Week 12 13122022 015614pm

Inheritance in Cases of
Exceptional Nature
Week 12
Islamic Personal Law-II (6-B)
Wajahat Sharif
A. Khuntha (Hermaphrodite)
• Khuntha is the one born with both male and female sexual organs
• The first thing to take into account is to ascertain which organ is employed
by him to urinate
• If it is established that the male organ is employed for urination then he
will be treated as male heir and if female organ is used then she will be
treated as female heir
• Sometimes a hermaphrodite urinates with both of his sexual organs, in such
a situation we have to wait till his/her puberty. If puberty is attained by
male organ or has inclination for woman, he will be regarded as male heir,
otherwise female…
B. Khuntha Mushkil
• But if nothing is ascertained from the manner of urination or puberty, then
such hermaphrodite is known as Khuntha Mushkil.
Three Opinions regarding Khuntha Mushkil
a. Hanafi:
• This opinion is also propounded by the Majority of Companions of
Prophet SAW
• “Khuntha Mushkil will be entitled to the least share”
• For this purpose we have to calculate the share of Khuntha twice
supposing him as male heir first and then as female heir. Which ever share
will be least that will be given to the Khuntha.
B. Khuntha Mushkil
b. Shafi:
• “A hermaphrodite will be given the least share, while the
difference between the least and maximum shares will be retained
till ascertainment of his gender”
c. Maliki:
• “A hermaphrodite will be given the balance of least and maximum
shares. This can be done by calculating share of hermaphrodite
twice (both as male and female heir) and then dividing both by
two after adding them”
B. Khuntha Mushkil
Examples
A person dies leaving behind his son, daughter and hermaphrodite
1. Hanafis:
Son: 2/5
Daughter: 1/5
Hermaphrodite: 2/5 (treating hermaphrodite as a male heir)
Son: 2/4
Daughter: 1/4
Hermaphrodite: 1/4 (treating hermaphrodite as a female heir)
So according to Hanafis the share of the hermaphrodite will be 1/4 which is the least share
B. Khuntha Mushkil
Examples
2. Shafis:
Lets suppose there are total 20 shares in both the situations. He will be entitled to 8/20 share when
treating as a male and 5/20 when treating as a female heir.
So according to Shafis he will be given 5 shares and 3 shares will be retained till the ascertainment of his
gender.
3. Malikis:
Lets suppose the
re are total 40 shares in both the situations. He will be entitled to 16/40 share when treating as a male
and 10/40 when treating as a female heir.
Total sum of shares in both the situations: 10 + 16 = 26
Since he is entitled to half of it so 26/2 = 13
Hence he will receive 13 shares.
C. Unborn Child
• Unborn child is one who is still in mother’s womb
Conditions for inheritance of Unborn child:
a. The unborn child is in mother’s womb at the time of the deceased death
Hanafis: Maximum duration of pregnancy is 2 years (so an unborn child born
within 2 years of the death of his father, provided he was in his mother’s womb
will be entitled to inheritance)
Shafis and Hanbalis: Gestation period is 4 years.
b. The unborn child should be born alive during delivery
Life of such child is ascertained when he weeps or make movements.
Hanafis: a mere fact of a movement of a child is sufficient proof of his life
Shafis and Hanbalis: They do not agree with Hanafis. “movement should be
more stable and continuous so as to prove life”
C. Unborn Child
Possible Situations for Inheritance of Unborn Child
a. There is no possibility of his inheritance whether he is born either

as male or female:
• In this situation birth of an unborn child born either as male or female
would not make him entitled to inheritance. Since his birth is not making
any difference to the rights of existing heirs, the estate is distributed
without waiting for his birth.
• A person dies leaving behind his wife, father, and mother (pregnant from
another marriage). In this situation unborn child is related to deceased
through mother, so either he will be uterine brother or uterine sister. But
in the presence of deceased father uterine brother/sister will be excluded.
So there is no need to wait for the delivery of the unborn child, as he/she
is getting nothing and so the estate should be distributed immediately.
C. Unborn Child
b. He inherits in one of the two eventualities i.e. either as a male or female, but there is no possibility
that he would inherit by both.
• He may be either entitled as a male heir or female heir. In such a situation the estate is to be distributed
among the heirs of deceased supposing him as if he is an heir. Once the estate is divided and he is born as the
same supposed heir, his birth confirms the earlier distribution. But if upon birth he turns out to be a non heir,
the share reserved for him will be reverted to the other heirs.
• Deceased Heirs: Wife, Uncle, and Pregnant wife of Full Brother
Situation 1:
Wife: 1/4
Uncle: Excluded by Full Brother’s Son
Full Brother Pregnant Wife: unborn child is born male, i.e. Full Brother’s Son (gets Residue or 3/4)
Situation 2:
Wife: 1/4
Uncle: R (Asba) 3/4
Full Brother Pregnant Wife: unborn child is born female, i.e. Full Brother’s Daughter (Dhawul Arham) is
Excluded by Uncle (Asba)
C. Unborn Child
c. He is entitled to inheritance in all situations irrespective of the fact whether he is born as a male or
female.
• If an unborn child is entitled to inheritance both as a male or female, though his share does not remain the
same, whichever share is bigger in quantity that will be retained by him till his birth.
• Deceased Heirs: Father, Mother, Pregnant Wife of deceased
Situation 1:
Father: 1/6: 4/24
Mother: 1/6: 4/24
Pregnant Wife: 1/8: 3/24 Unborn child is male: Son: R: 13/24
Situation 2:
Father: 1/6: 4/24
Mother: 1/6: 4/24
Pregnant Wife: 1/8: 3/24 Unborn child is female: Daughter: 1/2: 12/24
Since the Max share is 13/24 i.e male (son) so this share will be retained for the unborn, but if the unborn is
born female then she will have 12/24 and the remaining 1/24 will be returned to deceased Father as residue
C. Unborn Child
d. He is entitled to inheritance and there would not be any difference in his
entitlement to an estate in all possible situations i.e. supposing him as male or
female
• When the share of unborn child is expected to remain the same, irrespective of whether,
it is born male or female, the estate may be conclusively distributed.
• Deceased Heirs: Full Sister, Consanguine Sister, Pregnant Mother from another person
other than Father
Full Sister: 1/2 : 3/6

Consanguine Sister: 1/6: 1/6
Pregnant Mother: 1/6: 1/6
Unborn child will be either uterine brother or uterine sister and in both the cases his/her
share will be 1/6
C. Unborn Child
e. He is entitled to inheritance without being there anyone else who is entitled
to the estate, or if there is anyone else, he is likely to be excluded by the
unborn child.
• The distribution of an estate is not to be made until the birth of an unborn child in
anyone of the two eventualities, i.e. either there is no heir other than an unborn
child or if there is any heir, he is likely to be excluded by the unborn child.
• Deceased Heirs: Pregnant Wife and Full Brother
Wife: 1/8
Unborn Child: if born male (son): gets R i.e. 7/8 and Full Brother is excluded by
Son
Unborn Child: if born female (daughter): gets 1/2 and Full Brother gets Residue.

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Inheritance in Cases of

Islamic Personal Law-II (6-B)

a. There is no possibility of his inheritance whether he is born either

Full Sister: 1/2 : 3/6

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