For centuries, patriarchal theologians across Muslim societies have been misinterpreting the Quran to establish male supremacy. Among the rights curtailed for women through this exercise is the right to inherit property.
This came to the fore once again recently when a Muslim cleric belonging to the Samastha Kerala Jam-Iyathul Qutba Committee objected to an oath for equal property rights administered to the volunteers of the Kudumbashree Mission, an all-women network under the Kerala government. The cleric cited the Quran to claim that a man’s share in the property is equal to that of two women.
A few months ago, in similar circumstances, the Kerala Nadvathul Mujahideen (Markazudawa) had asked the Kerala government to reject demands for the amendment of Muslim law to give equal inheritance to women.
Complicated concept
For a book of guidance, the Quran’s idea of inheritance is surprisingly intricate. And within it, the apportionment of shares to women has been the most misunderstood. However, without going into the complexity of the law itself, it can be easily verified if gender bias is inherent in these allotments.
A study of the two main verses on the law of inheritance (4:11-12) would reveal that the apparent disparity that exists between the percentage of shares assigned to men and women is because of the role they played in the social and family set-up during the Prophet’s time. Gender per se has nothing to do with it.
For instance, although 4:11 rules that sons will get “a portion equal to that of two females [daughters]”, it grants equal shares to parents stating, “For parents, a sixth share of the inheritance to each, if the deceased left children.” Had the Quran been gender-biased this division too would have been in the ratio of 2:1 in favour of the father.
As for the higher allotment to sons, it can be understood better if evaluated in terms of the principles of distributive justice which deal with the dispersion of economic benefits among members in a given society in relation to the burdens placed on them.
The renowned philosopher-poet Muhammad Iqbal attempted this in his book The Reconstruction of Religious Thought in Islam. According to him, the share of the daughter is determined not by “any inferiority inherent in her” but by “the place she occupies in the social structure”.
Iqbal pointed out that while the daughter is the full owner of the property she inherits and receives from the father and the husband at the time of her marriage, the responsibility of maintaining her throughout her life is wholly thrown on the husband.
If the working of the rule of inheritance is judged from this point of view, argued Iqbal, “you will find that there is no material difference between the economic position of sons and daughters, and it is really by this apparent inequality of their legal shares that the law secures the equality” demanded by rights activists.
Iqbal’s explanation resonates with what John Rawls called the Difference Principle in A Theory of Justice and Political Liberalism wherein he legitimized social and economic inequalities on, among other things, the condition that they must ensure “the greatest benefit of the least advantaged members of society”.
Political philosopher G.A. Cohen fine-tuned the Difference Principle to justify a stricter version that allows only “non-harming inequalities”. He even proposed a generous form of the principle which justifies “inequalities that do not help but also do not hurt the worst off”.
As its raison d’être indicates, the Quranic 2:1 property division in favour of sons was introduced in the seventh century as a non-harming inequality with a view to financially equip men to take care of women, the least advantaged members of the Arabian society.
During this period, the dehumanization of the female gender had reached a point where it was considered normal to bury the girl child alive after she was born. The Quran paints a shocking picture of the pre-Islamic mindset: “When the good news of the birth of a daughter (bush’shira ahaduhum bil unsa) is brought to any of them, his face darkens with suppressed anger. He hides from people because of the [imagined] evil of that which is announced to him. Should he keep the child with disgrace or bury it alive? Surely evil is what they decide.” (16:58-59)
The Prophet addressed this barbaric misogyny head-on by encouraging Muslims to bring up as many daughters as possible. He said: “Whoever has three daughters and is patient towards them, feeds and clothes them from his wealth they will be a shield for him from the Fire on the Day of Resurrection.” (Sunan Ibn Ma’jah, Kitab al adab)
The Prophet has also been quoted as stating: “If anyone has a female child and does not bury her alive, or slight her, or prefer his male children over her (lam yusir waladahu alaiha - qaala ya’ni az’zukoora), Allah will bring him into Paradise.” (Abu Dawud, Kitab al adab)
Another step towards the rehumanisation of women was the restoration of their legal personality by the Quran which gave them the right to not just own and inherit property but to assign it at will.
And if during the process of dismantling masculinist norms, sons were granted twice the share of daughters, it was done without burdening the daughters with any financial obligation which was entirely imposed on the sons (4:34). In other words, women did not have to spend anything from the property they acquired, inherited or received as a gift.
By contrast, under the doctrine of coverture, which was enshrined for several centuries in the common law of England and the U.S., a woman’s legal rights were subsumed by those of her husband upon marriage. Till this law was finally abolished in the late 19th Century married women were not entitled to enter into contracts, own property, educate themselves or seek employment. In the rare event of a woman being allowed to work, she had no right over her salary, which was taken away by her husband and spent as per his whims.
Restricted application of Quranic shares
The Quranic division of 2:1 in favour of sons does not violate the Rawlsian Difference Principle even today because the percentages of shares mentioned in the Quran are not for the entire property. Verses 4:11-12 strictly restrict them to the assets available for inheritance after the payment of the bequests and debts (min ba’di waseeyatin yuzee biha aw dainin) of the deceased. The entire property will come under the ambit of these percentages only when a person dies intestate without being in debt.
The significance of this is that under Islamic law Muslims enjoy absolute ownership of their property, and therefore, have the freedom to divide their property in a fair manner between sons and daughters through a written bequest. In fact, the Quran makes the writing of a Will “with due fairness (bil ma’roof)“ “a binding obligation upon the righteous (haqqan alal muttaqeen)“ which cannot be waived unless the person has nothing to bequeath (2:180).
The Prophet too had said that it is “the duty of a Muslim who has something which is to be given as a bequest not to keep it for two nights without having his will written down regarding it” (Muslim, Kitab al waseeyah).
These facts establish beyond doubt that there is nothing in either the Quran or authentic hadiths that prohibits Muslims from dividing, through a bequest, their entire property equitably between sons and daughters.
Undermining the will
It is the theologians who deny Muslims this right by limiting the will to one-third of the property, thereby forcing them to adopt the 2:1 ratio in favour of sons for the entire property.
This is done on the basis of a hadith (in Bukhari and other books) wherein a wealthy companion of the Prophet, Sa’d bin Abi Waqqas when he fell ill, is quoted as having sought the permission of the Prophet to donate his entire property to charity. The Prophet did not agree. But Sa’d, who had just one daughter at that time, still managed to convince the Prophet to let him give away one-third of the property.
Another version of the same incident in Sunan an-Nasaai has Sa’d stating that it was the Prophet who asked him if he had made a will. When Sa’d replies that he has bequeathed all his wealth in the cause of Islam leaving nothing for his children, the Prophet asks him to write a will for one-tenth of his property and give the rest to his children. Sa’d argues that his children are well endowed (hum aghniyaa’u) and bargain with the Prophet until he permits him to bequeath one-third of his wealth.
Theologians cite yet another hadith from Sunan Ibn Majah in which the Prophet is alleged to have ruled that “there is no bequest for an heir” (laa waseeyata liwaaris).
However, verse 2:180 commands Muslims to write a Will in favour of “parents and close relatives” (al waseeyatu lil waalidayni wal aqrabeena) clearly indicating that legal heirs should be at the top of the testamentary list.
Hadiths cannot overrule Quran
The glaring contradictions and extra-Quranic rulings in these hadiths render them unreliable to be the basis of Islamic law. In any case, Islam’s secondary source (hadiths) cannot overrule or amend its primary source (Quran).
That being so, if the Quran did not limit bequests to non-heirs, or to one-third of the property, the Prophet could never have imposed such a limitation as the aforementioned hadiths allege. His statement concerning the Quran was: “It is not for me to change it of my own accord. I only follow what is revealed to me” (10:15).
But the inheritance law that prevails today has undermined the Quran to such an extent that the higher percentage of share for sons — which is applicable only on a limited quantum of property — is universalized to permanently curtail the testamentary rights of Muslims over their own property. This, coupled with the false belief that a will cannot be made in favour of legal heirs, has tied the hands of Muslims from giving their daughters an equal share in their properties through a will.
If Muslims really want to reap the benefits of Quranic egalitarianism, they will have to muster the courage to challenge the interpretive monopoly of the theologians and legally stop them from formulating the Shariah on the basis of medieval fatwas or hadiths that violate the Quran.
A. Faizur Rahman is an independent researcher and secretary general of the Islamic Forum for the Promotion of Moderate Thought.
Email: themoderates2020@gmail.com
Twitter: @FaizEngineer
