Dr. Shomaila Warsi
On May 11, Delhi-based multimedia platform Awaz-The voice carried an opinion piece by Prof. Akhtarul Wasey, Professor Emeritus (Islamic Studies), Jamia Millia Islamia titled Muslim women inherit multiple times and at times more than that of men. The article made three broad points about the apparent gender disparities in Muslim inheritance law. One is that since the inheritance law is derived from the Holy Quran, Surah Nisa (4:11-14), it leaves no scope for any change of reinterpretation of the classical Sharia. Said in other words, Allah has described to the minutest detail the method of division of the property, therefore human beings have no choice but to follow the divine decree.
The second point is that since a woman’s share in the capacity of a daughter, sister, wife or mother has been determined by Allah, again, the feminist demands of gender equality in the disposal of property goes against the grain of Sharia. And thirdly, and most importantly, the main argument from which the article derives its title, the discussion over the property rights of Muslim women is futile because, under the current scheme of things “a woman inherits from her maternal home and also from her in-laws, not only from her father and husband, but also from her mother, and brother. In this way, she gets this share many times in his life”. By that logic, the distribution of property in its present Sharia-compliant form is not just non-discriminatory but gives preferential treatment to Muslim women.
As is obvious, the article presents a traditionalist view of Islamic inheritance laws that are under challenge from Muslim reformers across the world. The popular interpretations of the sections from the Quran and Hadith related to the inheritance rights of Muslim women on which the article is based are being fiercely debated in Muslim-majority countries for quite some time and the states are invoking instruments of Ijtihad (independent reasoning by scholars) and its various forms like ijma (scholarly consensus), qiyas, istihsan (equity) and maslahah mursalah (public interest) to apply for the Quranic injunctions in the right spirit of justice and equality that form the bedrock of Quranic understanding of gender relations.
While Prof. Wasey sees no place for debate over the application of Sharia law to inheritance matters, the current debates and practices around Sharia in Islamic countries are quite heterogeneous. There are Muslim states like Turkey, Tanzania, and Albania that follow a secular Sharia system which is a departure from classical Sharia.
Then there are states like Pakistan, Egypt, Indonesia, Nigeria, and Morocco that follow a mixed system where family law as per the classical Sharia has been updated and reformed to meet the demands of time. Indonesia is a special case where the maxim of Harta Gono Gini (joint property) has been incorporated in the Islamic Legal Compilation which is influenced by a Javanese tradition that wife and husband have equal rights.
Lastly, there are other States like Saudi Arabia that follow Sharia law alone as per the Hanbali school of thought. Saudi Arabia turned to this after the advent of Muhammad Ibn ‘Abdul Wahab. So, Prof. Wasey’s first contention that classical Sharia is immutable and there is no scope for any reform there is at variance with the practices in the larger Islamic world, yes this may be true for countries where political expediencies have necessitated a rigid interpretation of Sharia law.
Then the specific second point in the article about the un-amenability of inheritance laws vis-à-vis Muslim women and how this debate is also closed because the Quranic verse is ‘clear’. Again the reality is that the debate on the law of inheritance in Muslim countries is very much alive and thriving and two broad patterns are seen. One side relies on the literal interpretation of Quranic verses to conclude that a man is entitled to receive two portions compared to a woman, while the other side argues that in the broader Quranic scheme man and woman are equal so the property should also be distributed equally. In countries like Tunisia and Turkey liberal interpretations have been gaining currency for a long to embrace the requirements of modernity while in nations like Saudi Arabia and the UAE, more traditional interpretations are applied.
Miftahul Huda expands the debate to identify four patterns of reform in the wider Muslim family law. Miftahul calls the first one progressive, pluralistic, and extra-doctrinal reform, such as in Turkey and Tunisia. The second type is adaptive, unified, and intra-doctrinal reform, as in Indonesia, Malaysia, Morocco, Algeria, and Pakistan; the third type is adaptive, unified, and intra-doctrinal reform, represented by Iraq, while the fourth type is progressive, unified and extra-doctrinal reform, like in Somalia and Algeria.
The point is that we must look at inheritance law as an extension of family law and apply the same tools of interpretation to it. Prof. Wasey is very much aware that there are traditionalists who believe that polygamy is ordained by Allah and any law that outlaws polygamy violates Sharia. Likewise, when it comes to the share of orphan grandchildren, Sharia has often been wrongly applied to deny a share to them. But when it comes to reform, Pakistan and Indonesia found innovative ways to put limits on the practice of polygamy by making existing wives’ consent mandatory. Tunisia has banned polygamy altogether.
Likewise, laws were made to ensure that orphan grandchildren get a share of the property through a mandatory will from the grandfather. Family law reform has been actively pursued in Muslim states in recent years and Muslim jurists have found innovative ways to increase the minimum age of marriage, expand a wife’s ability to give divorce, give custody of children to mothers, and reduce the subservience of Muslim women to their husbands.
In India triple talaq used to be presented as an element of Muslim faith till it was finally abolished by the Supreme Court of India without a murmur from the larger Muslim community.
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The point is that many Islamic countries have reformed their laws to provide greater equality and rights to women. Inheritance laws in India must align with modern values and principles of equality and Muslim intellectuals here must take cognizance of the feminist themes in the debates around Muslim inheritance law and promote the reformist view of Islam. The need for reform to bring women at par with men is being felt everywhere and the Male Muslim scholars like Prof Wasey would do well by not siding with the status quo. They should rather advise India’s Muslim community to follow the law of the land on these matters if the Personal law fails to come of age.
(Dr Shomaila Warsi PhD teaches Politics and International Relations at Kirori Mal College Delhi University. Views are personal).