Chief Justice of India Sanjiv Khanna on Tuesday (January 28, 2025) orally observed that the freedom to become a non-believer and choose to be governed by secular inheritance laws of the country must apply across faiths.
The Chief Justice’s observation came while hearing a petition filed by a Kerala-based woman, Safiya P.M., who said that though born a Muslim, she was now a non-believer and wished to be governed by secular statutes like the Indian Succession Act rather than the Sharia law.
“If it is to apply to one faith, it must apply to all faiths,” Chief Justice Khanna, who was heading the Bench comprising Justices Sanjay Kumar and KV Viswanathan, said.
The CJI, at one point, observed that “under the Hindu Succession Act, if you convert, your inheritance is taken away… if you convert, you lose your right of inheritance”.
Solicitor General Tushar Mehta, appearing for the Union of India, said one could still inherit through a Will irrespective of the restrictions in the Hindu Succession Act.
However, the Chief Justice said there were also situations of intestate successions and even the Joint Hindu Family property.
‘Give time for response’
Mr. Mehta agreed that the petition posed an interesting question and the Central government must be given time to file a considered response in the form of a counter-affidavit.
Chief Justice Khanna indicated that if the petition succeeded, changes in official forms would have to be considered. “Where [in a form] you have to mention your religion, the option not to mention one’s religion must be there or it ought to be waivable,” the CJI said.
Justice Viswanathan indicated such an option could be categorised as a “private right”.
Advocate Prashant Padmanabhan, appearing for Ms. Safiya, said his client would inherit only one-third portion of her father’s property under the Muslim law. She had an autistic brother who she had to take care of.
At this point, the Chief Justice questioned whether Ms. Shafiya’s father, who was governed by the Muslim law, would face restrictions at his end to bequeath his entire property to her.
Mr. Padmanabhan argued that a person who left her faith should not incur any disability or a disqualification in matters of inheritance or other important civil rights. He invoked the fundamental postulate of secularism “which treats all religions on an even platform and allows to each individual the fullest liberty to believe or not to believe”.
“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,” the petition said.
Ms. Safiya, who is general secretary of Ex-Muslims of Kerala, said that a person who left her faith in Islam would be ousted from her community and was not entitled to any inheritance right in her parental property.
“The petitioner wishes to get a declaration that she shall not be governed by Muslim Personal Law for any of the matters listed in Sections 2 or 3 of the Muslim Personal Law (Shariat) Application Act, 1937… There is a clear vacuum in the statute which can be plugged by judicial interpretation,” the petition noted.
It noted that the legal vacuum would leave the petitioner with no recourse to succeed to her parental property even if she officially got a no-religion, no-caste certificate from an authority. This state of affairs was a direct violation of the fundamental right to believe (or not to believe) in a religion under Article 25 of the Constitution, Mr. Padmanabhan argued.
