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Gender Discrimination in intestate succession under Muslim Personal Laws challenged by a Muslim woman in Kerala High Court
A Muslim woman in the recent case of Bushara Ali v Union of India & Ors. has challenged the right to obey the Muslim Personal Law (Shariat) Application Act, 1937 and the Muslim Personal Law (Shariat) Application (Kerala Amendment) Act, 1963 alleging that it discriminated against male and female Muslim heirs in Kerala High Court.
The Single judge bench of Justice VG Arun recently made this petition to seek direction from state and federal government on petitions seeking declarations that the provisions of the 1937 and 1963 state Acts relating to the extent of discrimination based on sex were invalid.
The petitioner’s father passed away in 1981 leaving behind her mother and her eleven siblings. She has a total of seven brothers and four sisters. Petitioner's father died in 1981, leaving her mother and her 11 siblings-7 brothers and 4 sisters respectively.
In 1994, the petitioner filed an application in the Lower Magistrate's Court claiming her share under Shariat Act, not knowing that Shariat law under the Indian Constitution (Article 13) was invalid as it discriminates between the male and female heirs in the ratio of 2:1 as their shares. Thus, the lower court then issued an interim and final judgment under Shariat law, granting the petitioner only half of the shares allotted to the brothers.
Petitioners have previously appealed to the High Court to challenge the lower court's order, and their prayers for those orders to be rescinded are repeated in the current plea. Further, the petitioner, as aforesaid, contested the validity of Section 2 (1937 Act) and superseded Section 2 of the State Act of 1963 as it violates the provisions set out in Article 13(1) and Article 13(2) of the Indian Constitution which discusses Laws inconsistent with or in derogation of the fundamental rights and Article 15 guaranteeing equality rights.
“The Sharia law applicable to the extent of not giving an equal share to a female compared to a male is void by Article 13 of the Constitution of India,” the plea stated.
The plea will thus be heard after the vacation ends and the court reopens.
