AMINA WD O ISMAIL SHAIKH Vs. N R

JUDGEMENT

(1.) THIS petition raises the following important questions of Constitutional law of great public importance :-

(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 :--