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FINANCIAL
SECURITY AND INHERITANCE LAWS
The
right to possess personal property
One
aspect of the world-view of Islam is
that everything in heaven and earth
belongs to Allah:
To
Allah belongs all that is in the
heavens and on earth... (Qur’an
2:284)
As
such, all wealthy and resources are
ultimately “owned” by Allah.
However, out of Allah’s mercy He
created mankind to be, collectively, his
trustees on earth. In order to help
mankind fulfill this trustee- ship, he
made the universe serviceable to
mankind:
And
He (Allah) has subjected to you,
as from Him, all that is in the
heavens and on earth: behold, in
that are signs indeed for those
who reflect. (Qur’an 45:13)
It
is the human family that is addressed in
the above and in other verses of the Qur’an.
And since that family includes both
genders, it follows that the basic right
to personal possession of property (as
Allah’s trustees) applies equally to
males and females. More specifically:
The
Shari‘ah (Islamic Law) recognizes the
full property rights of women before and
after marriage. They may buy, sell or
lease any or all of their properties at
will. For this reason, Muslim women may
keep (and in fact they have
traditionally kept) their maiden names
after marriage, an indication of their
independent property rights as legal
entities.
Financial
security is assured for women. They are
entitled to receive martial gifts
without limit and to keep present and
future properties and income for their
own security, even after marriage. No
married woman is required to spend any
amount at all from her property and
income on the household. In special
circumstances, however, such as when her
husband is ill, disabled or jobless, she
may find it necessary to spend from her
earnings or savings to provide the
necessities for her family. While this
is not a legal obligation, it is
consistent with the mutuality of care,
love and cooperation among family
members. The woman is entitled also to
full financial support during marriage
and during the waiting period (‘iddah)
i n case of divorce or widowhood. Some
jurists require, in addition, one year’s
support for divorce and widowhood (or
until they remarry, if remarriage takes
place before the year is over).
A
woman who bears a child in marriage is
entitled to child support from the child’s
father. Generally, a Muslim woman is
guaranteed support in al stages of her
life, as a daughter, wife and mother or
sister. The financial advantages
accorded to women and not to men in
marriage and in family have a social
counterpart in the provisions that the
Qur’an lays down in the laws of
inheritance, which afford the male, in
most cases, twice the inheritance of a
female. Males inherit more but
ultimately they are financially
responsible for their female relatives:
their wives, daughters, mothers and
sisters. Females inherit less but retain
their share for investment and financial
security, without any legal obligation
to spend any part of it, even for their
own sustenance (food, clothing, housing,
medication, etc).
It
should be noted that in pre-Islamic
society, women themselves were sometimes
objects of inheritance. In some Western
countries, even after the advent of
Islam, the whole estate of the deceased
was given to his/her eldest son. The Qur’an
however , made it clear that both men
and women are entitled to a specified
share of the estate of their deceased
parents or close relations:
From
what is left by parents and those
nearest related, there is a share
for men and a share for women,
whether the property be small or
large-a determinate share (Qur’an
4:7)
Employment
With
regard to the woman’s right to seek
employment, it should be stated first
that Islam regards her role in society
as a mother and a wife as her most
sacred and essential one. Neither maids
nor baby sitters can possibly take the
mother’s place as the educator of an
upright, complex-free and
carefully-reared child. Such a noble and
vital role, which largely shapes the
future of nations, cannot be regarded as
“idleness.” This may explain why a
married woman must secure her husband’s
consent if she wishes to work, unless
her right to work was mutually agreed to
as a condition at the time of marriage.
However,
there is no decree in Islam that forbids
women from seeking employment whenever
there is a necessity for it, especially
in positions which fit her nature best
and in which society needs her most.
Examples of these professions are
nursing, teaching (especially children),
medicine, and social and charitable
work. Moreover there is no restriction
on benefiting from women’s talents in
any field. Some early jurists, such as
Abu-Hanifah and Al-Tabari, uphold that a
qualified Muslim woman may be appointed
to the position of a judge. Other
jurists hold different opinions. Yet, no
jurist is able to point to an explicit
text in the Qur’an or Sunnah that
categorically excludes women from any
lawful type of employment except for the
headship of the state. Omar, the second
Caliph after the Prophet (P), appointed
a woman (Um Al-Shifaa’ bint
Abdullah) as the marketplace
supervisor, a position that is
equivalent in our world to “director
of the consumer protection department.”
In
countries where Muslims are a numerical
minority, some Muslim women, while
recognizing the importance of their role
as mothers, may be forced to seek
employment in order to survive. This is
especially true in the case of divorcees
and widows and in the absence of the
Islamic financial security measures
outlined above.
Inheritance
In
the ancient world woman inherited
nothing and, even when she inherited,
she was treated like a minor. She had no
independent legal personality. According
to certain ancient legal systems, a
daughter received an inheritance but her
children did not. On the other hand, a
son not only received an inheritance
himself, but his children also inherited
the property left by their grandfather.
Certain other legal systems allowed
woman to inherit but not in the form of
a definitely prescribed share, or in the
language of the Qur’an ‘an appointed
share’. They simply allowed a
progenitor to make a bequest in her
favor, if he so desired.
Historians
and investigators have given detailed
accounts of the various laws of
inheritance found in the ancient world,
but we need not go into all their
details. For our purpose, the above
given summary is enough.
The
main reason of the deprivation of woman
of inheritance was the prevention of
transfer of wealth from one family to
another. According to the old belief,
the women’s role in procreation was
insignificant. The mothers served only
as receptacles, where the seed of the
father developed into a child. On this
account, they believed that the children
of a man’s son were his own children
and a part of his family, but the
children of a man’s daughter were not
a part of his family, for they were a
part of the family of their paternal
grandfather. Thus, had a daughter
received an inheritance, that would have
meant the transfer of property to her
children, who belonged to a family
unconnected with that of the deceased.
The
late Dr. Musa ‘Ameed says that in the
olden days religion, and not any natural
relationship, was the basis of the
formation of a family. The grandfather,
besides being the social head of his
children and grandchildren, used to be
their religious head also. The execution
of religious ceremonies and rituals was
handed down to succeeding generations
through the male descendants only. The
ancients regarded only men as the means
of preserving progeny. The father of the
family not only gave life to his son,
but also passed to him his religious
beliefs and rituals. According to the
Hindu Vedas and the Greek and the Roman
laws, the power of procreation was
confined to men only, and hence family
religions were the monopoly of men, and
women had no hand in religious affairs
except through their fathers or
husbands. As they could not take part in
the execution of religious ceremonies,
they were naturally deprived of all
family privileges. Hence, when the
system of inheritance came into being,
they were excluded.
The
exclusion of woman from inheritance had
other reasons also, one of them being
that she was not fit to be a good
soldier. In a society in which great
value was attached to the heroic deeds
and the power of fighting, and a warrior
was regarded superior to a hundred
thousand non-fighters, woman was
deprived of inheritance, because she
lacked the fighting capacity.
For
this very reason, the pre-Islamic Arabs
were opposed to inheritance by woman,
who could not inherit as long as a male
member of the family, howsoever distant,
existed. That is why they were greatly
surprised, when the Qur’an expressly
said: “For men is a share of what
the parents and the near relatives
leave, and for women is a share of what
the parents and the near relatives
leave, whether it be little or much - an
appointed share’, (Surah an-Nisa,
4:32)
It
so happened that the brother of Hassan
bin Thabit, the famous poet, died in
those very days, leaving behind a wife
and several daughters. His paternal
cousins appropriated all his property
and did not give anything to his widow
or daughters. The widow complained to
the Holy Prophet who called her deceased
husband’s cousins. They said that a
woman was unable to carry arms and to
fight the enemy. It was the men who
defended themselves and the women.
Hence, they alone had the right to
inherit the property. Thereupon, the
Holy Prophet conveyed to them the
command of Allah, as revealed in the
above quoted verse.
Woman’s
inheritance in Islam
The
Islamic law of inheritance is free from
all the short-comings and defects of the
past. The only thing, which is
objectionable in the eyes of the
upholders of equality between man and
woman, is that the share of woman is
half that of man. According to the
Islamic law, a son receives twice as
much as a daughter, a brother twice as
much as a sister and a husband twice as
much as a wife. The case of father and
mother is the only exception.
If
a deceased has children and his parents
are also alive, each of his parents will
get one-sixth of the property left by
him. It is because of woman’s special
position with regard to dower,
maintenance, military service and some
of the criminal laws, that her share has
been fixed at half that of man.
For
reasons mentioned earlier, Islam
considers dower and maintenance
essential and effective in the
consolidation of a marriage. They ensure
domestic harmony and coherence. The
abolition of them is likely to shake the
family structure and to push woman to
prostitution. The dower and maintenance
being compulsory, naturally woman’s
financial commitments have been reduced
and man’s burden has proportionately
increased. To compensate man for his
extra burden, his share in inheritance
has been fixed at twice that of woman.
It is dower and maintenance which have
reduced woman’s share.
Objection
of the Westernized
Some
Westerners, while criticizing woman’s
lesser share in inheritance and using it
as a propaganda weapon against Islam,
assert that, after all, there is no
necessity of lessening woman’s share
in inheritance and compensating her for
the loss by allowing her dower and
maintenance. Is there any need of going
into bylanes and adopting out-of-the-way
methods? Why should not woman’s share,
from the beginning, be equal to that of
man so that we may not he compelled to
compensate her by allowing her dower and
maintenance?
The
gentlemen, who happen to be more
royalists than the king, have mistaken
the cause for the effect and the effect
for the cause. They think that the dower
and the maintenance are the effects of
women’s peculiar position with regard
to inheritance, whereas the real
position is just the reverse. Further,
they seem to be under the impression
that the financial aspect is the only
consideration. Had that been the only
consideration, obviously there would
have been neither the need of the system
of dower and maintenance nor that of
disparity between the shares of man and
woman. As we have mentioned earlier,
Islam has taken into consideration many
aspects, some of them natural and others
psychological. It has considered woman’s
special needs, arising out of her
procreative function. Man naturally has
no such needs. Besides, on the one hand,
woman’s earning capacity is less than
that of man and, on the other, her
consumption of wealth is more. In
addition, there are several other finer
aspects of their respective mental
make-up. For example, man always wants
to spend for the sake of the woman of
his choice. Other psychological and
social aspects, which help in the
consolidation of the domestic relations
have also been considered. Taking all
these points into consideration, Islam
has made dower and maintenance
obligatory. Thus, it is not simply a
financial question, so that it may be
said that there is no need of reducing
woman’s share at one place and
compensating her at another.
Objection
of the heretics of the early Islamic era
We
have said that the dower and the
maintenance are a cause and the peculiar
position of woman with regard to
inheritance is its effect. This point is
not a new discovery. It came up even in
the early days of Islam.
In
the second century of the Hijri era
there lived a man named Ibn Abi al-’Awja,
who did not believe in religion. Taking
advantage of the religious freedom of
that period, he openly gave expression
to his atheistic ideas. Sometimes he
even came to the Masjid al-Haram (in
Mecca) or Masjid al-Nabi (in Madina) and
engaged in arguments on the principles
of Islam with the scholars of that time.
One of his objections against Islam
concerned inheritance. He used to say:
“What is the fault of the poor woman
that she gets one share whereas the man
gets two”. According to him, this was
injustice to woman, the Imam Ja’far
as-Sadiq (P), in reply to him, said that
it was so, because woman was exempted
from performing military service.
Further, Islam had enjoined upon man to
pay her dower and maintenance and, in
certain criminal cases where the kinsmen
of the offender had to contribute to the
blood-money, she was exempted from such
payment. These were the reasons why her
share had been reduced. Thus Imam Sadiq
expressly attributed woman’s peculiar
position, with regard to inheritance, to
the existence of the law regarding dower
and maintenance and her exemption from
military service and the payment of
blood- money.
Female
Inheritance in Islam and the
Judeo-Christian Tradition
One
of the most important differences
between the Quran and the Bible is their
attitude towards female inheritance of
the property of a deceased relative. The
Biblical attitude has been succinctly
described by Rabbi Epstein: “The
continuous and unbroken tradition since
the Biblical days gives the female
members of the household, wife and
daughters, no right of succession to the
family estate. In the more primitive
scheme of succession, the female members
of the family were considered part of
the estate and as remote from the legal
personality of an heir as the slave.
Whereas by Mosaic enactment the
daughters were admitted to succession in
the event of no male issue remained, the
wife was not recognized as heir even in
such conditions.” Why were the female
members of the family considered part of
the family estate? Rabbi Epstein has the
answer: “They are owned-before
marriage, by the father; after marriage,
by the husband.”
The
Biblical rules of inheritance are
outlined in Numbers 27:1-11. A wife is
given no share in her husband’s
estate, while he is her first heir, even
before her sons. A daughter can inherit
only if no male heirs exist. A mother is
not an heir at all while the father is.
Widows and daughters, in case male
children remained, were at the mercy of
the male heirs for provision. That is
why widows and orphan girls were among
the most destitute members of the Jewish
society.
Christianity
has followed suit for long time. Both
the ecclesiastical and civil laws of
Christendom barred daughters from
sharing with their brothers in the
father’s patrimony. Besides, wives
were deprived of any inheritance rights.
These iniquitous laws survived till late
in the last century [46].
Among
the pagan Arabs before Islam,
inheritance rights were confined
exclusively to the male relatives. The
Quran abolished all these unjust customs
and gave all the female relatives
inheritance shares:
“From
what is left by parents and those
nearest related there is a share
for men and a share for women,
whether the property be small or
large-a determinate share”
(4:7).
Muslim
mothers, wives, daughters, and sisters
had received inheritance rights thirteen
hundred years before Europe recognized
that these rights even existed. The
division of inheritance is a vast
subject with an enormous amount of
details (4:7,11,12,176). The general
rule is that the female share is half
the male’s except the cases in which
the mother receives equal share to that
of the father. This general rule if
taken in isolation from other
legislations concerning men and women
may seem unfair. In order to understand
the rationale behind this rule, one must
take into account the fact that the
financial obligations of men in Islam
far exceed those of women. A bridegroom
must provide his bride with a marriage
gift. This gift becomes her exclusive
property and remains so even if she is
later divorced. The bride is under no
obligation to present any gifts to her
groom. Moreover, the Muslim husband is
charged with the maintenance of his wife
and children. The wife, on the other
hand, is not obliged to help him in this
regard. Her property and earnings are
for her use alone except what she may
voluntarily offer her husband. Besides,
one has to realize that Islam vehemently
advocates family life. It strongly
encourages youth to get married,
discourages divorce, and does not regard
celibacy as a virtue. Therefore, in a
truly Islamic society, family life is
the norm and single life is the rare
exception. That is, almost all
marriage-aged women and men are married
in an Islamic society. In light of these
facts, one would appreciate that Muslim
men, in general, have greater financial
burdens than Muslim women and thus
inheritance rules are meant to offset
this imbalance so that the society lives
free of all gender or class wars. After
a simple comparison between the
financial rights and duties of Muslim
women, one British Muslim woman has
concluded that Islam has treated women
not only fairly but generously.
Apart
from recognition of woman as an
independent human being acknowledged as
equally essential for the survival of
humanity, Islam has given her a share of
inheritance. Before Islam, she was not
only deprived of that share but was
herself considered as property to be
inherited by man. Out of that
transferable property Islam made an
heir, acknowledging the inherent human
qualifies in woman. Whether she is a
wife or mother, a sister or daughter,
she receives a certain share of the
deceased kin’s property, a share which
depends on her degree of relationship to
the deceased and the number of heirs.
This share is hers, and no one can take
it away or disinherit her. Even if the
deceased wishes to deprive her by making
a will to other relations or in favor of
any other cause, the Law will not allow
him to do so. Any proprietor is
permitted to make his will within the
limit of one-third of his property, so
he may not affect the rights of his
heirs, men and women. In the case of
inheritance, the question of quality and
sameness is fully applicable. In
principle, both man and woman are
equally entitled to inherit the property
of the deceased relations but the
portions they get may vary. In some
instances man receives two shares
whereas woman gets one only. This no
sign of giving preference or supremacy
to man over woman. The reasons why man
gets more in these particular instances
may be classified as follows:
First
man, is the person solely responsible
for the complete maintenance of his
wife, his family and any other needy
relations. It is his duty by Law to
assume all financial responsibilities
and maintain his dependents adequately.
It is also his duty to contribute
financially to all good causes in his
society. All financial burdens are borne
by him alone.
Secondly,
in contrast, woman has no financial
responsibilities whatsoever except very
little of her personal expenses, the
high luxurious things that she likes to
have. She is financially secure and
provided for. If she is a wife, her
husband is the provider; if she is a
mother, it is the son; if she is a
daughter, it is the father; if she is a
sister; it is the brother, and so on. If
she has no relations on whom she can
depend, then there is no question of
inheritance because there is nothing to
inherit and there is no one to bequeath
anything to her. However, she will not
be left to starve, maintenance of such a
woman is the responsibility of the
society as a whole, the state. She may
be given aid or a job to earn her
living, and whatever money she makes
will be hers. She is not responsible for
the maintenance of anybody else besides
herself. If there is a man in her
position, he would still be responsible
for his family and possibly any of his
relations who need his help. So, in the
hardest situation her financial
responsibility is limited, while his is
unlimited.
Thirdly,
when a woman gets less than a man does,
she is not actually deprived of anything
that she has worked for. The property
inherited is not the result of her
earning or her endeavors. It is
something coming to them from a neutral
source, something additional or extra.
It is something that neither man or
woman struggled for. It is a sort of
aid, and any aid has to be distributed
according to the urgent needs and
responsibilities especially when the
distribution is regulated by the Law of
God.
Now,
we have a male heir, on one side,
burdened with all kinds of financial
responsibilities and liabilities. We
have, on the other side, a female heir
with no financial responsibilities at
all or at most with very little of it.
In between we have some property and aid
to redistribute by way of inheritance.
If we deprive the female completely, it
would be unjust to her because she is
related to the deceased. Likewise, if we
always give her a share equal to the man’s,
it would be unjust to him. So, instead
of doing injustice to either side, Islam
gives the man a larger portion of the
inherited property to help him to meet
his family needs and social
responsibilities. At the same time,
Islam has not forgotten her altogether,
but has given her a portion to satisfy
her very personal needs. In fact, Islam
in this respect is being more kind to
her than to him. Here we can say that
when taken as a whole the rights of
woman are equal to those of man although
not necessarily identical (see Qur’an,
4:11-14, 176).
The
superiority of the Qur'an's commandment
over the modern one with respect to the
female inheritance
The
Qur’an decrees that the male shall
receive the portion of two females (in
inheritance).
The
Qur’anic injunction of inheritance is
perfectly just and a perfect mercy for
women. It is just because, in the
majority of cases, and according to the
Islamic Law, the husband provides both
for the wife’s and the children’s
livelihood, whereas the wife is not
under any legal obligation to provide
either for him or for herself. Thus she
is compensated for the half-share less
that she is allocated from any
inheritance than the man. It is a
perfect mercy because a girl is
delicate, vulnerable and so is held in
great affection by her father who,
thanks to the Qur’anic injunction,
does not see her as a child who will
cause him loss by carrying away to
others half of his wealth. In addition,
her brothers feel compassion for her and
protect her without feeling envy of her,
as they do not consider her as a rival
in the division of the family
possessions. Thus, the affection and
compassion which the girl enjoys through
her family compensate for her apparent
loss in the inheritance.
It
is for this reason that it is severe
injustice, far from being kindness, to
institute more for the girl than her due
out of unrealistic feelings of
compassion-unrealistic because no one
can be more compassionate than God.
Rather, if the Qur’anic bounds are
exceeded, women may become, for the
reasons we have given, vulnerable to
exploitation and tyranny in the family,
especially in view of the barbaric
selfishness of modern times-which can be
as bad as the tyranny of the jahiliyya
(the pre-Islamic age of ignorance) when
infant girls were buried alive. As for
the Qur'anic injunctions, all of them,
like those pertaining to inheritance,
prove the truth expressed in the verse, We
have not sent you (o Muhammad), save as
a mercy unto all beings.
Modern
civilization, which, in essence, is a
system of savagery because it lacks real
human values, wrongs mothers more than
girls by depriving them of their rights.
Being the purest and finest reflection
of Divine compassion, the affection of
mothers is the most revered reality in
the creation. A mother is so
compassionate, self-sacrificing and
intimate a friend that she sacrifices
all she has including her life for her
children. A timid hen, for instance,
whose motherliness represents the lowest
degree, has been observed to attack a
dog in order to protect her chicks.
It
is, for this reason, plain to those who
are really human, if not to those who
appear human but are bestial in essence,
what a great injustice and shameful
disrespect, what a heart-rending
ingratitude and a harmful poison for
social life it is, to deprive such a
respected, dear being of her rightful
share in the wealth of her son. As for
the Qur’anic injunction, which gives
the mother one sixth of her son’s
inheritance, as in the verse, And to
his mother a sixth, it is in perfect
accordance with justice and universal
truths.
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