Dr. Mohammad Umar
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Succession is a sensitive issue within families and often leads to discords and bad blood even among the closest family members. India is governed by different rules of succession depending on the communities. Muslims of India are governed by their personal law which, according to the Muslim Personal Law (Shariat) Application Act, 1937 comprises matters like marriage, divorceand maintenance along with intestate succession, special property of females including personal properly inherited or obtained under contract, gift etc.
Islamic approach
Since Islam calls for complete submission to God and His commandments, the room for discretion is ruled out in matters like inheritance where the Quran contain clear injunctions in Chapter 4. Muslim jurists have painstakinglydeveloped a set of robust rules based on the framework provided by the Quran. Today, the discipline is so evolved that Sir William Jones, a noted British jurist from the 18th century had once remarked- ‘no possible question could occur on the Muhammadan Law of succession which might not be rapidly and correctly answered’. Also, a full bench of the Allahabad High Court in the case of Gobind Dayal v. Inayatullah (1885) remarked that the Muslim law of inheritance was founded upon ‘republican principles, at a time when the modern democratic conception of equality and division of property was unknown even in the most advanced countries of Europe.’
According to Islamic Law, both males and females are entitled to inheritanceand their claim is absolute. The job of this piece is not to discuss the details of shares that are due upon heirs left behind by a Muslim. For that, one can have a look at Fyzee’s Outlines of Muhammadan Law. It would rather attempt to specifically engage with the question of gender justice often hurled at the Quranic scheme of property devolution.
Gender aspect
Under the scheme of the Quran, also considered the primary source of Islamic Law, the financial obligation to maintain the family is upon the husband. While any property of the woman acquired through inheritance or otherwise remains solely hers. Imagine a situation: X has two children, an unmarried sister, wife and old parents in the house. It is the Quranic duty of X to provide for these six members of his family, even for his mother and sister because X’s father has grown old and is in no position to provide. This legal position is starkly similar to Section 125 of the Code of Criminal Procedure, 1973 which requires the Magistrate to order any person to make a monthly allowance for his wife, children and parents in case he neglects or refuses to maintain them despite having sufficient means.
In addition to this, X is also obligated to pay Meher (dower) to his wife, preferably at the time of marriage itself. It can be any amount that the couple mutually agrees upon. This (amount or property) again belongs to the wife unless she chooses to waive off or return the dower voluntarily. If X dies without paying the dower, the widow is entitled to claim it from his property in addition to her claim on the inheritance.
To discharge the duty of financial maintenance effectively, the Quran gives a supplementary right to the male inheritors i.e. of inheriting a double share than that of females. It must be understood that this is not a premium availed on the ground of sex. It comes with a strict responsibility to maintain and provide for the family.
In contrast, the female members of the family are not obligated to contribute towards the finances of the house even if they have income from independent earnings. They do not suffer from any disability to deal with their share of the property and are absolute masters of their individual inheritance.
Text and society
Today, women across the communities are reclaiming their space in society by availing education, joining the workforce and assuming positions of leadership.Islamic Law is not an impediment to any of these progressive paradigms. But unfortunately, there is a lack of parity between the classical text and the social practice. Women in general have been facing issues across the globe regarding inheritance. Because of deep seeded patriarchy, cultures and social practices women have been deprived of the agency to claim their inheritance rights. A World Bank study in 2010 observed that despite the famous 2005 amendment in the law that allowed Hindu women to inherit from the ancestral property, theyare yet not liberated from the ‘underlying gender inequality’. I am sure there are several experiences in Muslim families as well, where women find it hard to assert their right to inheritance. It is similar to the practice of triple divorce that seeped within Muslim society without finding any evidence in the primary sources of Islamic Law. While looking into the actual Islamic position, the late Justice Krishna Iyer remarked in one of his judgments that ‘a deeper study of the subject discloses a surprisingly rational, realistic and modern law of divorce’. In my view, the same holds true for the Muslim law on inheritance.
Fair inheritance is also empowerment. It allows women to have access to credit, gain bargaining power within the household and avail better opportunities for income generation. A study published this year by Joseph Ajefu et. al in the Journal of Development Studies argued that the aforementioned amendment in the Hindu Succession Act, 1956 in fact had a long-term positive impact on children’s health by reducing the probability of nutritional deficiency in the child.
In Islam, succession is taken very seriously. It is a part of the few legal injunctions in the Quran. Prophet Muhammad (SAW) is recorded to have said to his companion that one should learn and teach inheritance as it constitutes ‘half of knowledge’. The Muslims, therefore, are expected to break through the clutches of general patriarchy and give due shares to women in their families as commanded by God and His Messenger.
(Author is Assistant Professor of Law,Bennett University, Greater Noida. He can be reached at [email protected])
