ABOUT THE NEW LAWS PROPOSED IN TUNISIA IN ORDER TO ENFORCE THE EQUATING OF THE SHARES OF MALES AND FEMALES

نویسنده : Dr. Jasser Ouda

Some brothers and sisters asked me about the new laws proposed in Tunisia in order to enforce the equating of the shares of males and females, i.e. brothers and sisters, and fathers and mothers in their portions of inheritance. This what some “rulers” have suggested there in the name of ‘intent of Islamic law’. 

Answer: “Equality” is not one of the intents of Islamic law when it comes to inheritance. In this area, Islamic law intends to achieve justice and fairness. Surely, all human beings were created equally from a single soul, and they are all equal in the sense that no Arab is better than a non-Arab or the contrary, as the Prophet (s) said. However, this is only in terms of human dignity, the capacity to apply commandments, and criteria for rewards and punishments by Allah (SWT). People are all equal in terms of laws that makes no difference in rights and responsibilities; such as, prayers, charity (Zakat), fasting and pilgrimage.
However, in terms of rights and responsibilities related to financial issues, people are not equal in the eyes of Islamic law, that is why there is difference in roles and responsibilities between people based on what they have been mandated by Sharia and based on their means and capacity. If we equate all humans in terms of rights and not responsibilities, then this is injustice; the Islamic law is all about justice.
Males and females are not equal in terms of financial roles in Islamic law. For example, a husband is mandated to support his wife and family in all their needs, and his wife’s contribution is voluntary and is considered to be a “charity”. She on the other hand, has the primary responsibility of nurturing the children, especially while they are young. Allah (swt) said with regards to the husband’s supporting of the family:

” لِيُنفِقْ ذُو سَعَةٍ مِّن سَعَتِهِ وَمَن قُدِرَ عَلَيْهِ رِزْقُهُ فَلْيُنفِقْ مِمَّا آتَاهُ اللَّهُ لَا يُكَلِّفُ اللَّهُ نَفْسًا إِلَّا مَا آتَاهَا”
“Let a man of wealth spend from his wealth, and he whose provision is restricted – let him spend from what Allah has given him”

With regards to the mother responsibilities, Allah (swt) said:
“وَالْوَالِدَاتُ يُرْضِعْنَ أَوْلَادَهُنَّ حَوْلَيْنِ كَامِلَيْنِ لِمَنْ أَرَادَ أَنْ يُتِمَّ الرَّضَاعَةَ
“Mothers shall suckle their children for two whole years; (that is) for those who wish to complete the suckling”.

And for the husband’s responsibility, Allah (swt) said:
وَعَلَى الْمَوْلُودِ لَهُ رِزْقُهُنَّ وَكِسْوَتُهُنَّ بِالْمَعْرُوفِ ”
“The reasonable cost of their maintenance and clothing will be the responsibility of the child’s father”.

And at the same time Allah said in another verse with regards to the mother’s entitlements:
أَسْكِنُوهُنَّ مِنْ حَيْثُ سَكَنتُم مِّن وُجْدِكُمْ وَلَا تُضَارُّوهُنَّ لِتُضَيِّقُوا عَلَيْهِنَّ وَإِن كُنَّ أُولَاتِ حَمْلٍ فَأَنفِقُوا عَلَيْهِنَّ حَتَّى يَضَعْنَ حَمْلَهُنَّ فَإِنْ أَرْضَعْنَ لَكُمْ فَآتُوهُنَّ أُجُورَهُنَّ
“Lodge them [in a section] of where you dwell out of your means and do not harm them in order to oppress them. And if they should be pregnant, then spend on them until they give birth. And if they breastfeed for you, then give them their payment and confer among yourselves in the acceptable way”.

For both father and mother, Allah (SWT) said:
وَبِالْوَالِدَيْنِ إِحْسَانًا إِمَّا يَبْلُغَنَّ عِنْدَكَ الْكِبَرَ
“And do good unto [thy] parents. Should one of them, or both, attain to old age in thy care”

And so on.

Based on the above, the portions of males and females can differ in inheritance laws mainly because of their respective financial responsibilities. For example, there is a difference in the portions of a husband and a wife, a father and a mother, a brother and a sister, in the event of the death of various relatives. If a son dies for instance; his mother will inherit more than his father in most instances, this is because she lost more financial support than the father because of the death of their son. If the father dies, for another example, his son inherits more than his sister because the son has to support his sister after the demise of their father, in addition to the son supporting their mother. He also has responsibilities towards his wife and children. But if the daughter did not have a brother, she inherits more because she lacks her brother’s support.

If a husband dies, for another example, and he has a son, his widow inherits one-eighth of the fortune, but if she has no children, her portion is one-fourth which is a big portion because she lacks the support required from her children. And so on. That is how the Islamic law bases its rules of financial rights for members of the family according to the respective responsibilities of males and females.

I certainly agree that the current situation in some of Muslims societies with regards to the family matters, is unfair for women. In most cases, a woman are tasked with the responsibilities of the family more than what the Islamic law tasked her. This is a real problem. A high percentage of Muslim women are the soul provider of their children, and in some cases they even provide for their husbands. Moreover, currently, many Islamic societies prohibit women their due entitlements with regard to inheritance, because they give the whole inheritance of property to their brothers, husbands or uncles in the name of ‘preserving’ the family’s wealth, or in the name of avoiding the division of the inherited land, and other non-Islamic reasons. Some Muslim societies continue to compromise women’s entitlements which was given to them by Allah.

But in order to resolve women injustices in Muslims societies, the solution is not to adopt the western concept of equality, and hence equating the roles and responsibilities of husbands and wives, fathers and mothers, and brother and sisters. Absolute equality in that sense goes against the Islamic social structure, which was constructed based on descriptions of manhood and femininity, and what is in line with their rights and responsibilities.

The real solution, when it comes to governments in Muslim majority countries, is simply to enforce the law that already exists and mandates the rights and responsibilities based on Islamic law of inheritance. The real solution is to enforce the responsibilities of fathers, husbands, brothers and sons; as much as these governments enforce the responsibilities of women as wives, mothers, and custodians. There are laws that already exist which prohibit the non-Islamic practice of denying a sister, a daughter or a mother her portion mandated by the Islamic law in the name of family or tribe.

Nevertheless, in certain cases, but not as a general law, the rules of gift (Hibah) or bequest/will (Wasiyyah) could be applied in order to ensure justice, not necessity equality. Examples are donations or wills to a daughter, a son, a wife, a husband, a parent or any other person, if the donor sees that they deserve more than what they will normally inherit because of certain circusmtances. This is in line with what Allah (SWT) said:

كُتِبَ عَلَيْكُمْ إِذَا حَضَرَ أَحَدَكُمُ الْمَوْتُ إِن تَرَكَ خَيْرًا الْوَصِيَّةُ لِلْوَالِدَيْنِ وَالْأَقْرَبِينَ بِالْمَعْرُوفِ
“Prescribed for you when death approaches [any] one of you if he leaves wealth [is that he should make] a bequest for the parents and near relatives according to what is acceptable”

This verse was not abrogated as argued by some scholars. It can certainly be applied and it is very important in ensuring justice in different cases. I elaborated on this issue elsewhere in some of my writings on critiquing ‘abrogation’. And this is one of the cases that a gift (Hibah) can be implemented at the lifetime of the giver of the gift, or a will (wasiyyah) carried out after his/her death before the division of the inheritance.This is indicated by this verse:

“مِنْ بَعْدِ وَصِيَّةٍ تُوصُونَ بِهَا أَوْ دَيْنٍ “after any bequest you [may have] made or debt”

And with the regards to the Hadith: لا وصية لوارث “No bequest for an heir”, many scholars questioned the authenticity of this Hadith. But even if the Hadith is authenticated, the rest of it says: إلا أن يجيزها الورثة “unless the rest of the members of the family agree”. This guarantees the flexibility that is needed in this area.

The bigger picture is very important; it is necessary that the essential Islamic laws shall be implemented as they were revealed by Allah (SWT), because their intent is to be a just and balanced Islamic social and economic structure. It is erroneous for any human-made human rights philosophy to wear a garment of maqasid al-shariah (or the objectives of the Shariah). The Shariah has its own rules and regulations and they are complete and achieve a higher moral ground when we apply them in totality, not through a partialistic method that compromises the divine intents and higher objectives.

Allah knows the best.