Equal Inheritance Rights: Why Dr Sheena Shukuur Remarried Under Special Marriage Act 1954

A man dedicates himself to working and earning money for his personal benefit, the benefit of his offspring, and the advantage of the family members who would survive him. The wealth thus accumulated by people through their labour should not be taken from the surviving loved ones by some individuals or be seized by those who lack legal power. It should devolve upon the future generation through the right of inheritance. May be this is the intention of Quran when it says –

There is a share for men and share for women, from what is left by parents and those nearest relatives whether the property be small or large – the legal share, the shares are determined by Allah – Quran chapter 4 verse 7

However, with our own concerns about why daughters' shares of inheritance under Muslim law (Sunni) are not equal with sons' shares, we learned jointly about personal laws at the law school. This initial thought process led to more inquiries, such as why the wife receives only a quarter of the husband’s property on his death whereas the husband receives the half of the wife's property on her death. It was even more shocking to realize that if it is a daughter or daughters only for a Muslim, their property will be shared among the brothers on death and that will not happen if there is at least one son. Further if it is a son or sons for a Muslim, they have the absolute right over the property on the death of the parent. 

Inheritance rights for Muslims in India are governed by the Muslim Personal Law (Shariat) Application Act 1937. There are several of categories that have inheritance rights under Muslim Personal Law, the major sources being Quran and Sunnah. Koranic Heirs (Sharers), Residuaries and Distant Kindreds are the first three categories, which determines the immediate successors. Under Sunni Law the Sharers include 1) Husband 2) Wife 3) Daughter 4) Daughter of a son (or son’s son or son’s son and so on 5) Father 6) Paternal Grandfather 7) Mother 8) Grandmother 9) Full sister 10) Consanguine sister 11) Uterine sister and 12) Uterine brother. 

Residuary heirs include son, brother etc., and other distant relatives. The value of their share depends on several and different circumstances. 

The distribution of shares is, nevertheless, subject to a number of restrictions governing the exclusion and inclusion of residues. A daughter who is a Quranic heir will continue to residue with a son and get only half of the son's share. 

In the event you have a son and a daughter, the son will inherit double the share of daughter. If a husband dies without leaving a child, his wife would inherit only one-fourth of the husband's property and if the husband dies leaving children in the wedlock, the wife inherits only one-eighth of the husband's property. Whereas if the wife dies leaving no children, the husband is entitled for half of the property and if there are children left in the wedlock, then the husband inherits one-fourth of wife’s property.

In either case the husband is inheriting double the share of what the wife is eligible for. When a man or women dies without children or parents and leave only sisters and brothers, then the brothers are eligible for double the share of sister. It is the case when a man or women dies leaving father and mother, the father would inherit double the share inherited by the mother. 

If there is only a son, he will be inheriting the entire property of his parents, but if it is a daughter she will inherit only half of the property and rest (half fifty percentage) will be inherited by the brothers of the deceased. If it is daughters only for a Muslim, they will inherit only two-thirds of the property and the property will be shared among the brothers on death and that will not happen if there is at least one son. The children will, not inherit whatever the father would inherit from the deceased, on the death of the father, because a deceased person does not have a right to inherit. 

Our Nikah was solemnized in 1994 in the presence of late Shri. Panakkad Syed Hyderali Shihab Thangal. Our marriage, which was celebrated in accordance with Muslim personal law, was now registered under the Special Marriage Act, 1954 (SMA) on March 8, 2023, which was also International Women's Day. It wasn't a remarriage or a second marriage. It was registering the already solemnized marriage in accordance with Section 15 of the Special Marriage Act of 1954, which permits registration of marriage celebrated in other forms. This marriage registration can be done when -

(a) a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since;

(b) neither party has at the time of registration more than one spouse living;

(c) neither party is an idiot or a lunatic at the time of registration;

(d) the parties have completed the age of twenty-one years at the time of registration;

(e) the parties are not within the degrees of prohibited relationship 

(f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage. 

The Indian Succession Act would be applicable for inheritance if the marriage were registered under the SMA, putting us under general law. Marriage registered under SMA now helps us to make a will (Since the principle is bequeathable one third, it is impossible to bequeath the property by will under the Muslim law).

Some people are adamant that women do not have the right to inherit property and exploit it to their advantage. After the death of their parents, women are typically denied their fair share and often persecuted or emotionally humiliated by their siblings. 

This decision to register the marriage was not aimed at offending any religious beliefs or undermines the morale of believers. The rights and powers of girl in India are protected by way of fundamental rights –

 Article 14 - The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article. 15 -The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

Article 21- No person shall be deprived of his life or personal liberty except according to procedure established by law.

We took care to emphasis that, while being protected by fundamental freedoms and guaranteed rights under the constitution of India from any of such discrimination, Muslim women are denied these rights under the inheritance law of Muslim personal law. This is discrimination and humiliation for daughters/females that they are treated unfairly. We simply intend to make it known to the society.

In terms of income and inheritance, it was more about shattering preconceptions that oppress women. It is nothing, just a regular way of safeguarding the future of our children. Our daughters now feel that they are equal as any daughters who have faith in other religion. We intend to help uphold the confidence of our daughters that, they are as equal as any son in the Muslim community.