Sharia is an Arabic word that refers to the body of Islamic religious law which means ‘the path’ or ‘way to water source. It is an Islamic legal framework on the public and private aspects of life for those within the legal system which is based on Islamic principles of jurisprudence. Islamic Law has mainly two primary law sources that include the Quran and Sunna.
Islamic law of inheritance is found within the Islamic Sharia law and is considered to be one of the most important subjects as well as the most difficult by scholars. It has been a major subject of discussion among the Muslim scholars especially between the English speaking Muslims who are very few in the world and those that are non- English speakers. The non- Muslim community have also been interested in the subject and it is believed that the Islamic raw of inheritance is highly appreciated and recognized by a large part of the world for its divine justness and equitability
In the Muslim community every follower of Islamic teachings must be well versed with the law and if ignorant on this aspect of Islamic law either because one does not consider it important or is just out of ignorance then one must face the consequences of such actions. These actions are stated in the ayatan immediately following the ayatan on inheritance (Quran 4:11:12). This is also disobeying Allah and his messenger, transgressing his limits and which lead to fire and disgraceful torments. (Quran 4:13:14)
Knowledge of this Islamic law of inheritance (Ilim al-faraid) falls into the category of Ilm kafiyyah (like salat-ul-jannazah) meaning it is a community responsibility (Mallat et al P9). This law just like all the other sharia law is based on the Quran (the religious text of Islam), hadith (sayings and actions of Prophet Muhammad and his companions), Ijma (consensus or the agreements), Qiyas which is reasoning by analogy and others such as long held debate, interpretation and precedent.
Islamic law of inheritance as discussed by Dr A Hussein is confined to the traditional Sunni Law which is one of the primary law sources of Islamic sharia after the Quran. In The Muslim community there are crucial duties to be carried out after one the member dies such as the execution of his/her will and the distribution of the remaining estates amongst the heirs according to Sharias. This however will only be effective and considered right if it acts within all the commandments of Allah for no believer, be it man or woman has any personal opinion concerning matters already decided by Allah and his messenger (Quran 33:36). Determining which relative of the deceased is entitled to the share of inheritance and the quantum share each heir is entitled to become the prior task in the whole process.
Earlier before the revelation & injunctions of Quranic laws of inheritance were revealed, there were other laws that existed within the Arabian Peninsula. Though the system of how that Arabian Peninsula operated has not been discussed fully, it is however clear that, women had no right to inheritance. The system of inheritance was only confined to the male agnate relatives also known as “asaba” of the deceased. Amongst these male relatives there was a system of rules to be followed in order of priority, determining which of the present males was entitled to inheritance. This system of priority in the old customary system is believed to be a carry-over of the Islamic law where the son takes priority over the father, who in turn takes priority over their brothers who in turn take priority over the paternal uncles.
Dr Abdi Hussein argument was that one needed to understand the old customary law in order to comprehend more on Islamic law of inheritance as a whole for the Quranic law was a modification of that Arabian law. The injunctions of Quranic law however was not to completely replace the old customary male agnatic system but merely to recognize the position of women and make it a complete and a cohesive system. These rights of women were recognized and accepted by Prophet Muhammad himself. Abdullah Abbas reported prophet Muhammad words, “Give the Faraid (the shares of the inheritance that are prescribed in the Quran) to those who are entitled to receive it”. (Abdi Hussein)
The Sunni jurist argues that the specifications of entitlement and shares of female relatives not only elevated the position of women but also safeguarded their social and economic interests as from 1400 years ago. This line of argument was however not endorsed by the Shia jurists. Shia jurists are also a source of Islamic Sharia but against some of the Quranic Law adopted after Old Customary Law.
The first law of Inheritance is that a male is to inherit a share equivalent to that of two females. This meant that a son inherits a share equal to that of two daughters, a brother to inherit twice as much as a sister. This first inheritance law is considered a violation of international human rights and quite a number of Non Governmental Organizations (NGOs) and liberal personalities have demanded inheritance rights which are equal.
The argument against this law is that more than 30% of Egypt families have the mother as the sole provider and husband not working. The question is if the mother is the provider, why should she only inherit a half of the male share. (Siraj Sait et al 125). A close scrutiny of the rights of women in this inheritance law becomes difficult to come to proper conclusion that women are placed in a better position than they were, earlier. Both the systems clearly favor the men over women. The Quranic law however argues that this is not female discrimination but rather the substantial male responsibility recognized in supporting his own wife and children.
The principle that the male was to receive an equivalent of two female shares was not always applicable. A situation when this is not always applicable is when a decedent is survived by a wife and parents, the wife receives one-fourth of his estate, the mother a one- third and the father receives five- twelfth. In such a case the father will not receive a half of what the mother receives. The legal fraternity argued that the mother was actually not to receive a third of the property but rather a third of what remained in the estate after the wife has already taken her share. Under this kind of interpretation the wife is to take one fourth which is one third of the residuary, three fourths and the father to take the residuary one half of the inheritance, in order to secure his double portion.
In the Quranic law there are named heirs who are referred in other books as takers and they include; the decedents husband; wife; siblings of the decedents who share the same mother as the decedent, the decedent mother, father, daughter, sisters who have the same parents as the decedent, sisters who share the same father, agnatic grandfather, grandmother and agnatic granddaughter of the decedent. Each has a specific prescribed share of the estate which may again be modified and some of the heirs may end up getting zero if the decedent is survived by an agnatic descendant. For instance under Quranic law the husband is entitled to a half of the property share if there is no agnatic descendant and one- fourth if there is agnatic descendant.
Other heirs may become residuary heirs if they are survived by another relative. A case in point is where the daughter is the only survivor, she is entitled to a half the property but if there is a son, the daughter becomes the residuary taker who shares in the residue. This principle for double share for males however may end up in situations where the female family member end up getting equal shares or even greater shares of decedent’s property than the male who is not of the same rank. Mary Radford cites an example where a wife dies and is survived by a husband, daughter and a brother (to the wife). The property is to be shared as follows: one fourth to the husband, one half to the daughter and one fourth to her brother. In such a case the husband and the brother of the wife receives each half of the amount received by the daughter.
If women are more than two; that includes even the daughters, then they get two- third of the inheritance and if one then she gets a half of the share. If there are no sons the daughter is the Quranic heir or sharer. The Islam has shown utmost seriousness in ensuring the specific proportion of the women. According to the Quranic law there are twelve Quranic sharers and among them four are men and the rest are women.
Anjuam Ara on rights of women states that, infact women in Islamic law are much more favored financially than their male counterparts for various reasons: Any gift given before marriage by the woman fiancé is her own and the husband has no legal right to claim it. Also the wife is entitled to receive a marriage gift known as Morh and this becomes her own property. Even if the wife is rich, all the household requirements like food, clothing, housing medication and recreation and so on are her husband’s. Any wife’s income earned through investment is entirely her own, not forgetting that a divorcee woman is entitled to maintenance from her husband in waiting.
Based on this argument Ara argues that men need extra share to discharge the family responsibility, social responsibility etc incumbent upon him.
Different discussions and attitudes towards women’s roles and rights are however seen to emanate less on religious considerations. The regional considerations are seen to be the main source of conflict and disparities. The passage of 1937 Shariat act pertaining to the inheritance rights of Muslim women had the objective of uniting the community under one legislation. The fact that the law did include the right of women to landed property, as prescribed in the sharia showed that Muslim leaders were more interested in unity than women (Tohidi 235)
The present body of Islamic law that involves the duties and status of a Muslim woman was derived largely from the male jurists and scholars especially those of the classical age of Islamic civilization (Joanne Bauer et al 178). This heritage has been the point of argument that provides a challenge for the contemporary Muslim women as they double their efforts to reclaim their rights and fight for equal status of the women in their societies.
Muslim women particularly in Indonesia and Malaysia struggle are doubly problematic. The conflict is not only between the traditionalist versus modernist understanding of legal heritage but also between Malay cultural traditions and such traditions derived from Middle Eastern Islam (Bauer 178)
The principle of limiting a female’s inheritance right to the value of half of whatever her male siblings inherit is an example of a case full of controversy between South East Asian women who often go against the matrilineal rules of kinship and inheritance long practiced in areas such as Negeri Sembilan in Malaysia and in Minangkabau and part of Aceh in Indonesia. This is despite the emphasis on female property rights and these regions are historically known as centers of Islamic activism and renewal.
The activism on the part of the Islamic women heightens the complexity and sensitivity of the rights of inheritance of women. While some agitate for civil rights to equal shares others argue that women assert rights to generally own and manage their properties and businesses but the idea of inheritance is religious and any attempt to change will results to a change in Islamic religion and doctrines. In 2000 the Kenyan women Muslim went to the streets demonstrating against what they termed as, ‘Islamic doctrines violation’ where the government had tried to agitate for equal rights. The Kenyan Islamic women were contented with the Islamic provisions and wanted no intervention from the non- Muslims. (Saiti et al 125)
Saudi Arabia is a case where women are not at all allowed to exercise any rights and cases of female activism are zero. Going back to its history Saudi Arabia is an Islamic monarchy which has no elected representatives or political parties ruled by King Fald bin Abdi Al- Aziz al Saudi. The Saudi Arabian government has since declared the Islamic Holy Book the Koran and the Sunna (tradition) of the prophet Muhammad to be the country’s constitution. The basic argument by Muslim female activist to have an equal share of inheritance to both men and women and not on the principles that the male receives two times higher share as compared to female was dismissed by some Muslim fraternity who argued that the distortion will lead to alterations in Islamic religion and doctrine on which the Quranic law is based.
The Saudi Arabian government based its legitimacy on governance on that conservative form of Islam and neither the government nor the society has a right to separate religion and state. Thus the establishment of political parties was prohibited and seen as one that would create opposing views. The country reports on human rights practices 2001 released by Bureau of democracy, human rights and labor indicate that Saudi Arabian government’s human rights record remain poor. Among the human’s rights violation are prolonged detention without trial, criminal offences created by security forces, citizens privacy right’s are infringed on by the governments, no freedom of speech, the press assembly, association, religion and movement. Other continuing problems included discrimination and violence against women discrimination against ethnic and religious minorities and strict limitations on workers rights (Bureau of Democracy Human Rights and Labour)
The interpretation of Islamic laws as the only sole guidance on human rights is a view of the government and dismisses any internationally accepted definitions of human rights. The reports highlights zero role of women in government and politics. They are actively discouraged from participation although some women can seek redress through a close female member of the royal family and on rare occasions they have been called to offer advice in private ‘closed door sessions’
By Quranic law and social custom, women have a right to own property and entitled to financial support from their husbands or male relatives. However a Saudi Arabian woman has few political or social rights and is not treated as an equal member of society. The matter is made worse by the fact that there are no active women’s rights groups. Among the restrictions a woman faces include; restricted use of public facilities in presence of men, they are not to drive motor vehicles, not to mix with their male counterparts at all. The entrance of city buses has separate rear entrances and sit-in sections are also separate. Women are not to be admitted for medical treatment without the consent of a male relative and cannot undertake domestic or foreign travel alone.
The way of dressing is also restricted and a woman is expected to wear an abaya (a long black garment that covers the entire body) with the head and hair concealed. Taking a closer look to the violations of women rights on inheritance under Sharia court in Saudi Arabia country they are more subject to discrimination as compared to the Islamic countries in the continent. Saudi Arabia customs are standard and should be emulated by the other Arab and African countries according to the government of Saudi Arabia.
The view that the rights or wrongs of the law of inheritance of women is largely dependent on the region the woman come from due to social-cultural practices is basically true when it comes to Saudi Arabian woman. Both the political and social environment is not women friendly because of various legal and societal barriers especially regarding employment and freedom of movement. Such rights as those provided by the Sharias for women to own and dispose property independently are a rare case in Saudi Arabia.
The practice of polygamy is allowed but only to four wives. Due to demographic and economic changes this practice has become less common, instead the husband are participating in Ah-Mesyan marriage which is a short day time visit or also called `weekend marriages.` Women participate in this weekend marriage for financial support and night time cohabitation due to its legality in Islamic law. The husband does not inform the other wives or at least is not required by any law to inform the wife and any child resulting from such marriages have no claim on the inheritance share.
The acceptance or renunciation of Inheritance Rights of Women across the world whether in Islamic or non-Islamic regions largely depends on a number of factors: Personalities, attitudes, which mostly depend on cultural practices such as customs, gender, kinship and property. Religion plays a key role too. Therefore the discussion of Women Inheritance Rights as confined under Sunni Law should be approached holistically.
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