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The Quranic law states that if the deceased person leaves behind a son, the orphaned grandson cannot be a heir. Is this not unlawful and an injustice shown to orphans?
 
By disallowing the right to inheritance to the orphaned grandson, does Islam mean to leave him to his fate? What is the solution prescribed by Islam for this problem ?
 
Considering the provision that if there is only a single son he is entitled inherit the wealth of the father, is it not a clear breach of justice that if there is but a single daughter who is the heir to inheritance, she be given only one-half of the total wealth and if there be more than one daughter, they be given only from two-thirds of the total assets of the father ?
 
In accordance with the Quranic law, the three daughters of the deceased person are allotted two-third and the parents one-third of the wealth of inheritance in the event that they are all alive, there will be nothing left of the wealth of inheritance. Then from where can the one-eighth part for the wife (4:12) be provided for ? Does this not show that the laws of inheritance mentioned in the Quran are impracticable ?
 
 
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"O mankind! There has come to you a good advice from your Lord (ie, the Qur’an), and a healing for that (disease of ignorance, doubt, hypocrisy and differences, etc) in your breasts,-a guidance and a mercy for the believers."

Holy Qur’an 3:83



The Quranic law states that if the deceased person leaves behind a son, the orphaned grandson cannot be a heir. Is this not unlawful and an injustice shown to orphans?

This doubt has been due to the lack approach towards the wealth of inheritance. In fact, the law which the Quran propound in this regard is seen to be the most scientific and just of all.

The issue of inheritance has been addressed in the verses 11 and 12 of Surah Nisaa. The right ofinheritance of the person who has neither father nor offsprings has also been dealt with in the last verse (176 ) of this same chapter. The Islamic approach to the wealth of inheritance is derived from these verses and from the practices of the prophet in this regard. The basic postulates of this approach are as follows.

One : None has the right to a person’s wealth as long as he is alive.

Two : Those of his successors who died during his own life time will not been entitled to inheritance from his wealth (The wealth of inheritance itself comes into being with the death of the person. Prior to that it is but his own wealth, never the wealth of inheritance as such).

Three : It will be only those of his successors who are alive at the time of his death who will be entitled to a share of his wealth of inheritance.

Four : Inheritance is basically allocated to close relatives. Marriage and blood relations will naturally fall into this category.

Five : Close relatives of the deceased will obstruct the right to inheritance of the more distant ones in the same line of succession. By close relation is meant parents, husbands, wives, sons and daughters. Nobody else can claim any right in the presence of these closest of relatives.

Six : The accepted standard for allocating the wealth of inheritance is the nature of one’s relationship with the deceased person; never the financial condition or the requirements of the claimant himself.

Seven : In the absence of the closest relatives, or links of the deceased, the right of inheritance is then conferred upon the next link in the line of succession. It is for this reason that if there is no father, it would go to the father’s brother and if there is no son then to the grandson.

In the light of these basic postulates, the offsprings of the children who had died while their father was still alive can have no legal share in his inheritance if there are others of his children who are alive at the time of his own death. The reason for this is that the right of inheritance those of the cannot reach successors in the second generation of the family tree while those of the successors of the first generation are still alive. The question here is : will this not be an injustice ?

The first reply to this question will be the counter-question : will it be possible to allocate the wealth of inheritance in a completely just manner with the help of mere legislation alone? Factually, of course, no system of law - not even Islam, for that matter - can successfully implement full justice in this regard. Look at a few of the models that can serve to successfully demonstrate these facts:

1. The decreased person leaves behind two children. One is handicapped. The other is fully fit. The first cannot earn his living. The second can work and earn wealth. How will the wealth of the deceased be allocated in this case? In the interest of justice, the one who is able to earn his own living must be given a lesser share while the one who is unable to do so must be allocated a larger portion. However, can any system render this justice a law?

2. The deceased leaves behind three children. The eldest is aged forty. He is a businessman. He started off as a co-worker in his father’s business and his own enterprize has now come of age. The second is a physician. He had studied using the wealth of his father. Today he virtually mints money. The third is a lad of eighteen. A student His father died before he could attain to any position. How is the wealth to be allocated in this case? Both the elder sons earn their own income; indeed, they had started their earnings with the wealth of their father. As for the younger son he never had much from the earning of his father even when he was alive. Here, too, it will be just that the younger son should, at least, get a larger portion in the share of his father’s inheritance. Is it possible to make a law that would facilitate the allocation of the inheritance wealth in this manner?

3. The deceased leaves behind three children. One is highly successful. He is able to make piles of money. The second is a man for social service. The last one is a miser. He would save all the acquired wealth and would find his expenses to stay within stated limits. If all three were given ten rupees, the first one would convert it into twenty, the second one would prepare a meal for himself and his poor neighbor, the third would have two meals with it. Should the wealth of inheritance be divided equally between the three? That would not be justice. But here it is not practicable to implement justice through the normal process of law.

Here, it becomes clear that it is not possible for mere laws and regulations to implement justice in all respects in the case of inheritance and other economic problems. In all such problems Islam does not prescribe solutions depending solely on laws alone. Indeed, it seeks to create a situation wherein justice can be established in such matters by heightening the moral consciousness of man and by encouraging the showing of mercy and kindness to those undergoing tribulations.

Why cannot a law be made which would then enable the orphaned grandson to have the right to inheritance as well? In fact, the creation of such a law would then destroy all the foundational premises which Islam puts forward in the matter of inheritance.

There is only one way in which the orphaned grandson can be allowed the right to inheritance. Imagine that the deceased son to be still alive. Project his children as the representatives of the deceased person. Then allocate the wealth that was to be given to the dead son amongst his children. A person has two children. The elder one has three and the younger one has two children. The elder one died while the father was still alive. When the father himself passed away, only the younger son remainded alive. There is one thousand rupees as the wealth of inheritance. The younger son takes five hundred. The remaining five hundred is divided amongst the three children of the deceased elder son. This, in general, is the usual order of allocation.

How practicable is this order of preference in the Islamic system of inheritance? It should not be forgotten that if the preferential theory is applied anywhere within the system of inheritance, it will become imperative to apply it throughout the whole as well. How correct will be this procedure? Examine the matter. Observe a few of the issues involved:

1. The husband has a right in the inheritance of the wife. If they have children his right will be one fourth, and, if not, his will be one half. Assume now that the husband passed away before his wife. Here, if the preferential theory was to be accepted, the father, mother, the children through other wives, of the husband all will be entitled to share in the inheritance of his wife.

2. This is also the case with the rights of the wife in the inheritance wealth of her husband. If the death of the wife precedes that of the husband, her share will then have to be given to her mother, father and other relatives as well.

3. Fathers are also entitled to a share in the wealth of their children. Assume that the father passed away before his son. The father, however, has other children as well. Even if the son himself has children, if the father is alive even after his death, the wealth of inheritance to which he was entitled would then have to be given to his close relatives.

4. This is also the case with the share to which mothers are entitled in the wealth of their children. If the mother passes away before her son, her close relatives will then be entitled to the wealth of her son if we are to go by the preferential theory of inheritance.

The acceptance of the preferential theory will thus become the cause of imbalance in the order of allocation. A person has two children. Both died. One has one son and the other has two sons. According to the Islamic order of allocating the wealth of the grandfather, all three grand children are entitled to an equal share. However, if the preferential theory is accepted, as far as the brotherless grandson is concerned, the two sons of his uncle will each receive only one half of that to which he is himself entitled. Here, it need not be said that to allocate the right of the individuals who are similarly related to the same person in different proportions will only serve to create a gross imbalance in the order of allocation.

In the foregoing section, a description of the problems that arise out of accepting the preferential theory of inheritance as a law, has been provided. It was for this reason that the Quran stopped short of prescribing a law to the effect that the grandchildren are entitled to a share in the wealth of a person even while his own children are still alive. For it is necessary that all its practical difficulties must first be addressed. If the right to inheritance was provided to the grandson by way of bringing a new law to the effect, the very foundation of the Islamic law of inheritance would then come apart and would prove impracticable as well. It, thus, becomes clear to us, here, that the Quran was, indeed, revealed by Him who is well-conversant with all the possible faults and shortcomings in law.

 


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By disallowing the right to inheritance to the orphaned grandson, does Islam mean to leave him to his fate? What is the solution prescribed by Islam for this problem ?

Islam’s is never a collection of inheritance laws alone; it prescribes a set of social security measures too. Indeed, these two sets of laws are delicately inter-woven one with the other In fact, the very basis of inheritance itself lies in that sense of duty towards mutual security and cooperation. Ordinarily, therefore, the right of inheritance belongs to the person who is duty found to help out the one afflicted with misery and privations. The son is duty-bound to protect the father even as the father is so towards the son. The grandson is, however, not obliged to protect the grandfather if he has a son; if not, he will be duty-bound to do so. (This is also the reason why the orphaned grandson will have no legal share in the wealth of inheritance). It is, furthermore, the duty of the grandfather to protect the children who have lost their father. Indeed, the Quran views the indifference shown to orphans as being tantamount to the very denial of religion itself.

"Seest thou one who denies the Judgement (to come)? Then such is the (man) who repulses the orphan (with harshness)." (H.Q.107:1,2)

"Therefore treat not the orphan with harshness.." (H.Q. 93:9)

"Treat with kindness your parents and kindred, and orphans ..... " (H.Q. 2:83)

The Quran teaches that it a grievious sin to usurp the wealth of the orphans.

"To orphans restore their property (when they reach their age), nor substitute (your) worthless things for (their) good ones; and devour not their substance (by mixing it up) with your own. For this is indeed a great sin." (H.Q. 4:2)

"And come not nigh to the orphan’s property, except to improve it, until he attains the age of full strength." (H.Q. 6:152)

The prophet had taught never to do anything that would in any way infringe upon the respect that is due unto the orphans. Muhammad (pbuh), who had given the glad tidings that the one who protects the orphans will enter into Paradise in his company, had also forewarned that one of the greatest of sins is the misappropriation of the wealth of the orphan. It is, in itself, the duty of every Muslim to protect the orphans who have no family ties, whatsoever. Then does the duty of the Muslim in protecting those of the orphans who are actually related to him need any further recommendation? The responsibility of protecting them mainly rests with the grandfather. In the event of the grandfather’s demise, it is the paternal uncle who must then assume the responsibility of guardianship.

It is the grandfather who protects the orphaned grandson. He is provided with all his requirements by the grandfather. He is well-aware of all his problems and difficulties. He is also alive to the knowledge that his grandson in not entitled to any share in his wealth. He has the right, however, to keep aside a good portion of his wealth for the protection of his grandson. It is for such reasons that the Quran has made wassiyyat compulsory.

Wassiyyat is the wealth bequeathed which becomes the property of the person in whose name it is made with the death of the person who actually makes it. The Holy Quran has given great importance to the institution of Wassiyyat.

"It is prescribed, when death approaches any if you, it he leave any goods, that he make a bequest to parent and next of kin, according to reasonable usage; this is due from the God-fearing." (H.Q. 2:180)

It can be seen that the prophet recommended the making of the bequest in view of the expectancy of, and preparedness for, the arrival of one’s own death which can happen at any time. (Bukhari, Muslim). Indeed, the messenger of God had greatly encouraged the practice of Wassiyyat. He had also discouraged the avoidance of it. (Ahmed, Tirmidhi, Abu Dawood); From this, it may be inferred that Islam gave prime importance to the system of Wassiyyat.

A person has the right to allocate upto one-third of his total wealth as Wassiyyat. For whom, then, is Wassiyyat meant? The prophet had taught that Wassiyyat is not meant for one’s immediate successors. "There is no Wassiyyat for the successors (Ahmed, Thirmidhi)

For whom, then, is the Wassiyyat meant to be? That has to be of course decided by the person who intends to make it himself. The verse of the Quran (2:180) quoted above makes it clear that it must be made to those closest of relatives who come next to the immediate successors. This will, very importantly, include the orphaned grandson. The grandfather has the right to allocate any amount of his wealth to his grandsons. He can give away any amount of his wealth for the purpose while he lives. He can even give one-third of his total wealth as Wassiyyat. The condition that is to be fulfilled is that charity and Wassiyyat must not be so allocated that the rightful owners and other dependents, who are rendered poor and helpless, are not denied their rights.

This is what Islam has done in the case of the orphaned grandson. The responsibility for his protection was entrusted to his grandfather; and after the death of his grandfather to his paternal uncle. The grandfather was thus given the complete freedom to allocate as much of his wealth as was necessary for assessing, and fulfilling, the needs of his grandson. For it is the grandfather who, more than any one else, knows best all concerning him. The grandfather was thus given the right to make a Wassiyyat of up to one third of his wealth for him as well as for others striken with poverty and privations. It was also particularly prescribed that it was only after this wealth of the Wassiyyat was allocated that the remaining portion could be used by the successors as the wealth that was to go as inheritance. (4:11). It was further prescribed that if, when orphans become entitled to possess wealth, they are yet to come of age, the close relatives are to be entrusted with its safe keeping and when they do attain to maturity, it is to be handed over to them. (4:6).

The Quran has also made the instruction to the effect that if the grandfather makes no Wassiyyat, the relatives of the orphan, or orphans, including the paternal uncle, should allocate a lawful share as bequest for them at the time of distributing the wealth of inheritance. (4:8,9).

Law has its own methodology. Islam seeks to abide by that methodology. However, it also handles the problems associated with the orphaned grandson without the strangulating confines of the law. Islam accomplishes this by heightening the moral consciousness of man. Indeed, in such matters that would be the most practicable way as well.

 


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Considering the provision that if there is only a single son he is entitled inherit the wealth of the father, is it not a clear breach of justice that if there is but a single daughter who is the heir to inheritance, she be given only one-half of the total wealth and if there be more than one daughter, they be given only from two-thirds of the total assets of the father ?

This is the problem associated with the inheritance of those who have no male children. According to the order of allocation prescribed by the Quran (4:11), if the deceased person leaves behind an only daughter, she is to be given one-half of the total wealth and if there be more than one daughter they are all to be given from two-thirds of the wealth. The remainder of the wealth will then go to those other relatives who are closest in relation to the deceased. This is, however, not the male-preference of the Quran’s order of allocation; it is, rather, the fact that it is He who knows full well the intricacies of human nature who is the author of the Quran which is made evident here. If the problem is approached in the right perspective, it can be understood that this law of inheritance actually highlighted the reality that the author of the Quran is, indeed, He who is best aware of the ultimate good that can be conferred upon humanity.

The Quran does not prescribe the order of allocation with the consideration of the deceased person’s family members alone. Indeed, the love and care that is to be given to the rightful heir of inheritance: all comes within the consideration of the Quran when it comes to fixing the order of allocation. Besides this, it is also the serious concern of the Quran that the daughters of the deceased individual must be cared for and protected fully. It is particularly relevant to note an observation of the Quran when it deals with the allocation of shares: "Ye are not aware of those who are nearest to you in usefulness from among your fathers and brothers. This is the allotment of shares from Allah. Verily Allah is All-Knowing, All-Wise" (H.Q. ...)

The legal decrees of the Lord who possess an all-encompassing knowledge of man, will thus be refined, practicable and humane. In fact, this is made clear also by the solutions prescribed by the Quran for the afore mentioned problem. The following, too, are worthy of consideration:

One : It is the duty of the male children to look after their parent when they attain to old age. If there are no male children, it will be their brothers or their children, who will have to then look after them.

Two : Islam has never put the responsibility of providing financial assistance, or security, to the parents who have reached their old age upon the female children. Indeed, in the view of Islam, it is not practicable to place the obligation of looking after their parents upon the female children who have to live in other homes along with their own children. If those of advanced years do not have male children, they must be looked after by their brothers or by the children of their brothers; not by their daughters.

Three : After the death of the father the brothers become the guardians (waly) of the female children. If the deceased person leaves behind no male children, then the guardianship of his female children rest with his brothers or the sons of his brothers or with other close relatives. The duty of giving away these female children in marriage will also rest with these guardians. If they become widows, and their children orphans, then, too, their guardianship will rest with these relatives themselves. If they become divorced, the responsibility of arranging the provisions for their re-marriage will also rest with the close relatives who are their guardians.

It is only in the light of these facts that the Quranic laws pertaining to the heirs of inheritance of those who die leaving behind no male children must be examined. It is then that it becomes clear as to how faultless they actually are. It is not necessary that all relatives will take up the burden of all their obligations and refrain from demanding their rights. Islam categorically states that the relatives of the person who has only daughters, have a number of obligations. The responsibility of looking after him in his old age also falls upon these relatives themselves. They are the people who are to love and cherish him as well. They are also the people who are to become the guardians of his daughters after his death. Indeed, even if these daughters or their children are to become incapacitated it will be these relatives who will have to take up the responsibility of protecting them. Thus, the relatives of the person who has no sons have numerous obligations to fulfill. While confersing such obligations upon them, Islam has, at the same time, sought to provide these relatives with a small share of the inheritance as well. Here, too, it is the mutual inter-relatedness of responsibility and right within Islamic law which is manifested in all its especial value.

Even if the person who has no male issue wishes to give all his wealth over to his female children, there are provisions in the Islamic law which actually enables him to do so. He can give away all his wealth as a bequest to his daughters. It is also possible, by way of bequest, to ensure that nobody other than his own children becomes entitled to shares in his wealth. Furthermore, he also has the right to make a wassiyyat of upto one-third of the wealth which falls out of the range of bequest of wassiyyat that can, after all, be allocated according to the laws of inheritance.

However experience shows that one’s own security in old age as well as a sound future for one’s daughters would demand a line of action in consonance with the divine commandments which will require approportioning a small share for one’s more closer relatives. In fact, therefore, both individual and family can attain peace only in the obedience to the commands of the Almighty who is well aware of the good and evil that exists beyond our own speculative judgements. Indeed, the Quran is correct when it says : ".... it is possible that ye dislike a thing which is good for you, And that ye love a thing which is bad for you. But Allah knoweth, and ye know not." (H.Q. 2:216)

 


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If, in accordance with the Quranic law, the three daughters of the deceased person are allotted two-third and the parents one-third of the wealth of inheritance in the event that they are all alive, there will be nothing left of the wealth of inheritance. Then from where can the one-eighth part for the wife (4:12) be provided for ? Does this not show that the laws of inheritance mentioned in the Quran are impracticable ?

The fundamental sources of Islam are the Quran and the ahadith. However, legal prescriptions and ritual observances have not been explained in the Quran. Even the explanations for zakaat, fasting, Hajj and other such most important acts of worship are absent in the Quran. These details are to be found within the ahadith. So is the case with the laws of inheritance. In short, therefore, any law in Islam can be determined completely only on the basis of the Quran and ahadith.

It is only the fundamental idea concerning the order of allocation which has been expressed in the verses 11 and 12 of Surat Nisaa. On the basis of these fundamental ideas it has been explained in the ahadith as to how the wealth of inheritance is to be shared in a precise, and systematic, fashion. It is also in the explanatory books on ahadith and jurisprudence that the expositions as to how the wealth is to be shared in a way in which the fundamental ideas in the Quran are not violated, are to be found.

There are many instances wherein the share of the heirs to inheritance fall short of the amount actually stipulated. The books of jurisprudence have mentioned that in all such instances the number of shares are to be increased in such a way that the shortage is shared amongst each one of the heirs by increasing the number of divisions. The method of increasing the divisions made to fulfill the shares when the allocated shares fall short of the rightful due is termed Awl. Awl means ‘to increase’. It is the injunction of Islamic law that in all such cases wherein the shares allocated becomes insufficient, the wealth is to be divided on the basis of this concept of Awl.

The scholars of jurisprudence have stipulated the divisions that will be required in the allocation of the wealth of inheritance as being seven in number. These basic divisions comprise 2,3,4,6,8,12 and 24. Out of these it is only the three divisions 6, 12 and 24 which can be subjected to the process of Awl. In the cases where the four numbers 2,3,4 and 8 come in for division, since their parts can never be greater than their whole, there will not be the necessity for Awl at all. If the basic division is by six then, in the instances where Awl becomes necessary, the wealth can be approportioned by increasing the division to seven, eight, nine or ten. If the basic division is by twelve, the wealth can then be divided through Awl by increasing it to thirteen, fifteen, or seventeen and if the division is by twenty four, then to twenty seven. It is in such a strict and exacting manner that the ways of approportioning wealth, by resorting to a corresponding increase, in part, of the order of allocation, has been mentioned in the books of jurisprudence.

In the problem raised by the question, the daughters would receive 16/27 portion, the parents 8/27 portion and the wife would receive 3/27 portion of the total wealth. In other words, the division that was to have been by 24 here is now to be raised to 27 in the process of making the allocations in the wealth. Indeed, if the Quran and the hadith are examined together the solution is not difficult to find. Indeed, it is in the very interest of the Holy Quran which teaches that, "Verily in the messenger of God ye have the best example." (H.Q. 33:2) and that "O ye who believe! Obey God and His messenger and those in authority over you." (H.Q. 4:59) that the laws dealt within it should be understood on the basis of the practices of the prophet and on the explanations made by his companions. When understood in such fashion, it will hardly be a difficult proposition to find answers to other similar problem.

 


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