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Linguistically, the word irth means a estate that is transferred from person to person. It can also mean ‘an aged affair’ or ‘remnants’. Its technical, jurisprudential meaning has been defined by the Hanbali jurist Afdhal al-Deen al-Khunji as, “A right which can divided to those legislatively entitled to it, after the passing of the deceased, due to qarābah (familial closeness) or that which is similar to it.” For the most part, the legislative laws that act as the foundation for inheritance are defined in textual sources from both the Qur’an and ahādith, leaving little room for any independent interpretation.
The rulings of inheritance observe a number of criteria in determining the allocated shares each party receives. Firstly, the proximity (qarābah) or remoteness of the heirs is considered. For example, the daughter of the deceased inherits half the estate than her grandmother would, whereas the deceased’s father is entitled to only a fourth. Secondly, the Sharī’ah seeks to observe the generational position of the heirs. For example, a daughter will inherit more than her grandmother, yet both are females. Likewise, a daughter will inherit half of her father’s estate, whilst the deceased’s father is only deserving of the unclaimed remainder of the estate. Thirdly, the financial burden and obligations of the heirs are taken into account. It is this third criteria that results in the usual difference in respective shares. As discussed previously in the meaning of the qiwāmah, the financial responsibility upon a husband is considered from amongst the foremost rights of the wife, and indeed the greater family as a whole, including other dependents for whom the man serves as the primary provider. At the same time, the wife is entitled to her husband’s wealth (without his permission in certain cases), whereas she has complete autonomy with her own wealth and shares none of the financial responsibilities meted out to the husband.
An exhaustive reading (istiqrā’) within various jurisprudential compendiums – avoiding minute, valid differences amongst the mathāhib – presents the following scenarios of inheritance:
Thus, seventeen out of twenty-three fixed portions are due to women and, as shown above, they duly inherit more than males.
We have shown that the Islamic laws of inheritance are incredibly detailed and exhaustive. The 19th century professor of law Almaric Rumsey wrote:
The Moohummudan law of inheritance comprises, beyond question, the most refined and elaborate system of rules for the devolution of property that is known to the civilized world, and its beauty and symmetry are such that it is worthy to be studied, not only by lawyers with a view to its practical application, but for its own sake, and by those who have no other object in view than their intellectual culture and gratification.
This is in stark contrast to the Western tradition in which women in general, and married women in specific, had virtually no right to intestate succession. Until the end of the
Al-Mawsu’ah al-Fiqhiyyah al-Kuwaitiyyah. Wazarat al-Awqaf wash Shu’un al-Islamiyyah- Kuwait. 3/17.
Salah al-deen Sultan. Mirath almar’ah wa qadhaiyyh al-musawah. 1999. Nahdha Misr. See also: Shalabi, Muhammad Mustapha. Ahkam al-mawarith beyna al-fiqh wa’l Qanun. Maktabah al-Nasr. 1992.
Almaric Rumsey, Moohummudan Law of Inheritance and right and relations affecting it: Sunni Doctrine, 3rd ed. (London: W.H. Allen, 1880) as cited in Alshankiti, Asma. A Doctrinal and Law and Economics Justification of the Treatment of Women in Islamic Inheritance Laws. Masters Thesis. 2012. University of Alberta, Edmonton, Canada.