C Shukkur, a lawyer and film actor, on March 5 declared that he will marry his wife Sheena Shukkur again on March 8, celebrated as Women’s Day, under provisions of the Special Marriage Act. The couple got married under Islamic law on October 6, 1994, and they have three daughters. His explanation on why he decided to get married again has sparked a debate on inequalities inherent in the Inheritance of property under Muslim Personal Law (Shariat) Application Act 1937. Shukkor says he had a narrow escape from death two times due to accidents, and that made him think what will happen after his death.
“In the Act, the Shariat law is not mentioned properly. But according to the approach taken by our courts based on the book ‘Principles of Mahomedan Law’ written by Sir D H Mulla in 1906, only two-thirds share of our property will be given to our daughters after our death. The remaining one share belongs to our brothers. In the inheritance certificate issued by the tahsildar, apart from our children, siblings will also get a place. The only reason for this is that we have no sons. Just because they were born as girls, our children face severe discrimination. Not only that, according to Sharia, even a will is not possible,” Shukkur wrote.
“The only way for us Muslims to overcome this impasse within the existing legal system is through the Special Marriage Act passed by our Parliament in 1954. We are determined to rely on it,” he added. Shukkur says he has no intention to challenge or disobey some rules but wants to depend on the Constitution for equality. Speaking to TNM Shukkur said that he is not worried about the property but took this step for a social cause.
“Article 14 of the Indian constitution provides equality. There should be no discrimination based on gender. My daughters are denied the rights and privileges that are enjoyed by sons of my siblings or women of other communities. The degradation of inequality happens because they follow Islam or they are the children of parents who follow Islam. This creates a negative impact on them. My children should get equal rights. The issue of inheritance of assets is secondary,” he said.
He also says writing a will is not a solution for the problem “Some asked if I could write a will and give everything to my children. The problem is solved but that is not correct, we should have absolute rights over our assets until our death. What is left at the time of death is inheritance. So the question is how is it being shared, then my children shouldn’t be degraded just because they are women. I am not interested in that. My children are well educated and have their ideologies. They should get the equal rights as their male cousins get,” he added.
When asked about the possibility of legal complications in future over inheritance as the children were born in wedlock made under Muslim law, Shukkur explained there would be no such issues.
“There is no issue even if children are born in wedlock under Muslim law. The Special Marriage Act addresses all those issues well. This is a marriage registration not a solemnization. I could have done this secretly in the register office nearby. But I made it public because this is an issue of social relevance. It should be a social movement. After I put the post everyone reacted positively. Many prominent people rang me up and shared their appreciation,” he said.
Section 15 of the Special Marriage Act, 1954, allows registration of marriage even if a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since.
Advocate Aisha P Jamal, a public prosecutor from Malappuram district, says there are many other clauses in Muslim personal law that discriminate against women. “Daughters who need the property of their deceased father to pledge or to sell will have to get a clearance from their relatives. If there is a son then there is no problem as the assets will not go outside the family. But a daughter will get only half of the inheritance that a son gets,” she says.
Also, a widowed woman has no right over her husband’s inherited property and only limited right over her husband’s property, says Aisha.
“A deceased son’s family - his wife or children, will have no right over the father's property. This is a huge issue. A single mother and her children will have no property,” she says. As per the law a childless Muslim widow is entitled to one-fourth of the property of the deceased husband, after meeting his funeral and legal expenses and debts. However, a widow who has children or grandchildren is entitled to one-eighth of the deceased husband's property. If a Muslim man marries during an illness and subsequently dies of that medical condition without brief recovery or consummating the marriage, his widow has no right of inheritance,” the law states.
The inheritance of property in Muslim law comes only after the death of a person and a child born into a Muslim family does not get his right to property by birth.
Aisha said that the will is also not so relevant as per the law. “Those who follow the Muslim personal law, can only make a will for the two thirds of his properties. There is religion for the will here. Even if a person gives his property to their daughters as a gift of choice, if he has to sell or pledge it for some of his needs, he will have to get clearance from the children,” she said.
The distribution of shares over inheritance is totally different for males and females. The law says, “a wife takes 1/4th of share in a case where the couple is without lineal descendants, and a one-eighth share otherwise. A husband (in the case of succession to the wife's estate) takes a half share in a case where the couple is without lineal descendants, and a one-fourth share otherwise. A sole daughter takes a half share. Where the deceased has left behind more than one daughter, all daughters jointly take two-thirds. If the deceased had left behind son(s) and daughter(s), then, the daughters cease to be sharers and become residuaries instead, with the residue being so distributed as to ensure that each son gets double of what each daughter gets.”
Also it is stated that, “Where a Muslim contracts his marriage under the Special Marriage Act, 1954, he ceases to be a Muslim for purposes of inheritance. Accordingly, after the death of such a Muslim his (or her) properties do not devolve under Muslim law of inheritance.”