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Progressive Reformation Of The Muslim Law Of Inheritance: Need Of The Hour

Lack of enforcement of Uniform Civil Code[1]in India has resulted into divergent laws of succession for each religion. In India, religion plays a decisive role to the extent that the transfer of wealth from one generation to next is contingent on the rules and laws as given in that specific religion. These rules or laws are generally uncodified which supplements to the complicated nature and hence makes it impossible for a common man to understand how the transfer actually works. 

Islam for example is one such religion in which the rules related to succession are uncodified. Further the complexity arises because of the division of Muslims into two sects i.e., Sunni and Shia. The root of inheritance laws of Islam can be traced back to pre-Islamic customs and rules made by Prophet. Diverse sources of Islamic law1 have shaped the Muslim laws of succession which is further bifurcated into intestate and testamentary succession. The combination of sources which together form the rules of inheritance of Islam are the Holy Quran, Sunna, Ijma and Qiya[2]. 

The focus of this article is limited to intestate succession i.e., in case of absence of will, the two branches of Muslim law have distinct set of rules that oversee this patriarchal manner of succession. The aim of the paper is to put forward the potential law reforms that are imperative by critically analyzing the disparities between the more accepted and widespread Sunni law and less appreciated Shia law. In the first part of the article brief introduction of both the sects i.e., Sunni and Shia law are given. The next section of the article gives an in-depth critical analysis of the differences between both the laws and finally the last part is focused on the reforms that are required to make both the laws analogous and in favor of women and children. 

Sunni Law

Dissected into 4 sub-categories[3], the majority of Sunni Muslims follow Hanafi law which is basically an amalgamation of Quranic law. Interpreting the Quran stringently, Hanafi school is the one which recognizes three classes of heirsand propounds the idea of preference of agnates over cognates. 

Shia Law

The most famous school out of the three categories[4]is Ithana Ashariand it majorly interprets the Quran broadly and in a liberal way. As opposed to Hanafi school, only two groups of heirsare recognized here and as such no preference is given to agnates over cognates. 
 

Critical Analysis Along With Difference In The Application Of Laws

Even after getting their vision from the Quranic verses, both the laws are different when it comes to their basic structure. The gap is too wide and cannot be bridged at all. These disparities in both the laws will go a long way in helping us to understand why and what kind of law reforms are we looking at.
  1. Recognition of classes of heirs

    Since Sunni law works on the principle of giving preference to agnates over cognates, it recognizes three classes of heirs, namely, sharers, residuaries or agnates and distant kindered or cognates. Shia law doesn't really consider giving preference to any one class and so accepts only two classes i.e., sharers and residuaries.

    This given classification sows seeds of gender inequality and affects the rights of women especially. The division done by Sunni law excludes the descendants of pre-deceased's daughter but not of the pre-deceased's son. It places son and daughter on an unequal footing. The same concept exists when it comes to comparing the descendants of brothers and sisters.

    However, the same cannot be said about Shia law as their categorization is not based on any preference. As the descendants of a son and a daughter are placed in the same class or level, there is absolutely no discrimination between the two.

    But a remarkable thing to note here is that even after giving an equal space to a female, the quantum of share differs in the sense that a male heir is entitled to a double share than that of a female.

    The road to equality, the fight for equality, the outcry for equality is not just about recognition or representation of females. It is about getting equal opportunities, equal treatment and equal footing as that of men. Sure, the law has come a long way from a time when females were absolutely excluded from inheritance to a time when females do have a right to inherit, but the battle or the tussle does not end here. There is still a huge road ahead of us in terms of making laws gender neutral.
     
  2. Distinction between paternal and maternal grandfathers

    Sunni law classifies paternal grandfathers as true grandfathers[5]and maternal on the other hand as false grandfathers[6]. The same classification is done for grandmothers as well.  Owing to the absence of third category of legal heirs under Shia law, there exists no such classification. 
     
    The whole concept of true/false grandparents further enhances the idea that Sunni law is indeed inclined towards the paternal side more. The value and recognition that should have been given to maternal side as well, is totally absent under Sunni law. The discrimination is evident with respect to not only the gender but also the origin.
     
  3. Significance extended to residuary

    On comparing the two branches of law, it will be seen that the category of residuaries is given more importance when we talk about Sunni law. 
     Let's take an example to understand how this significance given to residuaries is not really fair as it appears to be. 
    Suppose, there's a Muslim man who dies leaving behind a brother and a daughter only. 
    The calculation of shares will be different in both Sunni and Shia law due to the categorization of heirs. 
    Under Sunni law, 
     The daughter being a sharer will get half of the share and the rest will go to the brother who is a residuary in the absence of son and a father. 
    Under Shia law, 
    The whole concept of exclusion of class-2 heirs by class-1 heirs will apply and subsequently the daughter will inherit all the shares. As a sharer she will get half and the other half will come back to her under the doctrine of radd/ return. 
     
    As clearly seen, when it comes down to choosing between a female over any male, in some way or the other there is always a loophole which will favor the male. The patriarchal system on which the pre-Islamic laws of succession were built has not been completely wrecked. These minute differences when looked at together become the pillars of the concept of gender inequality.
     
  4. Inheritance of childless widow

    The law is progressive in the sense that rights of inheritance are given to a childless widow under both Sunni and Shia law. However, the setback to the law is that under Shia law, the childless widow is not entitled to inherit land or any immovable property of her husband.

    There is a clear rule under Muslim law of inheritance which ignores the differentiation of property. Ancestral to separate, movable to immovable, there is absolutely no distinction that is made in Muslim law[7]. If this is the general rule with no exceptions, then why under Shia law a childless widow is not entitles to inherit from any immovable property including land. What reasonable and fair excuse is there to prevent the childless widow from inheriting? If at all the law is on the clear path of reformation to make it more gender equitable, then why are we not doing anything about these small obstructions lying as stones on this road.
     
  5. Application of rule of exclusion

    The doctrine of exclusion plays a vital role in both Sunni and Shia laws. According to the rule, the nearer in degree will exclude those who are remotely connected to the deceased. 
    However, the application in both the laws differ.

    Sunni law, thrives on the preferential treatment and thus the exclusion of true grandfather cannot be done by any grandmother who is nearer in nearer.

    Even when a grandmother stands nearer to the deceased, she cannot outrank the grandfather's father. The only reason which seems to fit here is that women were/are never considered equal to men. Even with the existence of general rule, the interpretation differs solely because of giving preference to one gender.

    Shia law, gives equal platform to a female counterpart as a full sister in all aspects will be able to exclude consanguine brother as she is considered an equal with her full brother.

    The same does not follow in Sunni law where the actual interpretation is infected with the concept of preferential treatment.
     
  6. Doctrine of Representation

     To understand this concept, let's take an illustration.
    M (MUSLIM MAN)
    (A) - B
    C -   D
    In the above figure, M is a Muslim man who has 2 sons, A and B. The bracket indicates that A has deceased leaving behind 2 sons while B is still alive.

    Now, even though both the laws settle on the fact that doctrine of representation doesn't find a place in Muslim law of inheritance, still there is a chief alteration in the distribution of property.

    Talking about Sunni law, the distribution of property is done on per-capita basis and this doctrine doesn't find its place in this law. The whole of M's property or estate will go to B as he is alive and nothing will be passed on to C and D, grandsons of M.

    However, under Shia law, the distribution is done on the basis of per stirpes in which the quantum of share of each grandson will be given according to the branch that they represent. Since C and D represent pre-deceased son A, they are entitled to half of the estate. The other half will be given to B. Under Shia law, a limited application of this doctrine is permissible. 
     
    The doctrine of representation holds no place in Sunni law and it restricts the grandsons from inheriting from their grandfather in absence of father. This constraint needs to be obliterated as it leaves the grandson with no possible inheritance from their own family. The grandsons are made reliant on other relatives due to this prejudiced restriction.
     
  7. Principle of Aul/ Increase

    By understanding the difference in application of this principle under both laws, it will be easier to point out how exactly beneath the gender-neutral blanket, there lies a wide gap between the treatment of females with respect to male.

    Sunni law applies the doctrine in a way which does not favor anyone. It is more or less objective and unprejudiced.

    However, when it comes to Shia law, this principle favors one gender over the other.

    For example: Imagine a Muslim woman dies leaving behind 2 sisters and a husband. Now as per the norms laid down, the husband is entitled to 1/2 share and the two sisters will inherit 2/3rd each. Since the total exceeds the quantity of shares, this doctrine is applied.

    Under Sunni, this principle uniformly increases the husband's share to 3/7 while sisters' share will be 4/7.

    However, under Shia law, the principle will just simply reduce the share of sisters to 3/6 instead of 4/6. The husband's share is not touched. 

    Even though the husband stands nearer in relation to the deceased, the law is one-sided as the same would not have happened if incase the situation was reversed with a Muslim male dying leaving behind a wife. 

Law Reforms

Islamic law as it stands today is already considered as one of the most beautifully written law with respect to laws of inheritance. Under this law, there exists no room for any speculations or doubts as the law already provides for each and every query. On comparison with other laws, Islamic law of inheritance was probably one of the first laws to uplift the position of women in our society. It unequivocally defined the shares that women were entitled to.

It is equally important to realize that in a contemporary society like that of today's, the only thing that is constant is change. The need of the hour is to change the law, or best termed as reform the law in a way that is acceptable in a society that tends to become gender-neutral. No law is a perfect law and thus reforms are a part of law-making. 
 
That said, Islamic law itself could use some of the reforms in order to remove any infectious law that is masked under this near-to-perfect law. From the rights of widow to the ratio of inheritance between a man and a woman, from the illegitimate or adopted child to the one who committed homicide unintentionally, there exists several cracks that really need to be fixed.
 
As seen above, the recognition of widow as an heir is a noteworthy step in the journey of providing equal treatment, the part that somewhere or the other holds back this journey from being complete is when a widow is not entitled to get anything from the immovable property despite there being a consensus in Islamic law that there exists no distinction between properties.
 
A woman's right to entitlement is recognized in Islamic law, but can we really say that the recognition is complete in itself when there exists a ratio of 2:1 between a man and a woman? Unless we cut these roots of patriarchy from the system altogether, the difference between a man and a woman will always be persistent in our society and the goal of making any law a gender-neutral one will never be truly accomplished.

Talking about the illegitimate and adopted children being disqualified from inheriting from the father under both laws is not only unjust but also inappropriate in today's time. It is almost difficult to get an understanding of the fact that why the children are being made to suffer for the mistake of their parents. Completely accepting the fact that given the interpretation of these holy scriptures and texts, certain reforms are not that easy to bring around due to the reluctance imposed by general public, but still something can be done in order to not let these children just stay in the dark forever.

There is another reform that can be done, specifically under Hanafi law, wherein all kinds of homicide done by a person can be a ground for disqualification. The intentional homicide by a person can still be justified for barring him as an heir, but what about those who accidently, by-mistake or completely unintentionally with no actual fault of their own commit a crime? Even the law makes a distinction between these crimes on the basis of intention, then why not try and make the same distinction under a personal law? 
 
Conclusion
Reforms in a law, especially a personal law is a daunting task as it is not merely about what is right or what is wrong. There are sentiments, beliefs and emotions involved.  It is not at all easy to shackle the base of any personal law. But for what it's worth, trying to bring the required reform will not be a harmful activity. Imparting education and increasing awareness about the need for fair, just and reasonable laws in order to contribute towards a gender-neutral society is something that can be done as a first step in this extensive battle of equality. Even after coming a long way from a patriarchal society, there is a long road ahead of us that is yet to be covered.  

End-Notes:
  1. Ahmed, Shabbeer, and Shabeer Ahmed. Uniform Civil Code (Article 44 Of The Constitution) A Dead Letter. The Indian Journal of Political Science, vol. 67, no. 3, 2006, pp. 545552. JSTOR, www.jstor.org/stable/41856241
  2. https://districts.ecourts.gov.in/sites/default/files/jcj%20palakondawrkshp1.pdf
  3. Sunni law is divided into 4 schools that are Hanafi school, Maliki school, Shafi school, Hanbal school, https://timesofindia.indiatimes.com/india/many-faces-of-islam/articleshow/5403392.cms
  4. Shia Law is divided into 3 schools that are Ithna Ashari school, Zaidya school, Ismailya school,https://timesofindia.indiatimes.com/india/many-faces-of-islam/articleshow/5403392.cms
  5. Male ancestor between whom and the intestate there is no female ancestor, For example: Father's father, https://shodhganga.inflibnet.ac.in/bitstream/10603/137137/8/08_chapter_03.pdf
  6. Male ancestor between whom and the intestate, a female intervenes. For example: Mother's father, https://shodhganga.inflibnet.ac.in/bitstream/10603/137137/8/08_chapter_03.pdf
  7. M.A. Abdul Raheem V. Land Acquisition Officer, AIR 1989 AP 318, The Muslim law doesn't recognize the concept of Joint Property.

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