Sunni and Shia laws of inheritance are distinct in their fundamental model as well as specific conclusions, although both are encouraged from the Quranic tone of inheritance. As a result of the fact that Sunnis are in majority, their law of inheritance is well known by people, while Shia law of inheritance does not have such a benefit.
This article aims to present in a simple manner the basic features of Shia law of inheritance. The article also provides a brief of the Sunni law of inheritance. While dealing with the basic features of Shia law, it gives a comparative analysis with corresponding features of Sunni law. The article explains how these features are involved in discussing various shares to legal heirs in Shia and Sunni laws of inheritance. There is also an amplification of the space which is shared by both Shia and Sunni traditions of inheritance in Islam.
It is common under Islamic law that the major striking difference between Sunni and Shia legal systems is their variant laws of inheritance. These distinctions are so deep-rooted that it is almost impossible to judge them. It does not mean that there exists no similarity between the two. At least there are quite a few ways where these distinct legal customs depend on the same types of shares and recommend the same type of solutions to practical problems. Taking into account their variant structures, it is a rising task to justify them within one scale of explanation.
Classes of Legal Heirs:
Proper recognition of these classes helps one understand Shia law of inheritance since details of the system in one manner or another are linked to it. These classes are classified as follows:
- Parents, and
- Children (male and female). The children also include their descendants how low so ever irrespective of the fact whether they are descendants of male or female children.
- Grandparents (true or false) how high so ever, and
- Brothers and sisters (full, consanguine, and uterine) and their descendants, howsoever low irrespective of their gender.
- Paternal uncles and aunts,
- maternal uncles and aunts, and
- their children howsoever low irrespective of their gender.
- Birth right not recognized
As per Sec.52, birth-right is not accepted. The right of an heir-supposed or assumed to come into continuance for the first time on the death of the forefather, and he is not designated until then to any right in the property to which he would inherit as an heir if he survived the forefather.
· Per-Capita and Per-Strip Distribution (Rule of Distribution)
Succession among the heirs of the same class but associated with various branches may either be per-capita or per-strips. The per capita sharing process is largely used in Sunni law. According to this process, the property left over by the forefathers gets equally divided among the heirs. Hence, the part of each person depends on the number of heirs.
The per strip division process is accepted in Shia law. According to this process of estate inheritance, the property gets shared among the heirs according to the strip they belong to. Hence, the amount of their inheritance also lays upon the branch and the number of persons that belong to the branch.
· Doctrine of Representation
The doctrine of representation is a well-known rule accepted by the Roman, English, and Hindu laws of inheritance. Under the theory of representation, as is accepted by these systems of laws, the son of a predeceased son represents his father for purposes of inheritance. The doctrine of representation defines that if during the life of the forefather, any of his or her legal heirs die, but the latter’s heirs still alive, then such heirs shall become designated to a share in the property as now they shall be performing their immediate generation. But, this doctrine of representation does not find its position in the Muslim law of inheritance. Hence, it is said that the closer heir refrains the distant heir from inheritance.
The Muslim scholars explained the reason for refusing the right of representation on the belief that a person has not even an elementary right to the property of his forefather until the death of that forefather. It is further contended that a right which was not rested in any possibility cannot give surge to the alleged through a deceased person.
· Female’s Right of Inheritance
Under the Islamic Law, men and women have equal rights of inheritance. Upon the death of a Muslim, if his heirs also consists of females then, men and woman inherit the properties together. Men have no choice against the right of inheritance over females, but usually, the share of a man is double the shares of a woman. Particularly the law of double share for men ‘also known by the Parsi Law mentioned in the Indian Succession Act, 1925, and has not been altered even by the 1991 Amendment of the Act.
In simple words, although there is no distinction between men and women heirs in so far as their respective rights of inheritance are considered but usually, the amount of property inherited by a female heir is half the property given to a male of equal status. The rule that usually the share of a male is double the share of a female has some explanation attached to it. Under Islamic law, while a woman heir gets additional money or property as her Mehr or dower and maintenance from her husband, her male partner gets none of the two advantages. However, the male heir is responsible for the maintenance of his children while the female heir may have this responsibility only in special cases.
· Widow’s right to succession
Under Muslim law, no widow is refrained from succession. A childless Muslim widow is designated to one-fourth of the property of the deceased husband, after completing his funeral and legal expenses and debts. Moreover, a widow who has children or grandchildren is designated to one-eighth of the deceased husband’s property. If a Muslim man marries during an illness and consequently dies of that medical condition without an abrupt recovery or accomplishing the marriage, his widow has no right of inheritance. But if her diseased husband divorces her and afterward, he dies from that ailment, the widow’s right to inheritance continues until she remarries.
· A Child in the Womb
A child in the womb of its mother is capable enough to inherit given it is born alive. A child in the embryo is considered as a living person and, as such, the property rests immediately in that child. But, if such a child in the womb is not born alive, the property already lies in it is divested and, it is assumed as if there was no such heir at all.
Grounds of Disqualifications
Disqualifications which debars the heirs to succeed the property of the intestate are—
Under the Sunni Law, a person who has caused the death of another, whether intentionally, or by mistake, negligence, or accident, is refrained from inheriting to the property of that other. Assassination under the Shia Law is not a bar to inheritance unless the death was caused deliberately.
· Illegitimate Children
Under the Hanafi School, an illegitimate child is not authorized to inherit. Such a child cannot inherit from his/her father but can inherit from his/her mother and all relatives of the mother. The mother can also inherit the property of her illegitimate children. If a woman has two children, one legitimate and the other illegitimate, they do not inherit from one another. Insanity, bodily deceases, infirmity, and unchastity, do not disqualify any heir from inheriting property.
· Difference of Religion
A Hindu could not inherit from a Muslim but the Caste Disabilities Removal Act of 1850 eliminated this rule. If a Hindu accepts Islam and then dies, the Act of 1850 cannot guarantee the nature of his conversion law of succession to his property; the Muslim Law will apply in such a case. Where a person converts to Islam and died leaving behind only a daughter, as against the claim of his Hindu relatives she is entitled to all his property, half share as her fixed share as Quranic heir and the rest by way of return.
The step-children are not designated to inherit the properties of their step-parents. Similarly, the step-parents are refrained from inheriting the property of step-children. The step-father and step-son or daughter cannot inherit each other‘s properties. The step-child is capable to inherit from its natural father or natural mother. Similarly, the natural father and natural mother can inherit the property from their natural sons or daughters.
· Simultaneous Death of two Heirs
When two or more persons die in such a situation, it is not significant as to who died first (i.e. who survived whom), both of them refrain to be an heir for each other. In other words, where two or more heirs die together and, it is not possible to determine who died first, then, under Muslim law, all the heirs are assumed to have died at the same moment. The result is that such heirs are known as if they did not present at all.
When a deceased Muslim has no legal heir then under Muslim law, his properties are inherited by the Government through the process of escheat.
The article has detailed the salient features of Sunni law of inheritance and critically analyzed them with the corresponding principles of Shia law with a prospect to stimulate convenient recognition of this field of law. It has been put forward that if some basic aspects of Shia and Sunni laws are clasped, it would become almost easy to handle these systems. For example, the distribution of legal heirs into three classes according to Shia law does not have any distinct, able feature in Sunni law.
As stated above, this distinction has multiple consequences in the persistence of the division of legal heirs. There is another notable difference that Shia law does not recognize distant kindred as another category of legal heirs as they are identified in Sunni law. Most of those who are classed as distant kindred in Sunni law, are classified in the three basic classes of Shia law. Hence, they are likely to succeed in a property either as a sharer or a residuary.
- What are the sources of Muslim law?
- What are the rights of a Muslim widow with regard to inheritance?
- What are the rights of a Muslim divorced woman?
- What are the differences in inheritance as per Shia and Sunni law?
- What are the grounds for disqualification which refrain the heirs to succeed the property?