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GENDER EQUALITY & LAW OF SUCCESSION IN ISLAM BY: SATWIK JAIN
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GENDER EQUALITY &
LAW OF SUCCESSION IN ISLAM
AUTHORED BY: SATWIK JAIN
New Law College, BVDU, Pune
CLASS : BB.A LL.B 3RD
YEAR (2023-24)
DECLARATION
This is to declare that the Research
Report titled as GENDER EQUALITY AND LAW OF SUCCESSION IN ISLAM- is
bonafide work submitted at New Law College, Pune is an outcome of my
work and is undertaken by me. I, further declare that present work is bonafide
one and outcome of my own efforts, this research report or any part thereof,
has not been submitted in part or full to this or any other university for any
degree or diploma or any similar title.
Satwik Jain
Name &
Roll No. -: B-30
YEAR
Class: - BB.A LL.B 3RD
COLLEGE, PUNE College
Name: NEW LAW
1.
Index of Authorities
·
Imambandi
v. Sheikh Haji Mutsaddi (1918)
·
Mohammed
Gani v. Parthamuthu Sowra (2008)
·
Rijia
Bibi and Ors. v. Abdul Kachem and Anr.
(2013)
·
Rukmani
Bai v. Bismillavai (1992)
·
Gulam
Abbas vs Haji Kayyum Ali & Ors on 18 September, 1972
·
Miss.
Talat Fatima Hasan vs His Highness Nawab Syed Murtaza, 1996
·
Mukarramuddin
vs Rahimuddin And Ors. on 3 February, 1989
·
Ali
Amad Represented By L. Rs. vs Sindhi Ebrahim Kasam And Ors,1982
·
Mohd.
Iqbal & Ors vs Mst. Najma & Ors , 2012
·
Ms.
Farha Haseeb vs Smt. Anjum Jahan , 2013
Chapter-I:
Gender Equity is preferred over
Gender Equality in Law of Succession in Islam
2.
Introduction
The way of living in Islam is
different from other religion. The goal of sharia law is to provide justice for
all people. Islam accords each gender at same level. However, it takes a stand
to ensure justice and fairness by providing women with equitable inheritance
rights.
Men have the sole responsibility to
earn and spend money on their families and also upon entering into a marriage,
a male is required to provide his wife dower.
However, women do not have the
responsibility of earning money or having financial responsibilities that’s why
there is a fairly equitable inheritance of right among male and female in islam
rather than the equal share. Hence man is given double share than that of women
of same degree in getting inheritance.
The analysis of the Islamic
inheritance raise the question that there is unequal distribution of property
between men and women in islam.
3.
Review of Literature
Muslim law of succession is derived
from the four sources of Islamic law –
1.
The
Holy Quran
2.
The
Sunna that is, the practice of the Prophet
3.
The
Ijma that is, the agreement of the learned men of the community on what should
be the decision on a particular point
4.
The
Qiya that is, an analogical reduction of what's right and just in agreement
with the good principles laid down by God. Muslim law recognizes two types of
heirs at law, Sharers and Residuaries. Sharers are the ones who are given right
to a certain share in the deceased’s property and Residuaries would take up the
share in the property that's left over after the sharers have taken their part.
Sharers[1]
The Sharers are 12 in number and are
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. The share taken by each sharer will differ in certain
conditions.
1. Husband: - Always sharer: - With child or
child of son the -1/4th Share
Without lineal descendants- 1/2nd
Share
2. Wife or wives: - Always sharer: - With lineal
descendants -1/8th Share
Without lineal descendants- 1/4th Share
3. Daughter: - With son she becomes residuary.
Otherwise Share of 1/2nd
Where the deceased has
left behind more than one daughter, all daughters conjointly takes 2/3rd
part of Share.
4. Son’s daughter: While the son (or daughter) is primary
heir, child of a son how-low-so-ever is a substitute. The substitute is
excluded by the primary heir. Thus the son’s daughter is a sharer but is
excluded by the presence of the son. A son’s daughter is excluded by a higher
son’s son. With equal son’s son, she becomes residuary. Thus, the son’s
daughter becomes residuary with son’s son. When she is not excluded or
converted into a residuary, she takes as a sharer and her share is ½ when there
is no daughter or lineal descendants.
5. Father: - Becomes only a residuary, when he
has no child or child of a son
When there is son or son’s son then father
will get the 1/6th of part only as a sharer.
When there is daughter (or daughter) or son’s
daughter (or daughters) but no son or son’s son then father takes both as
sharer and as Residuary.
6. Paternal Grandfather: - The paternal grandfather is
excluded by the Father and when he is not excluded his share is 1/6th.
7. Mother: - Never residuary. When there is
child or child of son or more than one brother or more than 1 sister or 1
sister+ Brother then share of mother is 1/6th otherwise 1/3rd.
8. Grandmother on Male line: - Her Share would be 1/6th.
She is excluded by mother, who is a primary heir.
9. Full sister: With full brother, she becomes
residuary. Otherwise her share is ½.
10. Consanguine sister: - With Consanguine brother, she
becomes a residuary. When not excluded her share is ½.
11. Uterine sister/Uterine Brother: - Uterine sisters and brothers become
sharers only if there is no child, son’s child how low soever, father and
grandfather of the deceased. Then the share of either sister or brother is 1/6th
and if there are 2 or more brother and sisters then t would conjointly get the
2/3rd share and divide it equally.
Right to property on Birth in islam[2]
As According to section 6 of Hindu
Succession (Amendment) Act 2005, the male and female both have equal birth
right in the ancestral property.
Unlike Hindu, property right of
muslim comes only after the death of a person, any child born in a musilm
family does not get right to property on birth.
Among sunni muslims the distribution
of property is made by the method of per capita according to this method the
left over property of the ancestors gets equally distributed among the heirs.
Hence the share of each person depends on the number of heirs.
Rights of females
Muslim law of succession does not
create any difference between the men and women and both of them become the
legal heirs of the property after the death of the ancestors but it is found
that the portion of share of the female heir is half from that of the male
heir. The reason behind this is that man have only two sources of income one is
his own earnings and other is his property gained from succession whereas the
woman have five sources of income and man have too many obligations some of
which are as follows:
1. The
maintenance of sisters where father is incapable of taking care of her daughter
or in case where father is not alive and the sister is unmarried.
2. The man has
to pay dower to his wife at the time of marriage.
3. The man has
the responsibility of taking care of his children.
4. It is the
son’s duty to take care of his parents during their old age.
5. The man has
to get involved in social functions and thus causing a huge expenditure.
Whereas Islam has completely kept the
women out from all these obligations and financial duties that are being vested
upon men. This is the main reason why the women in islam is given the half the
share in property in comparison to the man and hence islam believes in Gender
Equity rather then Gender Equality which means that there is fair and
reasonable allocation of property to both men and women other than giving
exactly equal land in succession. On the contrary if the term ‘Equality’ taken
in literal sense, that will not bring any welfare to both sexes but would
create conflict in respect of mutual duties and rights for that reason the term
‘equity’ is more appropriate.
The Topic of Gender Equality in succession
of islam has been observed by various researcher and scholars and have opined
on different angles. Some authors gave the opinion that females are suffering
from injustice by getting half the share in comparison with the men and some
says that there is equitable distribution of property i.e fair and reasonable
distribution of property among male and female.
The Authors who were against the Islamic
Law of Inheritance:
Lindsey (2018) [3]put
forward that under the Muslim law of Succession , men receives double the share
the women gets, In some cases distant male relatives may also supersede wives,
sisters and daughters and hence leaving the women at disadvantage.
According to Cherif (2010), By
giving half the property to women, the women’s access to full citizenship in
matter of inheritance are impeded.
The Authors who were in support of
the Islamic Law of Inheritance found that islam has ensured justice to both
sexes in its own schemes. As in there observation the law of inheritance should
be seen in a comprehensive outlook rather than apparent mathematical outlook.
Nasir (2009) put forward that prior to islam ,
women was not given a penny of share from the property i.e there was no right
of inheritance given to women but in today’s era the women is given the
equitable share in the ancestral property. Its better to have something rather
than nothing.
Qutb (1964) observes that part of share of men
and women is justified as in islam as men has all responsibilities and obligations
to spend money on his family on the contrary women do no have such obligations
in islam.
Muhammad as-Sadiq was asked regarding the inequality
in distribution of property between man and woman where he replied that the men
has more obligations as he goes on war and obligations and responsibilities of
the other family member are burdened on the shoulders of the men not women.
Gustave Le Bon (1884)[4] says that the principles of distribution
of the ancestral property which have been determined in the
Quran have a
great deal of
justice , fairness and reasonableness.
Opinion of Judiciary through Judicial
Pronouncement
Facts: A man named Ismail Ali Khan died
leaving behind her 3 widows and children from each widow. One of his Widow
namely Enayet-uz-Zhora having two minor children filed a suit for claiming the
share of their children in his husband’s property.
Issue: Whether the mother has the right to
deal with the property share of her minor children in husband’s property after
his death?
Held: The Court held that according to
the Muslim personal laws , the mother can have the custody Right but not a
natural guardian of the minor ,after the death of the father , the paternal
grandfather becomes the natural guardian and has to look after the affairs of
the minor’s property and mother had no authority to alienate the property.
In this case Abdul
Rahiman Rowther prepared the Partition deed in which he divided the property
among himself, his wife, his daughter(the plaintiff) and his two sons( the
defendants). The plaintiff and defendants were minor at the time of the
partition so their mother was made a guardian. The will offered the joint share
of rice mill to plaintiff and defendants. The plaintiff claimed the 1/4th
share for herself, but defendant said according to Muslim Personal laws the she
was entitled for 1/8th share as she is married, the trial court Gave
the decision in favour of plaintiff giving them the ownership of the 1/4th
property.
The High Court of Madras
put forward that partition deed did not specify the equal distribution of
shares between plaintiff and defendants and intention of the deceased ancestor
was that parties should conjointly enjoy the property. However the dispute of
partition arose hence the Muslim Laws of inheritance shall apply according to
which the plaintiff was entitled for 1/8th shares only, as the
plaintiff was the married woman and hence according to Islam which follows the
Gender Equity concept which distribute the property of the ancestor in a Fair
and a Reasonable manner and here in this case woman is already married and must
have got the dower during her marriage and had very less or no responsibilities
or obligations in comparison to the defendants. Hence according to the Madras
High Court it is very Reasonable decision in giving only 1/8th share
to the plaintiff and 7/8th to the defendant as they were burdened
with too many responsibilities and obligations.
This report disprove the theory that
there is injustice faced by women in respect of inheritance based on apparent
mathematical calculation and gender equality. The researcher showed that Muslim
women were not deprived, but justice was ensured by distribution of property in
a fair and reasonable manner(Equitable).
4. Statement
of Research Problem:
The issue of Gender Equality in the
Inheritance of ancestral property in islam has been a topic of discussion for
many years because many people are not aware of the complex provisions related
to the property rights in Succession of Islam.
According to the law, if a couple has
only a Single girl child, she is only entitled to the half of her father’s
property and rest will go to her father’s siblings and if there are more than
one girl child, they would conjointly get only two third share of the total
property.
If the woman’s spouse passes away,
she will be only be entitled to one-eighth of the estate and rest will be given
to the other male members.
Modern society is comparing the
Gender Equality in Law of Succession in Islam with the Western Outlook according
to which the women should be given the exactly equal share in the ancestral
property but Islam believes in Gender Equity which is wider concept where men
and women are given Fair and Reasonable distribution in the ancestral property
according to the responsibilities and obligations burdened on them.
As in the contemporary world, women
are actively educated and equal in every field of profession so here arises the
problem that why they are given half the share in comparison to men in the
ancestral property if they are equal in every field. So my opinion to this
problem would be that in Islam men is not given Dower at the time of marriage
but the women is given. Women does not have the responsibilities and
obligations of the family but men have such responsibilities and have much
financial burden in managing these expenses.
5.
(i)Research Objective
The goal of the current Report is to
find out the basis of Islamic approach regarding distribution of a property
among men and women as Law of Succession in Islam. The major goal of this
Report is to find out whether Succession in Islam has ensured justice or
fairness to both male and female by applying its doctrine of inheritance i.e.
equity(i.e Fair and Reasonable) instead of equality in the distribution of
ancestral property.
5. (ii)Research Question
1. What are
the key gender-based disparities within the Islamic law
of succession, and how do they expressed in inheritance practices?
2. Law of
Succession in islam follows the concept of Gender Equity rather than the
concept of ‘Gender Equality’ in literal sense?
5. (iii). Scope and Limitations of
Research Report:
Scope:
This Report gives the vast idea About
the Gender Equality In Succession of Islam and it did not take word equality in
Literal sense that there would be a equal mathematical distribution of the
property among males and females but in fact it uses the wider concept Gender
Equity which means there is a fair and reasonable distribution of the property,
one having the more obligation shall be given the larger portion in the
ancestor property and majorly the males member of the family having the larger
number of the responsibilities and obligations of the family so they get double
the share then the female and hence society criticize the Islam Law of
Succession as Gender Biased without knowing the deep root cause of the same.
This Report is basically supports the
Islamic Law Of inheritance and says that it is Just and fair for women as well.
Those who criticise the Islamic Law of Inheritance without knowing the deep
route cause of its nature may go through this short and precise report in order
to get the solution why it is of such nature which appears as such it is unjust
for women but actually it is not of such nature.
This Report is readable by person of
all age group and majorly by the people who have the interest in social
activism.
This Report will try to clear all
your doubts regarding the concept of Gender Equality and Gender Equity in
Succession Rights of Islam by giving the short reading of 30 to 40 minutes
only.
Limitations:
There are certain Limitations to this
Report ,this report treats all the family member to be of encouraging and
helpful nature which is the ideal case situation and they would help the women
of the there family in case her father/husband dies , as there are certain
cases where farther male inherits the property over the wives , daughter and
sisters and in those cases the women apparently got dependent over those
relatives, and as per the understanding of the Islam it works on the Ideal situation
where members of family help each other and follows the Social Solidarity
theory of Leon’s Duggit that in the society interdependence of one men on other
men is very important and those laws which does not follow the social
solidarity theory , it is bad in law.
6.
Chapterisation
Chapter 1. Gender Equity is preferred
over Gender Equality in Law of Succession in Islam
Chapter 2. Right of females over Distribution
of the property under Muslim Law
Chapter 3. Gender-based disparities
within the Islamic law of succession
Chapter 4. The Holy Quran- The Source
of Muslim Law of Succession
7.
Conclusion/Recommendation
In other Religion, there is no such law
that over-burden only a men with financial obligations of family and not
involving the women in the responsibilities of the family. In Islam only men
are required to take care of the entire financial needs of the women and other
members of the family. Therefore, demanding a “fair”,“just” or “equal” share of
inheritance for both men and women of Islam, who do not have equal financial liabilities
and duties, conclusively this is an unfair and unjust demand. The Society blame
Islamic system for the giving women the unequal status but it is clear that it
is not the Islamic law but the social mentality and evil practice is
responsible for the distress of women in getting their rights of Succession.
So, instead of demanding equal share of the women in property, the feminist
movement and everyone concerned should stand for the justice by raising voice
for the enforcement of the prescribed share determined by the Holy Quran for
the Muslim women as the women in our society usually do not get the penny in share
in most of the cases and voice is needed for the proper implementation of laws.
It is easy to understand from the
discussion presented in this Report that a woman source of earnings are at least
four with no responsibilities and obligations and a man earns from not more
than two sources but with too many obligations and responsibilities.
A men is given double the shares in Succession
only for their over-burdened obligations towards their family member but in any
exceptional scenario when the men is unable to perform his obligations and
responsibilities and does not provide proper support to the parents and other
family members then the women takes the control to provide maintenance and
services to the family members then the parents can make a gift in name of the women,
hence this proves that Islamic Law of Succession follows the concept of Gender
Equity rather than Gender Equality as distribution of ancestor’s property is
Fair and Reasonable , the one who is obligated with more responsibilities is
given more share in the property and this is not a apparent mathematical
calculations by equally dividing the shares between men and women, there is
always a reasonable distribution of property among men and women.
To ensure the inheritance right of
women the following steps can be taken by the state:
1. Like birth
and marriage registration, death should also be mandatorily registered to maintain
the records of deaths where the date of death, the names of the living heirs
(both men and women) and amount of his property must be recorded.
2. The state
may telecast and broadcast the issue of women’s inheritance rights through
electronic and printed media.
3. A chapter
on inheritance right of women should be included in the curriculum of the
Schools.
8.
References
·
Cherif,
F. (2010). Culture, Rights, and Norms: Women’s Rights Reform in Muslim
Countries. The Journal of Politics,72(4),1144-1160.
doi:10.1017/s0022381610000587
·
Lindsey,
U. (2018). Can Muslim Feminism Find a Third Way?The New York Times, Newyork.
Retrieved 29th July 2019 from https://www.nytimes.com/2018/04/11/opinion/islam-feminism-third-way.html.
·
Nasir,
J. J. (2009). The status of women under Islamic law and modern Islamic
legislation. (3 Rev Upd ed.), Lieden, Brill.
·
Qutb,
M. (1964). Islam The Misunderstood Religion. English Translation (2006), IIFSO,
Riyadh, Saudi Arabia, 148-149
·
Bon,
Le Gustave (1884). Arab Civilization. Paris: Librairie de Firmin-Didot et Cie
·
Sinha,
Dr. R. K. (1995). The Muslim Law. Allahabad, India. Central Law Agency, India
·
Books
i.
Family Law in India by Prof. G.C.V Subba Rao
ii.
Family Law by Dr Paras Diwan
iii.
Mulla Hindu Law by Dinshan Fardunji Mulla
[1] Family Law in India by Prof. GCV
Subba Rao Pg no.-722
[2] Law Of Succession In Muslim Law By
Ramendra pratap singh- E-Journal Legal Services India
[3] Women Rights of Inheritance in
Islam: Equity versus Equality Md. Abdullah Hil Gani, Md. Nadir Khan
[4] Inheritance Rights of Women in
Islamic Law by Muhammad Jalal Uddin
[5] Imambandi v. Sheikh Haji Mutsaddi
(1918) 20 BOMLR 1022
[6] Mohammed Gani v. Parthamuthu Sowra
LAWS(MAD)-2008-1-378
Article Information
GENDER EQUALITY & LAW OF SUCCESSION IN ISLAM BY: SATWIK JAIN
Authors: SATWIK JAIN
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/15
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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