Inheritance Rights of Women in Bangladesh

Inheritance Rights of Women in Bangladesh: A comparative analysis between Muslim and Hindu Personal Laws

  1. Introduction

People’s Republic of Bangladesh, a secular nation[1] as enshrined in the Constitution[2] adheres to uniform laws when it comes to the aspects of everyday life except, the subject of family matters. Disputes in regards to family matters in Bangladesh are governed under personal laws of the individual;[3] which means that the religious laws shall come into play while determining the distribution of property of the deceased or while determining the inheritance rights of an individual. This particular state of affair is largely celebrated since it strengthens the liberty of the citizens to perform their religious duties according to the scriptures that they follow and practice their freedom of choice. However, there remains a substantial grey area in regards to the fact that most of these religious laws are discriminatory in part or as a whole when it comes to the inheritance rights of women.[4] As a result of difference in the ideology of contrasting religions the women are awarded different proportion in terms of inheritance as per the religious texts. The only common phenomena about these proportions is that most of the time the shares of women are drastically less or virtually non-existent in comparison to the men.[5] Even while distributing the little to no amount of share to women; very minimal control is ensured over the property they own because of the patriarchal values, discriminatory attitudes and dominating nature of the society. This in turn creates a butterfly effect in regards to the development and empowerment of women while they remain less influential in the familial and societal premise because of not owning as much property as men and the root of this problem lies in the divergent religious laws which govern the inheritance and property rights in Bangladesh.

  1. Inheritance Rights in Islam

Inheritance rights of Muslims[6] in Bangladesh are governed under the Shariah Law.[7] Laws like the Muslim Family Law Ordinance, 1961 (MFLO) have been enacted later which slightly revised the Shariah Laws in regards to distribution of the property.[8] However the core concept of Al-Faraid warranted by the Quran and Sunnah remains unchanged.[9] According the Faraid concept the shares of the heirs of a deceased are calculated on the basis of the financial responsibilities of the genders and the receivers’ relations with the deceased.[10] The Muslim scholars around the world believe and advocate that the Quranic verses do justice to the women in terms of inheritance because men have more financial responsibilities than women[11] in terms of providing Mahr[12] and Nafaqaah.[13] However, in the modern times, in context of Bangladesh where this disparity is used against women and whereas in various circumstances women are designated more responsibilities but in the end are treated poorly the justification of awarding them less in terms of inheritance becomes fickle.

2.1 Incongruity and Imbalance

If we look at the Shariah Law in terms of inheritance the disparity between men and women becomes manifest. Shariah law regarding inheritance deals with myriad categories of sharers and complex calculations[14] but if we simply analyse the Quranic verses which directly commands the distribution of the property the imbalance is evident. According to the Shariah Law daughter and son of the deceased get property on a 2:1 ratio which means that, daughter will receive half of the portion of the son.[15] If the deceased does not have any son only then the daughter will receive half of the property and if the daughters are more than one in number then they will receive two-third of the property collectively. [16] In regards to the spouse of the deceased the wife is entitled to quarter of the property of the deceased, if no child is left behind; but if there is a child between the deceased and his wife then the wife is entitled to one-eighth of the property.[17] The husband of the deceased, on the other hand, is entitled to one-fourth of the property of the deceased and the husband is entitled to half of the property of the deceased if there is no offspring between them.[18] These are the provisions in regards to the nearest relations of the deceased. However, proportionality of all of the other relations in regards to entitlement of inheritance is similarly polarised.[19] The mother, sisters, granddaughters and grandmothers are all either entitled to an amount of portion which less than their male counterpart or are excluded from inheritance via the ‘Doctrine of Exclusion”.[20] The only significant revision in Shariah Law is made through the enactment of Muslim Family Law Ordinance, 1961 Section 4. This particular provision gives rights to the orphaned grandchildren of the deceased to receive the same proportion as their parents would have if they were alive.[21] This section overrides and violates Shariah Law through introducing the concept of “Doctrine of Representation” by giving the grandchildren the same status as their parents.[22] Without this concept the grandchildren of the deceased are completely excluded from the inheritance rights based on the doctrine of exclusion based on the nearness of the degree of relationship with the deceased. [23] It is on one hand a very progressive and equitable step on the part of the legislators for diminishing the disparity in terms of both grandchildren of the deceased. However, on the other hand, it does not really help the women in getting equitable shares since as grandchildren proportion awarded to women still remain complexly different and less than that of men. [24]

 

2.2 Reducing the Gap through other Property Rights

The gap and disparity between the proportion awarded to men and women in regards to the inheritance law in Shariah law does create divergence but that does not mean that only inheritance can give women control over property. There are other property rights which can in fact be used as a tool to bring in a certain level of impartiality in terms of property rights of Muslim women in Bangladesh. Through the provisions of Hiba or gifts and Wasiyat or Wills Muslim women can be given rights over property without infringing any Quranic verses or Shariat.[25]

2.2.1 Wasiyah

Wasiyah or Wills are normally governed in Bangladesh by the Succession Act, 1925, but Shariah Law also applies in terms or disparity.[26] Will is a legal declaration of how a person wants his property to be distributed after death and according to Shariah Law only one-third of the property can give awarded by Will.[27] Quranic verses and Sunnah gives complete liberty to the testator or maker of the Will to decide the legatee or the person who is going to receive the Will property.[28] Hence, if only the testator is willing women can be awarded property through Wills and by doing so they can be awarded a similar amount of property as men inheritors. Since there is no provision to direct otherwise, distributing property to women inheritors and reducing the crevice of disparity is not erroneous under the Muslim personal Laws.

 

2.2.2 Hiba

Similarly like Wasiyah, Hiba or gift can be another alternative to shorten the gaps among the men and women inheritors. Under Muslim personal law a person can make a gift at any point of their life to any person they ought to.[29] However, an individual can only gift one third of their whole property and the gift becomes effective right after the registration of this gratuitous transfer.[30] Hence, through Hiba if a person is willing to then they can award women some amount of property which can further facilitate to their property rights and put them at par with men. Nonetheless, this depends on the willingness of the distributor of the property.

  1. Inheritance Rights in Hindu Law

The Hindu citizens[31] in Bangladesh are governed under the Dayabhaga school of Hindu law as opposed to the Hindu citizens in India who are governed under the Mitakshara school of Hindu law.[32] When it comes to inheritance there is not many circumstances where a women can inherit properties from the deceased and even when they can their control over that property can be limited in discrete circumstances.[33]

3.1 Disproportionate Ideology of Exclusion

According to the Dayabhaga school of Hindu law a daughter is excluded from inheritance of father’s property if the father has a son or grandson or great-grandson or wife.[34] If the above relationships do not exist, then the unmarried daughter will be able to inherit the deceased’s property.[35] However, widow daughter, daughter with no son or if barren then they are completely excluded from inheriting any property from their father.[36] In case of the mother of the deceased having a son or grandson or great-grandson or wife excludes her from being entitled to any property whatsoever.[37] If the deceased only leaves a widow and a daughter then the daughter will inherit the property only after the passing of the widow, since in the lifetime of the widow, the widow remains entitled to the property of her husband.[38] The only woman who is not excluded from inheritance of the deceased’s property is the wife or widow of the deceased. The inherited property of the deceased is managed under the “Women’s Estate”.[39] Besides the women’s estate, the women in Dayabghaga School of Hindu law may obtain “Stridhana”. These systems and ideology of exclusion goes on to speak volumes about the Hindu women’s inheritance and overall property rights in Bangladesh. The inconsistency and disproportion of the provisions will become much clearer as we further analyse the provisions of Women’s Estate and Stridhana.

3.2 Women’s Estate

As discussed, only the widow of the deceased or the wife can get a share of the property of the deceased along with the daughter of the deceased.[40] Before, according to the customary Dayabhaga rules the inherited property was awarded after deducting the Stridhana from the same but after the enactment of The Hindu Women’s Right to Property Act, 1937 widows are entitled to property of their husband without deducting Stridhana.[41] If the deceased does not leave any Will, then the widow or widows collectively will receive the same share as a son.[42] If the deceased leaves only a grandson and their son are predeceased then both of them will get the same share as if the son were alive.[43] However, the interest in those properties is limited to a widow’s lifetime meaning that there remains a bar on alienation of such property.[44] Unchastity is a ground for exclusion of widows from inheriting the property of their husband.[45] Moreover, upon remarrying Hindu women has to cease their claim on their deceased husband’s property.[46] However, in the case of Nurun Nabi Mondal and others Vs. Joynal Abedin Khondkar & ors, the court held the opinion that remarrying in the same caste of previous husband and prevalent customary proof of the validity of remarriage in the said caste can induce non-forfeiture of the inherited property of the former husband.[47] This progressive ruling does give women who are re-marrying in the same caste a sense of justice however, does not provide any recourse to women who are marrying out of caste in any case.

3.3 Stridhana

Stridhana is the property designated to Hindu women by their father before the nuptial fire or at the time of her marriage according to the Hindu scriptures.[48] However, according to Hindu customary laws Stridhana includes property given to the women by their father and other relations before and after marriage.[49] But, the inherited properties and gifts from strangers do not include in the Stridhana according to the Dayabhaga School.[50] The rights over Stridhana depend on the status of the women. The women can have absolute rights over Sudayika[51] Stridhana which is obtained in the maidenhood but not over Non-Sudayika[52] Stridhana which is obtained after marriage. This is the reason a lot of parents of Hindu women tend to give their daughters dowry before her marriage because that is the only property they have absolute rights over.[53] Nevertheless gifting women the property before her marriage depends on the outlook and desire of the family, since there is no binding laws the Hindu women in most cases are deprived of any property rights.

  1. The Disproportion and the Attempts of Harmony

It is very apparent from the discussion that the amount of property women gets in Bangladesh has polarity because of using personal laws. Muslim women however are entitled to more property and inheritance rights than Hindu women as per their personal laws. Needless to say that both of these factions of women are deprived, but the Hindu women are placed far away from ever receiving equal rights as Hindu men. Although without violating any religious scriptures or laws women of both religions can be awarded equal right for Muslim women through Wasiyah and Hiba and for Hindu Women through Stridhana. These provisions of gifts and Wills can be used to facilitate the women of their property rights however since giving women property through these recourses are not mandatory and depends on the individual, most of the society is not ready to give women control over any property. For example, in 2011 the government of Bangladesh wanted to include equal property rights for women through Clause 25(2) of the Women Development Policy, 2011 which did not violate any direct verses of Quran.[54] However this attempt resulted into a nationwide strike by different powerful religious faction of the society and the government had to abandon the idea.[55] This particular incident shows how the society itself is not ready to give women equal property rights. Although there are possible ways of closing the gap[56] because of the patriarchal culture prevailing in Bangladesh women are being deprived. However, some landmark judgements on Fatwa[57] do give a ray of hope for Muslim women as they desist the misinterpretation of Shariah law to various extents but otherwise the situation remains despairing.[58]

  1. Conclusion

The inheritance laws in Bangladesh being based on personal Laws on one hand give the citizens the right to observe their religious obligations but on the other hand go against the spirit of the Constitution which confirms equal right for men and women in every sphere of life.[59] The personal laws themselves being very different on the basis of religions add in to the polarity and disparity in contrast to the men in the society. In Muslim laws the women are given more opportunity to inherit whereas in Hindu law the opportunity is almost virtually non-existent. However, it is observed that despite of having more rights in terms of inheritance than Hindu women, Muslim women in reality cannot in various cases claim those rights. The reason being the systematic exclusion of women in Bangladesh from controlling properties regardless of the religion they adhere to. Since, as discussed before it is not impossible to give women the equal property rights through Wills and gifts. It can be said that the only tool that is holding the society back from giving our women equal property rights is not religious laws, but the patriarchal belief system that has been fuelling and controlling the modus operandi of this country.

 

 

  1. Bibliography

6.1 Legislations

  • Hindu Women’s Right to Property Act, 1937.
  • Hindu Widows’ Remarriage Act, 1856.
  • Muslim Family Law Ordinance, 1961.
  • The Constitution of Peoples’ Republic of Bangladesh.
  • The Muslim Personal Law (Shariat) Application Act, 1937.
  • The Succession Act, 1925.

6.2 Cases

6.3 Books

  • Agarwal R. D. Hindu Law, (Sri Sai Publications, 2002).
  • Agarwal R. K. Hindu Law, (26th Edition, Central Law Agency, 2019).
  • Ahmad A, Mohammedan Law, (26th Edition, Central Law Agency, 2016).
  • Al-Ahkum B. M. Al-shariyyah fi Al-Ahwal Al-Shaqueshiyyah, (Egypt: Daru al-Salamah, 2006)
  • Fyzee A. A. A. Outlines of Muhammadan Law, (4th Edition, Oxford University Press, 1974).
  • Kathir T. I. Commentary of the Qur’an, (2nd Edition, Dar Tayyabahvol, 1999).
  • Jassas A, Ahkamu al-Quaran,(3rd Edition, Beirut: Daru Ihyah al-Turas al-Arabi, 1984).
  • Jhabvala N. H. Principles of Hindu Law, (17th Edition, Jamandas and Company, 2016).

6.4 Journal Articles

  • Alam N. and Khuda B., ‘Demography of Muslims and Non-Muslims in Bangladesh’ [2011] 40(1) Demograpgy India 163.
  • W.M Abdul Huq, ‘Section 4 of the Muslim Family Laws Ordinance, 1961: A Critic’ [2010] 1 Northern University Journal of Law 7.
  • Begum F., ‘Revisiting Hindu Women’s Right to Property in Bangladesh: Absolute Interest v. Limited Interest’ [2018] 15 Social Sciences Research Network 23.
  • Bishin B. G. and Cherif F. M. ‘Women, Property Rights, and Islam’ [2017] 49(4) Comparative Politics 501.
  • Haider M., Rahman M. and Kamal N., ‘Hindu Population Growth in Bangladesh: A Demographic Puzzle’ [2019] 6(1) Journal of Regional Demography 123.
  • Hossain M. and Clement T., ‘Closing the gender gap in Bangladesh: inequality in education, employment, and earnings’ [2005] 32(5) International Journal of Social Economics 439.
  • Huda R. and Ahmed N. R., ‘Female Status in Bangladesh’ [1980] 46 Bangladesh Institute of Development Studies 176.
  • Huda S., ‘Combating Gender Injustics: Hindu Law in Bangladesh’ [2011] 4 South Asian Institute of Advanced Legal and Human Rights Studies 10.
  • Islam R. M., ‘Unjust Land Right of Women in Bangladesh’ [2015] 1(3) International Research Journal of Interdisciplinary and Multidisciplinary Studies 5.
  • Jinnah S. I. M., “Land and Property Rights of Rural Women in Bangladesh” [2013] 1 Community Development Association 10.
  • Khan I., M. F., Rahman N. N. A., and Yusoff M. Y. J., ‘The right of women in property sharing in Bangladesh: Can the islamic inheritance system eliminate discrimination?’ [2016] 5(1) Springer 1695.
  • Mohammad N. ‘Islamic Law & Women Rights in Bangladesh’ [2013] 2(2) Social Sciences 22.
  • Zahur M., ‘Hindu Women’s Property Rights: Bangladesh Perspective’ [2016] 11(1) BRAC University Journal 79.

6.5 Reports and Others

  • Kaberi Gayen, ‘Equal Property Right’ The Daily Star (Dhaka, 8 March 2019) <https://www.thedailystar.net/star-weekend/news/equal-property-right-1711810> accessed 15 August 2020.

 

[1] Mohammad Tayeeb and Others v Government of The People’s Republic of Bangladesh 23 BLT (AD) 10; where fatwa was deemed as only an opinion and of no legal value and the court upheld that the citizens are governed under secular laws.

 

[2] The Constitution of Peoples’ Republic of Bangladesh, art. 12.

 

[3] Issa Khan, Md. Faruk Abdullah, Noor Naemah Abdul Rahman, and Mohd Yakub Zulkifli Bin Mohd Yusoff, ‘The right of women in property sharing in Bangladesh: Can the islamic inheritance system eliminate discrimination?’ [2016] 5(1) Springer 1695.

 

[4] Shah I Mobin Jinnah, “Land and Property Rights of Rural Women in Bangladesh” [2013] 1 CDA 10.

 

[5] Md. Raisul Islam Sourav, ‘Unjust Land Right of Women in Bangladesh’ [2015] 1(3) IRJIMS 5.

[6] Where 89% are Musims; Nurul Alam and Barkat-e-Khuda, ‘Demography of Muslims and Non-Muslims in Bangladesh’ [2011] 40(1) Demograpgy India 163.

 

[7] The Muslim Personal Law (Shariat) Application Act, 1937, s. 2.

 

[8] Muslim Family Law Ordinance, 1961, s. 4.

 

[9] Noor Mohammad ‘Islamic Law & Women Rights in Bangladesh’ [2013] 2(2) Social Sciences 22.

 

[10] Tafsir Ibn Kathir, Commentary of the Qur’an, (2nd Edition, Dar Tayyabahvol, 1999).

 

[11] Basha MQ. Al-Ahkum, Al-shariyyah fi Al-Ahwal Al-Shaqueshiyyah, (Egypt: Daru al-Salamah, 2006) ; Quran 4:34.

 

[12] Mahr is the obligation, in the form of money or possessions paid by the groom, to the bride at the time of islamic marriage; Jassas A, Ahkamu al-Quaran, (3rd Edition, Beirut: Daru Ihyah al-Turas al-Arabi, 1984).

 

[13] Nafaqaah is the financial support a husband must provide for his wife during marriage and for a time after divorce; Imam-Al-Shafi, Fatah al-Qadir (5th Edition, Dar al-kutub al-Ilmiyah, 2003).

[14] Asaf Ali Asghar Fyzee, Outlines of Muhammadan Law, (4th Edition, Oxford University Press, 1974).

 

[15] ibid; Quran 4:11.

 

[16] ibid.

 

[17] Quran 4:12.

 

[18] ibid.

[19] Issa Khan, Md. Faruk Abdullah, Noor Naemah Abdul Rahman, and Mohd Yakub Zulkifli Bin Mohd Yusoff, ‘The right of women in property sharing in Bangladesh: Can the islamic inheritance system eliminate discrimination?’ [2016] 5(1) Springer 1695.

 

[20] Mohammad Hossain and Tisdell Clement, ‘Closing the gender gap in Bangladesh: inequality in education, employment, and earnings’ [2005] 32(5) IJSE 439.

 

[21] Muslim Family Law Ordinance, 1961, s. 4.

 

[22] A.W.M Abdul Huq, ‘Section 4 of the Muslim Family Laws Ordinance, 1961: A Critic’ [2010] 1 NUJL 7.

 

[23] Issa Khan, Md. Faruk Abdullah, Noor Naemah Abdul Rahman, and Mohd Yakub Zulkifli Bin Mohd Yusoff, ‘The right of women in property sharing in Bangladesh: Can the Islamic inheritance system eliminate discrimination?’ [2016] 5(1) Springer 1695.

 

[24] Benjamin G. Bishin and Feryal M. Cherif ‘Women, Property Rights, and Islam’ [2017] 49(4) Comparative Politics 501.

[25] Asaf Ali Asghar Fyzee, Outlines of Muhammadan Law, (4th Edition, Oxford University Press, 1974).

 

[26] The Succession Act, 1925, s. 4.

 

[27] Aqil Ahmad, Mohammedan Law, (26th Edition, Central Law Agency, 2016).

 

[28] ibid.

[29] Dinshah Fardunji Mulla, Principle of Islamic Law, (10th Edition, The Eastern Law House, 2008).

 

[30] ibid.

 

[31] 9% of the whole population, Moinuddin Haider, Mizanur Rahman and Nahid Kamal, ‘Hindu Population Growth in Bangladesh: A Demographic Puzzle’ [2019] 6(1) Journal of Regional Demography 123.

 

[32] Mahua Zahur, ‘Hindu Women’s Property Rights: Bangladesh Perspective’ [2016] 11(1) BRAC University Journal 79.

 

[33] Rafiqul Huda and Nilufer Raihan Ahmed, ‘Female Status in Bangladesh’ [1980] 46 Bangladesh Institute of Development Studies 176.

[34] Mahua Zahur, ‘Hindu Women’s Property Rights: Bangladesh Perspective’ [2016] 11(1) BRAC University Journal 79.

 

[35] R. K. Agarwal, Hindu Law, (26th Edition, Central Law Agency, 2019).

 

[36] N. H. Jhabvala, Principles of Hindu Law, (17th Edition, Jamandas and Company, 2016).

 

[37] Shanaz Huda, ‘Combating Gender Injustics: Hindu Law in Bangladesh’ [2011] 4 SAILS 10.

 

[38] Rameshwar Dayal Agarwal, Hindu Law, (Sri Sai Publications, 2002).

 

[39] ibid.

[40] Mahua Zahur, ‘Hindu Women’s Property Rights: Bangladesh Perspective’ [2016] 11(1) BRAC University Journal 79.

 

[41] Hindu Women’s Right to Property Act, 1937, s. 3.

 

[42] ibid. s. 3(3).

 

[43] ibid. s. 3(1).

 

[44] Nurun Nabi Mondal and others Vs. Joynal Abedin Khondkar & ors 1977 6 CLC (AD).

 

[45]  R. K. Agarwal, Hindu Law, (26th Edition, Central Law Agency, 2019).

 

[46] Hindu Widows’ Remarriage Act, 1856, s. 2; Saudamini Roy Malakar vs. Narendra Chandra Barman 4 DLR 492.

 

[47] Nurun Nabi Mondal and others Vs. Joynal Abedin Khondkar & ors 1977 6 CLC (AD).

 

[48] Manusmriti IX: 194.

 

[49] Rameshwar Dayal Agarwal, Hindu Law, (Sri Sai Publications, 2002).

 

[50] Ferdousi Begum, ‘Revisiting Hindu Women’s Right to Property in Bangladesh: Absolute Interest v. Limited Interest’ [2018] 15 SSRN 23.

 

[51] Whatever is obtained by a married or unmarried girl, from the husband or parents, at the husband’s or father’s place, is called saudayika; R. K. Agarwal, Hindu Law, (26th Edition, Central Law Agency, 2019).

 

[52] All other properties which are not saudayika are called non-saudayika; R. K. Agarwal, Hindu Law, (26th Edition, Central Law Agency, 2019).

 

[53] Ferdousi Begum, ‘Revisiting Hindu Women’s Right to Property in Bangladesh: Absolute Interest v. Limited Interest’ [2018] 15 SSRN 23.

[54] Kaberi Gayen, ‘Equal Property Right’ The Daily Star (Dhaka, 8 March 2019) <https://www.thedailystar.net/star-weekend/news/equal-property-right-1711810> accessed 15 August 2020.

 

[55] ibid.

 

[56] By using alternative property rights than inheritance; Benjamin G. Bishin and Feryal M. Cherif ‘Women, Property Rights, and Islam’ [2017] 49(4) Comparative Politics 501.

 

[57] Editor, The Daily Banglabazar Patrika v District Magistrate  and Deputy Commissioner Naogaon 21 BLD (HCD) 2001; where fatwa by a mullah was considered illegal about shariah laws; Mohammad Tayeeb and Others v Government of The People’s Republic of Bangladesh 23 BLT (AD) 10; where fatwa was deemed as only an opinion and of no legal value.

[58] Shah I Mobin Jinnah, “Land and Property Rights of Rural Women in Bangladesh” [2013] 1 CDA 10.

 

[59] The Constitution of Peoples’ Republic of Bangladesh, art. 10, 19(1), 19(2), 27, 28, 29.