“My only sin is that I gave birth to three daughters,” says Ayshumma. The 50-something-year-old Muslim woman from Kerala has been struggling for years to access her share of her late husband’s property that she and her daughters are entitled to. When her husband passed away, all Ayshumma had was her young daughters and an unfinished house that he was building for the family. Riddled with debt and no place else to go, she decided to avail a loan and complete the construction of the house so that she could sell it for a better price. She hoped to use the sale amount to pay off her debts and buy a smaller house. But according to Muslim Personal Law, her husband’s siblings also have a claim to his property, because he had only daughters and no sons.
Ayshumma has been entangled in a long and tortuous legal battle ever since because her husband’s family refused to allow her to sell the house and property, of which they too are now owners. “My debt has multiplied, and I am now forced to either pay up the piling loan instalments or have the house and the property – my only security – attached,” she tells TNM.
Like Ayshumma, Muslims in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937, which deals with marriage, succession, and inheritance among Muslims. According to this law, if a person dies leaving behind only daughters and no sons, the daughters are entitled to inherit only two-thirds of the deceased’s property. The rest will go to the deceased’s siblings. But if they have a son who is at least a day old when they die, then the son gets the deceased’s share and the daughters get half of what the son gets. It is this clause in Muslim inheritance law that places many women like Ayshumma and her daughters at the mercy of the deceased person’s siblings and extended family.
This provision in the personal inheritance law recently became a huge point of public debate in Kerala after Dr Sheena, former MG University Pro-Vice Chancellor and a professor of law, and C Shukkur, a lawyer and actor, solemnised their marriage of nearly 29 years again under the Special Marriage Act, 1954 (SMA). Sheena and Shukkur married in 1994 as per the Muslim Personal Law; their wedding was then solemnised by Indian Union Muslim League’s senior leader Panakkad Syed Hyder Ali Shihab Thangal. But on Women’s Day this year, they registered their marriage again under the SMA, to ensure that their three daughters do not face what Ayshumma’s daughters are going through.
“We decided to do this to ensure that our daughters feel equal. Our relatives will not trouble our girls even if we don’t, but we want to ensure that they live with dignity even after we are gone. We also did this publicly to extend our support to the Forum for Muslim Women’s Gender Justice,” says Shukkur.
The Forum for Muslim Women’s Gender Justice (FMWGJ), which consists of Muslim women from across Kerala, has been campaigning for legal reforms to grant Muslim women equal property inheritance rights. The Forum has intermittently organised small meetings in several districts of Kerala to raise awareness about this. On March 12, a first-of-its-kind state-level meeting was held by and for Muslim women in Calicut to mobilise public opinion on the need for gender equality in Muslim personal laws.
Author and activist VP Suhra, the Chairperson of the Forum, is also one of the parties in a Special Leave Petition (Khuran Sunnath Society and Others v Union of India) that is currently pending before the Supreme Court, demanding an amendment to the gender discrimination Muslim women face when it comes to inheritance. The petition challenges Shariyat inheritance laws as being violative of Muslim women’s fundamental rights ensured under Articles 14 (right to equality), 15 (prohibition of discrimination), and 21 (right to life and dignity), as well as international conventions and covenants for gender justice that India has ratified.
“It is men who have translated and interpreted Islam and therefore, the laws are patriarchal and dismissive of equal rights for women. When Hindu and Christian personal laws have been amended to equalise them for men and women, why has that not happened yet with Muslim personal laws?” she asks.
Muslim women's meeting in Calicut
“I have seen this injustice play out right from my childhood. Inheritance has always been a topic where men were given preference in all personal laws. Both Hindus and Christians reformed this after much strife and struggle, and now men and women have equal inheritance rights under their personal laws. Only Muslim women suffer,” says advocate Ramlath Pudusherry, who is the Joint Convenor of FMWGJ.
Both Hindu and Christian personal laws were changed after many legal struggles and opposition from within religion. The Hindu Succession Act, 1956, was passed to codify inheritance laws among Hindus, Sikhs, Jains, and Buddhists. A Hindu woman’s limited estate was abolished by this Act, and women were given full power to own and transact their property. This Act was further amended in 2004 to ensure that daughters and sons get equal property in inheritance.
For Christians, it was after the landmark 1986 Supreme Court judgement in Mary Roy v State of Kerala that the apex court repealed the Travancore Christian Succession Act, 1916, and brought all Christians under the Indian Succession Act of 1925, ensuring that daughters and sons are equal shareholders. Though the law was amended, especially for most Christian women, the ground reality remains unchanged.
“Under Muslim Personal Law, when a man dies, his wife is entitled to a one-eighth share of his property. Whereas when a woman dies, the husband gets a one-fourth share of her property. When a man passes away, his daughters can only get half of what sons get. In case there are no sons, the daughters get a two-thirds share while the rest passes on to the man’s siblings. All these instances are unequal for women. But the problem is worse in the case of couples who have only daughters. A person’s hard-earned assets suddenly pass on to his siblings while his own daughters get very little, only because they are women,” she explains.
Shukkur says that the root of the problem is the misinterpretation of the Quran by Sunni Imams. “Islam is not a monolithic faith. It is a combination of various regional customs that are held together by certain fundamentals like monotheism and the like. The attempts to make Islam uniform and to interpret the Quran in extremely puritan ways is what led to interpreting ‘aulad’ (heir) as ‘male’ and not ‘offspring’, as the Shias do,” he explains, citing that giving more preference to male heirs is basically an error in translating the Quran, which must be corrected.
“No Muslim will say that Allah intended for women to be discriminated against. So then why not reinterpret ‘aulad’ as inclusive of men and women?” he asks, explaining that for all other purposes in a democracy, Muslims agree that men and women have equal rights, like in the case of voting. “Men and women both have one vote each. In contracts and other legal documents also, they accept that the law sees a woman as having equal rights and liabilities as a man. Only when it comes to inheritance do they insist on following the narrow interpretation of Shariyat. That is undemocratic,” he adds.
Ramlath says that the supposed logic behind giving women lesser shares is that in patriarchal families, it is men who take up financial burdens and provide for women. They also bear the expenses of marrying women off. Therefore, since women have ‘no responsibilities’ towards the family, they are entitled to less.
“But do women really have no responsibilities in families?” Ramlath asks and says that in the name of taking care of women, the men in the family provide basic sustenance and walk away with a big chunk of inheritance, depriving women of any financial security when they need it.
“My wife is much more educated and capable than I am. If someone were to say that such women need men to look after them and therefore they will be only given a lesser share in inheritance, how absurd is that in today’s times!” adds Shukkur.
Many couples, especially those who don’t have sons, try to bypass Shariyat by registering their marriage under the SMA, like Shukkur and Sheena. “I myself have only two daughters and no sons. My husband and I married in 1999. But we registered our marriage under the SMA again in 2015 to ensure that our daughters have confidence and a sense of equality. But finding a loophole and solemnising the marriage again is not a sustainable option. How many women and men can afford to do this without objection and sometimes even isolation from their communities and families?” Ramlath points out.
The Muslim Personal Law also does not have a provision to make a will. Even if an osiyath (will) is to be drawn up, a person can bequeath only one-third of his property and that too in the name of those who are not their legal heirs. But once a marriage is registered under SMA, the Indian Succession Act takes over, which has gender-equal inheritance norms and additionally gives the option of making a will.
“Muslims can write property in someone’s name as a gift, but gift and inheritance can never be the same. If I gift my assets to one of my daughters, when the next is born what can I give? Not just that, if I gift my assets during my lifetime, how will I be able to use them or operate them for my own living?” asks Shukkur, pointing out that neither writing off the property as a gift under Muslim law nor registering the marriage again under the SMA can be long-term alternatives for an amendment of Shariyat itself.
Shukkur and Sheena
Not just in the case of couples with no sons and only daughters, but in all scenarios related to inheritance, Muslim Personal Law disadvantages women. Nadiya (name changed) is a Muslim woman from Kerala whose life came to a screeching halt when she suddenly lost her husband and had to build a life from scratch for herself and her two very young children. They are unable to claim her husband’s property or assets because the law in India mandates the consent of all his legal heirs – in this case, his parents.
While personal laws of other religions also entitle the parents of a deceased to a share of his/her property, in Muslim law if one of the parents dies, their share in the deceased ward’s property then passes to their other legal heirs, i.e, their children.
Nadiya has both a son and a daughter, so she is entitled to one-eighth of her husband’s assets and her son gets double what her daughter gets. Since her children are minors, their assets cannot be sold or transacted now. Her mother-in-law and father-in-law get one-sixth each of her husband’s property. “I begged my in-laws to release my share so that I can use it for my kids. But they refused. They are well-to-do and I am not saying that they don’t deserve anything. But in case one of them dies, their share in my husband’s property will pass on to their legal heirs – their other children – and not my children. How is that fair? It is all my husband’s hard-earned money, which my kids deserve. They now try to paint me as evil saying that I am rebelling against the will of God as written in the Quran. I am only trying to secure a good life for my kids,” she says, elaborating on how the complexities of Muslim personal laws always impact the women who are left behind after their husband or father passes away.
Advocate Rajeev Lakshman says that reverting of the deceased son/daughter’s property to their parent’s legal heirs if either of their parents passes away is unique to Muslim law. “In other personal laws, if say Person A dies and their parents are alive, the parents will get a share of A’s properties during their lifetime. But once a parent dies, the share passes back to A’s children and wife. In Muslim law, it goes to A’s parents’ heirs, that is A’s siblings. This again puts women at the mercy of the patriarchs in their family to access the deceased’s husband’s property,” he says.
Nadiya is worried for her kids. “When the husband is alive, his family may appear cordial. But once he is gone, nobody cares for his wife or kids. We have to beg these patriarchs and constantly prove that we have no other means,” she says.
Rubiya, another Muslim woman who shared her experiences at the FMWGJ meeting also attested to this. “I lost my father to Covid and I was going through a divorce then. My father had huge debts when he died. To sell off his property and pay off debts, I had to convince his brothers because they were also his legal heirs as per Shariyat. But they refused and filed a case against me. I am now constantly at odds with these men who never checked on our father when he was ill and in deep financial crisis,” she said.
Ramlath points out how such instances are humiliating for women. “They constantly feel like lesser beings, destined to beg the male members of the family for their inheritance, only to be told that bringing them up and marrying them off in itself was a burden. Most of these women stop working after marriage and cannot go back to their own homes as well once their husband passes away. So getting their inheritance is crucial for them. If the law is not just, we must make it just for Muslim women,” she asserts.
When Rubiya approached the Imams at her mosque, they advised her to leave everything to God’s will. “They constantly use God to justify the gender discrimination that is normalised through Muslim inheritance laws. Asking any question then becomes blasphemy because we are told that in doing so we are challenging God himself,” she says.
Nadiya also speaks about how people conveniently use faith to suit them. “Doesn’t God say taking care of widows and isn’t protecting their orphaned children one of the highest acts of prayer? When it comes to assets, everyone wants to hold on to God’s word, but when it comes to letting go and being fair to women and children nobody wants to follow his teachings. My in-laws can very well forfeit my husband’s share. No God will punish them for giving their bereft grandchildren their share in their son’s properties. But they will not do that. They only remember God’s will while snatching away property from my children, not while they see us struggle every day,” she says.
M Sulfath, the Convenor of FMWGJ, said in her inaugural address at the Forum’s state meeting that it must also be recognised that Muslims are a persecuted minority in the country and while critiquing Muslim Personal Law, the entire religion must not be painted in a problematic light, aggravating Islamophobia.
“This is why we are not in support of the Uniform Civil Code. We do not feel that a Uniform Civil Code is an alternative to correcting the gender inequality in Muslim inheritance laws. Especially at a time when minorities in the country are struggling to live with dignity, we do not want to fall into the trap of accepting the Code in the hope of redressing our concerns,” she said.
Agreeing with Sulfath, Shukkur notes that Sheena and he have been facing many kinds of cyber attacks after they registered their marriage under the SMA. “YouTube Imams who dish out extremely puritan, unconstitutional interpretations of Shariyat are even calling believers to boycott our funeral when we die. The Council for Fatwa and Research, believes that the true ownership of wealth belongs to Allah, and termed our decision as an insult to Islam. What these critics don’t realise is that by refusing to align Muslim personal laws with the values of our Constitution, they are further painting a very problematic picture of Islam itself, which will lead the community into more persecution and defence,” he adds.
“Many women like Ayshumma face discrimination under Shariyat only because they are women. Like other religions, Islam should also be able to renew itself to ensure that women feel equal and on par with men with respect to their inheritance rights. Demanding this does not make us anti-God. In fact, which God would willingly sanction that women suffer for believing in his teachings? We believe our God is a just God and holds us in high regard so as to ensure our social security and equality,” Sulfath said at the FMWGJ meeting.
“The issue cannot just be addressed in court, it begins right from sensitising the staff at government offices who file our submissions to the respective officials. Family, friends, in-laws, institutions – everyone must be ready to rethink and understand it from our point of view, instead of branding us as rebels against faith,” Nadiya says.
The issue that Muslim women are raising here is rooted in their survival and their right to practise their religion while not compromising on equality. In the context of our democracy, this is an important movement, which the FMWGJ hopes will be supported by the government and our judiciary.
Watch: Why a Muslim couple in Kerala remarried on Women’s Day