“Learn the laws of inheritance and teach them to the people, for they are one-half of the useful knowledge,” said Prophet Muhammad. inheritance means the transfer of property to the living person from the deceased along with any other transferable rights.
Inheritance has a different meaning in Islam. There is no particular definition of it in the Quran but many scholars have defined it in their ways. According to Sir Abdur Rahim - Inheritance is the transfer of the rights and obligations of the deceased person to his/her heirs. Inheritance of property in Muslim Law comes only after the death of a person. Any child born into a Muslim family does not get his/her rights to property by birth. If an heir lives even after the death of the ancestor, he becomes a legal heir and is, therefore, entitled to a share in the property.
We know that we are living in a constitutional civilized society, but we have no Uniform Civil Code in India except in Goa. Every religion practiced in India has been governed by its respective personal laws. Islamic law of inheritance is a mixture of the Pre-Islamic customs and the rules introduced by the Prophet.
The Muslim Law of inheritance derives its principles from the four key sources of Islamic law: the Holy Quran, the Sunnah ( the practice of the Prophet), Qiyas (deduction based on analogy on what is right and just by God), and Ijma (consensus-based decision us of the learned men of the community on a particular subject).
Under the Muslim law of Inheritance, both men and women have been given equal rights. On the death of an ancestor, nothing can restrict both boy and girl child to become the legal heirs of the inheritable property.
However, it is generally found that the quantum of share of female heirs is half of that of the male heirs. The reason behind this is that under Muslim law a female shall receive mehr and maintenance from her husband during the marriage ceremony. Whereas a male will only have the property of their ancestors for inheritance and the male also has the duty of maintaining their wife and children.
Even though women account for almost half of the earth’s population and contribute significantly in all areas of the economy, their social, economic, and political status is not the same as those of the males. Muslims in India are governed by the Muslim Personal Law (Shariat) Application Act, of 1937, which deals with marriage, successions, and inheritance among Muslims.
According to this law, if a person dies leaving behind only daughters and no sons, the daughters are entitled to inherit only a two-thirds share of the deceased’s property. The rest will go to the deceased siblings. But if they have a son who is at least a day old when they die, then the son gets the deceased’s share and the daughters get half of what the son gets. It is this clause in Muslim Inheritance Law that places many women/widows and their daughters at the mercy of the deceased person’s siblings and extended family.
Muslim women do not get their rightful share in ancestral property and when denied their share, the women are compelled to approach the Court as part of their struggle. Such cases are heard by Civil Courts and decided under the Mohammedan Law or Islamic Law (Shariat).
In Assam, the current legal position and practice is that Muslim women are at par with men when it comes to the right of inheritance. In most cases, a girl is automatically entitled to inherit half the share of her brother and in exceptional cases, the inherited property is even equally shared between the siblings irrespective of gender and religion. Contrary to that an aggrieved is at liberty to seek relief before the appropriate Courts.
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The scenario in other parts of the country regarding the current legal position and as far as the practice is concerned is that girls also do not claim because they are raised in such an environment that from their childhood they believe that they do not have any right in property. The Customary Laws are overwhelmingly patriarchal and discriminative against women. When you challenge the rights of inheritance, you are simultaneously fighting patriarchy, as well as family and relationship principles. Often fathers and sons are unwilling to share the parental property with married women since they believe she belongs to the husband’s family and has already been rewarded with a dowry at the time of their marriage.
(Dr. Shahnaaz Rahman is an Advocate/Mediator at Gauhati High Court and teaches law at B.R.M. Govt. Law College, Guwahati. Opinions are personal)
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