APPRAISAL OF THE IMPEDIMENTS TO INHERITANCE UNDER ISLAMIC LAW

APPRAISAL OF THE IMPEDIMENTS TO INHERITANCE UNDER ISLAMIC LAW

1.1      GENERAL BACKGROUND

There are some obstacles and impediments which prevent an inheritor to benefit from the assets left by his/her deceased relation. Broadly, there are four cases consisting of the obstacles, bar or impediment to inheritance, they include Homicide (Qatl), difference of religion, Apostasy (Riddah), and Slavery. Some jurists, however, includes difference of domicile as an impediment to inheritance^[1]. Each one of them functions independently from another and bars the beneficiary from materializing his right of inheritance².

There are divergent views from different schools of Islamic Jurisprudence over the concept or rather what constitute impediments to inheritance under Islamic Law, despite the fact that some of these impediments are clearly contained in the primary sources as explained by the Prophet (S.A.W).

Impediments to inheritance are the personal acts or attributes of a person which disqualifies him from succession who would otherwise be an entitled heir on grounds of blood or marital relationship with the praepositus^[2].

For those relatives of the deceased person ‘who are debarred from inheritance by reason stated above, do not adversely affect the right of other heirs from inheritance, neither do they exclude nor restrict their respective shares^[3]. In essences, disqualified heirs are deemed, in law, to be non-existing at all for the purpose of Islamic law of inheritance. For example, where a deceased person left behind two or more agnate brothers who, if not disqualified, would have restricted the mother’s Qur’anic share from one-third (¹/3) to one-sixth (¹/₆) even when they are excluded by the father of the deceased person, but for the disqualification which befalls them, would not affect or restrict the mother’s Quranic share. This is because, for that impediment, they are not recognized in the eyes of the law.

1.2     STATEMENT OF PROBLEM

The provision of the Holy Qur’an and the Sunnah of the Prophet (SAW) has specifically and unambiguously state those that are debarred from inheritance. This debarment is either partial or complete.

But the problem lies on the arguments forwarded by each school of Islamic Jurisprudence or jurists with respect to a particular bar on inheritance. It will not be feasible for the Muslim world if these arguments can go on without careful regard being had to the fundamental provision of Qur’an and Sunnah.

The second problem is in respect of the research work itself. This topic i.e. “An Analysis of the Impediments to Inheritance under Islamic Law” is a vital topic that concerns every aspect of the distribution of estate of a Muslim, particularly where there is a marriage relationship between a Muslim man and non-Muslim woman and it give rise to protracted litigation especially where the legitimacy of one of the potential heirs is in dispute.

Thirdly, with respect to apostasy, many writers or Islamic law jurists undermined a situation where, for example, a man renounces his religion but his wife or children remain Muslims or vice versa. This is a controversial area that needs a thorough research and clear explanation but has been neglected.

APPRAISAL OF THE IMPEDIMENTS TO INHERITANCE UNDER ISLAMIC LAW