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1991 Supreme(Bom) 353
IN THE HIGH COURT OF BOMBAY
D.R. Dhanuka, J.
Amina wd/o Ismail Shaikh .... Petitioner.
Guardianship Petition No. 86 of 1991, decided on 2-8-1991.
Advocates appeared :
A.J. Rizvi, for the petitioner.
A.S. Bobade, Advocate-General, as amicus curiae, with Suraj M. Shah, B.P. Pandya and Ms. Nirmala Chugani.
Personal laws are subject to fundamental rights and are enforceable in courts subject to provisions of the Constitution and not otherwise.
Headnote:
PERSONAL LAWS - SUBJECT TO PART III OF THE CONSTITUTION OF INDIA - WHETHER HIGH COURT HAS NO JURISDICTION TO EXAMINE THE QUESTION AS TO WHETHER THE IMPUGNED PROVISION OF 'PERSONAL LAW' IS IN CONFORMITY WITH CONSTITUTION OF INDIA OR NOT - WHETHER THE PROVISIONS OF SUNNI MUSLIM PERSONAL LAW' SOUGHT TO BE ENFORCED IN THE COURTS OF LAW TO THE EFFECT THAT A SON IS ENTITLED TO DOUBLE THE SHARE THAN THAT OF A DAUGHTER ON INHERITANCE IS VIOLATIVE OF ARTICLE 14 OF THE CONSTITUTION OF INDIA
Fact of the Case:
Petitioner sought directions against the State Bank of India, Jacob Circle Branch, to deposit the amounts of Term Deposit Receipts as also Monthly Interest Deposit Scheme receipts along with interest etc. with the office of the Accounts Officer, High Court, Bombay. Petitioner sought a further direction from the Court to the effect that the amounts which may be received by the Accounts Officer, High Court, Bombay, may be re-invested with any of the nationalised Banks in the name of the said minors till they attain majority or till their marriage, whichever was earlier, in the ratio of 2:1 of the total estate of the deceased, "the son getting double the share than that of the daughter as applicable under the Mohammedan Law".
Finding of the Court:
1. Personal laws are 'law' and 'laws' in force under Article 13 of the Constitution of India and are enforceable in courts subject to provisions of the Constitution and not otherwise. 2. Even customs and usages having the force of law are void if found inconsistent with any of the fundamental rights guaranteed by the constitution. 3. The provisions of Sunni Muslim personal Law' sought to be enforced in the courts of law to the effect that a son is entitled to double the share than that of a daughter on inheritance is violative of Article 14 of the Constitution of India.
Issues: 1. Whether 'personal laws'; are subject to Part III of the Constitution of India ? 2. Whether the High Court has no jurisdiction to examine the question as to whether the impugned provision of 'personal law' is in conformity with Constitution of India or not and is bound to enforce it as it is, even if it appears to be repugnant to one or other of the fundamental rights guaranteed under Part III of the Constitution of India ? 3. Whether the provisions of Sunni Muslim personal Law' sought to be enforced in the courts of law to the effect that a son is entitled to double the share than that of a daughter on inheritance is violative of Article 14 of the Constitution of India?
Ratio Decidendi: 1. The Constitution is a living document. It is impossible to ignore patent discrimination resulting from some of the provisions of personal laws sought to be enforced in our courts. 2. Some of these provisions appear to be clearly unjust - as for example : i) a Mohammedan male being entitled to marry four wives; ii) a Mohammedan husband being entitled to divorce his wife unilaterally by pronouncing of the word 'Talaq' thrice; iii) gross inequality and inequity in matter of inheritance merely on ground of sex; iv) provisions of old Hindu law depriving daughters of their right to inherit the property of their father if the deceased left a widow and a son behind him. 3. Traditional personal laws applicable to Hindus as well as Muslims discriminated amongst the male and the female heirs merely on the ground of sex.
Final Decision: The Court directed that the papers be placed before the Honourable Chief Justice and recommended that the Honourable Chief Justice may kindly consider constituting a larger Bench of at least three Judges to decide the question referred to in paragraph 1 of this order of reference in public interest as in the opinion of the Court, with respect, the Division Bench judgment of our High court in Narsu Appa Mali's case does not lay down the law correctly and the observations of the Supreme Court on the subject do not amount to 'law declared' under Article 141 of the Constitution of India.
(a) Whether 'personal laws'; are subject to Part III of the Constitution of India ?
(b) Whether the High Court has no jurisdiction to examine the question as to whether the impugned provision of 'personal law' is in conformity with Constitution of India or not and is bound to enforce it as it is, even if it appears to be repugnant to one or other of the fundamental rights guaranteed under Part III of the Constitution of India ?
(c) Whether the provisions of Sunni Muslim personal Law' sought to be enforced in the courts of law to the effect that a son is entitled to double the share than that of a daughter on inheritance is violative of Article 14 of the Constitution of India?
2. On or about 23rd April 1991, Mr. A.J. Rizvi, the learned advocate for the petitioner, presented this petition to me on behalf of Smt. Aminabai widow of Ismail Shaikh for being appointed as a guardian of two minors, Master Mehmood Ismail Shaikh and Kum. Shabana Ismail Shaikh, under Guardian and Wards Act VIII of 1890. By this petition, the petitioner has sought directions against the State Bank of India, Jacob Circle Branch, to deposit the amounts of Term Deposit Receipts as also Monthly Interest Deposit Scheme receipts along with interest etc. with the office of the Accounts Officer, High Court, Bombay. By this petition, the petitioner sought a further direction from the Court to the effect that the amounts which may be received by the Accounts Officer, High Court, Bombay, may be re-invested with any of the nationalised Banks in the name of the said minors till they attain majority or till their marriage, whichever was earlier, in the ratio of 2:1 of the total estate of the deceased, "the son getting double the share than that of the daughter as applicable under the Mohammedan Law". By this petition, the petitioner sought directions to the effect that the interest accrued on the amounts so invested may be handed over to the petitioner for the purpose of spending the same for the education, maintenance and upkeep of the said two minors. When this petition was placed before me for passing of an order, my immediate reaction was to the effect that the provision of Personal Sunni Muslim Law relied on by the petitioner to the effect that the son was entitled to double the share than that of the daughter on inheritance was perhaps violative of Article 14 of the Constitution of India. It is a known fact that some of the decided cases have taken the view that Personal Laws are not subject to fundamental rights and are thus incapable of being challenged on the ground of the same being violative of the doctrine of equality enshrined under Article 14 of the Constitution of India. It did occur to me then and there that the question was far too important and the founding fathers of our constitution never intended to exempt any law of any kind, not even the custom or usage having the force of law, from the basic requirement of constitutional law that every law and law in force must necessarily conform to the fundamental rights enshrined in Part III of the Constitution of India. I requested the learned advocate for the petitioner to issue a letter of request on behalf of the Court to Shri A.S. Bobde, the learned Advocate-General, for his assistance, views and contribution on the questions of public importance. Mr. A.S. Bobde, the learned Advocate-General, was kind enough to appear as amicus curiae and give his valuable assistance to the Court and cite several authorities on the subject. I passed order dated 17th May, 1991 on the petition keeping in substance the questions formulated in this order of reference open.
3. Section 51 of the Indian Succession Act, 1925 reads as under :--
"51. Division of male intestate property among his widow, children and parents. --
(1) Subject to the provisions of sub-section (2), the property of which
