Islamic Law of Inheritance (A New Approach)

Email

Whatsapp

Facebook

Pinterest

Twitter

Copy link

About the Book

lim-ul-Faraiz, i.e. the Islamic Law of Inheritance, Is the most important branch of Shariah (Islamic Law). By providing rigid and clear-cut-rules of Inheritance, in Sura al-Nisa (AlQur'an), Allah, the Law Giver of Islam, has Himself emphasized the importance and the pride of place, this branch of Shariah enjoys in the life of Muslim as a community. The Prophet of Allah (on whom be His blessings and peace) has emphasized forcefully the great need for acquiring the knowledge of the Islamic law of inheritance and transmitting it to others.

It is, however, very unfortunate that this most important espect of Shariah has by far remained much neglected from academic point of view, Judges, lawyers, teachers, teacher and students of Islamic Law do not only take little Interest in this important aspect of Shariah, but also try to bypass it at the cost of even their professional responsibility end competency.

This book is the need of the time. I am sure and hopeful that the teachers, lawyers, judges students and other readers interested in this important branch of islamic law will welcome the appearance of this work. The book also contains some special chapters which not only counter the unfair and biased comments and criticisms of so called Orientalists, Western writers and examines of Islam but also provides the clear insight of the laws of inheritance in Islam. The simplification of the difficult principles through novel methods and illustrations is the speciality of the work. It is intended for the Orientalists, the lawyers, the students of Islamic and Comparative law, the teacher, the sociologist and the researcher concerned with the problems connected with this important branch of Sharia. The author for this solid piece of work and original ideas deserves full credit and appreciation.

About the Author

M.M.A. KHAN, born in 1935 at Bahraich, U. P. India, graduated in Science from Lucknow University. He then shifted to Aligarh Muslim University (A M.U). After completing his M.Sc. at A.M.U. he graduated in law in first division with distinctions. He then received his Master degree from A M.U. in 1960 securing 1st position with specialization in personal laws, specially Islamic law. He is teaching Law at A.M.U. since 1960. During this long period of teaching profession, he has distinguished himself as the best teacher of Islamic Law of inheritance in the country. This reputation he maintained during his three years (1982-84) stay in Nigeria where he taught Islamic Law at Ahmadu Bello University, Zaria and Byro University, Kano. Most of the scholars and teachers of Islamic Law in the country who have some clear understanding of the branch of inheritance are his students.

At present he is actively engaged in research on Islamic law. Besides successfully guiding many research students for Ph.D. degree has himself published many articles in this field.

Foreword

Mr Mohd. Mustafa Ali Khan, Reader, Faculty of Law, Aligarh Muslim University, is an able and experienced teacher of Muslim Law and has done pioneering work in that field. He has written the book under the title Islamic Law of Inheritance-A New Approach which is a book of great learning and expertise on the above subject.

It can safely be said that perhaps the Law of Inheritance is the most difficult part of the Muslim Law and it can be taught and understood only by those who are genuinely interested in the subject. The author of this book is well-versed in the subject and has devoted years of research as a teacher in Aligarh and Nigeria Universities. It is easy to see that he has adopted a novel approach to explain the intricacies of the Muslim Law of Inheritance which is supposed to be one of the most perfect laws obtainable in the juristic world. He has divided the subject into easily intelligible and scientific chapters focussing attention on some of the intricate and may be to a certain extent controversial aspects of the subject. The treatment of the SUNNI LAW (Hanafi Law), SHIA LAW (Ithna Ashari Law) in separate chapters has rendered it easier to compare and contrast the two systems of inheritance applicable to the two major sects. He has also treated certain other topics like the doctrine of representation, Orphaned Grandson's Heridatory rights, inequality of sex under different headings which fits in quite nicely with the general scheme of the book.

It is a fact that the Muslim Law and to a certain extent the Law of Inheritance is a largely misunderstood subject in the modern world. Those who had studied it deeply cannot but appreciate the valued principles of jurisprudence on which it is based and perceive in it an extremely vigorous and modern system of jurisprudence which has got a lot to contribute to the development of modern judicial thought.

I am sure this classical work of learning by Mr Mohd. Mustafa Ali Khan will dispel the doubts in the minds of such people who are sceptical about the soundness and validity of the principles of Muslim Law. Indeed, there are many books which have been written on Muslim Law by authors of great eminance and renown and I am sure that this work of Islamic Law of Inheritance-A New Approach' will also find a place among the classical works on the subject.

Lastly need it be mentioned that the author seems to be devoted heart and soul in writing this book and the work done by him is of an exceptionally high calibre. I commend this book for the study of those who may be judges or jurists, scholars or students of Mohammadan Law and I am sure that they will find it a valuable addition to the classic literature existing on the principles of the Muslim Law of Inheritance.

Preface

llm-ul-Faraiz, i.e. the Islamic Law of Inheritance, is the most important branch of Shariah (Islamic Law). By providing rigid and clear-cut-rules of inheritance, in Sura al-Nisa (Al·Quran), Allah, the Law Giver of Islam, has Himself emphasized the importance and the pride of place, this branch of Shariah enjoys in the life of Muslim as a community. The Prophet of Allah (on whom be His blessings and peace) has emphasized forcefully the great need for acquiring the knowledge of the Islamic law of inheritance and transmitting it to others.

"Learn the laws of inheritance and teach them to the people, for they are one half of useful knowledge" (Narration of Hazrat Abu Huraira (RA) reported by Bahiqi and Hakim in Durr-e-Mansoor).

"Learn the laws of inheritance with the same sincerity as you learn the Holy Quran.' (Darmi reports the narration of Hazrat Umar (RA)).

"Learn ilm' and teach ilm, and learn ilm-ul-Faraid and teach it to others." (Darmi quotes the narration of Hazrat Abdullah bin Masud (RA) in Babul Iqtida bil Ulma)."

The purpose, the Islamic Law of inheritance, is designed to serve and its natural and practical approach have also been widely admired by Muslim and non-Muslim scholars alike:

Islamic Law of inheritance, in its present form is a fixed scientific and beautifully hormonious system. (Al-Sirajiyyah).

Rules governing the distribution among Distant Kindred constitute most curious and interesting system of devolution which the world has yet seen. (A. Rumsey)

I am strongly disposed to believe that no possible question could occur on the Mohammadan Law of Succession which might not be rapidly and correctly answered. (W. Jones)

Mohammadan Law of Inheritance comprises beyond question the most refined and elaborate system of rules for the devolution of property that is known to the civilized world. (A. Rumsey) Juristically, the law of succession is a solid technical achievement, and Muslim scholarship takes a justifiable pride in the mathematical precision with which the right of the various heirs, in any given situation, can be calculated. (Coulson) It is, however, very unfortunate that this most important aspect of Shariah has by far remained much neglected from academic point of view. Judges, lawyers, teachers and students of Islamic Law do not only take little interest in this important aspect of Shariah, but also try to bypass it at the cost of even their professional responsibility and competency. My own personal experience both as a student and teacher of law has gone a long way in confirming this view of mine.

It was more by chance than by choice that I opted for the study of law after taking my degree of Bachelor of science. My uncle, being a landlord, often faced land disputes and hence wanted to see one of the member of his family as a lawyer. His choice fell on me and I was persuaded by him to switch on to Law for my higher studies. As a student of Law at Muslim University, Aligarh, I was surprised to find a general apathy among students and teachers alike towards lectures on the subject of 'inheritance in Islamic Law'. I was often discouraged by my seniors and classmates from getting entangled in this subject which they considered to be difficult and tough owing to mathematical calculations involved in it. It was more as a challenge to my knowledge of Mathematics at the Graduate level than for any other special reasons that I took no heed of the sane advice of my well-wishers. I was not discouraged even when I found a very negligible number of my classmates attending or taking seriously the regular classes in this important branch.

It did not take much time to discover that apprehensions and misgivings of my friends and well-wishers were not only unfounded but also more imaginary than real. With the help of my mathematical background and stimulating lectures of my learned and sympathetic teacher, Late Khwaja Ishaq Sahib, I soon developed a great liking for the subject and to the surprise of all the prophets of doom, did admirably well in the subject at my Law examination. Later I took up this very subject at the post-graduate level for my Master's degree in Law. I have ever since maintained my interest in the subject and as a teacher of Law for a long time at Muslim University, Aligarh and also during my three years stay in Ahmadu Bello University, Zaria, Nigeria, I succeeded in dispelling all the misgivings of my students and in inculcating in them the deep rooted interest for this important aspect of Shariah.

It is because of the continuous and pressing demands of my colleagues and students that I have ventured to bring out this comprehensive and precise analysis of the Islamic Law of Inheritance in the book form. My main objective in writing has been to present such a clear and simplified study of this generally considered difficult subject as may arouse interest in it of all the students of Law and help them to understand its intricacies without much effort. I have tried to make this important aspect of Shariah intelligible even to the plainest of man so that it may attract the attention of not only those who are involved in its specialized study but also of the eager and curious lay men who wish to understand it in all its ramifications. I shall feel my labour amply rewarded if sympathetic readers of my book find that I have been able to transmit to them clearly the knowledge of the Islamic law of Inheritance. May Allah, the Almighty help me in my objective and forgive me for my limitations for whatever short comings this humble work of mine has.

Introduction

In addition to the authentic translations and commentaries of the Holy Quran and famous collections of Ahadis (Traditions) and well known classical and source book of high authority, in Arabic, many books in Islamic law have been written in Urdu, English, French and other languages both by Muslim and Non-Muslim scholars of great repute. Many of these classical books of Arabic have been translated in Urdu, Persian, English and other languages. Even these translations have rendered invaluable service (0 the learning and understanding of Islamic law in general and Islamic law of Inheritance in particular. Most of these books and translations command the same respect in the modern time as they did when they were published some of them appearing centuries ago. The most esteemed among those are Fatawa-e-Alamgiri, Fatawa-e Kazi Khan. Al-Sirajiyyan and Durrul-Mukhtar. Next in order of authority come those written by eminent scholars and jurists such as Nawab A. Rahman, Rumsey, Amir Ali, Abdul Rahim, Baillie, Wilson, Tyabji and many others. Most of these books were written and translated even at the behest of the alien rule's.

The Colonization of Muslim world. including Indian sub-continent, by European Colonial powers during the last three centuries dealt a great setback to the native culture, laws and religions practices. The long domination of these Colonial powers even changed the thinking and attitude of their subjects including the intelectual class towards their ancient heritage. Most of the books written and translations produced by the scholars and jurists mentioned above reflect this attitude and thinking in their approach. They, therefore, favoured and some of them even advocated changes and modifications in Shariah to suit the need of modem time. They, in a way, do not subscribe to the original and universal message of Islam and its laws.

I am not among the so called modernists. who believe that Islamic law needs fundamental changes to cope with the challenge and demand of the modem time. I am fully convinced that Shariah being eternal is capable of surviving vicissitudes of all eras and serving these needs without any modification whatsoever. On the other hand it is the materialistic attitude of the modem man, including Muslims, who, off and on, suggest arbitrary modifications in Shariah that needs to be changed in the light of true spiritual values and religions precepts.

No law can suit the people who are irreligious, selfish and materialists and who advocate changes only to lead easy and indisciplined life without any restraint on their animal possions and impious habits. So what is needed today is simply the proper implimentation of Shariah rules in their true spirit and whole hearted and sincere effort to transform the attitude of Muslims viciously infected and blinded by materialistic and ephemeral values of life. They should for their own betterment and salvation follow the basic and eternal laws of Islam as laid down by Allah and communicated, interpreted and explained by the Holy Prophet (SAW). The work in hand proceeds from this line of thinking and reflects this approach of mine.

As my primary source material I have basically relied on the authority of the Holy Qran and Ahadis (Sunna) of the Prophet Mohammad (SAW) then on works like Fatawa-e-Alamgiri, Durrul-Mukhtar, Sirajiyyah, Minhajut-Talibin, etc. then I have relied on the classical works of Rumsey, Amir Ali, Baillie, Wilson, Tyabji and the like. In general lay out of my book I have followed Coulson-Fyzee combination. On Shia law I have relied generally on Baillie, Tyabji and Wilson. In respect of illustrations, examples and their solution I have tried to be original and different from the normal pattern.

I have not been influenced by the normal pattern of relying on case law. I have been led to ignore the case law because it does not have the force of law uder Shariah as it does under all other legal systems of the world. The 'doctrine of precedent', of the modern era has little or no role and application in the development and implimentation of Shariah.

An analysis of the history of the development of Shariah leads to the conclusion that decisions of even the highest court of law, even in Islamic state, i.e. the court of Caliph of the time, were not considered as binding on the Qazis (Judges) even of the lower courts. Who is not aware of the high place Hazrat Umar (RA), the Second Caliph of Islam holds as a jurist, mujtahid and scholar of Shariah? However his own decisions delivered, during his own caliphate, from the highest court of justice, have never been considered to be binding. Even during his own period of caliphate many other scholars and learned in law and jurists among the Companions (Sahaba) differed from his decisions. Later jurists and exponents of Shariah also differed and deviated from his decisions. 'Umaryatin", al-Himariya cases relating to law of Inheritance (discussed in the book) and other decisions relating to other branches of Shariah e.g. relating to 'tripple divorce' etc. may be mentioned as relevant examples in this respect.

Hazrat Ali, the son-in-law of the Prophet (SAW) and the Fourth Caliph of Islam, who is considered by Shias to be the fountain head of Shia School, originated the doctrine of 'Awl' the proportionate reduction of shares (dealt in the book) but that is not followed even by Shias. This was his decision given during his chaliphate and is popularly known as 'al-Mimbariya' (case). Under Shariah, this is the position of the decisions of the highest court of law. You can now imagine the fate of decisions of other courts in general and the modern courts deciding Islamic law cases in particular.

The reason why the 'doctrine of precedent' has not been considered to have the force of law under Islam is very simple. Islam insists on rigid adherence to its basic laws and their implimentation. In Islam Qazis (Judges) administering law are not accountable to the State or Ruler. They are directly answerable to the Law Giver, i.e., Allah Himself. They, therefore, are not bound by the decisions of any other person like them, if and when they think that the laws of Allah as explained by his beloved Prophet (SAW) are being modified or tempered with. So the Qazi, as a judge, is free to decide according to the dictates of the Shariah and may not heed the dictates or opinion of even the Caliph of the time. It is this concept of direct responsibility to Allah that makes a Qazi free from following the line of approch adopted by others, however highly placed and learned they may be. Though it is nearly impossible for a Qazi to deviate from the unanimous opinion and practices and line of approach adopted by the companions of the Prophet (SAW). Under Shariah, in case of divergence and controversy, while adjucating he follows Allah's ordinances, as interpreted and explained by his Apostle only.

A mere look at the contents of the book is enough to give the idea about the subject-matter discussed in it, to its readers. The break up of 'Chapters and their arrangement is provided in a way first to familarize the reader of the concept of laws of inheritance, their role in the society, the general attitude and main features of some important legal systems. It provides the principles of general application as well as those of special nature separately. Then it separately deals, in details, with the substantive law of Hanafis and Ithna Asharis, the two main schools of Sunni and Shia jurisprudence respectively. At the end of each of the two detailed provisions of distribution I have appended their summaries also. A chapter comparing the two systems is provided seperately. The last three chapters are likely to dispel the misunderstanding and misgivings about the Islamic Law of Inheritance, prevailing at present.

Contents