Introduction

Three verses provide specific guidance on the distribution of the remaining

wealth left by a decedent after accounting for any bequest made, any
remaining debt of the decedent, and other expenses such as funeral-related
expenses in chapter IV, Al Nisa Verses 11, 12, 176. The Quran specifies exact
shares for a number of male and female heirs. The shares of other eligible heirs
are determined either residually or by applying the rule that the male heir gets
twice as much as the corresponding female heir. For the time, this prescribed
inheritance law was a great advance from earlier times, when the inheritance
was mostly limited to the male agnate relatives of the deceased (asabas) with
preference for the nearest adult male. Women and minors were mostly
deprived, and the surviving parents, and the husband and half-brothers and
sisters from the mother’s side were also excluded from the inheritance.

The exceptions made in the Inheritance Law suggest that the distinction made
in general between male and female heirs giving the former double the share
of the latter is not essentially inherent in the Quranic Law itself. The provision
giving preference to the male over the female rather responds to the particular
socio-economic milieu of the time when the husband took full socio-economic
responsibility to support the wife and the family as a whole. If this situation
changes, then there must be room for changes in the rules of the Inheritance
Law.

REVISITINIG THE RATIONALE FOR A GENDER-NEUTRAL INTERPRETATION

On a close reading of the Quran‗s provisions about the inheritance rights of

the surviving relatives of a deceased person, one important conclusion that
emerges is that the overall intention or direction of the Quran was to
ameliorate the financial conditions of the decedent‗s relatively weaker and
more disadvantaged relatives, according them greater shares of his or her
inheritable property. The direction is definitely egalitarian. What is important
to note is that these reforms were grafted onto an existing predominantly
patriarchal legal system. Another point to note, one that has been well
emphasized by noted modernist scholar late Fazlur Rahman (1919-1988), is
that Muslims need to pay attention to the major socio-moral objectives of the
Quran, which are “the moral conduct of man and the establishment of an order
of socioeconomic justice and essential human egalitarianism”.

With changing time and context, human perceptions of what constitute justice
also change. Even though the Quran did not declare an outright ban on human
slavery, no sane person would say today that we should have slavery in our
modern society. Also, since the inheritance rules are not an isolated aspect of
family laws, possible further reforms of these rules need to be addressed as
part of, and in conjunction with, overall family law reforms. While reforms on
other fronts such as marriage, divorce, social and political rights, etc., have
made appreciable progress in a number of Muslim countries in recent years,
there is not much discernible progress in inheritance reform in these countries.
Ibn Qayyim al-Jawziyya (1292-1350), a thirteenth century jurist and a great
reformer of his time was much ahead of his time when he said, ―Any rule that
departs from justice to injustice, from kindness to harshness, from the
common good to harm, or from rationality to absurdity cannot be part of [true]
Shari. The modern family law reform agenda has progressed along two lines –
one is the feminist movement within the Islamic tradition itself and the other is
a logical extension of the progress in secular liberal ideas leading to
widespread recognition and acceptance of human freedom, human rights, and
gender equality. Two recent reform pieces – one a book Women in the Shari‟a
and Our Society (1930) by Tunisian religious reform thinker al-Tahir al-Haddad
(1899-1935) and the other an article ―The Status of Women in Islam: A
Modernist Interpretation‖ (1982) by Pakistani-American scholar Fazlur
Rahman, both declared heretical by conservative clerics, lay the groundwork
for an egalitarian family law. ― [A]I Haddad argues for legal equality for
women in all areas, including in inheritance. According to him, the Quran’s
assignment of a lesser share for women was due to the conditions of the time;
it was a concession to the social order. Al-Haddad’s ideas helped shape a
reformed Tunisian family law, codified in 1956. Fazlur Rahman‘s ideas helped
shape the feminist scholarship in Islam. He further notes that legal reform can
only be effective in changing the status of women in Muslim contexts when
there is an adequate basis for social change; otherwise its success will be
limited, transitory or confined to certain social groups.
As Khaled Abou El Fadl aptly points out, the ultimate objective of the law is to
ensure justice, mercy and compassion in society. He rightly puts it, ―men and
women equally qualify for God’s grace and reward. The authority given to men
over women is not because they are men but because, in a particular historical
context, men financially provided for women. But if the circumstances change,
and women share financial responsibility with men, authority must be equally
shared between the two as well.― [T]he rules of law that apply to women‖, as
Abou El Fadl aptly notes, should not be regarded as ―static and unchanging
The Islamic law has to keep changing forward to achieve the moral objectives
expressed in the Quran. To achieve justice, there has to be a constant effort to
achieve a more authentic proportionality between the duties and rights of
Muslim women. So, for instance, if within the social dynamics of time, women
carry a financial responsibility equal to [that of] men, it is more consistent with
Shari’a to allow women an equal share to men in inheritance.‖

Muhammad Shahrur also rejects the rigidly defined inheritance rules given by
the traditional scholars. He has come out with a ground-breaking
interpretation of the Quranic laws, which also provides accommodation for
treating males and females equally in respect of inheritance. He maintains that
the Quran should be read and understood in relation to ever changing socio-
cultural realities. He wants us to understand the Quranic laws in terms of what
he calls ―the theory of limits‖ (hudud), which means that the Quranic laws set
limits within which societies with sociocultural diversity can set their own rules
or laws. The theory of limits, according to Shahrur, allows flexibility in
regulating various Quranic laws, including inheritance, according to
sociocultural diversity. Thus the inheritance share of a male heir could vary
within the upper limit of twice the female share and the female share could be
higher than the lower limit of one half of the male share, this depending on the
particular sociocultural context.26 In the modern age, women often need to
work side by side with men to either support herself or to contribute to
supporting the family.

THE STATUS QUO BY THE ORTHODOX CLERGY IS UNSUSTAINABLE

The conservative religious scholars have their own arguments to fiercely
oppose any change in the Quran’s inheritance rules. They resist any change in
inheritance rules on the ground that God’s word prevails for all times and all
places. However, as we have seen above, many modernist Muslim scholars,
including even their mentor Abul Ala Mawdudi, have refuted this argument
saying that the Quran needs reinterpretation in the context of changing reality.
Also, their argument is seriously flawed since they fail to recognize the vital
difference between the moral objectives and principles of the Quran that
should not change and those aspects that require constant updating to keep
up with the moral intent of the Quran.

A second argument the traditional ulama use is that a woman inherits a half-
share only in four cases, compared with more than thirty cases in which she
inherits a more share. However, the irony of this argument is that it has
virtually no teeth, since it is precisely these four cases that make up the most
frequent cases in reality. 31 Also, there had been historical precedents of
updating many Islamic laws during the times of the Prophet himself and Caliph
Umar, which the ulama cannot deny.

PROGRESS OF INHERITANCE REFORM IN MUSLIM COUNTRIES: SOME

EXAMPLES

Whatever little information is available suggests that35 there has been very
limited progress made in inheritance reform in Muslim countries, even though
notable progress has been made in recent years in a number of countries in
other aspects of family laws that address existing discrimination against
women in marriage and divorce.36 Progress on the inheritance front has been
either blocked or stalled in most Muslim countries due to the official use of the
Sharia Law in many countries, use of a dual legal system of both secular and
Sharia laws, with the Sharia Law applied to deal with family matters, and stiff
resistance from traditional Muslim clerics. Spotty progress in inheritance law
reform in some countries is noted as follows.

Turkey. Turkey remains a model for other Muslim countries. In 1926, Kemal
Ataturk introduced sweeping reforms, replacing the Sharia Law with the Swiss
civil code, and gave a status and rights to women equivalent to those of men.
―Legal equality between the genders was instituted between 1926-1934 with
changes in a multitude of rules and regulations. […] The equal rights provided
by the Swiss Code covered the areas of […] marriage, divorce, custody, and
inheritance. Remarkably, the Turkish revolutionary reforms in family reforms
came well in advance of the UN-adopted human rights agreements. There was
a relative decline in the status of women after 2002 when a moderately
religion-friendly government came into power. Some reforms in the family
laws such as those relating to monogamy and child marriage got reversed in
their implementation, especially in the rural areas. However, the Ataturk-time
inheritance reforms remain intact.

Somalia. Somalia is another example where the inheritance rules are

completely gender-neutral. Male or female children, or grandchildren in the
event of no surviving children, get equal shares. In the event of no surviving
children and no surviving spouse, the surviving one parent inherits the whole
estate and it is divided equally between both living parents. With a surviving
spouse and both parents, the spouse gets one half and each parent gets one
fourth. With children or grandchildren, each parent gets one sixth of the
inheritance. With no children or grandchildren, the widow or the widower gets
one half of the inheritance; with children or grandchildren, he or she gets one
fourth. Similar equality is maintained also in the case of only surviving siblings,
whether full or half.39

Tunisia. Thanks to the ideas of the Tunisian reformist scholar Al-Tahir al-
Haddad, Tunisia became a front-liner in the Arab world in carrying out family
law reforms. The reforms came through the promulgation of a Tunisian Code
of Personal Status in 1956, which formed the basis for addressing gender
discrimination in a wide array of areas such as access to justice, laws ensuring
gender equality in marriage and divorce, freedom of movement, freedom from
gender-based violence, and social, political and economic rights. However,
even though a second wave of reforms was carried out in the 1990s under the
influence of women activists, strikingly, the issue of unequal inheritance
among male and female heirs still remains unaddressed.40 Even though a new
state constitution adopted in January last year enshrines gender equality,
inheritance rules have remained as patriarchal as before under the Sharia-
following Ennahda government. A new government defeating the Ennahda
party has come into power in October last year, which paves the way for new
legislation in the direction of ensuring equal inheritance rights for male and
female heirs.

Morocco. Morocco started late in reforming family laws. A family code

(Mudawana – Morocco Personal Status Code) adopted in 2004, though less
ambitious than in the Tunisian case, was hailed by women’s rights groups as
abig step forward. In 2011, ―the country passed a new constitution
guaranteeing gender equality. Even so, Moroccan women say that equality is
still a long way off, and much of the old order remains untouched, including
the inheritance law section of the family code.‖41 But there is a growing
pressure for change. In the current situation of Morocco, men are no longer
the head of the households; ―women provide for the family or at least
contribute in a significant manner.‖

Indonesia. A country with the largest Muslim population, Indonesia presents a

fascinating case where efforts to push women-friendly reforms are having little
impact due to the opposition from conservative forces. In the late 1980s and
early 1990s, Indonesia brought out a Kompilasi Hukum Islam (Compilation of
Islamic Laws). During this compilation, the Government‗s Religion Minister
proposed to equalize inheritance between men and women to bring it into line
with Indonesian adat, or customary law, and Southeast Asian social realities,
and the progressive ideas of some Indonesian scholars. However, this proposal
was nipped in the bud before it could be actually outlined in a formal draft due
to resistance from the conservative clerics. One important piece of gender-
neutral inheritance reform introduced by an Indonesian Supreme Court
decision in 1994 was that a male or a female child of the decedent could
exclude collaterals. The court made this landmark decision by interpreting
―walad‖ in Quran‗s verse 4:176 to mean both male and female children.42
This was an important theological interpretation that can support future
gender-neutral reform in Indonesia and also in other countries. Even though
Indonesian law code marginalizes women, it nevertheless embraces some
women-friendly reforms in marriage and divorce areas. In 2003, the Religious
Affairs Ministry formulated a document – The Counter Legal Draft of the
Islamic Code of Law – based on a critical analysis of the existing law code. This
document offers a promising future for gender-neutral reforms, putting
emphasis on human rights, advocating gender equality, and voicing
humanistic, pluralistic, and democratic views of Islam.43

Egypt. In a landmark development in 2000 and in a sharp break with the past,
Egypt introduced some reforms in family laws, granting certain rights to
women to divorce unilaterally.44 A legislation in 2007 outlawed also female
genital mutilation. Insofar as the inheritance issue is concerned, two noticeable
changes were made in the Sharia Law. First, grandchildren, both male and
female, are included as legitimate heirs up to one third of the inheritance.
Second, the bequest has been made mandatory up to one third of the
inheritance.45

Pakistan. An ordinance promulgated in 1961 by President Ayub Khan made

some noticeable reforms in family laws relating to marriage and divorce such
as banning child marriage, setting minimum marriageable ages for boys and
girls, requiring marriage registration, and subjecting polygyny to certain
conditions, including requiring first wife‗s consent and authorization by an
arbitration council. The only visible reform in the inheritance area was to
recognize the inheritance rights of orphaned grandchildren. Gender-neutral
reforms look a remote possibility in the current situation where politically
powerful conservative forces are wielding a major influence, even though the
government is a signatory to the CEDAW.

Bangladesh. Relative to its South Asian peers, Bangladesh‗s achievement in

recent about two decades in some social development indicators such as
education and health has been spectacular, which, importantly, includes
elimination of gender disparity in primary and secondary school enrollments
and near achievement of basic universal education.46 The government‗s stance
since the time of the country‗s liberation from Pakistan in 1971 has been
essentially secular. Article 28 (2) of its constitution professes gender equality
―in all spheres of the State and of public life.‖ The secular stance has been
somewhat undermined, during the rules of two dictators in 1977 and 1988,
when it embodies the declaration that the State is Islamic. Such a provision has
given scope for the conservative ulama to weigh in on matters especially
relating to family laws and inheritance. The 1961 ordinance promulgated
during the The 1961 ordinance promulgated during the time when Bangladesh
was part of undivided Pakistan, embraces certain family law reforms as
mentioned above in the Pakistan case. However, in a stark contrast to
Bangladesh‗s advance on the social development front, the implementation of
family law reforms has been rather very limited, due primarily to the influence
of the conservative clerics, except in the case of the ban on child marriage. In
the inheritance case, the only improvement is the inclusion of orphaned
grandchildren as heirs. However, as a signatory to the CEDAW, the government
is committed to establishing gender equality by removing all forms of existing
discrimination against women. Recently the government proceeded to take
some cautious steps towards gender-neutral inheritance, but stepped back in
the face of strong resistance from the religious clerics. However, given the
growing public opinion toward reform amid general socioeconomic
development, the future seems to be on the side of reform.

Conclusion
Though the Quran generally provides for division of inherited property among
surviving children and near relatives according to the rule that the male heir
should get twice the share of the corresponding female heir, many modern
scholars have convincingly demonstrated that this rule is now out of date. This
rule is rooted in a socio-cultural environment where man is the only caretaker
of the family. In today‗s context, when women are equally sharing with men
the burden of supporting a family both monetarily and non-monetarily, this
unequal gender treatment is clearly untenable. The nonmonetary contribution
of women to a family has long been overlooked. The spirit of the Quran was
never meant to promote gender inequality. Its text contains important
exceptions that accord equal treatment to the male and female heirs. The
stated discrimination against female heirs was predicated solely on the
premise that man is the sole breadwinner and supporter of the family. That
premise is no longer applicable in the modern context. The adoption of the
human rights instruments such as the Universal Declaration of Human Rights
(UDHR, 1948) and the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW, 1979) also underpins the case for
establishing equal gender treatment in the inheritance case. It should be
stressed though that our recommendation for gender-neutral treatment in
inheritance is meant to be a means to an end, not an end itself. The focus
should be on removing existing unjust discrimination against women in the
very spirit of the Quran, which envisions family relationship as one of love and
compassion (30:21) and requires the husband to treat her wife in a humane
manner even when he decides to divorce her (2:231). The reform for gender
neutrality in inheritance should be carried out, in line with the
recommendation of Fazlur Rahman, when social conditions and public opinion
are conducive enough for such a reform. It should be carried out, where
appropriate, in combination with reforms in family laws covering marriage and
divorce issues. This analysis, however, does not warrant extending the idea of
gender equality to all cases, lest it generate unwelcome social outcomes. A
number of Muslim countries have made noticeable progress in removing
discrimination against women in family laws that relate mainly to marriage and
divorce issues. However, progress in reform in the inheritance area remains
muted and confined to only a very few countries. Addressing this issue of
inheritance is still considered taboo and presents a formidable challenge in
many Muslim countries due to continuation of the Sharia Law and in the face
of fierce opposition from the conservative Muslim clerics.