The story so far: A Muslim couple from Kerala, advocate C. Shukkur and his wife Sheena, former Pro Vice-Chancellor of Mahatma Gandhi University, recently decided to get their marriage registered under the Special Marriage Act (SMA), almost 30 years after having solemnised their nikaah according to Islamic principles. Mr. Shukkur claimed to have got the marriage registered under SMA, so that principles of the secular Act could apply to matters of inheritance in his family, and enable his daughters to inherit the couple’s property under the Indian Succession Act, 1925. The couple has three daughters and no sons.
What does Islamic law say?
This decision has put the spotlight on Islamic principles of inheritance. The Koran, through Surah Nisa clearly outlines the principles of inheritance for both direct and indirect heirs. Verse 7 states, “For men there is a share in what their parents and close relatives leave, and for women there is a share in what their parents and close relatives leave — whether it is little or much. These are obligatory shares.”
According to unanimously agreed rules on the division of property in Islam, a daughter gets half the share of the son. So if a son inherits a plot of 100 metres from the father, the daughter gets a plot of 50 metres or half the value of the 100-metre plot. On marriage, according to Islam, it is the man who is supposed to bear the family expenses, including residence, food, clothing and medicine besides maintenance of his wife, education of his children and looking after his parents. If the husband predeceases his wife, she gets a one-eighth share of his property, if the couple has children. Otherwise, she gets one-fourth. There is also a share for paternal uncles, aunts, etc, as long as they are blood relatives. Same for grandparents if they are alive. Each parent gets one-sixth if the son passes away before them, and leaves children behind. The problem, as in the case of the Kerala couple arises, when a couple has only a daughter or daughters. The daughters can inherit only two-thirds of father’s property, as the holy book says, “If you leave only two or more females, their share is two-thirds of the estate.” Beyond that, the shares are for the mother and for paternal blood relatives.
What are the various options?
Within Islamic law, options are available to such a couple in case they want the property to remain within the family. The first option is to make a will or vasiyat under which a person can declare that upon his death, a particular heir shall inherit not more than one-third of the property. This is often done in case one of the children is not financially sound, or has special needs, or has served his or her parents more than other children. For instance, if two children stay abroad and one child stays back with parents to look after them in old age, such a provision may be used. Many Muslim families used this provision during the Partition when many families were divided. While some children crossed over to Pakistan, others remained here with their parents.
Besides vasiyat, there is also the concept of virasat. Under virasat or inheritance, there is the option of hiba which allows unrestricted transfer of wealth or property to a person during the lifetime of the donor. In the case of the Kerala couple, hiba provisions could have been used to transfer all the property in the name of the daughters during the lifetime of the parents. This is like a gift deed. Importantly, while the Islamic division of property clauses for relatives comes into force once a person dies, a gift deed can be made during one’s lifetime. The jury is out whether the Kerala couple’s actions went against the tenets of Islam or arose from parents’ anxiety to secure the future of their children.