By A. Faizur Rahman
The Islamic law of inheritance is yet another legislation which is subject of heated debates by the clergy and the laity alike. The law is too elaborate and intricate to be discussed in its entirety here. Therefore, the scope of this study is confined to those specific provisions that concern the apportionment of shares to women and to check if there is any inherent gender-bias in the allotments without going into the complexity of law itself.
A study of the two main verses on the law of inheritance would reveal that the apparent disparity that exists between the percentage of shares assigned to men and women is because of the role they play in the social and family set up. Gender has nothing to with it. Let’s analyse the following verses.
Allah directs you as regards your Children's (Inheritance): to the male, a portion equal to that of two females: if only daughters, two or more, their share is two-thirds of the inheritance; if only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased Left brothers (or sisters) the mother has a sixth. (The distribution in all cases ('s) after the payment of legacies and debts. You know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah; and Allah is All-knowing, Al-wise (4:11).
In what your wives leave, your share is a half, if they leave no child; but if they leave a child, you get a fourth; after payment of legacies and debts. In what you leave, their share is a fourth, if you leave no child; but if you leave a child, they get an eighth; after payment of legacies and debts. If the man or woman whose inheritance is in question, has left neither ascendants nor descendants, but has left a brother or a sister, each one of the two gets a sixth; but if more than two, they share in a third; after payment of legacies and debts; so that no loss is caused (to any one). Thus is it ordained by Allah; and Allah is All-knowing, Most Forbearing (4:12).
In the first quoted verse the injunction that the male would “a portion equal to that of two females” pertains only to the children of the deceased as the verse clearly indicates. It cannot be generalised and extended to include all men and women as it would violate the instructions concerning the portions allotted to other relatives in the same verse and the next. For instance, the clauses highlighted in bold unequivocally state that the father and mother of the deceased shall get one-sixth of the share in case he leaves behind children (as per the first verse), and that the brother and sister of a deceased with no ascendants and descendants shall get one-sixth of the share each or share equally in one-third of the share if there are more than two siblings.
Without going into the wisdom behind the specific percentages allotted to different relatives of the deceased it can be seen that the difference in apportionment is not based on gender at all. It is as if the Quran had taken into account their relationship to the deceased and their social responsibility at that time. For if it was an issue of gender then the allotment of shares to parents and siblings would also have been on the basis of 2:1 in favour of the male parent and sibling. And insofar as the children are concerned the reasoning behind the higher allotment to sons was explained convincingly by the great philosopher-poet of Islam Sir Mohammad Iqbal in one of his famous Madras lectures which forms part of the collection titled The Reconstruction of Religious Thought in Islam. Responding to the Turkish poet Zia’s call for parity in the division of shares for sons and daughters Iqbal explained:
With regard to the Turkish poet’s demand, I am afraid he does not seem to know much about the family law of Islam. Nor does he seem to understand the economic significance of the Quranic rule of inheritance. Marriage, according to Mohammadan Law, is a civil contract. The wife at the time of marriage is at liberty to get the husband’s power of divorce delegated to her on stated conditions, and thus secure equality of divorce with her husband. The reform suggested by the poet relating to the rule of inheritance is based on a misunderstanding. From the inequality of their legal shares it must not be supposed that the rule assumes the superiority of males over females. Such an assumption would be contrary to the spirit of Islam. The Qur’an says: And for women are rights over men similar to those for men over women’ (2:228).
The share of the daughter is determined not by any inferiority inherent in her, but in view of her economic opportunities, and the place she occupies in the social structure of which she is a part and parcel. Further, according to the poet’s own theory of society, the rule of inheritance must be regarded not as an isolated factor in the distribution of wealth, but as one factor among others working together for the same end.
While the daughter, according to Mohammadan Law, is held to be full owner of the property given to her by both the father and the husband at the time of her marriage; while, further, she absolutely owns her dower-money which may be prompt or deferred according to her own choice, and in lieu of which she can hold possession of the whole of her husband’s property till payment, the responsibility of maintaining her throughout her life is wholly thrown on the husband.
If you judge the working of the rule of inheritance from this point of view, 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 demanded by the Turkish poet. The truth is that the principles underlying the Quranic law of inheritance - this supremely original branch of Mohammadan Law as von Kremer describes it - have not yet received from Muslim lawyers the attention they deserve. Modern society with its bitter class-struggles ought to set us thinking; and if we study our laws in reference to the impending revolution in modern economic life, we are likely to discover, in the foundational principles, hitherto unrevealed aspects which we can work out with a renewed faith in the wisdom of these principles."
A. Faizur Rahman, secretary-general, Forum for the Promotion of Moderate Thought among Muslims