"In Our Over-Anxiety for Reforms, We May End Up Depriving Them": Supreme Court Questions Potential Legal Vacuum While Hearing Plea For Rights Of Muslim Women In Inheritance

The Supreme Court has raised concerns regarding a "legal vacuum" that could arise if the Muslim Personal Law (Shariat) Application Act of 1937 is struck down without a statutory replacement.

The Court was hearing a plea which contended that the current inheritance provisions are unconstitutional because they grant Muslim women fewer rights than men, thereby violating the fundamental right to equality.

It was argued that inheritance is a civil right rather than an essential religious practice protected under Article 25. It was asserted that the 1937 Act creates artificial discrimination and should be tested against the anvil of Article 14, much like the practice of "triple talaq" was in the Shayara Bano case.

The Bench comprising Chief Justice Surya Kant, Justice R. Mahadevan and Justice Joymalya Bagchi expressed caution regarding the potential for a "legal vacuum" if the Act were struck down. The Court questioned whether it should adjudicate the constitutionality of personal laws at all, referencing the historical State of Bombay v. Narasu Appa Mali decision, which held that personal laws are not subject to constitutional tests.

Advocate Prashant Bhushan appeared on behalf of the Petitioners.

Bhushan submitted, "This petition raises a very important question regarding the succession rights of Muslim women in India."

CJI Surya Kant said, "But tell us, Mr. Bhushan, if the 1937 Act is set aside, how will those rights be guaranteed unless you have a replacement statute?

Bhushan replied, "There is the Indian Succession Act."

CJI Surya Kant said, "Today, one state has granted that."

Bhushan clarified, "I am not focusing mainly on that issue."

CJI Surya Kant said, "No, no. You may not be. But let us see: you are challenging the 1937 Act directly on the simple principle of Article 14. You argue it creates artificial discrimination between Muslim men and Muslim women by denying them equal rights to inheritance. That is a simple point. If we strike that down, what vacuum is created? And how do they get their rights?"

Bhushan replied, "The Indian Succession Act will apply. In fact, in Mary Roy’s case, the conflict was with the Travancore State Act, which provided less or no inheritance to Christian women in the state of Kerala. The question there was whether that violated the Indian Succession Act, which provides equal rights to males and females. The Indian Succession Act is a secular act."

CJI Surya Kant said, "No, but does the Indian Succession Act apply to Muslims? Please confirm it. I am not sure about that."

Bhushan said, "Then the question will be whether Sharia law—which says Muslim women are entitled to half of what males are entitled to—can stand. Just as in the Shayara Bano case, my Lord, this Court held that the practice of Triple Talaq, even if part of Muslim personal law, is arbitrary and against public policy. Therefore, it was liable to be struck down on the ground of Article 14. I am saying the same here. Any personal law that is not an essential religious practice—and we are not on that point at all—must be tested."

CJI Kant remarked, "We are proceeding on the premise that suppose there are two statutes holding the field. One violates Article 14 and the other protects them. If you strike one down, the other automatically occupies the field and takes care of the problem. Our concern is only this: if you strike down this Act, do you create a complete vacuum?"

Justice Bagchi said, "Mr. Bhushan, even in Shayara Bano, the judges took different approaches. Justice Nariman’s view was that the 1937 Act crystallizes a statutory recognition of pre-existing personal law. However, Justice Khehar, then the Honorable Chief Justice, did not agree. He held what you are arguing: that even if it is Muslim personal law, it is protected unless it is not an essential religious practice. If we apply Justice Nariman's ratio and hold that the 1937 Act is violative of Article 14, the underlying personal law may still continue to survive under Article 372."

The Court discussed the complexities of interfering with personal laws. Justice Bagchi noted that past decisions, such as Narasu Appa Mali, suggested personal laws might not be subject to constitutional tests. Furthermore, the Bench suggested that such broad social reforms might be better addressed by the legislature through a Uniform Civil Code (UCC).

Justice Bagchi added, "Let us, for the sake of argument, say the 1937 Act did not exist. Would Muslim inheritance not be guided by personal law, which is acknowledged under Article 372 and the Narasu Appa Mali judgment?"

Bhushan replied, "Just as the Supreme Court held in the Shayara Bano case, the Constitution Bench found Triple Talaq to be an arbitrary practice that cannot survive."

CJI Surya Kant remarked, "That is right. But we must not lend ourselves to creating a problem where women lose even what they are currently getting. In our over-anxiety for reforms, we may ultimately end up depriving them."

Bhushan said, "Therefore, I am seeking a further declaration that Muslim women will be entitled to equal inheritance rights as Muslim males. That same thing was held in the Mary Roy case."

CJI Surya said, "Now you are coming to the point. Therefore, you want us to first strike down the 1937 Act and then "re-legislate" some provision?"

Advocate Prashant Bhushan argued that inheritance is a civil right rather than an "essential religious practice" protected under Article 25 of the Constitution. He asserted that the 1937 Act creates "artificial discrimination" between genders. Under the current Shariat law, women are often entitled to only half the share of inheritance compared to their male counterparts. This disparity should be tested against Article 14 (Right to Equality), similar to how "Triple Talaq" was struck down in the Shayara Bano case, he said.

Bhushan submitted, "There are two ways of looking at it. One is to say that the Indian Succession Act will govern the succession of Muslim women, giving them equal rights. Alternatively, if your Lordship holds that the protection given by the 1937 Act is unconstitutional regarding inheritance, then the corollary is that any personal law violating equality is contrary to the Constitution, and therefore, Muslim women must enjoy equal inheritance."

The Bench indicated that the petition would gain "better credence" if it specifically focused on the deprivation of rights and included more Muslim women seeking to "wriggle out" of the 1937 Act. Bhushan confirmed that some petitioners are indeed Muslim women and argued that constitutional advancement is often incremental.

CJI Surya Kant said, "The 1937 Act is a legislative exercise. Any legislative exercise found to be confronting a constitutional provision can be handled—no difficulty there. But creating a right by going into personal law may be a difficult exercise for the Court."

Justice Bagchi said, "This is exactly what we would like you to enlighten us on. Until we can create a "through-judicial-fiat" equal strata for these asymmetric property rights, declaring the personal laws ultra vires might create an unnecessary void. In such a situation, it may be better to defer to the wisdom of the legislature to bring in a Uniform Civil Code as per the Directive Principles."

Bhushan said, "That could have been said for Triple Talaq as well."

Justice Bagchi said, "Take Triple Talaq; you are making a very good case for discrimination. But striking down a standalone legislation does not take away the underlying personal law. If the right to dissolution of marriage remains asymmetrical, the problem persists. For a Muslim man, it can be done unilaterally. Is it not true that one of the major issues is whether Muslim women have a right to seek divorce at all?...But has the basic equality of one woman and one man in a monogamous existence been achieved throughout the country? No. Can we declare all bigamous relationships founded on personal law ultra vires Article 14? We have to defer to the wisdom of the legislature to bring Directive Principles into reality."

CJI Surya Kant said, "Ideally, Mr. Bhushan, if a platform like a Waqf Board or a welfare association represented by Muslim women came forward saying, "We want to wriggle out of the 1937 Act; even if we get nothing, we want to be free of this discriminatory legislation," that would be one way of dealing with it."

The Bench remained focused on whether such reforms should be left to the "wisdom of the legislature" to enact a Uniform Civil Code as per the Directive Principles of State Policy. Justice Bagchi pointed out that many "oases of asymmetry" exist in various personal laws, including those involving bigamy and the rights of Scheduled Tribes, suggesting that a legislative approach might be more appropriate. However, the Court indicated it would be more inclined to intervene if more Muslim women themselves sought to "wriggle out" of the 1937 Act to secure equal rights.

Bhushan agreed to amend the petition to include suggestions for legal alternatives and to better address the consequences of removing the Shariat inheritance provisions.

The Court ordered, "Post this matter after four weeks. Meanwhile, the petitioners are permitted to file an amended petition."

The matter has been adjourned for four weeks to allow for the filing of this amended petition.

Cause Title: Poulomi Pavini Shukla v. Union of India [Diary No. No. 67256/2025]