Ex-Muslims Are Still Governed By Muslim Law — It May Change Soon

On 29 April 2024, the Supreme Court agreed to adjudicate on the question of whether people born in Muslim families but not practising it can seek the recourse of secular laws, instead of the Muslim Personal Law (Shariat) Application Act (MPLA), 1937 on property rights.

The bench comprising Chief Justice of India (CJI) DY Chandrachud, Justices JB Pardiwala and Manoj Misra has issued notice to the Union of India and the State of Kerala in this regard.

The petitioner in the case is a Kerala woman Safiya PM, General Secretary of  ‘Ex-Muslims of Kerala,’ an organisation of former Muslims. In the past, she has criticised Quran, Islam’s holy book for what she termed as inferior treatment to women.

Her father is also a non-believer but has not officially dissociated himself from the faith, a fact which ultimately led to the current petition.

Safiya has a brother with Down Syndrome, whom she and her father take care of. She also has a daughter who according to current legal provisions would not get a fair deal in case something happens to her.

Muslims in India take the recourse to MPLA, 1937 for such issues. The problem with Safiya is that she is torn between the religion in which she was born and her own faith as an adult.

By virtue of her birth, Safiya has to take the recourse under MPLA, 1937. "The moment you are born as Muslim you are governed by the personal law. Your rights or entitlement are not governed by being a believer or non-believer," said CJI DY Chandrachud.

In that case, Safiya will get only 1/3rd of the share of the male heir, which means her brother with Down Syndrome will get 2/3rd of the property. Advocate Prashant Padmanabhan, representing Safiya also submitted that if Safiya dies, her daughter will get less share than the brothers of her father.

Based on it, Safiya submitted to the court that because she is no longer a Muslim, her inheritance right should not emanate from MPLA, 1937. Her submission under Article 32 further reads, "There is no provision if we do not want to be governed by Shariat law. My father is a non-believer and he does not want to follow this..."

Section 3 of MPLA, 1937 requires that a person needs to make a specific declaration to be governed by Shariat law. Contrary to it, Safiya needs a declaration that she shall not be governed by either Section 2 or 3 of the act, provisions for which (declaration) she could not find in the act or rules — indicating a void in legal provisions. 

Her petition under Article 32 is centred around obtaining this certificate. The certificate of not practising Islam would make it possible for her to obtain inheritance under the Indian Succession Act (ISA), 1925. 

“Persons who do not want to be governed by the Muslim Personal Law must be allowed to be governed by the secular law of the country, viz, the Indian Succession Act, 1925 both in the case of intestate and testamentary succession,” read the submission.

Currently, Safiya’s direct recourse to ISA, 1925 is hindered by Section 58 of ISA, 1925, which states that the act would not be applicable to Muslims. A certificate of not being a practitioner of Islam would eliminate this hurdle.

Section 58 of ISA, 1925 is itself challenged by the Quran Sunnath Society in another case in which Safiya is also an intervener.

At the time when ISA, 1925 was passed, personal laws regarding Muslims were a bone of contention. Muslims at various places in India still followed the traditions and customs from which they were brought into the fore of Islam through conversion. This led to the problem of Muslim identity not being a defined term in undivided India. 

Later the Muslim League took on the challenge of consolidating the conversion which led to the passage of The Muslim Personal Law (Shariat) Application Act 1937.

Despite discriminatory provisions, the act was sustained in independent India, primarily and arguably because of the politicisation of Muslims as a vote bank. 

However, with time, various follies have come to the fore. For instance, Article 25 of Indian Constitution allows everyone to practise and profess any religion. For people like Safiya, exercising that right comes with the punishment of her life's decisions still getting influenced by Muslim Personal Law, just because she was born a Muslim.

The Court has to now decide whether individual rights under Indian Constitution supersede those which personal law provided even before the constitution.