Reviewing The Views
Read between the lines
Law Commission's proposal to increase daughter's share in the succession
Anisur Rahman
The essay titled 'Daughter's share in succession: Law Commission's report revisited', published in this page on 16 June, brings me about write this piece. To confess, I am a strong supporter of the proposal as well as a collaborator to the exponents who are advocating for humanistic hermeneutics of Islamic law through rational and contextual interpretation of the same. I shall get back to the point later again.
Dr. Shahjahan Mondol and Dr. Reba Mondol of the Islamic University, Kushtia have raised, in their jointly written essay, a point that two remarkable sentences of the report is misleading. To refresh our memory, the alleged two sentences are : (a) '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', and (b) the part of the property also goes to collaterals, i.e. uncles. Having gone through their joint 'venture the impression that has developed in my mind is that they failed to understand it completely; perhaps did not pay proper attention on the report. If not so, they must have written it to mislead the people. Mr. and Ms. Mondol, considers the first sentence misleading as, in the words of Mr. and Ms. Mondol, 'daughter never inherits under section 4 of the Muslim Family Laws Ordinance (MFLO), 1961.' I would request the reader to have a look on the very first paragraph of the summary report that has been published in this page on 9 June. Having gone through the report I have no hesitation to say that no where in the report it has been mentioned that the daughter inherits under the MFLO, 1961. Had the writers paid little more attention to the report they would have seen the words 'representative' and 'predeceased' in the middle of the sentence?
The report, unambiguously, has raised the point that under the MFLO, 1961 a daughter, in absence of son, is getting the whole share that her dead father would have got (if alive) in her grandfather's property (where father died before grandfather) while she is being deprived in the normal course of succession. More clearly, the share of a daughter in the father's property in absence of son, we all know, is ½; this same daughter is getting the whole property while she is representing her dead father, of course in absence of son, in the succession of her deceased grand father under the MFLO. The reading of the report is quite unambiguous and straight forward: the report has taken this point up that if in the latter circumstance a daughter can inherit the whole property then why wouldn't she do so in the former situation? Therefore, the Commission has tabled a proposal that should we have had no complain in the last case we may consider and apply the same principle in the first situation. That provision can be made to empower the single daughter, of course in absence of son, to inherit the whole property of the deceased father.
Our distinguished academics simply have missed the point that the Commission has proposed to elevate the status of daughter in absence of son in the normal course of succession as it does under section 4 of the MFLO, 1961. They have, further, alleged that the fact of exclusion of uncle (Full brother of the deceased) and aunty (full sister of the deceased) by daughter does not look pretty. However, the writers are ready to accept them to be excluded by son! To me, it comes from their patriarchal mind set: to deprive daughter (being female) from the equitable right of the share in the father's property. It is also a sign of gendered based discrimination.
Finally, the writers have alleged that increasing share of the daughter will infringe the principle that 'male will get double of the female' of which I shall get back later. Right now, it is illuminating from the report that that is not the intention of the proposal fathered by the Law Commission. The commission has simply taken up the issue to elevate the status of daughter and proposed to make it similar to that of son in absence of son. The report has no where asked to increase the share of the daughter to make it equal to that of son in the normal course of succession. The report only has proposed to increase the share of the daughter in absence of son.
Therefore, there is no space of infringing the principle of the Quran that has been raised by Mr. and Ms. Mondol. The Law Commission, in addition, has appealed for humanitarian application and interpretation of the Islamic law. More specifically, it has appealed to re-interpret the Islamic law by doing ijtihad. I have strong doubt that the proposition of the 'closing door of ijtihad' as it has been applied in the Hefzur Rahman (1999) case is rightly constructed. There is no substantial jurisprudence to support the rumor of the 'closing door of ijtihad' on the one hand and it appears that it had been institutionalised by the Privy Council in colonial India on the other. The colonial judges did so to discourage progressive interpretation of Islamic law as well as to facilitate colonial governance policy.
The conservative approach of judicial activism regarding Islamic law in the post-colonial South Asian countries, one might say, has had a colonial influence. Our judges, still today, are applying the principles that had been established by their master blindly. Modern scholars like W.B. Hallaq (2005) and Nasr Abu Zayd (2004) have expressed strong doubt about the rumor of the closing gate of ijtihad. They have argued that had it been so the progress of the Islamic law would have been stuck.
In addition, they have asked for harmonisation of the principles of Islamic law with international legal norms through humanistic interpretation of the same. Humanistic interpretation requires one to go back to the original sources of law and interpret it considering the present day circumstances. The principle 'male will get double of female' lies to the first verse of Sura 7 of the holy Quran. This principle has been applied generally and therefore son is getting double of the daughter to give effect of this principle. After careful reading of the verse as well as general rules of succession a strong intuition has developed in my mind that this principle is for special circumstances; therefore has no general application. Let me give two reasons behind my intuition.
Firstly, in all circumstances male are not getting double of the female. For example where the propositus has a daughter (D) one full brother (FB) and one son's daughter (SD) the brother is not getting double of the daughter.
As agnatic sharer full brother will get his share as residuary which is 2/3 {1-(1/2 + 1/6}of the whole property; that is less than the daughter. Similarly, where a propositus has mother, father and brother the father is not getting double of the mother.
In this circumstance after giving the share of the father and mother the brother is getting the residue property which is 2/3 {1-(1/6+1/6)} of the whole property (in presence of brother parents will get sixth of the property). Though brother is getting double of mother here, father does not. The second fact that strikes my mind is status of agnatic heirs in the succession. Agnatic sharer (sharer related to deceased person through male) generally gets preference over other sharer in the succession. A careful reading will show that in the presence of son a daughter becomes agnatic sharer which strongly supports my intuition that the intention of the law is, perhaps, to treat son and daughter equally. Should the daughter becomes agnatic heir in presence of son then is there any good reason to support that her share would be less than other agnatic sharer of the same status, i.e. son?
These facts led me to develop a proposition that the principle 'male will get double of female' is for special circumstances; has no general application. Therefore, increasing daughter's share, in any circumstance, wouldn't have, I believe, conflicted with any principle of succession.
To conclude, I must say that the proposal to increase the daughter's share tabled by the law commission is timely, unambiguous and praiseworthy. One must be happy to know that at present we have a number of highly qualified ulemas of whom many have got higher education abroad. I must believe that they are well versed with the Islamic jurisprudence as well as have got developed a modern outlook. We strongly believe that they will come forward to support the law commission's proposal for the betterment of the Muslim community. We should not be oblivious of the fact that 'humanity' was the message which made the difference between Islam and other religion during the formative period of Islam.
We must not forget that the Prophet of Islam had fought for the humanity till the last day of his glorious life. And of course, humanity and discrimination does not go together.
Therefore, it is high time to eliminate all sorts of discrimination to make Islamic law more equitable as well as humanistic.
The writer is Assistant Professor, Faculty of Law, Eastern University.
