AN ANALYTICAL STUDY OF INHERITANCE LAWS IN ISLAMIC JURISPRUDENCE: TRADITION, INTERPRETATION, AND CONTEMPORARY APPLICATION BY - TUSHAR KAUSHIK
AN ANALYTICAL STUDY OF INHERITANCE
LAWS IN ISLAMIC JURISPRUDENCE: TRADITION, INTERPRETATION, AND CONTEMPORARY
APPLICATION
AUTHORED BY
- TUSHAR KAUSHIK
KEYWORDS
Muslim
inheritance, Sunni inheritance, Shia inheritance, inheritance law, Muslim
personal law.
ABSTRACT
The
research paper explores the realm of inheritance under Muslim Law. The study
investigates how inheritance under Muslim law operates and its application in
contemporary times. The research technique includes an examination of the
literature on the inheritance under Muslim Law. The conclusions have
repercussions for jurists and legislators who must modify their approaches to
better comprehend and interact with these various cohorts.
RESEARCH
OBJECTIVES
The
research paper seeks to describe inheritance under Muslim Law and the
significance of the same in contemporary times; to analyze impact of
inheritance scheme provided under Muslim law; to explain the procedure and
process of inheritance under Muslim Law.
RESEARCH
QUESTIONS
1.
How
does inheritance law operate within the framework of Islamic jurisprudence?
2.
What
are the key principles and concepts governing inheritance in Islamic law?
3.
How does inheritance under Muslim law differ from inheritance laws in
other legal systems?
4.
How
do cultural and regional variations influence the interpretation and
application of inheritance laws in Muslim-majority countries?
5.
What
are the rights of women and other marginalized groups in inheritance under
Islamic law, and how have these evolved over time?
LITERATURE REVIEW
The
legal mobilization and the outlook of policy makers--specifically their
approach to regulating family life, their understanding of group norms, and
their normative vision of family life-shaped the major changes in Indian Muslim
(Subramaiam, 2008). The Sunni law of inheritance relies on a particular
interpretation of the Qur'anic inheritance verses. Even though Shi'i
inheritance law is strikingly different from Sunni law, the Sunni
interpretation of the Qur'anic texts has rarely been questioned (Kimber, 1998).
THERE is no part of the Islamic law which is more typical of both the spirit
and letter of the Shari'a than is the Islamic law of inheritance. (Anderson,
1965). Muslim law does not discriminate against foreigners or non-Muslims in
matters of property, right, or contract. Once a right is lawfully acquired, or
a contract validly entered into by a foreigner, Muslim law applies to it the
same rules and provides it with the same safeguards, regardless of the
nationality or religion of the parties concerned. (Habachy, 1962).
METHODOLOGY
The
research methodology of this paper is qualitative/doctrinal. The researcher
will carry out a critical and analytical literature review of the research,
articles and essays on the topic and examine theories related to inheritance under
Muslim Law. In this research paper the author will legally analyze the recent
development in the field of inheritance under Muslim Law. A doctrinal research
methodology is an approach to research that involves examining and analyzing
existing literature, theories, and concepts related to a specific topic. The
existing research work is thorough but scattered and dispersed, thus this
research paper will analyze different theories and research works and present a
conclusive result.
1. INTRODUCTION
In
contrast to other personal laws observed in our society, Muslim personal law is
distinct and peculiar since it is not codified and derives its authenticity straight
from the religion's holy book, "The Quran." Section 2 of The Muslim
Personal Law (Shariat) Act, 1937[1]
deals with the application of personal law to all Muslims. It reads as: “Notwithstanding
any custom or usage to the contrary, in all questions (save questions relating
to agricultural land) regarding intestate succession, special property of females,
including personal properly inherited or obtained under contract or gift or any
other provision of Personal Law. marriage, dissolution of marriage, including
talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship,
gifts, trusts, and trust properties, and wakfs (other than charities and
charitable institutions and charitable and religious endowments) the rule of
decision in cases where the parties are Muslims shall be the Muslim Personal
Law (Shariat).” It restates how Muslim personal law applies to all Muslims
in terms of marriage, divorce, succession, and other matters. Nevertheless, the
statute does not codify these personal law principles. Thus, one must
comprehend the sources of authority for Muslim personal law in order to comprehend
its notions. They are –
1. The
Holy Quran
2. The
Sunna - that is, the practice of the Prophet
3. The
Ijma - that is, the consensus of the learned men of the community on
1. 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.
The
term "inheritance" describes the conveyance of property from a
deceased individual to a living relative. there are two types of succession:
testamentary (where a will was made before to the death of the decedent) and
non-testamentary (when the decedent passes away intestate, that is, without
leaving a will). The Muslim Personal Law (Shariat) Application Act, 1973[2]
governs non-testamentary succession in the Islamic faith, whereas distinct
Shariat laws apply to testamentary succession for the Sunni and Shia sects of
Muslims. Sharers and Residuaries are the two categories of heirs recognized by
Islamic law. Residuaries would inherit the portion of the estate that remains
after the sharers have claimed their share. Sharers are the people who are
entitled to a specific portion of the deceased's property.
2. TRADITIONAL
INTERPRETATIONS OF INHERITANCE LAW
The
Qur'an brought about a variety of new rights and inheritance regulations,
including what at the time were broad advancements in the way that women and
families were treated. A comprehensive legal system was formed by the Qur'an's
attempts to correct the laws of inheritance. Pre-Islamic societies had very
different inheritance laws than this development. On the other hand, they also
diverge from continuous secular egalitarian advancements made since then,
primarily in the present era. In addition, the Qur'an mentioned nine relatives,
six of whom were female and three of whom were male, introducing extra heirs
who were not eligible to inheritance in pre-Islamic times. [3]Other
male relatives—the husband and the mother's half-brothers—who were previously
excluded from inheritance were also covered by the Qur'anic inheritance
regulations. The mother, father, brother who shares the same mother, wife,
daughter, full sister, sister who shares the same mother, and consanguine
sister are among the heirs listed in the Qur'an. Generally speaking, the Qur'an
raised women's position by explicitly stating their inheritance portion.
Additionally, it outright prohibited the custom of inheriting widows. [4:19]
"This is not meant as a regular legal ordinance, but is part of the
Qur'anic endeavor to improve the position of women," according to
orientalist Joseph Schacht. Although the Qur'an stipulates that a son's part
must be double that of a daughter's, it does not specifically address the
shares of male relatives, such as the decedent's son. Muslim theologians use
the overall framework of Islamic law, which places accountability and
responsibility for women's safety, security, and sustenance on men, to explain
this element of inheritance. Islam stipulates that women are entitled to a
"dowry" from their husbands upon marriage, on top of any provisions
made by their parents. This could be the reason why a daughter's share of the
son's inheritance is only half of his. From that point on, the husband's
responsibility is to provide for and support his wife, and the
"dowry" is effectively an advance of her right to inherit from her
husband's estate. Muslims were required by the Qur'an to create a will
specifying how they wanted to dispose of all of their property before the
verses containing the aforementioned amendments were revealed. But Muslims can
only leave up to one-third of their property in the now-optional will known as
a wa?eyya; the remaining portion will be divided in accordance with the verses
of inheritance after all debts, if any, have been settled, since the majority
of jurists now concur that the verses of inheritance have superseded the verses
of wa?eyya. [4]If
Muslims are present during the partition of property, they are also encouraged
to donate money to the underprivileged and orphans. Old agnatic conventions and
Islamic law were combined, which resulted in a variety of issues and debates
that Muslim jurists have addressed in various ways. The paternal grandpa,
maternal grandmother, and agnatic granddaughter are the three additional heirs
that Muslim jurists introduced by applying deductive reasoning (Qiyas). If
eligible, these heirs receive their fixed parts, and the residuaries (?a?aba)
inherit the remaining inheritance. This resulted in a few minor variations
between the Sunni maddhabi schools of law. Although they are founded on the
same principles, Twelver Shia's laws of inheritance also differ in a number of
ways because they reject some Hadith reports and because they interpret
specific events in early Islam differently. However, the inheritance system of
the Zaidis and Kharajite Ibadis is very similar to the Sunni system. Modern
Muslim nations typically apply a variety of legal traditions, including Shia,
along with several significant modifications to the established framework. One
of these systems' primary accomplishments was the codification of inheritance
laws.
3. CONTEMPORARY APPROACHES TO
INHERITANCE LAWS
Sharers
There
are 12 sharers as follows: (1) Husband, (2) Wife, (3) Daughter, (4) Daughter of
a son (or son's son or son's son and so on), (5) Father, (6) Paternal
Grandfather, (7) Mother, (8) Grandmother on the male line, (9) Full sister (10)
Consanguine sister (11) Uterine sister, and (12) Uterine brother.[5]
Each
sharer's share will differ depending on a few factors. In the event that the
marriage has no lineal descendants, for example, the woman receives one-eighth
of the share; in other circumstances, she receives one-fourth. When a husband
inherits from his wife's estate, he is entitled to half of the estate if the
marriage has no lineal descendants and one-fourth otherwise. One half goes to a
lone daughter. If the departed has many daughters, each daughter receives two
thirds of the inheritance. Should the departed have left son or daughters, the
daughters would no longer be sharers but would instead be residuaries, and the
residual would be divided so that each son would receive twice as much as each
daughter.
Non-Testamentary
and Testamentary succession under Muslim law
The
Muslim Personal Law (Shariat) Application Act, 1937[6]
is applied in non-testamentary successions. Conversely, in the event that an
individual passes away testate, meaning that they made a will before to passing
away, their inheritance is subject to the applicable Muslim Shariat Law, which
applies to both Sunnis and Shias. Muslims are bound by the Indian Succession
Act, 1925[7]
in situations where the subject of the property is immovable property located
in the states of West Bengal, Chennai, and Bombay. This is an exception that
solely applies to testamentary succession.
Birthright
According
to Islamic law, a person's property can only be inherited after their passing;
a child born into a Muslim family is not entitled to property at birth. An heir
becomes a legitimate successor and is therefore entitled to a portion of the
property if he survives even after the death of the ancestor. But no such right
of inheritance or portion in the property will exist if the seeming heir dies
before his ancestor.
Distribution
of the Property
Property
may be distributed either per strip or per capita in accordance with Muslim
law. The Sunni legal system mostly employs the per capita distribution
approach. The heirs share equally in the inheritance left by their forebears
when using this technique. As a result, the number of heirs determines each
person's portion. The Shia legislation recognizes the distribution mechanism
per strip. [8]This
form of property inheritance divides the property among the heirs in accordance
with the strip to which each belongs. As a result, the branch and the number of
members of the branch determine the amount of their inheritance.
Widow’s
right to succession
No
widow is barred from the succession under Muslim law. [9]A
Muslim widow without children is entitled to one-fourth of her husband's estate
after paying his debts and burial and legal costs. On the other hand, an
inherited widow is entitled to one-eighth of her late husband's estate if she
has children or grandchildren. A Muslim man's widow is not entitled to inherit
anything if he marries while ill and passes away from that illness before
making a full recovery or finishing the marriage. However, in the event that
her sick spouse files for divorce and then passes away from that condition, the
widow will be entitled to a portion of the estate until she remarries.
A
Child in the Womb
As
long as the unborn kid is born alive, it can inherit while still inside its
mother's womb. Since an embryonic child is thought of as a living being,
ownership of the property passes to them right away. However, the portion
already vested in such a child in the womb is divested if the child is not born
alive, and it is assumed that there was no such heir (in the pregnancy) at all.
Marriage
under the Special Marriage Act, 1954
Where
a Muslim contracts his marriage under the Special Marriage Act, 1954,[10] he ceases to be a Muslim for purposes of
inheritance. Accordingly, after the death of such a Muslim his (or her)
properties do not devolve under Muslim law of inheritance. The inheritance of
the properties of such Muslims is governed by the provisions of the Indian
Succession Act, 1925 [11]and
Muslim law of inheritance is not applicable
4. CASE LAWS:
APPLICATION OF INHERITANCE LAWS
In
this instance, the court considered the issue of whether a co-heir who has all
or a portion of the deceased's inheritance may sell that property to pay off
debts without affecting the other co-heirs or the deceased's creditors.
According to the court, if a person passes away, some of their inheritance is
used to pay off their obligations and burial costs, and the remaining amount is
given to their heirs. The court noted, citing precedents, that under the Muslim
legal system, one co-heir is not entitled to deal with the shares of the other
co-heirs. As a result, without permission, one co-heir cannot carry out any
action concerning another's shares. Only under particular circumstances may he
assign his interests to a different co-heir of a third party. A decree issued
against one co-heir, onto whom all of the deceased's effects are in possession,
will be binding on all other co-heirs because a decree passed against a co-heir
is regarded as a decree passed against the deceased, and the co-heirs act as
the deceased's representatives in such a decree. However, a single co-heir
cannot bind other co-heirs in any action. As a result, it was determined that
no co-heir could force the other co-heirs to sell voluntarily. Only inherited
property in which he has a stake may be handled by him. Even in the event of debt repayment, he lacks
the authority to act on behalf of the others.
In
this instance, Ismail Ali Khan, the deceased left behind three widows and
several children. One of his widows, Enayet-uz-Zhora, is the petitioner.
Through a lawsuit, she purchased a portion of his estate together with her two
small children. She was denied ownership of the shares and the ability to sell
them when the defendants contested the validity of her marriage to Ismail and
the children. The petitioner argued that her children were legitimate, that she
was their legal guardian, and that she was therefore entitled to her children's
portion of the property. The mother has the legal right to custody of her minor
children under the Muslim legal system, but this does not automatically make
her the children's natural guardian, the court noted. The paternal grandfather
steps in as the natural guardian in the event of the father's absence, and he has
complete authority over the youngsters' affairs. According to Sunni law, the
executor that the father appoints gets custody after his death. The paternal
grandfather becomes the next in line for custody if the father passes away
without designating an executor. Since the mother was not the children's
natural nor legal guardian, it was decided that she lacked the right to
alienate the property.
The
property of Munilal, a eunuch, was at question in this case. Munilal had left a
will in support of Abdul Gafoor, who was claiming the land. The defendants,
eunuch of Munilal, contended that they adhered to a property transfer custom
within their society and that, as a result, they constituted a distinct class
of heirs themselves through the Guru-Chela system. As a result, the respondent—a
follower of Munilal—claimed possession of the assets and contended that Abdul's
will was falsified. The appellant's will was deemed invalid by the trial court,
who also issued a decree in favor of the respondent. After reviewing the
respondents' submission, the court determined that the eunuchs' custom is
widely accepted. The tradition does restrict the legatee's ability to carry out
the will, but that does not render it illegitimate or contrary to public
policy. Moreover, because the will document did not comply with Section 68 of
The Indian Evidence Act, 1872, the appellant was unable to establish its
validity. Furthermore, it was determined that the property could not be
bequeathed to an individual who is not a member of the community through a
will.
The
division of Abdul Rahiman Rowther's property was at issue in this lawsuit. He
had divided the property between himself, his two sons (the defendants), his
daughter (the plaintiff), and his first wife. When the partition deed was
created, the plaintiff and the defendants were juveniles, and their mother
served as their guardian.The plaintiff, who is requesting the division of
one-fourth of the defendants' rice mill share for herself, was offered a joint
stake of the rice mill that their mother had acquired. The defendants rejected
the plaintiff's allegation. It was asserted that under Muslim inheritance laws,
the defendants were entitled to 7/8th shares, whereas the married plaintiff
could only have 1/8th of a share. The High Court noted that the deceased's
purpose was for the parties to enjoy the property jointly, and that the
partition document did not specify an equal distribution of shares between the
plaintiff and the defendants. However, because a partition is being requested,
Muslim inheritance laws will be in effect, granting the plaintiff only one
eighth of the shares and giving the defendants the remaining seven eighths.
The
main issue in this case was whether or not (late) Abdul Khalaque's will was
genuine. The first wife and her sons are the plaintiffs; the second wife, her
daughter, and her sons are the defendants. 3.25 acres of land were left behind
by the dead. The defendants disputed that the property was left to them in the
will, thus the plaintiffs demanded that the land be divided. The trial court
found that the plaintiffs were the beneficiaries of a fraudulent will. The defendants
filed their first appeal against this ruling, which determined that the will
was defective and changed the shares that were awarded to the plaintiffs while
ruling out the possibility that the document was forged. The Court clarified
that a Mohammedan will must be within a specified limit, have a competent
legatee, and be given the heirs' agreement after the testator's death by citing
Section 118 of the principles of Mohammedean law. Muslim may leave his property
to his heir, but only if, following the testator's death, the other heirs'
consent is obtained. It is considered consent when heirs do not contest the
bequest over a considerable period of time. The testator's ability to leave a
bequest that exceeds one-third of the remaining amount after debt and burial
costs have been paid is restricted by Mohammedan law. Because the will in this
case beyond the allowable maximum, it is void and denies the plaintiffs their
just share.
Here,
the petitioner—the deceased man's wife—filed for her husband to be recognized
as his legal heir. The petitioner mistakenly omitted her father-in-law, who is
a legitimate legal heir, and thus filed a new application. However, she was not
given the opportunity to speak and her application was turned down due to a
mistake. Therefore, the question was whether it was appropriate to deny the
petitioner's request to include her father-in-law. The father is also a
legitimate successor to the deceased's property, the court noted, alluding to
the inheritance laws of Islam. Additionally, it stated that the petitioner was
not given a fair hearing, which goes against the fundamentals of natural
justice. As a result, the petitioner was given a fair hearing and the court
remanded the case for review in compliance with the law, overturning the
previous judgment that had denied her request.
5. CONCLUSION
In
a larger sense, in India, Muslim inheritance is regulated by their individual
personal rules, which are grounded in Islamic or Quranic precepts. It provides
comprehensive guidelines on inheritance, distribution, and estate
administration, so establishing the framework for how inheritance should be
passed down within a Muslim household. Muslim personal regulations, however,
are extremely inflexible and rarely subject to debate or revision. There have
long been worries about things like the unequal property rights for male and
female heirs, the exclusion of stepchildren, illicit children, and the
non-recognition of adopted offspring, among other things. Moreover, an ongoing
legal and judicial battle to reconcile personal laws with the constitution
necessitates the creation of a more comprehensive legal framework that might
try to strike a compromise between the two.
REFERENCES
Abdul
Majid Khan Sahib v. Krishnamachariar AIR 1918 MADRAS 1049.
Anderson, J. N. D. “Recent Reforms in the
Islamic Law of Inheritance.” The International and Comparative Law Quarterly,
vol. 14, no. 2, 1965, pp. 349–65.
Illyas and Ors. v. Badshah alias Kamala 1989 SCC OnLine
MP 175.
Imambandi
v. Sheikh Haji Mutsaddi AIR 1918 PC 11.
Jannath
Beevi v. Tahsildar AIR 2022 Mad 26.
Kimber,
Richard. “The Qur?anic Law of Inheritance.” Islamic Law and Society, vol. 5,
no. 3, 1998, pp. 291–325.
Mohammed
Gani v. Parthamuthu Sowra 2008 SCC OnLine 134.
Rashid, K. (1979) Muslim law. Lucknow:
Eastern Book.
Rijia
Bibi and Ors. v. Abdul Kachem and Anr.
AIR. 2013 Gau 34.
Russell, A.D. and Suhrawardy, A. al-Mamun
(2008) Muslim law: An historical introduction to the law of inheritance.
London: Routledge.
Subramanian, Narendra. “Legal Change and Gender
Inequality: Changes in Muslim Family Law in India.” Law & Social Inquiry,
vol. 33, no. 3, 2008, pp. 631–72.
The
Indian Succession Act, 1925, No. 39 of 1925.
The Muslim Personal
Law (Shariat) Act, 1937, No. 26 of 1937.
The Special Marriage
Act, 1954, No.43 of 1954.
[3]
Kimber, Richard. “The Qur?anic Law of Inheritance.” Islamic Law and Society, vol.
5, no. 3, 1998, pp. 291–325.
[5]
Russell, A.D. and Suhrawardy, A. al-Mamun (2008) Muslim law: An historical
introduction to the law of inheritance. London: Routledge.
[8]
Anderson, J. N. D. “Recent Reforms in the Islamic Law of Inheritance.” The
International and Comparative Law Quarterly, vol. 14, no. 2, 1965, pp. 349–65.
[9]
Subramanian, Narendra. “Legal Change and Gender Inequality: Changes in Muslim
Family Law in India.” Law & Social Inquiry, vol. 33, no. 3, 2008, pp. 631–72.