Bobby Kunhu
“Patriarchy is a kind of shirk (or idolatry)… stemming from the Satanic notion of istikbar (thinking of oneself as better than another)….”
– Amina Wadud, Inside the Gender Jihad: Women’s Reform in Islam
Muslim communities, like every other theistic or atheistic social system, are hegemonic and patriarchal. But, in a virulently Muslimophobic world, Muslimophobes camouflage their own misogyny and feudalism by magnifying Muslim hegemony and patriarchy. Feudal Muslim non-governmental organisations such as the All India Muslim Personal Law Board and Samastha Kerala Jem-iyyathul Ulama (both groups), for example, play into this magnification and therefore to the chaotic din of Muslimophobia. This was recently played out in the national gallery in how the Triple Talaq drama was enacted on the political stage. While Shayara Bano, the petitioner in the Triple Talaq case, has been conveniently co-opted by the BJP, Zakia Soman and Noorjehan Safia Niaz, co-founders of the Bharatiya Muslim Mahila Andolan, are at a loss navigating the way Hindutva has co-opted their agenda into Muslim-bashing nationalism. It is clear as daylight that Hindutva isn’t interested in gender justice or equality. Their interest is selective and extends only as far as they can showcase their progressiveness vis-à-vis Muslims and demonize Muslim communities.
It is in this context that any engagement with gender equality in Muslim inheritance laws in India has to be carefully articulated, avoiding the deliberate Muslimophobic traps of the Hindutva right wing. While the Government of Kerala is completely off the track in their stand supporting the existing schema of Muslim Personal Law on inheritance in India based on consultations with wholly male groups before the Supreme Court in Khuran Sunnath Society vs. Union of India and Ors., the position and strategy adopted by Nisa Progressive Muslim Women’s Forum is very problematic. There can be no doubt that inheritance as practiced by Muslim communities in India is deeply anti-woman, and there is an urgent need to reform it to bring in equality, but Narendra Modi is not the right person to appeal for justice. Modi may be the Prime Minister of India, but we also need to remember that he is in that position as a loyal RSS karyakarta.
Before I get into specifics of Muslim women’s inheritance laws, it would be important to remember how late Mary Roy, brought about change in Christian inheritance law in India without any fuss in Mrs. Mary Roy Etc. Etc. vs. State of Kerala. Mary Roy’s locus was the fact that she was disinherited with respect to ancestral immoveable property, went to court, and got the law changed without going into campaign mode. I am not suggesting that there is no need for a campaign mode; what I am suggesting is that the campaign needs to be strategic and pronouncedly denounce Hindutva support and interest in the issue.
But, before we address the specificities of strategies and arguments supporting women’s inheritance rights under Muslim law, it might be useful to take a brief look at the history and evolution of inheritance laws in Islam. Taking into consideration pre-Islamic inheritance practices, Islam codified them into a legal system. According to Joseph Schacht, “this is not meant as a regular legal ordinance, but as part of the Quranic endeavour to improve the position of women.” Pre-Islamic society hardly had any property rights for women, and inheritance varied considerably. Islam introduced the concept of the compulsory legatee (dhawu al-fara’d), including people who were before Islamic society excluded from inheritance, and this category had 8 classes of women and 4 classes of men—essentially people who would be financial dependents on men in a patriarchal society. The Quran itself has only three verses that are devoted to intestate inheritance, viz., verses 4:11–12 and 4:176. On the other hand, the Quran has also extensive verses on wills, viz., verses 2:180–182, 2:240, 4:33, and 5:106–107. However, curiously, a hadith by Sa’d bin Abu Waqqas seems to have overridden Quranic injunctions and limited the power to will to one third of a person’s total property. Even here, while giving, the injunction is supposed to have said that “it is better for you to leave your inheritors wealthy than to leave them poor begging from others”—the intention clearly being to ensure that inheritors are taken care of. A few important takeaways here are that, like every other ideological society, Muslim legal systems have been manipulated and controlled by patriarchy. Like any other social system, there are multiple contradictions between Quranic verses and hadiths, and there is a lot of room for interpretation and arguments for gender equality within the Quranic framework itself.
First of all, since there is already a case pending before the Supreme Court, apart from Nisa’s intervention, which urgently needs a woman who has been affected by Muslim inheritance laws to join the same as a petitioner—establishing a better locus standi. It wouldn’t be difficult to find such a party because all Muslim women would be affected by this issue. Secondly, instead of appealing to the Prime Minister or bodies that are helmed by people deeply entrenched in or coopted by Hindutva ideology, efforts need to be made to urgently put together a team that understands Muslim jurisprudence to draft a bill that enunciates equal inheritance rights not only for Muslim women but also for other genders, who remain unaddressed within inheritance laws. Such a bill can be introduced as a private member’s bill by a Member of Parliament belonging to a non-Hindutva political party (preferably a Muslim woman). Hindutva parties would be forced to support such an initiative, despite the campaign distancing itself from the same. Any campaign should mobilize support for the litigant with locus and the private member’s bill.
In other words, the attempt should be to infiltrate the male bastion of Muslim jurisprudence and engender it. For this, both academic input and solidarity need to be created, particularly with Islamic feminism and Islamic queer theology, instead of trying to appeal to Hindutva power. Cursorily, a powerful argument for such equality across genders can be made by invoking Quran 4:33: “And to everyone, we have appointed rightful heirs to what the parents and near relatives might leave behind. As to those with whom you have made a solemn covenant, give them their share. Allah watches over things.” Lessons can be drawn from the Tunisian experience, where a draft bill on equality of inheritance was adopted with the argument that “man-made laws set by legislators are civil laws that can be developed in their nature just like other man-made laws that are part of the internal legislative system.” This was rejected by the Tunisian President in 2020 on the ground that this sparked a false debate and Quranic injunctions were final. One reason for this failure could be attributed to the inability of women’s rights activists to engage theologically with the question of equal rights to inheritance (apart from President Kais Saied’s personal misogyny).
I repeat that the exigency is to demonstrate the harmoniousness between the Quran and the Constitution of India to ensure gender-just Muslim communities and not play into Hindutva agenda-driven forces. I know it is a harder battle, but it is definitely a more just and politically important one. Remember that for Muslim women, their right to inheritance is as important as their right to their faith!
“Their Lord responded to them: ‘I never fail to reward any worker among you for any work you do, be you male or female – you are equal to one another’.“ Quran 3: 195
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Bobby Kunhu is a lawyer, researcher and writer.
Image work by Kuffir.
