Modifications in Law and Share of Women

Bibliography 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

AcknowledgementIts 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 1Pre Islamic Law....... 1Modified Principles of the Quran and the Prophets Hadis 2Exclusion of Women from Inheritance 3Main Cause for exclusion 3Other Causes... 4Woman as a part of the Share. 4Modifications in the Law Share of Women. 5True Position Exclusion of Daughters. 6 Modern Case Study.. 7Objectives of Study. 8Fazalbhoys findings.. 8Dowry and Mehr 8Property Ownership and Inheritance 9Conclusion. 11Bibliography.. 12

Table of Contents

Table of Authorities

Cases1. Ali Asghar v Collector of Bulandshahr [1917] 39 All 57462. Aminabi v Abasaheb AIR [1931] Bom 26663. Ghulam Hassan v Saja AIR [1984] J&K 2664. Mohammad Zia-ullah v Rafiq AIR [1939] Oudh 21365. Muhammad Kamil v Imtiaz Fatima [1908] 36 IA 2106StatutesShariat Act 19376Other AuthoritiesMerriam Webster Online Dictionary1Treatises1. Dr. Archana Chaturvedi, Muslim Women and Law (Commonwealth 2004)3, 4, 52. 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, 103. Poonam Pradhan Saxena, Family Law Lectures Family Law II (2nd edn Lexis Nexis Butterworths Wadhwa Nagpur 2008)1, 24. 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.Table of Authorities Womens Rights in Islamic SuccessionPage i

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[footnoteRef:2]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 agnates[footnoteRef:3] 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 cognates[footnoteRef:4] and relations by affinity were not allowed to succeed to the property. [2: Poonam Pradhan Saxena, Family Law Lectures Family Law II (2nd edn Lexis Nexis Butterworths Wadhwa Nagpur 2008) 605] [3: 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 accessed February 25, 2015, 4:00 pm IST] [4: In this context, Cognates are those related from the mothers side- Merriam Webster Online Dictionary 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 HadisThe 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 inheritance[footnoteRef:5]. [5: Tyabji, Muslim Law (4th edn 1968) 826 in P. Saxena (n 1) 606]

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.

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.[footnoteRef:6] 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.[footnoteRef:7] [6: Dr. Archana Chaturvedi, Muslim Women and Law (Commonwealth 2004) 146] [7: 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]

The Main Cause for Exclusion[footnoteRef:8]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. [8: Chaturvedi, 147]

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 the males of the family only. Male children were considered the only source of continuation of lineage.[footnoteRef:9] [9: ibid]

Other CausesOne 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.[footnoteRef:10] [10: ibid 148]

When the verses of inheritance[footnoteRef:11] 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.[footnoteRef:12] [11: Quran [4:11, 4:12, 4:176]] [12: cf 9]

Woman as a part of ShareThere 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.

Exclusion of Women from Inheritance

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 ago[footnoteRef:13]. 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. [13: ibid]

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 cases[footnoteRef:14]. 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. [14: ibid]

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.[footnoteRef:15] [15: ibid 151]

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.Modifications in the Law - Share of Women

True Position Exclusion of Daughters

According to the Shariat Act[footnoteRef:16], Women had the right to inherit property as laid down in Muslim Personal Law[footnoteRef:17]. However, there are cases in which this right of women is not implemented. [16: Shariat Act 1937] [17: Hereinafter MPL]

Despite the Quranic law, there are certain customs and statutes in India under which a daughter is not entitled to inherit. Although these customs[footnoteRef:18] and statutes[footnoteRef:19] vary from Quranic provisions, they are very much in practice and are considered valid. In the Ali Asghar case[footnoteRef:20] 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 case[footnoteRef:21], 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. [18: Muhammad Kamil v Imtiaz Fatima [1908] 36 IA 210; Saxena 615] [19: Aminabi v Abasaheb AIR [1931] Bom 266; ibid] [20: Ali Asghar v Collector of Bulandshahr [1917] 39 All 574; ibid ] [21: cf note 14]

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 Khananashin[footnoteRef:22]. A daughter cannot inherit Watan land either under the Watan Act 1886 of Bombay. The Oudh states Act 1869 also promulgates primogeniture and gives preference to sons over daughters, and her heirs in the devolution of taluqdari properties.[footnoteRef:23] [22: Ghulam Hassan v Saja AIR [1984] J&K 26; ibid] [23: Mohammad Zia-ullah v Rafiq AIR [1939] Oudh 213; ibid]

True Position - Exclusion of Daughters

Modern Case StudyFor 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 InheritanceWhile 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 Fazalbhoy[footnoteRef:24] 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. [24: 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) ]

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 Jamaats[footnoteRef:25] or community Panchayat like bodies. However, even on that forum, hardly any women were involved, and the issues were generally disputes between brothers. [25: Assembly or gathering of members of a particular community]

Objectives of the StudyFazalbhoys 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 Sources from which women acquire property Structures that enable women to access property Structures that obstruct womens access to property To what extent do rights given in MPL allow women access to property; and How the question of custom, the Shariat, or the civil law enter the discourse concerning property

Fazalbhoys FindingsFazalbhoys 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 MehrWomen 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 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 InheritanceNotwithstanding 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 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 Mehwish[footnoteRef:26] and Saba[footnoteRef:27] who give up their share as a consideration for care and kindness her family shows after their divorce or the death of their husband. [26: cf 23, 97] [27: ibid, 98]

There are also cases where the in-laws have cheated a widow of her rightful share in her late husbands property[footnoteRef:28]. [28: Nabilas case, ibid, 98]

Modern Case StudyAlthough 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. 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. ConclusionIt 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

Statutes Shariat Act, 1937Cases1. Ali Asghar v Collector of Bulandshahr [1917] 39 All 5742. Aminabi v Abasaheb AIR [1931] Bom 2663. Ghulam Hassan v Saja AIR [1984] J&K 264. Mohammad Zia-ullah v Rafiq AIR [1939] Oudh 2135. Muhammad Kamil v Imtiaz Fatima [1908] 36 IA 210 Treatises1. 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 Sources1. Indian Kanoon Website accessed February 25, 20152. Westlaw India accessed February 25 ,2015 3. Jstor accessed February 26, 2015 4. Manupatra Website accessed February 26, 2015 5. Merriam Webster Online Dictionary accessed February 25, 2015.