SCOPE OF INHERITANCE UNDER MUSLIM LAW – WITH SPECIAL EMPHASIS

ON GENDER AND SEXUALITY

Subject –Family Law– II

Submitted by:
Aditi Rana - BA0180002
Mrinali Dave - BA0180024
Course: B.A., LL.B.(Hons,)
Signature of the student:
Submitted to:
Ms. Rajeswari Pari
Assistant Professor of Law
Tamil Nadu national Law University
Trichy – 620 027
Marks Awarded-
Project:
Presentation and Viva-Voce:
Total:

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 DECLARATION

We, Aditi Rana and Mrinali Dave pursuing Course B.A., LL.B (Hons,) 2nd year, do hereby
declare that the project entitled “SCOPE OF INHERITANCE UNDER MUSLIM LAW –
WITH SPECIAL EMPHASIS ON GENDER AND SEXUALITY” submitted to Tamil
Nadu National law University (TNNLU), Trichy, in partial fulfillment of requirement of
award of degree in undergraduate in law is a record of original work done by us under the
guidance of Ms. Rajeswari Pari, Assistant Professor of Law, TNNLU, and has not formed
basis for award of any degree or diploma or fellowship or any other title to any other
candidate of any university.

Date: 12/09/2019
Place: TNNLU, Tiruchirapalli
Signature with Names and Register Numbers:
Aditi Rana, BA0180002
Mrinali Dave, BA0180024

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 TABLE OF CONTENTS

INTRODUCTION......................................................................................................................4
 Introduction of Mohamedan Law in India......................................................................5
Under East India Company.................................................................................................5
Under British India.............................................................................................................6
 Muslim Law of Inheritance.............................................................................................6
GENERAL PRINCIPLES OF LAW OF INHERITANCE.......................................................7
PROPERTY RIGHTS OF MUSLIM WOMEN:.......................................................................9
 RIGHTS OF A MARRIED WOMEN (WIFE OF THE PROPOSITUS):......................9
 RIGHTS OF A MUSLIM MOTHER:..........................................................................10
 RIGHTS OF A DAUGHTER.......................................................................................11
 RIGHTS OF A MUSLIM SISTER:..............................................................................12
 RIGHTS OF A CONSANGUINE SISTER..................................................................12
 RIGHTS OF A TRUE GRANDMOTHER:..................................................................13
PROVISION FOR INHERITANCE OF PROPERTY FOR TRANSGENDERS AND
OTHER NON-BINARY SEXUALITIES................................................................................13
 ISLAMIC LAW TOWARDS THIRD GENDER:........................................................14
CONCLUSION........................................................................................................................15

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 INTRODUCTION

In India women and other sexual minorities have always been discriminated in all respects;
and the principles of inheritance under Muslim law are no different. The laws governing
inheritance under Muslim personal Law are not codified and do no justice to women and
other sexual minorities. There are many loopholes and problems with Muslim Law of
inheritance. Women were and till date are not given equal rights as men. Muslims can claim
their right of Inheritance only through Muslim Law of Inheritance. This personal law governs
all the Muslims but fails to provide justice and equality to the Muslim women. Through ages,
we have seen women being discriminated because of their sex. There are also people who do
not fall under the category of either males or females. Whenever it comes to succession, only
males were given the preference; which might be because of the patriarchal mind-set that
holds men superior. Now, the situation has been changed slightly. Women are now given
share in the property, but not at par with what men have; even now there is no provision
which deals with the inheritance rights of the sexual minority (people having different sexual
orientation).

 Introduction of Mohamedan Law in India

There is no proof for administration of Muslim personal law until 1206 in Indian peninsula,
even though there were Muslim invasions during this period1. During the reign of Slave
dynasty (1206-1290 A.D) to the Sur dynasty (1539- 1555), the court of Shariat, assisted by
the Mufti, dealt with the cases involving personal law among Muslims. During Sher Shah's
regime, the powers of Shariat court were restricted and Muslim law was modified to suit the
requirements of the times2. During Akhbar's regime, Ulemas' (religious scholars) powers
were significantly reduced and shattered the dominance of the orthodox Sunni school. During
Jehangir's regime, cutting of noses and ears and death penalty could not be inflicted without
the permission of the Emperor. Aurangazeb ordered for the compilation of code of law.3

1
Rahiman, Abdul, K.K. "History of the Evolution of Muslim Personal Law in India". Journal of Dharma:
Dharmaram Journal of Religions and Philosophies. Retrieved 1 December 2017.
2
Ibid.
3
Ibid.

4
 1. Under East India Company

Under the East India Company, Muslim Law was enforced except when Muslims left the
disputes to be determined according to Hindu Shastras 4.The Regulation 11 of .1772 by Sec.
27 enacted that:

“in all suits regarding inheritance, succession, marriage and caste and other religious
usages or institutions, the laws of the Quran with respect of Mohamedan and those of the
Shastras with respect to Gentoos (Hindus) shall be invariably adhered to.”

In 1822, the Privy Council recognized the right of Shia Muslims to their own law.

2. Under British India

The British India passed Shariat Act in 1937 and is still being followed in India in matters
related to marriage, divorce and succession among Muslims.5

 MUSLIM LAW OF INHERITANCE

The Muslim law of inheritance is a superstructure constructed on the foundation of pre-

Islamic customary law of succession6.Laws of inheritance under Muslim law are derived
from the generic sources of Islamic law, namely, customs and usages, Quranic principles and
the Hadis of the Prophet. The evolution of inheritance principles under Muslim law has been
traced as follows:

1. Under pure Mohammedan Law

On the death of the of a mohammedan intestate his property would rest in his heirs at the time
of his death. If he left a will (Vasiyat), the executor (Vasi) managed the property. In short, the
Vasi paid off the debts and distributed the estate among the legatees upto the permissible
limit of 1/3rd. He had no power of mortgage and sale.

2. Current position
4
Ibid.
5
Daniyal, Shoaib. "A short history of Muslim personal law in India". Scroll.in. Scroll.in. Retrieved 2 December
2017.
6
Diwan, Paras. “Family Law”.

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The current position stands distinguished on two different situations:

A) When there is a will- the property of the deceased testator vests in the executor. The
executor holds the property as a trustee for the legatees as to the bequeathable 1/3rd
and as a trustee for the heirs as to the remaining 2/3rd. He is an active trustee as gar as
the legatees are concerned and a bare trustee to the heirs.

B) When there is no will- when the deceased does not leave a will, the property devolves
on his heirs. The heirs succeeded to the property as tenants-in-common, that is, each
to his specific share, with full power to transfer his own share. Each heir is liable to
pay the debts of the deceased in proportion to the extent of the share inherited by him.

GENERAL PRINCIPLES OF LAW OF INHERITANCE

1. Propositus-

* The deceased owner of the property is called the propositus. If the propositus is Sunni,
Sunni law of inheritance applies and if he is a Shia, the Shia law of Inheritance applies.

* As far as we are considering India, it is presumed that a Mohammedan is a Sunni.

2. Child in womb-

* There is a possibility that at the time of the death of the propositus, the heir may be in the
womb. If the child is born alive it can inherit.

* If the child dies minutes after its birth, the share entitled to it goes to its heirs.

3. Illegitimate child-

* An illegitimate child can only inherit only from its mother. It cannot inherit from its
supposed father or to the other children of the mother.

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* Under Shia law, the child doesn’t inherit even to the mother.

4. Stepchildren-

* Taking an example to understand the position of step-children- if X’s mother becomes a

widow and decides to remarry, X has no right to inherit to the Step-father and vice-versa.

5. Spes successionis-

* So long as a person is alive he has no heir. Heirship is only to a deceased person.

* While the owner is alive, the persons who would succeed to the property are called the heir-
apparent and their right is a chance of succession (Spes successionis).

* The chance of a Mohammedan heir-apparent succeeding to an estate cannot be the subject

of a valid transfer or release.7

6. Homicide-

* If an heir-apparent kills the owner of the property, the heir-apparent can no longer inherit to
the owner. (Sunni law)

* If an heir-apparent kills the owner of the property intentionally, only then the heir-apparent
cannot inherit.

7. Religion-

* A non-Muslim cannot inherit from a Muslim.

8. Heritable property-

* In Mohammedan law there is no distinction between movable and immovable property or

between ancestral and self-acquired property.

* The property, which is the subject matter if inheritance, should be owned by the propositus
at the time of his death.

7
Khannum Jan v. Jan Beebee (1827) 4. Beng. S.D.A.210.

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* In Islamic law, distinction between the joint-family property and the separate property has
never existed and in India the concept of joint-family property is not recognized.8

9. Principle of representation-

* According to the Sunni law, the expectant right of the heir-apparent cannot pass by
succession to his heir, nor can it pass by bequest to his legatee under his will.9

* According to the Shai law, it does pass by succession in specific cases.

PROPERTY RIGHTS OF MUSLIM WOMEN:

8
See Abdul Rashid v. Sirajuddin (1993) 145 I.C. 261, (‘33) A.A. 206, 209.
9
Abdul Wahid v. Nuran Bibi (1885) 11 Cal. 597, 607, 12 I.A. 177.

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RIGHTS OF A MARRIED WOMEN (WIFE OF THE PROPOSITUS):

1. According to Sunni Law.

Under Islamic Law, a woman's identity even though inferior in status as far as Marriage
laws are concerned, does not relinquishes the right of a married Muslim women. In case, a
Muslim woman marries any person other than a Muslim, the succession will be governed
under the Indian Succession Act, 192510. And therefore, the Muslim women will get her share
according to the rules laid down in the Act. In a case where two Muslims married according
to the Islamic Laws, but later register their marriage under the Special Marriage Act 11 and the
husband dies, the laws governed by the Indian Succession Act will apply.

The married Muslim women inherits 1/8th of the property of her deceased husband in
case where there are children. She is entitled to 1/4th of the property when there are no
children.

In the presence of one or more wives, each wife will get the 1/8th of the share is equally
divided among them. For example, if a Muslim male die leaving behind 4 wives and no
children, each wife will get the share of 1/16 of the property and all together they get 1/4th of
the share of the property.

2. According to Shia Law.

A wife gets 1/8th of the share from her deceased husband’s property. When there are 2 or
more wives, they collectively gets 1/8th of the share in the presence of lineal descendants.
Whereas, a husband gets 1/4th of the property, provided that there is presence of lineal
descendant. In case where no condition is applied, he gets ½ of the share.

Clearly, it is impartial that a husband receives more share from the descendant as
compared to the wife.

RIGHTS OF A MUSLIM MOTHER:

According to Sunni Law.

10
Indian Succession Act, 1925.
11
Special Marriage Act, 1954.

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 A muslim mother gets a share of 1/6th of the propery, provided that (i) there is a child
or child of a son h.l.s. Or (ii) there are two or more brothers and sisters or even one brother
and one sister, whether full consanguine or uterine. When there is no child or child of a son
h.l.s., and not more than one brother or sister (if any), then the mother inherits 1/3rd of the
property. But when there is also a wife or husband and the father, then mother gets 1/3rd of
what is remaining after deducting the wife’s or husband’s share. Whereas, a father gets the
1/6th of the share provided there is a child or child of a son and in case where there is no
child or child of a son, the father becomes the residuary and inherits the property

Here, it can be seen as how a mother is discriminated on the basis of her gender and
there many conditions mentioned for inheritance in case where there is no child or child of a
son h.l.s. Whereas, a father in the same condition inherits the property as a residuary
acquiring a greater sum than that of a mother. Parents are equally responsible for the
upbringing of a child. They share equal relationship with their child and hence, a mother
should be given equality in getting the share as that of a father not subjecting to such
conditions.

According to Shia Law.

In Sunni Law, a muslim mother is entitled to get 1/6th of the share- conditions
applied that there is a lineal descendant or there are 2 or more full or consanguine brothers, or
one such brother and two such sister, or four such sisters, with the father. In the absence of
any condition, she gets 1/3rd of the share.

RIGHTS OF A DAUGHTER

When a Muslim leaves behind only daughter and no son, the daughter is entitled to
receive ½ of the share of the property. In case where there are 2 or more daughters and no
sons, the daughters all together gets 2/3rd of the share. For example, a propositus leaves
behind 4 daughters and no son, each daughter will get 1/6 th of the share. In the presence of a
son, both of them inherit as residuary.

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 The son takes double the share as compared to daughter. It can be seen clearly,
daughters being female cannot claim equal share as that of sons and are discriminated.
Womens are thought of having worth as half of a man. A daughter has full control over the
property she inherits, and it is her wish to manage, control, or dispose of her property in the
manner she wants.

“A daughter is just as much a co-sharer in the property left by her father as her
brothers, only with the difference that her share is half of her brothers”.

Though the Quran mentions that the distribution of property amongst heirs includes
women but still, a female gender cannot claim equality in inheritance under all
circumstances.

In the case of Rukmanibai v. Bismillavai, it was held that a person who has converted
to Islam is having a daughter and no other residuary can claim her share as well as the
residuary share in the property of the person if he dies.

Son’s daughter h.l.s. will get ½ of the share in a case where no (i) son, (ii) daughter or
(iii) sons’s son. When there are 2 or more Son’s daughter, they all together will get 2/3 rd of
the property. When there is only one daughter, or higher son’s daughter, but no (i) son, (ii)
higher son’s son, the daughter or higher son’s daughter will take half of the share and the
son’s daughter h.l.s would be taking 1/6th of the share.

With an equal son’s son, she becomes a residuary and inherits the property.

RIGHTS OF A MUSLIM SISTER:

A Muslim sister is included in the share of the property in case where there in (i) no
child, (ii) child of a son h.l.s. (iii) father or true grandfather or (iv) full brother. She gets ½ of
the property if alone. And if there are 2 or more sisters, they all together get 2/3rd of the
share.

When there is presence of full brother as well, they both inherits as residuaries.

RIGHTS OF A CONSANGUINE SISTER

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 A consanguine sister is the one who is related or connected by blood relations. The
ones who are connected by way of marriage or adoption does not fall under this category.
The consanguine sister is entitled to the property of the deceased provided there is (i) no son,
(ii) child of a son, (iii) father (iv) true grandfather (v) full brother (vi) full sister or (vii)
consanguine brother. She takes ½ of the share if is a single consanguine sister. With 2 or
more sisters, they together takes 2/3rd of the share. In the presence of consanguine brother,
they both becomes the residuary.

But in case, there is only one full sister, she will succeed as a sharer and the
consanguine sister will be getting 1/6th of the share ( if she is not excluded from inheritance)

RIGHTS OF A TRUE GRANDMOTHER:

A true grandmother is a female ancestor and no false grandfather intervenes in the line
of relationship with the deceased. A mother’s mother, father’s mother, father’s father’s
mother, will be considered as a true grandmother. She will take 1/6th of the share in case

(i) maternal- when no mother or nearer true grandmother (paternal or paternal).

(ii) Paternal- when no mother, father, nearer true grandmother (paternal or maternal) and no
intermediate true grandfather is there.

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 PROVISION FOR INHERITANCE OF PROPERTY FOR TRANSGENDERS AND
OTHER NON-BINARY SEXUALITIES.

According to the Mohammedan Law, men and women are entitled to inherit. The following
verse in the Quran emphasizes this:

“There is a share for men and a share for women from what is left by parents and those
nearest related, whether the property be small or large–a legal share” 12

A Muslim male has to provide sustenance to his family and hence requires a greater wealth as
compared to a woman. Even though a Muslim woman do not inherit as a man does but she
has the right to inherit.

The premodern Muslim society recognizes 5 types of transgenders. (i) Khasi (ii) Hijra (iii)
Mamsuh (iv) mukhannath and (v) Khuntha.

These people have been facing discrimination since ages. In the landmark judgement given in
the case of NALSA v. UOI, the Supreme Court gave them the recognition and said that a
person cannot be discriminated on the basis of their gender identity.

 ISLAMIC LAW TOWARDS THIRD GENDER:

The holy Quran quotes that “Allah is the one who shapes you in womb”. This means that all
physical traits and sexual orientation is in the hands of Allah.

The Shafi school prohibits the marriage of Khunsa (a person with ambiguity in sex). They
cannot gain a status of a father, mother, grandparents or spouse. Kunthas are the people who
have both male and female genitals. The Muslim Law does not give them the inheritance
right, but clearly did not mean to deprive them of an honourable life

If a hermaphrodite is treated like a male, he can inherit property like a brother, paternal uncle,
son.

Transgender people have full rights under the Muslim law of inheritance, this is under the
Tanzeen Ittehad-i-Ummat Pakistan, an unpopular clerical body in the city of Lahore.

12
(Sûrah An-Nisâ’4:7), Quran.

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Whereas, in Bangladesh the government has recognised the transgender community and them
the right to vote. But, as far as personal laws (Muslim Law) are concerned they still do not
have most of the rights including right of inheritance.

In India, it is high time that we should provide the transgenders the right to inheritance to
maintain the status of equality.

There is no marriage provision for the LGBTQ community and hence, they are not provided
the right to inheritance. Under Muslim law there is as such no provision.

A STEP TOWARDS EQUALITY (SUGGESTIONS)

Uniform Civil Code:

Article 44 of the constitution has been introduced in the Constitution of India. This has been
mentioned under the Directive principles of State Policy which says – ‘the state shall
endeavour to provide for its citizens a Uniform Civil code, throughout the territory of India
that would provide for a set of laws to govern the personal matters of all the citizens
irrespective of the religion”.13 Since there are no provision for the inheritance of transgenders,
there can be enforced a set of law which governs all the religion equally and is inclusive of
the inheritance rights of transgenders, irrespective of their religion. The spirit of the Indian
Constitution lies in treating all the religion equally.

Sensitization and awareness programs

The government should start programs across the country to create awareness among the
people. There are many people who are still ignorant to their rights they are provided in the
Constitution of India. many of the transgender s still face discomfort in revealing their gender
as they feel that they are different from the binary gender and are a neglected and minority
group of the society. If there are programs, it would give people the courage to raise their
voice and demand for justice.

CONCLUSION

13
Constitution of India 1950, art.44.

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It is conspicuous that there is no clear verse in Quran that has discussed the inheritance
among the homosexual group. Women have always faced discrimination in society as
compared to male gender. In modern society, there are many provisions that are being
developed to bring gender equality. There is always a conflict between constitutional law and
personal law. There are some personal laws which violates the fundamental rights of a
person, but they still stand. But if a law is violating the fundamental right. It can be subjected
to judicial review. Many religious practises like untouchability, sati and recently triple Talaq
was abolished citing the reason of equality before law and right to life and dignity. Article
25(1) does not protect religion per se but protects an individual’s freedom to practice their
religion; in other words, it does not protect religious norms, rules, or institutions, but
individual rights. There should be changes in personal law to bring equality, not only for
female gender, but also for the people who recognize them as of different gender identity.

REFERENCES

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BOOKS:

1. Paras Diwan, Family Law ( edn Allahabad Law Agency ).

2. Mulla, The Principles of Mahomedan Law ( 21st edn Lexis Nexis 2017).

JOURNALS and ARTICLES:

1. Legal Change and Gender Inequality: Changes in Muslim Family Law in India by
Narendra Subramanian.
2. Inheritance of Indian Women: a perspective by Sona Khan.
3. K.K Abdul Rahiman ‘History of the Evolution of Muslim Personal Law in India’
(Journal of Dharma: Dharmaram Journal of Religions and Philosophies Vol. 11, Issue
3) pp. 249-263.

WEB SOURCE

1 Dr. mohammad, Inheritance of Hermaphrodite (Hijra) under the Muslim, Hindu and
Christian Law: A Case of Bangladesh
<https://www.academia.edu/37786082/Inheritance_of_Hermaphrodite_Hijra_under_t
he_Muslim_Hindu_and_Christian_Law_A_Case_of_Bangladesh> accessed on 09
September 2019.
2 Mubasher Bukhari, Pakistani clerics declare transgender marriages legal under
Islamic law <https://in.reuters.com/article/pakistan-transgender/pakistani-clerics-
declare-transgender-marriages-legal-under-islamic-law-idINKCN0ZD1IB> accessed
10 September 2019.
3 Ani Amelia Zainuddin and Zaleha Abdullah Mahdy, The Islamic Perspectives of
Gender-Related Issues in the Management of Patients With Disorders of Sex
Development <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5272885/> accessed on 9
September 2019.

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