By Asghar Ali Engineer
I AM often asked as to why Muslim daughters get half that of the sons’ share in their father’s inheritance. Is it not injustice? We say men and women have equal rights in Islam but if a woman gets half that of her brother in inheritance, how can we justify their equality?
Today many women feel that it is injustice with them, and that they should get an equal portion in their father’s property. Traditionally this objection has been dealt with in various ways.
Firstly, there was no share in inheritance for daughters and Islam created it. Secondly, women were not earning and contributing to the family wealth and, thirdly, a woman goes to her husband’s place and gets a share in her husband’s property. Also, her husband gives her mehr at the time of marriage besides being obliged to maintain her. So it is not injustice even if she gets half the share in her father’s property.
In the encyclopedic work Ikhwanus Safa there is a debate on this issue. The master tells his disciples that Islam has given twice to weaker sections. The disciples ask whether women are among the weaker sections. The master says, yes. The disciples ask why the women are given only one-half in their fathers’ property instead of twice as much as the sons are given. The master says they have not understood the Quranic logic of giving half to daughters. In fact the Quran has given the daughters twice that of sons.
Bewildered the disciples ask how half can be twice? The master then explains: if the father leaves behind 1,000 dirhams, the son will get 500 and the daughter 250. When the son marries, he will give away 250 dirhams by way of mehr and will be left with only 250. But when the daughter marries she will get 250 by way of mehr and will have 250 plus 250, i.e. 500 dirhams, while her brother is left with only 250 dirhams after giving mehr. Thus who gets twice the father’s share, the son or the daughter? Obviously, the daughter.
But this explanation assumes certain things which may not be true in practical life. Firstly, a daughter may not always get a substantial mehr. At times she gets just a nominal mehr. Secondly, these days both working-class women and middle-class women contribute to the family wealth so a woman is entitled to a larger share. In those days women generally did not work (though in some cases they did).
Thirdly, in many cases a woman may not get married and have no mehr so after her parents’ death she would have to maintain herself. In such a case, the cited Ikhwanus Safa explanation will also not work. But various schools of Muslim law insist that a daughter cannot get more than half that a son gets. But the Quran certainly is not insensitive and leaves space for justice.
The Quranic verses on inheritance end with the proviso that after paying “a bequest you may have bequeathed or a debt” (4:11-12) – and the Quran has repeated this four times – the remaining will go to the inheritors as laid down in the Quran. Thus, the person who leaves behind his property has every right to make a will in favour of anyone he likes.
The jurists have argued that these verses were annulled after the verses on inheritance were revealed. Here we do not have space to argue that it is not so. Those who are interested in this discussion may see books of jurisprudence and differences between jurists on this question. However, one finds a very interesting discussion on this in Maulana Umar Ahmad Usmani’s book Fiqh al-Quran, Volume 7, (Karachi, 1986).
The Quranic injunction for will stands and the father has every right to will extra in favour of his daughter who cannot or does not want to marry so that she can carry on comfortably after her father’s death. Or in some cases a daughter may be physically challenged and may not get married and hence she cannot be looked after properly after her parents’ death. Also, these days, many women from the middle class work and contribute to family wealth; hence they may be given equal share in their fathers’ property.
The Quran has created a share for women when it did not exist among Arabs in the pre-Islamic period. The Quran gave them equal rights in all spheres, so it will be in keeping with the canons of justice if more is given to them, especially by way of will (wasiyyah) by the fathers to safeguard their future.
The writer is an Islamic scholar who heads the Centre for Study of Society and Secularism, Mumbai.