I have a question regarding the inheritance law. I know and totally convinced of the point of view of Mr Javed Ahmed Ghamidi. However I am facing some confusion regarding this point of view.
In some cases parts of the assets remain after all the stipulated shares are distributed. Who will receive the balance for example 5/12 of the inheritance in some cases?
The following are other cases that after the distribution, there is a surplus of inheritance:
Scenario
fund distributed
surplus
Only a wife:
=
1/4
3/4
Only a mother:
=
1/3
2/3
Only a daughter
=
1/2
1/2
Two daughters
=
2/3
1/3
Only a Sister
=
1/2
1/2
A mother and a sister
=
1/3 + 1/2 = 5/6
1/6
A wife and a mother
=
1/4 + 1/3 = 5/12
7/12
A sister and a wife
In all these cases and many other combinations there is a surplus. What will happen to this surplus? Who will inherit it?
To deal with this problem the law of “usbah” comes to effect. This law is to regulate the unclaimed shares, which have no corresponding people to receive them. Of course if the Qur’an was clear with no errors, there would have been no need for all these “sciences” and amendments.
Narrated Ibn ‘Abbas: The Prophet said, “Give the Fara’id (the shares of the inheritance that are prescribed in the Qur’an) to those who are entitled to receive it. Then whatever remains, should be given to the closest male relative of the deceased.”
According to this law, a man who dies and is survived by only his daughter with no other close male relative except a second cousin, his daughter will receive half of his inheritance and the other half will go to the man’s second cousin. This seems quite unfair to the daughter, but it would be especially unfair if the man had a needy aunt or a female first cousin that would receive nothing because they are of the wrong gender.
Now suppose that a man has no other heir except his wife and a distant male relative. The wife will receive 1/4 and the distant male relative gets the balance, i.e. three times the inheritance that his widowed wife gets. Is this justice?
What if the deceased has no male relative at all? What will happen to the rest of his inheritance? What happens in the reverse case when a wife has no relatives? The husband will receive half of her inheritance; who will get the other half?
Note that in the Qur’an there is no priority for the distribution of the inheritance. In nowhere it says “first give to these and from what is left, give to those”. Even if we had to reinterpret these laws and prioritize them in the order that they are mentioned, it still does not work because in that case, each subsequent inheritor will have his or her share shrunk. Also in most cases the total inheritance will never be used up.
Answer
First of all it needs to be appreciated that the prophetic narrative you have referred to is not shariah itself. Rather it is an application by the prophet of a directive of shariah. The shariah directive was that the shares are based on the principle of benefit in kinship. Hence this application can change in changed circumstances.
Second, in most of the cases that you have described the person (if educated on Islam) would know that a vast portion of his inheritance will be left over. In this case, he can either make someone an heir himself or give the surplus money in charity or to deserving person. If he wants his legal heirs to receive a major portion of his would be left over inheritance, he can simply gift them this portion in his life. In some cases he can even make a will in their favour.
Dr Shehzad Saleem (Urdu: شہزاد سلیم ), born in 1966, is an Islamic researcher. He has a Bachelors in Electrical Engineering from UET Lahore, Pakistan and holds a Ph.D. in the History of the Quran from the University of Wales, UK.
Dr Shehzad Saleem studied religion under the tutelage of Javed Ahmad Ghamidi. He remained Associate Fellow from 1992-2008 and Fellow from 2008 till date of Al-Mawrid, A Foundation for Islamic Research and Education, Lahore, Pakistan (www.al-mawrid.org).
Dr Shehzad Saleem has authored books on Islam, Quran, Hadith and Character Building. He has also translated some works of famous Islamic scholars and exegetes Amin Ahsan Islahi and Javed Ahmad Ghamidi into English.
