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Muslim personal law say on inheritance

  • Published
    29th Mar, 2023
Context

A Muslim couple from Kerala decided to get their marriage registered under the Special Marriage Act (SMA), almost 30 years after having solemnised their nikaah according to Islamic principles.

About the move:
  • Couple 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.
  • In this case, 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 does Islamic Law say?

  • 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.”
  • 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.
  • If the husband predeceases his wife, wife 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.

What are the various options?

  • 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. 
  • 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.

Hindu Succession Act, 1956:

  • The Mitakshara school of Hindu law codified as the Hindu Succession Act, 1956 governed succession and inheritance of property but only recognized males as legal heirs.
  • It applied to everyone who is not a Muslim, Christian, Parsi, or Jew by religion. Buddhists, Sikhs, Jains, and followers of Arya Samaj, and BrahmoSamaj, are also considered Hindus for this law.
  • In a Hindu Undivided Family, several legal heirs through generations can exist jointly.
  • Traditionally, only male descendants of a common ancestor along with their mothers, wives, and unmarried daughters are considered a joint Hindu family. The legal heirs hold the family property jointly.
  • Hindu Succession (Amendment) Act, 2005:
  • The 1956 Act was amended in September 2005 and women were recognized as coparceners for property partitions arising from 2005. Coparcener is a person who shares equally with others in the inheritance of an undivided estate or in the rights to it.
  • Section 6 of the Act was amended to make a daughter of a coparcener also a coparcener by birth “in her own right in the same manner as the son”.
  • It also gave the daughter the same rights and liabilities “in the coparcenary property as she would have had if she had been a son”.
  • The law applies to ancestral property and to intestate succession in personal property, where succession happens as per law and not through a will.
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