Women's inheritance rights according to the Shari'a [Islamic Law] [PAK31780.E]

Pakistan is an Islamic republic and approximately 96 per cent of its population is Muslim (Country Reports 1998 26 Feb. 1999). The majority of Muslims are Sunni and follow the Hanafi school of jurisprudence, while approximately 15-20 per cent are Shi'i (The Encyclopedia of Religion 1987c, 67; Country Reports 1998 26 Feb. 1999; Islam and Islamic Groups 1992, 184), primarily Ithna Asharis/Twelvers, Isma'ilis/Seveners and Bohras (Islam and Islamic Groups 1992, 184).
Shari'a(h) is an Arabic term that is used to designate Islamic Law (The Encyclopedia of Religion 1987b, 431; The New Encyclopaedia Britannica 1989, 31). The Shari'a covers the religious sphere as well as the mundane affairs of every day life (The Encyclopedia of Religion 1987b, 431), and "constitutes a divinely ordained path of conduct that guides the Muslim toward a practical expression of his religious conviction in this world and the goal of divine favour in the world to come" (The New Encyclopaedia Britannica 1989, 31). According to

The Encyclopedia of Religion,

although Muslims agree that they are bound by the shari'ah, the interpretations of its requirements have differed historically according to sectarian and [legal] school divisions and, in modern times, also according to differing views of how the shari'ah applies in the changed circumstances of present-day societies (1987b, 431).

The Shari'a is divided into two main categories, the first dealing with "strictly religious obligations" ('ibadat), that govern the believers' duties vis-à-vis Allah, while the second covers the "conduct of interpersonal relations" (mu'amalat) (The Encyclopedia of Religion 1987b, 432). The Encyclopedia of Religion states that

there is considerable diversity among the sects and [legal] schools regarding the shari'ah rules in this category. Today there is also significant controversy about the degree to which these rules, originally formulated by medieval jurists, need to be updated and reformed in the light of modern circumstances (ibid.).

There are four Sunni legal schools-considered equally orthodox-comprising the Hanafi school of jurisdiction, which has largest following worldwide (predominantly in Syria, Jordan, Turkey, Lebanon, Pakistan, Afghanistan and the Muslims of India), the Maliki school (now prevalent in Morocco, Tunisia, Upper Egypt, Sudan, Bahrain and Kuwait), the Shafi'i school (now predominant in East Africa, Indonesia, Malaysia, Lower Egypt, southern Arabia, with many followers in Palestine, Jordan and Syria), and the Hanbali school (now prevalent in Saudi Arabia, Qatar and Oman) (ibid.).

A contentious issue between the Malikis and the Hanafis lay between those who maintained that outside the Qur'an scholars were free to use their reason (ra'y) in order to ascertain law, while the others insisted that the Sunnah and Hadith of Muhammad were the only other valid source of law outside the Qur'an; the jurist al-Shafi'i (d. 820) attempted to eliminate these schisms, insisting that knowledge of Shari'a could be "attained only through divine revelation" found only in the Qur'an or the divinely inspired traditions of Muhammad, and that problems not solved by divine revelation could be solved strictly through analogical deduction, or qiyas (The New Encyclopaedia Britannica 1989, 32).

Shafi'i's thesis formed the basis of the classical theory of Sunni Islamic jurisprudence ('usul al-fiqh), so that by the early 10th Century, the four sources of Islamic Law were the Qur'an (Word of Allah), the Sunna(h) of the Prophet Muhammad (the sayings and actions of Muhammad that were collected after his death, i.e. the normative behaviour of the Muslim community), qiyas (reasoning by analogy) and ijma' (consensus of all the jurists of one generation) (The New Encyclopaedia Britannica 1989, 32; The Encyclopedia of Religion 1987b, 436-37; ibid.1987a, 89; Gibb 1970, 62-65).

But outside the four mainstream orthodox Sunni schools of jurisprudence were also numerous Shi'i legal schools, of which, according to The Encyclopedia of Religion, only three have survived to the present day, namely the Ithna 'Ashari (Twelvers), the Zaydi (also known as the Fivers) and the Isma'il'i (also known as the Seveners) (1987d, 69). Their "versions of the Shari'ah differ considerably from those of the Sunnis. Shi'i law in particular grew out of a fundamentally different politico-religious system in which the rulers, or imams, were held to be divinely inspired and therefore the spokesmen of the Lawgiver himself" (The New Encyclopaedia Britannica 1989, 32).

Describing the comparisons of the rules of classical fiqh, The Encyclopedia of Religion states that

in detail the rules of the various Sunni schools are often different enough to affect the outcome of a legal dispute. On the average legal question, the degree of doctrinal difference between a given Sunni school and a Shi'i school is often not much greater. Notwithstanding the different approaches that Sunni and Shi'i fiqh purport to have to the sources of law, aside from their differences regarding who should rule the Muslim community, one finds few major divergencies except on some points of religious ritual and worship, certain rules of marriage and divorce, and the laws of inheritance (1987b, 439).

The New Encyclopedia Britannica provides the following information on inheritance in Sunni and Shi'i law:

An individual's power of testamentary disposition is basically limited to one-third of his net estate (i.e. the assets remaining after the payment of funeral expenses and debts) and two-thirds of the estate passes to the legal heirs of the deceased under the compulsory rules of inheritance.
There is a fundamental divergence between the Sunni and the Shi'i schemes of inheritance. Sunni law is essentially a system of inheritance by male agnate relatives or 'asabah-i.e. relatives who, if they are more than one degree removed from the deceased, trace their connection with him through the male links. Among the 'asabah, priority is determined by: (1) class, descendants excluding ascendants, who in turn exclude brothers and their issue, who in turn exclude uncles and their issue; (2) degree, within each class the relative nearer in degree to the deceased excluding the more remote; (3) strength of blood tie, the germane, or full blood, connection excluding the half blood, or consanguine, connection among collateral relatives. This agnatic system is mitigated by allowing the surviving spouse and a limited number of females and nonagnates-the daughter; son's daughter; mother; grandmother; germane, consanguine, and uterine sisters; and uterine brother-to inherit a fixed fractional portion of the estate in suitable circumstances. But the females among these relatives only take half the share of the male relative of the same class, degree, and blood tie, and none of them excludes from inheritance any male agnate, however remote. No other female or non-agnatic relative has any right of inheritance in the presence of a male agnate. Where, for example, the deceased is survived by his wife, his daughter's son, and a distant agnatic cousin, the wife will be restricted to one-fourth of the inheritance, the grandson will be excluded altogether, and the cousin will inherit three-fourths of the estate.
Shi'i law rejects the criterion of the angatic tie and regards both maternal and paternal connections as equally strong grounds of inheritance. In the Shi'i system the surviving spouse always inherits a fixed portion, as in Sunni law, but all other relatives, including females and non-agnates, are divided into three classes: (1) parents and lineal descendants; (2) grandparents, brothers and sisters, and their issue; (3) uncles and aunts and their issue. Any relative of class one excludes any relative of class two, who in turn excludes any relative of class three. Within each class the nearer in degree excludes the more remote, and the full blood excludes the half blood. While, therefore, a male relative normally takes double the share of the corresponding female relative, females and nonagnates are much more favourably treated than they are in Sunni law. In the case mentioned above, for example, the wife would take one-fourth, but the remaining three-fourths would go to the daughter's son, or indeed to a daughter's daughter, and not to the agnatic cousin.
Under Shi'i law the only restriction upon testamentary power is the one-third rule, but Sunni law goes further and does not allow any bequest in favour of a legal heir. Under both systems, however, bequests that infringe these rules are not necessarily void and ineffective; the testator has acted beyond his powers, but the bequest may be ratified by his legal heirs.
Further protection is afforded to the rights of the legal heirs by the doctrine of death sickness. Any gifts made by a dying person in contemplation of his death are subject to precisely the same limitations as bequests, and, if they exceed these limits, will be effective only with the consent of the legal heirs (The New Encyclopedia Britannica 1989, 33-34).

The following detailed information on inheritance from The Encyclopedia of Religion reflects the Hanafi school of jurisprudence, which the majority of Sunni Pakistanis follow. Where Hanafi law varies from the other Sunni schools (Maliki, Shafi'i and Habali), the differences are also presented. Any references to Shi'i law is that of the Ithna 'Asharis (Twelvers):

In pre-Islamic Arabia, succession was purely tribal and agnatic, that is, the heirs were normally the closest male relatives, and women and minors were excluded. A fundamental reform that the Qur'an brought about was to assign definite shares to female relatives. According to the Islamic scheme of inheritances, a female generally receives half the share of a male. The deceased fictitiously remains the owner of the estate until his obligations are fully discharged. The creditors can, therefore, only assert their claims against the estate and not against the individual heirs. All funeral expenses, debts, and bequests have to be paid in full before the estate can be distributed among the heirs.
An essential condition of inheritance is that the heir must survive the deceased. In doubtful cases, arising, for example, when persons who would inherit from one another have died without proof of who died first, neither can inherit from the other according to the majority, but Shi'i and Hanbali law entitle both to inherit from one another. Similarly, inheritance can only pass to an heir who exists at the time of the death of the deceased, except when a man leaves a pregnant widow, in which case the share of an unborn male child is reserved for the offspring. If the child is female, she will receive her normal share of the inheritance, and the remainder of the reserved portion reverts back to the estate to be redistributed among the heirs proportionate to their normal shares.
The birth of a child, whether male or female, may affect the position of an heir in a variety of ways. He or she may be excluded from succession, have their share reduced, or in some circumstances, become entitled to a larger share. In all cases, the present heirs are, according to the majority view, entitled to take their minimal shares and reserve the largest share for the unborn child. This is the share of a male child under Hanafi law, whereas the Shafi'i, Hanbali, and Shi'i law assume that twin boys or twin girls will be born, and the other heirs are entitled to the share they would receive in one case or the other, whichever is less. In Maliki law the distribution is completely suspended until the birth of the child. All schools are unanimous, however, in suspending the distribution of the estate in the event that all the other heirs would be totally excluded by the birth of the child. Excluded from succession are the following: one who has caused the death of the deceased; a non-Muslim as the heir of a Muslim and vice versa (a bequest, however, can be made to a non-Muslim), and a slave who, under classical law, is not capable of owning property.
The heirs are mainly divided into three groups: those who are entitled to a prescribed share, known as Qur'anic heirs (dhawu al-furud); those who receive the remainder, known as agnatic heirs ('asabah); and distant kindred (dhawu al-arham), persons who are related to the deceased in the female line and fall into neither of the first two categories. In the absence of all three, the estate goes to the public treasury (bayt al-mal).
The Qur'an allots shares to eight relatives, namely the daughter, mother, father, husband, wife, brothers, and sisters. But the rules regarding the daughter have been extended, by analogy, to the daughter of a son, and those regarding the parents, to the grandparents. In addition, a distinction has been made between a full sister, a half sister on the father's side, and a half sister of the mother's side. The total number of Qur'anic heirs has thus been raised to twelve.
A daughter who has no brothers is entitled to half the estate, and two or more daughters share equally in a portion of two-thirds. But if daughters inherit along with sons, they become 'asabah and receive half the portion of the sons. A son's daughter without brothers inherits half the estate; if there are two or more son's daughters, their share is two-thirds. A son's daughter is excluded if that son has two or more sisters inheriting along with him. The father inherits one-sixth in the presence of a son, and in the presence of a daughter or a son's daughter, one-sixth plus any residue. In the absence of descendants, the father inherits as the nearest 'asabah. The father's father inherits one-sixth, but he is excluded if the father is alive. The mother's portion is one-sixth if there are children and one-third if there are none. The mother's mother inherits one-sixth, but she is excluded if the mother is alive. One full sister in the absence of brothers inherits one-half, and two or more, two-thirds. A half sister on the father's side receives the same share as a full sister, but both are excluded in the presence of a son, or a son's son, or the father. Both a half-brother and a half-sister on the mother's side receive one-sixth, and tow or more share a third among them, but they are excluded by descendants and male ascendants. The husband receives a quarter if there is a descendant, and in the absence thereof, a half. The wife inherits one-half of what the husband would receive under the same circumstances.
Sometimes the number of qualified Qur'anic heirs or the sum of their shares may be larger than the whole of the estate. In this case, their share are reduced under the principle of proportionate reduction, known as 'awl. For example, if the deceased is survived by a husband and two full sisters, their shares will be one-half and two-thirds respectively, which exceed unity. Hence, the share will be reduced to three-sevenths and four-sevenths respectively.
The agnatic heirs ('asabah) inherit the remainder of the estate after the Qur'anic heirs have received their shares. The 'asabah are divided into the following classes, in order of priority: (1) the son and his descendants in the male line; (2) the father and his ascendants in the male line; (3) the male descendants of the father; (4) descendants of the paternal grand-father; and (5) descendants of the paternal great-grandfather. Any member of a higher class totally excludes any member of a lower class, except that the brothers of the deceased are not excluded by the grandfather. Among the relatives of the same class, the nearer in degree to the deceased excludes the more remote: in class three, for example, a nephew will be excluded by the deceased's brother. Among agnatic relatives of the same class and the same degree, germanes have priority over consanguines. Thus, for example, the germane brother of the deceased totally excludes the consanguine brother.
If there is no 'asabah and the Qur'anic heirs do not exhaust the estate, the remainder is proportionately distributed among the Qur'anic heirs under the principle of reversion, known as radd. For example, if the deceased is survived by his mother and a daughter, their shares will be one-sixth and one-half; since these are less than unity, they will be increased to one-quarter and three-quarters respectively (The Encyclopedia of Religion 1987c, 450-52).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.


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