Inheritance Right of Women under Islamic Law of Succession

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Though we live in a democratic country like India, which has the largest written constitution dealing with all spheres of life of its citizens, we have no uniform civil code, though there are some exceptions like Goa. The law which exists in Indian society is categorised into two, i.e., lex loci (which is applicable to the whole irrespective of caste, religion, birthplace, etc. and personal law (which is applicable only to particular persons or groups).

According to the belief of Islam, major activities with regard to it are governed by Muslim personal law. Islam has its viewpoints in all zones, particularly including the concept of Inheritance of property. Islam has shown a dignified status for women in society even in prevailing negative circumstances in which the rights of a woman, considered at least as a human being, were denied by all means. The very fact that Islam showed them a way to survive while all other ways were closed speaks volumes for the outlook of this religion for the uplifting status of women in public by providing her specified deserved share from the pre-deceased

This research mainly concentrates on how the distribution of property belonging to a pre-deceased person will be distributed. In addition to that, the main goal of this research is to look into the Islamic principles that have been designated to women’s inheritance entitlements.

 Inheritance under Muslim Law

Inheritance is an important branch of Muslim family law. The concept of Inheritance of property, in particular, is stated clearly in the Holy Quran and Hadith. There is a statement attributed to the prophet(s) to the extent that the law of Inheritance is said to constitute half of the knowledge.

According to this law, a person can earn property as much as he can throughout his life. In contrast, the death of that person puts an end to his possession of that concerned property, and it causes a transfer of most of his rights to those who are called his legal heirs and representatives. This concept of Inheritance sheds light on the fact that Inheritance of property in Muslim law comes only after the death of that person. 

The doctrine of birthright over the property is not applicable here, and therefore, any child born into a Muslim family does not have birthright over his father’s property, and the power of his father in order to alienate the property is not restricted. Legal heirs of predeceased get right over the concerned property only if they are alive, even after the death of the person whose estate is to be divided. It is noteworthy that no one other than a Muslim can succeed in the estate of another Muslim.

So, to be a Muslim is an essential part to be followed to the property of pre-deceased Muslims. Therefore, if a Muslim whose children converted to any religion other than Islam, on his death, his property will not pass on to his children as they embrace other religions. Still, his property will be devolved among other legal heirs.

Sources of Law

The Muslim law of succession constitutes four sources of Islamic law. They are;-

1)The Holy Quran ( words of Almighty revealed upon prophet)

2)The Sunnah ( that is the practice of the Prophet)

3)The ijma ( that is, the consensus of the Mujtahids (learned men) of the community, after the death of prophet Muhammed(s), on what should be the decision on a particular point)

4)The Qiya ( that is an analogical deduction of what is right and just in accordance with the good principles laid down by God)  

Background

Every religion in India has personal law and is governed by respective personal law. These personal laws also deal with all spheres of religious activities, including the Inheritance of property. Unlike all other personal laws being practised in our society, Muslim personal law is unique, and it draws its origin directly from the Holy Book of the religion. The major rules of Inheritance are detailed in the Quran, Hadith, and Fiqh. In pre-Islamic periods, the tribe was patriarchal.

The maternal or uterine relationship lies outside the structure of tribal ties and responsibilities. Therefore, the females were excluded from taking their respective portions from the deceased`s property and were denied in all respects. But after establishing the Islamic empire by the Prophet(s), he assigned to each one, including female members, each of their entitled shares from the deceased’s property. After the verse of Inheritance was revealed, the Prophet (s) said in the case of Sa`d ibn Abi Waqqas: Give the two daughters of Sa`d 2/3 of his estate and give his wife 1/8 of it. So, the succession in the Islamic perspective was based on blood relationship and marriage relation. 

 In another sense, providing them with their respective shares caused their status among the public to be high.

Administration of Estate of Deceased Person

The estate of the deceased person is to be applied successively in payment:

  • Of burial preparation which consists of all expenses required in order to provide ritual baths and dress for the grave.
  • Expenses in settlements of debts with regard to existing property itself, whether the debts to Almighty God or humans.
  • Expenses in settlement of debts with regard to the deceased`s property (that property did not exist at the time of his death).
  • Expenses in execution of bequest (Wasiyyah) which is not exceeding one-third of the estate and not in favour of legal heirs.

A legacy that exceeds one-third of what remains after all aforementioned payments have been made or made in favour of the deceased’s legal heir, will be void unless the consents of other legal heirs can be obtained; (5) distribution of the estate to legal heirs according to their entitled shares.

Conditions of Inheritance

The estate of a pre-deceased person will be distributed to legal heirs only if some following conditions are fulfilled. The conditions are as follows;

(1) death of the person whose property is to be distributed, must be determined whether in actual death, or judicial death, or presumption of death ( eg. Missing);

(2) survival of legal heirs. They must be alive even for a just moment, at the time of his death;

(3) legal heirs should be free from following impediments such as

(a) slavery; according to a slave, he has no right to own property as his own. Whatever he gained as property will belong to his owner;

(b) homicide, general principle is that a killer does not inherit from the victim and he is barred from Inheritance;

(c) difference of religion, a non-Muslim does not inherit from a Muslim and vice versa. If a Muslim dies left behind no Muslim survivors and without making a bequest for the disposal of his estate, all his assets will be given to the Islamic State Treasure. But a non-Muslim is not barred from taking bequest ( Wasiyyah) even from a Muslim;

(d) Apostasy ( Murtad), conversion by a Muslim to another religion will bar him from taking property from the deceased’s property. However, it is not applicable in India.

Principal Classes of heirs

Basically, classes of heirs can be classified into major three classes namely Quranic heirs, Agnatic heirs (Resudaries) and uterine heirs (distant kindred). Quranic heirs are those whose shares are upon the deceased’s property, particularly specified in the Quran. They are 12 in number and are as following such as (1) Mother, (2) Father, (3) Daughter, (4) daughter of son (or son’s son how low so ever), (5) Wife, (6) Husband, (7) paternal grandfather, (8) Grandmother on the male line, (9) Full sister, (10) Consanguine sister, (11) Uterine sister and (12) Uterine brother.

Agnatic heirs (Residuaries) are those who inherit the whole deceased’s property when no other Quranic heirs exist to succeed the property, inherit the rest of the property after devolving the property upon the Quranic heirs, or inherit nothing when the property completely devolved upon the Quranic heirs. Residuaries, further, can be broadly classified into Residuaries by themselves, Residuaries by another and Residaries with another.

Distant kindred ( Davul Arham) are descendants of the deceased other than Quranic sharers and Agnatic heirs. Their relation with the deceased is not so much as the aforementioned sharers. That’s why their prospect of getting a share from the deceased’s property is very low in comparison with the other two categories. This category comes into the picture only when one dies without leaving behind any of the Quranic heirs and Agnatic heirs. In order for them to inherit the property, there are other conditions also to be satisfied. In the cases where one dies without leaving behind any heirs, including distant kindred, then the property will be inherited by the State.

Right of Women in Property

No discrimination between males and females in the matter of Inheritance of property under Muslim succession law because Muslim law does not create any distinction between the rights of men and women. Both of them are entitled to the deceased’s property according to their portion. Nonetheless, the proportion of the share entitled to them may be subject to variation according to their interest in the concerned property.

In Surah al-Nisa, all guidelines with regard to distributing property among the female heirs are given in detail. The quantum of the share of males is double that of female heirs. In other words, the share of the female heirs is half of that of the male heirs. It is noteworthy that the revelation of Qura`n was come down while the whole women category was unfairly abandoned from being the part of deceased’s property. Moreover, the responsibility of a woman over the expenses of the family is less than that of a man.

Right of Mother

In the Muslim law of Inheritance, the mother is entitled to get a specific share of the deceased’s property depending upon some circumstances. There are three shared patterns in the matter of her obtaining property. She is entitled to a one-sixth share of the property in case of being the son(s)/daughter(s)/ full or consanguine or uterine brother(s)/ sister(s), and in case of the absence of aforementioned persons, she is entitled to inherit the one-third share of the property.

The Sunni schools observe that the Mother is also entitled to inherit one-third of the remainder. If the father and one of the spouses are present along with the mother, the spouse will take their respective share, and the mother will take one-third of what remains after the spouse has taken their share.

Right of Daughter(s)

Muslim law does not create any distinction line between the rights of sons and daughters. But it is generally found that the quantum of the share of a daughter is half of that of the son. In the case of one daughter, she is entitled to inherit half of the property whether other legal heirs are there or not, as long as not have a son parallel to her. In the case of a son similar to her, he makes her residuary, and she gets half of that of what his share is. If they have more than one daughter, they jointly are entitled to two-thirds of the property in the absence of a son parallel to them.

Right of Son’s Daughter (s)

Son’s daughter (s) is entitled to half share of the property in the case of the absence of other legal heirs and if two or more than two-thirds shares. The percentage is reduced to one-sixth in the presence of one daughter, and nothing is given to them when there are two or more daughters.

The total quantum reserved for them is two-thirds of the real property, and if the son’s daughter (s) is present with only one daughter, she is entitled to one-sixth while the daughter gets one-half of the property. When she is with two or more daughters, they take a two-thirds share of the property, and the son’s daughter doesn’t come into this picture. If there is a grandson parallel to her, the same pattern in the case of son and daughter should be applied.

Right of Sister(s)

Sisters can be broadly categorised into three, namely full sisters, consanguine sisters, and uterine sisters. Full sister means siblings who share the same biological parents; a consanguine sister is a type of sister who shares the same father but has a different mother. A uterine sister is a type of sister who shares the same mother but has another father. According to the full sister, she is entitled to a one-half share if she is the only heir and if two or more full sisters, then they are entitled to a two-thirds stake.

She ceases to be a sharer and becomes a residuary where there is a brother parallel to her, and she is entitled to half of that of the percentage of brother. Consanguine sister gets one-half of the share of the property where she is the only heir and two-thirds if two or more. She is entitled to one-sixth, where she is present with one full sister and nothing if two or more full sisters. She ceases to be a sharer and becomes a resident where there is a brother parallel to her. On the other hand, the uterine sister is entitled to one-third when the deceased has no child or child of a son or father or true grandfather and one-sixth in the presence of the aforementioned. Unlike others, a brother parallel to her can not make her residuary, and the respected share will be devolved upon them equally.

Right of Wife

Islamic law of Inheritance specifies the share of the widow from the deceased’s property as per status as an heir. She is entitled to one-fourth of the share when the deceased had not left any heirs who caused the reduction of her claim, such as the children of the dead husband. If the deceased had left behind children, then the widow’s share shall be reduced, and she is entitled to a one-eighth share from the deceased’s property.

Right of Grandmother

Only true grandmothers can be considered as heirs of the deceased’s property. True grandmother means a female ancestor between whom and the dead. No grandfather intervenes. In case of the intervention of a grandfather among them, then they are said to be false grandmothers. As a result, they will not be capable of inheriting the property, which is subject to division among the heirs. The category of grandmother is entitled to a one-sixth share of total property, as per status as heir.

In cases where the mother of the deceased is absent at the time of death, then the nearest maternal grandmother is entitled to inherit one-sixth as an heir. The presence of a father will not exclude the maternal grandmother from being an heir. But the closest maternal grandmother bans the distant maternal as well as paternal grandmothers. In cases where both father and mother are no more, then the paternal grandmother is entitled to inherit one-sixth. If there are two or more grandmothers of the deceased (maternal and paternal), then all of them jointly inherit one-sixth part of the property.

Conclusion

The religion of Islam has its viewpoint on all walks of life, including the inherent right of a person from the deceased’s property. According to Islamic law of Inheritance, it doesn’t create any distinction between men and women from being part of the share of the property. Both of them are entitled to the deceased’s property according to their portion. Nonetheless, the proportion of the share entitled to them may be subject to variation according to their interest in the concerned property. Normally, the percentage of female heirs is half of that of male heirs. It is noteworthy that the revelation of Qura`n was come down while the whole women category was unfairly abandoned from being part of the deceased’s property. 

References

  • Muslim Law in Modern India By Paras Diwan
  • Principles of Mohammedan Law By Mulla
  • Al-Mafathihul Al-Vahabiyya By Abu Muhammed al-Sailthru

This article has been contributed by Fahad Apf.


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