独家优惠奖金 100% 高达 1 BTC + 180 免费旋转

Inheritance Right In Islam Family Law

Today out of five people, at least one belongs to the Islamic faith. Besides, people in common belong to other religions have obviously heard about the religion but they may not have more idea about Islam, its historical background, culture and religious practices. To Muslim people, all the commandments of the Koran came from One God have formed the Islamic Laws. As a part of the religious faith, Muslim people have been following these laws in their lives for thousands of years. Today, many Muslim countries, around the world, follow Islamic Laws as part of their social and national discipline. Since family is the prime unit to develop a good society, Islam has provided many disciplinary codes over family management like marriage, divorce, paternity, maintenance, guardianship and many others. All these disciplinary codes have formed Islamic Family Law. This paper will comprehensively carry out its discussion over Islamic Family Law and how different Muslim countries around the world practice them.

Ideal Muslim family refers to the legally married couple (husband and wife) and their children. Parents, siblings and close relatives may be included in this family. In religious terms, husband and wife (man and woman) are considered as the fundamental elements of all families that start with the legal marriage system. But due to many social issues and family conflicts, husband and wife divorce each other and life separate. But if they have children, paternity, maintenance and guardianship become critical issues to be disputed.

Marriage is considered a legal contract and social agreement between a man and woman. This is also practiced as a part of the Islamic faith. Today, all the marriage contracts are carried out in the presence of some Imam, Islamic Judge or some elder trusted community. There are some contract conditions that are bound to be met under Islamic marriage law:

Consent — Both the bride and the groom should have free consent to the marriage and they have to express both in verbally and writing. Parents are not allowed to force their choices over them. But consent will not be allowed to take from minor children, incapacitated and physically or mentally disabled people.

Mahr — Often this is word is misinterpreted as “dowry”. The proper meaning of the term is “bridal gift”. The groom has to offer this to the bride as the security of the marriage that becomes private property of the bride even in case of divorce. Jewelry, property, cash and any sort of valuable asset can be considered as Mahr. Both sides can fix the amount by negotiation. Mahr can be paid fully or by installments.

Witness — At least two adult witnesses from both sides are to be present to verify the marriage contract. Today, all Muslim marriage programs take signatures from the witnesses to maintain a legal document of the marriage.

After the marriage is legally completed, the groom becomes responsible for his bride and the upcoming children. Together they share their household activities. Under Islamic Law, Polygamy is allowed for Muslim men. It means Muslim men can have more than one wife but obviously, he has to take consent from his present wives before new marriages. But Polyandry is not allowed. It means Muslim women cannot have more than one husband if their present husband is alive. But after divorce or if her present husband is dead, she can marry another man.

Under Islamic Law, A Muslim family can dissolve their marriage by divorce system. Both males and females have the right to divorce their partner if they feel they are not happy in their family life. Couples can divorce each other both verbally and write but at least two witnesses are to be present during the pronouncement of divorce.

There are two categories of divorce systems in Islamic Law:

1. Extra judicial divorce
2. Judicial divorce

The Extra-Judicial divorce system is classified into three classes and they are:

· Taalaaq, Ila and Zihar by husband
· Khula and Lian by wife
· Taalaaq-I-Tafweez and Mubarat by mutual agreement

Taalaaq: It means setting free or taking off any ties. In Islamic Law, it means dissolution of any marriage bondage by using appropriate words. By another meaning, it means a repudiation of the marriage bondage by the husband by the defined law.

Ila: This is a constructive divorce system. Under this system, the husband makes an oath over not having any sexual intercourse with his wife for four months following the oath date. If the husband does not make any cohabitation over time, the marriage will automatically be dissolved. But if the husband makes intercourse with her wife by the period, the marriage bonding stays.

Zihar: Husband compares his wife with other women whom he cannot marry like a sister, mother etc. Husband will tell her wife that she is like his mother or sister and since the date, he will not have any cohabitation with her wife for four months. Zihar is completed upon the expiry date of the period.

Lian: Wife has right to divorce her husband if he imposes any false charge over her wife like adultery and unchastity. This is a way; wife can save herself if her husband hurts her feeling, does not take her care and put false allegation over her.

Khula: Wife will apply for “untying the knot” of marriage bonding through the court. The wife has to suit for Khula under the Family Law ordinance and make an oath of not having any relation with her husband for four months. If she does not have any physical relationship with her husband within the period, Khula is completed.

Taalaaq-I-Tafweez and Mubarat: This is a mutual marriage dissolving system. The couple does not have to go to court. Under the Muslim Family Law ordinance 1932 — section 8, husband and wife can mutually divorce through written notice.

Paternity refers to fatherhood. The paternity of a child falls over the father if the couple gets a baby during their valid marriage period and within 280 days of the marriage dissolution and if the mother is unmarried even after the divorce. Maternity belongs to the woman who has given birth to the child and paternity of the child automatically falls upon her lawful husband. But under some conditions, paternity becomes doubtful for example: if there is fortification or adultery. Besides, Muslim men are allowed to take responsibility for another child. Prophet Mohammad (PBUH) has advised and encouraged his followers to take paternity of the orphan children. So, under the following conditions, valid acknowledgment over legitimate paternity can be made:

· The acknowledger must have all the legal capacities to make a paternity contract.
· The acknowledger has to make a legitimate son-ship but not merely son-ship.
· The acknowledger must be elder than the person acknowledged by twelve and a half years.
· The acknowledger is not allowed to make any sort of physical relationship with the person acknowledged and this is punishable under Islamic law. Such relationships are defined as incest, fortification, or adultery.
· The acknowledger must not hide the parentage of the person acknowledged by the society.
· The acknowledged person will have the legal authority to claim himself as the child of the acknowledger.
· The acknowledger must be capable of becoming the lawful husband of the mother of the child.

Maintenance in Islamic Law is defined as Nafaq. It says that the husband is bound to provide financial supports to his wives since the day he has married her. It falls under the Muslim Personal Law section. The husband is responsible for providing food; clothing, housing and medical care other than financial backup as well. Besides, A Muslim man has to take responsibility for some other groups of people like children, parents and relatives. In below, the maintenance responsibilities of Muslim men are described.

Maintenance of Wife

When a man marries a woman and brings her to his home, all her spending regarding housing, clothing, food, medical care, safety and other responsibilities fall upon her husband. If the husband's family is rich, he can easily meet her wife’s demands. But if the husband is poor, the wife cannot ask him to spend for her as the rich family woman does. They should try to maintain a moderate family life. The husband is bound to meet all the essential and primary needs of his wife till she is faithful to the husband. If the wife is found guilty and treacherous activities, the husband may not be responsible to spend for her any longer. Under the following circumstances, the Muslim woman will lose her right to claim for her maintenance cost:

· Refuse free access of her husband to her.
· Becomes disobedient.
· Never visits her husband's house.
· Deserts him
· Falls in relationship with another guy.
· Refuses to cohabit with her husband without any reasonable cause.

This is impossible for a woman to ask for her maintenance cost to her husband when she is not faithful to him and making false charges over him.

Maintenance of Children

The maintenance cost of legitimate children falls upon the father. Under Islamic Law, a father is bound to carry the maintenance costs of his son till he reaches in his puberty and of the daughter till she is married off. If the daughter becomes a widow or divorced, her responsibility again falls upon her father. But the father will not be responsible to maintain her cost if she refuses to live with the family without any reasonable cause. If the children are disabled or infirm, parents are to take their responsibility until they become able to work and take their own care. If the father is poor, the mother has to contribute to the child's upbringing. Under Muslim Law, the father is not bound to take responsibility for any illegitimate children. But if the father wants, he can carry the maintenance cost of the illegitimate child as part of humanity.

Maintenance of Parents

When the parents become old and cannot work anymore, their maintenance responsibilities fall upon the children. Some scholars say children have to take responsibilities of their parents if the parents become too poor to carry own maintenance cost. But even after becoming rich, parents may become too weak to take their own care. So, Islamic Law says children are bound to take responsibility for their parents when they become mature.

Maintenance of Relatives

Uncles, aunties, cousins, nephews, siblings and even next-door neighbors are considered as relatives under Islamic Law. If the relative is poor, disable to work, or affected by chronic disease, their maintenance responsibilities fall over others. Right then, the rich family members who are able to sustain them should come forward to help them. Such relatives can be of both sides’ husband and wife. Prophet says if a man is poor, he should meet his primary needs first. If he has some money after meeting the needs, he should use it for his relatives.

Guardianship refers to the position of a person who is taking care and protecting the property of some other people. It refers to the responsibilities over minor people. The guardianship over minor is carried out by two types and they are:

1. Guardianship over bringing up the children.
2. Guardianship over marriage, education and property management of minor.

In three ways, guardianship is imposed and they are natural right, testament and court jurisdiction. In which cases they are imposed upon have been described below:

Guardianship for Marriage Purpose

Parents have a natural right over their children to look for a suitable person to marry their children. When children become matured enough, parents may look for their preferred person but they are not allowed to force their children to choose their selection. But since marriage is a social program and many sorts of activities are to carry out, parents of both sides will work as guardians for their children.

Guardianship for the Purpose of Protecting Property

Such guardianship may be appointed by court jurisdiction. Due to war, conflict, accidents and many other reasons, some children may lose their parents at an early age and become orphans. In this situation, the court will choose somebody who will take care of the children. It may be their first Uncle, Aunty, Grandparents, or other bloodline relatives. The property and the children will be under their guardianship till they reach in their puberty and become mature.

Guardianship for the Purpose of Nurturing Children

Whenever a child is born, his guardianship automatically falls upon his biological parents. They will be under their custody till they reach in their puberty. But the couple divorces each other, the guardianship will be appointed by the court. The court may ask the child whom he/she wants to stay with. The appointed guardian has to bring all their educational, accommodation, food, medical and other costs.

Prophet Mohammad (PBUH) started preaching Islam in the 6th century. Very soon, Islam reached all countries around the whole world. During the eighth and ninth centuries, most Muslim majority countries started accepting Islamic Law. But today, most of these countries do not follow Islamic Laws like in the medieval ages. Countries have brought modification and reformed the Islamic Law practices in many ways. Now, reform of Islamic Laws in some Muslim countries will be described below:

As the majority of people living in Egypt are Muslim, in 1971, Islam was declared as the state religion. Since then, Islamic Sharia has been being practiced there. Article — 2 of the Egyptian constitution 2014 says Islamic Law is the main principle of all legislative practices. Ministry of Justice runs the Sharia courts and qadis. All the family issues like marriage, divorce, paternity, guardianship etc. are governed by Islamic law. Egyptian constitution provides equal rights to their female like the male counterpart in family court testimony.

But yet many families force their children to select their preferred person for marriage that is not followed by Islamic Law. Their Family Law ordinance has been changed many times by lawmakers. The Family Law ordinance 1929 says women can divorce their husband in case of harm is inflicted like self-will polygamy, adultery, or fortification. Laws of 1985 say if any husband wants to marry more although his present wife is alive and not divorced, he has to take permission from her. The Law of 2000 has made women enable to practice Khula to dissolve marriage bonding. Men are allowed to practice all the divorce systems by Egyptian ordinance. The divorced mother can keep her children under her custody till they reach 15. Guardianship and maintenance issues are the same here.

Medina is the place where Islamic Laws originated by Prophet Muhammad (PBUH) although Saudi Arabia was born in 1932. All their legal and constitutional laws are based totally on Islamic Sharia Law. They did not bring any modification over the Muslim Family Law ordinance designed by the holy prophet. Both men and women have equal rights in marriage and divorce.

Before marriage, the guardians of the bride and groom can discuss the Mahr amount. If the bride or groom has no guardian representative, they themselves can join in the Mahr negotiation. Muslim men can have four wives by Sharia Law who are bound to be treated equally. But today, many Saudi Women insert some particular clauses that restrict their husbands to marry other women till they have a valid contract. No non-Muslim can carry marry a Muslim man until she is converted into Islam. Divorce and dissolution systems are the same as they were explained above. Parents are bound to maintain their children. Children have to take care of their parents when they become too old.

Most of the African countries were under French, Spanish, Italian and Britain colonies for a long time, for example, Morocco and Egypt were under Britain, Libya was under Italy, Algeria was under French etc. All these countries had to make a bloody revolution to get freedom from the colonial period. As a result, their Islamic Law practices were stumbled many times over the years.

In 1956, Morocco enacted their Family Law system by the Muslim Sharia Law system. In all family-related issues, women’s testimony is considered equal to that of men. But their new constitution in 2011 changed many of their laws like criminal law and followed the European system.

In the case of family law, Somalia, Sudan, Tanzania, Tunisia and other Muslim majority countries are following the same system. But the medieval practices like having more than one wife, mutual Mahr system, children custody have got slightly changed there.

India holds the majority number of Muslims compared to the other sub-continental countries. There are some other Muslim Majority countries like Bangladesh, Pakistan and Afghanistan. Although India holds the majority number of Muslims in this region, their state law is Hindu. But Muslims are allowed to follow their own religious law by special ordinance 1961 for family-related issues. But for other issues like criminal law, property inheritance, business management and others, all people have to follow a common code imposed by the Indian government.

The state religion of Bangladesh, Pakistan and Afghanistan is Islam but over time they have accepted secularism in their lifestyle. As a result, people in common are not very much dedicated to their religious law practices. For example, the 2013 amended constitution of Bangladesh has given fifty percent inheritance to women in their father property that was before two-third. But for marriage and dissolving issues, still these people follow Islamic Law.

Laws are used for dealing with a society in the right way so that all people can live in harmony. Islam is now the second most populous religion after Christianity. About 1.7 billion people around the world are now Muslims. The majority of the population try to retain their common faith over their religion by their regular lifestyle. People in common believe they can find all solutions to their problems in the religion and that is why; Islamic Law has got significant importance among the people. As a Law student, it is mandatory for me to have a comprehensive idea about Islamic Laws. This paper has covered many important aspects of the Muslim family laws very clearly that have helped me to enrich my knowledge. I hope this will help me later in my practical and professional life.

Add a comment

What is your view?

Send

Related posts:

Experiences at school

A good system of evaluation is not just to criticize what teachers are doing wrong, I mean, is better to see areas where teachers and administrative department need to improve. It is very similar as…

Continuous Learning

The standard machine learning approach is to learn to accomplish a specific task with an associated dataset. A model is trained using the dataset and is only able to perform that one task. This is in…

Showing up against hate

Today our family went to a rally against hate to show our support against the white supremacists who threatened to march in Berkeley, California. The event was advertised as a peaceful gathering but…