Reviewing The Views
Daughter's share in succession: Our reply
Dr. Shahjahan Mondol & Dr. Reba Mondol
An assessment of the Law Commission report on `daughter's share in the succession of parents' property in absence of son' made by us was published in the Daily Star on June 16, 2012. It was very sharply gone through and criticized by Mr. Anisur Rahman, Assistant Professor of Law of the Eastern University, on this page of the Daily Star on 30 June. Whatever may be the result of the assessment made by us and the criticism made by the writer the Law Commission as well as the Ministry of Law is hereby being requested to consider each and every problem and prospect of the Commission's proposal and think twice before enacting or amending a sensitive branch of law of Muslim succession as well as to consult with the law experts.
Assessment of the criticism
What we said in our 16 June writing we'll come latter to. Let's see and assess what the writer and critique showed and stated in his 30 June write-up:
(i) The writer in the last lines of third column said, “The principle `male will get double of female' lies to the first verse of Sura 7 of the holy Quran.”
Assessment: The mentioning of both the verse as well as the number of Sura is not correct. He mentioned verse 1 of Sura Aaraf (Sura No. 7). But it does not say anything about such principle. It reads: “Alif lam mim sowad.” Where the principle of tasib is laid down is verse 11 of Sura 4 (Sura Nisa) of the holy Quran. Any reader can easily see it.
Moreover, the verse mentions not 'male' and 'female', rather 'son' and 'daughter'.
(ii) The writer showed in fourth column that 2/3 is equal to [1-(1/2+1/6)].
Assessment: There should have been 1/3 instead of 2/3.
(iii) The writer, in the same fourth column as well as in the first box, gave an example wherein he tried to solve a problem wherein the propositus (P) is survived by a daughter (D), one full brother (FB) and one son's daughter (SD). He allocated ½ for D, residue (i.e. 2/3) for FB and 1/6 for SD.
Assessment: Every law student knows that under the present law of representation in force in Bangladesh i. e. section 4 of the Muslim Family Laws Ordinance of 1961 the solution would be as follows:
D= 1/3 [as residuary with (S) assuming him to be alive]
FB= excluded by (S) assuming him to be alive.
(S)D= 2/3 [assuming (S) to be alive].
(iv) The writer, in the same fourth column as well as in the second box, gave another example to show and establish that the principle of tasib, i.e. male and female of the same class and degree receiving in the proportion of 2:1, does not apply wherein the propositus (P) is survived by mother (M), full Brother (FB) and father (F). His allocations are M=1/6, F=1/6 and FB=2/3 (residue). He reasoned, 'in presence of brother parents will get sixth of the property.
Assessment: His solution is not correct. The reasoning is also not correct. Under Sunni Muslim law of succession, as applicable in Bangladesh, mother gets 1/3 when there is no child or child of a son (h.l.s.), or no two or more brothers or sisters of any kind [ please sea: M. Habibur Rahman, Muslim Aain, First Part, Rajshahi, Bangladesh, 1989, p. 48ka; Dr. Muhammad Faiz-ud-din, A Text Book on Islamic Law (including Statutory Family Laws), Shams Publications, Dhaka, 2008, p. 239; Principal A A M Moniruzzaman, Islamic Jurisprudence O Muslim Aain ebong Muslim Parivarik aain Parichiti (the Bangla version of Sir D F Mulla), Shams Publications, Dhaka, 2011, p. 180; Asaf A A Fyzee, Outlines of Muhammadan Law, Oxford University Press, 1994, p. 399. N J Coulson, Succession in the Muslim Family, Cambridge at the University Press, 1971 may also be seen for details].
Father receives 1/6 as Quranic sharer in presence of child or child of a son (h.l.s.) and as residuary in their absence [please see the same first three authorities as well as Asaf A A Fyzee, ibid., p. 399]. Full brother, on the other hand, is a residuary but he is excluded by nearer residuary father under the rule of nearer in degree excluding the more remote. Not only that, all kinds of brothers and sisters are excluded by father. So the writer's reasoning at this place (in presence of brother parents will get sixth of the property) is proved to be incorrect. Therefore, in this case the allocations would be as follows:
M=1/3 (QS) for there being no child or child of a son (h.l.s.) and one brother
F=2/3 (R) for there being no child or child of a son
FB= (R) excluded by F.
It is very interesting that the FB who, according to law, is not entitled to inherit here was given 2/3 by the critique writer. In the Law Commission report published on 9 June a confusion was created in this statement: (i) `however, under normal circumstances, if father dies leaving only daughter/s, she does not get the whole property, as she is entitled to get as representative of the predeceased father under the 1961 law'. This confusion was mentioned in our 16 June article. Still we admitted therein, in this connection, that 'perhaps and in fact, son's daughter (SD) was, in this sentence, wanted to be meant who inherits under the 1961 law.' Every law- student knows that while distributing estates of a deceased (s)he is called 'propositus', and all her/his heirs are named and mentioned depending on her/his relations with such relatives/heirs; for example when we say 'father', it means the propositus' father, when 'brother' it means propositus' brother; when we say 'daughter' it means the daughter of the propositus.
Proposal of the Law Commission
The proposal of the Law Commission was that a provision should be added after section 4 of the Muslim Family Laws Ordinance of 1961 which would prohibit any part of the property of the propositus from going to his FB whereby her portion would increase. In the purpose of allocating more portions for D the Commission wants to exclude FB by D. But the Commission said nothing about the position of a full sister (FS) of the propositus who is the paternal aunt (`fufu' in Bangla) of the daughter.
In fact, FS is a Quranic sharer in absence of FB, as well as a residuary in presence of FB. She can be an accompanying residuary in presence of D and SD (h.l.s.). When she is a residuary either she should inherit with FB or be excluded along with him. When the Commission proposal wants to exclude FB by D, the FS of the propositus is also excluded by D rationally, because it can not be supported that one heir should inherit and the other of his/her same class and degree shouldn't. Then what stands the result? For the purpose of protecting one woman's (D) right another woman (FS) suffers exclusion from inheritance. It is absolutely against the spirit of ijtihaad, based on equity, justice and good conscience. This obviously does not look pretty. Such deprivation may not be supported by feminist scholars and activists. We also proposed in our 16 June article to keep alert in this regard so that FS might not be excluded. Moreover we did not want anyhow to exclude daughter from her dues. But the critique writer seems, though possibly unknowingly, to try to exclude FS. This shows that the critique has taken a position against women's rights.
What we wanted we stated in our 16 June writing. That is very clear. Upon a proper scrutiny of our early writings it may not be hard to understand that nothing misleading or ambiguous explanation was given there, rather we wanted to assist the Law Commission, the Law Ministry as well as the Parliament i.e. the people of Bangladesh. If it is attempted by the Law Commission to exclude FB why shouldn't it be extended to the most important case of son and daughter whereby daughter should take equal to son without prejudice to others' portions? That would rather be in line with the present day human rights and women's rights movements. Once again, whatever the Law Commission or the Law Ministry proposes to the Parliament our social context as well as the political position of the Government should be kept in mind as well as the law-legends on the issue should be consulted with.
The writers are Professor and Associate Professor of Law respectively at Islamic University, Kushtia.