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Synopsis

A petition has been filed in the Supreme Court challenging validity of colonial era's Shariat Act, 1937 in matters of marriage, divorce and succession among Muslims, for being violative of Articles 14, 19 and 21 of the Constitution.

Petitioner Sabina, wife of late builder and film financer Yusuf M Lakadawala, filed the plea under Article 32 of the Constitution for the enforcement of her fundamental rights to ensure just and equitable right of inheritance to the estates of her late husband, who died while in jail on September 9, 2021.

She claimed that her rights were denied by virtue of the Muslim Personal Law (Shariat) Application Act, of 1937.

The petitioner sought a declaration that a widow, so too, daughters and mother of a Muslim who died intestate are entitled to an equitable share of the estates, properties and assets of their deceased husband/father/son, as is the case with rest of the communities, Hindus, Christians, Parsis. 

She contended that the Shariat law, in so far as it discriminated between sons on one hand and daughters and widows on the other, such as in the instant case where the share of the son, was 35 percent and that of her was 12.5 percent, was unconstitutional and void, and that she was entitled to an equitable share as was provided in the personal laws of other communities.

The plea also stated that it is a legitimate expectation of the citizens of India and that it is high time to seriously think about bringing in Uniform Civil Code in the backdrop of the development of passing of Women's Reservation Bill on September 18, 2023, as a landmark moment for gender equality, especially in terms of women's political leadership and the same steps are required to be taken by the Parliament to streamline all the respective personal laws and once again the highest judiciary has the potential to trigger or initiate development by directing the lawmakers to contemplate in bringing about parity among men and women in almost all aspects of life keeping in view of the interest of future evolving society.

The petitioner, who also filed a partition suit, claimed her in-laws had taken a plea that going by the Shariat law, she was entitled to only 12.5 percent of the estates of her late husband, while her stepson would have 35 percent and the two step-daughters would have 35 percent of her husband's estates worth hundreds of crores. 

She claimed that she had entered into a marriage with her late husband in 2007 despite being much younger in age on the premise that as his wife and partner, would own and possess the entire estates and properties equally and that in the event of his death 50 percent of the share.

She claimed that her husband could not effectuate the transfer by way of competent documents during his lifetime since he was in jail after being arrested by the Enforcement Directorate. The undue influence exerted by his in-laws was also a handicap, she alleged.

Questioning the validity of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, her plea filed through advocate Usha Nandini V contended that our colonial masters, in their anxiety to retain and perpetuate their rule, resorted to the philosophy of divide and rule, pitting communities against each other. In furtherance of that policy, in the name of reverence to the personal laws of the different communities, it foiled the attempts on the part of social reformers and leaders of the national freedom struggle to bring into existence equal laws for all concerned, her plea stated.

"The policy of the British was wholly questionable, bipartisan and solely intended to perpetuate their vested interest. The British did not make the Shariat applicable to civil and criminal matters. But it allowed the personal laws which are unjust and discriminatory towards women being conferred a statutory recognition in the name of respect for the religious sentiments which was nothing but paying adherence to unjust, anti-women, and conservative views," it contended.

Her plea further stated that she cannot be denied reliefs simply because the Law Commission or the Government is in seisin of the matter. 

"The issue here is one concerning fundamental rights, namely, equal right of inheritance, in other words, to bring an end to discrimination. It is not an issue where the Court is not empowered to grant a declaration because the issue is a matter of legislative policy. The Parliament undoubtedly has the authority, power, nay, duty, to enact a legislation bringing into force equal rights for women in the matter of inheritance, the nomenclature is irrelevant. However, that cannot deter this Court from granting a declaration that women will have an equal right of inheritance and that the Shariat law, to the extent that it denies such a right, is unconstitutional" it said.

Case Title: Sabina Yusuf Lakadawala Vs Union of India