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FINAL SUBMISSION

Family Law-II

Topic

‘Gender rights and the Law of Succession in Islam’

Submitted by

Vaibhav Malhotra

Division- B, PRN 17010224151, Class- BBA LL.B.

Of

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), PUNE

In

January, 2019

Under the guidance of

Ms. Deepali Sahoo

(Assistant Professor)
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CERTIFICATE

The project titled “Gender rights and the Law of Succession in Islam” submitted to
the Symbiosis Law School, NOIDA for Family Law-II as part of Internal Assessment is
based on my original work carried out under the guidance of Ms. Deepali Sahoo from 19th
Dec to 23th January, 2019. The Research work has not been submitted elsewhere for award
of any degree.

The material borrowed from other sources and incorporated in the research paper has been
duly acknowledged.

I understand that I myself would be held responsible and accountable for plagiarism, if any,
detected later on.

Signature of the candidate

Date:
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Acknowledgement

Before we get into thick of things, I would like to add a few words of appreciation for the
people who have been a part of this project from its inception. I sincerely express my
gratitude towards our faculty member Ms. Deepali Sahoo. for giving me the chance to
research on the topic “Gender rights and the Law of Succession in Islam " I feel a sense of
obligation to my library staff members and seniors, who helped me in collection of data and
resource material and also in its processing as well as in drafting manuscript. The project is
dedicated to all those people, who helped me while doing this project.
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Index

Introduction ------------------------------------------------------------------------------- 5

About Islamic Law--------------------------------------------------------------------------5

Muslim Legal System compared with other systems --------------------------------6

Comparing Law of Succession of Hindus to that Muslims ----------------------6

Understanding the law of succession between Male and Female in Hanafi

School ---------------------------------------------------------------------------------------8

Comparative Analysis in Law of Inheritance between Shia and Sunni Law---

------------------------------------------------------------------------------------------------9
Conclusion---------------------------------------------------------------------------------11

Bibliography------------------------------------------------------------------------------11
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Introduction-

Succession is the transmission of property belonging to a person at his death to some other person or
persons. Succession and Inheritance can be of two kinds – Testamentary or testate inheritance which means
inheritance as per the Will of the deceased and Non Testamentary or intestate succession, where the
deceased dies without making a Will.

The law on intestate succession for different communities in India is governed by different succession laws
applicable for that particular community. For e.g. the Hindu Succession Act, Indian Succession Act, Shariat
laws etc. The law on testate succession is governed by the Indian Succession Act, 1925 for all communities
except Muslims. The law in relation to making of wills by Muslims is governed by the relevant Muslim
Shariat Law as applicable to the Shias and the Sunnis.

With the exception of Muslims, the Indian Succession Act, 1925 governs and has a common set of rules for
persons of all religions. However, the Muslims shall be bound by the Indian Succession Act, 1925 for the
purpose of testamentary succession, if the will relates to immovable property situated within the State of
West Bengal and within the jurisdiction of the Madras and Bombay High Courts. We need to understand that
there is difference between the law of Succession and Law of inheritance, we all call these two laws same
however there is a difference between the two. The difference is inheritance is a general word and the
inheritance means one who derives the interest in property, But Succession is that who is the next successor
of the predecessor or the person who dies. Suppose if C dies and A is the successor and a dies B is the
successor. When C dies both A and B are the inheritors but B is not successor.1

Hence Inheritance is deriving interest by genetic connection. But Succession/intestate succession is only
after a person dies. Successor is successor of predecessor but inheritance is the entire person after successor
as well as successor. In other words Inheritance can be successor as well as next to the successor. Inheritance
cannot be claimed till the kartha (the person who acquires property) but can be claimed by succession i.e.
after kartha dies. Inheritance can be by succession but succession cannot be by inheritance2. Intestate
Succession is after death of a person. Inheritance may be after or before death of person. This is a very
minute difference that exists between the two however they are interconnected. This research paper will deal
with the gender rights and the law of succession focusing mainly on the Islamic Law.

About Islamic Law-

The importance study of the Muslim Law can be estimated by the fact that it is applicable to some 15 crore
Muslims in India. Islamic Law gradually spread with the expansion of the Ottoman Empire in Asia, Africa
and Europe and under the influence of the Delhi Sultan and the Mughals in the Indian Sub-Continent.

1
(Diwan, 2011)
2
(Bhartiya, 2009)
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In the south west of Asia, there is a peninsula known as Arabia. It is just like a tableland surrounded by the
Syro- Babylonian plain in the North, by Persian Gulf and the sea of Oman in the North-East, by the Indian
Ocean in the South, and by Red Sea of Oman in the North- East.

If we go in the Jurisprudence of the Muslim Law, Abdur Rahim’s Muhammadan Jurisprudence gives the
best description of the Muslim Law. In brief Abdur Rahim Classification of the Sources and some of them
are Koran; Hadith; Ijma; Customs and usages Juristic Deductions and much more. Now coming to different
Schools in Islam, there are majorly 5 School of Law in Islam, The Hanafi School, The Maliki School, The
Shafi School, The Hanbali School, Zahiri and Abu Tahwr School and the Shia Schools3.

Muslim Legal System compared with other systems-

The Muslim Legal System differs from other modern systems, in the sense that it purports to have its sole
source of Divine Will communicated, on its form, through a single human channel. The Mosaic Law comes
nearest to it in this respect, but whereas the Jew Speaks of “ the law and the prophets”; Muslims
acknowledge no divine inspiration subsequent to Mohammad, while holding all previous revelations,
however genuine and important in their days, to have been absolutely merged in his revelation 4.

Now the Hindus derive their law from the Shastras, which in their turn purport to interpret and expand the
Vedas. However the Muslim derives their law from the Koran; Hadith; Ijma; Customs. The Christians has
also their sacred scriptures and earlier collection common to himself and the Jew and the latter distinctively
Christian. The Muslim Sacred law Shariat stand on a different basis. It professedly centres more round the
personality and the sayings and doings of the Prophet of the defined Jesus. And its scope is infinitely wider.
It enters into the minute details of the daily lives of men, women, children, private and public, religious and
secular.

Comparing Law of Succession of Hindus to that Muslims in aspect of Testamentary

Succession-

Firstly it is important to understand that testamentary succession resulting from a legally executed testament.
Testamentary succession is also known as the right of inheritance. Here the inheritance took place because of
the Succession. A testamentary succession is fixed and determined at the moment of a decedent’s death. The
testament means “will”. Now we will analyse about the difference which is there between the Hindu and the
Muslim Will5.

A Will or a testament is a declaration of the intention of the person making it with regard to the matters
which he wishes to take effect upon or after his death while a codicil is a document which alters any one or

3
(Saxena, 2019)
4
(Das, 2015)
5
(Diwan P. , 2013)
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more provisions in the Will or adds any provision in the Will or rectifies the mistakes, if any, in the Will. It
is supplemental to and considered as annexure to a Will previously made.

While there is evidence of testamentary succession by Muslims, Indian history is silent about the origination
of concept of wills in Hindus, though one does find the recurring mention of divesting property as gifts,
which by some jurists, is considered a divestiture similar to a will. The Indian Succession Act, 1925
consolidated the laws of intestate (with certain exceptions) and testamentary succession, applying to all the
Wills and codicils of Hindus, Buddhists, Sikhs and Jains throughout India. Muslim testamentary succession
however was excluded from the ambit of application of this act and remains largely governed by the Muslim
6
Personal Laws.

The Indian Succession Act, 1925 (hereinafter the Act) that applies to Hindus, Parsis, Christians, Buddhists
and Jains, in India, states in section 59, the necessary qualification for a valid will. For executing a valid
will, prima facie, the testator should be: The age of majority is eighteen years, as specified by the Indian
Majority Act, provided the Court has not appointed a guardian for him, in which case the age of majority is
taken to be twenty-one years. Soundness of mind (as supported by explanation 4 to section 59) refers to the
capacity of a person to understand what he is doing while creating the Will.

The test of soundness of mind was laid down in A.E.G. Carapiet v. A.Y.Derderian where the Court held that
―if a testator has capacity to appreciate the fact that he is making a Will, Section 59 in the explanation part
states that married women can divest by Will, their personal property. It also states that a deaf and dumb
person can also execute a Will if he or she is capable of understanding what he is doing. Similarly, an insane
person can make a valid will in the interval of sanity and a Will made by a sane person, not in his senses due
to intoxication, illness etc, is not valid. Mere old age or illness of the testator however cannot make the Will
invalid and has to be substantially established by evidence.

According to Muslim beliefs, the age of majority is attained at puberty, in absence of signs of which, it is
assumed to be fifteen years. However, this is not applicable in India and the age of majority remains as
stated in the Indian Majority Act. Secondly, the testator should be in legal capacity to create a Will,
bequeathing only that which is his own, and not under any kind of fraud, coercion or influence, with
volition. Also, in Muslim Personal law, a person who has attempted suicide cannot thereafter make a Will,
and if he does, the Will shall be considered void7.

Wasiyat-Nama Will-The Primary Instrument Of Muslim Testamentary Succession. ―A Will from the
Muslaman point of view is a divine institution, since its exercise is regulated by the Koran. It offers to the
testator the means of correcting to a certain extent the law of succession of recognizing the services rendered
by a stranger, or the devotion to him in his last moments.

6
(A.E.G Carapiet v. A.Y. Derderian, 1961)
7
(Tagoranao, 2012)
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The Muslim testamentary succession is entirely governed by the Muslim Personal Law which covers the
powers to make the Will, the nature of the Will, the execution procedure, conditions of validity etc. The
option of revocation or modification in the will is available to the testator in his lifetime. The essential
condition for a valid Will in Muslim law (as that in the Hindu testamentary succession) is that only property
with absolute ownership of the testator can be bequeathed. A bequest which is contingent, or conditional or
in the future or is alternative to another, pre-existing one, would be void.

There are some differences in laws which the Hindu and Muslim follow for their succession rules and
regulation which we can see clearly from the above discussion. The Muslim law is governed by its own law
known as the Shariyat. The Muslim law does not recognize the concept of separate property. There is only
one property with same general rules (such as rule of representation, rule of exclusion, rule of primogeniture,
rule of vested inheritance and of spec successions) for both male and female succession, if a Muslim
individual dies without making a will then, after the death of an individual as per the laws, the property
under his ambit of ownership would be distributed among the legal heirs after deducting some expenses and
liabilities from the remaining property which is also known as the Heritable Property.

Understanding the law of succession between Male and Female in Hanafi School of
Islam-

Firstly it is important to understand the meaning of some terms which used in the law of succession in Islam.

Agnates, it refers to the relation who is related to the deceased wholly through males. Thus some of the
examples of the agnates are son, son’s son, father father’s father etc.

Cognates, it is a relation which is related to the deceased through one or more females. The example of the
same are daughter’s son, daughter’ daughter, mother’s father etc.

Under the law of intestate succession, the list of the heirs and their respective shares needs to be questioned.

It may be recalled that the pre- Islamic customary law allowed only male agents to succeed, and among the
agents the descendants were preferred to ascendants. But some heirs were certain females and some
ascendants. It should be noted that daughter’s daughter, who is a cognate and therefore remoter than the son
or son’s son, it is not included. To all these newly created heirs, the Koran allots a particular share. These
new heirs are commonly called “shares”. It is noteworthy that the fractional shares that are specified by the
Koran are only six, namely ½, 1/4, 1/8, 2/3, 1/3, and 1/6.8

Distribution of Assets among the Shares and Residuaries-

8
(Carroll, 1983)
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After the payment of the funeral expenses, debts and legacies (in case the deceased had left a will), the next
step is to distribute the estate of the deceased among the heirs. Among the heirs the shares are to be given the
shares first, and then the residue is to be distributed among the estate. In the absence of both the shares and
the residuaries, the estate devolves on the distant kindreds. In their absence, the estate goes to the State. Now
we will understand the whole concept with the help of various examples.

Husband and Wife-

If a Muslim male dies leaving behind widow and children, them the widow will tale 1/8, and the residue (i.e.
7/8) goes to the children. If a man dies leaving behind a widow and no child, then widow takes ¼.

If a Muslim female dies leaving behind her husband and children, then the husband takes ¾ as a sharer and
the residue ¾ goes to the children. If she dies leaving behind no child, then the husband takes as a sharer.

Father and True Grandfather-

The father is always an heir. Under no circumstances can he be excluded from inheritance. The true
grandfather always excludes a remoter grandfather. The position as an heir may be discussed under the
following circumstances:

Whether the deceased had left children, the father takes 5/6 share. Thus, when P dies leaving behind his
father and in his leaving behind a mother and a father, the mother takes 1/3 as a sharer, father may take in
dual capacity, as a sharer and as a residuary. 9 Thus daughter takes as a sharer, the father takes 11/6 as a
sharer and the father will take 1/6+1/3=1/2. In this situation the position of the grandfather (in the absence of
the father) will be the same, since he is substitute for the father.

After seeing lots of illustrations we can understand that the Muslim Law of succession and inheritance is
quite complex. In Muslim Law as well we have different schools which different ways in which the right of
succession took place.

Comparative Analysis in Law of Inheritance between Shia and Sunni Law in Islam-

Sunni and Shia laws of inheritance are different in their foundational structure as well as detailed
implications, though the both are inspired from the Quranic verses of inheritance. Owing to the fact that
Sunnis are in majority in India, their law of inheritance is relatively well appreciated by lawyers and students
of law, while Shia law of inheritance does not have such an advantage. Sunni and Shia laws of inheritance
are different in their foundational structure as well as detailed implications, though the both are inspired
from the Quranic verses of inheritance. These differences are so deep rooted that it is near impossible to

9
(Qureshi, 2012)
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bridge them. It does not mean that there is no space which is characterized by similarity. We will analyse
these laws from the various parameters.10
1) Inheritance of Spouses:

There are a few differences between Sunni and Shia laws regarding inheritance of spouses. Some Shia
schools recognise temporary marriage as a valid marriage. According these schools, only permanently
married spouses are entitled to right of inheritance from each other. There is one important distinction
between Shia and Sunni laws regarding the inheritance of childless widow. In the former law, she is not
entitled to land or immovable property though she has a right to her prescribed share from her deceased
husband’s movable assets. On the other hand, Sunni law does not differentiate between immovable and
movable properties of a deceased; hence, a childless widow is entitled to have her share from the both. In
Sunni law, spouses do not benefit under the principle of Radd/return in the first place, i.e. in presence of
other sharers. The same is the rule under Shia law. For instance, if a person dies leaving behind his wife and
a daughter, the wife will inherit 1/8, and 7/8 will be given to the daughter.

2) Principle of Representation:

According to Sunni law, all grandsons will inherit from the estate of their grandparent as per capita: which
implies that it will not be taken into account how many out of those grandsons have descended from a
particular predeceased heir. So, each grandson will inherit 1/3 of the estate as if they are individually entitled
to inheritance. According to Shia law, the distribution is carried out per stripes (as per stocks): which implies
that each son would have his individual share had he been alive which will be further divided to his legal
heirs. So, the descendants of predeceased sons are not regarded as individually qualified legal heirs; they
merely represent their parents11. They will only have what their parents would have inherited had they been
alive. In the above example, two grandsons are linked to the deceased grandparent by the same father, so
their share will be half than that of the third grandson as he is the only heir of his father whom he represents.

3) Rule of Radd/Return:

When an entire estate of a Shia Muslim is not consumed by his/her heirs and something is left out of it, the
rule of Radd/return is applied as is done in Sunni law. The application of Radd is more frequent in Shia law
because it accords less significance to Ausbaat/residuaries as compared to Sunni law. In Sunni law an
exhaustive list of the residuaries reduces the occurrences of application of Radd 12. Whenever there is residue
of an estate of a deceased Sunni Muslim that will be given to any eligible residuary irrespective of the fact
how remotely he is related to the deceased. While such an exhaustive list is not available in Shia law and

10
(Sharma, 2008)
11
(Mahmood, 2012 )
12
(Desai, 2010)
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even those who are regarded as the residuaries they cannot operate beyond the sphere of their own basic
class.

Conclusion-

As we can easily conclude that Law of Succession is very vast topic in Islamic law as such. However
somewhere we can see that their applicability is limited. Nowadays, if we want to avoid the application of
secular laws, Muslim law should be broad based and the provisions of all accepted schools of fiqh are taken
into consideration. The Prophet said: "Diversity of opinion among my people is a mercy from God."' This
tradition has a significant implication on the flexibility of Islamic legal system. In line with this, it is
believed that with the compulsory application of the Islamic law of Inheritance and the restriction that law
imposes on the exclusion of remote relatives, it is justified to make a P revision on obligatory Will to fulfil
the right of the grandchildren debarred from receiving the share of their predeceased parent after the
testator's death. In the so-called doctrine of representation, we can see that the application is causing final
subversion to the Islamic law because it upsets the scheme of which has been held unalterable and sacrosanct
by the Muslim jurists. of this principle will not be reformed within the bounds of the strict rules of law, time
may come, that it should be applied with other non-heirs cases This doctrine has been regarded by some
Muslim authors as an extradoctrinal reform which goes beyond the limits of Islamic juristic opinion.

Bibliography
A.E.G Carapiet v. A.Y. Derderian (Calcutta High Court December 1961).

Bhartiya, V. (2009). Syed Khalid Rashid's Muslim Law. Indore: Eastern Book Company.

Carroll, L. (1983). The Hanafi Law of Intestate Succession: A Simplified Approach. Cambridge University
Press, 629-670.

Das, P. (2015). Handbook on Hindu Succession property, Right of women and Daughters. New Delhi:
Universal Law Publications .

Desai, S. A. ( 2010). Mulla Hindu Law. New Delhi: Lexis Nexis.

Diwan, D. P. (2011). Muslim Law in Modern India. Chandigarh: Alllahbad Law Agency.

Diwan, P. (2013). Law of Intestate and Testamentary Succession. Chandigarh: Universal Law Publications.

Mahmood, D. T. (2012 ). Introduction to Muslim Law . New Delhi: Universal Law publication.

Qureshi, D. M. ( 2012). Muslim Law . New Delhi: Central law agnecy.

Saxena, D. P. (2019). Family Law II. New Delhi: Lexis Nexis.

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Sharma, P. (2008). LAW OF INTESTATE & TESTAMENTARY SUCCESSION. Journal of the Indian
Law Institute, 255-260.

Tagoranao, D. M. (2012). PROBLEMS AND ISSUES ON THE RIGHT OFA PERSON TO PROBLEMS
AND ISSUES ON THE RIGHT OFA PERSON TO. Syoriah and Law Discourse, 75-86.