she should not be governed by the personal law.
At the out, the bench expressed its reservation to entertain the petition, saying as long as the person making the will does not make a declaration under Section 3 of the Muslim Personal Law (Shariat) Application Act, 1937, they will not be governed by the Act.
However, Padmanabhan insisted that the petition raised an important issue which required the court's attention.
"While reading the petition, we thought what kind of a petition is this but the court’s see an important point. We will issue a notice,” the bench told the petitioner’s counsel.
The petitioner sought a declaration that the persons who do not want to be governed by the Muslim Personal Law must be allowed to be governed by the secular law of the country, viz, the Indian Succession Act, 1925 both in the case of intestate and testamentary succession.
The plea said petitioner, a born Muslim woman to a non-practising Muslim father, who has not officially left the religion, is facing the peculiar problem in protecting her precious civil rights.
The petitioner is the general Secretary of Ex-Muslims of Kerala.
In India any person who is born as a Muslim is governed by the Muslim Personal Law (Shariat) Application Act, 1937.
“As per Sharia law, the person who leaves her faith in Islam, will be ousted from her community and thereafter she is not entitled for any inheritance right in her parental property. Further, the petitioner is apprehensive about the application of the law in the case of her lineal descendant, her only daughter, if the petitioner officially leaves the religion,” the plea said.
The plea said the petitioner wished to get a declaration that she shall not be governed by Muslim Personal Law for any of the matters listed in section 2 or 3 of the Muslim Personal Law (Shariat) Application Act, 1937, but there is no provision either in the Act or in the Rules wherein she can obtain such a certificate.
“This is a clear vacuum in the statute which can be plugged by judicial interpretation. As of now, the petitioner will not be governed by the secular laws of the country, viz, the Indian Succession Act, 1925 even if she officially gets a no-religion, no-caste certificate from any authority,” her plea said.
The petitioner said her precious fundamental rights under Article 25 are made meaningless by the absence of such a protection from the state.