Daily Times

INCOMPLETE and discriminatory as it is proclaimed to be by the critics of Islam, Islamic Law of Inheritance is one of the most widely debated subjects. The apparent contradictions and mathematical errors pointed out by the readers of Holy Quran are disregarded, emphasized to be solved using man-made mathematical approaches, or regretfully accepted. However, the only thing that needs to be done in this regard is to correct the translations that have caused such discrepancies to develop. The article elaborates on the fundamentals of inheritance as given by God in the Noble Qur’an and tries to address some of the ostensible contradictions. It is pertinent to extend gratitude towards Dr Khalid Zaheer, a renowned religious scholar, for providing guidance and direction.

Surah An-Nisa (chapter 4) particularly deals with the subject in verses 11-12 and 176. Although these verses have been translated in a way that they seem to majorly address men, the injunctions are applicable on both men and women.

The text begins (4:11) with stating a general rule that a man’s share is equal to the share of two females. Before calling into question the given injunction, it should be noted that the typical breadwinner of an average family, evidently before the advent of feminism and even afterwards, is man. This should not be eyed as a symbol of empowerment or superiority but rather a prodigious responsibility. He, instead of his female counterpart, has been made incumbentto earn money through fair means and feed his family. A woman may choose to share or even take up the entire burden, but this has to be done with the consent of both; man has been forbidden to force any such decision on his female family members, let her be his mother, wife, sister, or daughter. Therefore, it has been established that the liability of making money and bringing home the groceries has been put on man’s shoulders. Having said that, it is but natural that a male offspring is given a larger hereditament from deceased’s assets than his female siblings because the responsibility of feeding the latter and their families lies with men of the house (father and brother before marriage, and husband and son later on). This is no play of misogyny or male chauvinism; it is, in fact, a binding imperative on men and among the rights of women.

The next part of the verse states that if there are only daughters and that, too, two or more then among them will be equally distributed two-third of their deceased parent’s estate. In another case, as explained in verse 11, if there is only one daughter, and no other child, then half of the deceased parent’s state will be inherited by her. Where does the rest (one-third in the former case and half in the latter) of it go? It will be answered later. Another thing worth mentioning is the share of a son when he is the only child of his parent. The instruction given in the first part of this verse, that a man’s share is twice the share of a woman, will be applied here and in this case the only son would get the whole of his deceased parent’s estate.

As far as parents are concerned, they also need to be taken care of after the death of their child and as inheritance deals with one’s financial needs, Islamic Law of Inheritance presents some solutions. If the demised was himself or herself a parent then each of his or her parents would be given one-sixth of the assets, i.e. one-sixth goes to mother and one-sixth to father. However, if the deceased was childless then, as per Qur’anic injunctions, one-third of the estate is to be given to mother. This gives rise to two questions: 1) What would the father get? 2) How much, if any, would be given to the deceased’s spouse, especially to a dead man’s widow? The answer to the first question is quite simple as it has been implied by the verse itself; if one-third of the estate is being given to mother then clearly and unmistakably the leftover, i.e. two-third, would be given to father. However, the second question yet again casts questions regarding the seeming discrimination against women as to why is the widow not being given anything. This has been answered in the next verse, i.e. 12. For now, let us understand more clearly what the rest of verse 11 has to say. If the deceased was childless but had siblings (brothers and/or sisters) then parents would be given the same shares as in the case had the dead had offspring, i.e. one-sixth would be given to mother (as clearly stated in the verse) and same would be given to father which has been implicated by previous contexts. Thus the state of having siblings has been equated with that of having children primarily because kinfolk may also be similarly dependent on a person as his children typically are.

The next part of the verse is of paramount importance as it, for the first time, introduces the concept of prioritisation. It clearly mentions that all the shares mentioned previously and those ensuing are to be distributed “after any bequest he [may have] made or debt”, i.e. no share can be given to any heir before paying off the deceased’s liabilities and debts along with what he has mentioned in his will to be given to a person he himself has named. A person can bequeath anything from his assets to anyone on the basis of need or services provided, as per Javed Ahmad Ghamidi, a contemporary theologist’s opinion. The nominated person can be a dear child who has served him more than any other offspring, the youngest child who would still need financial assistance after his demise, parents, wife, a close blood relative, friend, or acquaintance. Apart from the directive explicitly mentioned in this part, it also hints at prioritising the people among whom the estate has to be distributed; this brings us close to solving the problem regarding the share of widows.

Verse 11’s third-last part proclaims “Your parents or your children – you know not which of them are nearest to you in benefit”. The benefit that has been mentioned is material and worldly benefit, which includes the kindness with which parents look after and serve their children, and vice versa, or the money that is spent on health, food, etc. As the rationale behind the peculiar shares God has suggested for various close relatives is material benefit, this provides a way out for those parents whose child has rebelled against or abandoned them. Since a child who rebels against the father or the family has terminated all possibilities of benefitting his family, he is likely to not be considered eligible to benefit from the father’s wealth after his death. This decision can be taken by the father himself and be expressed in a will, or can also be taken by a competent court. However, rebellion should not be equated with change in religion. If despite changing his religion the child has been dutiful towards his parents’ needs, his right may not be terminated.

The last two parts of the verse ingeminate God’s wisdom behind these shares that have been made an “obligation [imposed] by Allah” because, to illustrate, the deceased’s son can object on the extra wealth that the father may have bequeathed to his daughter in his will before his death but he cannot take away the share prescribed for her by Qur’an because that is part of Shariah.

The next verse (4:12) begins with the command to give half of deceased women’s estate to her husband in case she was childless, but only one-fourth of it if she had one or more children. However, this, too, has to be done after handing over bequeathed assets to the nominated person and paying off her debts, if any. For women, God has allocated one-fourth of her husband’s estate if the couple had no children but only one-eighth share otherwise. This gives rise to two questions: 1) Why is a childless widower being given more than a childless widow? 2) If this is the answer to what would be a widow’s share in her husband’s estate then how can all the shares total to one? Because in all of the under-mentioned cases there would not be enough inheritance to distribute among the heirs and this would present an ostensive mathematical error:

i. Deceased man leaves his estate to be distributed among his parents (1/6 plus 1/6 makes 1/3), widow (1/8) and two (or more) daughters (2/3). This makes a total of 1.125.

ii. The estate has to be distributed among his mother (1/3), father (2/3) and widow (1/8). This also adds up to 1.125.

iii. The assets have to be divided up among his parents (1/6 plus 1/6 makes 1/3), widow (1/8) and his only son (1). This, too, totals to 1.458.

iv. The wealth of a demised person is distributed among his parents (1/6 plus 1/6 equals to 1/3), widow (1/8), a daughter (1/3), and a son (2/3), totalling to 1.458.

As far as the first question is concerned, the answer is the same as mentioned previously, i.e. a man’s share equals that of two women, because his contribution of benefit is twice. For the second question, Javed Ahmad Ghamidi presented a logical explanation by applying the concept of prioritisation. The widow and the parents are going to get their respective shares from the total inheritance. It is only then the leftover shall be available for the sons and daughters. Going by this understanding, there will be some amount still left, which, according to the Holy Qur’an, can either be willed to be distributed in some charitable avenue or another relative can be appointed to receive that amount, as explained later. Thus the above-mentioned cases can be solved as follows: pay the debt, distribute the bequeathed assets among the named people, and give the widow her share, followed by parents, and, in the last place, children, and the remaining amount could be given as charity or to a nominated person.

The reason why the shares of sons and daughters have to be given only after the rest of the heirs are given their due is that these children are the principal heirs and the rest are subordinate ones. This is borne out by the fact that verse 11 mentions that in case of the deceased had no children then “wawarithahuabawahu” (and his parents become his heirs). This expression implies that in each case of distribution of inheritance, there has to be a principal category of heirs while the rest are all subordinate to them. In case there are children, they are the principal heirs; in case there are neither children nor siblings, it is the parents who are principal heirs. Whereas when there are siblings but no children, the former become the deceased’s principal heirs. Once it is established as to who is the principal heir in a certain case of distribution, the rest of the subordinate heirs are to be given their due shares first and the principal heirs are going to get their due from what is left.

The following part of the verse discusses the case when the deceased leaves neither ascendants nor descendants. Most of the translations are translating the word “Kalalah” to such a deceased person. This interpretation has created several problems, such as an apparent contradiction between verses 12 and 176 where both seem to be informing about the shares of brothers and sisters of the deceased. However, Javed Ahmad Ghamidi has translated Kalalah as “a close relative who is neither an ascendant nor a descendant”, i.e. a relation of the deceased is Kalalah, not the person himself or herself and excluding children, parents or spouse of the deceased, whom s/he nominated before death to receive some part of inheritance, like a brother, an uncle or aunt, etc. in case there is a leftover in the application of law. Going by this meaning, 4:12 can be translated as:

“If a man or a woman is given inheritance as a Kalalah and has a brother or a sister, they shall each inherit one-sixth (of what has been assigned for the Kalalah whose siblings they are), but if they are more than two, they shall share one-third of the estate (assigned to the Kalalah).” In such a case, the given passage is requiring the other brothers and sisters (or other uncles and aunties) of the Kalalah who has been nominated by the deceased to get a share in the inheritance too. Therefore, if the deceased has daughters and consequently has a leftover in the distribution of his estate and wants to nominate a brother, a sister, an uncle, or an aunt as an heir (Kalalah) for a certain portion of the wealth, the rest of Kalalah’s brothers/sisters, uncles/aunties would share in 1/6th or 1/3rd of what the Kalalah has been willed to be given.

Verse 176 is clarifying about a particular category of Kalalah relatives, i.e. siblings of the deceased, in a situation wherein a person dies without leaving any children, but has brothers and sisters. There could have been confusion in that although verse 11 of this surah is suggesting that in case a person does not have children his siblings would take the position of children, could that position be changed in case the deceased appoints other Kalalah relatives to take his inheritance instead of his siblings? The clarification in verse 176 says that they will get exactly what his children would have received had they been there and the deceased cannot deprive them of their right since, in the Divine Wisdom, when one does not have issues, generally speaking a brother takes the role of a son and is required to support the family, just as a son would have, thus allotting him twice as much as the sister. However, if a sibling is nominated as Kalalah by the deceased, the rest of the nominee’s relatives would get their respective shares according to the aforementioned ratio.

Thus God, as stated in the last part of verse 176, has made clear to us His law so that no one feels or is kept deprived of his or her right. However, the case is not always of distribution of inheritance among immediate, legitimate children and relatives. In cases where the deceased’s grandchildren are orphan, they will take the place of one’s son or daughter and will be treated accordingly. An illegitimate child, however, would get a share from the mother’s wealth, as maintained by an opinion, because she is known. Since the father is usually and mostly not known and the relationship of the parents was illegitimate, the child cannot have any legal relation with his biological father which automatically rules out the possibility of the child acquiring any share from his wealth. Inheritance is a matter of paramount importance because it has been the cause of familial disputes since ever. An attempt has been made to clarify the misunderstandings and doubts that have rooted down in the fundamentals of this law, but it is only Allah who knows best.

The writer is a freelance columnist from Lahore. She can be reached at; aminah.qureshi@gmail.com

Published in Daily Times, August 18^th 2017.