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Published: Fri, 02 Feb 2018
Introduction And Overview
“Women constitute half the world’s population, perform nearly two-thirds of its hours, receive one-tenth of the world’s income and less than one hundredth of the property.”
Since time immemorial the framing of all laws have been exclusively for the benefit of man, and woman has been treated as subservient, and dependent on male support, and to this Muslim law is no exception. The Muslim law of inheritance has got a dual basis. The whole body of rules relating to inheritance is based on a) Quran and the traditions of Prophet and, on b) such pre-Islamic customs which were approved by the Prophet. It is because of this reason that to trace the discrimination against women, it becomes evident to look into pre-Islamic Customs. Before the advent of Islam, most of the customs in Arab were unreasonable, indiscriminate and against all notions of equity and justice. Females were treated as properties; therefore, they were not entitled to inherit any property from anyone. Moreover, it was not just females, but also cognates who were excluded from inheritance.
The essay aims at first elaborating the Hanafi laws of succession and thereby conducting an enquiry as to the fact whether the same is discriminatory and if so, the rationale behind it.
Hanafi Law Of Inheritance
In the Hanafi law of inheritance the heirs are divided into two groups. The first group goes under the name ashah-l-fariaidz, i.e. those whose shares are specified. They are called ‘sharers’ and they are twelve -four male and eight- females.
The second group of inheritors goes under the name of ahl-al-minath or the heirs who takes residuary interest. These inheritors are also called as ‘residuaries’. The most important of these are the asabah, or relations on the male side the lineal male descendants, the lineal ascendants, the direct collaterals such as full or consanguine brother or their sons, or indirect collaterals such as full or consanguine uncle their sons, or full or consanguine uncles of father and their sons and so on; and the dhawi-l-arham or relations connected through females, such as the sons and daughter of daughter; the father of the paternal grandmother or mother of the paternal grandmother; the children of sisters; daughter of full and consanguine brothers; sons of uterine brother and paternal aunts and their children; maternal uncles and their children; maternal aunts and their children and uterine paternal uncles and aunts and their children.
Besides, these are recognized a) residuaries for special cause to which class belongs the emancipator of a slave b) heirs by acknowledgement d) the universal legatee (one to whom the deceased has bequeathed the whole of his property), and lastly the bait-al-mal public treasury.
After payment of funeral expenses, debts, and legacies, the first step in the distribution of estate of deceased Mahomedan is to ascertain which of the surviving relations belong to the class of sharers.
Order Of Succession:
First, the sharers who are entitled to specified shares. Only twelve heirs are entitled to succeed to specified shares and their share is fixed in Quran. The sharers are as follows:
1) Husband; 7) Daughter;
2) Wife; 8) Son’s daughter, how low soever;
3) Father; 9) Full sister;
4) True grandfather how high soever; 10) Consanguine sister;
5) Mother; 11) Uterine brother; and
6) True grandmother how high soever; 12) Uterine sister.
Among all the heirs, the husband or the wife are related by marriage or affinity and all the other ten heirs are related by consanguinity or blood which consist ascendants and collaterals. In Aminabai v. Abasabhebthe question involved was as to the quantum of share of widow when daughter is postponed to the paternal uncle by section 5, Bombay Act, 1886.The court held that the daughter will not exclude the wife’s share from ¼ to 1/8.
Rule Of Exclusion Of Sharers
All sharers of a deceased Mohammedan are not to inherit simultaneously. A sharer may
be excluded from inheritance in the following manner:
i) A sharer (except the husband or the wife) will exclude any other sharer who is related to the deceased through him.
ii) A nearer blood relation excludes the remote, provided that in the absence of a primary heir, his substitute heir will inherit and excluded. A son’s daughter how low soever will also inherit as a sharer where there is only one daughter or higher son’s daughter, provided that there is no son or equal or high son’s son.
iii) Full-blood excludes consanguine half-blood (but not the uterine) except when there is only one full sister and she inherits as a sharer, then the consanguine sister will not be excluded.
All the twelve sharer cannot take their specified shares at one and the same time. Thus rule of exclusion apply. The husband or wife, father mother and daughter are never excluded from inheritance. But other sharers like true grandmother, true grandfather, son’s daughter, full sister, consanguine sister, uterine brother and uterine sister may totally excluded from the inheritance. The exclusion rules works on following lines:-
1) Exclusion by the roots:-A sharers excludes the other sharer who is connected with the deceased through him, for example, the father excludes his father as son is related to his father’s father through him. Also the father excludes mother sisters and brothers.
2) The rule of proximity:-In this case nearer blood relation will exclude the remote relation i.e. a nearer relation will be given the preference.For example mother will exclude the (true) grandmother. Thus we can say that a nearer sharer exclude a remote sharer and a nearer residuary will exclude a remote residuary. But a nearer sharer will not exclude a remote residuary and vice versa. There is exception to the rule of proximity. The son’s daughter is allowed to succeed either as a sharer or as a residuary.
3) Full-blood excludes the consanguine half blood but not the uterine blood relations.
When Sharers Become Residuaries:
Certain sharers become residuaries on account of the existence of certain other near relations under the following circumstances:
i) The father and true grandfather how high soever become residuaries when the deceased has no child or child of a son how low soever;
ii) The daughter becomes a residuary when the deceased is survived by a son;
iii) The son’s daughter how low soever becomes residuary when the deceased is survived by a son’s son how low soever;
iv) The full sister becomes residuary when the deceased is survived by a full brother;
v) The consanguine sister becomes a residuary when survived by a consanguine brother.
Doctrine Of Aul (Increase)
When the sum total of the specific shares allotted to various shares exceeds the unity then the doctrine of increase (Aul) is applied and the specific share of each sharer is proportionately reduced in the following manner:-
i) By reducing the shares to a common denominator.
ii) By increasing the denominator to make it equal to the sum of the numerators allowing the numerators to stand as they are.
Since this is done by increasing the denominator it is called doctrine of increase. If, for example a female dies leaving behind her husband, mother and 3 sisters. So share of husband is ½ (as there are no children), mother’s share is 1/6(because of the presence of more than one daughter and absence of children), the three sisters share collective 2/3 (as they are more than one sisters).Thus the total fractional share exceeds the unity i.e. 1/2+1/6+2/3=3+1+4 /6=8/6. Table showing doctrine of Aul:-
Doctrine Of Radd (Return)
If there is residue left after satisfying the claim of the Sharers, but there is no Residuary, the residue reverts to the sharers in the proportion to their shares. This right to reverter is technically called “Return” or Radd.
1) The doctrine of return:- According to this doctrine the surplus is return, not to distant kindred but to the sharers, if more than one then in their proportionate share and if only one sharer is there then whole of return of the residue will go to that sharer.
2) Exception: – The exception to this doctrine is that neither the husband nor the wife is entitle to the return so long as there is another sharer or distant kindred alive.
3) Method:- If, for example a male dies leaving his mother whose share is 1/6 and a daughter whose share is ½,but no widow. Table showing the doctrine of radd:-
In Mis Isub Mir Unus Maldiar v. Isub there were two brothers, one of them died leaving two widows. Then the second brother also died leaving behind a widow. It was decided that she would get ¼ share as sharer and remaing 3/4 by the doctrine of Radd.
Heirs who are entitled for property as residuaries are as follows:-
1) Son 13) Full brother’s son’s son
2) Daughter 14) Consanguine brother’s son’s so n
3) Son’s son H.L.S 15) Full parental uncle
4) Son’s daughter H.L.S. 16) Consanguine paternal uncle
5) Father 17) Full paternal uncle’s son
6) True grand father H.H.S. 18) Consanguine paternal uncle’s son
7) Full brother 19) Full paternal uncle’s son’s son
8) Full sister 20) Consanguine paternal son’s son
9) Consanguine brother 21) descendants of full paternal uncle’s son’s son’s son
10) Consanguine sister 22) Descendants of consanguine paternal uncle’s son’s
11) Full brother’s son son’s son
12) Consanguine brother’s son 23) Descendants of remote true grandfathers, H.H.S.
Among the descendants of the deceased and the descendants of the father there may be males or females but among the descendants of the true grandfather, there are only males of the lineal descendants.
Extent Of Shares Of Residuaries:
When there are more than one heir who inherits as residuary, they shall inherit
a) equally, if all the heir are males or all are females;
b) the male heir takes double the portion of female heir, if there some male some female heirs.
In Mt.Ghulam Zohar v. Nur Hasan the claim of full paternal uncle was answered affirmatively and it was held that the sister should take ½ as a sharer and the collateral in 4th degree, here Full Paternal Uncle as a residuary will take the other half, sister not being entitled to a residue.
Exclusion Among Residuaries
All residuaries of a deceased Mohammedan enumerated are not entitled to inherit simultaneously. Some residuaries are excluded in the following manner:-
i) Among descendants of the deceased exclude all the ascendants and collaterals of the deceased.
ii) The ascendants of the deceased exclude all the collaterals of the deceased.
iii) Among the collaterals of the deceased the descendants of the nearer ascendants
exclude the descendants of the remote ascendants.
1) Exclusion:-As all the residuaries cannot inherit at one and the same time they are divided into order of preference:
iii) Collaterals-a) Descendants of the father, and b) Descendants of the grandfather,H.H.S.
Among these three categories, each first category excludes the next.
2) Exclusion among different categories of residuaries:-There are two rules which apply for exclusion:
i) Rule of proximity:- according to this rule a person nearer in blood will inherit in preference to remoter. There is one exception to this rule i.e. son’s daughter.
ii) Exclusion by blood:-Among the residuaries, full blood excludes the consanguine half but not the uterine blood.
(Heirs Affiliated By Blood Or Consanguinity)
The Distant kindred are third category of the heirs related by blood or consanguinity (zavilarham). It comprises all the cognates of the deceased except those who are include in the sharers category. They inherit the property of the deceased only in the absence of the sharers and residuaries. It is important to note that according to the doctrine of Radd the property reverts to the spouse only when there are no distant kindred. The distant kindred are divided into four classes viz descendants, ascendants, descendants of parents and descendants of immediate grandparents ad descendants of remote ancestors how high so ever.
Descendants Of The Deceased:
i)) Daughter’s children and their descendants.
ii) Children of son’s daughter h.l.s. and their descendants.
The order of distribution of property among descendant distant kindred is subject to six rules which are:-
1) The nearer in degree excludes the remoter.
2) Amongst the heirs of same degree, the descendants of sharers and residuary are preferred to the descendants of distant kindred.
3) When all the heirs are in the same degree and the sex of their ancestor through whom they are connected to the deceased is same, the heirs take per capita, with males and females taking in the ratio of 2:1.
4) When the sex of the ancestors through whom they are connected to the deceased are different, then at that stage the property is divided in divided in the ratio of 2:1 amongst the males and females respectively. These shares will then be taken by the descendants irrespective of their sexes.
5) When there are three or than three heirs in different line of descent then first the property is divided in 2:1 amongst male and female and the share of male ancestor is allotted in and pool and female’s share in another pool. These pooled shares descend to the descendants and if the sex of descendants differ then again this share is divided in 2:1.
6) Where two or more heirs claim through the same immediate ancestor and these ancestor are two or more and of different sexes, then one ancestor is not counted as one
but corresponding to the number of descendants and the shares are allotted in the 2:1 ratio
at the shares so allotted are future distributed among the heirs, male taking double share than female.
Ascendants Of The Deceased
This category covers all false Grandmothers and all false Grandfathers.
Descendants Of Parents Other Than Sharers And Residuaries
This category includes daughters of full and consanguine brothers and sisters and their heirs how low so ever and descendants of the uterine brothers and sisters how low so ever. They take the property according to the following rules:-
1) nearer degree heir would exclude the remoter heir
2) If in the same degree, then the heir related through residuary would be preferred to the heir related through the distant kindred.
3) Descendants of full brother would exclude the consanguine brother’s and sister’s descendants, but not the descendants of uterine brothers or sisters.
Descendants Of Grandparents (True Or False)
This category of distant kindred consist of the paternal and maternal aunts and uncles of the deceased and their descendants, also of grandparent’s paternal and maternal aunts and uncles and their descendants. The rule of distribution of property among them is that the paternal side are to allotted 2/3 of the property and maternal side 1/3 of the property, which further is divided among uncles and aunts in 2:1 ratio respectively. Also the full maternal uncles and aunts on either side excludes the consanguine uncles and aunts, who in turn excludes the uterine uncles and aunts. If the uncles and aunts of only one side is present, that side would take the whole property.
Successors Not Affiliated By Blood Or Marriage
When Acknowledge Kinsman Become A Successor
In absence of sharer, residuaries and distant kindred, then estate of a deceased Mohammedan devolves upon the acknowledge kinsman. Such acknowledge kinsman should be acknowledged through another person and not through himself. For example A acknowledges B as his brother. Thus B is acknowledged through A’s father. Such acknowledgement may be made conditionally or conditionally. Also the acknowledged person should of unknown descent. Only on fulfillment of these condition the acknowledge kinsman can inherit the estate of the deceased.
When Universal Legatee Becomes A Successor:
In absence of sharers residuaries distant kindred and acknowledge kinsman (if any), the successor of the estate of the deceased is universal legatee.
When State By Escheat Becomes Successor:
In absence of the heirs affiliated to the deceased Mohammedan, like the sharers, residuaries and distant kindred, an acknowledge, and a universal legatee, the estate will escheat to State. Under the Islamic law the estate of deceased Muslim did not escheat to state but is given to the public treasury or bait-ul-mal. But in India the estate of a heirless deceased Muslim is escheat to the State.
As has been discussed in detail in elaborate sections, in the opinion of the researcher, the Islamic law clearly discriminates against women in the matters of Succession. This may be said considering the fact that according to the rules laid down by it, a male always end up having twice the share compared to that of a female, for instance if a son gets 2/3rd of the property then the daughter is entitled to 1/3rd. The same may be seen in the case of husband-wife relationship where if a wife dies leaving no children then the husband owns ½ the share, but if a husband dies leaving no children, widow gets only ¼ of his estate. In case of brothers and sisters, when a sister dies childless, and has only one brother he inherits full property. But when a brother dies childless, and has a sole sister she gets one half of his estate.
The succession laws of Muslims gives several such instances of discrimination against women, which seems to be highly unfair and unjust if its just the succession law that is analysed. It boggles one’s mind as to why the religion which was the first to grant women property rights would discriminate so heavily against them. The answer to this question lies in other Islamic laws, which necessarily need to be analysed before concluding. Jurists to justify the unequal shares have put the following arguments forth. Firstly, man, is solely responsible for complete maintenance of his wife, his family and other relations. In contrast, a woman has no financial responsibilities whatsoever. Secondly, on the occasion of her marriage her father with ornaments, clothes and the many necessities of life, called Jahez. Then she gets Mahr from the husband, which can be prompt or deferred by her choice.
Thus, on the one hand is a male heir, burdened with all kinds of financial responsibilities and liabilities. On the other hand, there is a female heir with no financial responsibility and assured of her own maintenance. Would it have been fair to give equal shares to both? Thus, contrary to common belief, the Quran was actually quite fair in its dealing with men and women, considering the time when it was written. It is during its interpretation that the actual meaning is lost and mutated into something that was not contemplated by the Quran.
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