From Tunisia to India, Muslim Women Demand Equal Inheritance Rights
A Muslim
Woman From Kerala, India, Challenges Muslim Personal Law On Inheritance In The High
Court.
Main
Points:
1. Bushra Ali
says to the court that the Shariat discriminates against female child and it
violates Article 15 of the Indian Constitution.
2. An NGO
called NISA is going to stage a hunger strike against the state government.
3. The state
government of Kerala has defended Muslim Personal Law.
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By
New Age Islam Staff Writer
20 January
2023
For the
last few years, Muslim women of India have become vocal about their rights.
They campaigned against the Triple Talaq and succeeded in getting it abolished.
Now, they want equal inheritance rights. The Quran has clearly defined
inheritance rights of men and women but the women say that what they are
demanding does not go against the Quran. The Quran was dealing with a tribal
society of the 7th century in which the women did not have even the right to
live, leave alone inheritance rights. Only the sons and brothers had
inheritance rights. Girls were buried alive. So the Quran first gave them
inheritance rights that was revolutionary step according to the standards of
the period. The verses that define inheritance rights are as follows:
"And
We have appointed heirs to what has been left by parents and next of kin. As
for those you have made a pledge to, give them their share. Surely Allah is
witness over all things."(Al Nisa: 33)
"They
ask you for a ruling, O prophet, say, 'Allah gives you a ruling regarding those
who die without children or parents. "If a man dies childless and leaves
behind a sister, she will inherit in half of his estate whereas her brother
will inherit all her estate if she dies childless. If this person leaves behind
two sisters, they together will inherit two thirds of the estate. But if the
deceased leaves male and female siblings, a male's share will be equal to that
of two females."(Al
Nisa: 176)
"Allah
commands you regarding your children: the share of the male will be twice that
of the female. If you leave only two or more females, their share is two thirds
of the estate. But if there is only one female, her share will be one half.
Each parent is entitled to one-sixth if you leave offspring. But if you are
childless, and your parents are the only heirs, then your mother will receive
one third. But if you have siblings, then your mother will receive one-sixth
after the fulfilment of bequests and debts. Be fair to your parents and
children as you do not fully know who is more beneficial to you. This is an
obligation from Allah. Surely, Allah is All- knowing All- Wise. "(Al Nisa: 11-12)
Bushra Ali
and her comrades say that the Quran only set a precedent and the society needs
to move forward and give equal rights to women. They say that the Quran does
not forbid men from giving more to their daughters. What the Quran has fixed is
the minimum that should be given to the daughters and sisters.
They hold
the inheritance laws of Tunisia as an example. The Tunisian example passed
inheritance laws that give equal inheritance rights to women. But the Kerala
government does not want to antagonise the Muslim clergy. Therefore, a new
confrontation between the clergy and the women's organisations of Kerala will
put the Muslim Personal Law Board in the dock.
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By
Feroze Mithiborwala
19 January
2023
“As per
Shariat, female children are discriminated against as against male children,
i.e. the share a female inherits is only half of what a male child inherits.
This is a clear violation of Article 15 of the Constitution of India. The Sharia
law applicable to the extent of not giving equal share to a female compared to
a male is void by virtue of Article 13 of the Indian Constitution”.
The above
statement is at the very core of a path-breaking petition filed by a Muslim
woman, Bushra Ali, in the Kerala High Court. The plea was admitted by Justice
VG Arun and he in turn has directed the counsel for the Central and State
governments to give their opinions and clarify their positions on the matter.
Bushra Ali has further challenged the provisions of the Muslim Personal Law
(Shariat) Application Act, 1937 and the Muslim Personal Law (Shariat)
Application (Kerala Amendment Act), 1963 (1963 State Act) on the premise that
they clearly discriminate between male and female intestate successors. Bushra Ali
further stated that the above Acts were also in violation of Articles 13 and 15
of the Constitution of India.
These are
very interesting times for the cause of Gender Justice, especially in context
of the growing assertion of Muslim women and progressive men, both who seek
justice as equal citizens under the rights bequeathed upon them by the
Constitution of India, as well as those aspects of the Quran that too affirm
the principles of justice and equity.
At the
onset itself, let it be stated that Islam was the first religion to empower
women by recognising them as independent legal entities entitled to inheritance
and property rights. This was 1500 years ago, when women were merely chattel or
far worse. Thus the Quranic ideal was directed towards justice and equity. It
was in that period that women were granted inheritance rights, but only half
that of their male counterparts, yet it was a major step ahead for women, for
human society. But now that Quranic principle and reasoning needs to move
towards its logical conclusion and thus grant women equal inheritance rights
alongside their male siblings and counterparts. This is essentially the demand
of the Muslim women and men leading the struggle for reforms within the Muslim
community, based on the principles of gender justice and equity.
Thus as
Noorjehan Safia Niyaz, the founder and national convener of the Bharatiya
Muslim Mahila Andolan, that is spearheading the cause of Muslim women states -
“We in fact take the Quranic verses on Islamic inheritance as the beginning of
Islam’s recognition of women as human beings capable of owning and managing her
own property, as well as receiving it in inheritance as an equal human being.
In order to give equal inheritance rights to their sons and daughters, Islamic
jurisprudence too has shown the way, wherein the parents can make a gift deed
(Hiba) to give equal shares to the siblings. Another way of equalising shares
is to incorporate the same in the Will, where the shares can be equalised by
the ‘1/3rd will’ provision. The Quran has never forbidden the parents from
giving more to their daughters than is prescribed. In fact the Quran ensures
the minimum that a daughter should be given, more too can certainly be given”.
This is
true in many ways, as this author too is aware of certain Muslim parents who
have given equal shares in their property and inheritance rights to their
daughters and sons. But then this becomes a matter of personal choice, where
what we truly require is a change in the laws, a matter of reforms within
Muslim Personal Law itself.
Here
Tunisia stands out as a beacon of hope for the Muslim/Islamic societies and
nations. Tunisia has undertaken path-breaking reforms, to grant equal
inheritance rights to both women and men. The ‘Equal Inheritance Shares Bill’
was finally cleared by the Cabinet in December 2018. The secular government of
President Beji Caid Essebi is spearheading the cause of women’s empowerment and
has made great strides in this direction. “I propose equality inheritance to
become law,” said the President. “The state is obliged to achieve full equality
between women and men and to ensure equal opportunities for all
responsibilities,” stated Essebi in 2014 whilst enacting the new constitution.
Essebi further went on to say that he hopes that Tunisia will reach “total, actual
equality between men and women citizens in a progressive way”. Tunisia is also
the only Muslim country which grants Muslim women the right to marry non-Muslim
men, without the men having to convert to Islam. Thus now Tunisian women are on
par with Tunisian men who could marry non-Muslim women without them having to
convert to Islam.
This has
not been without creating controversy across the Muslim world, but the Tunisian
government has persisted. In fact it has drawn support from Saad al-Deen
al-Hilali, a professor of comparative jurisprudence at al-Azhar University, who
issued a fatwa, a religious edict, in support of the reforms being undertaken
by the Tunisian government. Al-Hilali went on to say that he supports the
decision by Tunisia to provide equal inheritance rights to men and women and
that is “jurisprudentially correct and it does not contradict with God’s
words”. He further went on to say that “inheritance is a matter of rights and
not duties like fasting and praying,” adding that in terms of rights, “people
have the right to deal with them”. Al-Hilali further stated over time that,
jurist’s religious edicts change with the development of his knowledge and
intellect and that “we will reach where Tunisia has reached 20 years from now”.
Al-Hilali’s progressive position faced opposition and criticism from the
Al-Azhar University itself, who disowned his statements. Opposition to these
reforms have also come from the Islamist Ennahda Party. Mona Ibrahim, the
deputy leader stated that the reforms in matters of inheritance “goes to the
heart of the Islamic religion and touches at the very identity of Tunisian
society”.
Thus simple
reforms and solutions are present. But then is the Indian Muslim/Islamic
conservative right-wing debating or seeking these solutions and reforms, or
then is it on the war path yet again? And that is the moot point here.
Thus we
turn our attention back to Kerala which is in the eye of the emerging storm.
After the aforementioned case for equal inheritance rights for Muslim women was
filed in the Kerala High Court, the socio-political situation is witnessing
great churning. The conservative Muslim organisations are opposing this reform,
as a violation of the Quranic principles of inheritance, as well as the Muslim
Personal Law and the Constitutional safeguards thereof. Progressive Muslim
organisations like the Khuran Sunnath Society, which has been spearheading a
campaign for reforms of the Islamic laws, as well as NISA, a progressive
women’s organisation, led by VP Zuhra, too have entered the fray.
More
worryingly the Left-Front government of Kerala has decided to support the
conservative Muslim position, thus maintaining the status quo on the
inheritance issue. Reports state that the Left-Front government led by CM
Pinarayi Vijayan is set to file an affidavit in the Supreme Court that all the
branches of the law linked to the Muslim Personal Law, including the law of
inheritance are in accordance with the provisions of the Constitution of India.
The
position of the Left-Front government has the potential to create another ‘Shah
Bano Moment’ in Indian politics, which in turn will only help the Hindu
right-wing to surge ahead & further polarise Indian society and polity
along communal lines. The Hindu right-wing has already begun to call out the
hypocrisy and the double standards of the Left vis-à-vis the conservative Hindu
& Muslim right-wing.
Both the
progressive Muslim organisations, namely the Khuran Sunnath Society and NISA
have decided to go to the people and launch a major campaign which will include
a signature drive. In fact VP Zuhra, the leader of NISA has threatened to
launch an indefinite hunger strike outside the Kerala Secretariat if the
Left-Front Government does not withdraw the affidavit.
This is a
time of great churning for the Indian Muslim community considering the odds
that we face. Yet the time for progressive gender just reforms is long overdue.
Since the conservative clergy and the intellectuals have utterly failed to
undertake the responsibility for progressive reforms, ordinary Muslim women
have gone to the Courts and have appealed to the Judiciary and the Parliament
for justice and equitable laws. Presently cases challenging Polygamy, demanding
Equal Inheritance Rights, end to Halala & Female Circumcision, Entry for
women to pray in Mosques, Protection of Child Marriages Act -2006, to be
unambiguously applicable to Muslims to prevent underage marriage, as well other
cases relating to Muslim Personal Law are all being fought for in the Courts.
URL: https://newageislam.com/islam-women-feminism/tunisia-india-muslim-inheritance-rights/d/128923
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