Kozhikode: The 22nd Law Commission should work on making the Muslim Law of Inheritance 'gender just' in line with the Constitution, instead of taking the initiative to bring in a Uniform Civil Code, said NISA, a progressive Muslim women’s forum in Kozhikode.
It said the Law Commission headed by Ritu Raj Awasthi should initiate steps to codify the Muslim Law of Inheritance and make secular laws such as the Guardians and Wards Act, Juvenile Justice (Care & Protection) Act, and Indian Divorce Act applicable to Muslims.
"Muslim women and children can enjoy the fundamental rights as enshrined in the Constitution with these changes. This will be sufficient for the time being instead of initiating steps to bring in a Uniform Civil Code," said president of NISA Zuhara V P. NISA means women in Arabic.
The organisation was responding to the Law Commission calling for views and ideas from the public and religious organisation on the Uniform Civil Code. The commission is accepting views till July 13.
To be sure, the 21st Law Commission in a consultation paper on 'Reforms of Family Law' in August 2018 said a Uniform Civil Code is "neither necessary nor desirable at this stage".
'Make Muslim Personal Law gender just'
Zuhara said NISA has prepared a draft bill, an appendix, to be added to the Indian Succession Act of 1925. "We handed over a copy of the draft bill to the chief minister and will be sending another copy to the Law Commission," she said.
As of now, the secular law applies to Christians, Parsis, and Jews but not to Muslims. Muslims born in India are governed by the Muslim Personal Law (Shariat) Application Act of 1937. The Muslim Law of Inheritance, which comes under the Shariat, is not codified even 76 years after Independence and 73 years after the country became a republic, she said. "And neither is the Muslim Law of Inheritance gender just," Zuhara said. The Constitution prohibits discrimination in the name of religion, caste, and gender. But successive governments have not made any attempt to even codify the Muslim Personal Law, NISA, a 30-year-old organisation, said in the draft.
NISA's Zuhara, who is also a founding member of the Forum For Muslim Women's Gender Justice, had moved the Supreme Court to seek gender parity in Muslim Personal Law. "But it would be more apt if the legislature did it," she said.
As a solution, NISA is recommending amending the Indian Succession Act by bringing Muslims under the purview of the Act, and by introducing a chapter on intestate (dying without a will) succession in the Muslim community, in line with the Christian intestate succession.
According to the draft bill, widows and widowers will have the same right on their spouse's property. If a spouse dies without children, the entire property should go to the surviving spouse. If a man dies leaving behind his wife and children, one-third of the property should go to the wife and two-thirds divided among the children.
When a person dies leaving behind a child or children as his only descendant, the property should go to the surviving child or equally divided among the children, irrespective of their gender.
According to Muslim Inheritance Law, sons get two-thirds of the property and daughters, only one-third.
If parents die leaving behind only daughters, the daughters would be entitled to two-thirds of the property, and a relative will get one-third of the property.
If Muslim parents die leaving behind only one daughter, she would get only half of their property; the other half would go to a relative. But that is not the case if a son is the sole descendant. He will inherit the entire property, according to Muslim law.
Also, if a person dies before his/ her father's property is partitioned, their children would have no right on their grandparent's assets. "Spouses and children of deceased persons should be considered as legal heirs while dividing their ancestral estate," said Zuhara.
If parents are the inheritors, the property should be divided equally between the father and the mother, said the draft bill.
Guardianship, adoption, divorce
Apart from these changes, the Guardians and Wards Act should be made applicable to Muslim minor children, said chairperson of the Forum for Muslim Women's Gender Justice Dr Kadeeja Mumthaz. In Muslim law, the mother is not the natural guardian of her minor children after the father's death. So a male relative would inherit a part of the father's property under the pretext of being the guardian of the children. He will also be the guardian of the children's property. Under the secular Guardians and Wards Act, any of the parents can be the natural guardian. "We also want the law to be amended to be in tune with the times to recognise the rights of the parents from the LGBTQIA+ community," said Dr Mumtaz, referring to the lesbian, gay, bisexual, transgender, queer, intersex, asexual, and (agender) people. "Muslim Personal Law does not recognise this community," she said.
Making the Juvenile Justice (Care & Protection) Act Applicable to Muslims will enable the community members to adopt children. Today, the members of the community are allowed to adopt children because of a Supreme Court judgment in February 2014.
Till then Muslims, Christians, Jews, and Parsi community members had the right only to be guardians, and lost the legal right on the children once they turned adults.
The Supreme Court bench, headed by Chief Justice P Sathasivam, ruled that any person can adopt a child under the Juvenile Justice Act even if their personal laws did not permit it. But the court did not make adoption a fundamental right for the child and parent, saying it will conflict with practices and beliefs.
Unlike a child under guardianship, an adopted child has the legal right to his parent's property and assets.
Of all these issues facing Muslim children and women, the Law Commission should immediately recommend codifying the Muslim Personal Law and amending the Indian Succession Act to restore the rights of Muslim women and children guaranteed in the Constitution, said NISA.
