Women’s right to property under Muslim Law

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Property changes hands by the way of transfer or inheritance and succession. The question of inheritance of property arises after the death of a person. When a person ceases to exist his inherited and self-acquired property is divulged into his Kith and Kin. Property is distributed amongst surviving successors who are defined by the law. In India, the Constitution has adopted Muslim Personal Law for distributing the property of a deceased to his living successors whereas Muslim Law constitutes four main sources of Islamic law. These sources are the fundamental roots of Muslim law. In this article, a brief description is provided regarding the primary sources of Muslim law of succession and the rights of women to property. 

Sources of Muslim Law

Quran

According to Muslim law, the Quran is a divine revelation given to Prophet Muhammad and is one of the primary sources of Islamic Law. The word ‘Quran’ is derived from the Arabic word ‘Quarra’, meaning to read. The Islamic society and religion originated from the Quran, containing the word of god communicated through the angel Gabriel to Prophet Muhammad. The structure of Islam rests on the word of the Quran which regulates the individual, secular, social, and spiritual life of Muslims. The word of the Quran was given to the world in fragmentary forms, originally for the repealing objectionable customs including unlimited polygamy, usury, gambling, etc. Quran can be in no way altered or changed; therefore, the courts of law do not have the authority to change the meaning of the words of the Quran.

Sunna

“The model behavior of the Prophet,” denotes certain types of precedents and practices. As per the beliefs of the Muslim people, the revelations were of two types, zahir (manifest) and batin (internal). Zahir is a communication of words of god by the angel Gabriel and Prophet Mohammad. Batin is Prophet’s opinion which is delivered from time to time to answer the questions raised by him. It shows the narration of what the Prophet did, said or is allowed and known as Hadis or traditions.  Both Quran and Sunna are the fundamental roots of Islamic law. 

Ijma

“Consensus of Jurist’s opinion,” agreement of Muslim Jurists (Mujtahids) of a particular age on a particular topic is known as Ijma. The original law-making process in the Islamic religion ended after the death of the Prophet; therefore the unanswered questions were solved either by the principles of the Quran or Sunna. If the questions were not resolved through their principles, then were decided by the Mujtahids with the introduction of the institution of Ijma. Basically, there are three types of Ijma, Ijma of the Jurists (the decision of the jurists is accepted), Ijma of the people (the majority opinion of Muslim people is accepted as law), and Ijma of Companions (the opinion of the prophet’s companion is accepted and is unrepealable). 

Qiyas

Reasoning by analogy from Quran, Sunna, and Ijma is known as Qiyas wherein rules are deduced by the exercise of reason. Qiyas helps in discovering a law but it does not initiate the establishment of a new law; thus, determined as the weakest source of law. 

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Muslim Inheritance law

• In Muslim culture, the factor of inheritance emerges only after the death of a person. According to Muslim personal law, the property that belongs to any living person cannot be inherited as well as it does not acknowledge the ‘right to property by birth’ that exists in Hindu law. This means that any child born in a Muslim family does not have a right to property at the time of his birth.
• The volume of inheritance is determined only after the primary duties of the deceased are fulfilled including funeral expenses, debts, wages, and others. It can also be said that the actual distribution of the inheritance initiates after the completion of such duties of the deceased.
• The Muslim law does not distinguish between moveable and immovable assets; all the belongings of the deceased are meant for inheritance.
• There is no distinction between self-acquired and ancestral property, which means both properties are equally available for inheritance.
• Sharers and reliquaries are the two types of heirs as per Muslim personal law. The sharers include Husband, Wife, Daughter, Son’s Daughter, Father, Mother, Paternal Grandfather, Grandmother on the male line, full Sister, Consanguine sister, Uterine sister, and uterine brother. Reliquaries include the beneficiaries of residual property’s share. 
• If there is absolutely no heir to the deceased’s property then the whole of the property is inherited by the government via escheat. 

In Muslim’s inheritance rules, a will (wasiyat) can be created by a Muslim individual in favor of anyone but only one-third of the testator’s property could be given. If a Muslim, who married under the Special Marriage Act, 1954, creates a will then that will is not regulated as per the provisions of Shariat and by the Indian Succession Act, 1925.  Moreover, if the testator attempts suicide, his will (wasiyat) is treated as invalid, and both Shia and Sunni laws treat the case separately and differently. Along with this, a testator’s wasiyat will still remain valid if he practices the non-Islamic faith after creating it as a Muslim. 

Distribution of Property

Distribution of property under Muslim law can be performed in two ways which include per capita distribution and per strip distribution. In per capita distribution, the property is distributed equally among the legal heirs and the share of every individual depends on the number of heirs. This method is primarily used in Sunni law. On the other hand, per strip distribution is used in Shia law where the property is distributed among the legal heirs on the basis of the strip to which they belong. The amount of inheritance depends totally upon the branch and persons that belong to that branch.

Property rights of women in Muslim law

As per the Muslim Personal Law (Shariat) Application Act, 1937, there is no distinction between the rights of men and women, which means, after the death of their ancestor both girl and boy become legal heirs of the inherited property. The amount of the property share of a female heir is entitled to half of that of the male heirs because as per Muslim law, upon marriage a female receives mehr and maintenance from her husband whereas males only have the ancestral property. A Mehr is a woman’s property that she receives from her husband at the time of marriage and can use in whatever way she wants. Mehr does not belong to a woman’s guardian or parents; therefore, this cannot be inherited by others. The quantum of Mehr is dependent upon the husband, he can also give his entire property to his wife as Mehr. The Mehr can be lawfully claimed by the husband, parents, or guardians of a woman if she transfers it on her own will.

Married women

After the death of the husband, a Muslim woman (widow) is entitled to one-fourth of his property, in case she does not have any child. However, a deceased’s wife with children or grandchildren is entitled to one-eighth share of his property. Moreover, if the deceased has more than one wife then the wives are entitled to one-eighth of his property. However, if they have children, then the property share of the wives becomes one-sixteenth each. If a man was ill during the time of marriage and subsequently dies without consummating the marriage then his widow will not have any right to his property. On the contrary, if the ill husband gave a divorce to his wife and dies afterward then that woman has the right to a share in his property until she remarries.

Woman’s right to property after divorce

Under Section 125 of the CrPC, a divorced woman having a minor child can ask for maintenance from her husband until she remarries. According to the Shariat law, after divorce, accepting or offering maintenance is illegal whereas the Muslim Women (Protection of Rights on Divorce) Act, 1986, was passed by the Indian Legislature that provides reasonable maintenance to women within the iddat period, amount of Mehr, and maintenance of a child. 

Woman’s right to property over her child’s property

If a woman’s son dies with no children then she is entitled to one-sixth share of her son’s property. However, if the deceased son has any children then her share becomes one-third.

Woman’s right for a child in the womb 

A child in a Muslim woman’s womb is a legal heir of the inherited property, if he/she is born alive whereas if the child is not born alive then his/ her share in the property is null and void.

Case Laws

• Sahara Kalyan Committee vs Union of India
• Mohammad Ahmad Khan vs Shah Banu Begum case
• Bushara Ali v. Irfan Ahammed & Ors.

Conclusion

In a nutshell, Muslim law does not show a distinction between the rights of a male and female although there is discrimination identified in the right to property. As per the provisions of Muslim law, a woman’s share in the property of her deceased husband is one-fourth which lay down to one-eighth in the case of children. On the contrary, a husband’s share in his wife’s property after her death is half which is one-fourth if there are any children. Unlike the Hindu Succession Act, 1956, Muslim personal law does not provide an equal share of inherited property to a daughter (Unmarried woman) and daughter-in-law (Married woman). Recently, Muslim women have approached the Hon’ble Courts with their petitions and appeals seeking relief from discrimination in property matters.

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