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Muslim Personal Law in Reference to Inheritance WOMEN IN ISLAM

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 Muslim Personal Law in 239
Muslim Personal Law in Reference to Inheritance...
CHAPTER
23
Reference to Inheritance
and Marriage among Women
(Doctrine to Achieve Gender Equality)

Tanuja Varshney and Farhat Jahan

WOMEN IN ISLAM
In Islam, the role of man and women is complimentary not contradictory. Roots of
economic rights of women are directly related to Islam which does not restrain women
from going to job like, Bibi Khadija (may Allah be pleased with her) wife of Prophet
Muhammed (PBUH) was one of the most successful business women of her time
who did the transaction through her husband. Islam strictly prohibits killing of infant
female children and refers woman as ‘Mohsana’, a ‘fortress against the devil’. Marriage
is considered as a misaq, a sacred agreement and contract among husband and wife.
There were a lot of misconceptions created by west related women position in Islam
which were removed by quoting in Quran as follows:

As a Child and an Adolescent

Despite the social acceptance of female infanticide, the Qur’an forbade this custom,
and considered it a crime like any other murder.
And when the female buried alive is questioned about, for what crime was she
killed?’ (Qur’an 81: 8–9).
Criticizing the attitudes of such parents who reject their female children, the Qur’an
states:
And when the good tiding of the birth of a daughter is conveyed to any of them,
then his face remains black all along the day, and he suppresses his anger. He
hides himself from the people, because of the evil of this good tiding. Shall he
keep it with disgrace or bury it in the dust? Lo! very bad, they judge? (Qur’an 16:
58–59).
Far from saving the girl’s life so that she may later suffer injustice and inequality, Islam
requires kind and just treatment for her. Among the sayings of Prophet Muhammed
(PBUH) in this regard are the following:
 240 Issues in Women’s Rights  

Whosoever has a daughter and he does not bury her alive, does not insult her, and
does not favour his son over her, God will enter him into Paradise (IbnHanbal,
No. 1957). Whosoever supports two daughters till they mature, he and I will
come onthe day of judgment as this (and he pointed with his two fingers held
together).

As a Wife
The Qur’an clearly indicates that marriage is sharing between the two halves of the
society, and that its objectives, besides perpetuating human life, are emotional well-
being and spiritual harmony. Its bases are love and mercy. Among the most impressive
verses in the Qur’an about marriage is the following:
‘And of His signs is that He created for you from among yourselves couple that
you may find repose in them and He put love and mercy between you. No doubt,
in it are signs for a people who ponder..”(Qur’an 30:2 1).
According to Islamic Law, women cannot be forced to marry anyone without their
consent. Ibn Abbas reported that a girl came to the Messenger of Allah, Prophet
Muhammed (PBUH) and she reported that her father had forced her to marry without
her consent. The Messenger of God gave her the choice... (between accepting the
marriage or invalidating it) (IbnHanbal No. 2469). In another version, the girl said:
‘Actually I accept this marriage but I wanted to let women know that parents have no
right (to force a husband on them)’ (IbnMaja, No. 1873). Besides all other provisions
for her protection at the time of marriage, it was specifically decreed that woman has
the full right to her Mahr, a marriage gift, which is presented to her by her husband and
is included in the nuptial contract, and that such ownership does not transfer to her
father or husband. The concept of Mahr in Islam is neither an actual or symbolic price
for the woman, as was the case in certain cultures, but rather it is a gift symbolizing
love and affection. The rules for married life in Islam are clear and in harmony with
upright human nature. In consideration of the physiological and psychological make-
up of man and woman, both have equal rights and claims on one another, except for
one responsibility, that of leadership. This is a matter of nature of Islamic duties in
applying equally to males and females unless special exemptions are specified. This is
natural in any collective life and which is consistent with the nature of man.
The Qur’an thus states:
‘And they (women) have rights similar to those (of men) over them, and men are
a degree above them.’ (Qur’an 2:228).
Such degree is Quiwama (maintenance and protection). This refers to that natural
difference between the sexes which entitles the weaker sex to protection. It implies no
 Muslim Personal Law in Reference to Inheritance... 241

superiority or advantage before the law. Yet, man’s role of leadership in relation to his
family does not mean the husband’s dictatorship over his wife. Islam emphasizes the
importance of taking counsel and mutual agreement in family decisions. The Qur’an
gives us an example:
‘...If they (husband wife) desire to wean the child by mutual consent and (after)
consultation, there is no blame on them...’ (Qur’an 2: 233).
Over and above her basic rights as a wife comes the right which is emphasized by
the Qur’an and is strongly recommended by the Prophet Muhammad (PBUH) kind
treatment and companionship.
The Qur’an states:
‘O believers! It is not lawful for you to be heir of the women forcibly, and prevent
them not with this design that you may take away part of what you had given
them as dower except in this shape that they commit an act of flagrant indecency
and treat with them fairly; then if you dislike them, it is likelihood that you may
dislike a thing and wherein Allah has placed much good” (Qur’an 4: l9).
Prophet Muhammad (PBUH):
The best of you is the best to his family and I am the best among you to my
family. The most perfect believers are the best in conduct and best of you are
those who are best to their wives. (Ibn-Hanbal, No. 7396).
Behold, many women came to Muhammad’s wives complaining against their
husbands (because they beat them)—those (husbands) are not the best of you.
As the woman’s right to decide about her marriage is recognized, so also her right to
seek an end for an unsuccessful marriage is recognized. To provide for the stability of
the family, however, and in order to protect it from hasty decisions under temporary
emotional stress, certain steps and waiting periods should be observed by men and
women seeking divorce. Considering the relatively more emotional nature of women,
a good reason for asking for divorce should be brought before the judge. Unlike the
man, however, the woman can divorce her husband without resorting to the court,
if the nuptial contract allows that. More specifically, some aspects of Islamic Law
concerning marriage and divorce are interesting and are worthy of separate treatment.
When the continuation of the marriage relationship is impossible for any reason, men
are still taught to seek a gracious end for it. The Qur’an states about such cases:
‘And when you divorce women and their period are completed, then, till that
time either retain them kindly or release them kindly, but there should not be
retention to hurt them so that you may transgress the limit and whoso does this,
 242 Issues in Women’s Rights  

he wrongs his own soul, and do not make jest of the signs of Allah and remember
the favour of Allah upon you and the Book and Wisdom which He has sent
down to you for admonishing you, and remain fearing Allah and know that Allah
knows all things”. (Qur’an 2:231). (See also Qur’an 2:229 and 33:49).

As a Mother
Islam considered kindness to parents, next to the worship of God.
‘And We have stressed on man concerning his parents, his mother bore him undergoing
weakness upon weakness and his weaning takes two years that give thanks to Me and
to your parents. Lastly, the return is towards Me.’ (Qur’an 31:14)
Moreover, the Qur’an has a special recommendation for the good treatment of
mothers.
‘And your Lord Commanded that worship not any else excepts Him and does
good to parents. If either or both of them reach old age before you, utter not even
a faint cry to them and chide them not and speak to them the word of respect.’
(Qur’an 17:23).
A man came to Prophet Muhammed (PBUH) asking:
‘O Allah’s Apostle! Who is more entitled to be treated with the best companionship
by me?’ The Prophet said, ‘Your mother’The man said. ‘Who is next?’ The
Prophet said, ‘Your mother.’ The man further said, ‘Who is next?’ The Prophet
said, ‘Your mother.’ The man asked for the fourth time, ‘Who is next?’ The
Prophet said, ‘Your father.’ (Bukhari 8.3).
A famous saying of The Prophet is:’Paradise is at the feet of mothers.’ (In Al’Nisa’I,
IbnMajah, Ahmad). ‘It is the generous (in character) who is good to women, and it is
the wicked who insults them.’

PERSONAL LAW
There are two different conceptions of law: as divine and as man-made. The latternotion
is the guiding principle of all modern legislation. Law, according to a modernJurist,
is the ‘distilled essence of the civilization of a people, it reflects the people’ssoul more
clearly than of any other organism. As far as the literal meaning ofShariat goes, it
is considered as ‘the road to the watering place, the path to befollowed. However,
the technical meaning of Shariat is the Canon law of Islam, thetotality of Allah’s
commandments, and is the central core of Islam, whilejurisprudential law is called
 Muslim Personal Law in Reference to Inheritance... 243

Fiqh. Therefore, fundamentally, Shariat is a Doctrineof Duties, a code of obligations

in which legal considerations and individual rightsare given a secondary place. In
other words, as pointed out by Mr JusticeMahmood. ‘It is to be remembered that
Mohammadan law is so intimatelyconnected with religion that they can not readily be
dissevered from it’ (Fyzee1974; 15).
Personal Law (i.e. laws governing family relations, marriage, divorce, inheritance
custody rights etc.) is a contested arena in the case of Muslim women, who are largely
subjected to the Sharia Act 1937 and the Dissolution of Muslim Marriages Act 1939.
The Special Marriage Act 1952 which allowed Indians to marry without renouncing
their religion provoked strong opposition from Hindus and Muslims.

MUSLIM WOMEN’S RIGHTS IN MUSLIM PERSONAL LAW

Prophet Mohammadintroduced a considerable change in the existing position of
women during pre-Islamic Period. The reform is based on improvement and it is
so striking that the position of Muslim women is now unique as regards their legal
status and is virtually far superior to any other known legal system of the world. It
is historically established that both among Arabs and Jews, who inhabited Peninsula
of Arabia, the position and legal status of women were of dependence, servitude and
degradation.

Inheritance Law and Right to Property

Till the dawn of Islam, the Arabs excluded females from inheritance completely.
Prophet
Muhammad emancipated the status of women and restored them their rightful
position in the society. ‘From what is left by parents and those nearest related, there
is a share for men and a share for women, whether the property is small or large, a
determinate share.’ A Muslim male is obligated to spend part of his inheritance on
his wife, children and house, while the female may keep all of it for herself. Financial
support for home and family is considered to be the sole responsibility of the husband.
Broad principles of inheritance in Muslim law: Till 1937, Muslims in India were
governed by customary law which was highly unjust. After the Shariat Act of 1937
Muslims in India came to be governed in their personal matters, including property
rights, by Muslim personal law as it ‘restored’ personal law in preference to custom.
However, this did not mean either ‘reform’ or ‘codification’ of Muslim law and till
date both these have been resisted by the patriarchal forcesin the garb of religion.
 244 Issues in Women’s Rights  

The Share of Women in Inheritance According to Islam

According to Islamic laws of inheritance, a son inherits twice as much as a daughter,
a brother twice as much as sister, and a husband twice as much as wife. It is only in
case of father and mother that, if the deceased has children and his father and mother
are also alive, both the father and mother will inherit one-sixth of the property of the
deceased. The fact that a woman inherits one-half of the share of a man is due to a
special state of affairs. Because a woman is entitled to a dower and maintenance and
she is incapable of taking an equal part in the defence in community, the fact that her
share is one-half to her brother’s is to some extent, the result of law of recompense.
The Qur’an thus states:
And for you is one-half of what is left by your wives, if they have no issue (child)
but if they have issue (child), then you have one-fourth of what they leave after
(paying) any bequest made by them and the debts. And for the women is one-
fourth of what you leave if you have no issue (child); but if you have issue (child),
then for them is one-eight of what you leave after (paying) any bequest made
by you and the debts. And if the heritage of any such male or female who leave
behind nothing, neither parents nor children is to be divided and from mother
side he or she has brother or sister, then for each one of them is one sixth. Then
if the sister and brother be more than one, then all are sharer in one-third, after
(payment of the bequest of the deceased and debts in which the deceased would
not have caused any harm. This is an injunction from Allah and Allah is All
Knowing, Gentle. (Qur’an 4:12).
The special inheritance position of women is founded upon the special place she
occupies as regards dower and maintenance and so forth. As Islam considers dower and
maintenance to be obligatory, the wife is automatically exempted for providing for the
family budget, and that responsibility has been laid upon husband.

Concept of Marriage under Muslim Law

Hedaya says that ‘Marriage implies a particular contract used for the purpose of
legalizing children.Justice Mahmood has defined the Muslim marriage as ‘a purely
civil contract’.
The object of a Muslim marriage is to legalise children and to a large extent to
regulate and validate the sexual relations. Apart from being a civil contract, it is also a
social and religious institution.
§ Legal: A Muslim marriage is contractual in form because it makes free consent of
the parties an essential element for its validity. This is to ensure that the bridge is
not getting marred under any kind of compulsion.
 Muslim Personal Law in Reference to Inheritance... 245

§ Social: Islamic law gives the woman an important role at home and in the society.
The Prophet, both by example and precept, encouraged the institution of marriage
and recognized it as the basis of society.
§ Religious: The Prophet had said ‘Marriage is my Sunnah and who ever do not
follow my Sunnah is not my true-follower’ (IbnHaiah, BabunNikah).
Marriage is a mechanism of regulating human relations with religious sanctions and
therefore termed a sacred covenant. The Prophet was determined to raise the status of
women and accordingly attributed legal and religious importance to marriage.
Islam, unlike other religions, is a strong advocate of marriage. There is no place for
celibacy. The Prophet has said,’there is no celibacy in Islam.’ Marriage is a religious duty
and is more safeguard as well as a social necessity. Islam does not equal celibacy with
high ‘taqwa’/’Iman’. The Prophet has also said, ‘Marriage is my tradition, whosoever
keeps away there from amongst’ (Warsi, 2011).

Marriage, Legislation and Muslim Women

The legislation regulating the marriage laws have not interfered with the substantive
Muslim law, but have codifiedthe law to make its application more effective. There
are many laws which werepassed to deal with the marriage institution which are being
given below:
Kazi Act 1880—Act clearly lays down under Section 4 clause b: There is an old
central law called the Kazis Act 1880 empowering state governments to appoint
Kazis for the purpose of helping desiring local Muslimswith solemnization of
marriages, etc. The government in British India had inherited the power to
appoint Kazis from the Mughal rulers but had abdicated it in 1864. On the
demand of Muslim leadership led by the great Sir Syed Ahmad Khan, the power
was resumed by enacting the Kazis Act 1880. Under this Act, Kazis may be
appointed by a state government for various areas under its control. A Kazi can
also be removed by the appointing authority onthe grounds of misconduct, long
absence, insolvency or incapability (Section 2) (Law Commission of India, 2008).
This Act have strengthened and ameliorated the legal position of Indian Muslim
women regarding her marriage affairs. By virtue of this act (under the head of
preparing and attesting deeds) has been vested the authority to prepare marriage deed;
in the course of his duties, the Kazi records the consent of woman in ‘kabinama’ and
incorporates the condition which the bride desires to stipulate in the marriage contract
to make matrimonial life a success avoiding the reasons of bad consequences. This Act
has been added a great protection to the Indian Muslim Women (Khan, 2003).
 246 Issues in Women’s Rights  

Shariat Act 1937—An Act to make provision for the application of the Muslim
Personal Law (Shariat) to Muslims. Notwithstanding any customs or usage to the
contrary, in all questions (save questions relating to agricultural land) regarding
intestate succession, special property of females, including personal property 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 religion endowments) the
rule of decision in cases where the parties are Muslims shall be the Muslim Personal
Law (Shariat) (Kazi S., 1999).
The Dissolution of Muslim Marriage Act, 1939–An Act to consolidate and clarify
the provisions of Muslim law relating to suits for dissolution of marriage by women
married under Muslim law and to remove doubts as to the effect of the renunciation
of Islam by a married Muslim woman on her marriage tie.Whereas it is expedient to
consolidate and clarify the provisions of Muslim law relating to suit for dissolution of
marriage by women married under Muslim law and to remove doubts as to the effect
of the renunciation of Islam by a married Muslim woman on her marriage tie; it is
hereby enacted as follows (Caroll L, 1987):
A woman married under Muslim law shall be entitled to obtain a decree for the
dissolution of her marriage on any one or more of the following grounds, namely:
§ that the whereabouts of the husband have not been known for a period of four
years;
§ that the husband has neglected or has failed to provide for her maintenance for a
period of two years;
§ that the husband has been sentenced to imprisonment for a period of seven years
or upwards;
§ that the husband has failed to perform, without reasonable cause, his marital
obligations for a period of three years;
§ that the husband was impotent at the time of the marriage and continues to be so
§ that the husband has been insane for a period of two years or is suffering from
leprosy or a virulent venereal disease;
§ that she, having been given in marriage by her father or other guardian before she
attained the age of fifteen years, repudiated the marriage before attaining the age
of eighteen years;
§ provided that the marriage has not been consummated;
§ that the husband treats her with cruelty, that is to say.
 Muslim Personal Law in Reference to Inheritance... 247

(a) habitually assaults her or makes her life miserable by cruelty

of conduct even if such conduct does not amount to physical ill-
treatment, or
(b) associates with women of evil repute, or leads an infamous life, or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property, or prevents her exercising her legal rights
over it, or
(e) obstructs her in the observance of her religious profession or
practice, or
(f) if he has more wives than one, does not treat her equitably in
accordance with the injunctions of the Qur’an (www.aalilegal.org).
The Dissolution of Muslim Marriage Act, 1939 enables a Muslim wife to seek divorce
through court on the ground of, whereabouts of the husband are unknown for 4 years,
failure of husband to provide for the maintenance of the wife for 2 years, sentence
of imprisonment of the husband for 7 years, failure to perform martial obligations,
impotency of the husband, or insanity of the husband, repudiation of marriage by the
wife before attaining the age of 18 years cruelty of the husband and any other ground
relevant at that point of time (Khan, 2003).
The Special Marriage Act, 1954—Act No. 43 of 1954 1* (9th October, 1954): An
Act to provide a special form of marriage in certain cases, for the registration of such
and certain other marriages and for divorce. It extends to the whole of India except
the State of Jammu and Kashmir and is applicable to citizens of India domiciled in
the terrorists to whom this Act extends.The Special Marriage Act, 1954 provides for
a special form of marriage in certain cases and for the registration of such and certain
other marriages and also for divorce available to all citizens of India married under the
Act. A marriage between any two persons may be solemnized after giving notice thereof
under the Act. After the marriage has been solemnized, the marriage officer shall enter
a certificate thereof and the parties to the marriage and three witnesses shall sign the
certificate of marriage. There is also a provision for registration of marriage by marriage
officer any marriage celebrated whether before or after the commencement of the Act.
The effect of registration of marriage is that all children born after the date of ceremony
of marriage shall in all respects be deemed to be the legitimate children of their parents.
The Act provides for remedies like restitution of conjugal rights, judicial separation,
nullity of marriage and divorce on the grounds specified to the respective sections 22
to 24. There is provision made in the Act for the grant of alimony pendentelite and
permanent alimony to the wife (Law Commission of India, 2008).
 248 Issues in Women’s Rights  

The provision of this Act has provided a statutory right to Indian Muslim woman
to inter_caste marriages on voluntary basis, though the earlier Act did not permit this.
It means that the latest legislation has provided a new dimension to the right of
Indian Muslim women to enter into inter-religious marriages, though the Act is not
in consonance with the provisions of the Quranic Law. Nevertheless, its inevitability
cannot be denied in the Indian social condition. The Act has served a great cause to the
society by providing legal shelter to those unions which are bound to suffer the agony
of being called illegal relationship in the area of matrimony.

GENDER EQUALITY AND MUSLIM PERSONAL LAW—

INHERITANCE AND MARRIAGE

Gender Equality and Inheritance Law

The division of inheritance is a vast subject with an enormous amount of details
(Quran 4:7, 11, 12, 33, 176). The general rule is that the female share is half that of
the male’s. This general rule if taken in isolation from other legislations concerning
men and women may seem unfair. In order to understand the rationale behind this
rule, one must take into account the fact that the financial obligations of men in Islam
far exceed those of women.
Women in Islam receive assets mainly from three sources: inheritance, Mahr and
maintenance. On the other hand, male receives double on first source inheritance but
they need to give Mahr to wives and maintenance to wives and other dependents. A
bridegroom must provide his bride with a marriage gift. This gift is considered her
property and neither the groom nor the bride’s family have any share, in or control
over it and remains so even if she is later divorced. The bride is under no obligation
to present any gifts to her groom. This symbolizes an assurance of economic security
from the husband towards wife. ‘And give the women (on marriage) their dower as a
free gift; but if they, of their own good pleasure, remit any part of it to you, take it and
enjoy it with right good cheer’ (4:4.). Moreover, the Muslim husband is charged with
the maintenance of his wife and children. The wife’s property and earnings are under
her full control and for her use alone since her, and the children’s, maintenance is her
husband’s responsibility. No matter how rich the wife might be, she is not obliged to act
as a co-provider for the family unless she herself voluntarily chooses to do so. Women
are financially secure and provided for. If she is a wife, her husband is the provider; if
she is a mother, it is the son; if she is a daughter, it is the father; if she is a sister; it is the
brother, and so on. In these circumstances, if we deprive the female completely from
inheritance, it would be unjust to her because she is related to the deceased. Likewise,
 Muslim Personal Law in Reference to Inheritance... 249

if we always give her a share equal to the man’s, it would be unjust to him. So, instead
of doing injustice to either side, Islam gives the man a larger portion of the inherited
property to help him to meet his family needs and social responsibilities. At the same
time, Islam has not forgotten her altogether, but has given her a portion to satisfy her
very personal needs. In fact, Islam in this respect is being more kind to her than to him
(Warsi, 2011).

Gender Equality and Muslim Marriage

Although the Sharia Mohmmadi, for the first time in the history of Arab civilization,
authorized the Muslim woman to exercise her ‘consent’ in relation to her matrimonial
settlement, yet this right is curtailed by the Sharia, that says “there must be maintained
an equality in choosing the spouse.” It means that the marriage of a Muslim woman is
discouraged with an unequal (Khan, 2003).
Because of the social and legal influence on the mind of the Indian Muslim woman,
the concept of equality and the control of the guardian or father have gone under a drastic
change in India. The Indian Muslim woman by virtue of the Special Marriage Act,
1954 enjoys a very independent position to celebrate her marriage with any individual
of her choice even against the wishes of her guardian, i.e., father. It may further submit
that the modern Indian Muslim women minds and the racial differences, having a
great belief in superiority and inferiority of blood and in social differences are based on
noble and petty professional background. In the present mixed society, Indian Muslim
women specially from the elite class very frequently marry with a man in whom she
find affinity of culture, status and intellect and least minds the difference of religion.
Such marriages are taking place under the provision of Special Marriage Act, 1954,
though it is applicable on voluntary basis.

REFERENCES
[1]
Al-Quran-ul-Kareem (English Translation) Kanz-ul-Eeman.
[2]
AfzularRahman”Role of Muslim Women in Society”, Seerah Foundation London, 1986.
Jamal A. Badawi “The Status of Women in Islam” Al-lttihad, Vol. 8, No. 2, Sha’ban 1391/Sept 1971.
[3]
[4]
Carroll Lucy, The Muslim woman’s right to divorce, Manushi, 38, 1987.
[5]
Kazi S, Muslim Women in India, Minority Right Group International, London, 1999.
[6]
Khan Noor Ephroz, Women and Law—mulim Personal Law perspective, Rawat Publication, New Delhi,
2003.
[7] Law commission of India, Laws on Registration of marriage and Divorce—a proposal of consolidation and
Reform, report No. 211, 2008.
[8] Law commission of India, Laws on Registration of marriage and Divorce—a proposal of consolidation and
Reform, report No. 212, 2008.
 250 Issues in Women’s Rights  

[9] Musnad Ahmad IbnHanbal Dar AlMa’aref, Cairo, U.A.R., 4, 1955.

[10] Musnad Ahmad IbnHanbal Dar AlMa’aref, Cairo, U.A.R., 3, 1950.
[11] SunanIbnMajah, Dar Ihya’a Al-Kutub al-Arabiah, Cairo, U.A.R., l, 1952.
[12] Warsi G.R., From Darkness to Light, Indian Muslim Women Break Up, Vayu Education of India, New
Delhi, 2011.
[13] http://www.aalilegal.org/image/rtc/DISSOLUTION-MUSLIM-MARRIAGES-ACT,1939.pdf

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