The Quranic Inheritance Law: The Case for a Gender-Neutral Understanding

By Abdur Rab* and Hasan Mahmud**

ABSTRACT.This paper examines afresh the particular Quranic inheritance provision that the male heir should receive twice as much as the female counterpart. It reviews the important exceptions the Quran itself makes to this provision, which emphatically suggests that the stated discrimination against female heirs is not intrinsic to the very spirit of the Quran. Further, the paper reviews the contributions made in recent years by a number of Islamic scholars as well as the arguments put forward by the Feminists toward a gender-neutral reinterpretation of the Quranic Law. It briefly observes modern development trends where the female members of mostly nuclear families share responsibilities equally with their male partners. It concludes that the existing gender discrimination being continued in inheritance has little justification to be perpetuated. Finally, the paper also briefly looks at the record of progress (or lack of progress) made in some Muslim countries toward gender-neutral treatment in inheritance matters.

 

INTRODUCTION

The Quran’s guidance on the inheritance of wealth left by a deceased person begins with a general direction that all surviving close male and female relatives have definite shares in the inheritance, whether large or small (4:7). This is followed by a definite prescription that the decedent should leave a living will or bequest (waṣeyya) before death for his or her near relatives:

2:180    It is prescribed for you that, should death approach any of you, if he leaves any assets, it is best that he leave a bequest for his parents and near relatives according to normal usage – a truthful obligation (haq) on the part of the righteous. (See also 2:181-182, 5:106-108)

However, the Quran leaves open the issue of how much one can bequeath to his or her surviving heirs.[1]Three other verses provide specific guidance on the distribution of the remaining wealth left by a decedent after accounting for any bequest made, any remaining debt of the decedent, and other expenses such as funeral-related expenses. The Quran specifies exact shares for a number of male and female heirs. The shares of other eligible heirs are determined either residually or by applying the rule that the male heir gets twice as much as the corresponding female heir. For the time, this prescribed inheritance law was a great advance from earlier times, when the inheritance was mostly limited to the male agnate relatives of the deceased (asabas) with preference for the nearest adult male. Women and minors were mostly deprived, and the surviving parents, and the husband and half-brothers and sisters from the mother’s side were also excluded from the inheritance. The three verses that set out the inheritance rules are as follows:

4:11    God commands you, with respect to your children, that the male shall inherit the equivalent of the share of two females. If there are only females – two or more, then they should receive two-thirds of what he leaves; but if there is only one female, she is entitled to one-half. To each of his parents, one-sixth of what he leaves, if he has any children; but if he has no children, then his parents will inherit him, the mother receiving one-third. But if he has any brothers (or sisters), then his mother receives one-sixth. (The distribution in all cases) after any will he had made or any debt he had incurred [is taken care of]. Your parents and your children—you know not who of them is nearest to you in terms of benefit. A directive from God; God surely is All-Aware, Wise.

4:12    In what your wives leave, your share is a half, if they leave no child; but if they leave a child, you get a fourth; all after payment of legacies and debts. In what you leave, their share is a fourth, if you leave no child; but if you leave a child, they get an eighth; all after payment of legacies and debts. If the man or woman whose inheritance is in question, has left neither ascendants nor descendants, but has left a brother and or a sister, each one of the two gets a sixth; but if more than two, they share in a third; all after payment of legacies and debts; so that no loss is caused (to any one). Thus is it ordained by God; and God is All-Aware, Most Forbearing.

4:176 They ask you for a legal decision. Say: God directs (thus) about those who leave no descendants or ascendants as heirs. If it is a man that dies, leaving a sister but no child, she shall have half the inheritance. If (such a deceased was) a woman, who left no child, her brother takes her inheritance. If there are two sisters, they shall have two-thirds of the inheritance (between them); if there are brothers and sisters, (they share), the male having twice the share of the female. Thus does God make clear to you (His law), lest you err. And God has knowledge of all things.

The “provision for making a will before death provides a special opportunity for the dying person to correct any possible imbalance that he or she might foresee and perceive in the application of the specific inheritance rules and to accommodate special considerations for his or her near relatives who are disadvantaged or for other poor people he or she may have in mind. The law of inheritance prescribed by the Quran also provides for making a special accommodation for the needs of the poor, including poor relatives”[2]at the time of inheritance distribution:

4:7-8   Men shall have a share in what parents and kinsfolk leave behind, and women shall have a share in what parents and kinsfolk leave behind, whether it be little or much – a share ordained [by God]. And when at the time of distribution (of inheritance), relatives, orphans, and the needy are present, give them (out of the property) and speak to them kindly.”

The newly introduced Quranic rules of inheritance giving shares to wives, daughters, mothers, and, in some cases, sisters constituted definite reforms of the existing patriarchal system. Yet, from a modern point of view, the reforms did not go far enough. In this paper we focus particularly on the stated rule of the Inheritance Law that gives the male heirs twice as much as it gives to the corresponding female heirs. Since, the rules of this Law were drawn in a specific socio-historical context, we need to consider whether these rules need to change in a vastly different modern context.[3]

“The traditional Muslim rules of inheritance are derived from the basic structure set out in the Qur’an, which was then elaborated and systematised by the various madhhab[s], or schools of law, through jurisprudential methods and interpretations. Many modern Muslim nation-states have adapted these rules from one of the major Sunni or Shi‘ite schools of law, have combined rules from two or more different schools, or have created modern inheritance laws based loosely on traditional jurisprudence but suited for modern realities. Because human interpretations have played such a key role in shaping both the traditional inheritance rules and the modern codifications of inheritance laws, the standard articulation of these rules cannot be considered divinely revealed Shari‘a, but rather man-made fiqh.”[4]

The first thing to note about the traditional position on the inheritance issue is that it is not a unified position. There are some perceptible differences between the Sunni and Shia positions on how the bequests and distribution of inheritance shares are to be made. Both the Sunni and Shia schools of law limit the bequests to one third of the inheritance. However, for bequests to be made to any heir, the Sunni schools require consent of all other heirs, while the majority Jaafari Shia school does not require such consent. With regard to the distribution of inheritance shares among the heirs, there is an important difference in the Sunni and Jaafari school of Shia laws when the heir is only a daughter (or when the heirs are daughters). In Sunni schools, the daughter gets one half of the property, and the other half goes to the brothers of the deceased. In the case of two or more daughters, they get two thirds of the inheritance and the remaining one third goes to the brothers of the deceased. In the Jaafari school of Shia laws, the daughter gets (or the daughters get) the full property. There are other differences between the Sunni and Shia schools and among even the Sunni schools. But these are outside the purview of this paper.

FEATURES OF THE INHERITANCE LAW THAT REQUIRE SPECIAL ATTENTION

The Quran-prescribed inheritance law provides for, with some exceptions, dividing the property left behind by a person on death according to the rule that the male heir gets twice as much as the corresponding female heir. This rule is required to be observed in the following cases:

1.    In the case of son(s) and daughter(s), when the deceased leaves behind children of mixed gender (4:11);

2.    In the case of parents, when the deceased has no surviving children but has surviving one parent or two parents (4:11);

3.    In the case of the surviving male or female spouse (4:12); and

4.    In the case when the deceased has no descendant or ascendant heirs, but has brothers and sisters (from the father’s side) (4:176).

Two important exceptions made to the above rule are worth noting:

·      In the case when only parents (both or one) survive along with the deceased’s children, each parent gets one sixth of the inheritance; if only one parent survives, he or she gets one sixth. The rest goes to the children. (4:11)

·      In the case when the deceased has no descendant or ascendant heirs, but has a uterine brother or a sister (from the same mother with different fathers), each one equally shares one sixth of the inheritance; if they are more than two, they share equally in a third (4:12).[5]

Another exceptional, rather anomalous, case arises in a situation where a woman dies leaving behind her husband and both parents as the only heirs. In this case, the husband gets his one-half share, and if the mother gets her given share of 1/3^rd (4:11), there is only 1/6^th left for the father to share as a residuary. Here a strict literal interpretation of the verse position leads to an anomaly that, instead of the male getting twice as much as the corresponding female, yields an opposite result of the male getting half of what the female gets. This vividly illustrates the limitation of a strict literal interpretation of the inheritance rules in all cases.[6]

The exceptions made in the Inheritance Law suggest that the distinction made in general between male and female heirs giving the former double the share of the latter is not essentially inherent in the Quranic Law itself. The provision giving preference to the male over the female rather responds to the particular socio-economic milieu of the time when the husband took full socio-economic responsibility to support the wife and the family as a whole. If this situation changes, then there must be room for changes in the rules of the Inheritance Law. This is what we discuss below in more detail.

 

THE CASE FOR A GENDER-NEUTRAL UNDERSTANDING IN THE MODERN CONTEXT

On a close reading of the Quran’s provisions about the inheritance rights of the surviving relatives of a deceased person, one important conclusion that emerges is that the overall intention or direction of the Quran was to ameliorate the financial conditions of the decedent’s relatively weaker and more disadvantaged relatives, according them greater shares of his or her inheritable property. The direction is definitely egalitarian. The Inheritance Law, even in its existing textual content, provides ample scope for carrying out any desired reform by appropriately using the existing provisions of the directive for a living will and for distributing part of the property left by the decedent to the poor relatives and other deserving people. The Quran’s overall egalitarian approach or direction is worth more attention than the actual extent of such reforms indicated in the shares of the Inheritance Law, which were nonetheless quite remarkable in a seventh century context. What is important to note is that these reforms were grafted onto an existing predominantly patriarchal legal system.

Another point to note, one that has been well emphasized by noted modernist scholar late Fazlur Rahman (1919-1988), is that Muslims need to pay attention to the major sociomoral objecives of the Quran, which are “the moral conduct of man and the establishment of an order of socioeconomic justice and essential human egalitarianism.”[7]With changing time and context, human perceptions of what constitute justice also change. Even though the Quran did not declare an outright ban on human slavery, no sane person would say today that we should have slavery in our modern society.

Also, since the inheritance rules are not an isolated aspect of family laws, possible further reforms of these rules need to be addressed as part of, and in conjunction with, overall family law reforms. While reforms on other fronts such as marriage, divorce, social and political rights, etc., have made appreciable progress in a number of Muslim countries in recent years, there is not much discernible progress in inheritance reform in these countries.

Ibn Qayyim al-Jawziyya (1292-1350), a thirteenth century jurist and a great reformer of his time was much ahead of his time when he said, “Any rule that departs from justice to injustice, from kindness to harshness, from the common good to harm, or from rationality to absurdity cannot be part of [true] Shari’a.”[8]The modern family law reform agenda has progressed along two lines – one is the feminist movement within the Islamic tradition itself and the other is a logical extension of the progress in secular liberal ideas leading to widespread recognition and acceptance of human freedom, human rights, and gender equality. As a book edited by contemporary feminist scholar Ziba Mir-Hosseini et. al. aptly puts it, “Gender equality is a modern ideal, which has only recently, with the expansion of human rights and feminist discourses, become inherent to the generally accepted conceptions of justice.”[9]Mir-Hosseini continues, “Contemporary notions of justice informed by the ideals of human rights, equality and personal freedom depart substantially from those that underpin rulings in classical fiqh (Islamic jurisprudence) and established understandings of the Shari’a. This disjunction is a central problem that permeates debates and struggles for an egalitarian family law in Muslim countries.”[10]

Two recent reform pieces – one a book Women in the Shari’a and Our Society (1930) by Tunisian religious reform thinker al-Tahir al-Haddad (1899-1935) and the other an article “The Status of Women in Islam: A Modernist Interpretation” (1982) by Pakistani-American scholar Fazlur Rahman, both declared heretical by conservative clerics, lay the groundwork for an egalitarian family law. “[A]l-Haddad argues for legal equality for women in all areas, including in inheritance. According to him, the Qur’an’s assignment of a lesser share for women was due to the conditions of the time; it was a concession to the social order. But here again equality is the principle and when we look closely, we find that,”[11]

Islam did not allocate a lesser share to a woman compared to that of man as a principle applicable to all cases. It gave the same share to her in the case of parents inheriting from their dead son when there is a male child and if it involves blood siblings…[12]

Al-Haddad’s ideas helped shape a reformed Tunisian family law, codified in 1956. Fazlur Rahman’s ideas helped shape the feminist scholarship in Islam. As mentioned before, he based his argument on the Quran’s direction for immutable “moral principles, which show us how to establish a society on earth where all humans can be treated as equals as they are all equal in the eyes of God. This is at once the ‘challenge and the purpose of human existence, the trust – amana – that humanity accepted at creation.’”[13]Rahman contends “that the specific legal rules of the Qur’an are conditioned by the socio-historical background of their enactment and what is eternal therein is the social objectives or moral principles explicitly stated or strongly implied in that legislation. This would, then, clear the way for further legislation in the light of those social objectives or moral principles.”[14]He further notes that legal reform can only be effective in changing the status of women in Muslim contexts when there is an adequate basis for social change; otherwise its success will be limited, transitory or confined to certain social groups.[15]

Building on the work of these and other earlier Muslim thinkers such as Muhammad Abduh and Muhammad Iqbal, a whole new generation of progressive Muslim scholars such as Mohammad Arkoun, Khaled Abou El Fadl, Muhammad Shahrur, Nasr Abu Zayd, Amina Wadud, Mohammad Mojtahed Shabestari, Abdolkarim Soroush, Ziba Mir-Hosseini, and the former leader of the Sisters in IslamZainah Anwar reengages the Quran from a perspective that was sorely lacking in the classical Islamic scholarship. Their contributions inform, and lead to, a gender-neutral, feminist movement in Islam. They think that the moral teachings of the Quran do not really discriminate against women and that the “verses that assign greater rights to men […] reflect a patriarchal context in which men were dominant and solely responsible for supporting women.”[16]It is, therefore, imperative that the rules we apply serve the basic objectives of the law.

The traditional position on the inheritance rules makes a first major violation of the Quranic direction on bequests. While the Quran urges us to bequeath from the inheritance to parents and next of kin, the Sunni and Shia scholars limit such bequests to a maximum of one third of the inheritance and the Sunni scholars require consent of all heirs for such bequests to any heir. Also, as noted contemporary Syrian Muslim scholar Muhammad Shahrur, a strong critic of the traditional scholarship, questions the widespread belief that “no testament shall invalidate an heir’s right”, which, he points out, “basically disrespects a proper bequest and unfairly prioritizes strict inheritance rules.” He continues, the Quran, on the other hand, mandates and prioritizes such bequeathing before death, taking necessary testimony (2:180-182, 240; 5:106-108). He further points out that the Quran’s mandate for bequeathing before death is shown as imperative as performing other religious activities such as salat, fasting and pilgrimage.[17]

As Khaled Abou El Fadl aptly points out, the ultimate objective of the law is to ensure justice, mercy and compassion in society.[18]He rightly puts it, “men and women equally qualify for God’s grace and reward. The authority given to men over women is not because they are men but because, in a particular historical context, men financially provided for women. But if the circumstances change, and women share financial responsibility with men, authority must be equally shared between the two as well.”[19]“[T]he rules of law that apply to women”, as Abou El Fadl aptly notes, should not be regarded as “static and unchanging. The Islamic law has to keep changing forward to achieve the moral objectives expressed in the Qur’an. To achieve justice, there has to be a constant effort to achieve a more authentic proportionality between the duties and rights of Muslim women. So, for instance, if within the social dynamics of time, women carry a financial responsibility equal to [that of] men, it is more consistent with Shari’a to allow women an equal share to men in inheritance.”[20]

Muhammad Shahrur also rejects the rigidly defined inheritance rules given by the traditional scholars. He has come out with a groundbreaking interpretation of the Quranic laws, which also provides accommodation for treating males and females equally in respect of inheritance. He maintains that the Quran should be read and understood in relation to ever changing socio-cultural realities. He wants us to understand the Quranic laws in terms of what he calls “the theory of limits” (hudud), which means that the Quranic laws set limits within which societies with sociocultural diversity can set their own rules or laws. The theory of limits, according to Shahrur, allows flexibility in regulating various Quranic laws, including inheritance, according to sociocultural diversity. Thus the inheritance share of a male heir could vary within the upper limit of twice the female share and the female share could be higher than the lower limit of one half of the male share, this depending on the particular sociocultural context.[21]

In the modern age, women often need to work side by side with men to either support herself or to contribute to supporting the family. And it is also important to consider the fact that in many cases, even if women are qualified, they are unable to take any paying jobs on top of taking proper care of their children and of the family as a whole. In such cases, it will only be in the fitness of things that we appropriately impute the nonmonetary contribution of the wife to the overall service for the family in monetary terms. If we do this, it might well be the case that the wife shoulders a larger share of the overall family responsibility than the husband. Thus whether wives work or not may not be the dominant issue. The dominant issue is how both husband and wife share the overall responsibility of maintaining and supporting the family as a whole. From this point of view, it is imperative that no distinction be made in the shares of inheritance between male and female heirs.

We also need to take into account the progress modern civilization has made toward recognition of genuine women’s rights and gender equality in all spheres of life. The modern idea of gender equality has become inherent to the global conceptions of justice and has gained recognition through the adoption by the United Nations of two historic instruments – The Universal Declaration of Human Rights (UDHR) adopted in 1948 and The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) adopted in 1979. Most Muslim-majority countries, including Egypt, Iran and Pakistan, signed the UDHR. Saudi Arabia did not sign, objecting that it was not Sharia-compliant. “Since it came into force in 1981, [the] CEDAW has been ratified by all Muslim states except Iran, Qatar, Somalia and Sudan, though, in most cases, ratification has been subject to ‘Islamic reservations’—a notion that speaks of unresolved tensions between [the] CEDAW and Islamic legal theory.”[22]

Muslim countries now accord equal political rights, including equal voting rights, to men and women. Saudi Arabia is the only Muslim country where women had no political rights until just recently, even though women’s literacy rate is high at or above 70 percent. Women today do not lag much behind men in education[23]and their participation rates in the public workplace are quite respectable in many Muslim countries[24]. There are variations among Muslim countries. Egyptian women are well educated and hold responsible professional positions in virtually every sector. Algerian women comprise sixty percent of university students, seventy percent of lawyers and sixty percent of judges, and dominate the medical profession.[25]In other Muslim countries, women not only enjoy the voting right, but they can also run for political offices and become members of parliament. Several Muslim countries such as Pakistan, Turkey, Indonesia, and Bangladesh have or had women as heads or deputy heads of government. Today, women in many Muslim countries work as engineers, doctors, scientists, teachers, and lawyers alongside their male colleagues.[26]As Reda Zaireg (translator Pascale el-Khouri) puts it, while discussing the Moroccan case, “Islamic law governing inheritance has been drawn taking into consideration the extended family model, which has now disappeared and been replaced with the nuclear family model. Moreover, men before had to meet the needs of the women of their clan, but nowadays they no longer have a monopoly over family finances.”[27]In such scenarios, the current discrimination between males and females in sharing inheritance would clearly appear out of date.

It is striking that the conservative segments of society still cling to the old ideas even when their well respected patron Abul Ala Mawdudi strongly favors, and calls for, updating the Sharia Law “through the interpretation of the principle of Islamic theology and law in the light of the changed conditions (ijtihad).”[28]As feminist leader Zainah Anwar aptly puts it:

For too long, Muslim women who demanded reform to discriminatory laws and practices have been told, “this is God’s law” and therefore not open to negotiation and change. […] Evidently, the problem is not with Islam. It is the position that men in authority take in order to preserve their privilege. […] To conflate patriarchal laws and practices is nothing more than tactical power play.[29]

 

THE CONSERVATIVE CLERICS’ DEFENSE OF THE STATUS QUO IS UNTENABLE

The conservative religious scholars have their own arguments to fiercely oppose any change in the Quran’s inheritance rules. They resist any change in inheritance rules on the ground that God’s word prevails for all times and all places. However, as we have seen above, many modernist Muslim scholars, including even their mentor Abul Ala Mawdudi, have refuted this argument saying that the Quran needs reinterpretation in the context of changing reality. Also, their argument is seriously flawed since they fail to recognize the vital difference between the moral objectives and principles of the Quran that should not change and those aspects that require constant updating to keep up with the moral intent of the Quran.

A second argument the traditional ulama use is that a woman inherits a half-share only in four cases, compared with more than thirty cases in which she inherits a more share. However, the irony of this argument is that it has virtually no teeth, since it is precisely these four cases that make up the most frequent cases in reality.

Also, there had been historical precedents of updating many Islamic laws during the times of the Prophet himself and Caliph Umar, which the ulama cannot deny.

 

PROGRESS OF INHERITANCE REFORM IN MUSLIM COUNTRIES: SOME EXAMPLES

Whatever little information is available suggests that[30]there has been very limited progress made in inheritance reform in Muslim countries, even though notable progress has been made in recent years in a number of countries in other aspects of family laws that address existing discrimination against women in marriage and divorce.[31]Progress on the inheritance front has been either blocked or stalled in most Muslim countries due to the official use of the Sharia Law in many countries, use of a dual legal system of both secular and Sharia laws, with the Sharia Law applied to deal with family matters, and stiff resistance from traditional Muslim clerics. “Many majority Muslim countries have a dual [legal] system in which the government is secular but Muslims can choose to bring familial and financial disputes to sharia courts. The exact jurisdiction of these courts varies from country to country, but usually includes marriage, divorce, inheritance, and guardianship.”[32]Sharia courts operating in the United Kingdom are allowed to settle cases brought to them by resident Muslims. The limited progress in inheritance reform seems due also, in part, to a lack of clarity in United Nations human rights agreements of the UDHR and the CEDAW with respect to addressing gender disparity in the Muslim inheritance law and shortcomings in their follow-up of implementation in different signatory-countries. Spotty progress in inheritance law reform in some countries is noted as follows.

Turkey. Turkey remains a model for other Muslim countries. In 1926, Kemal Ataturk introduced sweeping reforms, replacing the Sharia Law with the Swiss civil code, and gave a status and rights to women equivalent to those of men. “Legal equality between the genders was instituted between 1926-1934 with changes in a multitude of rules and regulations. […] The equal rights provided by the Swiss Code covered the areas of […] marriage, divorce, custody, and inheritance.”[33]Remarkably, the Turkish revolutionary reforms in family reforms came well in advance of the UN-adopted human rights agreements. There was a relative decline in the status of women after 2002 when a moderately religion-friendly government came into power. Some reforms in the family laws such as those relating to monogamy and child marriage got reversed in their implementation, especially in the rural areas. However, the Ataturk-time inheritance reforms remain intact.

Somalia. Somalia is another example where the inheritance rules are completely gender-neutral. Male or female children, or grandchildren in the event of no surviving children, get equal shares. In the event of no surviving children and no surviving spouse, the surviving one parent inherits the whole estate and it is divided equally between both living parents. With a surviving spouse and both parents, the spouse gets one half and each parent gets one fourth. With children or grandchildren, each parent gets one sixth of the inheritance. With no children or grandchildren, the widow or the widower gets one half of the inheritance; with children or grandchildren, he or she gets one fourth. Similar equality is maintained also in the case of only surviving siblings, whether full or half.[34]

Tunisia. Thanks to the ideas of the Tunisian reformist scholar al-Tahir al-Haddad, Tunisia became a frontliner in the Arab world in carrying out family law reforms. The reforms came through the promulgation of a Tunisian Code of Personal Status in 1956, which formed the basis for addressing gender discrimination in a wide array of areas such as access to justice, laws ensuring gender equality in marriage and divorce, freedom of movement, freedom from gender-based violence, and social, political and economic rights. However, even though a second wave of reforms was carried out in the 1990s under the influence of women activists, strikingly, the issue of unequal inheritance among male and female heirs still remains unaddressed.[35]Even though a new state constitution adopted in January last year enshrines gender equality, inheritance rules have remained as patriarchal as before under the Sharia-following Ennahda government. A new government defeating the Ennahda party has come into power in October last year, which paves the way for new legislation in the direction of ensuring equal inheritance rights for male and female heirs.

Morocco. Morocco started late in reforming family laws. A family code (Mudawana – Morocco Personal Status Code) adopted in 2004, though less ambitious than in the Tunisian case, was hailed by women’s rights groups as a big step forward. In 2011, “the country passed a new constitution guaranteeing gender equality. Even so, Moroccan women say that equality is still a long way off, and much of the old order remains untouched, including the inheritance law section of the family code.”[36]But there is a growing pressure for change. In the current situation of Morocco, men are no longer the head of the households; “women provide for the family or at least contribute in a significant manner.”

Indonesia. A country with the largest Muslim population, Indonesia presents a fascinating case where efforts to push women-friendly reforms are having little impact due to the opposition from conservative forces. In the late 1980s and early 1990s, Indonesia brought out a Kompilasi Hukum Islam (Compilation of Islamic Laws). During this compilation, the Government’s Religion Minister proposed to equalize inheritance between men and women to bring it into line with Indonesian adat, or customary law, and Southeast Asian social realities, and the progressive ideas of some Indonesian scholars. However, this proposal was nipped in the bud before it could be actually outlined in a formal draft due to resistance from the conservative clerics. One important piece of gender-neutral inheritance reform introduced by an Indonesian Supreme Court decision in 1994 was that a male or a female child of the decedent could exclude collaterals. The court made this landmark decision by interpreting “walad” in Quran’s verse 4:176 to mean both male and female children.[37]This was an important theological interpretation that can support future gender-neutral reform in Indonesia and also in other countries.

Even though Indonesian law code marginalizes women, it nevertheless embraces some women-friendly reforms in marriage and divorce areas. In 2003, the Religious Affairs Ministry formulated a document – The Counter Legal Draft of the Islamic Code of Law – based on a critical analysis of the existing law code. This document offers a promising future for gender-neutral reforms, putting emphasis on human rights, advocating gender equality, and voicing humanistic, pluralistic, and democratic views of Islam.[38]

Egypt. In a landmark development in 2000 and in a sharp break with the past, Egypt introduced some reforms in family laws, granting certain rights to women to divorce unilaterally.[39]A legislation in 2007 outlawed also female genital mutilation. Insofar as the inheritance issue is concerned, two noticeable changes were made in the Sharia Law. First, grandchildren, both male and female, are included as legitimate heirs up to one third of the inheritance. Second, the bequest has been made mandatory up to one third of the inheritance.[40]

Pakistan. An ordinance promulgated in 1961 by President Ayub Khan made some noticeable reforms in family laws relating to marriage and divorce such as banning child marriage, setting minimum marriageable ages for boys and girls, requiring marriage registration, and subjecting polygyny to certain conditions, including requiring first wife’s consent and authorization by an arbitration council. The only visible reform in the inheritance area was to recognize the inheritance rights of orphaned grandchildren. Gender-neutral reforms look a remote possibility in the current situation where politically powerful conservative forces are wielding a major influence, even though the government is a signatory to the CEDAW.

Bangladesh. Relative to its South Asian peers, Bangladesh’s achievement in recent about two decades in some social development indicators such as education and health has been spectacular, which, importantly, includes elimination of gender disparity in primary and secondary school enrollments and near achievement of basic universal education.[41]The government’s stance since the time of the country’s liberation from Pakistan in 1971 has been essentially secular. Article 28 (2)of its constitution professes gender equality “in all spheres of the State and of public life.” The secular stance has been somewhat undermined, during the rules of two dictators in 1977 and 1988, when it embodies the declaration that the State is Islamic. Such a provision has given scope for the conservative ulama to weigh in on matters especially relating to family laws and inheritance.

The 1961 ordinance promulgated during the time when Bangladesh was part of undivided Pakistan, embraces certain family law reforms as mentioned above in the Pakistan case. However, in a stark contrast to Bangladesh’s advance on the social development front, the implementation of family law reforms has been rather very limited, due primarily to the influence of the conservative clerics, except in the case of the ban on child marriage. In the inheritance case, the only improvement is the inclusion of orphaned grandchildren as heirs. However, as a signatory to the CEDAW, the government is committed to establishing gender equality by removing all forms of existing discrimination against women. Recently the government proceeded to take some cautious steps towards gender-neutral inheritance, but stepped back in the face of strong resistance from the religious clerics. However, given the growing public opinion toward reform amid general socioeconomic development, the future seems to be on the side of reform.

 

SOME CONCLUDING REMARKS

Though the Quran generally provides for division of inherited property among surviving children and near relatives according to the rule that the male heir should get twice the share of the corresponding female heir, many modern scholars have convincingly demonstrated that this rule is now out of date. This rule is rooted in a socio-cultural environment where man is the only caretaker of the family. In today’s context, when women are equally sharing with men the burden of supporting a family both monetarily and non-monetarily, this unequal gender treatment is clearly untenable. The nonmonetary contribution of women to a family has long been overlooked. The spirit of the Quran was never meant to promote gender inequality. Its text contains important exceptions that accord equal treatment to the male and female heirs. The stated discrimination against female heirs was predicated solely on the premise that man is the sole breadwinner and supporter of the family. That premise is no longer applicable in the modern context. The adoption of the human rights instruments such as the Universal Declaration of Human Rights (UDHR, 1948) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, 1979) also underpins the case for establishing equal gender treatment in the inheritance case.

It should be stressed though that our recommendation for gender-neutral treatment in inheritance is meant to be a means to an end, not an end itself. The focus should be on removing existing unjust discrimination against women in the very spirit of the Quran, which envisions family relationship as one of love and compassion (30:21) and requires the husband to treat her wife in a humane manner even when he decides to divorce her (2:231). The reform for gender neutrality in inheritance should be carried out, in line with the recommendation of Fazlur Rahman, when social conditions and public opinion are conducive enough for such a reform. It should be carried out, where appropriate, in combination with reforms in family laws covering marriage and divorce issues. This analysis, however, does not warrant extending the idea of gender equality to all cases, lest it generate unwelcome social outcomes.

A number of Muslim countries have made noticeable progress in removing discrimination against women in family laws that relate mainly to marriage and divorce issues. However, progress in reform in the inheritance area remains muted and confined to only a very few countries. Addressing this issue of inheritance is still considered taboo and presents a formidable challenge in many Muslim countries due to continuation of the Sharia Law and in the face of fierce opposition from the conservative Muslim clerics. Yet, change is possible and change is taking place in some countries toward gender nondiscrimination, especially since many Muslim countries are signatories to the United Nations agreements and since the state constitutions of many of these countries have provisions that envisage gender-neutral treatment in all matters.

 

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*Abdur Rab is the author of Rediscovering Genuine Islam: The Case for a Quran-Only Understanding, the third succeeding two earlier editions, which were highly endorsedby eminent Muslim scholars. His articles on select Islamic topics have appeared on World Religion News, Aslan Media, and Oped News, and include one presentedto a conference at Princeton University. Follow Abdur Rab at https://twitter.com/AbdurRAB11.

 

**Hasan Mahmud is Member of Advisory Body, World Muslim Congress, General Secretary, Muslims Facing Tomorrow, Canada, and the author of Sharia Ki Bole, Amra Ki Kori (in Bangla) being translated into English as How Sharia Hijacked Islam (tentative title) forthcoming and three movie-dramas (the making of a fourth one is in progress, all in Bangla with English subtitles) that highlight the problems with the Sharia Law.

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