Islamic Law of Inheritance
Inheritance is an important branch of family laws of Islam. The death of a person results in transferring of his rights and obligations to persons who are called his heirs. After the demise of a person, the first responsibility of his heirs is to arrange his funeral expenses from what has been left by the deceased. After it, the second responsibility of heirs is to discharge debt of the deceased. Whatever is left subsequent to fulfilment of these two prime responsibilities is to be distributed according to the Islamic law of inheritance. Islamic family laws have prescribed/fixed the share of heirs mainly based on consanguinity and affinity. In this regard, Allah Almighty says in verse 7 of Surah an-Nisa: “Men have a share in (the assets) that their parents and nearest kin leave behind, and women (also) have a share in the inheritance of their parents and the nearest kin. Be it small or large, the share has been fixed (by Allah).”
Islamic law of inheritance is based on certain rules and principles. For example, there is no distinction in the Islamic law of inheritance between movable and immovable property or between ancestral and self-acquired property. The right of the heir emerges for the first time on the death of the person from whom he/she inherits. So, during the life of a person, his/her heirs cannot claim share in his/her property. According to the Sunni law, the expectant right of an heir-apparent cannot pass by succession to his heir. It implies that the grandchildren of a grandfather whose son or daughter died in his lifetime had no share in the property left by the grandfather. However, as per the Muslim Family Laws Ordinance, 1961 (MFLO) – that is currently in force in Pakistan — only the children of a pre-deceased son or daughter of the grandfather are entitled to receive a share equivalent to the share which such pre-deceased son or daughter as the case may be, would have received if alive. The widow or husband of a pre-deceased son or daughter, as the case may be, does not come under the ambit of the MFLO.
There are certain obstacles, like homicide, to succession. Therefore, a person murdering another does not inherit from the latter. Similarly, difference of religion is another hindrance to succession; the non-Muslim heirs of a deceased Muslim cannot inherit from the latter. Slavery is another impediment to succession as a slave being himself the property of another cannot claim share in inheritance.
A bequest (Wasiyat) or will is defined as transfer of right of property in a specific thing or in a profit to take effect after the testator’s death. The object for allowing bequest/will is to enable the testator to make atonement or to make up for his shortcoming in noble works during this mortal life so that he could get spiritual reward in the immortal life to come. The law presumes that one-third would be sufficient for that purpose. So, the testator is not authorized by law to make a bequest/will about more than one-third of his property as Islamic law/shariah does not allow him to leave his heirs in the lurch. Hazrat Saad Bin Abi Waqqas (May Allah be pleased with him) has stated that during the year of conquest of Makah, I fell seriously ill. When the Holy Prophet (PBUH) came to inquire about my health, I asked him if I could make a bequest about whole of my property. The Holy Prophet (PBUH) answered in negative and told that I can make a bequest/will about only one-third of my property. A bequest to an heir is not valid unless the other heirs consent to it after the demise of the testator. The Holy Prophet (PBUH) said, “There is no bequest/will for heirs.” It is because the Islamic law/Shariah has fixed the share of heirs and the directive of an individual cannot override the commandments of Allah Almighty. Furthermore, it may also lead to disputes among heirs. The bequest/will would be implemented after discharging funeral expenses and debt of deceased.
According to Sunni law, there are three categories of heirs.
1. The first category is called Ashab-ul-Faraid or sharers. Their shares have been fixed in Quran. They are twelve in number, four males and eight females. They are: wife, daughter, son’s daughter howsoever low, full sister, consanguine sister, uterine sister, mother, true grandmother, father, father’s father howsoever high, half brother by the mother and the husband. Their shares are either one-half, one-fourth, one-eighth, two-third or one-sixth. For example, the husband has one-fourth when there is child or son’s child and one-half when there is no child or son’s child. The wife has one-eighth when there is child or son’s child and one-fourth when not. In this regard, Allah Almighty says in verse 11 of Surah an-Nisa “You will inherit half of what your wives leave if they are childless. But if they have children, then your share is one-fourth of the estate — after the fulfilment of bequests and debts. And your wives will inherit one-fourth of what you leave if you are childless. But if you have children, then your wives will receive one-eighth of your estate — after the fulfilment of bequests and debts. And if a man or a woman leaves neither parents nor children but only a brother or a sister from their mother’s side, they will each inherit one-sixth, but if they are more than one, they all will share one-third of the estate — after the fulfilment of bequests and debts without harm to the heirs.”
2. The next class of heirs is called Asba, generally translated as Residuary, because they take the residue after share of the sharers as are not excluded have been satisfied. Sons, brothers, etc. are included in this category. For example, if the heirs of a deceased person are his widow, three sons and daughter, the widow will get one-eighth and of the remaining seven parts, the sons will get two parts each and daughter will get one part.
3. The next class of heirs is called Zawilarham or distant kindred. They are those relatives who inherit if there are no sharers or residuary. Children of daughter, children of sisters, daughters of brothers, etc. are included in this category. However, according to Jurists Imam Shafa’i and Imam Malik, they are not included in the category of heirs at all.
In determining the share of heirs, two principles/rules are given the paramount importance. Firstly, a person who is related to the deceased through another is excluded by the presence of the latter. For example, son excludes the grandsons. There is one exception to this rule: the mother does not exclude brothers and sisters from inheritance. Secondly, the nearest in blood excludes the others. For example, a brother excludes a consanguine brother or sister. There is one exception to this rule also: uterine relations are not excluded on the basis of this rule.
The distribution of the property of a deceased among his/her legal heirs as per Shariah is a technical task and only the competent courts of law and qualified jurists are in the position to determine it. Unfortunately, in many parts of our country, women are deprived of their due share in inheritance on one pretext or another. In few areas, the un-Islamic and unethical custom of marriage of women to Holy Quran is in vogue, which is used for devouring their right in inheritance. In some areas, the women are deprived from their share in inheritance by saying that they were given that in the form of dowry at the time of their marriage. In some areas, they are not given their share in inheritance by saying that they have withdrawn from their right in inheritance in favour of their brothers. The government has enacted certain laws for outlawing anti-women practices prevalent in society being used for depriving women from their due share in inheritance. But for their enforcement in letter and spirit, it is instructive to educate and sensitize the people particularly the women folk which is the collective responsibility of state, media, academia and clergy.
The writer is currently serving as Junior Political Secretary to Governor Balochistan.