Does Islam Favour Men Over Women in Inheritance laws?

Does Islam Favour Men Over Women in Inheritance laws?
-Sh Mohammed Osman

Introduction

Linguistically, the word irth means a estate that is transferred from person to person. It can also mean ‘an aged affair’ or ‘remnants’. Its technical, jurisprudential meaning has been defined by the Hanbali jurist Afdhal al-Deen al-Khunji as, “A right which can divided to those legislatively entitled to it, after the passing of the deceased, due to qarābah (familial closeness) or that which is similar to it.”i

For the most part, the legislative laws that act as the foundation for inheritance are defined in textual sources from both the Qur’an and ahādith, leaving little room for any independent interpretation.

The Mechanisms of Islamic Inheritance

The rulings of inheritance observe a number of criteria in determining the allocated shares each party receives.

Firstly, the proximity (qarābah) or remoteness of the heirs is considered. For example, the daughter of the deceased inherits half the estate than her grandmother would, whereas the deceased’s father is entitled to only a fourth.

Secondly, the Sharī’ah seeks to observe the generational position of the heirs. For example, a daughter will inherit more than her grandmother, yet both are females. Likewise, a daughter will inherit half of her father’s estate, whilst the deceased’s father is only deserving of the unclaimed remainder of the estate.

Thirdly, the financial burden and obligations of the heirs are taken into account. It is this third criteria that results in the usual difference in respective shares. As discussed previously in the meaning of the qiwāmah, the financial responsibility upon a husband is considered from amongst the foremost rights of the wife, and indeed the greater family as a whole, including other dependents for whom the man serves as the primary provider. At the same time, the wife is entitled to her husband’s wealth (without his permission in certain cases), whereas she has complete autonomy with her own wealth and shares none of the financial responsibilities meted out to the husband.

Down To The Facts

An exhaustive reading (istiqrā’) within various jurisprudential compendiums – avoiding minute, valid differences amongst the mathāhib – presents the following scenarios of inheritance:

1. There exist only four scenarios in which a female inherits half that of a male (of equal position).
For example:
a. The presence of a daughter and a son, or indeed a granddaughter and grandson, in which case the son (or grandson) will inherit twice as much as the daughter (granddaughter), outlined in the verse, “Allah instructs you concerning your children: for the male, what is equal to the share of two females” [4:11].
b. The deceased father and mother being the only inheritors, without spouses or children. Regarding this case, Allah says, “But if he [i.e. the deceased] had no children and the parents (alone) inherit from him, then for his mother is one-third” [4:11]. Thus, one-third is reserved for the mother, whilst the father will receive two-thirds.

2. At least eleven scenarios where a female inherits the same share as a male.
For example:
a. The inheritance of a mother and father, with the presence of the deceased son. In this case, both the mother and father will inherit one-sixth, whilst the son will receive the remainder of the estate.
b. A scenario termed al-Mushtarikah, in which the husband, mother, two maternal sisters, and her full brother remain. The husband will inherit one-half, the mother one-sixth, and both maternal sisters and the full brother will inherit one-third divided equally amongst them.

3. Sixteen scenarios in which a female inherits more than a male. This is because Islamic inheritance relies upon two main mechanisms. The first is inheritance via a fixed portion due to specific individuals (providing relevant conditions are fulfilled). This is termed ashāb al-furudh and is specified in the Qur’an and Prophetic tradition. These fixed portions are as follows: two-thirds, one-third, one-sixth, one-half, one-quarter, and one-eighth. The second mechanism is inheritance due to other than the specific individuals specified from the ashāb al-furudh; these heirs are referred to as ‘asabah. The ‘asabah have no specific share.

We can thus deduce the following (notwithstanding the relevant conditions for each type of heir):
a. The largest share from the fixed portions are two-thirds, and this has been specified for women alone (in specific: four types of women).
b. Half of an estate is reserved for four types of women, in comparison to only one male (a husband).
c. One-third is due to two types of women: a mother, and maternal sisters.
d. One-sixth is due to five types of women and only three types of men. e. One-fourth is reserved for a wife and likewise for a husband.
f. One-eighth is also reserved for a wife alone. Thus, seventeen out of twenty-three fixed portions are due to women and, as shown above, they duly inherit more than males.

4. Five scenarios in which females inherit, and males do not inherit anything at all.
For example, in the presence of a husband and full sister, the paternal sister will inherit 14.3%, whereas the paternal brother is not entitled to anything.ii

Conclusion

We have shown that the Islamic laws of inheritance are incredibly detailed and exhaustive. The 19th century professor of law Almaric Rumsey wrote:
The Mohammadan law of inheritance comprises, beyond question, the most refined and elaborate system of rules for the devolution of property that is known to the civilized world, and its beauty and symmetry are such that it is worthy to be studied, not only by lawyers with a view to its practical application, but for its own sake, and by those who have no other object in view than their intellectual culture and gratification.iii

This is in stark contrast to the Western tradition in which women in general, and married women in specific, had virtually no right to intestate succession. Until the end of the sixteenth century, women were denied the right to inherit property.iv

The Islamic position is also favourable when compared with other ancient world religions, such as Judaism, in which emphasis is largely placed on the care of the widow, with very few scenarios in which she or other female members have a right to inherit. This is notwithstanding the fact that Islam legislated the inheritance of freed bondsmen and women and ensured their right to the former owner’s estate (known as walā). This particular area offers an interesting scope for further research, and particularly from the angle of the maqāsid (higher aims and objective of the Sharī’ah) in inheritance as a whole.

It is within the larger picture of the intricate system of Islamic finance that contextualisation represents a vital step towards understanding the rulings of inheritance, rather than superficial and shallow attempts (intentional or not) at representing the breadth and diversity present therein.

References:

i Al-Mawsu’ah al-Fiqhiyyah al-Kuwaitiyyah. Wazarat al-Awqaf wash Shu’un al-Islamiyyah- Kuwait. 3/17.
ii Salah al-deen Sultan. Mirath almar’ah wa qadhaiyyh al-musawah. 1999. Nahdha Misr. See also: Shalabi, Muhammad Mustapha. Ahkam al-mawarith beyna al-fiqh wa’l Qanun. Maktabah al-Nasr. 1992.
iii Almaric Rumsey, Moohummudan Law of Inheritance and right and relations affecting it: Sunni Doctrine, 3rd ed. (London: W.H. Allen, 1880) as cited in Alshankiti, Asma. A Doctrinal and Law and Economics Justification of the Treatment of Women in Islamic Inheritance Laws. Masters Thesis. 2012. University of Alberta, Edmonton, Canada.
iv Mary F. Radford, The Inheritance Rights of Women Under Jewish and Islamic Law, 23 B.C. Int'l & Comp. L. Rev. 135 (2000), http://lawdigitalcommons.bc.edu/iclr/vol23/iss2/2

Taken from: https://salam.org.uk/2019/05/19/does-islam-favour-men-over-women-in-inheritance-laws/