The court issued notices to the Centre and the Kerala government on his plea for their responses.
“The present writ petition…seeks judicial recognition and protection of the right of Muslim individuals to testamentary autonomy-specifically, the right to opt out of the testamentary limitations imposed by Muslim Personal Law (Shariat) if they explicitly and voluntarily choose to do so,” Naushad said in his plea.
He sought the judicial recognition of the right of Muslim persons to exercise full testamentary autonomy, particularly the freedom to deviate from restrictions imposed by Muslim Personal Law (Shariat) when drafting a Will.
The plea asked if the state could enforce religious mandates upon persons who explicitly choose not to follow them — especially when such enforcement infringes upon their fundamental rights.
The plea, therefore, sought directions to the governments to “recognise and honour” the wills executed by Muslims, provided they comply with secular laws, without subjecting them to validation under Muslim Personal Law.
Under Shariat, the plea said, a Muslim person can bequeath only up to a third of their estate through a will, and among Sunni Muslims, this is limited to non-heirs.
“The remaining two-thirds must be distributed among legal heirs according to fixed Islamic inheritance principles (Faraid). Any deviation from this, is deemed invalid unless the legal heirs consent. This restriction on testamentary freedom raises critical constitutional concerns,” it said.
The compulsory application of religious inheritance rules violates key provisions of the Constitution like Article 14 (Right to Equality), it argued.
Muslims are denied the same freedom of will-making granted to members of other communities and even to Muslims who marry under the secular Special Marriage Act and this creates an arbitrary and discriminatory classification, it added.
The plea said testamentary autonomy is integral to personal liberty and human dignity and forcing adherence to religious inheritance laws against one’s will infringes upon this right. It then referred to Article 25 (Freedom of Conscience and Religion) and said besides protecting the right to practice religion, it also protects the right not to follow religious mandates.
“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,” it said.
Conversely, when a Muslim intentionally opts out of testamentary restrictions by executing a will ignoring the limitations or restrictions, the state deems it invalid, it added.
The petitioner, therefore, sought directions to the legislature to consider enacting necessary amendments or guidelines to ensure testamentary autonomy for all persons, irrespective of religious identity.
While issuing the notice, the bench ordered tagging of the plea with similar pending cases on the issue.
In April last year, the bench agreed to consider a plea of Safiya P M, a resident of Alappuzha and general secretary of “Ex-Muslims of Kerala”, that she is a non-believer Muslim woman and wanted to deal with her ancestral properties under the succession laws instead of Shariat.
Another similar plea filed in 2016 by Quran Sunnat Society is also pending in the top court which will now hear the three petitions together. PTI SJK SJK AMK AMK
