Analysing Voluntary Evasion of Shariat Law and Seeking the Applicability of Indian Succession Act: Muslim Succession and the Constitutional Guarantee of Religious Freedom

Abstract

This research article explores the constitutional dimensions of religious freedom in India, focusing on the voluntary evasion of Muslim Personal Law (Sharia) in matters of succession. It examines recent petitions before the Supreme Court which seek the applicability of the secular Indian Succession Act, 1925, over the Muslim Personal Law (Shariat) Application Act, 1937.

The article highlights the legal conundrum: created by Article 25 of the Indian Constitution and Section 58 of the Indian Succession Act creating a statutory void for those desiring a secular legal framework for inheritance. The article analyses the implications of this legal gap on the fundamental rights guaranteed under Article 25 of the Constitution, which ensures freedom of religion, including the right not to practice any religion.

For the purpose of this research, an exploratory method was adopted and data were collected via books, articles and other PIL petition archives. The study argues for a re-examination of existing laws to accommodate individuals’ choices in personal law matters, thereby aligning statutory provisions with constitutional guarantees of equality and freedom of belief and concludes by advocating for legislative reforms that provide clear mechanisms for individuals to opt for secular succession laws, ensuring that personal autonomy and constitutional rights are upheld in India’s pluralistic legal system.​

Introduction

In a country as diverse and culturally rich as India, understanding the nuances of various legal frameworks is crucial for fostering societal harmony and legal awareness. Muslim succession law, governed by the principles of Sharia, holds unique significance in India’s pluralistic legal landscape.

It’s not just a matter of legal practice, but one deeply intertwined with the religious and cultural identity of millions of Indian Muslims. For anyone interested in family or property law, societal justice, or simply gaining a broader understanding of India’s multifaceted legal system, delving into the intricacies of Muslim succession law and the issue in hand makes one to understand that the principle of “generalia specialibus non derogant”[1] is getting diluted i.e. the applicability of personal laws over general laws would not be a primary principle to be strictly followed in the near future.

The interplay between religious freedom and personal autonomy in India has been a subject of ongoing legal and societal discourse. A recent development in this realm is the Supreme Court’s decision to examine whether Muslims can opt to be governed by the secular Indian Succession Act, 1925, for matters of inheritance[2], instead of the Muslim Personal Law (Shariat) Application Act, 1937, with or without renouncing their Islamic faith.

This inquiry arises from petitions filed by individuals like Naushad K.K. and Safiya P.M., who seek to be governed by secular succession laws, citing reasons such as gender equality and personal choice[3].

The court’s willingness to delve into this issue underscores the evolving nature of personal laws in India and the need to reconcile religious doctrines with constitutional guarantees of equality and freedom. This paper aims to analyse the legal frameworks governing Muslim succession in India, the constitutional provisions related to religious freedom, and the implications of allowing voluntary evasion of Shariat law in favour of secular laws.

Muslim Succession in India:

Muslim succession in India is primarily governed by the Muslim Personal Law (Shariat) Application Act, 1937, which mandates the application of Islamic laws to Muslims in matters of personal law, including inheritance[4]. Under Islamic inheritance laws, the estate of a deceased Muslim is distributed among heirs based on fixed shares prescribed in the Quran. For instance, male heirs typically receive twice the share of female heirs.

The law does not recognize the concept of ancestral property, and the distribution is strictly among sharers and residuary heirs[5]. While the law aims to ensure an equitable distribution based on religious principles, it has been criticized for perpetuating gender disparities and not aligning with contemporary notions of equality.

Furthermore, the rigidity of the law leaves little room for personal discretion or testamentary freedom, as only up to one-third of the estate can be bequeathed through a will, and even that cannot be allocated to existing heirs[6]. These aspects have led to debates on the need for reform and the possibility of allowing Muslims to opt for secular succession laws that might offer more flexibility and equality.

Constitutional Guarantee of Religious Freedom:

Article 25[7] of the Indian Constitution guarantees all individuals the freedom of conscience and the right to freely profess, practice, and propagate religion, subject to public order, morality, and health. This provision ensures that individuals have the autonomy to choose their religious beliefs and practices. However, the application of personal laws, like the Muslim Personal Law, raises questions about the extent of this freedom, especially when individuals wish to deviate from religious laws in favour of secular ones.

The current legal framework does not provide a clear mechanism for Muslims to opt out of Shariat law without renouncing their faith, leading to a conflict between personal autonomy and religious mandates[8]. This situation brings to the forefront the need to interpret Article 25 in a manner that accommodates individual choices in personal law matters, ensuring that the constitutional guarantee of religious freedom includes the freedom to not be bound by religious laws if one so chooses.

On the other hand, adding complexity to the above issue: Personal laws are not regarded as laws as per Article 13[9] of the Constitution of India and therefore cannot be challenged on the grounds of violation of fundamental rights. Many verdicts upheld this rule, one of the major landmarks among them is the Youth Welfare Case[10] in which the court analysed the judgement of Narasu Appa Case & Krishna Singh Case[11] and upheld that non-statutory personal laws are not considered laws as per Article 13 of the Constitution of India 1950 and the personal laws therefore will transcend fundamental rights. Therefore, to deal with these complexities and to uphold fundamental rights, the need and implementation of a Uniform Civil Code can be given a thought.

Evasion of Shariat Law:

The term “evasion” in the context of Shariat law refers to the act of avoiding the application of Islamic personal laws, often by seeking alternative legal frameworks[12]. In India, Muslims who wish to be governed by secular laws for matters like inheritance face legal challenges, as the Indian Succession Act, 1925, explicitly excludes Muslims from its purview.

This exclusion creates a legal vacuum for those who do not wish to follow Shariat law but also do not want to renounce their Islamic faith. The lack of a legal pathway for such individuals to opt for secular laws without abandoning their religion raises concerns about personal autonomy and the right to equality.

The current legal structure effectively forces individuals to choose between their faith and their desire for a secular legal framework, a dilemma that underscores the need for legal reforms that allow voluntary evasion of religious personal laws in favour of secular ones, without necessitating a change in religious identity.

For instance, under Muslim Personal Law (Shariat), a Muslim individual may only bequeath one-third of their estate, and often not to legal heirs. The remaining two-thirds must follow fixed rules under Faraid[13]. Any will violating this can be declared invalid unless consented to by all heirs. And this is where the concern pops up that this violates personal liberty, equality, and religious conscience when enforced on individuals who consciously wish to opt out.

Seeking Indian Succession Act:

The Indian Succession Act, 1925, is a secular law that governs the distribution of property among heirs in cases where no will is present. It is preferred by individuals because of the following reasons: That the Indian Succession Act, 1925, ensures equal inheritance rights for men and women, allowing complete freedom to will the entire estate by providing a secular, religion-neutral legal framework.

It also recognizes adopted and illegitimate children as heirs and includes a wider and more flexible class of heirs, thus offering clarity and uniformity through codified provisions. More importantly, it upholds constitutional values of personal liberty and equality, and by being a secular legislation, it avoids complex religious interpretations and sectarian differences and empowers individuals to exercise free will over religious mandates.

Though the Act explicitly excludes Muslims from its application which is now being challenged before the top court, thereby mandating that they be governed by their personal laws. This exclusion poses challenges for Muslims, not only them but for all others who seek the applicability of this Act – as observed by Chief Justice Khanna, who was heading the Bench said, “If it is to apply to one faith, it must apply to all faiths.”

The Supreme Court’s decision to examine this issue opens the door for potential legal reforms that could allow Muslims to opt into the Indian Succession Act voluntarily. Such reforms would align with the constitutional guarantees of equality and freedom of religion, ensuring that individuals are not compelled to adhere to religious laws that they do not personally subscribe to[14].

Three Live Cases Before the SC:

• Naushad K K vs UOI & Anr. Writ Petition (Civil) No. 205/2025

• Safiya P. M. vs UOI & Anr. Writ Petition (Civil) No. 135/2024

• Khuran Sunnath Society & Ors. vs Ministry Of Law SLP (Civil) No. 9546/2016

At the first place it will be pertinent to discuss the Case of Khuran Sunnath Society as it has already undergone a legal battle on the issue in hand at the High Court of Kerala before the quorum of Chief Justice Ashok Bhushan & Justice A. M. Shaffique and the judgement was delivered on 02.07.2015[15] against which the SLP was filed.

The issues before the Kerala HC was that Shariat law for succession is based upon a superstructure of discrimination on the ground of sex concerned with inheritance and is violative of Articles 14, 15,19, 21 and 25 of the Constitution of India, for which it pleaded that Shariat law is based on misinterpretation of various Quranic principles thus resulting in discrimination on the ground of sex. A female child does not get equal share to male child born to Muslim father.

The sons who succeed to 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 also the distinction among Shias and Sunnis regarding succession added more to injustice.

Further, Muslim Scholars and legal experts have always given opinion that the Shariat law is not immutable and should receive change contextually responsive to social needs. Muslim Countries including Pakistan, Egypt, Malaysia, etc., have introduced legislation to implement the true Quranic principles by changing the law on various subjects.

Shariat certainly can be made more practicable and workable to adapt itself to the changing needs of the Society. With the aforesaid pleadings petitioners relied upon Mary Roy v. State of Kerala, 1986[16], John Vallamattom v. Union of India, 2003[17].

The Respondents Union of India, State of Kerala, Muslim Personal Law Board contended that Shariat Law has got statutory recognition which governs Muslim Personal Law and there is no misinterpretation of Quranic edicts and the Shariat is based on Quranic principles and other law. And more strikingly said that this petition cannot be entertained as a Public Interest Litigation and it has to be left to the wisdom of Legislature which is competent to enact law on the subject and they heavily relied upon Mohd Ahmed Khan v. Shah Bano Begum, 1985[18].

The Kerala High Court relied upon the apex court’s ruling in Maharshi Avadhesh v. Union of India, 1994[19] and held that “We are of the considered opinion that the issues raised in the Writ Petition cannot be adjudicated in proceedings under Article 226 of the Constitution of India in this Public Interest Litigation. It is for the Legislature to consider the issues raised and frame a competent legislation.” Thereby the Writ Petition got dismissed against which the current SLP is pending.

Safiya P. M. vs UOI & Anr, 2024:

The writ petition was filed by Safiya PM, a Kerala-based woman who claims that she is not a believer of Islam and therefore should be governed by the Indian Succession Act, 1925, in matters of inheritance, rather than Muslim Personal Law i.e. the Muslim Personal Law (Shariat) Application Act, 1937. The petitioner is the General Secretary of the organization “Ex-Muslims of Kerala” challenged the applicability of Muslim Personal Law to non-believing Muslims.

When the matter came up before the hon’ble court the Additional Solicitor General (ASG) Aishwarya Bhatti, appearing for the Union, argued that under Section 58[20] of the Indian Succession Act, Muslims were explicitly excluded from its provisions. Striking at the submission the petitioners Advocate Prashant Padmanabhan, informed the Court that a fresh application had been filed challenging the constitutional validity of Section 58 of the 1925 Act.

Safiya’s petition emphasizes the broader implications for individuals who wish to opt out of religious personal laws, particularly when these laws impose restrictions on inheritance and other civil rights. The petitioner highlights the fact that under Sharia law, apostates may forfeit their inheritance rights, a provision that raises concerns for her and her daughter’s future. The writ petition states:

“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 bench comprising former Chief Justice DY Chandrachud, Justices JB Pardiwala, and Manoj Misra was hearing the plea and submissions above. The Court noted the submissions and directed the Union to file a counter-affidavit in the matter. It is noteworthy that the Court had issued notice in the petition in the month of filing i.e. April itself. However, the submission made by The Union Government that it is within the exclusive domain of Parliament to decide whether the Indian Succession Act, 1925, would extend to Muslims who are non-believers, would apparently delay and drag the matter.

Naushad K K vs UOI & Anr, 2025:

The issue in hand has garnered the attention of legal experts and jurists. A Muslim man has approached the Supreme Court seeking a declaration that his inheritance should be governed by the Indian Succession Act, 1925, rather than Muslim personal law (Shariat). The plea was filed by Naushad KK, who appeared as petitioner-in-person before a bench comprising Chief Justice of India Sanjiv Khanna and Justice Sanjay Kumar.

During the hearing, the Court observed that a similar matter titled Sufiya PM v. Union of India is already pending adjudication. Proactively Mr. Prashant Padmanabhan, Advocate-on-Record in the Sufiya PM matter, informed the bench that there are key differences between the two petitions that: while Safiya PM had renounced her faith, the current petitioner, Naushad KK, continues to practise Islam.

Cautiously the petitioner submitted that[21]:

“The petition does not challenge or seeks to reform Muslim Personal Law itself but questions whether the State has the duty or constitutional authority to enforce religious mandates against an individual’s expressed will, especially when such enforcement violates fundamental rights guaranteed under the Constitution,”

The petitioner points out that the State does not enforce religious duties like prayer or fasting, yet mandates compliance with religious inheritance laws, creating a selective and arbitrary enforcement of faith-based rules.

When a Muslim opts out of Nikah and marries under the Special Marriage Act, 1954, the State does not enforce Nikah, even if both parties are Muslims.

Moreover, it presumes that by marrying under the Special Marriage Act, they have opted out of the entire Muslim Personal Law, including inheritance provisions, even without explicitly opting out of testamentary restrictions.

Conversely, when a Muslim intentionally opts out of testamentary restrictions by executing a Will ignoring the limitations or restrictions, the State deems it invalid, states the plea.

Now that all these petitions are tagged together by the SC order dated 17-04-2025[22] it is for the Union Government to expeditiously reply and initiate the judicial forum for arguments and interpretation to render justice in its most equitable form.

Conclusion:

The intersection of religious personal laws and constitutional guarantees of freedom and equality presents a complex legal landscape in India. The current legal framework mandates the application of Shariat law to Muslims in matters of inheritance, leaving little room for personal choice or deviation.

This rigidity conflicts with the constitutional rights of individuals who wish to be governed by secular laws without renouncing their faith. As The Supreme Court is to examine this issue signifies a critical juncture in the evolution of personal laws in India.

Legal reforms that allow voluntary opt-in to secular laws like the Indian Succession Act, 1925, for Muslims would uphold the principles of personal autonomy, equality, and religious freedom enshrined in the Constitution.

Such reforms would not only address the legal vacuum faced by individuals seeking to deviate from religious personal laws but also reinforce India’s commitment to secularism and individual rights.

End-Notes:

1. Latin term literally meaning “things general do not derogate from things special”. This is a common law principle for construing legislation which holds that a syntactical presumption may be made that where there is a conflict between a general and a specific provision, the specific provision will prevail. Other common syntactical presumptions are ejusdem generis and expressio unius est exclusio alterius.
2. Business Standard, “SC to examine Muslim inheritance under Indian Succession Law,” April 17, 2025
3. The Hindu, “SC to examine whether Muslims can be governed by Succession Law instead of Shariat,” April 17, 2025.
4. SpicyLaw, “Muslim Succession Law in India: A Comprehensive Analysis.”
5. Ibid.
6. Kashmir Vision, “Can Muslims be governed by Succession Law instead of Shariat? SC to examine.”
7. Freedom of conscience and free profession, practice and propagation of religion (Article 25)
8. LiveMint, “Can Muslims be governed by Succession Law instead of Shariat? SC agrees to examine,” April 17, 2025.
9. Article 13. Laws inconsistent with or in derogation of the fundamental rights
10. Youth Welfare Federation vs Union of India 1996 SCC On line AP 748
11. State of Bombay vs Narasu Appa Mali AIR 1952 Bom 84
12. Indian Succession Act, 1925, Section 58.
13. Faraid, the Islamic law of inheritance, is a fundamental component of Shariah that ensures the just and equitable distribution of a deceased person’s estate among rightful heirs.
14. Business Standard, op. cit.
15. 2015 SCC Online 13643.
16. (1986) 2 SCC 209 – The Supreme Court of India declared the Travancore Christian Succession Act, 1092, invalid under the Part-B State (Laws) Act, 1951, granting women in the Syrian Christian community equal inheritance rights.
17. (2003) 6 SCC 611 – SC held that Section 118 of the Indian Succession Act, 1925, discriminates against Christians in matters of testamentary disposition for religious and charitable purposes
18. (1985) AIR 945 – The court’s decision highlighted the need to balance religious personal laws with the constitutional right to equality and the protection of women’s rights
19. (1994) SCC, Supl. (1) 713 – the Supreme Court ruled against a petition seeking to mandate a common civil code for all citizens and to declare the Muslim Women (Protection of Rights on Divorce) Act, 1986, void.
20. Section 58. General application of Part – Provisions do not apply to testamentary succession to the property of any Muhammadan.
21. Mishra, S., Mishra, S., & LawBeat. (2025, April 17). LawBeat.
22. Record of proceedings in Writ Petition (Civil) No. 205/2025. Supreme Court of India.

References:

1. Centre, J. (2024, June 14). The Secular Indian Succession Act 1925 and its Applicability to Non-Believer Muslims. Juris Centre.
2. Supreme Court Observer. (2023, January 13). Uniform succession and inheritance – Supreme Court observer.
3. The Hindu. (2025, April 17). Supreme Court to examine whether Muslims can be governed by succession law instead of Shariat.
4. Prezi, M. N. O. (n.d.). Khuran Sannath Society v UOI. prezi.com.
5. ‘High Court of Kerala dismisses PIL challenging the constitutionality of Shariat Law’, Live Law.in, 11 July 2015.
6. ‘Flip-flop on personal laws’, IndiaTogether.
7. Mohd Haris Usmani, ‘Public interest litigation:- Its origin and meaning’, Legal services India.
8. ‘Petition challenging the constitutionality of Shariat law, dismissed’, The SCC Online Blog, 17 July 2015.
9. ‘Personal laws exempt from fundamental rights: Indian Union Muslim League’, The Times of India, 21 Feb 2014.

Award-Winning Article Written By: Dr P Brinda & Mr.Vishal N