position of woman under personal law

8/10/2019 position of woman under personal law

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DR. RAM MANOHAR LOHIA NATIONAL LAW

UNIVERSITY, LUCKNOW

2013

FAMILY LAW

TOPIC:

POSITION OF WOMAN REGARDING INHERITANCE UNDER MUSLIM

PERSONAL LAW

FINAL DRAFT

SUBMITTED To: SUBMITTED By :

ATUL SINHA ABHISHEK YADAV

Asst. Prof. Law ROLL NO. 06

Dr. RMLNLU, SECTION: A

LUCKNOW


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Acknowledgement

A major research project like this is never the work of anyone alone. As one if can accomplish nothing, this

report is not an exception. We would like to have some space to acknowledge some of them that frequently

fade in to background.

Firstly, I would like to thank respected , for giving me such a golden opportunity to show my skills and

capability through this project. His excellent supervision, invaluable suggestion and exhorting guidance had

helped me to complete the project successfully.

This project is the result of the extensive ultrapure study, hard work and labour, put into to make it worth

reading. This project has been completed through the generous co-operation of various persons, especially my

seniors, who, in their different potentials helped me a lot in giving the finishing touch to the project.

This project couldnt be completed without the help of my universitys library Dr. Madhu Limaye Library

and the internet facility in the campus.

Thank you.


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Table of content

Introductory

General Status of woman: Laws of Inheritance

Muslim Womens Property Rights:

Broad Principles of Inheritance in Muslim Law:

Part III Of Constitution Of India And Status Of Muslim Woman

Argument in support of Muslim Woman

Argument in favour of existing Muslim law

Conclusion

Bibliography


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TITLE: POSITION OF WOMAN REGARDING INHERITANCE UNDER MUSLIM PERSONAL LAW

Learn the laws of inheritance, and teach them to the people; for they are one half of

useful knowledge

- The Prophet

Introductory

Property rights of women under Muslim law are praiseworthy and discriminatory, both at the same time.

Praiseworthy because at least woman have given property rights in the property of their parents and

recognized by Koran itself from a very long time when women were treated not more a property itself!

Whereas, discriminatory because Koran and other established customs have unequal distribution of shares

and discriminatory as compare to male counter parts. Moreover females given rights since centuries under

Muslim law where as Hindu law made it recently only in 2006 amendment in the Hindu Succession Act and

provided females equal rights at par with male heirs. Muslim Law provides a very complex or we can say a

more mechanical as well as technical classification or segregation of property when it comes to inheritance

rights of both male and female. As of now there is no any act governing the personal law of Muslims rather

they governed by their own personal laws and have a very unique and up-to certain extent a bold laws when

it comes to laws of inheritance .

Muslim women in India are organizing against what they see as unfair laws regarding marriage, divorce, and

property rights. Although the Indian Constitution offers all citizens equal rights irrespective of gender and

religion, these rights do not extend to personal law. India does not have a uniform civil code; in family

matters, legal decisions are based on religious law. Muslim women in India are organizing against what they

see as unfair laws regarding marriage, divorce, and property rights. Although the Indian Constitution offers

all citizens equal rights irrespective of gender and religion, these rights do not extend to personal law. India

does not have a uniform civil code; in family matters, legal decisions are based on religious law.


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General Status of woman: Laws of I nheritance

Muslim Womens Property Rights:

Indian Muslims broadly belong to two schools of thought in Islamic Law: the Sunnite (Sunni) and

the Shiite (Shia). Under the Sunnite School which is the preponderant school in India, there are four

sub categories; Hanafis, Shafis, Malikis and Hanbalis. The vast majority of Muslims in India, Pakistan,

Afghanistan, and Turkey are Hanafis. The Shiites are divided into a large number of sub schools, the two

most important of which, so far as India is concerned are the Ismailis and the Ithna Asharis, but they

form a smaller section of the Indian Muslim population. The usual practice in this sub-continent is to

use the terms Sunni law or Shia law.1

Broad Principles of I nheri tance in Muslim Law:

Till 1937 Muslims in India were governed by customary law which were highly unjust. After the Shariat

Act of 1937 Muslims in India came to be governed in their personal matters, including property rights, by

Muslim personal law as it restored preference to reference to custom. However this did not mean either

reform or codification of Muslim law and till date both these have been resisted by the patriarchal forcedin the garb of religion.

Broadly the Islamic scheme of inheritance discloses three features, which are markedly different from the

Hindu law of inheritance:

(i) the Koran gives specific shares to certain individuals

(ii) the residue goes to the agnatic heirs and failing them to uterine heirs and

(iii) bequests are limited to one-third of the estate, i.e., maximum one-third share in the property can be

willed away by the owner.

1Dr Poonam Pradhan Saxena, Family Law Lectures: Family Law II, Lexis Nexis, 3rd Edition


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The main principles of Islamic inheritance law which mark an advance vis--vis the pre-Islamic law of

inheritance, which have significant bearing on the property rights of women, are:2

(i) the husband or wife was made an heir

(ii) females and cognates were made competent to inherit

(iii)

parents and ascendants were given the right to inherit even when there were male

descendants and

(iv) as a general rule, a female was given one half the share of a male. The newly created heirs were

mostly females; but where a female is equal to the customary heir in proximity to the

deceased, the Islamic law gives her half the share of a male. For example, if a daughter co-

exists with the son, or a sister with a brother, the female gets one share and the male two shares.

The doctrine of survivorship followed in Hindu law is not known to Mohammedan law; the share of each

Muslim heir is definite and known before actual partition. Rights of inheritance arise only on the death of

a certain person. Hence the question of the devolution of inheritance rests entirely upon the exact point of

time when the person through whom the heir claims dies, the order of deaths being the sole guide.

The relinquishment of a contingent right of inheritance by a Muslim heir is generally void in

Mohammedan law, but if it is supported by good consideration and forms part of a valid family

settlement, it is perfectly valid. The rule of representation is not recognized, for example, if A dies

leaving a son B and a predeceased sons son C, the rule is that the nearer excludes the more remoteand,

there being no representation, C is entirely excluded by B.3 There is however no difference between

movable property and immovable property.

Some of the features of the Hanafi school are being pointed out here to get a glimpse into the broad

structure of the property rights of Muslim women in India. The Hanafi jurists divide heirs into seven

categories; three principal and four subsidiaries.4

The three principal classesheirs:

(i) Koranic heirs,

(ii) Agnatic heirs (through male lineage)

(iii) Uterine heirs. (dhawul - arham) (Distance Kindered).

2 Syed Rashid Khalids Muslim Law, EBC LUCKNOW, 5 th edition , p342.

3id p349

4Id p 358


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The 4 subsidiaries are:5

(i) the successor by contract,

(ii) the acknowledged relative,

(iv) the sole legatee; and

(v) the state by escheat.

The first step in distribution of the estate of deceased Muslim, after payment of his funeral expenses, debts,

if deferred Mahr, and legacies, is to allot the irrespective shares to Koranic heirs. If any residue is left, it is to

be divided among agnatic heirs (Residuaries). If there is neither sharers nor residuaries, the estate will be

distributed among distance kindered. The distance kindered are not entitled to succeed so long there is any

heir belonging to the chass of sharers or Residuary. But there is one case in which the distance kindered willinherit with a sharer, and that is when the sharer is the wife or husband of the deceased.6

In the absence of a member of three principle classes the right of inheritance devolve upon subsdiary heirs,

amon whom each class excludes the next. So if we look into here, we will find that wife is entitle to her

deferred Mahr amount first of all even before estate goes for devolution. The Supreme Court of India has

laid down inKapore Chand v Kadar Unnissa7, that the mahr (dower) ranks as a debt and the widow

is entitled, along with the other 5 creditors of her deceased husband, to have it satisfied out of his estate.

Her right, however, is the right of an unsecured creditor; she is not entitled to a charge on the husbands

property unless there be an agreement. The Supreme Court has laid down that the widow has no priority over

other creditors, but that Maher as debt has priority over the other heirs claims. This right is known as the

widows right ofretention

The following 12 heirs constitute Class I heirs (Koranic Heirs)

(a) Heirs by Affinity - Husband and Wife

(b) Blood Relations - Father, True Grandfather (howsoever high), Mother, True Grandmother

(howsoever high), Daughter, Sons Daughter (howsoever low), Full sister,consanguine sister, uterine

brother, and uterine sister.

5Id p358

6Syed Rashid Khalids Muslim Law, EBC LUCKNOW, 5 th edition, p358

7 (1950 SCR 747)


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Rules of Exclusion:

The husband and wife are primary heirs and cannot be excluded by anyone, but they also dont exclude

anyone either. Law fixes the share of the spouses; if they exist they reduce the residue which may be taken

by the Agnatic or Uterine heirs, but they do not exclude either wholly or partly any heir.8

The father does not affect the share of any Koranic heir except the sisters (full, consanguine or uterine) all of

whom he excludes. The mother excludes the grandmother, and the nearer grandmother excludes the

more remote. The mothers share is affected by thepresence of children or two or more brothers or sisters.

Her share is also greatly affected by the existence of the husband or wife and the father. In the case of a

daughter she is theprimary heir. She partially excludes lower sons daughters, but one daughter or

sonsdaughter does not entirely exclude a lower sons daughter. As far as the sisters are concerned, one full

sister does not exclude the consanguine sister, two full sisters however exclude the consanguine sister. The

uterine brother or sister is not excluded by the full or consanguine brother or sister. Another rule that

requires consideration is that, a person though excluded himself, may exclude others. For example,

in a case where the survivors are the mother, father, and two sisters: the two sisters are excluded by

the father; and yet they reduce the mothers share to 1/6th

Class II heir (Agnatic heir): Their classification is done as follows;

Males (Group I)- the agnate in his own right,

Group II (females)-the agnate in the right of another,

Group IIIthe agnate with another.

The first group comprises all male agnates; it includes the son, the sons son, the father, the brother,the

paternal uncle and his son and so forth. These in pre-Islamic law were the most important heirs; to a large

extent they retain, in Hanafi law, their primacy, influence and power.

The second group contains four specified female agnates, when they co-exist with male relatives of the same

degree, namely, daughter (with son), and sons daughter howsoever low with equal sons son

howsoever low, full sister with full brother and consanguine sister with consanguine brother.

The third group comprises the case of the full sister and consanguine sister. For example if there are two

daughters and two sisters, here the daughter is preferred as a descendant to the sister who is a

collateral;

8Syed Rashid Khalids Muslim Law, EBC LUCKNOW, 5 th edition, p 352


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thus the daughter would be placed in Class I and she would be allotted the Koranic share and the

residue would be given to the sister as a member of Class II. Under this system the rule that is followed is

first the descendants, then the ascendants and finally the collaterals. The agnatic heirs come into picture

when there are no Koranic heirs or some residue is left after having dealt with the Koranic heirs.

Class III (Uterine heir):

This class is constituted mainly by the female agnates and cognates. Classification is:

Group I- descendants, which are daughters children and their descendants and children of sons

daughters howsoever low and their descendants,

Group II-ascendants, which are false grandfathers howsoever high and false grandmothers howsoever

high,

Group III- collaterals, which are descendants of parents and descendents of grandparents true as well as

false. Members of this class succeed only in the absence of members of Class I and Class II. They

also succeed if the only surviving heir of Class I is the husband or the widow of the deceased.

Will: There is a provision against destitution of the family members in the Islamic law in that it is clearly

provided that a Muslim cannot bequeath more than one third of his property. However if he registers his

existing marriage under the provisions of the Special Marriage Act, 1954 he has all the powers of a

testator under the Indian Succession Act, 1925.


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Part I I I Of Constitution Of India And Status Of Muslim Woman

Argument in support of Muslim Woman

In the case of Ahmedabad woman action group v. Union of I ndian9this decision of Hnble Supreme court

is very crucial in exploring the present approach of judiciary regarding interference in the personal laws of

religion. In this case though Supreme Court dismissed the petitions filed by various NGOs10but it gave the

cogent reasons in supporting their approach. In this case the prayer was inter alia, to further declare that the

provisions of Sunni and Shia laws of inheritance which discriminate against females in their share as

compared to the share of males of the same status, void as discriminating against females only on the

ground of sex.11Court held that these Writ Petitions do not deserve disposal on merits as they wholly involve

issues of State policies with which the Court will not ordinarily have any concern. Further, we find that

when similar attempts were made, of course by others, on earlier occasions this Court held that the remedy

lies somewhere else and not by knocking at the doors of the courts.

Without committing contempt of court and as to my limited knowledge the sole purpose for establishing thiscourt of law in India is to protect the fundamental rights of Indian citizens whenever they are being deprived

of these. Moreover the protection of fundamental rights and to secure equality among citizens is one of the

cardinal principles of our constitution too. The decade which gives the decisions like Sarla Mudagal, S.R

Bommai, etc. And not far off period which gave the decision of Shah Bano, So the expectations were high

for a ground breaking judgment then, but rather they came up with old line that courts are not to take in

hands the policy matters and leaving the responsibility on state, successfully escaped from theirs. And thus,

denied the most fundamental right to equality to Muslim females, again.

9 ( 1997)3 SCC 573

11id p575


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Argument in favour of existing M uslim law

If critically speaking, females share in the property seems legit if one go by Personal Laws only as it atleast

had itself given the declared share from the property in the Quran itself. Also, as a general rule, a female was

given on half the share of male, this may be because of her lesser responsibilities and obligations in

comparison to males.12As there are other option to Muslim women from where they can have resources like

sons obligation to maintain her, Mehr amount, or any otherspecific gift by husband.

The most controversial problem in the Muslim law of inheritance in India is posed by the fact that Islamic

law of intestate succession gives a son twice the share of a daughter, and a brother of the full or consanguine

blood twice that a corresponding sister.13And the most suitable justification may be on changing all this

would be to upset the whole structure of the Islamic law of inheritance, which is as complex, finely balanced

and mathematically precise as any system in the world and which rests more directly on the explicit

injunctions of the Quran than any other part of Sharia. And argument more often heard is in the favour of

change is based on the fundamental rights enshrined in the Indian Constitution, i.e, in the violation of art. 14

but it is vital to note that these injunctions are addressed to state action, not to existing personal Law.

In State of Bombay v. Narasu Appa Mali14, Gajendragadkar J. while giving separate concurring opinion

expressed his opinion on the question whether Part III of the Constitution applies to personal laws. The

learned Judge observed as follows : The Constitution of India itself recognises the existence of these

personal laws in terms when it deals with the topic falling under personal law in item 5 in the Concurrent

List-List III. This item deals with the topics of marriage and divorce; infants and minors; adoption : wills,

intestacy and succession; joint family and partition; all matters in respect of which parties in judicial

proceedings were immediately before the commencement of this Constitution subject to their personal law.

Thus it is competent either to the State or the Union Legislature to legislate on topics falling within the

purview of the personal law and yet the expression "personal law" is not used in Article.13, because, in my

opinion, the framers of the Constitution wanted to leave the personal laws outside the ambit of Part III of the

Constitution. They must have been aware that these personal laws needed to be reformed in many material

particulars and in fact they wanted to abolish these different personal laws and to evolve one common code.

Yet they did not wish that the provisions of the personal laws should be challenged by reason of the

fundamental rights guaranteed in Part III of the Constitution and so they did not intend to include these

personal laws within the definition of the expression "laws in force." Therefore, I agree with the learned

Chief Justice in holding that the personal laws do not fall within Article 13(i) at all.

12Syed Rashid Khalids Muslim Law, EBC LUCKNOW, 5 th edition p342.

13P 342, objection II by Anderson

14MANU/MH/0040/1952 : AIR1952Bom84


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Conclusion

It is high time that in India too such a reform Muslim Family law may be discussed and its merits and

demerits may be explored. It should be better that instead of proceeding arbitrarily, the government may

appoint a committee of representative of Ulema and woman rights activists collectively who may first

consider the desirability and form if such a change, and then recommend it to government to transform it

into a law. In the last it ought to be emphasised that how and why these differences arisen? What were the

causes- historical, political, economic and social- which lead to this puzzeling and discriminatory results.

Also a great Muslim scholar Fyzee opined once and I quote that someone with ability and experience will

taken an early opportunity to proceed on a voyage of discovery with this and argument advanced previously

must be construed handsomely and without imposing anything forcefully on any religion on the name ofequality, government should try to consult comprehensively with persons going to affect by it.


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Bibliography

Primary sources:

Holy Book Quran

Cases referred

Statute

Secondary sources:

Syed Rashid Khalids, Muslim Law, EBCLucknow, 5 th edition p342.

Dr. Poonam pradhan Sexana, Family Law Lectures II, Lexis Nexis, 2011

www.legallyindia.com

http://www.manupatra.com/

https://www.scconline.co.in/ http://www.hindu.com/pp/2004/08/07/stories/2004080700050300.htm
http://www.legallyindia.com/http://www.legallyindia.com/http://www.manupatra.com/http://www.manupatra.com/https://www.scconline.co.in/https://www.scconline.co.in/http://www.hindu.com/pp/2004/08/07/stories/2004080700050300.htmhttp://www.hindu.com/pp/2004/08/07/stories/2004080700050300.htmhttp://www.hindu.com/pp/2004/08/07/stories/2004080700050300.htmhttps://www.scconline.co.in/http://www.manupatra.com/http://www.legallyindia.com/


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Documents

position of woman under personal law