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Muslim personal law (Shariat) in India


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.

 

Property rights of Muslim women

See also: All about property rights in India

 

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.

See also: Child born in a Hindu-Muslim marriage can inherit property: SC

 

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.

See also: Impact of divorce on a property under joint ownership

 

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.

 

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