Chanakya national

Law University

POSITION OF WOMEN IN SUCCESSION

UNDER LAW OF ISLAM

Submitted To-

Submitted by-

Mr. Ravi Ranjan

Nupur Kumari

(Faculty of Family Law)

B.B.A. LL.B
Roll no. - 1032

Acknowledgement
Its a fact that any research work prepared, compiled or formulated in
isolation is inexplicable to an extent. This research work, although prepared
by me, is a culmination of efforts of a lot of people.
Firstly, I would like to thank our History teacher, Mr. Ravi Ranjan Sir for giving
such a topic to research which assisted me in acquiring some knowledge
related to one of the important topic related to Family Law. I would like to
thank him for his valuable suggestions towards the making of this project.
Thereafter, I would also like to express my gratitude toward our I.t
department who played a vital role in the compilation of this research work.
I cannot ignore the contributions made by my classmates and friends
towards the completion of this project work .And I would also like to express
my gratitude towards the library staff of my college which assisted me in
acquiring the sources necessary for the compilation of my project.
Last, but not the least, I would like to thank the Almighty & my parents for
obvious reasons.

NUPUR KUMARI

Table of Contents

Table of Authorities i
Introduction 1
Pre Islamic Law....... 1
Modified Principles of the Quran and the Prophets Hadis 2

Exclusion of Women from Inheritance 3

Main Cause for exclusion 3
Other Causes... 4
Woman as a part of the Share. 4
Modifications in the Law Share of Women. 5
True Position Exclusion of Daughters. 6
Modern Case Study.. 7
Objectives of Study. 8
Fazalbhoys findings.. 8
Dowry and Mehr 8
Property Ownership and Inheritance 9
Conclusion. 11
Bibliography.. 12

Table of Authorities

Cases
1. Ali Asghar v Collector of Bulandshahr [1917] 39 All 574..................................................6
2. Aminabi v Abasaheb AIR [1931] Bom 266.........................................................................6
3. Ghulam Hassan v Saja AIR [1984] J&K 26........................................................................6
4. Mohammad Zia-ullah v Rafiq AIR [1939] Oudh 213.........................................................6
5. Muhammad Kamil v Imtiaz Fatima [1908] 36 IA 210........................................................6

Statutes
Shariat Act 1937..............................................................................................................................6
Other Authorities
Merriam Webster Online Dictionary...............................................................................................1
Treatises
1. Dr. Archana Chaturvedi, Muslim Women and Law (Commonwealth 2004)................3, 4, 5
2. Nasreen Fazalbhoy, Muslim Women and Inheritance in Zoya Hassan and Ritu Menon
(eds), In a Minority: Essays on Muslim Women India (Oxford University Press 2005)...7,
10
3. Poonam Pradhan Saxena, Family Law Lectures Family Law II (2nd edn Lexis Nexis
Butterworths Wadhwa Nagpur 2008)..............................................................................1, 2
4. Subhash Chandra Singh, 'Position of Women under Muslim Personal Law: Some
Observations' in Neera Bharihoke, Rights of Hindu and Muslim Women (Serials
Publication 2008).................................................................................................................3

HYPOTHESIS:
Islamic law is progressive in nature but when it comes to inheritance rights of
women, the practice states otherwise. Basically the succession Laws of Islam does
not give appropriate inheritance rights to women.

AIMS & OBJECTIVES:

 To know about the rights given to women in inheritance

To know more about the gender inequality shown in Shariat towards women
To know more about the present situation of women regarding their
inheritance rights

RESEARCH METHODOLOGY:
The researcher has primarily relied on the doctrinal method. As the research is based on
comprehensive study of sources which are primarily text books and references on Islamic laws,
Shariat etc..The web sources like e-books and articles on Islamic laws of inheritance also play a
very important role in my research.

Introduction

Societys perception of a woman has always been that of a weak, docile being, subservient to the
superior race of man. This view was reflected in several laws that were made across the world in
older times. However, this position has changed considerably in modern times. The exception to
this is Islamic Law, which treated a woman with utmost respect and dignity right from the
revelation of the Quran. Before that however, the position was similar to the rest of the world. It
is a common misconception that the Quran is the starting point of Muslim Law.
This project will deal with the position of women in Muslim Succession laws and how they
really stand in modern day India. For this however, it is necessary to understand the evolution of
Islamic inheritance laws.
Pre Islamic Law
1

The laws of inheritance under Islam are based on the customary practices of the people of

Arabia before the revelations of the Quran. These practices gave importance to comradeship in
arms, and blood relations took a back seat. According to them, male agnates2 were primary
successors. The nearest male agnates, primarily descendants (i.e. sons or grandsons), would
succeed to the entire estate. They were preferred to ascendants (father/ grandfather), who were
next in line, who in turn were preferred over collaterals (brothers). Females and cognates3 and
relations by affinity were not allowed to succeed to the property.

1 Poonam Pradhan Saxena, Family Law Lectures Family Law II (2nd edn Lexis Nexis Butterworths
Wadhwa Nagpur 2008) 605
2 Agnates are those who are descended from the male line only or whose kinship is traceable exclusively
through males e.g. grandfather father son. They are agnates of each other Merriam Webster Online
Dictionary <http://www.merriam-webster.com/dictionary/agnate> accessed February 25, 2015, 4:00 pm
IST
3 In this context, Cognates are those related from the mothers side- Merriam Webster Online Dictionary
<http://www.merriam-webster.com/dictionary/cognate> accessed February 25, 2015, 4:00 pm IST

However, with the advent of the Quran, these principles were modified and importance was
given to blood ties. There is no bond stronger than blood tie became the guiding principle in all
matters of succession. Inheritance rights were extended to all blood relations irrespective of
gender or the sex of the line of relatives through whom they were related to the deceased.
Modified Principles of the Quran and the Prophets Hadis
The newly included heirs, i.e. mainly the females and the cognates were called Quranic sharers.
They were awarded half the share of the agnates, i.e. every sharer, irrespective of gender was
awarded half the share of the already established heirs. So if the sharer is a male, he is in no
better position than a female sharer, for example uterine brothers and sisters get the same share
in the inheritance4.
The newly introduced heirs include the wife of the deceased, females related to him by blood,
and other cognate relations. The rigid rule of excluding ascendants in the presence of
descendants was relaxed.
I shall be discussing in detail why daughters were excluded in inheritance and what changes
were subsequently brought about by the modification of the principles. Further, I shall try to
explain the true position of Muslim women today with respect to the laws that stand.

4 Tyabji, Muslim Law (4th edn 1968) 826 in P. Saxena (n 1) 606

Exclusion of Women from Inheritance

Exclusion of Women from Inheritance

As is evident from the pre Islamic laws, the old world either gave absolutely no inheritance to
women or, when it was given, the woman was treated as minor and she was not given
independence to do as she pleases with her share. Under the old laws, inheritance was rarely
given to daughters, and never to daughters children, while a son could inherit himself, and his
children subsequently become successors to that property. In some laws around the world, equal
rights in inheritance were given to men and women, but that was in the form of testate
succession.5 In ancient Egypt for example, a woman had complete rights over property she
owned. She could hold property independently of her husband, inherit it and also testate it.
Women had the legal capacity to transact business just as men.6
The Main Cause for Exclusion
7

The real cause for a woman being deprived of inheritance was to prevent the property being

transferred to another family. The older school of thought propagated that the womans role in
the birth of a child is negligible. A woman was merely a container in which the sperm of a man
developed and a child was born. Therefore, a child was considered the issue of a man and not a
woman. A sons child was considered a mans issue, but his daughters children were not. They
were considered the issue of the husband of the daughter, and consequently considered to belong
to a different family. Therefore, if a daughter succeeded to property, it would pass on to another
family.
Dr. Musa Amid, in his book Inheritance in the Civil Laws of Iran says that the grandfather was
the religious spokesman of the family, and after him, all the rites and rituals were conducted by

5 Dr. Archana Chaturvedi, Muslim Women and Law (Commonwealth 2004) 146
6 Subhash Chandra Singh, Position of Women under Muslim Personal Law: Some Observations in
Neera Bharihoke, Rights of Hindu and Muslim Women (Serials Publication 2008) 241
7 Chaturvedi, 147

Exclusion of Women from Inheritance

the males of the family only. Male children were considered the only source of continuation of
lineage.8
Other Causes
One of the other reasons for women not being included in inheritance was their weakness in
combat. In the ancient Arab society, valour and heroism were appreciated and were preferred
over non warlike qualities. Thus, the women were at a disadvantage. In their society, if there was
a man in the inheritance line, however distant, he would be given preference over an immediate
female heir.9
When the verses of inheritance10 were revealed in the Quran, which stated that women too would
be entitled to a share in the property, it came as a shock to the Arabs. There is an interesting
legend, which states that a well known poet of the Arabs died and left behind a wife and several
daughters. The sons of his uncles seized all his property stating that the women were incapable of
defending themselves. The widow brought a complaint to the Prophet, who said that it was the
command of God, and hence the women were entitled to the dead mans property.11
Woman as a part of Share
There also existed a belief that a woman was the property of a man and therefore, could be
included in the inheritance as a share. Arabs sometimes counted the wife of the deceased as a
part of the share and took possession of her. She was later claimed by another man.
These were some of the barbaric customs, followed by the Arabs, wherein a woman had
absolutely not rights over property, and was in some cases, even considered a part of the property
of a man, thus objectifying her.
8 ibid

9 ibid 148
10 Quran [4:11, 4:12, 4:176]
11 cf 9

Exclusion of Women from Inheritance

Modifications in the Law - Share of Women

Modifications in the Law - Share of Women

Islam was one of the first religions to recognise the rights of women in inheritance, almost 1400
years ago12. After the advent of the Quran, modifications were made to the existing laws of
inheritance. None of the incongruities of the past laws are present in the present day Islamic Law
of Inheritance. However, some people claim equality of rights issues on the issue that a female
gets half the share of a male in inheritance i.e. a son inherits twice as much as a daughter, a
brother twice as much as a sister and so on. Only in the case of parents of a deceased do both
parents receive one-sixth of the share in property.
There is a justification for this in Islam. A woman, once married, gets dower and maintenance.
Her counterpart gets neither of those two benefits. Moreover the male heir is primarily liable for
the maintenance of his children whereas, a female heir may have this liability only in
extraordinary cases13. A Muslim man has the burden of supporting his family, as well as his
brothers (in case of his death) and his aged and retired parents, when they have no income. In
comparison to this, a woman has no such burden and lives off her husband and in case of
divorce, is given maintenance.
Islam has acknowledged Dower and Maintenance as a necessary and effective factor in
strengthening the mutual relationship between husband and wife and safeguarding the peace in
the household and improving the relationship between the two.14
Since the financial burden is obviously greater on the man, he is given a larger share in the
inheritance. This is the justification in Islam for giving a man twice the share his female
counterpart gets in inheritance.

12 ibid
13 ibid
14 ibid 151

True Position - Exclusion of Daughters

True Position Exclusion of Daughters

According to the Shariat Act15, Women had the right to inherit property as laid down in Muslim
Personal Law16. However, there are cases in which this right of women is not implemented.
Despite the Quranic law, there are certain customs and statutes in India under which a daughter is
not entitled to inherit. Although these customs17 and statutes18 vary from Quranic provisions, they
are very much in practice and are considered valid. In the Ali Asghar case19 it was held that
evidence to show that certain customs prevailed in the area or within the family was admissible,
and in the Muhammad Kamil case20, it was ruled that in customary practice, if daughters do not
inherit any property, then when the succession opens, daughters should be treated as nonexistent.
After the Muslim invasion in India, there were several locals who converted to Islam. However,
they did not want to change all their practices. In the case of inheritance for instance, the newly
converted Muslims wanted to maintain their own practices of women and particularly daughters,
not inheriting any property. These customs are still in practice. In the state of Jammu and
Kashmir, in some communities, daughters can succeed only if there are no living male agnates of
the deceased. In some, she can inherit only if she is a Khananashin21. A daughter cannot inherit
Watan land either under the Watan Act 1886 of Bombay. The Oudh states Act 1869 also
15 Shariat Act 1937
16 Hereinafter MPL
17 Muhammad Kamil v Imtiaz Fatima [1908] 36 IA 210; Saxena 615
18 Aminabi v Abasaheb AIR [1931] Bom 266; ibid
19 Ali Asghar v Collector of Bulandshahr [1917] 39 All 574; ibid
20 cf note 14
21 Ghulam Hassan v Saja AIR [1984] J&K 26; ibid

True Position - Exclusion of Daughters

promulgates primogeniture and gives preference to sons over daughters, and her heirs in the
devolution of taluqdari properties.22

22 Mohammad Zia-ullah v Rafiq AIR [1939] Oudh 213; ibid

Modern Case Study

Modern Case Study

For a woman, , implementing the right to property often involves a delicate negotiation of
the different relationships that make up the fabric of family life.
- Nasreen Fazalbhoy, Muslim Women and Inheritance
While there are established laws in place for a womans position in inheritance, more often than
not, the laws are not followed. More importance is given to familial ties and relationships than
the law that has been laid down, even in urban cities as forward and open minded as Mumbai.
Nasreen Fazalbhoy23 talks about a study she conducted among 38 Muslim women in Mumbai
and her findings, related to the ownership of property among Muslim women. Her sample
consisted of 38 women from diverse backgrounds, and included single, married, widowed,
divorced women and even those who were separated but not divorced.
The study she conducted was by no means an easy one. Fazalbhoy faced several problems in just
narrowing down on her sample because women were unwilling to talk about property related
issues because it was too intrinsically related to their familial ties. Almost 60% of the sample was
working women. She found that housewives were unwilling to talk about property as they lacked
the confidence and assumed they didn't know much about property matters. Also, women hardly
had any property to begin with, so in many cases there was no property to discuss at all. There
were hardly any court cases because women preferred to let matters be rather than taking matters
to court and suffer the indignity of being ostracised from the family and society. Fazalbhoy
also found that a lot of property related issues were resolved by Jamaats24 or community
Panchayat like bodies. However, even on that forum, hardly any women were involved, and the
issues were generally disputes between brothers.

23 Nasreen Fazalbhoy, Muslim Women and Inheritance in Zoya Hassan and Ritu Menon (eds), In a
Minority: Essays on Muslim Women India (Oxford University Press 2005)
24 Assembly or gathering of members of a particular community

Modern Case Study

Objectives of the Study

Fazalbhoys reason to conduct this study was to ascertain at what position exactly women stand
when it comes to ownership of property and inheritance. In keeping with this aim, her study also
looked at what women consider their exclusive right and what their general awareness of their
rights related to property. Her research questions included
o Sources from which women acquire property
o Structures that enable women to access property
o Structures that obstruct womens access to property
o To what extent do rights given in MPL allow women access to property; and
o How the question of custom, the Shariat, or the civil law enter the discourse
concerning property

Fazalbhoys Findings
Fazalbhoys studies looked at various aspects of womens property rights. She looked at
Marriage Exchanges Dowry and Mehr, Property Ownership and inheritance from the
perspective of married women, single women, divorced, separated, and widowed women and
even a mothers rights. Her findings have been explained briefly below.
Dowry and Mehr
Women almost universally felt that the dowry they received was rightfully theirs. Dowry mainly
consisted of jewellery and in some cases, some household products. The women felt that
jewellery was rightfully theirs and it was the only property over which their right was
acknowledged and they had a say in its use and possible alienation. Sometimes, jewellery was
divided before the death of the mother, but that was entirely her choice. This point is illustrated
by two examples of women from the sample Fatima and Nausheen. Fatima, at the time of the

Modern Case Study

study was a single woman, in her forties and inclined to social service. She pawned the jewellery
that was her share and invested the money in her cousins business from which she gets a
monthly return which she used to manage her expenses. This she could do because she was
single and made a conscious decision to not get married. For Nausheen, her jewellery was what
she could fall back on after she was widowed after 3 years of marriage and did not have any
income till she could start earning herself.
While dowry is taken very seriously by the community at large, Mehr on the other hand is not. It
is considered to be a token amount given because the law demands it. Mehr can either be given
at the time of marriage, or can be deferred for a later date, which usually if there is a divorce.
However, the amount of Mehr given is so minuscule that it is inconsequential. Sometimes, it is
considered a deterrent for divorce, and at other times the brides who receive their Mehr are
expected to give it away as charity. So in practice, few women have the right to Mehr despite the
provisions in MPL.
Property Ownership and Inheritance
Notwithstanding any Quranic provisions, often, the inalienable right of women to inherit is
questioned. According to Shariat Law, a woman inherits half the share of a man. The basis of this
is the provision of dowry and Mehr. However, from the sample, it is seen that few women
actually get the Mehr due to them. Even then, they are not given their rightful share. It is
assumed that women will docilely accept whatever they are given. If they are vulnerable in some
way(separated, widowed, divorced), their share in their fathers property is morally justified, but
if they are married or well settled their claim to property is seen as an encroachment on the
superior right of the brothers.
An important observation made was that married women rarely gain access to their share in their
fathers property. Lawyers affirmed this saying that after the death of the father, the division of
property is delayed so that the daughter is not given much or anything at all, and she herself is
hesitant to take up the matter as she does not want to spoil relations with her family. Any issues
raised are hardly without controversy. A common argument by the men is that the women have
been given their share at the time of marriage. Lawyers add to this saying since it is easy to defer
actual division of property and often, sisters feel they are depriving their brothers right to

Modern Case Study

property by asking for their share. Sometimes, women are given property but not according to
Shariat; rather much less. 5 of the women in the survey sample explained that this was the
situation in their case.
When women are single, brothers feel more obligated to give them their share of their fathers
property, probably out of guilt. But in cases of married women, there is less guilt and a greater
chance of getting hardly any or no property at all.
While some women accept their fate and the share they have been given there a few who refuse
to accept this treatment and take up the cause against their brothers. One such case is Hamidas,
wherein, after her fathers death, her brothers refused to give her, her sister and step mother any
share in the property. Hamida decided to take the case to court, and demanded her share
according to Shariat Law. The Court decided that it was a case fit for the court receiver. This
induced the brothers to agree for an out of court settlement. However, while Hamida did get a
share in the property, it was only one-third of what she was entitled to. Although satisfied that
they had a victory, albeit small, her relationship with her brothers was completely broken.
There are also women, like Mehwish25 and Saba26 who give up their share as a consideration for
care and kindness her family shows after their divorce or the death of their husband.
There are also cases where the in-laws have cheated a widow of her rightful share in her late
husbands property27.
Although this survey was conducted on a very small but diverse sample, it shows us that the
picture of fairness and equality painted by the Islamic laws are not entirely accurate, not for the
fault of the laws themselves, but in their practice by Muslim families in India.

25 cf 23, 97
26 ibid, 98
27 Nabilas case, ibid, 98

Conclusion

Conclusion

It is very evident that although Islamic law is progressive when it comes to inheritance rights of
women, the practice indicates otherwise. Women in general prefer not to talk about property
related matters, either because they are unaware and lack confidence, or because they are afraid
to raise such topics. The difficulty faced by Fazalbhoy in obtaining a sample for her survey
clearly shows the mindset of women at large about matters relating to their rights in property.
It is therefore important to ensure that the women are made aware of their rights and encouraged
to pursue them in court if they are victims of violation of their rights.

Bibliography

Bibliography

Statutes
Shariat Act, 1937
Cases
1. Ali Asghar v Collector of Bulandshahr [1917] 39 All 574
2. Aminabi v Abasaheb AIR [1931] Bom 266
3. Ghulam Hassan v Saja AIR [1984] J&K 26
4. Mohammad Zia-ullah v Rafiq AIR [1939] Oudh 213
5. Muhammad Kamil v Imtiaz Fatima [1908] 36 IA 210
Treatises
1. Dr. Archana Chaturvedi, Muslim Women and Law (Commonwealth 2004)
2. Zoya Hassan and Ritu Menon (eds), In a Minority: Essays on Muslim Women India
(Oxford University Press 2005)
3. Poonam Pradhan Saxena, Family Law Lectures Family Law II (2nd edn Lexis Nexis
Butterworths Wadhwa Nagpur 2008)
4. Neera Bharihoke, Rights of Hindu and Muslim Women (Serials Publication 2008)
Online Sources
1. Indian Kanoon Website <http://www.indiankanoon.org/> accessed February 25, 2015
2. Westlaw India <http://login.westlawindia.com/maf/wlin/app/tocectory?
stnew=true&sttype=stdtemplate&sp=inwbnujs-1> accessed February 25 ,2015
3. Jstor <http://www.jstor.org/> accessed February 26, 2015
4. Manupatra Website <http://www.manupatra.com/> accessed February 26, 2015
5. Merriam Webster Online Dictionary <http://www.merriam-webster.com/> accessed
February 25, 2015.