Right to Property: From a Muslim Woman's viewpoint

Published on 21 Dec 2017 by Tushar

In recent times there have been cases being filed for reform of Muslim Personal Laws. This is especially from the perspective of empowering Muslim women in India and trying to provide equal rights to women. Islam is one of the oldest and tradition rich religions of the world. Therefore, it is time we have a re-look at some of its tennets in order to ensure all followers are treated equally and fairly.

One of the biggest issues is Muslim women’s Property rights, especially the provisions dealing with inheritance.

  • A recent PIL filed in the Supreme Court has claimed that a bare perusal of the law shows that a wife can only receive a meagre 1/8th of the property of her husband on his death if they have children. In cases where the couple does not have children borne out of marriage, the woman is entitled to 1/4th of the property.
  • The petition states that the discrimination based on the 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.
  • A daughter can only receive a meagre half of the share of a son. The case as brings to light the shocking inequalities as being pr 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.

Why such unfair distinction exists in Muslim Law

The justification available to this distinction under Muslim law between the rights of men and women are –

  1. The female shall upon marriage receive mehr and maintenance from her husband whereas males will have only the property of the ancestors for inheritance.
  2. Males have the duty of maintaining their wife and children.

Property rights from the perspective of a Daughter in Islam

The rules of inheritance and right of residence are strictly set up in Muslim Personal Laws.

Regarding Inheritance-

  • As per the conventional set up right now a son is entitled to get double the share of a daughter
  • If there is no brother, she gets half a share and the same is legally hers to manage, control, and to dispose of it as and when she wants.
  • She has full control over her share of property and has the legal right to control, manage and dispose of her share as per her wishes in life or after death.
  • The daughter can receive gifts from those whom she may inherit property, but it doesn’t take away her claim as per the inheritance laws.

Regarding Marriage / Divorce-

  • The daughter has the right of residence in her parent’s home and to ask for support until she gets married.
  • If the married daughter gets divorced, the maintenance charges fall on her parents after the iddat period which is approximately three months.
  • If she has kids who can support her then it is their duty to do so.

Property rights from perspective of a Wife in Islam

In cases of divorce - 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 cases of death of husband - 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. 

Personal Property - A Muslim woman as a wife has all the rights to maintain absolute control over her personal property and goods.

Property rights from perspective of mother in Islam

  1. If the mother is widowed or she gets divorced, she has the right to receive maintenance from her children.
  2. She has the right to inherit a one-sixth share of her deceased child’s property.

Maher, Wasiyat and Hiba

These are certain parts of Muslim Personal Law which try and secure a Muslim Women Financially in the society.

The Maher is a right or entitlement under Islamic law meant only for Women. 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. 

  1. Prompt Maher- the amount is given to the wife immediately after marriage;
  2. Deferred Maher- 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. 

Summarizing the general Rights of Inheritance of  Women in Muslim Law

  1. The share of the male is double that of the female
  2. A Muslim cannot bequeath more than one-third of his or her total property. However, if a woman has no blood relations and her husband the only heir, then she can will two-thirds of her property in his favour.
  3. If all heirs claiming the property are equally near in terms of the relation to the deceased, they all have an equal share in the property. A closer heir excludes the more distant one.
  4. A woman is entitled to inherit property as a daughter, widow, grandmother, mother, or sons daughter.
  5. A widow is entitled to one - eighth share of her husband's property when there are children and one-fourth share when there are none. 
  6. A daughter gets half of whatever share her brother gets. In case she has no brother, she is entitled to a share of half the property.
  7. A mother will get one-third share of her son's property when there are no children and one-sixth when there are children.
  8. The maternal grandmother will get one-sixth the share of the total property only if there is no mother or grandfather. The paternal grandmother gets a share only if there is no father or grandfather.

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