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 law
In 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:
Property rights of a daughter in Islam
Under the 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 off 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.
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.
Property rights of a wife in Islam
In 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.
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.
Property rights of a mother in Islam
A 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.
There are other provisions, too, in the law which ensure financial security of a Muslim woman.
The maher (entitlement) under Islamic law
Maher 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.
The wasiyat (will) under Islamic law
A 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.
The hiba (gift) under Islamic law
Under the 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.