Examining A Muslim Woman's Right To Property
Every religion practiced in India is governed by its respective personal laws – which includes property rights as well. However, Muslims in the country do not have codified property rights and are broadly governed by either of the two schools of the Muslim personal law – the Hanafi and the Shia. While the Hanafi school recognises only those relatives as heirs whose relation to the deceased is through a male. This includes son's daughter, son's son and father's mother. The Shia school, on the other hand, favours no such discrimination. This means that heirs, who are related to the deceased through a female are also accepted.
The need to re-examine to the Muslim personal lawIn a recent development, a public interest litigation has been filed asking for an amendment in the Muslim personal law on inheritance, alleging that Muslim women are being discriminated on the issues relating to sharing of property in comparison to their male counterparts.
The petition claimed that a bare perusal of the law shows that a wife should receive 1/8th of the property of her husband on his death if they have children. In case there are no children borne out of marriage, she is entitled to 1/4th of the property. A daughter will receive half of the share of a son. In stark contrast, the men receive 1/4th of the property of his wife on her death if they have children. In case there are no children borne out of the marriage, he is entitled to half the property. A son receives double the share of the daughter, the plea alleged.
The petition further states that the discrimination based on customary law as well as the statutory law violated Muslim women's fundamental right to equality enshrined under Articles 14, 19, 21 and other relevant provisions of the Constitution. The plea contended that Article 13 of the Constitution included personal laws, including Muslim personal laws.
The Delhi High Court has now sought the Centre's response on the PIL filed by advocate Raghav Awasthi.
MakaaniQ elaborates a few general rules of inheritance for women under the Muslim personal law:
What are the property rights of a daughter in IslamUnder Muslim law, the rules of inheritance are rather strict. A son takes double the share of a daughter, on the other hand, the daughter is the absolute owner of whatever property she inherits. If there is no brother, she gets half a share. It is legally hers to manage, control, and to dispose it as and when she wants.
She is also eligible to receive gifts from those she would inherit from. This is contradictory because she can inherit only one-third of the man's share but can get gifts without any hassle.
Also Read: Interpreting SC Order On Women's Right To Ancestral Property
Till a daughter is not married, she enjoys the right to stay in her parents' house and seek maintenance. In case of a divorce, charge for maintenance reverts to her parental family after the iddat period (approximately three months) is over. However, if her children are in a position to support her, the responsibility falls on them.
What are the property rights of a wife in IslamIn the famous Shah Bano case, the Supreme Court had held that in case of a divorce, it is the responsibility of the husband to make reasonable and fair provision to maintain his former wife even after separation under Section 3 (1Ha) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This period extends beyond iddat as the woman retains control over her goods and properties.
Also Read: Does Conversion To Another Religion Affect Your Rights On Ancestral Property?
In the event of the death of her husband, a widow gets the one-eighth share (in case there are children) but will get one-fourth share (if there are no children) . If there is more than one wife, the share may come down to one-sixteenth.
What are the property rights of a mother in IslamA Muslim mother is entitled to inherit from her children if they are independent. She is eligible to inherit one-sixth of her dead child's property if her son is a father as well. In the absence of grandchildren, she would get the one-third share.
Also, if a mother inherits property from any relation, she becomes the absolute owner of her share and can dispose it at her own will. She cannot give away more than one-third share of her property and if her husband is the only heir, she can give two-third of the property by will.
There are other provisions, too, in the law that ensure financial security of a Muslim woman.
What is the maher (entitlement) under Islamic lawMaher is the total money or property that a wife is entitled get from her husband at the time of marriage. There are two types of maher: prompt and deferred. In the former case, the amount is given to the wife immediately after marriage; in the latter, the amount is given to the wife when her marriage has ended, either upon the death of her husband or by divorce.
What is the wasiyat (will) under Islamic lawA Muslim cannot give away more than one-third of his/her total property through a will. In circumstances where there are no heirs in the estate as prescribed by the law, the wife may inherit a greater amount by will.
What is the hiba (gift) under Islamic lawUnder Muslim law, any type of property may be given as a gift. For a gift to be valid, a declaration of the wish to make the gift must be made which should be accepted by the receiver.
Indian Muslims are governed by their personal law or the Muslim Personal Law (Shariat) Application Act, 1937. The law related to inheritance among Muslims is derived from the religious scripture, the Quran (Sunna), the consensus of the learned men (Ijma) and the deductions from principles and what is just and right (Qiya). In the absence of a will, the law of succession for Muslims shall be as per the Shariat. However, if the deceased had made a will, it shall follow the Indian Succession Act, 1925, in the case of immovable property in West Bengal, Mumbai or Madras jurisdiction.
In this article, we are going to focus on the Muslim woman’s right to property. For this, we also need to understand some of the key characteristics of inheritance and succession rules among Muslims.
Muslim inheritance law
Inheritance only after death: Among Muslims, only after death of a person, the inheritance factor emerges. No person can inherit the property belonging to a person who is still alive. The Muslim law does not acknowledge the ‘right by birth’ that exists in the Hindu law.
Treatment of property: There is no distinction between movable and immovable property or corporeal and incorporeal property. All of the deceased’s belongings are meant for inheritance.
Volume of inheritance: The exact inheritance is determined only after the deceased’s debts, legal expenditure like will, etc. and funeral expenses, are paid off.
Nature of property: The Muslim law does not distinguish between self-acquired property and ancestral property. Both are treated equally and are open for inheritance by the legal heirs.
Types of heirs: There are two types of heirs – heirs or sharers and reliquaries (beneficiaries of residual share of property). Sharers include the husband, wife, daughter, daughter of a son (or a son’s son or a son’s son’s son), father, paternal grandfather, mother, grandmother on the side of the males, full sister, consanguine sister, uterine sister and uterine brother.
Property rights: Inheritance is not a birthright. It is believed among Muslims that there can be no heir to a living person.
Muslim women and inheritance
Both men and women are equal as per the law of inheritance and there is no preferential treatment imparted to either. However, the property share of men is double the share of women. The understanding is that women, upon marriage, receive Mehr (money or possession given by the groom during the marriage). She is also maintained by the husband while her brother is totally dependent on the ancestral property and therefore, her share is halved.
According to the law, men have the responsibility to provide for their wife and children. A husband must provide for his wife, even if she is wealthy enough to maintain herself. In short, women can receive an inheritance, not only as daughters but as wives and mothers too. She need not spend her wealth on the household either.
Property rights of Muslim widows
If a Muslim widow is childless, she is entitled to one-fourth of the property of her deceased husband. As mentioned earlier, the exact volume of inheritance is determined only after the deceased’s loans are paid off (if any) and his funeral expenses are met.
If the widow has children and grandchildren, her share of the property is one-eighth of the deceased husband’s property. If there is more than one wife, this share may come down to one-sixteenth.
If the marriage took place when the husband was ill and in case the marriage is not consummated and if subsequently, the husband dies, the widow is not entitled to any share in his property. However, if this man who was ill, divorced the woman and died thereafter, the widow would be entitled to a share till she remarried.
Muslim woman and her right to Mehr
The Quranic right of dower or Mehr defines their right to property. The husband, during marriage, pays (in cash or as property), or promises to pay a Mehr. A Mehr thus constitutes a woman’s property and she may use it in the way she wants. It is meant for the future security of the woman and she has the right to ask for a reasonable Mehr.
The Mehr does not belong to a married woman’s parents or guardians and therefore, this cannot be inherited by others. A husband may give a property entirely to his wife as Mehr. The house or its monetary value is, thus, the woman’s property alone. If the Mehr is not provided by the man, the woman may even deny marital obligations or even refuse cohabitation.
Only if a woman transfers her share can her husband, parents or others, claim it lawfully.
Muslim woman’s property rights after divorce
- If the woman has a deferred Mehr, she will have all rights upon it after the divorce.
- If the woman is divorced and has a minor child, she can ask for maintenance from her former husband under Section 125 of the CrPC, until she remarries.
As per the Shariat, accepting or even offering maintenance after divorce is not legal. However, the Indian legislature had passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, which provides for a reasonable and fair provision of maintenance within the iddat period, maintenance for children, amount of Mehr, as well as all properties given at or after marriage.
Muslim woman’s rights over her children’s property
- If a woman’s son (who in turn should also be a father) dies, the woman (mother) is entitled to one-sixth of her deceased son’s property.
- If the deceased son did not have any children of his own, his mother’s share would be one-third.
The role of a will in a Muslim’s inheritance rules
A will is called ‘wasiyat’ and it can be made in favour of anyone but it should not give away more than one-third of the testator’s property. Beyond this, the consent of the legal heirs would be taken into account.
Also, note that in case the wasiyat is made by a Muslim who has married under the Special Marriage Act, 1954, the wasiyat will be regulated by the provisions of the Indian Succession Act, 1925 and not by the Shariat.
If the testator was a Muslim when he created the wasiyat but renounced Islam thereafter and was practicing a non-Islamic faith, his wasiyat will still remain valid.
If the testator attempted suicide, his wasiyat would be treated as invalid. It is also important to note that both Shia and Sunni laws treat this matter differently.
The consent of the legatee to accept the wasiyat is important, prior to conferring the property on him or her. If he or she does not wish to accept it, the will is invalid. Whether the legatee is competent is also studied. The legatee can be a minor, follower of a different faith or even mentally challenged – this does not deprive of him or her of being a beneficiary.
A wasiyat may be oral, written or even made through gestures, in case it has been made by an ailing person.
Muslim woman’s right to property for child in her womb
A Muslim woman’s child in her womb is an eligible heir for the property if it is born alive, as it is considered as a living being. However, if the child in the womb is not born alive, the share is null and void and it is considered that there never was any heir.
FAQs
What type of distribution of property do Shia Muslims follow?
Commonly called the ‘per stripe’ way of distribution of property, Shia Muslims divide the inheritance among a branch of the family.
Do Muslim men have an upper hand in succession than women?
Quranic interpretation shows that both men and women are equal. However, various interpretations may have dissolved this understanding. Hence, it is sometimes felt that Muslim men may have an upper hand. As per the inheritance rules, a son’s share is double that of his sister, because the sister is also entitled to a Mehr through her marriage.
Which law governs Muslim inheritance?
The Muslim Personal Law (Shariat) Application Act, 1937, governs inheritance of properties among Muslims.
What is a wasiyat?
A will made by a Muslim is called a wasiyat.
