Apart from being a fundamental right guaranteed under Articles 14, Article 15 and Article 19 (g) The Muslim Personal Law is a fundamental right guaranteed under Article 25 of the Constitution of India . After quoting from the verse of Holy Quran conferring property rights upon Muslim Women, and the verses from Holy Upnishad, justice SANJAY KAROL in a celebrated judgement of the Supreme Court has held that “Personal law" has a constitutional protection
After scrapping of the Special Status enjoyed by the erstwhile state of Jammu and Kashmir and abrogation of Article 370 of the Constitution of India which [ in the opinion of Syed Tassadque Hussain, the Designated senior advocate of the High Court of J&K, was -An Emblem of Kashmiri Identity ], the state was divided into two Union Territories, one called Union Territory of Jammu and Kashmir ,and the other Union Territory of Ladak. This was achieved by the Declaration made by the President on 6th August 2019 on the statutory resolutions passed by the Lock Sabba and the Raj Sabba respectively on 6th August 2019 and 5th August 2019 respectively . Consequent thereto all the provisions of Indian Constitution , as amended from time to time, were made applicable to the Union Territory of Jammu and Kashmir ,and the. Union Territory of Ladak. The Notification was made applicable with effect from 31th of October 2019. Under Section 95 of the Jammu and Kashmir Reorganization Act, 2019 all Central laws Specified in table I of the fifth schedule were made applicable to the union territories Jammu and Kashmir , and Ladak . Under entry 61 of the table I of the fifth schedule ,The Muslim Personal Law ( Shariat) Application Act ,1937 was made applicable to the union territories Jammu and Kashmir , and Ladak after deletion of the expression “ Except the State of Jammu and Kashmir “in sub-section (2) of Section 1, in substitution of The J&K Muslim Personal Law ( Shariat) Application Act ,2017 which figured at serial No.86 of the Table 3 of the fifth schedule of the Act specifying the State Laws including the governors Acts that stood repealed. However under Table 4 of the fifth schedule ,the state laws enumerated in List –II of Seventh Schedule of The Constitution of India ,including J&K Land Revenue Act Svt.1996 which figured at seral No.71 continued to be inforce in the Union Territories Jammu and Kashmir , and Ladak
The Muslim Personal Law ( Shariat) Application Act ,1937 , in so far as it restricts women’s right to inherit from ancestral landed property , apart from being violative of the fundamental rights guaranteed to a citizen under part third of the constitution of India, , is also incongruous with The International convention of Human Rights and The United Nations Convention on the Elimination of All Forms Discrimination against Women [ CDAW] adopted by General assembly in 1978 ,of which India is a signatory and other International conventions . Further it lacks legislative competence of the parliament to legislate on matters reserved for The legislation by The legislative body of the Union Territories Jammu and Kashmir , and Ladak .Being a brazen and open incursion upon legislative power and/or competence of legislative body of the Union territories ; it has created an uncertainty and indefiniteness in inheritance laws applicable in the Union Territories.
Apart from being a fundamental right guaranteed under Articles 14, Article 15 and Article 19 (g) The Muslim Personal Law is a fundamental right guaranteed under Article 25 of the Constitution of India . After quoting from the verse of Holy Quran conferring property rights upon Muslim Women, and the verses from Holy Upnishad, justice SANJAY KAROL in a celebrated judgement of the Supreme Court has held that “Personal law" has a constitutional protection. This protection is extended to "Personal Law" through Article 25 of the Constitution. It needs to be kept in mind that the stature of "Personal Law" is that of a fundamental right. The elevation of "Personal Law" to this stature came about when the Constitution came into force. This was because Article 25 was included in Part III of the Constitution. Stated differently, "Personal Law" of every religious denomination is protected from invasion and breach,” except as provided by and under Article 25." It is an essential practice of religion and does not constitute or affect any act or practice authorizing the state to impose any restriction in exercise of it. It is also violative of Article 14 of the constitution of India which envisages equality of laws and equal protection of laws. It also constitutes infraction of Article 15 of the Constitution ,which amongst others things, prohibits discrimination on the ground of sex ,and has been held by the supreme court to include right to elimination of gender based discrimination particularly in respect of property so as to attain economic empowerment.
The exclusion of Muslim Women from right to inherit from the ancestral landed property is against the principle of proportionality; it is arbitrary, irrational, and has no nexus with the object sought to be achieved viz. conversion of statehood of Jammu And Kashmir into Union Territories J&K and Ladak .
The rights of women to equality and non- discrimination have been were enshrined in a number of international instruments including International Convention on Human Rights, and United Nations Convention On The Elimination Of All Forms Of Discrimination Against Women [CEDAW] , adopted by General Assembly in 1979 and ratified by one hundred eighty five states including India suggesting almost universal endorsement of its norms .
Under Protocol 1 Article 1 of the International Convention on Human Rights, right to property is a basic Human right , Article-9 Freedom of thought, conscience and religion, and Article 14 prohibition of discrimination are also Basic Human Rights.
India has ratified CEDAW in 1993 with two reservations on articles 5[a], 16[1] and 16[2] to the effect that it would abide by it in conformity with its policy of non-interference in the personal affairs of a community without its initiative and consent. Article 15(A) of CEDAW prescribes elimination of gender discrimination based on customary and other practices; and apart from woman’s right to own land; article 14(g) mandates equal treatment to woman to have access to agricultural land, and also equal treatment in land and agrarian reforms as well as in land resettlement schemes. Further, under article 2(f), states are under obligation to take all measures including legislation “to modify or abolish existing gender discriminatory laws and customs”. Under the international normative canvass, The State was obliged to repeal gender discriminatory customary law and restore Muslim women’s right to hold and inherit the ancestral property conferred to them under The Muslim Law. Retention of gender discriminatory statutory law in derogation of personal Law of inheritance against the consent of the community constituted also violation of international obligation covenanted by India.
As against application of The Muslim Personal Law ( Shariat) Application Act ,1937 in substitution of The J&K Muslim Personal Law ( Shariat) Application Act ,2017 , the purport seems to re-sustain the gender discriminatory non –existent customary usages applicable before coming into force of The J&K Muslim Personal Law ( Shariat) Application Act ,2017 . These gender discriminatory customs are against current concepts of Domestic as well as international Law. Legally in the state of Jammu and Kashmir, they have been obliterated for all times to come ,and can be deemed to have never existed . Additionally due their discontinuousness with effect from 26th February 2007 up to 9th August 2019, the customary usages have lost the status of being enforceable in The state of J&K since 26th February 2007 .
That Applicability of The Muslim Personal Law ( Shariat) Application Act ,1937, in substitution of The J&K Muslim Personal Law ( Shariat) Application Act ,2017, has the effect of infringing both the fundamental rights guaranteed under part III of the Constitution of India as well as of Basic Human rights guaranteed under International Convention on Human Rights and other conventions and treaties. It has resulted in violation of rights guaranteed to women under the Constitution and have under United Nations Convention on The Elimination Of All Forms Of Discrimination Against Women [CEDAW] ,adopted by General Assembly in 1979 and ratified by one hundred eighty five states including India and has the status of being the part of Domestic Law. For the reason of violability both under The Basic human rights and The fundamental rights and under Domestic as well as International Law , the action of the parliament either in exercise of the powers conferred upon it under the Constitution of India or the power of the State Legislature assumed by it, lacks legislative competence a enact such a law . Since the Jammu and Kashmir Reorganization Act,2019 [ Act No.14 of 2019 ] was passed in haste. Otherwise, having regard to the current deeper awareness of The fundamental as well as The Basic Human Rights ,and the abhorrence of Gender inequality, it would not have been the intention of the parliament to enact the law which, amongst other things , has resulted in substitution of The J&K Muslim Personal Law ( Shariat) Application Act ,2017 by The Muslim Personal Law (Shariat) Application Act ,1937. Probably some person in Department of Law, Government of India , being oblivious of the consequence of the state of things it may ensue, mainly for achieving the avowed aim of superiority of the Central Laws over the state Laws , has incorporated The Muslim Personal Law ( Shariat) Application Act ,1937 at Serial no.61 of _TABLE-I of Fifth Schedule enumerating the central Laws made applicable to The Union Territory of Jammu And Kashmir; and union Territory of Ladakh , and in substitution of it incorporated The J&K Muslim Personal Law ( Shariat) Application Act ,2017 at Serial No.86 of the Table -4 ,enumerating State Acts including governor’s act which are repealed in The Union Territory of Jammu And Kashmir; and union Territory of Ladakh.
Reportedly after Applicability of The Muslim Personal Law ( Shariat) Application Act ,1937 in substitution of The J&K Muslim Personal Law ( Shariat) Application Act ,2017 there has been a surge , both in revenue forum as well as in civil courts , in the cases involving question of dispute of inheritance on the basis of conflicting pleas of Law. Recently Justice Chaterjee Koul , in a decision of the J&K High Court has expressed judicial anguish upon the conduct of an unscrupulous brother, who pretending to be a Muslim had , on the plea of existence of contrary customary usage , confounded the share of his sister conferred to her under personal law from out of the property left by her father, and subjected her to prolonged agony by abuse of the judicial process .
Under The Islamic theory of justice, the prescribed duties have prominence over the rights, which are correlative to duties . The Islamic Law is supplemented by the individual and collective moral duties of the Society. A Muslim is commanded by the Holy Quran to promote - by word, conduct and action - the good and abhor the reprehensible.. The exigency of the time demands the local people ,particularly those living in rural areas , being conscious of their religious , moral and social duties , to exert their influence upon the culprits of the area to desist them from denying the local women’s right of inheritance in accordance with personal Law to their respective shares in the properties left by their ancestors. Since by bringing into force The Muslim Personal Law ( Shariat) Application Act ,1937 in substitution of The J&K Muslim Personal Law ( Shariat) Application Act ,2017 are intended to be insidious to women and create a state of affairs due to uncertainty and indefiniteness for unending contestation. This may minimize the harm intended to be caused to women in The Union Territory of Jammu And Kashmir; and union Territory of Ladakh.
Recently the Law Commission of India has taken a laudable initiative of organizing a conference On “ Co-Operative Federalism And Law Reforms “ in Which The Voice- President ,C.P.Radakishnan, has urged The Law Commission of India, State Law Commissions and State Law departments to take steps through inter-state consultation and sharing of best practices and systematic reviews of outdated Laws and recommend their amendment. Further surveys have demonstrated that rural women have greater contribution than that of men in husbanding the agricultural land , but except meager subsistance they are not being adequately compensated for the work extracted from them. Following the examples of States of Madras, Tamil Nadu and Andra pradesh , it would be in public interest upon Territories J&K and Ladak, and the neighboring States to take requisite steps for abrogation of anachronistic and outdated gander discriminatory customary usages in their respective areas of jurisdiction.
Email:--------------------h. U. Salati@gmail.com
Apart from being a fundamental right guaranteed under Articles 14, Article 15 and Article 19 (g) The Muslim Personal Law is a fundamental right guaranteed under Article 25 of the Constitution of India . After quoting from the verse of Holy Quran conferring property rights upon Muslim Women, and the verses from Holy Upnishad, justice SANJAY KAROL in a celebrated judgement of the Supreme Court has held that “Personal law" has a constitutional protection
After scrapping of the Special Status enjoyed by the erstwhile state of Jammu and Kashmir and abrogation of Article 370 of the Constitution of India which [ in the opinion of Syed Tassadque Hussain, the Designated senior advocate of the High Court of J&K, was -An Emblem of Kashmiri Identity ], the state was divided into two Union Territories, one called Union Territory of Jammu and Kashmir ,and the other Union Territory of Ladak. This was achieved by the Declaration made by the President on 6th August 2019 on the statutory resolutions passed by the Lock Sabba and the Raj Sabba respectively on 6th August 2019 and 5th August 2019 respectively . Consequent thereto all the provisions of Indian Constitution , as amended from time to time, were made applicable to the Union Territory of Jammu and Kashmir ,and the. Union Territory of Ladak. The Notification was made applicable with effect from 31th of October 2019. Under Section 95 of the Jammu and Kashmir Reorganization Act, 2019 all Central laws Specified in table I of the fifth schedule were made applicable to the union territories Jammu and Kashmir , and Ladak . Under entry 61 of the table I of the fifth schedule ,The Muslim Personal Law ( Shariat) Application Act ,1937 was made applicable to the union territories Jammu and Kashmir , and Ladak after deletion of the expression “ Except the State of Jammu and Kashmir “in sub-section (2) of Section 1, in substitution of The J&K Muslim Personal Law ( Shariat) Application Act ,2017 which figured at serial No.86 of the Table 3 of the fifth schedule of the Act specifying the State Laws including the governors Acts that stood repealed. However under Table 4 of the fifth schedule ,the state laws enumerated in List –II of Seventh Schedule of The Constitution of India ,including J&K Land Revenue Act Svt.1996 which figured at seral No.71 continued to be inforce in the Union Territories Jammu and Kashmir , and Ladak
The Muslim Personal Law ( Shariat) Application Act ,1937 , in so far as it restricts women’s right to inherit from ancestral landed property , apart from being violative of the fundamental rights guaranteed to a citizen under part third of the constitution of India, , is also incongruous with The International convention of Human Rights and The United Nations Convention on the Elimination of All Forms Discrimination against Women [ CDAW] adopted by General assembly in 1978 ,of which India is a signatory and other International conventions . Further it lacks legislative competence of the parliament to legislate on matters reserved for The legislation by The legislative body of the Union Territories Jammu and Kashmir , and Ladak .Being a brazen and open incursion upon legislative power and/or competence of legislative body of the Union territories ; it has created an uncertainty and indefiniteness in inheritance laws applicable in the Union Territories.
Apart from being a fundamental right guaranteed under Articles 14, Article 15 and Article 19 (g) The Muslim Personal Law is a fundamental right guaranteed under Article 25 of the Constitution of India . After quoting from the verse of Holy Quran conferring property rights upon Muslim Women, and the verses from Holy Upnishad, justice SANJAY KAROL in a celebrated judgement of the Supreme Court has held that “Personal law" has a constitutional protection. This protection is extended to "Personal Law" through Article 25 of the Constitution. It needs to be kept in mind that the stature of "Personal Law" is that of a fundamental right. The elevation of "Personal Law" to this stature came about when the Constitution came into force. This was because Article 25 was included in Part III of the Constitution. Stated differently, "Personal Law" of every religious denomination is protected from invasion and breach,” except as provided by and under Article 25." It is an essential practice of religion and does not constitute or affect any act or practice authorizing the state to impose any restriction in exercise of it. It is also violative of Article 14 of the constitution of India which envisages equality of laws and equal protection of laws. It also constitutes infraction of Article 15 of the Constitution ,which amongst others things, prohibits discrimination on the ground of sex ,and has been held by the supreme court to include right to elimination of gender based discrimination particularly in respect of property so as to attain economic empowerment.
The exclusion of Muslim Women from right to inherit from the ancestral landed property is against the principle of proportionality; it is arbitrary, irrational, and has no nexus with the object sought to be achieved viz. conversion of statehood of Jammu And Kashmir into Union Territories J&K and Ladak .
The rights of women to equality and non- discrimination have been were enshrined in a number of international instruments including International Convention on Human Rights, and United Nations Convention On The Elimination Of All Forms Of Discrimination Against Women [CEDAW] , adopted by General Assembly in 1979 and ratified by one hundred eighty five states including India suggesting almost universal endorsement of its norms .
Under Protocol 1 Article 1 of the International Convention on Human Rights, right to property is a basic Human right , Article-9 Freedom of thought, conscience and religion, and Article 14 prohibition of discrimination are also Basic Human Rights.
India has ratified CEDAW in 1993 with two reservations on articles 5[a], 16[1] and 16[2] to the effect that it would abide by it in conformity with its policy of non-interference in the personal affairs of a community without its initiative and consent. Article 15(A) of CEDAW prescribes elimination of gender discrimination based on customary and other practices; and apart from woman’s right to own land; article 14(g) mandates equal treatment to woman to have access to agricultural land, and also equal treatment in land and agrarian reforms as well as in land resettlement schemes. Further, under article 2(f), states are under obligation to take all measures including legislation “to modify or abolish existing gender discriminatory laws and customs”. Under the international normative canvass, The State was obliged to repeal gender discriminatory customary law and restore Muslim women’s right to hold and inherit the ancestral property conferred to them under The Muslim Law. Retention of gender discriminatory statutory law in derogation of personal Law of inheritance against the consent of the community constituted also violation of international obligation covenanted by India.
As against application of The Muslim Personal Law ( Shariat) Application Act ,1937 in substitution of The J&K Muslim Personal Law ( Shariat) Application Act ,2017 , the purport seems to re-sustain the gender discriminatory non –existent customary usages applicable before coming into force of The J&K Muslim Personal Law ( Shariat) Application Act ,2017 . These gender discriminatory customs are against current concepts of Domestic as well as international Law. Legally in the state of Jammu and Kashmir, they have been obliterated for all times to come ,and can be deemed to have never existed . Additionally due their discontinuousness with effect from 26th February 2007 up to 9th August 2019, the customary usages have lost the status of being enforceable in The state of J&K since 26th February 2007 .
That Applicability of The Muslim Personal Law ( Shariat) Application Act ,1937, in substitution of The J&K Muslim Personal Law ( Shariat) Application Act ,2017, has the effect of infringing both the fundamental rights guaranteed under part III of the Constitution of India as well as of Basic Human rights guaranteed under International Convention on Human Rights and other conventions and treaties. It has resulted in violation of rights guaranteed to women under the Constitution and have under United Nations Convention on The Elimination Of All Forms Of Discrimination Against Women [CEDAW] ,adopted by General Assembly in 1979 and ratified by one hundred eighty five states including India and has the status of being the part of Domestic Law. For the reason of violability both under The Basic human rights and The fundamental rights and under Domestic as well as International Law , the action of the parliament either in exercise of the powers conferred upon it under the Constitution of India or the power of the State Legislature assumed by it, lacks legislative competence a enact such a law . Since the Jammu and Kashmir Reorganization Act,2019 [ Act No.14 of 2019 ] was passed in haste. Otherwise, having regard to the current deeper awareness of The fundamental as well as The Basic Human Rights ,and the abhorrence of Gender inequality, it would not have been the intention of the parliament to enact the law which, amongst other things , has resulted in substitution of The J&K Muslim Personal Law ( Shariat) Application Act ,2017 by The Muslim Personal Law (Shariat) Application Act ,1937. Probably some person in Department of Law, Government of India , being oblivious of the consequence of the state of things it may ensue, mainly for achieving the avowed aim of superiority of the Central Laws over the state Laws , has incorporated The Muslim Personal Law ( Shariat) Application Act ,1937 at Serial no.61 of _TABLE-I of Fifth Schedule enumerating the central Laws made applicable to The Union Territory of Jammu And Kashmir; and union Territory of Ladakh , and in substitution of it incorporated The J&K Muslim Personal Law ( Shariat) Application Act ,2017 at Serial No.86 of the Table -4 ,enumerating State Acts including governor’s act which are repealed in The Union Territory of Jammu And Kashmir; and union Territory of Ladakh.
Reportedly after Applicability of The Muslim Personal Law ( Shariat) Application Act ,1937 in substitution of The J&K Muslim Personal Law ( Shariat) Application Act ,2017 there has been a surge , both in revenue forum as well as in civil courts , in the cases involving question of dispute of inheritance on the basis of conflicting pleas of Law. Recently Justice Chaterjee Koul , in a decision of the J&K High Court has expressed judicial anguish upon the conduct of an unscrupulous brother, who pretending to be a Muslim had , on the plea of existence of contrary customary usage , confounded the share of his sister conferred to her under personal law from out of the property left by her father, and subjected her to prolonged agony by abuse of the judicial process .
Under The Islamic theory of justice, the prescribed duties have prominence over the rights, which are correlative to duties . The Islamic Law is supplemented by the individual and collective moral duties of the Society. A Muslim is commanded by the Holy Quran to promote - by word, conduct and action - the good and abhor the reprehensible.. The exigency of the time demands the local people ,particularly those living in rural areas , being conscious of their religious , moral and social duties , to exert their influence upon the culprits of the area to desist them from denying the local women’s right of inheritance in accordance with personal Law to their respective shares in the properties left by their ancestors. Since by bringing into force The Muslim Personal Law ( Shariat) Application Act ,1937 in substitution of The J&K Muslim Personal Law ( Shariat) Application Act ,2017 are intended to be insidious to women and create a state of affairs due to uncertainty and indefiniteness for unending contestation. This may minimize the harm intended to be caused to women in The Union Territory of Jammu And Kashmir; and union Territory of Ladakh.
Recently the Law Commission of India has taken a laudable initiative of organizing a conference On “ Co-Operative Federalism And Law Reforms “ in Which The Voice- President ,C.P.Radakishnan, has urged The Law Commission of India, State Law Commissions and State Law departments to take steps through inter-state consultation and sharing of best practices and systematic reviews of outdated Laws and recommend their amendment. Further surveys have demonstrated that rural women have greater contribution than that of men in husbanding the agricultural land , but except meager subsistance they are not being adequately compensated for the work extracted from them. Following the examples of States of Madras, Tamil Nadu and Andra pradesh , it would be in public interest upon Territories J&K and Ladak, and the neighboring States to take requisite steps for abrogation of anachronistic and outdated gander discriminatory customary usages in their respective areas of jurisdiction.
Email:--------------------h. U. Salati@gmail.com
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