Misconduct sharia on validity of preferential gift:

dose Bangladesh need to make a new law

Course Name: Muslim law(ii)

Course Code: Law 200

Submitted By: ‘G' Group

Submitted To
Barrister Quazi Maruful Alam
Advocate supreme Court of Bangladesh.
Adjunct faculty,State University of Bangladesh.

Group member Roll Contribution

Mahbubur Rahman Jasim -12 (Batch-33) ( 2-4) page
Tamanna Islam Mou – 19 ( Batch-34) (5-6) Page
Fahmida Sultana Dipee – 47( Batch-34) Cover page and
6-7 page
Sabiha Hossain Mithila – 34 (Batch-33) (7-8) page
Tithi Rani Das -- 22(Batch-34) (8-9)Page
What is Prefereqntial gift?
Preferential gift literally means a gift where one person is
given more Dominance than another person.

The purpose of the preferential gift is for the person who

has the Inheritance and due rights of the property
according to Islamic law, but is deprived of the rights due
to him and the property is preferred to another.

For example, if a person dies leaving 1 son and 1

daughter. Then according to Muslim law the boy will get
2/3 and the girl will get 1/3 But if he wants, he can give his
son the whole property and business gift through
preferential gift.

However, Islamic scholars have given different views

on the validity of this preferential gift from their point
of view.

First View:
According to some followers of Imam Ahmed, Ishaq, Ath-
thawri, Tawus and Imam malik, Preferential Gift is
void. They have given this opinion according to Bukhari
Hadith. Narrated from Ibn Abbas, Prophet Mohammad
(S.M) said that: "Give gifts equally to children, but if I
prefer someone, I would prefer women."

Based on that hadith, Imam Ahmed and others say that it

is never lawful for a person to choose a child over his
other children.
Because this kind of gift can cause division or
separation. And Allah has forbidden family division or
enmity.

So to be clear, Imam Malik and other Imams have said

preferential gift Void based on some hadiths.

Second view:

In the second view, it is said that Hanafi, Shafi and Maliki

have given validity to the preferential gift but in a very
hateful way. Because even if you give validity, this kind of
decision is likely to be void. And does not support Second
view and Preferential gift. However, if someone gives this
kind of gift, it will not be Void.

Preferential gift is void or valid? discuss under

sharia law:
it is very important to aim for justice and equality in the
distribution of property among the children. That is why
Imam Abu Yusuf said. He said that even though it is
desirable to distribute property equally among the children
normally, it is obligatory to distribute property equally if the
father wants to harm a child. (Fatawa Alamgiri 4/391;
Umdatul Kari 6/146 Beirut)

Another Hadith
Hadrat Noman ibn Bashir (Raji.) said: The Prophet
Mohammad (SM) said, ‘You (in the distribution of wealth)
do justice among your children. Do justice to your
children. '
(Sahih Bukhari: 1/352; Sunan Abu Dawood: 3544)

So we can say from that hadith, Islam does not support

preferential gift.

Can a father give all his property to a son or

daughter while he is alive?

→ It is the responsibility of parents to treat all children

equally. Not giving priority to one child over another.
It is also forbidden to give preference to one son over
another.
Narrated from Hazrat Numan Ibn Bashir (Raji.), Once his
father took him to Propeth Mohammad (SM) and said, I
have given this son of mine a slave. Prophet Mohammad
(SM) asked him, "Have you given all your children like
that?" The father replied, no. Prophet Mohammad (SM)
then said, then take this slave back (Bukhari).

Narrated from Hazrat Anas. prophet Mohammad (SM)

says that whoever deprives the heir of inheritance, Allah
will deprive him of Jannath. (Ibn Majah, Hadith No. 2603,
Sunan Saeed bin Mansur, Hadith No. 265.)

It is also forbidden for the father to hand over all or most of

the property to one child. Other children are cheated on
this kind of gift. This is also forbidden. Rather all children
should be made this amount self-sufficient. So that they
do not reach out to people.

Therefore, according to the hadith, it is forbidden to give

precedence to one child over another.

Is preferential gift completely forbidden in sharia

law?
As long as the father is healthy in his lifetime, he can write
off all his property to anyone. As such, any child can write
off the entire property. So you can write to the girl too. No
one will be entitled to the property except the one to whom
the property has been written after death. However, if the
purpose of cheating someone is to write off all the property
, even if the work is implemented, the person will be sinful.

But it has been said in a hadith:

The owner of the property can interfere with the property

as he wishes. (Tafsir Bayyabi-1/7)

Thus, preferential gift is not strictly prohibited. However,

Preferential gift is prohibited without any valid reason

Does Bangladesh need to make a new law?

There is no law for preferential gift in
Bangladesh. However, if the court thinks that Sharia
Hanafi law is applied in Bangladesh. However, at present
Hanafi law is not fully complied with. Hanafi law is
somewhat obeyed. However, the preferential gift can
usually be given as a gift without any restrictions.

In the first view, the Imams gave an opinion, Prefential Gift

totally void, and they give this opinion according to the
hadith. However, in the second view it has been said that
it has validity but in a very bad way. In other words, the
validity of the preferential gift was not full-filled or clear in
the second view.

There is no specific law on preferential gift in

Bangladesh. However, if this type of incident occurs, then
if the court deems the appropriate evidence and reasoning
that a preferential gift is required, then there is no
impediment to making a preferential gift. So, since Islam
has given an opinion against the Preferential gift and even
if it is a gift, the gift is considered as
abominable. Therefore, enacting new laws against Sharia
or Islamic law is completely anti-Islamic.

Moreover, if someone makes a preferential gift and the

court thinks that such a gift was really necessary, then
there is no obstacle in the preferential gift. Therefore,
according to the above Sharia and considering the logical
reasons, it can be said that there is no need for a new law
in Bangladesh.

Our opinion
We do not support preferential gifts.

Why we do not support preferential gift?

→ Preferential gifts are not supported by Islam, and such
gifts are called hateful gifts.

→ Islam wants peace, but through preferential gift anarchy

and strife are created. Which is completely against
principle of Islam.

→ Most of the hadiths say to distribute the property

equally, but the whole property is preferred to one person
through preferential gift. Which is completely forbidden in
Islam.

→ To parents, all their children are equal, so it is not

reasonable to give more to someone and less to
someone, so I am against giving this gift.

→ Preferential gift is forbidden in Islam unless there is a

very necessary and reasonable reason.
→ One is deceived through preferential gift and the other
is benefited Which is contrary to the basic message of
Islam "peace".

→ Allaah has said in the Qur'aan: And in their wealth is

the right of the needy and the deprived. ~ Surah Jariyat
(51) 19. So the desire not to give any wealth to anyone -
this is not an Islamic mentality. It is discarded.
→ The father can write property to any of his
children while he is alive. After death, the other child
will not be entitled to the property.
If the deed is written for the purpose of cheating
someone or the deprived person, even if the deed is
applied, the person will be guilty.

→ If there is only one child, then the donation can be

made and the donation will be valid according to the
law. Preferential gift is clearly prohibited here too

Conclusion

Since one person is happy with this gift and the other is
suffering, I think it is not reasonable to give this gift.
Moreover, every parent expects equal rights for each of
their children, so it is desirable to give all children their due
property. And there are not many hadiths in Islam about
giving this gift. And that is why we are against giving this
gift. Apart from that, even though there is no customary
law on preferential in Bangladesh, if a reasonable reason
can be shown in the court, then this court will approve this
gift.