Law of Inheritance and women's rights
Mufassil M M Islam
People have been vying for wealth in order to ensure a secure future for themselves and their future generations from time immemorial. Even animals often save their food for the rainy days and polar bears plan well ahead of the scarcity season so that they don't starve. The more we become aware of the material world, the more we become aware of the rule of the game of survival. Our greatest treasure is our children through whom we survive even after our death. We want to secure our children against the harsh realities of life and from the sufferings that we have had to go through in our lives. We build houses to secure their safe-keeping and optimum growth of their potentiality psychologically, physically and financially.
Religion has played significant role in determining how we would live our life and guide our children in the right path and our governments always have had a say in this very personal life affair as this very personal issue has a lot to do with our national economy. Christianity, Islam, Hinduism and even Communism had their views tested and engraved in government regulations. The earliest effort to make changes to the Hindu Mitakshara law of inheritance was made by Hindu Law (Removal of Disabilities) of Inheritance Act 1920. It was an effort to ensure non-discrimination on account of disabilities. There have been several amendments since then in India with regard to the law of inheritance which primarily targeted the Hindu community leaving the minorities with their own laws and we in Pakistan and Bangladesh have seen major amendments to the Islamic personal laws in force through Muslim Marriage Dissolution Act 1939 and the Family Law Ordinance 1961.
In Bible, according to Numbers 27:1-11, widows and sisters don't inherit at all. Daughters can inherit only if their deceased father had no sons. Otherwise the sons receive the entire inheritance. Among the pagan Arabs before Islam, inheritance rights were confined exclusively to the male relatives. The Quran abolished all these unjust customs and gave all the female relatives their just share (4:7,11,12,176). It is true that women (daughters, sisters and mothers) don't inherit anything if a man (son) is present as per Bible. There were historical neglects towards women with regard to their birth rights. In early Palestine the situation was different, especially following the British Mandate inheritance regulations of 1923, which stipulated that females and males had equal inheritance rights. But the Jewish community had tremendous difficulty in accepting this Act and women had to struggle to get their rights, rather than Muslims who had accepted the Act as they were easily able to follow their Islamic faith as to inheritance through other options of hiba or gift to their sons to the amount which will meet the Quranic criteria of giving double to the sons. This is an example which we can easily follow as there is nothing to stop anyone from gifting anything to anyone. (http://muse.jhu.edu)
When people think of communism or more correctly theoretical communism (which more correctly goes under the name Marxism), they often think of abolition of all private property, which (even on a logical basis) would rule out all forms of inheritance (as there is nothing to inherit). This position of total abolition mainly comes from the Communist Manifesto. We may note the following: "Abolition of all rights of Inheritance." written in late 1847, published February 1848; Communist Manifesto. "Limitation of private property through progressive taxation, heavy Inheritance taxes, abolition of inheritance through collateral lines (brothers, nephews, etc.), forced loans, etc." written between October and November 1847; The Principle of Communism: "The right of Inheritance to be curtailed." written between March 21 and 24, 1848; Demands of the Communist Party in Germany: "Extension of the Inheritance duties already existing in many states..." August 2 and 3, 1869.
The West has gone for trial and error period with religion and inheritance over the centuries and has now been following rules of inheritance which more or less give total freedom to the person who own the property with the precondition of taxing the bestowing or the will. There are serious political questions surrounding inheritance in UK as the opposing political powers contend the percentage of Inheritance Tax (www.ukinheritancetaxplanning. com). In Iran Shirin Ebadi, the Nobel Peace Prize laureate, is the popular supporter of the women's movement has unsettled the regime in Tehran . They see the feminists as calling into question the Iranian constitution, which is based on Shariah law and effectively treats women as second-class citizens. (http:// www.spiegel.de/interna-tional/world). But Ebadi is of the opinion that the correct interpretation of the Quran would allow equal rights to women in inheritance.
Our constitution upholds gender equality as well as Islam. To ensure complete success of law, we need to ensure complete pre-conditions. For example, if our government is unable to confirm jobs and other basic democratic and Islamic lawful means of survival, we are unable to enforce the laws as the conditions which prompted say, a thief to steal were partially the state's failures to ensure him basic opportunities of life to which he was entitled to. There are several justifications for and against the equal rights for women to inheritance and we require much wider an arena to discuss them but I will go for a terse-discussion.
In Islam, women are considered men's responsibility as to their protection, cherishing and complete potential growth. This is confirmed in Quran when in Sura 2:228 which is sometimes misquoted saying men are one degree above women in respect. The correct word is Responsibility and Not Respect (Dr. Zakir Naik). In Islam, men have to ensure that women are respected financially at least as per the family of her father, otherwise it is a debt. It is also strict in confirming that even if a man is unable to earn owing to whatever material reasons (e.g., health conditions), and his wife becomes the bread-earner, the money she would spend to ensure the upbringing of the children would be a loan to him. In Islam, a woman can spend the whole amount of wealth that she might have inherited from her parents in whatever way she liked (even if she wished to spend it at her husband's time of basic needs) but the man has obligations on his inheritance to take care of his family under any circumstances.
Women in Islam receive wealth from various sources and Mohorana (which has to be according to her demands) can easily be at times much more in quantity than she would have ever inherited from her parents. In fact in Islam, a woman's wealth is not a means of survival rather an affluence for which she must be honoured with. This direction in holy Quran is not because men are stronger physically, rather Islam believes in their two separate roles, men for practical financial resource to take care of the family, when women are there to ensure the parental and other management in the households primarily. Women are naturally more apt than men in child-caring but that does not mean women cannot work outside. In poor countries where a woman often falls victim to her husband's unlawful demands to get properties from her parents, she may become more victimised to demands to 'help' the husband with her inheritance. This may bring fruits to city based women but may bring sorrow and short lived marriages (as husband may divorce the wife after he had his hands on her wealth). DF Mulla, Fatwa Alomgiri and Hamilton's Hedaya are important sources of further research in this field.
On the other hand, women in poor countries like Bangladesh , have serious cases of deprival of fare parental inheritance by their male siblings. A more legal pressure to recognise women as to their rights and a more efficient and apparent just distribution of wealth may assist a woman's family in breaking the poverty barrier rather than making her luckier even though her own husband may be the brother of another deprived woman. A more confirmed financial source may make her socially stronger as in innumerable cases women are deprived of their maintenance and mohorana with a simple apology from her husband. Stricter laws and practical and diligent implementations of laws may save her from atrocities. We need to study the socio-scientific aspects of a future by taking the countries with such laws into consideration and the implications thereupon.
The social aspects of similar laws is widely questionable in many of those countries. These laws have in many cases excused men from financial obligations to support the children and men's sense of responsibility are dying even though there are strict Child Support laws. Men often justify their very minimum child support after divorce or separation with an accountant's justification of their huge justifiable other expenses.
We must remember that although owing to our social stigma we neglect women and our gender ratio for male is much higher, male and female survival rate and life span are not equal if nourished equally. It is an accepted fact of medical science that women have an average five years more life span than men and are more resistant to bacterial attacks than men. But Islam does not discriminate male and female as they considered each-other's garments and Islam throws away the logic of male superiority as they have a heavier brain.
Considering my above discussion it is obvious that the two sides of the coin have their respective strong arguments and it is the duty of the experts, philosophers and other dignitaries to put them forward to the public and no group should be violent against the rights of the opponent and open to their logics as only that would pave the way for the public to make up their democratic minds.
Above all, the journalists and people in the media have a huge role to offer equal opportunities to people of opposing views and ensure that in that process we do take care not to allow any future confusion as to the neutrality of the Judge.
The writer is Human Rights Advocate, President and CEO, Law Offices of Islam and Associates.