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Friday, October 11, 2013

Fiqh of Inheritance, - Allegations Against Distribution

The enemies of Islam have been trying to find fault with the Quran
through the verses of inheritance for several centuries. They allege
that the Noble Quran gives the female in general, and the wife in
particular, half of what it gives to the male in general and the
husband in particular, thereby usurping the right of the woman and
dealing with her wrongfully. In reply to this malicious allegation we
say:
First:The claim that in Islam, the share given from the inheritance to
a woman is less than the man, is invalid. Indeed, there are four cases
in connection with inheritance where the female's share is equal to or
even greater than the male's:
1.The first case: When the woman's share is equal to the man's, as it
is in the )half( brothers and sisters from the side of the mother,
each of whom takes one-sixth, whether they are male or a female, and a
group )of more than two( share the third equally, in which the
female's share is like the male's.
2.The second case: When only the female is the heir, and a cause of
preventing the male from inheritance. A typical example is a man/woman
who dies and leaves a daughter, a full sister, and a half-brother from
the side of the father. The daughter takes half the inheritance, and
the full sister the other half, and nothing is given to the
half-brother from the side of the father, since he is prevented by the
existence of a full sister, although he is a male and she is a female.
3.The third case: When a female takes more than what the male takes,
such as, when a person dies and leaves a full sister or a half-sister
from the side of the father; a mother, a paternal uncle or a
half-brother from the side of the mother. In this case, the full
sister takes half of the inheritance, the mother the third and the
remaining sixth is taken by the paternal uncle or the half-brother
from the side of the mother. Although in this case both the sister and
the mother are females, the share of each is greater than the male's,
i.e., that of the paternal uncle or the half-brother from the side of
the mother.
4.The fourth case: When a female takes half of what the male takes;
this happens in many instances, such as when the inheritors include a
daughter along with a son; a son's daughter along with a son's son; a
full sister along with a full brother; a half-sister from the side of
the father along with a half-brother from the side of the father; the
wife's share compared with the husband's: each female in those cases
takes half of what the male takes.
What is the wisdom that lies behind thisí Does this preference go back
to gender or is there another reason lying behind the preferenceí In
reply to these questions, let us say: This preference does not go back
to gender, since there are some cases in which the female's share of
inheritance is equal to the male's, and other cases in which her share
is greater than the male's, and many cases in which she prevents him
from inheritance, as we have previously seen. Whoever thinks that the
shares of the male and female heirs in the Quran are established only
on the basis of the difference of gender, i.e., masculinity and
femininity, has indeed fallen short of understanding the Quran. That
is because the Noble Quran has distributed the shares of heirs on the
basis of three criteria:
The degree of kinship between the heirs -- be they males or females --
and the deceased person: The closer the relation between them, the
greater the share of inheritance is, regardless of the gender of the
heirs.
The position of the generation of heirs in the sequence of
generations: The young generation, who are at the beginning of their
life and getting ready to receive its burdens, have shares of
inheritance that are greater than the older generations that are at
the end of their life and getting
The financial obligation enjoined by the IslamicSharee'ah)legislation(
upon the heir: That is the only criterion which raises the difference
of gender between the male and the female. However, this difference
inflicts neither oppression nor injustice upon the female. On the
contrary, it may be that the opposite is
This is why this disparity between the male and the female has not
been made general to all the heirs )in all cases( in the Noble Quran,
but just in some cases. The demands required of the son in life and
under the system of Islam are more than those required of )the
daughter who is( his sister. He is the one obliged, once he becomes
mature, to spend on and maintain himself, pay the dowry to his wife,
bear the marital expenditure, maintenance of children as regards
education, medication, clothing, etc. but the female usually gets
married and is not required to pay dowry or bear expenses, since her
maintenance is obligatory for her husband.

Fiqh of Inheritance, - The Importance of Inheritance

Allaah The Almighty has determined the obligatory shares of
inheritance Himself – a task which He entrusted neither to a close
angel nor to a sent Prophet. He determined the share of each heir in
the inheritance, which He showed in detail )in His Book(, unlike many
rulings which were mentioned in a general and brief way in the Book.
In addition, theSunnah)tradition( of the Prophet,sallallaahu 'alayhi
wa sallam,came to give a detailed explanation about these rulings,
just like the rulings regarding prayers,Zakaah)purifying alms(
andHajj)pilgrimage(.
In relation to the obligatory shares of inheritance, the verses of
inheritance were revealed in detail as shown in the beginning and end
ofSurat An-Nisaa'. Allaah The Almighty calls them His limits, and
promises to give a great reward to the one who abides by them and does
not transgress them, and threatens to punish the one who transgresses
them. He Says )what means(:}These are the limits ]set by[ Allaah, and
whoever obeys Allaah and His Messenger will be admitted by Him to
gardens ]in Paradise[ under which rivers flow, abiding eternally
therein; and that is the great attainment. And whoever disobeys Allaah
and His Messenger and transgresses His limits -- He will put him into
the Fire to abide eternally therein, and he will have a humiliating
punishment.{]Quran 4:13-14[
Ibn Katheer, may Allaah have mercy upon him, said,"There are
narrations that encourage learning the obligatory shares of
inheritance, the most important of which are these )mentioned in
verses 11-12(. In relation to this, it was narrated by Abu Daawood and
Ibn Maajah, may Allaah have mercy upon them, on the authority of
'Abdullaah ibn 'Amr, may Allaah be pleased with him, that the Prophet,
sallallaahu 'alayhi wa sallam, said:"Three things are essential to
learn, and what is beyond them is just favorably optional: a precise
)Quranic( Verse, a standing Sunnah )tradition( or a just prescribed
obligatory share )of inheritance(."]Weak narration[
The Prophet,sallallaahu 'alayhi wa sallam, ordered that the obligatory
shares of inheritance should be distributed among those entitled to
them. He said:"Distribute the property )of the deceased( among those
who are entitled to the obligatory shares )of inheritance( according
to the )laws of( the Book of Allaah, and what is left )from the
property( after distributing the obligatory shares should be given to
the closest male heir."]Al-Bukhaari and Muslim[
Scholars called the science of the obligatory shares )of inheritance(
half the knowledge. Ibn 'Uyaynah, may Allaah have mercy upon him,
said,"The science of the obligatory shares )of inheritance( is called
half the knowledge for all the people are in need of it."

Fiqh of Inheritance, - The Wisdom Behind Prescribing Inheritance

Allaah The Almighty has honored man in this worldly life and preferred
him over many creatures, as confirmed by His Statement )which
means(:}And We have certainly honored the children of Aadam )Adam( and
carried them on the land and sea and provided for them of the good
things and preferred them over much of what We have created, with
]definite[ preference.{]Quran 17:70[
Man has been made a successor to authority, which makes him in need of
the means that guarantee his survival, maintain his succession to
authority and sustain his worldly affairs.
Allaah The Almighty has made property a means of sustenance, as shown
in His statement )which means(:}And do not give the weak-minded your
property, which Allaah has made a means of sustenance for you.{]Quran
4:5[
Money sustains the worldly interests of people, and it is the means by
which they fulfill their requirements. Man needs it as long as he is
living, and once he dies, he no longer needs it. Thus, it is necessary
to have a successor and a new owner of his property. If the new owner
is someone who is capable of taking the property by force and
overpowering others, then, it would lead to mutual hatred and disputes
among people, and inheritance would be subject to power struggles and
strife. If, on the other hand, the property is assigned )after one's
death( to cats, dogs, and domestic animals -- which is sometimes the
case in some laws -- surely, the people's benefits and interests will
be lost and their needs will not be met.
For this reason, theSharee'ah)Islamic legislation( has assigned
inheritance to the deceased person's relatives so that people would
rest assured of the destiny of their property, as they are naturally
eager to benefit those with whom they have a strong relationship of
blood, marital relation or allegiance. If a person dies and leaves
property, according to the IslamicSharee'ahthat takes into
consideration all the benefits of people, it should be distributed
among his relatives with justice. This means distributing the
inheritance beginning with the closest and then the next of kin to him
and so on, like the children, the father and those next to them in the
degree of kinship. Allaah The Almighty Says )what means(:}This day I
have perfected for you your religion and completed My favor upon you
and have approved for you Islam as religion.{]Quran 5:3[

Dought & clear, - Ruling on doing the marriage contract over the phone or Internet

Is it valid to do the marriage contract over a WebCam? Because I heard
that it is not permissible as one of the conditions of marriage is
that it should be done in one place?
Praise be to Allah.
The proposal (eejaab) and acceptance (qubool) form one of the pillars
or essential parts of the marriage contract, without which it is not
valid. The proposal is said by the wali (guardian) or his proxy and
the acceptance is said by the husband or his proxy.
It is stipulated that the proposal and acceptance should come in one
sitting. It says inKashshaaf al-Qinaa'(5/41): If there is a lapse of
time between the proposal and acceptance, it is valid so long as both
are done in the same gathering and there is no distraction that would
count as an interruption according to local custom, even if the
interval between the two is lengthy. But if they part before the
acceptance is spoken after the proposal has been issued, then the
proposal becomes invalid. The same applies if there is a distraction
that interrupts the proceedings according to local custom, because
that is turning away from it and it is as if the proposal had been
rejected. End quote.
Similarly, it is also stipulated that witnesses be present in order
for the marriage contract to be valid.
Based on that, the scholars differed with regard to doing the marriage
contract by using modern needs such as the telephone and the Internet.
Some of them say that that is not permissible, because of the absence
of witnesses, even though the presence of two witnesses on the phone
at the same time comes under the same ruling as if they were in the
same place. This is the view of the Islamic Fiqh Council (Majma'
al-Fiqh al-Islami).
Some of the scholars are of the view that this should be disallowed,
as a precaution to protect the marriage, because it is possible to
imitate a person's voice and thus deceive others. This is what is
stated in fatwas issued by the Standing Committee for Issuing Fatwas.
Some of the scholars regard it as permissible so long as there is no
risk of tampering. This is what was stated in fatwas issued by Shaykh
Ibn Baaz (may Allah have mercy on him).
Thus it is known that the problem is not the issue of being the same
place, because contact between both parties at the same time via the
phone or Internet comes under the same ruling as if they were in the
same place.
It is also possible for this marriage contract to be witnessed, by
hearing the voice of the speaker over the phone or Internet; in fact
with technological advances nowadays it is possible to see the wali
and hear his voice when he makes the proposal, and it is also possible
to see the husband.
Hence the most correct view with regard to this matter is that it is
permissible to do the marriage contract over the phone or Internet, if
there is no danger of tampering, the identity of the husband and wali
is proven, and the two witnesses can hear the proposal and acceptance.
This is what was stated in fatwas issued by Shaykh Ibn Baaz (may Allah
have mercy on him), as stated above. It is also what is implied by the
fatwa of the Standing Committee, which disallowed marriage in such
cases as a precaution and for fear of deceit.
The one who wants to be on the safe side may do the marriage contract
by appointing proxies; so the husband or guardian may appoint someone
to do the marriage contract on his behalf in front of witnesses.
There follow the comments of scholars that confirm what we have referred to:
1.Statement of the Islamic Fiqh Council:
Statement no. 52 (6/2) concerning the ruling on contracts via modern
needs of communication.
After stating that it is permissible to do contracts via modern means
of communication, the Council said:
The guidelines mentioned above do not apply to the marriage contract,
because of the stipulation that witnesses be present in that case. End
quote.
2.Fatwa of the Standing Committee for Issuing Fatwas:
Question: if the pillars or essential parts and conditions of the
marriage contract are fulfilled, except that the wali and the husband
are in different countries, is it permissible to do the marriage
contract by phone or not?
Answer: because nowadays deceit and trickery are widespread, and some
people are skilled at imitating others, and some are able to make
their voice sound like a number of people, male and female, young and
old, and even speak different dialects and languages, so that the
listener thinks that several people are speaking when in fact it is
only one person, and because Islamic sharee'ah is concerned with
protecting people's chastity and honour, and takes more precautions
than other religions with regard to contracts and dealings, the
Committee thinks that it is not appropriate, with regard to marriage
contracts, the proposal and acceptance, and appointing proxies, to
handle such matters over the phone. This is in order to achieve the
aims of sharee'ah and protect people's chastity and honour, so that
those who follow whims and desires and those that seek to deceive and
cheat people will not be able to toy with matters of marriage. And
Allah is the source of strength.
End quote fromFataawa al-Lajnah ad-Daa'imah, 18/90
3.Fatwa of Shaykh Ibn Baaz (may Allah have mercy on him)
Question:
I want to get married to a girl and her father is in another country;
at present I cannot travel to meet him and do the marriage contract,
for financial or other reasons. I am currently in a foreign country.
Is it permissible for me to call her father so that he can say to me,
"I give you my daughter So and so in marriage," and I can say, "I
accept." The girl agrees to the marriage and there are two Muslim
witnesses who can listen to what I say and what he says, via the
speakers on the phone. Is this regarded as a legitimate marriage
contract?
Answer:
The website put this question to Shaykh 'Abd al-'Azeez ibn 'Abdullah
ibn Baaz (may Allah have mercy on him) and he replied that if what is
described is true (and there is no tampering involved), then it
fulfils the conditions of shar'i marriage and the marriage contract is
valid. And Allah knows best.