Double Share to Male(s): Prejudiced or Proportionate?

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ABRAR REYAZ
Recently, the Law Commission of India addressed Muslim groups and asked them: Why to deny some rights to women?  This direction came in the backdrop and environment where the law penal has started to formulate and contrive recommendations for the uniform civil code (UCC) . The commission sought details and views on seven issues which includes legal opinion on daughters inheriting half the share of what sons inherit.1 All this was done under the pretext of adhering and clinging to notion of gender justice which they conceive Muslim law of Inheritance fails to cater.
A doubt and query is upraised that giving double share to males is discriminatory and unfavorable against daughters, sisters on the footing of sex. For that purport, Article 14 and 15 of the Indian Constitution are invoked which provides following respectively: The State shall not deny to any person equality before law or the equal protection of the laws within the territory of India and The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Prime facie, invoking Article 14 and 15 in case of personal laws is not valid. These injunctions are addressed to state action and not to existing personal laws. 2 Both the provisions commence with the word ‘state’.
Going through historic context and setting, we find that, in pre-Islamic times, females were excluded and barred from getting any share or portion from property. It was Islamic law that made them competent to inherit. Mac Naughten says: “It is difficult to conceive any system containing rules more strictly just and equitable than Islamic law of Inheritance (emphasis added).3
 In modern context, we talk of equality and equal opportunity among both men and women. Does Muslim law of Inheritance discriminate between men and women, when son gets twice the share of daughter?
The answer to this query and doubt is that: a son has more duties, obligations and responsibilities towards his family than a daughter in terms of maintenance and housing. A Son has to maintain and sustain his wife, children, parents, siblings, grandparents (when they grow old). When a girl or daughter is married, husband provides and caters her dower (mahr) – a life estate to which a wife is entitled and exercises exclusive rights over it. The dowry which is given or brought by wife’s father to her husband or his family is forbidden in Islam. Moreover, husband is responsible for wife’s maintenance and housing.
 When a woman enters her husband’s house, she also gets a property share from there. She gets one-eighth of share from husband’s house plus one-third from her parental house. In entire, a daughter gets eleventh of twenty-four parts of property share from both houses. Primarily, it is father who maintains his daughter and in absence of him, it’s brother’s duty (or duty of any other male member of family) to maintain her. After her marriage, she and her children are maintained by her husband according to Muslim Law.
A daughter, women or a female member of house per se has no responsibility of maintenance of her parents in presence of a brother or any male member of family. And,  moreover, a  brother maintains sister in father’s absence. In her married life, her husband maintains her. A female member is exempted from all these duties and responsibility in presence of any male members in the family, according to Muslim Law.
Muslim Law of inheritance is based on fairness, reasonability, rationality, logic, equity, justice and is more in consonance with equality. Basically, equality means equality among equals, who are situated in similar situations. Equality doesn’t mean equality among those who are unequal or situated in dissimilar situations. Take an instance that a father has two children. While providing them money for marriage assistance, he gives one son say, 1 Lakh rupee and other one only a half of it. The obvious reason being that the second son earns a handsome salary for himself. Can anyone say, second son has been discriminated on the basis of equality?
 If female member is given more shares to satisfy later notion of equality, it would be injustice to brother and her own family. This concept is based on what we call in modern times as ‘distributive justice’. Therefore, Islamic law of inheritance is logically and technically perfect.
Prof. Anderson observes: “Islamic law of inheritance is finely balanced and mathematically precise as any system in the world.”4
NOTES:
1. The Indian Express, May 26 2018
2. J.N.D Anderson, Islamic Law in Modern  India           (1972), pg. 42-44
3. Syed Khalid Rashid, Muslim Law (fifth edition), pg.
     365-366
4. J.N.D Anderson, Islamic Law in Modern India (1972),
           pg. 42-44
—The author is a Student of Law at Department of Legal Studies, Central University of Kashmir. 
He blogs at: AbrarReyaz.wordpress.com and can be reached at: abrar_reyaz@live.com