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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 278
July 14, 2012

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Reviewing The Views
Human Rights Advocacy
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Reviewing The Views

Review on daughter's right of inheritance in Muslim Law

Tanzim Alam

The debate aroused in this page regarding the law commission's report on the 'possible increase of daughter's share in the succession of parent's property in the absence of son' has drawn attention of the readers. After publishing the report in the Daily Star on 9th June, Mr. & Mrs. Mondol's writing on this page titled 'Law commission's report revisited' on 16th June simultaneously welcomed the report and criticized it for some default according to the writers' view. Later on, another essay on the same issue strongly criticized the former one which was published in this very page on 30th June.

However, after going through the law commission's report, I breathed a sigh of relief and firmly believe that many parents who have only daughters and no son will do the same. I think this report will pave the way to implement a law regarding the family property in a modern context.

The report argued that if the daughter of the predeceased son of the propositus can get the whole property under the MFLO, then why she cannot inherit her father's property wholly without disposing any portion to the collaterals of her father in the absence of her brother.

I think this is a growing demand of present time that should be considered carefully. Firstly, we should keep in mind that the social and legal reform initiated by Islam put an end to so many unjust customs and usages and gave inheritance rights to the disadvantaged members of the family. We all know the very fact that the focus of modern family tie centers upon the nuclear family comprising of the parents and their lineal issues. So, in this context the patriarchal society of the past, where the uncles took the responsibility of the children of their deceased brother, cause hardship and injustice to the members of inner family with the breakdown of ties of extended family.

The Quranic verse (4:176) mentioned in the report and the liberal interpretation of the Indonesian Supreme Court of this verse is a decision befitting the time.

In the Law commission's report, it is mentioned that, ' the liberal meaning of the Arabic word "Al- khalala meaning child'. This is not true and it is wrongly inserted here. Because the actual meaning of the word kalala means 'childless' and in the Surah An-Nisa, verse: 176 Allah ordained that:

They ask you for a legal verdict. Say:"Allah directs (thus) about Al-kalalah (those who leave neither descendants nor ascendants as heirs)..[Translated by Muhsin Khan]

Rather it can be said that the word 'walad' (meaning child; male/female) mentioned the same verse should be interpreted for both male and female child. By this interpretation, the collaterals of the propositus would be excluded from the property of any deceased person who left daughters only.

The question may arouse, whether this is in contradiction with the Shariya law or not. Debates may also be continued between the conservatives and the modernists. In this context, we should remind ourselves that Ijtihad is the only channel of legal development which must be based on Quran and Sunnah , with legal reasoning.

Lastly, I want to say something about the essay published in this page on 30th June titled 'Law Commission's proposal to increase daughter's share in the succession' by Mr. Anisur Rahman. I express my gratitude to him as he is a strong supporter and collaborator for advocating such epoch-making approach.

The essay provides a line that "the principle 'male will get double of female lies to the first verse of Sura 7 of the Holy Quran." I hope this may be a printing mistake because the point is not true and the right one is that this is Sura no.4 (An-Nisa) verse no. 11. This rule (double share of male) is commonly known as 'Tasib rule' which is a very fundamental principle of Muslim Law of Succession. Every male will get double share of a female of equal degree and it has a general application in every distribution of property.

He described two situations, and distributed the deceased's property, which was not in a right way and also vitiated the very fundamental of succession law.

Firstly, he drew a situation where the propositus has a daughter (D) and one full brother (FB) and one son's daughter (SD). Here, the daughter will get 1/2 of the property, the son's daughter 1/6 and FB will get the residue 1/3 of property as agnatic sharer. He argued that here FB does not get double of D. There is no rule of succession in Shariya law that 'male will get double of female' means all males are in a higher position than all females. It is only applied in case of same degree. So I think this discussion is quite irrelevant.

The next situation where the propositus has mother, father and brother, Mr. Anisur Rahman said that the father is not getting the double of the mother. This is not true. His distribution of property among the sharers and residuary is completely wrong because a brother can never get any property in the presence of the father. Here, father will exclude the brother from the property. Then mother will get her Quranic share of 1/3 and the father will get 2/3 of the property as residuary. The very reason behind the making of a female relative of the deceased as agnatic sharer in the presence of a male of equal degree, is not to treat them equally. Rather, it is for the true application of the Rule of Tasib (rule of double share).

Lastly, the proposal of the Law Commission is praiseworthy, no doubt. The implementation of this report is also necessary in the modern social context. Obviously it is true that humanity and discrimination does not go together. Islam is itself a highly equitable, humanistic religion and there is no discrimination in Islam. Before raising our voice to eliminate all sorts of discrimination to make the Islamic law equitable one, we should read out the law in an interrelated way and not severally.

The writer is a student of L L.M at University of Rajshahi.



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