The 68 year old Ayishumma lives in agony for being enmeshed in crippling debt. After the sudden demise of her husband, Hamsakkoya in 2018, Ayishumma has been struggling to make both ends meet by selling snacks in the village. She wanted to dispose the unfinished house and 8 cents of land -the sole estate left by her husband- to settle the bank loan and debts availed from friends and neighbours amounting to 13 lakhs. Ayishumma is heartbroken to know that neither she nor her daughters have full entitlement over the property for her being a Muslim. The Sharia law does not give her complete right over her husband’s property.
According to the Muslim Personal Law (Sharia) Application Act 1937, if a man/woman dies leaving behind only daughters, a share of his properties shall go to his/her brothers and sisters depending upon the number of daughters. If it is only one daughter, her share is half and if there are two or more daughters, their share will be two third. Ayishumma was completely clueless about the law. She came to know about it when she went to the village office to get the legal heirship certificate for proceeding to the sale of the property. She went to the brothers and sisters of her late husband Hamsakkoya and pleaded them to relinquish their rights and to make the property free for sale. They refused.
“I was shocked to know that my daughters and I could not handle the property as we wish. Is it what that Islam says? Do Allah and Prophet do such an injustice to women? I don’t believe. These all are man-made laws” Ayishumma said to Outlook.
Women belonging to all religions had faced discrimination under respective personal laws with regard to marriage, divorce, matrimonial rights, inheritance etc. The amendments from time to time had addressed such discrimination in Hindu and Christian laws, but the discrimination faced by the Muslim women remained untouched since independence.
If the successor of a deceased person is a male, he does not have to share the inherited property with the brothers or sisters of the deceased person. If the successor is a female, she has to share the property with the siblings of the deceased. If a person dies leaving only daughters as his heirs, they are thrown into the mercy of uncles and aunts who may or may not let them enjoy their ancestral property.
According to those who fight against the gender discrimination within the Sharia law, this provision is nothing but a clear violation of Article 14 and 15 of the Constitution that provides equality before law irrespective of caste, class, race and gender.
“There are hundreds of women who suffer from this provision under Muslim Law. There are cases in which the uncles and aunts claim right over the property of their deceased brother if the latter had survived only with daughters. In effect, the wife of the deceased person and their daughters are caught up in legal tangle and the property becomes no use for them," V P Suhara, the President of NISA - a forum for Muslim women’s rights based in Kerala told Outlook. V P Suhara is one the among the petitioners who filed an appeal in the Supreme Court against the 2015 Kerala High Court verdict which dismissed the plea to remove the discrimination meted out to Muslim women in matters regarding inheritance and succession.
If Ayishumma is suffering from debt, there are women belonging to the upper strata of the society who have been deprived of enjoying their ancestral property as they wish. See the case of 26 year old Rubiya hailing from Muvattupzha in Kerala. Rubiya’s father succumbed to Covid in 2020. He is survived by the only daughter Rubiya and she had to go through the agony of litigation filed by her uncle and son just after six months of his demise claiming rights over the property left by Rubiya’s father.
Rubiya’s father, who was a business man, owned shopping complexes and other buildings in Muvattupzha worth around Rs 20 crore. The house where Rubiya lives was registered in her name when her father was alive. His brother claims right over all other properties except the house as the Muslim law gives entitlement to him over the property of his deceased brother. “Islam gives this right for uncles and aunts under the perception that they have the responsibility to take care of the female children, but in my case none of them has ever helped us even when my father was alive” says Rubiya.
Her first marriage was broken and she got married to another person after the demise of her father. “My father’s siblings were not interested in me getting married again. Their only intention was to get a share in the property. My father knew it and he was worried that they would only do harm to me instead of helping me” says Rubiya. Unfortunately, he passed away without entrusting a will and his only daughter is pushed into a long legal battle for her succession rights.
The siblings of a man or woman who has only daughters, having entitlement over his property is a powerful instrument strengthening patriarchy in a family. Sajna’s story is a typical illustration of the same. There are people who are not greedy, but they enjoy asserting the male domination. Sajna has two sisters and no brothers. Her father Mehruf has two brothers. Everything was smooth and fine until the demise of Mehruf. His brothers got along well with them, and the family as a whole had a strong sense of unity.
Sajna’s father Mehruf passed away in 2013 and things turned upside down. “After his demise I went to the village office to get the legal heirship certificate. Then only I realised that my two uncles also have entitlement over the property. I talked to the younger brother of my father and asked him to sign a settlement document to shift the ownership of the property to us. Initially he agreed to do it, but slowly he changed his mind. The elder brother (of Sajna’s late father) also refused to go for a settlement. They keep saying that they do not want a penny from our property. But they would not sign the document” says Sajna.
The reason cited by the brothers of her father was strange. "It is Allah’s decision, hence we don’t want to change it, that’s what they say” Sajna told Outlook. "This is nothing but an assertion of the right of men over the women in the family. They do not want to give a free hand upon the property to women," says Sajna.
A house on seven cents of land, situated on the side of the National Highway in Kozhikode town, is the property that Sajna's father left behind. Considering the current market price, this would value up to one crore. If one of the siblings of a deceased person is not alive, his entitlement over the property is transferred to his son. As far as the aggrieved women are concerned, the situation becomes more complicated as the time passes by. It is quite uncertain for Sajna and her two sisters how long they have to wait for enjoying the assets left to them by their father.
The Muslim women in India undergo discrimination on many levels with regard to inheritance and succession. Under Sharia Law, the estate of a Muslim is not being divided equally among the male and female children. A Muslim woman is entitled only to the half of the share of what her brother gets with regard to the inherited property. In the case of a childless couple, the man is entitled to half the share of the property of his wife if she passes away when he is alive. On the contrary, the wife gets only one-fourth of the estate of her husband in the similar circumstances.
If a Muslim who has only one daughter dies, half of his estate goes to his father. On the contrary, only one-sixth of the property goes to his father if the deceased person has a son instead of daughter.
Women are not the only category of people who suffer discrimination with regard to inheritance and succession under Sharia law. The children of a predeceased son are completely deprived of succession right of the estate of their deceased grandfather. In other words, if a person dies while his father is alive, the spouse and children of the deceased person have no right over the estate of their grandfather.
Interestingly, the law is not the same for Shiya Muslims. If a Shiya Muslim dies leaving only daughters, they get the full entitlement to his/her estate. They don’t have to share it with paternal/maternal uncles or aunts. Hence, the Muslim Personal Law Sharia Application Act of 1937 being practised in India is patently discriminatory not only between Muslim men and women but also between Shiyas and Sunnis.
One approach to get rid of this legal menace in the personal law is to reregister the marriage under the Special Marriage Act of 1954. Many Muslim couples in Kerala have chosen this course of action, but many of them prefer to keep it a secret out of concern for the reaction of the community leaders. Dr Sheena Shukkoor, the director of the legal studies programme at Kannur University, and advocate Shukkoor, a lawyer and actor, chose to do it in public as a gesture of support to the Muslim women who are discriminated.
The couple who have three daughters got ‘remarried’ on March 8, the International Women’s day. "I don’t want my daughters to go and knock the doors of my siblings and wait for their mercy. They need not compromise their dignity for getting the legitimate right over their property," advocate Shukkoor told Outlook.
As far as the Muslim women are concerned, this has been a long and tiring legal battle. A writ petition was filed in the Kerala High Court in 2008 by a couple of organisations such as Quaran Sunnath Society and NISA- the Progressive Muslim Women’s Forum along with a set of individuals who are aggrieved by the Sharia Law. The petition was dismissed by the High Court in 2015 holding the view that an amendment to the Personal Law is the mandate of the Legislature.
A Special Leave Petition against the High Court Judgment was filed in the Supreme Court in 2016. On the notice issued by the Supreme Court on the matter, the All India Muslim Personal Law Board and other respondents filed counter affidavits which the court would start hearing in May 2023.