An Open Goal: The Supreme Court’s Notice on Muslim Inheritance Law

From Charanjit Lal Chowdhury v. Union of India (1950) and State of West Bengal v. Anwar Ali Sarkar (1952) to Budhan Choudhry v. State of Bihar (1955) and Ram Krishna Dalmia v. Justice S.R. Tendolkar (1958), the Hon’ble Court has held that Article 14 forbids class legislation, not reasonable classification. A classification is valid when it rests on an intelligible differentia that has a rational nexus with the object of the law. Equal protection means equal treatment of those who are similarly situated; it does not require identical treatment of those who are not.

The European Court of Human Rights put the same point from the other side in Thlimmenos v. Greece (Grand Chamber, 2000) : discrimination also occurs when a State, without objective justification, fails to treat differently persons whose situations are significantly different. A uniform share imposed on heirs who carry unequal legal burdens is not equality. It is a different inequality.

The petition’s reliance on manifest arbitrariness fares no better. Shayara Bano itself defined the doctrine as action taken “capriciously, irrationally and/or without adequate determining principle.” The Qur’anic scheme has a determining principle, stated in the text and developed over fourteen centuries of jurisprudence : the share follows the obligation. Jurists express it in the maxim al-ghunm bil-ghurm, gain goes with liability. One may prefer a different principle. That preference does not make the existing one arbitrary.

Nor does Article 15(1) settle the matter. It bars discrimination on grounds “only” of sex. The Islamic allocation is not made on sex alone; it is made on sex together with the legally enforceable financial role that Islamic law attaches to each heir. And Article 15(3) expressly permits special provision for women, which is what mahr, maintenance and the woman’s exemption from all household expense are.

The petition’s premise, in short, is sound only if Islamic law is judged through the lens of another jurisprudential system, one in which inheritance is detached from obligation. Judged on its own terms, as every legal system is entitled to be judged, the scheme treats persons differently because they are differently placed. That is not discrimination. It is classification.

Arithmetic and responsibility

Islamic inheritance is not a rule that women get half. It is a system of fixed shares, set out in Surah al-Nisā’ 4 :11, 4 :12 and 4 :176, in which the size of a share tracks the financial duties the heir carries. The 2 :1 ratio appears in some configurations, mainly between children and between full or consanguine siblings who take as residuaries. In others the woman takes the same as the man, more than the man, or inherits where the man takes nothing.

One well-known study, Salah al-Din Sultan’s Mīrāth al-Mar’a wa Qaḍiyyat al-Musāwāh, reportedly counts only a handful of situations in which the woman takes half of what a man in the same degree takes, against a larger number in which she takes an equal share, more, or inherits alone.

Where the 2 :1 ratio does apply, it is the other face of a balance sheet the petition leaves out :

1. Mahr. The husband must pay dower to the wife (4 :4). It is her property absolutely; the man pays it, the woman receives it.
2. Maintenance. The husband must maintain the wife regardless of her own wealth (4 :34, 65 :6–7), and the father his children. The woman has no legal duty to spend a rupee of her inheritance, her earnings or her mahr on the household, or even on herself.
3. Kin support. Sons must maintain needy parents, and, in the Hanafi school that most Indian Muslims follow, the duty to support needy relatives falls on those who would inherit from them, in proportion to their shares.

Indian law already recognises this correlation. Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 makes the relatives who would inherit from a divorced woman liable to maintain her, in the proportions in which they would inherit. The Constitution Bench upheld the Act in Danial Latifi v. Union of India (2001) 7 SCC 740. The legislature and this Court have thus accepted that, in Muslim law, inheritance and liability travel together.

Take an estate of ₹30 lakh left to a son and a daughter. The son takes ₹20 lakh and with it the duty to pay mahr, to maintain a wife and children, and to support his parents if they are in need. The daughter takes ₹10 lakh that no one can touch, receives mahr of her own, and is maintained by her husband. Measured by what each is left to keep, the daughter is not the one short-changed.

Two further points expose the petition’s framing.

First, it seeks equal rights in “ancestral property.” Muslim law has no coparcenary and no ancestral property; no heir takes any right by birth, and succession opens only on death. The prayer framed in Mitakshara vocabulary shows exactly which system’s lens is being applied.

Second, where the balance sheet fails in practice, because maintenance is not paid or mahr is nominal, the answer is to enforce the obligations, not to abolish the shares that presuppose them. A reform that equalises shares while leaving the Muslim husband’s and son’s obligations untouched would load men with duties and strip them of the means; one that also dissolved those obligations would leave Muslim women worse off than they are now. That is precisely the vacuum the Chief Justice warned of in March.

Testimony : duty, not a right

The inheritance argument is usually travelling with a second one : that Islam values a woman’s evidence at half a man’s. The charge misreads both the verse and the concept.

The verse is 2 :282, and its subject is the documentation of a deferred commercial debt. It asks for two men, or a man and two women, “so that if one of them errs, the other can remind her.” The second woman is there to remind, not to supply the missing half of a credibility score. The same verse says : “Let not the witnesses refuse when they are called,” and the next forbids concealing testimony (2 :283).

That is the key. In Islamic law, bearing witness (shahāda) is not a privilege to be claimed; it is an obligation that can be summoned, and a burden that can expose the witness to hardship. False testimony carries serious penalties. In the commercial setting of seventh-century Arabia, where women were rarely party to such transactions, the verse spreads that burden across two women so that neither bears it alone and the lapse of one does not defeat the transaction. It lightens a duty. It does not diminish a person.

The classical tradition read it that way. Ibn Taymiyya and Ibn al-Qayyim, in al-Ṭuruq al-Ḥukmiyya, distinguished between documenting a transaction and giving evidence before a judge, and held that the judge may rely on whatever establishes the truth, including a single credible woman. In matters within women’s knowledge, such as birth, the jurists accepted the testimony of women alone. In li’ān (24 :6–9), the wife’s five oaths stand equal to the husband’s and defeat his accusation. And the transmission of the Prophet’s own sayings, the foundation of the entire legal system, accepts a woman’s report exactly as it accepts a man’s; a large part of that corpus rests on the word of bibi A’isha alone.

In any case, the point has no bearing on this petition. Evidence in every Indian court is governed by the Bharatiya Sakshya Adhiniyam, 2023, as it was by the Evidence Act of 1872, which apply alike to all. No Indian court weighs a Muslim woman’s testimony at half. Raising 2 :282 in a debate about succession serves rhetoric, not law.

A petition that isolates one ratio from one verse gives a distorted picture of the law it attacks. Read as a whole, Islamic family law gave women legal standing that other systems reached only much later.

• Consent and contract. Nikah is a civil contract, not a sacrament. It is void without the woman’s consent, and she may write conditions into it, including a delegated right of divorce (talaq-e-tafwid, also written as talaq-e-tafweez) .
• Separate legal personality. A Muslim woman keeps her own name and her own property on marriage. Her husband acquires no rights over her estate. English law did not fully abandon coverture until the Married Women’s Property Acts of 1870 and 1882.
• A right to exit. Islamic law recognised the wife’s right to end a marriage by khul’. The Dissolution of Muslim Marriages Act, 1939 gave Muslim women statutory grounds for judicial divorce sixteen years before the Hindu Marriage Act, 1955 gave Hindu women a nationwide right to divorce. In 2021 the Kerala High Court affirmed that a Muslim wife may invoke khul’ without the husband’s consent. A division bench of the Telangana High Court reached the same conclusion.
• Mahr and maintenance. Dower is the wife’s own; maintenance is the husband’s duty whatever her wealth. The Constitution Bench in Danial Latifi read the 1986 Act to require a reasonable and fair provision for the divorced wife’s future, not merely maintenance for the iddat period.
• Remarriage. Widows and divorcees have always been free to remarry. No reform movement was ever needed to secure it.
• Inheritance from the seventh century. Verse 4 :7 gave women “a share of what the parents and close relatives leave, be it little or much : an obligatory share” at a time when, in much of the world, women were themselves treated as part of the estate.

None of this means Muslim women never suffer injustice. They do, as women in every community do. But the injustice lies overwhelmingly in the non-enforcement of rights the law already gives : unpaid mahr, withheld maintenance, daughters pressured to relinquish their shares. The remedy for a right not enforced is enforcement. It is not to replace the right with one borrowed from a different system, under the supervision of an executive whose record on Muslim women’s rights has been selective.

What other democracies and courts are stated to have done

The petition presents equalisation by judicial decree as the only modern course. The comparative record says otherwise. Plural democracies with Muslim minorities, and courts that have faced the question, have overwhelmingly chosen accommodation, consent and individual choice.

• Kenya. Article 24(4) of the 2010 Constitution qualifies the equality provisions “to the extent strictly necessary for the application of Islamic law before the Kadhis’ (Qazi’s) courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance.” A modern, rights-heavy constitution wrote Islamic inheritance into its text rather than out of it.
• Singapore. Under the Administration of Muslim Law Act, 1966, Muslim estates are distributed by the Islamic rules of succession, with a Syariah (Shariah) Court for family matters. Singapore entered reservations to Articles 2 and 16 of CEDAW specifically to protect Muslim personal law.
• The Philippines. The Code of Muslim Personal Laws (Presidential Decree 1083 of 1977) applies Islamic succession to Muslim Filipinos through dedicated Shari’a courts.
• South Africa. Section 15(3) of the Constitution authorises legislation recognising systems of personal and family law. The Constitutional Court has repeatedly extended protection to Muslim spouses within their own law, not displaced it : Daniels v. Campbell (2004), Hassam v. Jacobs (2009) and Women’s Legal Centre Trust v. President of the Republic of South Africa (2022). Where it did strike down a succession rule, in Bhe v. Magistrate, Khayelitsha (2004), the rule was customary male primogeniture, which excluded women entirely, and the challenge was brought by the women it excluded. Neither feature is present here.
• Greece. In Molla Sali v. Greece (Grand Chamber, 2018), the European Court of Human Rights found a violation where Greece forced Islamic succession on a Muslim testator’s estate against his own choice. The lesson was not that Islamic law is discriminatory; it was that the choice belongs to the individual Muslim, not the State. Greece responded by making recourse to Islamic law optional (Law 4511/2018), not by abolishing it. India already provides such an exit : a Muslim who marries under the Special Marriage Act, 1954 is governed by the Indian Succession Act. That is choice. What the petition seeks is compulsion.
• India’s own treaty commitments. When India ratified CEDAW in 1993, it declared that it would apply Articles 5(a) and 16(1) “in conformity with its policy of non-interference in the personal affairs of any Community without its initiative and consent.” That declaration stands. A court-driven or executive-driven rewrite of Muslim inheritance, without the community’s initiative or consent, is the very thing India told the world it would not do. Article 27 of the ICCPR, to which India acceded in 1979, protects the right of religious minorities to profess and practise their own religion in community with other members of their group, and the UN Human Rights Committee’s General Comment 23 reads it as requiring positive measures to protect minority identity.

The cautionary model sits on the other side. China’s 2021 Civil Code unified family and inheritance law across the country and has operated in Xinjiang as an instrument of erasure, not equality. Uniformity pursued as a marker of loyalty is not reform. The question for India is which of these models its institutions are moving towards.

What the Hon’ble Court can do now

The notice has issued, but the ball is not yet in the net. The Hon’ble Court still controls how this matter proceeds, and it may decide take the following steps.

1. Hold the matter for the nine-judge bench. The questions in the Kantaru Rajeevaru reference go to the root of this petition. The Hon’ble Court may hold that no three-judge bench should decide, or invite the executive to pre-empt, what a Constitution Bench of nine is yet to answer.
2. Insist on the real parties. The Hon’ble Court may decide that Muslim women heirs, community bodies, scholars of fiqh, the National Commission for Minorities and the Ministry of Minority Affairs belong in this case. The Ministry of Youth Affairs and Sports does not. A declaration affecting the succession of an entire community cannot be sought behind its back.
3. Apply its own April test. The bench said reform should come from within the faith and that actual sufferers should be before it. The Hon’ble Court may require the petitioner to implead affected groups and stakeholders.
4. Refuse adjudication by concession. The Hon’ble Court may make clear that the Union’s counter-affidavit, whatever it says, cannot dispose of the constitutional question, and may not end the matter by directing the Union to “consider a representation,”  as that route turns a writ petition into a mandate for executive policy with no court ever having decided the law.
5. Ask what fills the vacuum. In March His Lordship the Chief Justice asked what would replace the 1937 Act. That question has not been answered. Until it is, the Hon’ble Court may decide not to take any step that invites the executive to answer it unilaterally.
6. If the concern is Muslim women, enforce their existing rights. Unpaid mahr, maintenance withheld, and daughters coerced into relinquishing their shares are real and justiciable. The Hon’ble Court may decide to issue directions on those : that would help Muslim women now, without dismantling the law that gives them their rights.

The judiciary’s standing as the nation’s conscience-keeper rests on independence from every kind of pressure; constitutional correctness must be renewed with every judgment.

A constitutional court earns its authority by being the one institution that does not defer to either majority or minority. When the executive’s position is a matter of public record and the petition’s premise rests on another system’s yardstick, the better counter-majoritarian course was perhaps to decline. That would have denied an interested striker, waiting for just such a pass, the chance to score an unjustified goal.

The Muslims need not worry. The Hon’ble Court, having issued notice, may well now prefer that the answer comes from the Hon’ble Courtroom, after hearing those whose law it is, and not from a body that may have been waiting for the question.

Jai Hind