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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: 280
July 28, 2012

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Reviewing The Views
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Reviewing The Views

Daughter's share in the succession
Look forward to a humanistic interpretation of law

Anisur Rahman

Photo: globallabourrights.org

I shall begin with a clarification of my earlier essay which has been published on 30 June in this page. The essay has got severe criticism, albeit much praise, especially from Dr. Shahjahan Mondol and Dr. Reba Mondol of the Islamic University, Kushtia. I must welcome their criticism that has been articulated pointedly.

To the reader, my essay had two parts. In the first part I tried to explain Law Commission's proposal which has advocated for increasing daughter's share in the succession in absence of son. In the second part, in addition, I offered a proposition that the principle 'male will get double of female' may have special application; therefore requires reinterpretation.

Alas! I am very much disappointed, as I was earlier, that our distinguished academics did not get the fundamental message and spirit of the Law Commission's proposal as well as my essay; very sadly they come up with the same old arguments this time again in their jointly written essay which has been published on 7 July in this page.

I have got two impressions. Firstly, they cannot understand the report of the Law Commission on the increasing daughter's share properly, due to some reasons unknown. Secondly, they have avoided the arguments of my essay tacitly of which I expected a constructive discussion from them.

Of course, I must thank Tanzim Alam for his insightful reading and constructive discussion on the issue. I would humbly request every one not to come up with a conclusion in a discussion (the habit of giving decision in a discussion develops among us perhaps due to our one-way education system). Nor did I provide it in my essay. I have expressed my intuition only and have asked for a new interpretation.

Simply, avoiding a discussion on the ubiquitous ground that religious law is 'sensitive' is similar to religious orthodoxy; will lead no where than an orthodox society. This is indeed a very old colonial notion to block the progressive interpretation of Islamic law.

Law Commission's Proposal
Again, I fell obliged to explain the law commission's standing clearly. It is simple and very easy to understand if one tries to do so with a good intention.

For layman, in section 4 of the Muslim Family Laws Ordinance (MFLO), 1961 a change has been brought on Islamic succession law. According to this section a son or a daughter, whose father has been deceased, will get the share (father's share) in the grandfather's property as representative of their father (our distinguished academics could not understand this simple language which has been written as 'representative of the pre-deceased father' in the report).

We all know that the general practice of distribution of property is that son will get double of the daughter and in absence of son the daughter (if one daughter) will get half of her father's property. But when a daughter is singly representing the deceased father (under section 4 of MFLO) she is getting full property of the father (as representative of the father).

Here lies the ground of the Law commission's proposal. In this proposal a fundamental question has been raised by the Law Commission that if daughter gets whole property, in absence of son, in a representative way why does not she do so in the normal circumstance (when inheritance opens and there is no son)? Then it has tabled a proposal to increase daughter's share in the general circumstance in absence of son. According to the proposal the daughter will get the whole property of her father as a son does, if one; of course in absence of son.

The fundamental concern of our distinguished Professors is regarding the Full Sister (FS) of the deceased (that is fufu in Bengali of the daughter). I simply could not understand why they did not get the point that according to Law Commission's proposal the whole property will go to daughter. The report fathered by the Law Commission has no where mentioned that daughter will exclude the Full Brother (FB) only if the proposal turns into law, as our distinguished Professors demanded. The commission mentioned 'uncle' in its report merely as an example of collaterals of the deceased.

Author's confession
However, I must thank Dr. Mondol and Ms. Mondol for correcting me. But their intention transcends the objective of the essay. They tried to avoid my point by discovering few mistakes merely clerical.

Okay. If we take another example where a praepositus is survived by one daughter, wife and one brother the principle 'male will get double of female' will not work. After giving ½ and 1/8 to daughter and wife respectively brother will get 3/8 as residuary; which is not double than the daughter (more than double of the wife). Therefore, I would like to reiterate my proposition again that the principle might have special application; or may have no application at all.

In my second example, however, I deliberately mentioned mother's share as 1/6 of the property. I had two objectives in my mind; to call for ijtihad on the one hand and to introduce humanistic interpretation on the other. I would request the distinguished academics to go back to the original verse again. In the verse 11 of sura Nisa (4:11) '..and if he have bretheren, then to his mother appertaineth the sixth..' brought me about to mention mother's share as 1/6. (Muhammad Marmaduke Pickthall.2006. The Glorious Quran. Goodwords Book, India.; see also Kimber 1998:305).

The distinguished academics have mentioned many authorities and I would simply say that humanitarian interpretation, as I told in my earlier essay, requires one to go back to the original sources and interpret it. There is a host of contemporary writings where the credibility of many earlier authors, i.e., Coulson, Fyzee has been challenged. Moreover, they have been accused of miss-judging historical development of Islamic Usul al- Fiqh.

The distinguished academics have also said that in presence of Father the Full Brother will be excluded as there is a principle that nearer blood will exclude the remote one. May I ask a simple question that who is nearer in this case to the praepositus, i.e., Father or Brother? How will we determine that a brother is remote than father? After all brothers were the same foetus of the mother, they shared the same blood of the mother, same flesh of the mother!

The principle that brother will be excluded by father is the old tribal principle which lowers the uterine relation. The principle of blood relation, i.e. asabiya, had been applied to undermine mostly the status of female. Therefore, who is nearer, i.e., Father or Brother is a question of fact which requires an interpretation from gendered perspective.

Humanistic hermeneutics of Islamic law
As I told earlier that humanistic interpretation requires one to go back to the original sources of law and interpret it considering the situation in hand. Kimber (1998) has argued that the words used in verse 4:11 'male will get double of female' is not a rule; simply used as an example.

al-Tabari has discovered a problem that the verse 4:11 mentions the share of more than two daughters and a single daughter in absence of son; it does not mention the share of two daughters in absence of son (mentioned in Kimber 1998:306).

Kimber (1998:306) tries to answer the query of al-Tarabi by saying that in this case the actual situation is that the praepositus is survived by children where one son and several daughters are taking the share. The two daughters share the ½ of the residue in presence of son, continues Kimber, more than two daughters share 2/3 against still in presence of same son and a single daughter will share ½ of the residue property. All these daughters share the residue property in presence of a son.

Kimber (1998:307) further argues that daughters as children are residuary by their own rights. Since the verse does not mention, argues Kimber, what will happen in the case of a single daughter or son as residue; the impression is that either alone should take the whole.

For the very good reasons I call for new reading of the verse with taking into account several factors, i.e., tribal principle of inheritance, ignorance of uterine relation and so on to solve the issue. Do we have any good reasons to believe that the intention of the Quran is to deprive a daughter from getting the whole property of her father as the son does if single?

The writer is, Assistant Professor, Faculty of Law, Eastern University, Dhaka.







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