Law Report
Law Commission's report on
Daughter's share in the succession of parents' property in absence of son
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Under the Muslim Family Laws Ordinance, 1961 of Pakistan, as adopted by Bangladesh with few technical amendments, the children as the representatives of the predeceased father get per stripes the share of the father from their grandfather, which under traditional shariah law they were not entitled to. Even daughter in the absence of son of the predeceased father gets the entire share due to her father if living. However, under normal circumstances, if father dies leaving only daughter/s, she does not get the whole property, as she is entitled to get as representative of the predeceased father under the 1961 law. The part of the property also goes to collaterals i.e. uncles. Although illogicality of the position is apparent in the face, it would need proper study, rational interpretation of the holy Qur'an and Sunnah i.e. Ijtihad to bring necessary changes in the prevailing law, which the Law Commission has attempted to do and make recommendation to the government.
Doctrine of representation: Rationale
The Muslim Family Laws Ordinance, 1961 (Sec. 4) of the then Pakistan, predominantly a Sunni state, rectified the traditional law by the principle of representation, meaning the children as the representatives of the pre-deceased shall inherit his or her share from the grandfather. The previous rule of succession excluding orphaned grand children from their grandparent's property aroused much attention and controversy. The Commission on Marriage and Family Laws in Pakistan which recommended 1961 legislation gave the following reasons and arguments for inheritance of the children of predeceased father:
a) There is no Qur'anic verse or authoritative Hadith which excludes orphaned grandchildren from inheriting their grandfather's property.
b) The exclusion was based on pre-Islamic practice, which gave all property rights to male members capable of carrying arms to defend the interest of the tribe or the family, and assumption that economic security of the female members would be taken care of by the male members, although Holy Qur'an and Sunnah later recognised many property rights of the women.
c) Where the father of the propositus has predeceased him, the grandfather gets the share that the father of the propositus would have got. This means that the right of representation is recognized by the classical Shari'a law amongst the ascendants. Therefore, it is not logical or just that it should not be recognized among the lineal descendants.
d) The Qur'an has time and again expressed great solicitude for the protection and welfare of the orphans and their property. Any law depriving them of inheriting their grandfather's property would go entirely against the spirit of the Qur'an.
Increase of daughter's share in the absence of son by Ijtihad
Now the very simple and rational question is, if the daughter of the predeceased father can inherit the full share of her father from her grandfather, why she will not fully inherit her father's property after latter's death. It needs to be mentioned that legislation providing for the property rights of the children of the predeceased father in the Sunni Muslim countries was not an easy matter. They faced lot of opposition. However these countries laid emphasis on Ijtihad i.e. rational, contextual and time-needed interpretation of Qur'an and Sunnah, the gate of which was allegedly closed in the 10th century, which is not true. The notion of closure of the gate of Ijtihad gained strong ground from a decision of the Privy Council (in Aga Mahomed v. Koolsom BeeBee (1897)24 I.A. 196, and Baker Ali Khan vs. Anjuman Ara(1903) 30 I.A. 94) which was based on insufficient understanding of the spirit of Qur'an and Hadith, blocking the road of progressive development of Muslim law.
Later several different schools of thought of Muslim law emerged among which four are important i.e. Hanafi, Maliki, Shafi and Hanboli all taken together called Islamic Fiqh. There were both similarities and dissimilarities amongst them. It happened by the legitimate exercise of Ijtihad in absence of any clear guidance from the principal sources. This view has been reflected in the legislation and judicial decisions of many modern Muslim countries.
Examples of exercise of Ijtihad in modern times
The Tunisian Law of Personal Status, 1957 prohibiting polygamy and the Syrian Law of Personal Status, 1953 empowering kazi to refuse permission to a man already married to take a second wife were the result of reinterpretation of principle from main sources of Muslim laws. On post-divorce maintenance the Appellate Division of the Supreme Court of Bangladesh in a conservative judgement in Hefzur Rhaman v. Shamsun Nahar Begum in 1995, remarked that statutory recognition of benefits and privileges for divorced women beyond the period of iddat would not be in conflict with Muslim law if situation and justice so demands (ibid. p. 24).
So far the sub-continent is concerned, the superior courts in Pakistan have asserted two rights which no courts in other Muslim countries had done, namely, a) their right to independent interpretation of the Qur'an and b) their right to differ from the doctrines of traditionally authoritative legal texts which are not based on any specific injunctions of the Qur'an and Sunnah (Alamgir Muhammad Serajuddin, Muslim Family Law, Secular Courts and Muslim Women of South Asia: A Study in Judicial Activism, Oxford University Press, 2011, p. 110). The improvement in the law of inheritance can be possible under this device. First, the Muslim Personal Law (Shariat) Application Act, 1937 only specified the area of application of Shari'a law but it did not explain or codify any rules of Muslim law. The absence of codified Muslim law practically opened the scope of legitimate interpretation of classical law.
Second, the interpretation of the rule “a nearer in kinship excludes the remoter from inheritance” and the liberal meaning of the Arabic word “Al-Khalala” (meaning child) can be used to justify the increase of share of daughter.
Resort to eclecticism for increasing daughter's share
Eclecticism, technically called takhayyur, is the device of searching for precedents, not only in the four orthodox schools but even in the opinions of individual jurists to meet the need of modern life. It is still allowed by some jurists to follow one school in one particular issue and another in others if his conscience so permitted. We followed this principle in the Dissolution of Muslim Marriages Act, 1939, allowing a Muslim wife to seek divorce on the grounds of husband's torture and desertion for a period of four or more years.
Both Sunni and Shia law recognize the basic rules of inheritance laid down in Qur'an but they interpret it differently. Under Shia law all heirs of the same relationship to the deceased, whether male or female, agnatic or non-agnatic, have the same ability to exclude other heirs and to transmit their entitlement to their own heirs (NJ Coulson, Succession in the Muslim family, Cambridge 1971, pp.108, 133).There is no reason to undermine the Shia version. In this context, some modern Muslim nations have adopted combined rules from two or more different schools or have created modern inheritance laws based loosely on traditional jurisprudence but suited for modern times.
Conclusion and Recommendation
The above examples and arguments amply testify that the status of daughter can be equated with that of son in certain cases of inheritance i.e. when father dies leaving daughter/s, but no son. This also conforms to frequent present-day practice in Sunni families. Parents having only daughter/daughters and no son desire that their daughters do not share the inheritance with collaterals. So they make gifts or Hiba to their daughters.
In the light of the above discussions, the Law Commission strongly recommends a new section be added after Section 4 of the Muslim Family Laws Ordinance 1961 with the provision of increasing the share of daughter/s by prohibiting any part of the property going to the collaterals i.e. uncles in the absence of son in usual course of inheritance.
[For details about this report & other latest reports of law commission, please visit-www.lawcommissionbangladesh.org.]
Compiled by Law Desk.
