KHUTAB V: 1. THE SIGNIFICANCE OF FARᾹ’IḌ (ISLAMIC LAW OF INHERITANCE)

1.     THE SIGNIFICANCE OF FARᾹ’IḌ

(ISLAMIC LAW OF INHERITANCE)

          Long, long ago, in Montreal, Canada, a man was busy making his will as he was planning to spend his long vacation overseas. He was afraid, something might happen to him without writing his will. A Muslim friend told him that Muslims did not have to worry about writing a will, as they had their own law of inheritance called “farā’iḍ” based on the Qur’ān, the Ḥadīth of the Prophet s.a.w., and the ijmā’ and ijtihād­ of the ṣaḥābah/companions of the Prophet.

          The Qur’ān explains extensively this law of inheritance that Prophet Muhammad s.a.w. did not give much explanation of it. It is unlike the salāh, the prayer where it is mentioned in the Qur’ān without details: how many raka’āt (units) for every prayer, how many bows and prostrations in every unit, what to say and how to do it are explained it with examples.

          Farā’iḍ is one of the aspects of the application of the objects of the sharī‘ah (Islamic law) which are: the preservation of the religion of Islam (حِفْظ الدِّين), the preservation of souls or selves (حِفْظ النَّفْس) , the preservation of reason or intelligence(حِفْظ العَقْل) , the preservation of progeny (حِفْظ النَّسْل) , and the preservation of wealth (حِفْظ المَال) .

Fara’id is based on:

i.                   The Quran:

يُوصِيكُمُ اللَّهُ فِي أَوْلَادِكُمْ لِلذَّكَرِ مِثْلُ حَظِّ الْأُنْثَيَيْنِ فَإِنْ كُنَّ نِسَاءً فَوْقَ اثْنَتَيْنِ فَلَهُنَّ ثُلُثَا مَا تَرَكَ وَإِنْ كَانَتْ وَاحِدَةً فَلَهَا النِّصْفُ وَلِأَبَوَيْهِ لِكُلِّ وَاحِدٍ مِنْهُمَا السُّدُسُ مِمَّا تَرَكَ إِنْ كَانَ لَهُ وَلَدٌ فَإِنْ لَمْ يَكُنْ لَهُ وَلَدٌ وَوَرِثَهُ أَبَوَاهُ فَلِأُمِّهِ الثُّلُثُ فَإِنْ كَانَ لَهُ إِخْوَةٌ فَلِأُمِّهِ السُّدُسُ مِنْ بَعْدِ وَصِيَّةٍ يُوصِي بِهَا أَوْ دَيْنٍ آبَاؤُكُمْ وَأَبْنَاؤُكُمْ لَا تَدْرُونَ أَيُّهُمْ أَقْرَبُ لَكُمْ نَفْعًا فَرِيضَةً مِنَ اللَّهِ إِنَّ اللَّهَ كَانَ عَلِيمًا حَكِيمًا ( الأنعام : 11)

"Allah enjoins you concerning your children: the male shall have the equal of the portion of two females; if there are more than two females, they shall have two-thirds of what he has left, and if there is one, she shall have the half; and as for his parents, each of them shall have the sixth of what he has left if he has a child: but if he has no child and only his two parents inherit from him, then his mother shall have the third; but if he has brothers, his mother shall have the sixth after the payment of any bequest he may have bequeathed or a debt. You know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah and Allah is All-Knowing, All-Wise." (Q. 4:11)

ii.                 Hadith: The Prophet Muhammad (peace be upon him) said:

ألْحِقُوْا الفَرَائِضَ بِأَهلِهَا فَمَا بَقِيَ فَهُوَ لِأَوْلَى رَجُلٍ ذَكَرٍ (متفق عليه)

"Give the appointed portions to those entitled to them. Then whatever remains is for the nearest male."

(Narrated by Bukhari and Muslim).

iii.               Ijmā‘ (consensus) and ijtihād (independent judgment) of the companions of the Messenger of Allah, imams of madhhab and mujtahid (who exercises ijtihād) of proven knowledge.

        Fara’id preserves and strengthens the relationships among members of the family as well as keeping the wealth among them after the death of one of its members. Allah has decided that if a Muslim dies, his (her) wealth will be inherited by his/her close relatives, his/her spouse, and his/her ascendants (father and mother) and his/her descendants (sons and daughters). Therefore, no matter how you hate your parents, you are a part of them, and no matter you hate your children, they are parts of you, and they all will inherit from you. In Islamic law, you cannot prevent them from the inheritance, except with killing, apostasy, and slavery. Al-Raḥbī put this in his book  مَتْنُ الرَّحْبِيَّة dealing with farā’iḍ,  as follows:

ويَمْنَعُ الشَّخصَ مِنَ الْمِيراثِ ... واحِدَةٌ مِنْ عِلَلٍ ثَلاَثِ

 رِقٌّ) و(قَتلٌ) و(اختِلافُ دِيْنِ) ... فافهَمْ فَلَيْسَ الشَّكُّ كَاليَقينِ)

“A man is not entitled for inheritance because of

(one of the) three reasons: slavery, killing, and

the difference of religion…”

A slave has nothing to leave as inheritance, as he himself belongs to his master. He also cannot inherit, because it will go to his master, as he and his wealth belong to his master. Since officially there is no more slavery these days, this ruling is kept dormant for ever and just kept recorded in history. Slavery in Islam was abolished gradually. Freeing slaves is highly recommended in Islam. There are many penalties with freeing a slave for committing certain sins. There is also a share as ransom for freeing slaves in the zakat, so that sooner or later, there will be no more slave left to free.

A killer, even unintentionally (to prevent the claim of unintentional killing), and the apostate will not get anything from the inheritance. Therefore, the door of “unintentional killing” is closed, and one should not try to kill one’s relative in order to get inheritance quickly from him. Instead, he will get nothing. 

Here lies the danger of marrying a non-Muslim woman among the Jews and the Christians. If you marry a Christian or a Jewish woman, you cannot inherit each other according to Islam, or you break the law and become sinful. Marrying them would also mean losing one chance for a Muslim woman to marry you, as Muslim man. The case is different with a freed slave. The bond between the two is so strong, that they can inherit each other, even if they belong to different religions.

          It is Allah’s law that female with the presence of male will have half of the male’s share, because he has more responsibility towards his wife and sisters if they are not married. The more you get, the more responsibility you have as a bread-winner. But with the absence of male (brother) she will get half of the inheritance, and she and her sisters will get two-thirds of the inheritance, divided equally among them, as mentioned in the above verse. In this case, the husband will get one-fourth if the wife dies, and the wife will get one-eighth if the husband dies.

          It is Allah’s wisdom that with the presence of a father, a grand-father will not get in the inheritance. Why? The father himself is responsible for his father, the deceased grand-father. If the deceased is fifty years old when s/he dies and the father is about seventy  years old, then the grand-father will be too old, over ninety years old, and might have become disabled, invalid, and have lost memory. It is very unwise to inherit hundred thousands of dollars to a person who is in his dotage, who cannot take care of himself, and perhaps cannot even remember his name. Wealth means nothing for him.

          The Arab proverb says أَعَزُّ مِنَ اْلوَلَدِ وَلَدُ اْلوَلَدِ   “the person who is dearer than the son is the son of the son”, namely, the grand-son. Yet, with the presence of the son who is responsible for his son, i.e., the deceased grand-son, he has no share in the inheritance. He is too young to inherit his grand-father unless his father had died earlier.     

          With this rule of inheritance the relative of the deceased could not claim a share in the inheritance, except what has been decided according to the farā’iḍ. It is Allah’s law, it is not based on the deceased love and preference, and therefore, no one of the relatives should complain or have ill-feeling towards him if he gets nothing or less than what he expects. It is not up to him, but up to Allah.

          In order to maintain the wealth for inheritance, the deceased is not allowed to give more than one-third of it to any person  who is not one of its beneficiaries, like close friends, or for charity.  However, with the beneficiary’s consent, he can give more than   one-third of the inheritance in the will.

A person may argue that his daughter will get less than what her brother gets when he dies. In this case, he can give her as much as he wants while he is still alive. This is especially important for her education, so that she can survive with her education, decreasing the burden of her brothers in taking care of her if she remains unmarried for the rest of her life. He is free to spend and give his wealth to whom he likes while he is still alive, and he is allowed to make waṣiyyah (will) of not more than one-third of his wealth to whom he likes, as long as he is not one of the beneficiary of the inheritance.

This farā’íḍ is so important that many people, Muslims as well as non-Muslims, consider it unfair, and gender discrimination. There is wisdom behind this, and there is difference between equality and equity, Allah’s wisdom and human intellect. We do not judge Him, and it is He Who judges us.

Since we are living in Australia where the sharia is not applicable, and in order to avoid any problem with our wealth after our death, it is necessary for us as Muslims to write our wills stating that our wealth will be divided among beneficiaries based on the farā’id. We can also mention what madhhab (school of law) should be followed in case any discrepancy arises. (CIVIC, 14 Dec. 2012)