Law Alter Views
Daughter's Share in Succession
Law Commission's report revisited
A Law Commission report on `daughter's share in the succession of parents' property in absence of son' has been published in the Daily Star's 'Law and Our Rights' page on June 9, 2012. It shows the praiseworthy effort of the Commission in recommending necessary amendments to laws of Bangladesh. Thanks a lot to it for this. In addressing the issue of the `succession of daughter' the report tends to cause some misunderstandings that need clarification. The report provides, in the beginning, two remarkable sentences: (i) `however, under normal circumstances, if father dies leaving only daughter/s, she does not get the whole property, as she is entitled to get as representative of the predeceased father under the 1961 law' and (ii) `the part of the property also goes to collaterals i.e. uncles'. The first statement is somewhat misleading, because:
(a) Daughter is never entitled to inherit her father or mother under the 1961 law i.e. section 4 of the Muslim Family Laws Ordinance (No. VIII) of 1961 (MFLO of 1961). This law of 1961 was designed to make scope of inheritance not for a son or a daughter from his/her parents; rather for four types of orphaned grandchildren, from their grandparent, who have lost parent prior to the propositus. The four types of grandchildren are: (i) son's son [SS], (ii) son's daughter [SD], (iii) daughter's son [DS], and (iv) daughter's daughter [DD]. It should be emphasized that to the cases of these four types of grandchildren the law of 1961 applies but the law doesn't cover the case of a daughter.
(b) Perhaps and in fact, son's daughter (SD) was, in this sentence, wanted to be meant who inherits under the 1961 law. But then also the statement does not reveal the real fact, for she actually takes whole property when she (SD) is the only heir to the grandparent propositus. Her father, the predeceased son of the propositus (i.e. S), is presumed to be alive who, as the residuary, takes entire property of his father. This ultimately comes to his daughter (SD) under section 4 of the MFLO.
Even, if the MFLO is kept out of the way, under classical Muslim law also SD first takes ½ as a Quranic sharer and the rest ½ under the principle of raad which make 1 i.e. whole property. If there are more than one SD they first receive collective share 2/3, and then, in absence of any other heir, the rest 1/3 under the principle of raad. It's to be mentioned that only two heirs, husband and wife, out of a number of 12 Quranic sharers, are not entitled to receive property under the principle of raad/proportionate return under Sunni Muslim law of succession which is in practice in Bangladesh.
The second statement may now be considered. It implies to ignore the entitlement of the propositus' male collateral, i.e. the propositus' full brother (FB), who is the paternal uncle (`chacha' in Bangla) of the daughter (D); and basing on this philosophy it has been strongly recommended in the concluding part of the Law Commission Report that a provision should be added after section 4 of the MFLO which would prohibit any part of the property of the propositus from going to his FB whereby her portion would increase.
The Law Commission, in the purpose of allocating more portions for D, wants to exclude FB by D. The Commission is presumed to take the stand that if under section 4 of the 1961 law the predeceased son of a propositus, i.e. the dead father of SD, is presumed, for the actual purpose of entitling the SD, to be alive excluding all collaterals including FB and FS (also consanguine brother i.e. CB and consanguine sister i.e. CS) why a D, who remains at one higher degree than the SD and closer to the propositus, shouldn't exclude her paternal uncle?
But what is the stand of the recommendation of the Commission in regard to the position of a full sister (FS) of the propositus who is the paternal aunt (`fufu' in Bangla) of the daughter? Such FS is a Quranic sharer in absence of FB, as well as a residuary in presence of FB. Under Sunni Muslim law when FS stands with FB she is converted from a Quranic sharer into a residuary and either both of them receive property or are excluded. If the propositus is survived by D and FS, D takes her Quranic portion ½ and FS takes ½ as accompanying residuary. But if in this case there were FB, the FB would have converted FS into a residuary and their portions have stood: FB=2/3 of ½= 2/6 and FS= 1/3 of ½=1/6.
If the proposed addition after section 4 of the MFLO provides, as a mitigation, that the male collateral FB in presence of FS would be excluded by D it does not hold good or relevant and does not look pretty. Because in such a discriminatory way the principle of tasib, the principle of male taking twice female's share, a cardinal principle of Muslim law of succession, is infringed. It will also make scope for a writ on behalf the FB under Article 27 of the Constitution of Bangladesh that provides for the fundamental right of equality before law.
If, again, keeping in view the notion of maintaining equality before law, the provision proposed by the Law Commission includes FS along with FB and provides that property will be prohibited from going to both FB and FS, it will mean strengthening one female sharer D at the cost of another female sharer. It will not also stand in line with the present movement for women's human rights. It will tantamount exclusion of a Quranic sharer FS that may gear up anti-government movement.
Another important thing is to be kept in mind. If tasib is endeavored to be removed by means of attempting to exclude FB why shouldn't it be extended to the most important and most claimed case of son and daughter whereby daughter should take equal to son? There will rather, in such attempt to bringing equality between son and daughter of the propositus, be no scope for infringement of fundamental right of equality. Such removal of tasib from the case of son and daughter of the propositus would better be in line with the present day human rights movement mostly propounded by the human rights organizations and the organizations for women's rights.
The writers are Professor and Associate Professors of Law, Islamic University, Kushtia.