An Exit from Personal Law? Atheism, Inheritance, and the Architecture of Secular Default Law

Family law in India is designed to give primacy to religious personal laws, with limited state intervention. Given this religion-based framework, how is an atheist governed in matters of family, marriage, divorce, and inheritance? Does Indian law provide a fall-back option for those who renounce their faith?

The Supreme Court of India will soon address this matter on a petition filed by Safiya, an atheist challenging the legal consequences of exiting religion. This essay suggests that the answer may already lie in the statute book: the Indian Succession Act 1925 could serve as a default regime for those outside recognised personal laws, if its provisions are read closely.

How does law conceive religious identity?

As a matter of legal practice, a person’s religion is presumed to be the one they are born into, unless displaced by conversion. Conversion may be evidenced through self-declaration, performance of religious ceremonies, conduct demonstrating adherence to the new faith, publication in the official gazette, or by a specific procedure as prescribed by respective state legislations.^[1] However, atheism lacks statutory recognition. Most official forms do not have an option to mark the religion as ‘None’. While some high court judgments have allowed petitioners to secure ‘No Caste, No Religion’ certificates, these are exceptions. The legal system acknowledges conversion to another religion more easily than an exit from religion altogether.

Administrative trigger: Kerala Muslim Personal Law (Shariat) Application Rules 2018

In 2018, the Government of Kerala issued the Kerala Muslim Personal Law (Shariat) Application Rules under Section 3 of the Muslim Personal Law (Shariat) Application Act 1937.^[2] Given that no rules had been issued under this provision for over 80 years, what compelled the Kerala government to act?

The litigation that triggered the 2018 Rules arose from a conversion-related case.^[3] The petitioner, originally a Christian man married to a Hindu woman, converted to Islam and faced bureaucratic hurdles in establishing the personal law he would be governed by. Instead of relying on a standard gazette notification, he invoked Section 3 of the Shariat Application Act as a strategic legal pathway to clarify his legal status.

Under Section 3, a Muslim governed by customary law in matters relating to adoptions, wills, and legacies may file a declaration opting to be governed by Shariat instead. State governments may file rules to give effect to this provision. This can institute a declaration mechanism that operates as an entry provision, enabling a shift from custom to Shariat. Traditionally, several Muslim trading communities in India, like Cutchi Memons, Bohras, and Khojas followed particular practices in relation to wills and adoption, and this provision operated as a persuasive mechanism for them to adopt shariat over their customary practices, through voluntary declaration. In other words, this is not intended to require every Muslim in India to seek a declaration for the Shariat Application Act to apply.

The petitioner in this case moved the court for a direction that the state issue rules under this Section, enabling his formal declaration to be governed under the Shariat. The high court issued the directions; the state, initially reluctant, complied only after contempt proceedings were initiated.^[5]

The 2018 Rules raise a more foundational question: if Section 3 enables a declaration to be governed by Shariat, does Indian law permit a corresponding exit from it?

The Ex-Muslim Dilemma

In 2024, Safiya, identifying as an ‘ex-Muslim’, approached the Supreme Court of India with a different demand.^[7] While Safiya and her father were both non-practising Muslims, they had never formally renounced Islam. Given her public positioning as an ex-Muslim, she feared loss of inheritance rights, as traditional Muslim Law does not permit inheritance to non-Muslims.

She appealed to the court for an interpretation of the newly enacted Kerala Muslim Personal Law (Shariat) Application Rules that would allow Muslims wishing to opt out of the Shariat Law to file a declaration under those rules. She further sought a declaration that non-believers would be governed by the Indian Succession Act 1925; this would enable her to bequeath her property exclusively to her daughter, to the exclusion of other relatives who would otherwise qualify as the legal heirs under Muslim Personal Law.

Is Safiya’s fear that renouncing Islam will lead to disinheritance legally accurate? Classical personal laws do disqualify individuals from inheritance on the basis of apostacy. This concern was addressed as early as 1850 in the Caste Disabilities (Removal) Act. The Act provided that no person should have to forfeit inheritance merely for renouncing their religion and rendered any contrary laws void.^[8] However, a new complication has arisen with the repeal of this Act in 2018.^[9] The legal consequences of this repeal is unclear—specifically whether the protection against disinheritance on grounds of apostacy survives as a constitutional norm or through judicial interpretation.

The Indian Succession Act as ‘General Law’

The Indian Succession Act provides for three distinct regimes for succession:

1. Intestate Succession for those other than Hindus, Muslims, Buddhists, Sikhs or Jains (Sections 29–49),
2. Intestate Succession for Parsis (Sections 50–56)
3. Testamentary Succession (Section 57 onwards)

The first and third routes are relevant to this discussion. Section 29(1) provides that the provisions relating to intestacy under Part V shall not apply to the property of any ‘Hindu, Muhammadan, Buddhist, Sikh or Jaina’. Section 58 employs similar phrasing: while it excludes ‘Mohammadans’ entirely from the provisions relating to testamentary succession, it limits its application to Hindus, Buddhists, Sikhs, or Jains as provided under Section 57.

The language of these provisions is negative; the Act does not positively define who the law applies to. Instead, it frames the Indian Succession Act as the default law, applicable to everyone except the specified religious communities. This creates a unique scenario where the exclusion is broader than the inclusion; nevertheless, it positions the Act as the general law in matters of inheritance and succession, unless displaced by personal law.

Based on these provisions, if Safiya legally ceases to fall within the category of ‘Mohammadan’, she qualifies as an individual outside the exempted groups, that is, ‘Mohammadan, Hindu, Buddhist, Sikh, or Jaina’. According to this interpretation, the Indian Succession Act should apply to her.

Can Hindu Succession Act operate as a default legal framework

Can the Hindu Succession Act 1956 (HSA) apply as a default legislative framework as against the Indian Succession Act 1925? This question arises because of the broad definition of ‘Hindu’ under Section 2 of the HSA. A ‘Hindu’, for the purpose of the HSA, includes communities that were part of reformist movements within Hinduism, such as the Brahmo Samaj, and those who broke away from Hinduism, such as Buddhists, Sikhs, and Jains.

Section 2(1)(c) extends the Act’s application to anyone who is not Muslim, Christian, Parsi, or Jew, unless it is proved that they would not have been governed by Hindu customs or usage prior to the enactment of the law. The phraseology here is again negative.^[11] In practice, these individuals, if they claim to have a separate customary law, will have to prove those customs are distinct from Hindu customs and usage. Otherwise, they will be covered by the HSA.

The framing of this section suggests that the Act was intended for communities with cultural or historical roots in Hindu law, rather than as a default for Hindus and everyone outside other equivalent laws alike. To imagine the Hindu Succession Act as the default for everyone not only defeats its historical purpose but also undermines the secular credentials of this country.

For a Hindu atheist—one who identifies culturally as Hindu but rejects the faith—the HSA may arguably continue to apply. However, would the same be applicable to those who have actively renounced their Hindu identity? Once an individual formally exits their religion, they are neither ‘Hindu, Muhammadan, Buddhist, Sikh, or Jaina’. Such individuals should logically fall right back into the legislative scheme of the Indian Succession Act.

Exit and Shariat Application Rules 2018

Can the Kerala Rules be interpreted to facilitate an exit from Shariat for non-believers, as Safiya demands? Probably not. The statutory scheme of the Shariat Application Act is clearly intended to enable an entry—a shift from customary law to Shariat. To stretch it to include an exit option for non-believers would exceed the permissible limits of interpretation.

A more compelling solution may lie entirely outside the framework of the Shariat Application Act. If an individual ceases to be a Muslim by self-declaration—without converting to another religion—they may simply no longer fall within the category of ‘Muhammadan’ for purposes of Sections 29 and 58 of the Indian Succession Act. Once outside that excluded category, the general regime of succession should apply to them. This argument does not require rewriting the Shariat Application Act; rather it relies on the structural logic of the Indian Succession Act.

Conclusion

The discourse on reforms is usually framed in maximalist terms: uniformity, abolition, or substantive revision. Yet subtler measures exist within the statute books waiting to be invoked. What began as an exploration of an ex-Muslim’s inheritance options has revealed a potential default regime for anyone who does not profess any religion. The architecture for an exit from personal law is already present in Indian law. The real question is whether the state—through courts and the administrative authorities—is prepared to recognise it.

^[1] Example: Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act 2021; Karnataka Protection of Right to Freedom of Religion Act 2022

^[2] GO (P) No13/2018/Law (21 December 2018).

^[3] Thadevoos @ Abu Thalib v State of Kerala WP (c) 6403/2018 (26 June 2018).

^[4] It is important to note that the provision is intended to provide a choice between customary law and Shariat in matters relating to adoption, wills, and legacies. Where no such custom is established, the Shariat law automatically applies to all Muslims in all matters specified under the Act, including adoption, will, and legacies. In other words, the provision for Rules is not intended to require every Muslim in India to seek a declaration for the Shariat Application Act to apply.

^[5] CCC No1984/2018. See also Kerala Legislative Assembly, Unstarred Question No 79 (798) (30 January 2019) by Abdul Hameed P, MLA p.196 (in Malayalam) <www.klaproceedings.niyamasabha.org/digital/pdf/KLA–014-00100.pdf>.

^[6] Section 3 of the Muslim Personal Law (Shariat) Application Act 1937 was historically intended to enable Muslims governed by customary practices to opt into the application of Shariat in specified matters. Its use in the context of conversion-related declarations represents a more recent functional adaptation rather than its original design.

^[7] Safiya PM v Union of India, WP (c) No 135/2024.

^[8] The Caste Disabilities Act 1851, s 1.

^[9] Repealing and Amending (Second) Act 2017 (Act 4 of 2018).

^[10] Indian Succession Act 1925, s 29, 58. The provisions state:

Section 29.   Application of Part.

(1) This Part shall not apply to any intestacy occurring before the first day of January, 1866, or to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina.

(2) Save as provided in sub-section (1) or by any other law for the time being in force, the provisions of this Part shall constitute the law of 1[India] in all cases of intestacy.

PART VI TESTAMENTARY SUCCESSION:

Section 58.   General application of Part.

(1) The provisions of this Part shall not apply to testamentary succession to the property of any Muhammadan nor, save as provided by section 57, to testamentary succession to the property of any Hindu, Buddhist, Sikh or Jaina; nor shall they apply to any will made before the first day of January, 1866.

(2) Save as provided in sub-section (1) or by any other law for the time being in force the provisions of this Part shall constitute the law of 1[India] applicable to all cases of testamentary succession.

^[11] Hindu Succession Act, s 2. The provision states:
This Act applies—
(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;

(b) to any person who is a Buddhist, Jain or Sikh by religion; and

(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.