The law governing Muslims and Muslim women in India is under " The Muslim Personal Law (Shariat) Application Act, 1937". The Shariat is regarded as the Custom or Usage for the purposes of division of all properties, irrespective of being movable or immovable and agricultural land. In the earlier times Muslims were governed by the local customs, laws and practices where they were domiciled which ran contrary to the Shariat in following the local customs and laws. The customary laws were highly discriminatory and it excluded daughters and others like widow were in the bottom line in the succession order, this practice runs contrary to the Shariat where a daughter and widow cannot be excluded by any other heir and also have the protection from the testamentary restrictions. The shares of the daughters and widows are lower than a man.
In light of Quran, the Muslim women has full right to inheritance. The Quran emphasizes on four core values i.e Insaaf (justice), ehsaan (favor), rehem (compassion) and Ilma (wisdom). If we all follow all these core values then the women will get their rights automatically and there would be no chaos. It is a fact that Quran has provided independence and right to women in all aspects. It clearly talks of daughter’s right to 1/3rd property irrespective of being movable or immovable and agricultural land is not an exception.
"Allah commands you regarding your children. For the male a share equivalent to that of two females. " [Quran 4:11]
This first principle which the Quran lays down refers to males and females of equal degree and class. This means that a son inherits a share equivalent to that of two daughters, a full (germane) brother inherits twice as much as a full sister, a son’s son inherits twice as much as a son’s daughter and so on. This principle is however, not universally applicable as we shall see later in verse 4:12, the descendants of the mother notably the uterine brother and uterine sister inherit equally as do their descendants.
"If (there are) women (daughters) more than two, then for them two thirds of the inheritance; and if there is only one then it is half." [Quran 4:11]
Women in this context refers to daughters. The Quran gives the daughter a specific share. In legal terminology the daughter is referred to as a Quranic heir or sharer (ashab al-faraid). The Quran mentions nine such obligatory sharers as we shall see later. Muslims jurists have added a further three by the juristic method of qiyas (analogy). So in Islamic jurisprudence there are a total of twelve relations who inherit as sharers.
If there are any sons the share of the daughter(s) is no longer fixed because the share of the daughter is determined by the principle that a son inherits twice as much as a daughter. In the absence of any daughters this rule is applicable to agnatic granddaughters (son's daughters). The agnatic granddaughter has been made a Quranic heir (sharer) by Muslim jurists by analogy.
If there is only a single daughter or agantic granddaughter her share is a fixed one-half, if there are two or more daughters or agnatic granddaughters then their share is two-thirds. Two or more daughters will totally exclude any granddaughters. If there is one daughter and agnatic granddaughters, the daughter inherits one-half share and the agnatic granddaughters inherit the remaining one-sixth, making a total of two-thirds. If there are agnatic grandsons amongst the heirs then the principle that the male inherits a portion equivalent to that of two females applies.
I thank you very much for your quick and expansive reply. If you could tell me that is it possible for a muslim woman to go to the court and ask it to evoke sharia in her case to get her her legal property rights especially in the case of 'agricultural land'. I am askin you this because, when it comes to their interest many muslim men play the game of switch from Sharia to other laws and vice-a-versa. Also I hope the laws do not differ from state to state or for Sunni and Shias. Our case is that of UP and a Sunni family. Another question is that would it change any thing if the woman's children have married non muslims and this is the pretext on which she is being denied her right.
THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937.ACT No. 26 OF 1937.[7th October, 1937.]
1.Short title and extent:
2.Application of Personal Law to Muslims.-
Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religion endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
Muslim personal law applied by regular court system. Four levels of courts: civil courts, District courts in Administrative Sub-divisions of each state, State High Courts in each of the states and the Supreme Court. Courts of first instance in personal status cases are Family Courts, organised under Family Courts Act 1984. These Courts have same jurisdiction as any district or subordinate civil court, thus also have some criminal jurisdiction with relation to maintenance orders.
Therfore it's sure and exacltly it possible for a muslim woman to go to the court and ask it to evoke sharia in her case to get her legal property rights.
" would it change any thing if the woman's children have married non muslims"
Your Second Question is not clear, I can reply if you provide some more details.
My name is Mohiddin , I would like to seek some advice from you regarding my ancestral property. (Paternal Grandfather) I will like to ensure that I follow Islamic sharyat and India law while partition of ancestral property.
We have 800 Sq Yards of property in the name of my father. My father expired with out any will or so.
We are 3 now - My mother, sister and myself. Could be please let me know as to how this 800 should be distributed among us as per law and Islam.
I am mohammad vali and i need some advice from you. my mother have three younger brothers and two younger sisters. my grand father ( mother's father ) have some property (80% self owned + 20% ancestral). He has not written any will till now but he want to distribute all the property among his three sons and not at all interested in giving any share to my mother or his two sisters. According to muslim personal law , do my mother have any right to claim share in her fathers property.
actually my grandfather has two wifes. my mother, her younger sister and younger brother are sons and daughters of first wife ( she died when my mother was 10).
two younger brothers and one younger sister are sons and daughters of my grand fathers second wife (alive).
we are six daughter and three brothers ,our father is alive.our father had 40 acres land from our grand mother and grand father.i.e ancient property.our garnd mother had transfered 24 acres to our two brotheres in her life and she died.and our father transfer 16 acre to one of his son which he also got from our grand father.so among all six daughter we have not got any property.so as per sharia .we six sisters whether having right to claim this ower all property,and whether we are legal heirs of this ancient property .if yes then by which succession order and which citations.awaiting your reply.
If ther property what you are saying "40 Ac" is an "Ancestral Property" of Your "Grand Father" ;
and if he, Your "Grand Father" , died leaving behind YOU ALL as his legal heir, then "You All" (Your Grand Mother, your Father, Your Brothers, and You Six Sisters) have the rights over 40 Ac, and the property should be distributed as per the shares provided in the Quran and Sharia Law.
Mean while, some more information required, when your Grand Father Died, who were the legal heirs at the time of his death.
Contact the nearby Advocate, and file a civil suit for "Partition" against your Father and brothers.