Inheritance under Muslim marriage
Author: Prabhuti Mandhyan, LCD
To understand inheritance under Muslim marriage we must first understand inheritance under Muslim law of inheritance which came from principles from four principal sources of Islamic law which are: The Holy Koran, the Sunna i.e the practice of the Prophet , the Ijma i.e the consensus of the learned men of a community on a point of law and Qiya i.e the analogical deductions of what holds just and right and in line with principles of God. In Muslim law there is no difference between immovable or movable property and corporeal or incorporeal properties, under this law property owned by the deceased is subject to inheritance apart from certain appropriations like debt, will expenses paid during the funeral, remaining property is for inheritance is alike self-acquired property or ancestral property. During testamentary succession that is when the deceased made will Muslim, Shairat Law is applied as practiced by Sunni and Shia Muslims, during non testamentary succession Muslim Personal Law(Shariat) Application Act 1937 is applicable. Further in testamentary succession for immovable property located in West Bengal or property falling under the jurisdiction of Bombay and Madras High Courts succession is according to the Indian Succession Act 1925. Therefore property is distributed by two methods-
- Per capita distribution
- Per Stripe’s distribution
Per capita distribution is mainly followed by Sunni Muslims where property is divided equal among heirs and it is divide according to number of heirs of deceased so as number of shares to be divided are determined accordingly. Per stripe’s distribution is followed by Shia branch of Islam where property is distributed among heirs of branch (strip) of family accordingly ,the family branch and the number of people that exist in that particular branch of the family will determine amount of share in the property of the family members.
Types of heirs under Muslim law includes Sharers and Reliquaries where Sharers include 12 relations which include that of Husband, Wife, Daughter, Daughter of a song(or son’s son or son’s son’s son’s), Father, Mother, Paternal grandfather, Grandmother on the other side of the males, Full sister, Uterine sister, Consanguine sister, Uterine brother. Sharers are entitled to a certain fraction of the property of the deceased and Reliquaries is when a residuary property is distributed. Furthermore, inheritance by females under Muslim law includes
Right of widow-where they are entitled to the property in succession if she does not have children she will be entitled to one-fourth of the property, but a widow with the child is entitled to one-eighth of the property. She is not entitled to the right to inheritance when married to husband while he was ill and died later due to sickness or when couple has not consummated till the death of the husband, but if husband is ill and passes away due to illness then the widow is entitled to inheritance till she gets remarried.
Right of a child in a womb- Under Muslim law child has the right to inheritance when he is alive or even when he is in the embryonic condition he is considered to be alive and is entitled to the inheritance of property so long as he is alive if not born alive then his right be canceled and the property is distributed as a child didn’t exist at all.
Stepchild is not entitled to any inheritance of property but the stepbrother does have the right to inherit the property of stepbrother or stepsister.
Escheat under Muslim law processes when the government takes over rights and possession of the property if the deceased has no living legal heirs at all.
If Muslims are married under the Special Marriage Act 1954, if a Muslim person marries under the Special Marriage Act he would no longer be considered a Muslim person for an inheritance, his property would not be divided according to Muslim law it would be distributed as per provisions of the Indian Succession Act 1925.