It was recently reported that a Muslim couple in Kerala, who are parents to only daughters, re-registered their marriage under the Special Marriage Act, in order to protect the property rights of their daughters.
As one would expect, a discussion has emerged on the whys and the hows of an intricate provision under the Islamic law which has been at the heart of the present controversy. With these discussions, the ignorance or the oversimplification of the system of inheritance laws governing a large population of Indian Muslims became evident.
The first and foremost question that many people find difficult to process is the rationale behind many prima facie bizarre provisions of personal law. Second is how to tackle a similar situation within Islamic law. Is registration/re-registration of marriage under the general law of the land the only solution to such a situation?
The Issue
In India, the inheritance of Muslims is governed by the Muslim Personal Law (Shariat) Application Act, 1937. Section 2 of the Act categorically states, “the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)”.
Since marriage emanates ancillary legal issues such as the issue of succession, guardianship and custody, among others, the defining act is the law under which a marriage has been registered or solemnised. For instance, if two Muslims decide to register their marriage under the Special Marriage Act, 1954, which is a general law of the land, they are entitled to that decision.
In doing so, the law applicable on the entire gamut of issues such as succession shall be the general law of the land i.e. the Indian Succession Act, 1925.
In the present case, the controversy finds its bases in one peculiar principle of the Islamic inheritance law.
The interpretation is that in case a man has only daughters, they will only get two thirds of their father’s property and the rest will go to the paternal uncles of the daughters. This is an incomplete understanding of the law. It is not only the uncles but the siblings of the father that become residuary sharers in the property of the deceased. I will discuss the principle governing this concept later in the piece.
The Alternative Option Within the Muslim Law
The laws of inheritance dwell majorly between virasat (succession) and vasiyat (will). Under Islamic inheritance law, a person may transfer his property by way of will which takes effect after the death of the person. To protect the rights of the legal heirs, a will cannot be bequeathed beyond the fixed one-third of the net estate.
In the absence of a will, the property devolves as per the laws of succession.
However, there is one concept of the transfer of property relevant to the present discussion — Hiba. Hiba is a disposition, unrestricted with regards to the quantum of the estate, made during the lifetime of the donor of the property.
In simpler words, it is a transfer without any consideration, which can be for the entire estate.
This concept has been acknowledged by the Indian legal system as almost an equivalent to the concept of 'gift' under the Indian property law.
It has been experienced that in certain families, due to varying factors, a Muslim father of only daughters may wish to secure the entire property for his daughters without intending to provide a share of the property (the residue share) to his siblings.
In such a situation, an alternative option within the Islamic inheritance law can be to gift the entire estate to the daughters during the lifetime of the parent. In many such cases, parents safeguard their own interest during the lifetime by keeping a life interest for themselves and their spouses intact in the gift deed.
In case a particular daughter requires comparatively more financial assistance, parents can fix a larger share in the property for her.
As per Mufti Tabrez Alam Qasmi, an Islamic scholar, an unequal devolution of property between daughters is not as per the principles of Shari’ah unless one daughter requires special care or support. However, in practice, the final decision remains with the parent making such a gift.
The Islamic Law Position
Islamic law has an elaborate system of inheritance law.
The Islamic inheritance law is divided mainly into a system of sharers and residuaries.
The sharer is an heir who gets a fixed percentage of the property. The remaining share, or the residue as it is called, goes to the residuaries.
As apparent from the terms themselves, a primary sharer excludes a secondary sharer. In the primary sharers, there are five relations including three females (wife, mother, daughter) and two males (husband and father). The secondary sharers are seven, with two being males (including grandfather) and five females (including sister, granddaughter, and grandmother). I have not mentioned the uterine, consanguine, and distant relations for ease of understanding and due to their rare relevance.
It is clarified that the present subject with regards to the devolution of property of a deceased father of only daughters is confined to the Sunni perceptive.
The Rationale
The relationship between law and society is intertwined. Laws are often the reflection of the society we inhabit. There exists a world where men are required to provide women with social protection, if not only financial. Let’s not act uncomfortable reading it. It is the very world you and I inhabit. Far from the academic debates of how a world should be, it is these social realities that most legal systems, particularly that of personal and indigenous, revolve around.
Even our post-modern legal systems imbibe the concepts of maintenance by male relatives. A man is legally obliged to financially provide for his wife even after divorce. In most cases, a father is legally obliged to provide for his daughters until they are married. It is the consequential responsibility of the biological and social privileges that men enjoy over women that are often reflected in these laws.
Drawing from the same social understanding, the Islamic tradition does not burden women (in general) with the financial responsibilities of running a household. This is to such an extent that if a wife earns more than her husband, even then the husband, Islamically, cannot seek a share in her earnings. It remains a wife’s prerogative to share the same or not. It is also a precondition of a Muslim marriage that a husband must provide a dower to his wife. A man, in essence, has been reminded of his societal privilege by being more responsible towards the women in his life.
Without attaching any financial obligations, women have been provided fixed shares in the Islamic law of inheritance. At some places, they have been treated as residuary sharers as well.
The governing principle in the Islamic law of inheritance is the distribution of property in accordance with financial responsibilities.
Where the share does not raise any reciprocal financial obligations, the share of men and women is equivalent.
For instance, the share of a father and a mother in the property of a deceased leaving children behind is equal.
The share of a daughter(s) is more than the male relatives (grandfather and uncles) of her deceased father.
Since the financial responsibility of the parents, and if the father dies, of the mother and sisters, has been fixed upon the brother, the rationale of reciprocal property rights is found.
In case a woman becomes a widow, does not marry, or divorces her husband; the financial responsibility remains on/falls back to her father or the son(s), or the brother(s).
This principle is different from the one captured under Section 125 CrPC where once a woman gets married, her father does not remain financially responsible for her maintenance which permanently shifts to the husband, even if divorced, until she remarries.
Similarly, once a father dies in the lifetime of his children and wife, the financial responsibility of his daughters and wife shifts to the son if the deceased had a son. In case, the deceased had only daughters, to the brothers of the father (if the grandfather is not alive).
The financial responsibility of the wife shifts to her father and if he is not alive, then her brothers. In such a scenario, a 1/2 (if one daughter) or a 2/3 (if more than one daughter) portion of the property shall absolutely devolve upon the daughters. A 1/8th share of the property shall devolve upon the wife. The residuary share will devolve upon the siblings of the deceased. The wife of the deceased shall also be entitled to property from her parents.
Interestingly, if a person joins the Indian Succession Act over the Shariat Act, what the implication of this would be on his own shares and the shares of his daughters from other relatives who still abide by the Islamic inheritance law is a curious premise.
(The author is a Delhi-based lawyer. She can be contacted at advnabeelajamil@gmail.com. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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