Testamentary Succession Under Muslim Law: Challenging Traditional Limits

By A. Faizur Rahman, New Age Islam

28 June 2026

On 16 April 2026, a Bench of the Supreme Court of India headed by Chief Justice Surya Kant issued notice to the Union Government on a petition filed by Poulomi Pavini Shukla challenging certain provisions governing Muslim inheritance and succession. The petition contends that the application of the Muslim Personal Law (Shariat) Application Act, 1937, in matters of inheritance and testamentary succession discriminates against Muslim women and violates the constitutional guarantees of equality, non-discrimination, and personal liberty.

The petition inter alia seeks a declaration that the rules of Muslim personal law relating to inheritance and succession are subject to constitutional scrutiny and cannot be insulated from review on the ground that they constitute Essential Religious Practices. It further challenges the exclusion of Muslims from the framework of the Indian Succession Act, 1925, as arbitrary and discriminatory. Pending legislative reform, the petitioner seeks directions securing equal inheritance rights for Muslim women, full testamentary freedom for Muslims, and the application of a gender-equal framework of succession consistent with constitutional principles.[1]

This is not the first time such a challenge has reached the Supreme Court. In 2016, the Khuran Sunnath Society, a Kerala-based NGO, approached the apex court after the Kerala High Court had ruled against the society’s petition the previous year stating that reform of personal laws falls within the domain of the legislature rather than the judiciary. [2]

The Society, much like Poulomi Pavini Shukla in 2026, argued that the inheritance rules under Muslim personal law are incompatible with the constitutional guarantees of equality, non-discrimination, and personal liberty embodied in Articles 14, 15, and 21 of the Constitution of India.

The case against the prevailing Muslim law of inheritance has been reinforced by the public positions adopted by several influential Muslim clerics. In December 2022, religious leaders objected to a gender-neutral oath introduced by the Kudumbashree Mission, an all-women network operating under the Kerala Government. [3] The Mission, a poverty eradication and women-empowerment programme implemented by the State Poverty Eradication Mission (SPEM), proposed an oath affirming equal treatment of sons and daughters. It began with the declaration that “whether it is a son or a daughter, we will celebrate their birth” and concluded with the pledge: “We will give equal rights to properties for both sons and daughters. We will support the weak and orphaned.”

The oath was opposed by Nasar Faizi Koodathayi of the Samastha Kerala Jam-Iyyathul Qutba Committee, as well as leaders associated with Jamaat-e-Islami and Kerala Nadvathul Mujahideen. They maintained that Islam does not recognise equal inheritance rights for men and women.

A few months earlier, in August 2022, Kerala Nadvathul Mujahideen (Markazudawa) had urged the State Government not to support demands for amending the Sharia-based inheritance rules to provide equal shares for women. In a memorandum submitted to the Chief Minister, its General Secretary, C. P. Umar Sullami, asserted that no such demand had emerged from within the Muslim community. [4]

Yet such demands were, in fact, becoming increasingly visible. In December 2022, a coalition of progressive women and social organisations launched the Forum for Muslim Women Gender Justice in Kerala. The movement sought to mobilise public opinion against gender discrimination in Muslim Personal Law and to challenge the State Government's reported willingness to retain what it regarded as the gender-biased aspects of Sharia, particularly in matters of inheritance. [5]

In March 2023, the Forum organised a state-level conference in Kozhikode under the title Uyirppu (“Revival” in Malayalam). Among the issues discussed were the discriminatory features of Muslim inheritance law and the denial of equal divorce rights to Muslim women.

One of the participants who shared her experience at the conference was Rubiya Sainudheen. As the sole child of a father who died intestate, she expected to inherit his entire estate. Under Muslim Personal Law, however, she was entitled to only half of the estate, while the remainder devolved upon her father's brothers. Had the sole child been a son, he would have inherited the entire property. Rubiya argued that this differential treatment enabled relatives who had shown little concern for her welfare to claim a substantial portion of her father's assets solely on the basis of their gender.[6]

Similar concerns motivated actor-lawyer C. Shukoor and his wife, Sheena Shukoor, to register their marriage under the Special Marriage Act, 1954, in April 2023 at a sub-registrar's office in Kasaragod district. Shukoor explained that he chose to opt out of Muslim Personal Law to ensure that his three daughters would not lose part of their inheritance to his brothers. Under the applicable inheritance rules, his daughters would collectively receive only two-thirds of his estate, with the remaining share passing to other male relatives. Consequently, each daughter would inherit only about 22 per cent of the property, a result that Shukoor regarded as fundamentally unjust. [7]

The Quran on inheritance

The aforementioned developments – ranging from constitutional challenges before the Supreme Court to growing public debate within sections of the Muslim community – make it imperative to examine the Muslim law of inheritance from a Quranic perspective. Such an inquiry is particularly necessary because the existing rules are frequently justified as direct expressions of divine command and are therefore often portrayed as being beyond criticism or reform.

A careful study of the Quran is essential to determine whether the gender-based distinctions found in the prevailing law of inheritance are indeed mandated by the sacred text or whether they arise from later juristic interpretations and socio-historical circumstances.

For a book that presents itself as guidance for humanity, the Quran's law of inheritance is remarkably intricate. And no aspect of that law has generated more controversy than the shares allotted to women. However, without going into the complexity of the law itself, it can be easily verified if gender bias is inherent in these allotments.

A close reading of the two principal inheritance verses (4:11–12) suggests that the apparent disparity between the shares assigned to men and women is not rooted in gender as such, but in the social and economic responsibilities associated with men and women in the familial structure of seventh-century Arabia.

The often-cited example is the Quranic injunction that a son shall receive a portion equal to that of two daughters (4:11&12). However, the same verses also stipulate that when the deceased leaves children, “for parents, a sixth share of the inheritance to each”, and “If a man or woman leaves property to be inherited but has no surviving parents or children, and leaves only a brother or a sister, each of them receives one-sixth.” In these two cases, the parents and the brother and the sister receive identical shares. Had the Quran intended to establish a universal principle of male superiority in inheritance, one would expect the father's and brother’s share here also to be twice that of the mother and sister respectively. The fact that it is not indicates that gender alone is not the determining factor behind the allocation of shares.

The rationale behind the larger share assigned to sons becomes clearer when viewed through the lens of distributive justice, which concerns the dispersion of economic benefits among members in a given society in relation to the burdens placed on them.

This was the approach adopted by the philosopher-poet Muhammad Iqbal in The Reconstruction of Religious Thought in Islam. According to Iqbal, the daughter's share is determined not by “any inferiority inherent in her” but by “the place she occupies in the social structure.” He observed that a woman retains full ownership of the property she inherits and of the wealth she receives at marriage, while the obligation to provide for her maintenance throughout life rests upon her husband.

If the working of the rule of inheritance is judged from this point of view, argued Iqbal, “you will find that there is no material difference between the economic position of sons and daughters, and it is really by this apparent inequality of their legal shares that the law secures the equality” sought by advocates of justice. In other words, the differential allocation of inheritance was intended to balance unequal economic responsibilities rather than to privilege one gender over the other.

The Difference Principle

Iqbal's reasoning bears a notable resemblance to what the political philosopher John Rawls later described as the Difference Principle. In A Theory of Justice and Political Liberalism, Rawls argued that a just society need not eliminate all social and economic inequalities. Inequalities may be justified, he maintained, provided they are arranged so as to produce the greatest benefit for the least advantaged members of society. Justice, from this perspective, does not require strict equality of outcomes; rather, it requires that departures from equality improve the position of those who would otherwise be worst off.

Viewed through a Rawlsian lens, the Quranic rule assigning sons a larger share of inheritance than daughters need not be judged solely by comparing the numerical shares allotted to each. The more pertinent question is whether the unequal allocation forms part of a broader institutional arrangement that advances the welfare of those occupying a less advantageous social position.

Prior to Islam, women in Arabia often lacked economic security and were frequently excluded from inheritance altogether. The Quran sought to transform this condition by recognising women as independent legal persons, granting them a guaranteed share in inheritance, affirming their right to own, inherit, manage, and dispose of property, and imposing upon men legally enforceable obligations of financial maintenance. A woman's property remained exclusively her own; she was under no obligation to spend her inherited wealth, marriage gift (mahr), earnings, or other assets on the maintenance of the family.

The significance of these reforms becomes even clearer when viewed against developments in other legal traditions. Under the doctrine of coverture, which remained a feature of English common law for centuries and was inherited by many jurisdictions in the United States, a married woman's legal identity was largely subsumed under that of her husband. As a consequence, her ability to own and control property, enter into contracts, or retain independent rights over her earnings was severely restricted. Although these disabilities were gradually removed through nineteenth-century legislative reforms, the contrast highlights the extent to which the Quran had recognised women's proprietary rights many centuries earlier.

Against this backdrop, the larger share allotted to sons appears less as a gender privilege than as a corollary of the greater economic burdens that the Quran simultaneously imposed upon men. The justice of the arrangement, therefore, depends not on the numerical distribution of shares alone but on the overall balance of rights and responsibilities that the Quran sought to establish. The inheritance provisions must therefore be understood as part of a broader system designed to secure women's economic interests without burdening them with the primary responsibility for family maintenance, a responsibility that the Quran simultaneously assigned to men.

The philosopher G. A. Cohen, however, refined Rawls's Difference Principle by subjecting it to a more exacting egalitarian scrutiny. Cohen questioned whether inequalities should be justified merely because they produce beneficial outcomes. In his view, genuine egalitarianism requires a stronger commitment to equality than Rawls's theory appears to demand. He was particularly sceptical of inequalities that arise because some individuals are unwilling to contribute their talents unless offered greater rewards. For Cohen, the burden of justification rests heavily upon those who defend unequal distributions.

Yet Cohen did not reject all inequalities. He refined the Difference Principle in a manner that would permit only what may be termed “non-harming inequalities” – inequalities that do not worsen the condition of those who are already disadvantaged. He even entertained a more generous formulation that would allow inequalities that “do not help but also do not hurt the worst off.” The decisive question, therefore, is not whether an inequality exists, but whether it leaves the least advantaged in a materially inferior position.

When examined from the perspectives of both Rawls and Cohen, the Quranic inheritance provisions can plausibly be viewed, in the context of seventh-century Arabia, as satisfying their respective standards of distributive justice. The daughter receives a smaller inheritance share than the son, but she simultaneously enjoys rights and protections that significantly alter the overall economic balance. She retains full ownership of the property she inherits, exercises exclusive control over her marriage gift (mahr), and bears no legal obligation to spend her wealth on the maintenance of the family. The son, by contrast, receives a larger share while also assuming primary responsibility for the financial support of his wife, children, and, where necessary, other dependents. The unequal distribution of inheritance is thus accompanied by an unequal distribution of economic burdens.

From a Rawlsian perspective, such an arrangement may be justified if it forms part of a broader framework that advances the welfare of those occupying a less advantaged social position. The Quranic legislation emerged in a society in which women were frequently denied inheritance and lacked independent economic rights. The Quran sought to transform this condition by guaranteeing women a share in inheritance, recognising their independent ownership of property, and imposing enforceable maintenance obligations upon men. The resulting inequality in inheritance shares can therefore be understood not as a preference for men but as a mechanism designed to secure the economic well-being of women within the social realities of the time.

The same arrangement may also satisfy Cohen's more demanding criterion. The larger share allotted to sons was not intended to enrich men at the expense of women or to establish a hierarchy of worth between the sexes. Rather, it was linked to a corresponding increase in financial responsibility. Since women retained ownership of their inherited wealth while remaining entitled to maintenance from male relatives, the unequal division of shares did not necessarily place them in a worse material position. On the contrary, the arrangement sought to ensure that women benefited both from inheritance rights and from legally enforceable claims to financial support. In Cohen's terms, the inequality may therefore be regarded as a non-harming inequality – one that neither exploits nor disadvantages those whom the law seeks to protect.

Thus, although Rawls and Cohen approached distributive justice from different directions, both would insist that the justice of a social arrangement cannot be determined solely by comparing the quantities distributed to different individuals. Rather, it must be assessed in light of the overall distribution of rights, obligations, and economic security. The crucial issue is not whether sons receive more than daughters, but whether the system as a whole succeeds in protecting and advancing the interests of women. Viewed in that broader context, the Quranic inheritance provisions for sons and daughters can plausibly be understood as an attempt to balance benefits and responsibilities in a manner consistent with the underlying concerns of both Rawlsian and Cohenite theories of justice.

Status of women before Islam

To appreciate the rationale behind the Quranic rules of inheritance, it is necessary to understand the status of women in Arabia before the advent of Islam. Women were often denied basic rights and social dignity, and in some tribes the devaluation of female life had reached such an extreme that the burial of infant girls was regarded as an acceptable practice. The Quran vividly captures this mindset:

“When the good news of the birth of a daughter (bush’shira ahaduhum bil unsa) is brought to any of them, his face darkens with suppressed anger. He hides from people because of the [imagined] evil of that which is announced to him. Should he keep the child with disgrace or bury it alive? Surely evil is what they decide.” (16:58-59)

The Prophet addressed this barbaric misogyny head-on by encouraging Muslims to bring up as many daughters as possible. He said:

“Whoever has three daughters and is patient towards them, feeds and clothes them from his wealth; they will be a shield for him from the Fire on the Day of Resurrection.” – Sunan Ibn Ma’jah, URL: https://sunnah.com/ibnmajah:3669

In another tradition, the Prophet linked salvation to the dignified treatment of daughters:

“If anyone has a female child and does not bury her alive, or slight her, or prefer his male children over her (lam yusir waladahu alaiha - qaala ya’ni az’zukoora), Allah will bring him into Paradise.” – Sunan Abu Dawud, URL: https://sunnah.com/abudawud:5146

Particularly noteworthy is the Prophet's condemnation of preferring sons over daughters. At a time when female children were routinely viewed as inferior, he presented equal treatment of daughters not merely as a social virtue but as an Islamic obligation. Intriguingly, Muslim theologians classify this hadith as weak (za'if), even though its message perfectly reflects the Quranic worldview.

Nonetheless, as noted earlier, these reforms fundamentally altered the status of women in Arabian society. It is against this backdrop that the Quranic division of 2:1 in favour of sons must be understood.

Restricted application of Quranic shares

Notwithstanding the fact that the Quranic rule assigning sons a share equal to that of two daughters was not intended as an expression of gender preference or female subordination, it is important to note that the rule does not apply to the entirety of an estate. This crucial qualification is rarely acknowledged in traditional Muslim discussions of inheritance.

Verses 4:11-12 expressly confine the prescribed shares to the residue of the estate remaining after the fulfilment of any bequests and the settlement of outstanding debts (min baʿdi waṣeeyyatin yuṣaa bihaa aw dainin). The oft-cited 2:1 ratio therefore applies only to the net estate available for distribution and not to the deceased's entire property. It is only in cases where a person dies intestate and free from debt that the whole estate becomes subject to the Quranic inheritance shares. The aforementioned illustrate this principle with remarkable clarity:

"Allah instructs you (yuseekumul’laahu) concerning your children (aulaadikum): a male is entitled to a share equal to that of two females. If there are only daughters, two or more, they shall share two-thirds of the estate. If there is only one daughter, her share is half. For the parents, each is entitled to one-sixth of the estate if the deceased left children. If there are no children and the parents are the sole heirs, the mother receives one-third. But if the deceased left siblings, the mother's share is one-sixth. These distributions apply after the payment of any bequests or debts (mim ba’di waseeyatin yusee bihaa au-dainin). You do not know which of them – your parents or your children – are of greater benefit to you. This is a law ordained by Allah (fareezatan minallaah); indeed, Allah is All-Knowing and All-Wise." (4:11)

"You inherit half of what your wives leave behind if they have no children. But if they leave children, your share is one-fourth of what they leave, after the payment of any bequests or debts (mim ba’di waseeyatin yuseena biha au-dainin). Your wives are entitled to one-fourth of what you leave behind if you have no children. But if you leave children, their share is one-eighth of what you leave, after the payment of any bequests or debts (mim ba’di waseeyatin tusoona biha au-dainin). If a man or woman leaves property to be inherited but has no surviving parents or children, and leaves only a brother or a sister, each of them receives one-sixth. If there are more than two siblings, they shall share equally in one-third of the estate. This distribution takes place after the payment of any bequests or debts (mim ba’di waseeyatin yusaa biha au-dainin), without causing harm to anyone (ghaira muzarrin). This is a commandment ordained by Allah (waseeyatam minallaah), and Allah is All-Knowing and Forbearing." (4:12)

In these two verses, the mandatory clause “after the payment of any bequests or debts” (highlighted in bold) appears no fewer than four times, underscoring the fact that the Quranic shares come into operation only after the deceased's debts, if any, have been discharged and valid bequests have been honoured. The prescribed percentages therefore apply not to the entire estate but only to the residue that remains after these prior obligations have been satisfied. Significantly, the Quran describes the instructions contained in verses 4:11–12 as a fareezah (ordained obligation) and a waṣeeyah (binding directive) from Allah. The repeated emphasis on the prior settlement of debts and fulfilment of bequests makes it clear that the prescribed shares are to be calculated only from the net estate remaining thereafter, and not from the deceased's entire property.

Importance of Will

Another important principle that emerges from verses 4:11-12 is the necessity of making a will. The repeated reference to the fulfilment of bequests before the distribution of inheritance presupposes that individuals are expected to record their wishes regarding the disposition of a portion of their estate. The Quranic inheritance scheme therefore treats testamentary planning not merely as a matter of property distribution but as an ethical obligation aimed at ensuring that wealth passes to the appropriate beneficiaries in a fair, responsible, and orderly manner.

Indeed, the Quran (2:180) goes beyond merely permitting testamentary dispositions and elevates the writing of a will “with due fairness” (bil maʿroof) to the status of a religious duty, describing it as “a binding obligation upon the righteous” (ḥaqqan alal muttaqeen). This obligation may be dispensed with only where a person has no property to bequeath. The importance of recording one's testamentary wishes is further reinforced in 5:106, indicating that every believer possessing transferable wealth is expected to make a will and ensure its proper execution.

The Prophet likewise underscored the importance of making a will, stating that it is “the duty of a Muslim who has something which is to be given as a bequest not to keep it for two nights without having his will written down regarding it” – Muslim, Kitab al Waṣeeyah URL: https://sunnah.com/muslim:1627a

No limitation on will

Importantly, the Quran does not impose any one-third ceiling on testamentary bequests (waseeyat). Under the Quranic framework, individuals enjoy full ownership of their property during their lifetime and retain the freedom to determine, through a written will, how their wealth should be distributed after their death, subject only to the overarching requirement of fairness (bil maʿroof). This enables them to make equitable provisions for their lineal descendants and ascendants including sons and daughters, grandchildren, parents, and other relatives in accordance with their particular family circumstances.

Indeed, verse 2:180 not only permits but mandates the making of a will in favour of legal heirs, especially parents and near relatives (waṣeeyatu lil waalidaini wal aqrabeen), describing it as an obligation incumbent upon believers (kutiba alaikum).

This categorical Quranic ruling raises serious questions regarding the well-known hadith attributed to the Prophet:

“Allah has given every rightful person his due rights (innallaaha qad a’ṭaa kulla zee ḥaqqin ḥaqqahu), and therefore, there is no bequest for an heir (laa waseeyata liwaaris).” – Sunan Ibn Maajah, Kitab al-Wasaaya URL: https://sunnah.com/ibnmajah:2714

The hadith effectively prevents a Muslim from making a bequest in favour of a legal heir and has been used by classical jurists to curtail testamentary freedom. On the contrary, the language of 2:180 expressly identifies parents and close relatives – the very people who ordinarily qualify as heirs – as the beneficiaries of a will. The hadith therefore tries to totally negate the Quran.

The authenticity of this report may be questioned on at least two grounds. First, it is difficult to reconcile the hadith with the Quran's explicit instruction regarding bequests. The Prophet's role was to communicate, explain, and implement the Quran, not to nullify its clear directives. A report that effectively deprives believers of a right expressly recognised by the Quran invites careful scrutiny, particularly when it appears to conflict with the text of the scripture itself.

Second, the wording of the hadith seems to blur the distinction between testamentary succession and intestate succession, a distinction that the Quran carefully maintains. Verses 4:11–12 repeatedly emphasise that the prescribed inheritance shares come into operation only “after the payment of any bequests or debts” (min baʿdi waṣeeyatin yuṣaa bihaa aw dainin). The repetition of this qualification no fewer than four times indicates that the Quran envisages two distinct stages in the transmission of wealth: first, the fulfilment of the deceased's testamentary wishes and financial obligations; and only thereafter, the distribution of the remaining estate according to the prescribed shares. To prohibit bequests in favour of heirs would significantly diminish the practical scope of a right that the Quran appears to regard as fundamental.

Muslim jurists must recognise that the Quranic inheritance shares were intended to operate as default rules governing the residue of an estate where a person's testamentary arrangements did not exhaust the available property. Under this reading, the Quran preserves both testamentary freedom and intestate succession, allowing each to function within its own sphere. Therefore, the hadith “laa waṣeeyata liwaaris,” (there is no bequest for a legal heir) will have to be set aside as it negates the Quran's express authorisation – and indeed obligation – of bequests in favour of parents and near relatives who may also be legal heirs. Where a hadith conflicts with a clear Quranic ruling, it is the hadith that must yield.

The Quranic obligation to make a will, coupled with the absence of any Quranic restriction limiting bequests to one-third of an estate or prohibiting bequests in favour of legal heirs, appears to have been designed to enable Muslims to distribute their property equitably among their children and other close relatives in light of their particular circumstances. This testamentary freedom, in other words, is the Quranic rule; the 2:1 ratio in favour of sons is the exception.

Undermining the Quran

Yet the Muslim personal law that prevails in India today substantially curtails the testamentary freedom granted by the Quran. It does so by restricting bequests to one-third of the estate and by treating the Quranic inheritance shares as governing virtually the entire estate after death. In the process, the specific Quranic rule assigning sons a share equal to that of two daughters has been generalised into a principle operating in favour of all male heirs. As a result, what the Quran appears to present as a residual mechanism of distribution has come to be treated as the primary rule of succession.

The principal basis for this restriction is an incident involving Saʿd ibn Abi Waqqaaṣ, a wealthy companion of the Prophet. According to one set of hadith reports, when Saʿd fell seriously ill, he sought the Prophet's permission to donate his entire estate to charity, having no heir other than a daughter. The Prophet refused. Saʿd then proposed successively smaller portions until the Prophet eventually permitted him to bequeath one-third of his wealth.

A different version of the same incident, recorded in Jaami al Tirmizi, presents a markedly different picture. There, it is the Prophet who asks Saʿd whether he has made a will. When Saʿd replies that he has bequeathed all of his wealth in the cause of Islam, leaving nothing for his children, the Prophet instructs him to limit the bequest to one-tenth of his property and leave the remainder for his heirs. Saʿd responds that his children are already financially secure (hum aghniyaaʾu) and continues to negotiate until the Prophet permits him to bequeath one-third of his estate.

In fact, the hadith literature contains several differing and, at times, contradictory versions of this episode. These variations raise important questions regarding the precise details of the incident and the legal conclusions that may legitimately be drawn from it. A closer examination of some of these reports demonstrates why they cannot be accepted uncritically as the basis for a general rule restricting testamentary freedom.

1.     Narrated Sa`d bin Abi Waqqaas: The Prophet came visiting me while I was (sick) in Mecca…I said, "O Allah's Messenger! May I will all my property (Yaa Rasoolallaah, ooṣi bi-maali kullihi)?" He said, "No." I said, "Then may I will half of it (fa’sh-shaṭru)?" He said, "No". I said, "One third (as-sulusu)?" He said: "Yes, one third, yet even one third is too much (fas-sulusu, wa’s-sulusu kaseerun). It is better for you to leave your inheritors wealthy than to leave them poor begging others, and whatever you spend for Allah's sake will be considered as a charitable deed even the handful of food you put in your wife's mouth. Allah may lengthen your age so that some people may benefit by you, and some others be harmed by you." At that time Sa`d had only one daughter. – Sahih Bukhari, Kitab al-Wasaaya URL: https://sunnah.com/bukhari:2742

2.     Amir b. Sa'd reported on the authority of his father (Sa'd b. Abi Waqqaas): Allah's Messenger visited me in my illness which brought me near death in the year of Hajjat-ul-Wada' (Farewell Pilgrimage). I said: Allah's Messenger, you can well see the pain with which I am afflicted and I am a man possessing wealth, and there is none to inherit me except one daughter (illa ibnatun). Shall I give two-thirds of my property in charity (afa-ataṣaddaqu bi-sulusay maali)? He said: No. I said: Shall I give half of it (afa-ataṣaddaqu bi-shaṭrihi)? He said: No. Give one-third, and one-third is too much (as-sulusu wa-as-sulusu kaseerun). To leave your heirs rich is better than to leave them poor, begging from people; that you would never incur an expense seeking therewith the pleasure of Allah, but you would be rewarded therefor, even for a morsel of food that you put in the mouth of your wife. – Sahih Muslim, Kitab al- Waseeyah URL: https://sunnah.com/muslim:1628a\

3.     Sa'd bin Malik said: "The Messenger of Allah came to visit me while I was sick. He said: 'Have you made a will?' I said: 'Yes.' He said: 'For how much?' I said: 'For all of my wealth, in the cause of Allah (bi-maali kullihi fi sabeeli llaah).' He said: 'What did you leave for your children?'" He (Sa'd) said: "They are rich and in good circumstances (hum aghniyaaʾu bi-khayr).' He said: 'Bequeath one-tenth (awṣi bil-ushr).'" He (Sa'd) said: "He continued decreasing it until he said (fa-maa ziltu unaaqiṣuhu ḥattaa qaala): 'Bequeath one-third, and one-third is too much (awṣi bis-sulus, wa’s-sulusu kaseerun).'" (One of the narrators) Abdur-Rahman said: "We considered it recommended that it be less than a third, since the Messenger of Allah said: 'And a third is too much.'" – Jami’ al-Tirmizi, Kitab al- Janaaiz URL: https://sunnah.com/tirmidhi:975

The most important point to note is that all three versions of the report concern Saʿd's desire to bequeath a substantial portion of his wealth to causes other than his immediate family. The issue under discussion is therefore not whether a person may make a bequest in favour of legal heirs, but whether he may dispose of so much of his estate through charitable donations that his dependants are left financially vulnerable. This is evident from the Prophet's repeated observation that “it is better for you to leave your heirs wealthy than to leave them poor begging others.” Far from prohibiting bequests in favour of legal heirs, the statement appears to encourage the writing a will in favour of them.

Equally significant are the substantial differences between the various narrations. In the first version, recorded in Sahih Bukhari, Saʿd himself initiates the discussion and seeks permission to bequeath his entire estate (ooṣi bi-maali kullihi). When permission is refused, he progressively reduces the amount from the whole estate to one-half (fa'sh-shaṭru) and finally to one-third (as-sulusu), which the Prophet describes as excessive (wa's-sulusu kaseerun). Although the report concludes by stating that Saʿd had only one daughter at the time, the conversation itself contains no reference to any heir.

The second version, recorded in Sahih Muslim, differs in important respects. Here Saʿd does not propose donating all of his wealth but begins by asking whether he may give away two-thirds of it in charity (afa-ataṣaddaqu bi-sulusay maali). When this is refused, he suggests one-half (afa-ataṣaddaqu bi-shaṭrihi) before eventually accepting the one-third limit. Unlike the Bukhari version, this report expressly mentions the existence of a single daughter as his heir (illa ibnatun), thereby placing the welfare of the heir at the centre of the discussion.

The third narration, found in Jaamiʿ al-Tirmizi, departs even more dramatically from the previous two. Here it is not Saʿd but the Prophet who initiates the conversation by asking whether a will has been made. Saʿd replies that he has already bequeathed all of his wealth “in the cause of Allah” (bi-maali kullihi fī sabeeli llaah). The Prophet then enquires about the provision made for his children. When Saʿd responds that they are financially secure (hum aghniyaaʾu bi-khayr), the Prophet nevertheless directs him to reduce the bequest, initially fixing the amount at one-tenth (awṣi bil-ʿushr). According to the report, it is only after further discussion (fa-maa ziltu unaaqiṣuhu ḥatta qaala) that the Prophet permits a bequest of one-third (awṣi bis-sulus). In this account, the companion refers to his children in the plural, noting that they are all financially well-off.

These variations are not trivial. They relate to fundamental aspects of the incident: who initiated the conversation, whether Saʿd had one child or several children, whether he proposed giving away all of his wealth or only two-thirds, and whether the Prophet's initial limit was one-third or one-tenth. Such discrepancies inevitably raise questions about the historical reliability of the reports and caution against deriving from them a universal legal rule capable of restricting the broad testamentary freedom recognised by the Quran.

Moreover, none of the versions suggests that the Prophet was conveying a fixed divine rule prohibiting bequests in excess of one-third. Had such a limitation formed part of the revealed law, one would expect the Prophet to have stated it unequivocally from the outset. Instead, the reports portray the permissible percentage as emerging through a process of discussion and negotiation. In one narration, Saʿd successively proposes the whole estate, one-half, and finally one-third. In another, the Prophet initially directs him to bequeath only one-tenth before eventually permitting one-third. The impression created by these reports is not that of a clearly established divine command, but of a discretionary response to the particular circumstances of a specific case.

This creates a further difficulty. If the one-third limitation were indeed a divinely mandated rule applicable to all Muslims, it is difficult to explain why the Prophet appears uncertain about the precise percentage and willing to modify it during the course of the conversation. Such a portrayal sits uneasily with the Quranic depiction of the Prophet as a faithful and authoritative teacher of the Quran and its wisdom. Therefore, these reports cannot reasonably be invoked to establish a universal restriction on testamentary freedom, especially when no such limitation is found in the Quran itself.

Even if one were to accept the reports as substantially authentic, their plain meaning would still support only a limited proposition: that a Muslim should not dispose of so much of his wealth through charitable bequests that his dependents are left impoverished. The reports do not state that bequests in favour of legal heirs are prohibited, nor do they suggest that the Quranic command to make bequests in favour of parents and near relatives has been abrogated. To transform an episode concerning excessive charitable donations into a general prohibition on bequests to legal heirs, or limit bequests to one-third of the estate, is therefore to read into the reports a legal consequence that their wording does not clearly support.

Hadiths cannot overrule Quran

The glaring contradictions and extra-Quranic rulings found in these reports render them unsuitable as a basis for Islamic law. The Quranic principle is clear: no source of Islam, including hadith, may overrule, amend, or curtail the provisions of the Quran, which remains the primary and supreme source of Islam for perpetuity. Consequently, if the Quran itself neither restricts bequests to one-third of an estate nor excludes legal heirs from their scope, the Prophet could not have imposed such limitations through his own authority, as these reports appear to suggest.

The Quran repeatedly portrays the Prophet not as an independent lawgiver but as a faithful transmitter and implementer of divine revelation. In response to those who demanded alterations to the Quran, he was instructed to declare:

“It is not for me to change it of my own accord (maa yakoonu li an ubaddilahu min tilqaa’i nafsi). I only follow what is revealed to me (in attabiʿu illaa maa yooḥaa ilaiya)” (10:15).

The verse leaves little room for the notion that the Prophet possessed the authority to modify Quranic injunctions, restrict rights expressly granted by the Quran, or introduce legal prohibitions absent from the revealed text.

This understanding is reinforced by numerous other Quranic passages which emphasise that the Prophet's duty was to convey the revelation faithfully and to judge in accordance with what Allah had revealed. His authority was therefore derivative, not autonomous. It flowed from the revelation he received and could not be exercised in opposition to it. To attribute to the Prophet a ruling that effectively nullifies a Quranic command is to place him in the untenable position of contradicting the very revelation he was sent to proclaim.

The implications of such a possibility for the law of succession are significant. If the Quran makes the writing of a will a binding obligation (kutiba alaykum) and expressly envisages bequests in favour of parents and near relatives (al-waalidaini wal-aqrabeen), a hadith prohibiting bequests to legal heirs cannot be accepted at face value. Likewise, if the Quran repeatedly states that inheritance shares are to be distributed only after the fulfilment of bequests and debts (min baʿdi waṣeeyyatin yooṣaa bihaa aw dainin), a report limiting all bequests to one-third of the estate cannot be elevated into a universal legal rule without clear Quranic support.

The only interpretation consistent with the Quran's own hierarchy of authority is that any hadith dealing with wills and inheritance must be read in a manner that complements the Quran rather than overrides it. Where such reconciliation is impossible, the Quran must prevail. The restrictions attributed to the Prophet in these reports therefore cannot be regarded as binding amendments to the Quranic law of succession. At most, they may reflect context-specific advice given to a particular individual in a particular set of circumstances. They cannot be transformed into universal rules that deprive Muslims of the testamentary freedom expressly recognised by the Quran.

The way forward for Muslims

The inheritance law that prevails today has undermined the Quranic scheme to such an extent that a rule originally intended to govern only the residue of an estate after the fulfilment of debts and bequests has been transformed into the dominant principle of succession. The higher share allotted to sons – which, according to the Quran itself, becomes relevant only after testamentary dispositions have been honoured – has been universalised and applied as though it were the primary and immutable rule governing the entirety of a Muslim's property. In effect, a residual provision has eclipsed the very testamentary freedom that the Quran repeatedly emphasises.

The situation is further aggravated by the widespread acceptance of the view that a will cannot be made in favour of legal heirs. As a result, Muslims have been deprived of the ability to distribute their property in accordance with their own assessment of justice and family circumstances. Parents who wish to provide equally for their daughters and sons are often led to believe that they are religiously prohibited from doing so, even though the Quran itself contains no such prohibition. The consequence is that a juristic interpretation rooted in contested hadith reports and medieval legal doctrines has come to override the plain language of the Quran and restrict rights that the scripture appears to guarantee.

This outcome is particularly ironic because the Quranic reforms were originally introduced to enhance, rather than diminish, the economic security of women. In a society where women had previously been denied inheritance altogether, the Quran recognised them as independent legal persons capable of owning, inheriting, managing, and disposing of property. Yet a legal framework that was intended to expand women's rights has, through centuries of interpretation, come to be cited as evidence of gender inequality. Much of the criticism directed against Islamic law of inheritance today is therefore directed not at the Quran itself but at a later juristic edifice that has obscured the Quran's broader commitment to justice, fairness, and individual responsibility.

If Muslims genuinely wish to realise the egalitarian potential of the Islamic inheritance system, they must be willing to re-examine the assumptions that have long dominated traditional legal discourse. This requires the intellectual courage to question the interpretive monopoly of theologians who insist that medieval juristic opinions are beyond scrutiny and that hadith reports must be followed even when they appear to conflict with the Quran. It also requires a renewed commitment to the Quran's own methodology, under which all secondary sources are evaluated in light of the primary text rather than the other way around.

Ultimately, meaningful reform will be possible only when Muslims reclaim the Quran as the supreme criterion for determining the content of the Shariah. No fatwa, juristic consensus, or hadith report can claim authority if it negates the Quranic. The law of inheritance is no exception. If the Quran grants Muslims the freedom to make fair and responsible testamentary dispositions, that freedom cannot legitimately be taken away by later interpretations. Restoring the Quran to its rightful place at the apex of Islamic law would not only enable Muslims to treat daughters and sons more equitably; it would also represent a decisive step towards aligning the contemporary law of succession with the principles of justice, equality, and moral responsibility that the Quran itself seeks to uphold.

The way forward for Indian courts

One of the principal reliefs sought in Poulomi Pavini Shukla's petition is a declaration from the Supreme Court of India that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, insofar as it governs intestate succession and inheritance, is unconstitutional for violating Articles 14, 15, and 21 of the Constitution of India. In the alternative, the petition seeks a reading down of the provision to ensure that Muslim women are not denied equal inheritance rights.

The demand assumes significance because Section 2 of the Act makes Muslim Personal Law (Shariat) the governing law in a wide range of matters affecting Muslims, including intestate succession and inheritance. The provision states:

“Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)”

The petitioner's contention is that, by directing courts to apply Muslim Personal Law in matters of intestate succession and inheritance, Section 2 effectively gives statutory recognition to rules that allegedly discriminate against women and thereby violates the constitutional guarantees of equality, non-discrimination, and personal liberty.

There is considerable force in this contention when the historical purpose of the 1937 Act is examined. The principal object of the legislation was to replace diverse local customs and usages with Muslim Personal Law (Shariat) in specified matters affecting Muslims. Significantly, the Statement of Objects and Reasons justified the enactment largely as a measure for the protection and advancement of Muslim women. It stated:

“For several years past it has been the cherished desire of the Muslims of British India that Customary Law should in no case take the place of Muslim Personal Law. The matter has been repeatedly agitated in the press as well as on the platform. The Jamiat-ul-Ulema-i-Hind, the greatest Moslem religious body has supported the demand and invited the attention of all concerned to the urgent necessity of introducing a measure to this effect. Customary Law is a misnomer in as much as it has not any sound basis to stand upon and is very much liable to frequent changes and cannot be expected to attain at any time in the future that certainty and definiteness which must be the characteristic of all laws. The status of Muslim women under the so-called Customary Law is simply disgraceful. All the Muslim Women Organisations have therefore condemned the Customary Law as it adversely affects their rights. They demand that the Muslim Personal Law (Shariat) should be made applicable to them. The introduction of Muslim Personal Law will automatically raise them to the position to which they are naturally entitled. In addition to this present measure, if enacted, would have very salutary effect on society because it would ensure certainty and definiteness in the mutual rights and obligations of the public. Muslim Personal Law (Shariat) exists in the form of a veritable code and is too well known to admit of any doubt or to entail any great labour in the shape of research, which is the chief feature of Customary Law.” URL: https://www.latestlaws.com/bare-acts/central-acts-rules/family-laws/the-muslim-personal-law-shariat-application-act-1937/?utm_source=chatgpt.com

The legislative history is therefore revealing. Far from being enacted to diminish the rights of Muslim women, the Act was presented as a reform measure intended to rescue them from discriminatory customs and secure for them the rights guaranteed by the Shariat. The legislation was expected to have a “very salutary effect on society” by ensuring certainty and definiteness in the rights and obligations of Muslims.

The obvious question, then, is how a statute enacted to improve the status of Muslim women came to be invoked in support of practices that allegedly deny them rights guaranteed by the Quran itself. The history of instant triple talaq furnishes a telling illustration of this phenomenon. For decades, Muslim women were compelled to endure a practice widely criticised as un-Islamic and inconsistent with the Quranic procedure of divorce. Yet Indian courts repeatedly upheld its legal validity on the strength of precedent, often describing it as “good in law though bad in theology.”

One of the precedents frequently relied upon was the Privy Council's decision in Aga Mohammad Jaffer v. Koolsom Beebee [(1897) 25 Cal. 9; 24 I.A. 196], where it was observed that courts ought not to place their own construction upon the Quran in opposition to the views of commentators of “such antiquity and high authority.” The result was that judicial deference to medieval juristic interpretations often prevailed over an independent examination of the Quranic text itself.

This approach rests upon the doctrine of stare decisis, a Latin expression meaning “to stand by things decided.” The doctrine promotes consistency and predictability by requiring courts to adhere to their own precedents or the rulings of higher courts. Therefore, it is surprising that Indian courts sometimes apply this doctrine to Muslim personal law, even when certain traditional practices openly conflict with the fundamental rights guaranteed by the Constitution.

The experience of triple talaq demonstrates that judicial adherence to precedent can sometimes preserve practices that are neither faithful to the Quran nor consistent with contemporary constitutional values. The challenge mounted by Poulomi Pavini Shukla raises a similar concern. At its core lies a fundamental question: should courts continue to uphold traditional interpretations of Muslim personal law merely because they have acquired the force of precedent, or should they re-examine whether those interpretations accurately reflect the Shariat that the 1937 Act was enacted to enforce and the Constitution is bound to protect?

This is not an unfamiliar exercise for the Supreme Court. Indeed, the Court has already undertaken such a re-examination in the context of Muslim divorce law. In both Shamim Ara v. State of U.P. (2002) and Shayara Bano v. Union of India (2017), the Court declined to treat traditional juristic understandings as conclusive and instead examined whether the impugned practice was supported by the Quran itself. The result was the rejection of instant triple talaq and the reaffirmation of the Quranic procedure of divorce.

In Shayara Bano, Justice Kurian Joseph expressly relied upon the principles laid down in Shamim Ara and concluded:

“Fortunately, this Court has done its part in Shamim Ara. I expressly endorse and re-iterate the law declared in Shamim Ara. What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”

He came to this conclusion after observing:

“After a detailed discussion on the aforementioned cases, it has been specifically held by this Court in Shamim Ara, at paragraph 15 that “…there are no reasons substantiated in justification of talaq and no plea or proof that any effort at reconciliation preceded the talaq.” It has to be particularly noted that this conclusion by the Bench in Shamim Ara “respectful agreement” with Jiauddin Ahmed is made after that “talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters — one from the wife’s family and the other from the husband’s; if the attempts fail, ‘talaq’ may be effected.” In the light of such specific findings as to how triple talaq is bad in law on account of not following the Quranic principles, it cannot be said that there is no ratio decidendi on triple talaq in Shamim Ara. Shamim Ara has since been understood by various High Courts across the country as the law deprecating triple talaq as it is opposed to the tenets of the Holy Quran. Consequently, triple talaq lacks the approval of Shariat.”

The significance of these observations extends beyond the law of divorce. The Supreme Court did not merely hold that instant triple talaq was undesirable or unconstitutional. It held that a practice which contradicts the Quran cannot claim legitimacy under the Shariah merely because it has been accepted by sections of the juristic tradition or followed for generations. In Justice Kurian's formulation, a practice that lacks the approval of the Quran lacks the approval of the Shariah.

This principle is of direct relevance to the contemporary debate on Muslim inheritance law. If the Quran repeatedly states that inheritance shares operate only after the fulfilment of bequests and debts, if it expressly authorises bequests in favour of parents and near relatives, and if it does not impose one-third ceiling on testamentary dispositions, then juristic doctrines that negate these provisions cannot automatically be insulated from scrutiny simply because they have acquired the force of tradition.

The question before the Court in the future may therefore resemble the question it confronted in Shamim Ara and Shayara Bano: whether a rule that has long been treated as part of Muslim personal law genuinely reflects the Quranic Shariah, or whether it represents a later juristic construction that departs from the Quran. If the latter is established, the reasoning employed in the triple talaq cases would provide a strong basis for re-examining the restrictions presently imposed on Muslim testamentary freedom.

Such an exercise would not require the Court to depart from precedent. On the contrary, it would involve applying the same interpretive approach already adopted in Shamim Ara and reaffirmed in Shayara Bano: where a rule claimed to be part of the Shariah is shown to be inconsistent with the Quran, the Court is entitled to prefer the Quranic position over later interpretations that cannot be reconciled with it. That approach now forms part of the binding law declared by the Supreme Court under Article 141 of the Constitution and must therefore guide future judicial scrutiny of rules claimed to form part of the Shariah.

…

A. Faizur Rahman is a Chennai-based scholar of Islam.

Email: themoderates2020@gmail.com X: @FaizEngineer

This study is part of the author’s forthcoming book on Muslim Personal Law

….

Notes:

[1] Poulomi Pavini Shukla & Anr. vs. Union of India & Anr., 11 April 2026, pp 80-82

[2] Khuran Sunnath Society & Others vs Union of India & Another URL: https://indiankanoon.org/doc/198258172/

[3] “Row over gender-neutral oath: Kudumbashree says no one will be forced to take it”, The News Minute, 05 Dec 2022 URL: https://www.thenewsminute.com/kerala/row-over-gender-neutral-oath-kudumbashree-says-no-one-will-be-forced-take-it-170626

[4] “Equal inheritance: Move to amend Sharia opposed”, The New Indian Express, URL: https://www.newindianexpress.com/states/kerala/2022/Aug/21/equal-inheritance-move-to-amend-sharia-opposed-2489668.html

[5] “New forum to take forward fight for Muslim women’s inheritance rights”, The Hindu, 29 Dec 2022 URL: https://www.thehindu.com/news/national/kerala/new-forum-to-take-forward-fight-for-muslim-womens-inheritance-rights/article66317452.ece

[6] “Muslim women’s forum demands change in personal law”, The Hindu, 23 March 2023, URL: https://www.thehindu.com/news/cities/kozhikode/muslim-womens-forum-demands-change-in-personal-law/article66611518.ece

[7] “Test of the Will”, The Week India, 02 April 2023 URL: https://www.magzter.com/stories/news/THE-WEEK-India/TEST-OF-THE-WILL

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