Monday,27 May, 2019
Current issue | Issue 1359, (7 - 13 September 2017)
Monday,27 May, 2019
Issue 1359, (7 - 13 September 2017)

Ahram Weekly

Equality under debate

Tunisian President Beji Caid Essebsi recently opened a debate on the inheritance rights of men and women in Islamic Sharia Law, sparking controversy across the Arab world, writes Reem Leila

Equality under debate
Equality under debate

On 13 August Tunisian President Beji Caid Essebsi announced the formation of a committee to study the issue of men’s and women’s inheritance rights in his country, immediately sparking controversy in the Arab and Islamic world because of the question’s potentially religious character.

Traditionally, women inherit only half as much as men in Muslim countries, a provision taken from Islamic Sharia Law. According to US academic John Esposito, author of Women in Muslim Family Law, the inheritance provisions in the Quran, of which this is one, were superimposed upon early customary rules designed to keep property within tribes in pre-Islamic Arabia. These customary rules allowed only mature male relatives to inherit, excluding widows and daughters, for example.

The Islamic inheritance system did much to correct these injustices, and it is widely recognised as having raised women’s status in society following the revelation of the Quran. “The Quran granted rights of inheritance to the husband and the wife, to children and to a number of close female relatives who had previously had no rights of succession at all,” Esposito writes. In general, however, female heirs were awarded a share equal to half that of their male counterparts, since men were expected to provide for women.

Many women’s rights activists and Islamic reformers today believe that while Islam did improve women’s status in comparison to what it had been during the earlier pre-Islamic Jahiliyya era, the fact that under Sharia Law women inherit half men’s share, and the stipulation that two female witnesses are equivalent to one male, are incompatible with constitutional rights granted by most modern nation-states, according to which all citizens are equal before the law.

Even so some Islamic scholars feel that at least part of this objection is flawed, since instances in which women receive only one half of men’s share of inheritance are in fact quite rare.

According to Zeinab Radwan, author of Women’s Inheritance in Islam, a book with an introduction and preface written by late grand imam of Al-Azhar Sayed Tantawi, a careful examination of the Islamic philosophy of inheritance reveals that Islam takes into account considerations that have nothing to do with gender, but which have been subjected to an erroneous, gender-focused reading.

“While women inherit half the share of men in some cases,” her book says, “in other cases they inherit an equal share, and sometimes even double the share of men, or more. Indeed, there are instances in which women are entitled to inherit, while men are not.”

Radwan argues in her book that “the argument that Islam enshrines women’s status as inferior to that of men indicates inadequate knowledge of Islamic legislation.”

This variety of views arises from the distinction in Islam between various categories of heirs. Jurists of the Hanafi School of Islamic Law, according to Esposito, divide heirs into seven categories, the first three being the principal classes. “Quranic heirs,” mostly women, are then sometimes called “sharers” because they receive a precise fraction of the estate, as prescribed by the Quran.

These inherit first, but only a portion of the estate. The remainder (usually the bulk of the inheritance) reverts to male relatives. Once these heirs have received their share, the estate passes to class-two “agnatic heirs,” or male relations in the male line. The remainder of the inheritance is then distributed among “uterine heirs,” which include “every relative who is neither a sharer nor a residuary,” Esposito explains.

Occasionally, cautions Radwan, “the inheritance rights of the first-degree heirs use up the entire estate, and nothing is left for the second-degree or class two heirs.” The Quran, she continues, designates 12 first-degree heirs, of whom eight are female and only four are male. The females are the wife, mother, daughter, grandmother, son’s daughter, full sister, paternal half-sister and maternal half-sister of the deceased. The males are the husband, father, grandfather and maternal half-brother.

Islam, therefore, established that women are just as entitled to inherit as men, Radwan notes. Furthermore, it ordained that the number of class one female relative entitled to inherit is twice that of the class one male relative. Islam also extended protection to kin through the maternal line by making the maternal half-brother a class one heir. Additionally, siblings from the same mother inherit equal shares regardless of gender.

Radwan adds that there are only four cases in which women inherit half men’s share. When the deceased is survived by a son and a daughter, the Quran says that “Allah [thus] directs you as regards your children’s [inheritance]: to the male, a portion equal to that of two females.”

However, the general rule dictates that the distribution of an estate depends upon the heirs’ relation to the deceased. The closer the relation, the larger the share of the estate. For example, a daughter inherits more than a paternal uncle. She receives half of the inheritance if she is the only daughter; if there are more than one, their share in the estate is two-thirds. A wife inherits one eighth, while a mother inherits one sixth. The rest of the estate, no matter how small, passes to the paternal uncle or uncles.

“Thus, the daughter of the deceased, although a female, inherits more than the deceased brother, even though he is a male,” explains Radwan.

There are, however, exceptions to this rule of proximity. A maternal grandmother inherits the same share as the father of the deceased, although she is not as closely related. A maternal half-sister also inherits a share equal to that of a full brother, although she is not as closely related to the deceased.

These exceptions, Radwan emphasises, are both in favour of women.

OTHER FACTORS: Other factors regulating the distribution of an estate are also linked to considerations other than gender.

For instance, the younger the generation of heirs, the greater is the need for money. Accordingly, the younger generation inherits more than the preceding one, and an only daughter receives half of an estate, two daughters or more receive two-thirds, while their grandfather is granted only a sixth. The share of a son is also greater than that of his grandfather, although both are males.

Radwan says that the circumstances in which women inherit half as much as men show that the criteria determining distribution are designed to strike a balance between rights and obligations.

“If we consider the cases in which women inherit half men’s share in the light of women’s right to inherit and men’s obligation to provide financial support, we find that ultimately women are equal to if not more privileged than men. According to Islam, men are financially responsible for the family, while a woman has no financial obligations and is not even required to spend on herself or her children, no matter how wealthy she is, unless she chooses to do so,” she says.

While some instances of women inheriting half as much as men do exist, Radwan argues that there are others in which women’s share is equal to that of men, cases in which women inherit more, and even cases where women inherit while men do not.

A maternal half-sister, for instance, inherits a share equal to that of a maternal half-brother. According to the Quran, “if the man or woman whose inheritance is in question has left neither ascendants nor descendants, but has left a brother or a sister, each one of the two gets a sixth. If there are more than two siblings, they share in a third. This text clearly indicates that half-siblings on the mother’s side inherit the same amount,” Radwan writes.

Thus, when a woman dies, her husband inherits half the estate, her mother one third, and a maternal half-sister or half-brother one sixth. In other cases, a maternal half-sister may even be favoured over a full brother. Thus, a husband receives half his deceased wife’s estate, while her mother inherits one sixth, maternal sisters take one third, and a full brother receives nothing.

The Quran instructs that it is only after the prescribed shares have been distributed that the full brother, a class two heir in this case, receives his portion.

If nothing is left after the first-degree heirs receive their inheritance, he receives nothing, in accordance with the hadith (prophetic tradition) which says “give the first-degree heirs their due and then give what is left to the most deserving of the male relatives.”

Additionally, if the deceased is survived by a sole heir, whether male or female, the survivor will inherit the entire estate, regardless of whether the man is entitled to the inheritance as a second-degree heir and the woman as a first-degree heir. If the sole survivor is a woman, she gets her prescribed share as well as the remainder of the inheritance.

Islam also equates male and female siblings. For example, if a woman dies, her husband will receive a quarter of the inheritance, while a full brother or sister will also get half.

MORE THAN A MAN: The largest first-degree (compulsory) share of inheritance in Islam is two-thirds, and this is granted to women, not men, according to Islamic Sharia Law.

The only male who gets half an estate is a husband in the absence of other heirs (an exceptional case). In contrast, an only daughter, a son’s only daughter, a maternal half-sister and a paternal half-sister are all allotted half an inheritance. Furthermore, women are first-degree heirs in 17 cases compared to six cases only for men.

If a man leaves 648 feddans of land, for example, his wife will get one eighth (81 feddans), his father and mother one sixth each (94.5 feddans), his daughter half (236.25 feddans) and the daughter’s son one sixth (39.37 feddans). If the deceased had had a son instead of a daughter, the son’s son would have received only 17 feddans, because it is not among the prescribed portions.

Similarly, if a woman dies and leaves 195 feddans of land, her husband will receive one quarter (48.75 feddans), her father and mother one sixth each (34.37 feddans), her daughter one half (58.76 feddans), and that daughter’s son one sixth (18.63 feddans). If the deceased had had a son and not a daughter, the son’s son would have received nothing, since his portion is not prescribed by the Quran or Sunna (prophetic practices).

If these inheritance laws seem unimaginably complicated, one can only imagine the difficulty of implementing them when the property legated is real estate that must be divided up amongst the heirs. As Esposito remarks, “the Prophet is reported to have said that the laws of inheritance comprise ‘half the sum of ilm’ (true knowledge stemming from divine revelation).”

While inheritance and property must have a named owner, tradition, especially in Upper Egypt, assumes it will be managed by a bloodline patriarch and used for the benefit of the entire family. A father or brother is put in charge and is responsible for taking care of family finances, and hence all family property remains in male hands. The belief is that when women inherit, property intended for the support of one family may end up in the hands of another. This custom thus deprives women of the right to own or manage any financial or land inheritance.

Today, however, such norms are being challenged by demands for greater autonomy for women. Egypt’s National Council for Women (NCW) is preparing an amendment to the current Inheritance Law 77/1943 in the shape of a penalty levied against anyone who deprives or prevents a female from receiving her inheritance. This could amount to one year in prison and a fine of not less than LE1,000 and not more than LE10,000.

Head of the NCW Maya Morsi Hassan said that while Egypt’s legislation is based on Islamic Sharia Law, it also considers women’s rights. Rural customs, however, may still mirror traditional customary practices that are not legitimated in Islamic Law, including the practice of female genital mutilation (FGM), early marriage for females, and denying women their inheritance under the guise of preventing money from being taken by their husbands.

“What is worse, many women are not aware of their rights, while others do not have the courage to ask for them,” Morsi said. “There is a need for legislation to make things clear.”

“We have to rethink the inheritance law because more than 30 per cent of families in Egypt are supported by women,” Morsi argued. “If the woman is the provider for the family, why is she denied her right to inherit?” An informal agreement between the NCW and the Ministry of Awqaf (religious endowments) to increase people’s awareness of women’s inheritance by mounting various campaigns had proved unsuccessful, she said. “Social class, religious backgrounds, political views, rural/urban locations and family backgrounds are the decisive factors in determining women’s status in Egypt,” she said.

While there are no official figures showing the percentage of women being deprived or prevented from receiving their inheritance, such practices are unfortunately believed to be prevalent in Upper Egypt and other rural areas. Mahmoud Al-Sakka, a professor of law at Cairo University, believes women can be short-changed because of their ignorance of their legal rights.

“In many parts of the country, people abide by tribal rules, customs and traditions, rather than the law,” Al-Sakka said. This is despite the fact that inheritance in Egypt is organised according to Islamic Sharia Law, which guarantees women’s inheritance.

“If anyone, not only a woman, resorts to court asking for their rights to a legacy, they can get them by court order. Judges and men of religion are well aware of these rights applied by the force of law, yet the public may still be unaware of them,” he added.

AL-AZHAR CONTROVERSY: Following the announcement made in August by Tunisian President Beji Caid Essebsi that his country intended to review its inheritance laws, the grand imam of Al-Azhar, Ahmed Al-Tayeb, issued a statement rejecting such calls.

Al-Tayeb firmly rejected any state intervention in regulations that could affect the rulings of Sharia Law. According to the grand imam, some Quranic texts are clear and direct in their meaning and cannot be subjected to re-interpretation, and this includes verses of the Quran relating to inheritance.

“There is no room for re-interpretation, and it is unacceptable for the public or non-specialists, whatever their culture, to do so,” Al-Tayeb said. Calls for change such as that put forward by the Tunisian president risked “provoking Muslims all over the world who adhere to their religion. It also risks the stability of Muslim societies,” he argued.

“It must be understood by everyone that jurisprudential law is sacred, and that there is no space for anyone to re-interpret it, especially the Quranic verses,” Al-Tayeb added in his statement.

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