Why a Kerala Muslim couple in their 50s are getting married again on Women’s Day

For Dr Sheena Shukkur, the head of the Law Department, University of Kannur, and Advocate Shukkur C, a senior lawyer of Kasaragod bar, this Women’s Day is going to be special, as they prepare to get married (once again) on March 8.

Dr Sheena, 51, who had been the Pro Vice-Chancellor of the Mahatma Gandhi University earlier, and 53-year-old Shukkur C, who is also an occasional actor in Malayalam films, have been married for the last 29 years and have three daughters together. Khadeeja Jasmine, 26, who is a law clerk with Supreme Court judge Justice Rama Subrahmanian, 20-year-old Fatima Jebin who studies in Chennai and Fatima Jezah, who is a ninth grade student. Then, why are they getting married again? The answer is simple, they don’t have a son.

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Daughters not eligible to inherit estate

The couple’s three daughters are not eligible to inherit their estate in its entirety in accordance with current Islamic law, should they pass away. There are three types of heirs, sharers (Qur’anic heirs), residuaries and distant kindred in the Muslim personal law (Sunni). Sharers are those who have the right to a specific portion of the deceased’s property whereas the residuaries do not have this right. They should take possession of the portion of the estate that remains after the sharers have taken theirs. The distant kindred heirs include descendants, ascendants and collaterals of the deceased.

A daughter is a prescribed sharer if she does not have a brother. She becomes a residuary heir, if she has a brother. Islamic scholars read this tradition to mean that, after the daughter takes her prescribed share in the case of no brothers, the balance of the estate goes to the closest male relatives. If the deceased has left behind more than one daughter, all daughters jointly take two-thirds of the property.

Inheritance governed by Shariat

“According to the Muslim Personal Law (Shariat) Application Act of 1937, the inheritance of Indian Muslims are governed by the Shariat. But the law does not define it. So, our courts often rely on the 1907 book, ‘Principles of Muhammadan Law’, written by DH Mulla. As per this book, our daughters are only entitles for two-third of our estate, in case of our death and the rest will go to our siblings. This is only because we do not have a son,” clarifies Advocate Shukkur.

It is regrettable that Muslim women had to deal with this discrimination in a country where Article 14 of the Constitution guarantees equality to all citizens, adds the lawyer. “In 2017 and 2020, we met with two car accidents, and it was only luck and the seat belt that kept us alive. We then began to consider what would happen to our daughters if something happened to us. Many of our lawyer friends also shared the same opinion and that’s how we took this decision,” says advocate Shukkur.

“When we made it public, many well-wishers, including the judicial officers with whom we have communication with, appreciated us. I have not come across any objections from the community leaders yet, but Shukkur has,” said Sheena Shukkur. “Obviously, there will be negative comments on the social media which we ignore as it’s outnumbered by the positive ones. We will be more than happy if our decision inspires even a single person that too on a Women’s Day,” added Dr Sheena.

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Will no longer be ‘Muslims’

Once the marriage is registered under the Special Marriage Act of 1954 Sheena and Shukkur, will be no longer “Muslims” as far as inheritance purposes are concerned. As a result, their assets will not pass to the heirs after death. The Indian Succession Act, 1925’s provisions will be applied to the inheritance of their property, and Muslim inheritance law will become relevant. “There are many people who take this route these days,” says Dr Sheena Shukkur. “But not many are willing to disclose it owing to community pressure.”

In 2008 Kozhikode-based Quran Sunnath Society approached Kerala High Court with a writ petition to declare that the Muslim’s inheritance practices are in contravention with the principles of the Constitution. According to the petitioners, the Shariat law which is applicable with regard to succession in Muslim Community is based on misinterpretation of various Quranic principles.

They argued that there is discrimination on the ground of sex as far as inheritance is concerned regarding females in Muslim Community that a daughter gets less share as compared to a son. The misinterpretation of holy Quranic edicts as now practised in India leads to patent discrimination against female children alone, while the sons who succeed their mother’s or father’s property need not share any portion of the inherited properties with anyone of the deceased’s relatives other than spouse and parents of the deceased.

Among Shias and Sunnis also there is a distinction regarding succession. If a deceased Muslim happens to leave only daughters, those daughters will not get a share equivalent to that of the share she would get if she was a male and will have to share the properties along with not so close relative of the deceased. At the same time, if the deceased leaves only a male child, he takes the entire property needing to share it only with the spouse and parents of the deceased. It will lead to brazen discrimination among Indian citizens only on the ground of sex.

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Can’t decide petition: Kerala HC

The Kerala High Court bench headed by the then chief justice, Ashok Bhushan, ruled that it cannot decide the petition, and left it to the legislature to weigh the options and frame a new law. Now the case is under consideration by the Supreme Court as the petitioner filed an SLP challenging the high court’s order. “It is time to amend the personal laws. Many Islamic nations have updated their laws to reflect modern society. Only the male representatives from Muslim religious organisations were called by the government for a meeting on this matter and it has agreed with their position that neither the state nor the judiciary had the authority to interfere with Sharia law and Muslim personal law,” says VP Suhara of NISA, a progressive women’s organisation that has impleaded in the case.

Most of traditional Muslim organisations are staunchly opposed to this move. They believe that inheritance is determined in accordance with the obligations envisioned by the religion. Protecting the parents and the family is a duty for the male members only and it do not apply to women.

The estate of a person who lived and died according to Islamic belief should be inherited according to the Shariat, opines MM Akbar, a Mujahid religious preacher who has a significant following. If this person’s descendants want it in other ways, they ought to have taken it with their parents rather than the government. According to Akbar, the women who filed the lawsuit have been aiding the Hindutva forces that are attempting to suppress the religious convictions of Indian Muslims.

With the Supreme Court issuing notice to the Union and state governments, the Shariat question is once again coming to the fore, after the Triple Talaq legislation.