04. Wiraasat kay Arkaan, Shuroot, Asbaab aur Mawaan’e

Wiraasat kay Arkaan, Shuroot, Asbaab aur Mawaan’e

Like other branches of knowledge, the science of inheritance (Ilm-ul-Meeraas) has its own components, causes, conditions, and obstacles. These are explained as follows:

✦ Arkaan-ul-Irs (Elements of Inheritance) ✦

There are three essential components of inheritance. If any of these elements is missing, the inheritance will not be valid:

1. Al-Muwarris: This refers to the deceased person whose property will be distributed among the heirs.
2. Al-Waaris: The heirs, who are the relatives of the deceased and are entitled to inherit the deceased’s estate.
3. Al-Maoroos: The property or estate of the deceased, which may include cash, agricultural land, buildings, etc.

✦ Asbaab-ul-Irs (Causes of Inheritance) ✦

There are three main causes of inheritance:

1. Al-Nasab (Blood Relationship): This refers to the blood relations between the deceased and the heirs. It includes the deceased’s children (sons, daughters, grandsons, granddaughters), parents (father, mother), and other close relatives such as siblings (brothers, sisters), grandparents, etc.
2. Al-Nikah (Marriage): This refers to the legal marital relationship that allows a husband or wife to inherit from each other upon the death of one of them. Even if the couple has not had sexual relations or cohabited, the right to inherit is still valid. However, in the case of invalid marriages (like temporary marriage or marriage that is unlawful in Islam), the right of inheritance does not apply.
3. Al-Wala (Affiliation or Guardianship): In some cases, a person may inherit based on the legal affiliation or guardianship, such as a freed slave inheriting from their former master.

These causes determine the eligibility of an individual to inherit from the deceased based on their relationship (blood, marriage, or guardianship).

This understanding of the elements and causes is crucial for correctly distributing the inheritance according to Islamic law.

Mut’allqa Aurat ki Meeras (ميراث المطلقہ)

1. Talaq-e-Raj’ei (Revocable Divorce)

•   If a husband gives his wife Talaq-e-Raj’ei (first or second divorce) and he dies during her iddah (waiting period), then according to all scholars, the wife will inherit from him.
•   If the husband dies after her iddah period has ended, then she will not inherit from him.

2. Talaq-e-Baaein (Irrevocable Divorce)

•   If the husband gives his wife Talaq-e-Baaein (third divorce) and he is in good health and dies afterward, then the wife will not inherit, even if her iddah is complete or not.

3. Maraz-ul-Maut (Illness of Death)

•   If a husband is suffering from a terminal illness (Maraz-ul-Maut) and he gives his wife a Talaq-e-Baaein (third divorce) with the intention of depriving her of inheritance, there is a difference of opinion among the scholars regarding this issue.

Scholarly Views:

•   Imam Shafi’i (رحمه الله): The woman will not inherit in this case because Talaq-e-Baaein has occurred.
•   Imam Abu Hanifa (رحمه الله): If the husband dies during the wife’s iddah, she will inherit. If the husband dies after the iddah is complete, she will not inherit. Also, if she initiates the divorce or the divorce is a Talaq-e-Khula (divorce initiated by the wife), she will not inherit.
•   Imam Ahmed (رحمه الله): The woman will inherit in all situations, but if she marries another man after completing her iddah, she will no longer be an heir.
•   Imam Malik (رحمه الله): The woman will inherit in all circumstances, regardless of whether she remarries after the iddah. Imam Malik’s opinion is supported by the example of Sayyiduna Abdul Rahman bin Auf (رضي الله عنه) who gave Talaq-e-Baaein to his wife, Tamaadur, while he was ill and passed away during the same illness. Sayyiduna Usman bin Affan (رضي الله عنه) upheld her inheritance.

4. Al-Wala (Affiliation or Guardianship)

•   Al-Wala refers to the bond of kinship that exists between a freed slave and his former master. After the death of a freed slave, the master will inherit the slave’s property, provided the slave does not have any lawful heirs.
•   As mentioned in the Hadith, “Innamal wala’ liman ‘ataq” (The affiliation is for the one who frees), and the Prophet Muhammad (صلى الله عليه وسلم) said, “Al-wala’ lihmatun ka lihmatil nasab” (Affiliation is like the blood relationship).

Thus, Al-Wala plays a role in the inheritance process, particularly when the freed slave has no other heirs, and the master can inherit the slave’s property.

Shuroot-ul-Irs (Conditions of Inheritance)

1. Haqeeqi or Hukmi Mout (Real or Legal Death):

•   The first condition for inheritance is the actual death of the deceased (Moris). Real death is when a person passes away, and the body is buried by the people. Legal death occurs when a judge (Qadi) rules the death of a missing (lost) person. Once the Qadi declares the person’s death, the missing person is considered deceased, and their property will be distributed among their heirs.

2. Waaris ki Zindagi (Proof of the Heir’s Life):

•   The second condition is that the heir must be alive at the time of the deceased’s death, even if for just a few minutes. Whether the heir’s life is real (Haqeeqi) or legal (Hukmi) is important. An example of legal life is pregnancy; the unborn child is considered alive until birth. If it is not confirmed whether the heir was alive at the time of death, they will not be considered an heir.

3. Waaris Ban’nay Ki Pehchaan (Identification of the Cause of Inheritance):

•   The third condition is that the cause for inheritance must be identified. For a person to inherit, they must have a legitimate connection to the deceased through one of the following: Nasab (blood relation), Nikah (marriage), or Wala (affiliation).

Mawan’a-ul-Irs (Obstacles to Inheritance)

Mawan’a means obstacles, and these refer to conditions that may prevent a person from inheriting, even if they would normally be considered an heir. There are three major obstacles:

1. Al-Qatal (Murder):

•   If a person intentionally kills their heir (Moris), they are not entitled to inherit from the deceased. This is agreed upon by all scholars, as evidenced by the Hadith:
• “The murderer does not inherit from the murdered.” (Sunan an-Nasa’i)
•   Another Hadith states:
• “The killer will not inherit anything.” (Musnad Ahmad)
•   If a person kills their heir by mistake (al-qatl bil khata’), Imam Malik (رحمه الله) states that they will still inherit the deceased’s property, but not the blood money (diyat) that was paid for the accidental killing. However, other scholars hold that the killer does not inherit at all.

2. Ikhtilaaf-ul-Deen (Discrepancy in Religion):

•   This refers to the prohibition on inheritance between a Muslim and a non-Muslim. A Muslim cannot inherit from a non-Muslim, nor can a non-Muslim inherit from a Muslim.
• “A Muslim does not inherit from a disbeliever, and a disbeliever does not inherit from a Muslim.” (Sahih al-Bukhari and Sahih Muslim)
•   An example would be if a Muslim marries a woman from the People of the Book (Ahl-e-Kitab), and the husband or wife passes away, they will not inherit from each other.

3. Al-Riqq (Slavery):

•   A slave does not have the right to inherit from their master unless they are freed. After being freed, the former slave can inherit from the master, but while still a slave, they do not have inheritance rights.

Agar Kafir Muslim Rishtedaar ki Maut ke Baad Imaan Laye

If a non-Muslim relative accepts Islam after the death of their Muslim relative but before the distribution of the estate, the majority of scholars (Imam Malik, Imam Shafi, and Imam Abu Hanifah) believe that the new Muslim will not inherit from the deceased. However, Imam Ahmad (رحمه الله) opines that the new Muslim should be included in the inheritance to encourage their conversion to Islam.

Azaad Aur Ghulaam Ke Darmiyan Tawarus (Inheritance between Free and Slave)

In Islam, there is no inheritance between a free person and a slave. A slave’s property, as well as anything he earns, belongs to his master. Therefore, if a slave were to inherit from a relative, that inheritance would transfer to the master, as the slave does not have the legal capacity to inherit on their own. This is supported by the Hadith: “The slave does not own anything except his divorce.” (Sahih Muslim).

Impact of Exclusion from Inheritance

If someone is excluded from inheritance due to a reason, their exclusion does not affect the inheritance of the remaining heirs. For example, if a son kills his mother, the son will be excluded from inheritance, but the mother’s husband and brother will inherit their shares. The presence of the son who is excluded does not diminish the inheritance of the others. Likewise, the presence of someone who has left Islam (murtad) or a slave does not affect the inheritance rights of other heirs.

Mard Wurasa (Male Heirs)

There are fifteen categories of male heirs who may inherit:

1. Beta (Son)
2. Pota (Grandson)
3. Baap (Father)
4. Daada (Grandfather)
5. Aini Bhai (Full Brother)
6. Al’lati Bhai (Half Brother from Father)
7. Akhiyafi Bhai (Half Brother from Mother)
8. Aini Bhai ka Beta (Nephew from Full Brother)
9. Al’lati Bhai ka Beta (Nephew from Half Brother)
10. Chacha (Paternal Uncle)
11. Al’lati Chacha (Half Uncle from Father)
12. Haqeeqi Chacha ka Beta (Nephew from Paternal Uncle)
13. Al’lati Chacha ka Beta (Nephew from Half Paternal Uncle)
14. Khawand (Husband)
15. Aaqa (Master of a Freed Slave)

Important Note:

If a woman dies and leaves behind any of the 15 male heirs mentioned, only three of them (son, father, and husband) will inherit, while the remaining twelve will be excluded from the inheritance.

Aurteen Jo Waaris Banti Hain (Female Heirs)

There are ten categories of female heirs who may inherit:

1. Beti (Daughter)
2. Poti (Granddaughter)
3. Maan (Mother)
4. Nani (Maternal Grandmother)
5. Dadi (Paternal Grandmother)
6. Aini Behan (Full Sister)
7. Al’lati Behan (Half Sister from Father)
8. Akhiyafi Behan (Half Sister from Mother)
9. Biwi (Wife)
10. Woh aurat jis nay apnay ghulaam ko aazaad kiya ho (The woman who freed her slave, Mu’tiqah)

Important Notes:

1. If a man passes away and leaves behind the ten female heirs listed, only five women will inherit. These include: Daughter, Granddaughter, Mother, Full Sister, and Wife. The remaining women (such as maternal and paternal grandmothers, half-sisters, etc.) will be excluded from inheritance.
2. If either a man or a woman dies and leaves behind the twenty-four heirs mentioned (combination of male and female heirs), only five individuals will inherit: Husband or Wife, Son, Daughter, Father, and Mother. The rest will be excluded from inheritance.

REFERENCE:

Urdu Book: “Islam Ka Qanoon-e-Warasaat” of  Salah Uddin Haider Lakhwi.

English translated by : Umme Abdul Rahman 

Review by : Professor Sheikh Bilal.