The Return
(al-Radd)
The question of 'retum' arises only in the case of the sharers, because their shares are fixed and determined. At times they exhaust the whole estate (e.g. parents and two daughters, the parents receiving one-third, and two-thirds going to the two daughters), and on other occasions they do not exhaust it (e.g. a daughter and the mother, the former receiving half and the latter one-sixth). In the latter case, the question arises as to what is to be done with the remaining one-third and to whom should we retum it. In the event of there being no specific shares for the heirs (such as brothers and uncles, who do not inherit as sharers) the question of retum does not arise. The four Sunni schools say: The excess of the sharer's shares is given to the residuaries. Hence if the deceased has a single daughter she will take half and the remainder goes to the father; and in his absence, to the full or consanguine sisters because they are residuaries with a daughter; and in their absence to the full brother's son; and in his absence to the consanguine brother's son; and then, in this order: the patemal uncle, the consanguine uncle and the paternal uncle's son. In the absence of all of them, the excess will be returned to the sharers in the proportion of their shares, except the husband and the wife, as they are not entitled to the retum. For example, if a decedent leaves behind mother and a daughter, the mother will take one-sixth and the daughter half as their respective shares, and the remainder will be given to them as 'retum' by division into four parts, the mother receiving one-fourth and the daughter three-fourths. Similarly, if he leaves behind a con sanguine and a uterine sister, the former will take the daughter's share and the latter the mother's share.
The Shafi'; and the Maaliki schools say: If there is no residuary, the remainder, after the assignment of the sharers' shares, will escheat to the bayt al-mal.
The Imámís observe: The sharers are entitled to the remainder in proportion to their shares by way of 'retum' if there exists no relative in their category; and if such a relative exists, after the sharer takes his share the remainder will go to that relative (e.g. when the mother and the father are heirs, aMer the mother takes her determined share, the remainder shall go to the father). If there exists with a sharer a relative who does not belong to his category, the sharer will take his share and then also the remainder by way of 'retum' (e.g. when the decedent is survived by his mother and a brother, she, after taking one-third as a sharer, will take the remainder by way of 'retum,' the brother receiving nothing because he belongs to the second category, while she belongs to the first category). Similarly, if there exists a consanguine sister with a paternal uncle, she will inherit the first half as a share and the second half by way of 'retum,' to the exclusion of the uncle, because he belongs to the third category while she belongs to the second category.
The Imámís do not give the 'return' to a uterine brother or sister in the presence of a consanguine brother or sister. Hence if the decedent is survived by a uterine and a consanguine sister, the former is entitled to one-sixth and the latter to a half (as sharer) as well as the remainder by way of 'return,' to the exclusion of the uterine sister. Yes, a uterine brother or sister is entitled to the 'return' if there i~ none belonging to their category, such as if the decedent is survived by a uterine sister and a consanguine paternal uncle, the whole estate will devolve on her to his exclusion, because he belongs to the third category, while she belongs to the second category.
The Imámís also do not entitle the mother to the 'return' in the presence of those who prevent her from inheriting in excess of one sixth. Hence if the deceased has a daughter and parents, and also brothers—who exclude the mother from inheriting one-third—the remainder will go only to the father and the daughter. But if there are no brothers to exclude the mother, the 'return' will be shared by the father, the daughter, and the mother in proportion to their shares.
It will be seen while discussing the inheritance of husband and wife, that the Imámís entitle the husband and not the wife to inherit by way of 'return' in the absence of all other heis apart from them.
The Fetus, The Owned, and The Illegitimate Child's Inheritance
The Inheritance of a Fetus
If a person dies while his wife is pregnant, the distribution will be postponed, if possible, till childbirth; otherwise, a share will be withheld for the child. The schools differ regarding the share to be withheld. The \anafís observe: The share of a single son will be withheld for the child in the womb, because it is generally so and it is improbable that it should fall short. (Kashf al-haqa'iq ffsharh Kanz al-daqa'iq, vol.2, baab al-fara'id fiqh al-Hanafiyyah) Mu'awwad. Muh. ammad Mustafa in al-A~rath fi al-Sharl 'ah al- 'Islam iyyah and Muhammad Sa'fan, quoting from al-Sirviyyah, state that Malik and al-Sháfi`í have said: A share of four sons and four daughters will be withheld.
A curious incident has been reported in al-Mughni (3rd ed. p.314): It has been narrated from al-Maridini that a pious and learned resident of Yaman informed him that a woman of Yaman gave birth to a thing resembling a paunch. They thought that it contained no child and threw it away on the wayside. When the sun rose and it was warmed up by sunshine, it wriggled and burst open and seven male infants emerged from it. All of them survived and were physically sound, except for the smallness of their bodily members. This gentleman from Yaman further added: One of them wrestled with me and put me down, and ~ was reproached by the people, who would say, "You were beaten by a seventh of a man!"!
The Imámís state: The share of two male children will be with held for caution's sake and the husband and the wife will be given their minimum shares.
A child in the womb will inherit on condition of its being born alive1 9 and its mother giving birth to it in less than six months—or even in six months, if her husband copulates and dies immediately after wards. It is also necessary for the maximum gestation period not to expire after the death, in accordance with the difference among the schools regarding this period, as already mentioned in the chapters on marriage and divorce. Therefore, as for consensus, if the child is born after the expire of the maximum gestation period, he will not inherit.
Child Disowned by the Father
(Walad al-Mlá`anah)
The schools concur that there will be no mutual inheritance between the couple if the husband accuses the wife of adultery, and between the child born thereafter and its father and paternal relatives. However, the child, its mother and maternal relatives will inherit mutually. While inheriting from the child, its relatives through both parents and relatives through the mother enjoy the same status. Hence his full and uterine brothers are considered equal in status. The Imámís observe: If the father takes back his accusation and accepts the child, the child will inherit from the father, but the father will not inherit from the child.
The Illegitimate Child
(Walad al-Zina)
The four Sunni schools concur that an illegitimate child is similar to a child disowned by the father, in all that which has been mentioned concerning the absence of mu~al inheritance between the child and the father and the presence of such inheritance between the child and its mother. (al-Mughnl, vol. 6, baab al-fara'id)
The Imámís say: There is no mutual inheritance between an illegitimate child and its fornicatress mother, in the same manner as there is no such inheritance between the child and its fornicator father, because there is a common impeding cause between the two, i.e. fornication.
Marriage and Divorce of an Ill Person
The Hanafi, the Shaafi'ee and the \anbalí schools say: Marriage during illness is similar to marriage during health in respect of each spouse inheriting from the other, irrespective of whether the marriage is consummated or not. In this context an 'ill person' means one in his death-illness.
The Málikís observe: If a marriage contract is concluded during the illness of either spouse, the marriage will be considered invalid except where it has been consummated. (al-Mughnl, baab al-fara'id)
The Imámís state: If a person marries during death-illness and dies before consummation, the wife will neither be entitled to Dowry nor inheritance from him. Further, he will not be entitled to inherit her if she dies before him, prior to consummation, and then he dies after her as a result of that illness (a-Jawaahir, baab al-m~rath). If a woman marries during death-illness, the rule applicable to a healthy woman applies to her concerning the right of the husband to inherit from her.
The schools concur that if an ill person divorces his wife and dies before the completion of the 'iddah, the wife will inherit from him irrespective of the revocability or irrevocability of the divorce.20 They also concur that she will not inherit if he dies after the completion of her 'iddah and before her marriage with another. The Málikís and the \anbalís observe: She will inherit regardless of the length of time.
The Hanafi and the Shaafi'ee schools state: After the completion of her 'iddah she becomes a stranger and is not entitled to any share in the inheritance. (al-Mughni baab al-fara 'id)
This opinion is in accordance with the Islamic jurisprudential principles, because the marital bond snaps on the completion of the '~ddah, making her marriage with others permissible, and every woman whose marriage with others becomes permissible does not inherit from her former husband. This principle cannot be departed from except on the presence of a Qur'anic verse or a confirmed tradition.
The Imámís say: If a husband divorces his wife during his death-illness in a revocable or irrevocable manner (as in the case of a triple, menopausal divorcee with whom marriage has not been consummated), and then dies before the completion of one year from the date of divorce, she will inherit from him if the following three conditions are fulfilled:
1. that his death be the result of the illness during which he
divorced her;
2. that she should not have remarried;
3. that the divorce should not have been given on her demand. They base these conditions on the traditions of the Ahl al-Bayt (A).
The Father's Share in Inheritance
Following are the different situations relating to the father's share in inheritance:
1. The schools concur that the father, in the absence of the mother, children, children's children, grandmothers and spouse, is entitled to the whole estate, though by relationship (qarabah) according to the Imámís, and through ta'~ib according to the rest, i.e. the dif ference lies in naming the cause leading to inheritance, not in the actual inheritance and his share in it.
2. If a spouse exists with the father, he/she will take the maximum share to which he/she is entitled and the remainder, as per consensus, will go to the father.
3. If there are with the father a son, or sons, or sons and daughters, or the son's son how lowsoever, the father will take one-sixth and the remainder, as per consensus, will go to the others.
4. If there is a single daughter with the father, they will be entitled to a half and one sixth respectively as sharers. The remaining one-third will return to him by way of ta'seeb according to the Sunni schools. Hence the daughter receives half as share, and the father the other half as share and 'return.' The father excludes the grandfathers, brothers and sisters, both paternal and maternal, irrespective of their being full, con sanguine or uterine.
The Imámís observe: The remainder will return to the father and the daughter together, and not solely to the father. The remainder will be divided into four parts, the father receiving one part and the daughter three parts, because in every instance of 'return' in which two sharers are involved, the remainder will be divided into four parts, and if three sharers are involved, it will be divided into five parts (Miftak al karamah, vol.28, p.115).
5. If there are two or more daughters with the father, according to the Sunni schools the daughters will take two-thirds and the father one third.
The Imámís say: The father receives one-fifth and the daughters four-fifths, because the one-sixth which remains after they have taken their shares returns to all of them and not solely to the father, as mentioned in the preceding example.
6. If a maternal grandmother is present with him, she will take one-sixth and he the remainder, because in the opinion of the Sunni schools a maternal grandmother is not excluded by the father (al- 'Iqna' 7 hall alfaz Abi Shuja', vol.2, baab al-fard'id)
The Imámís observe: The father will receive the whole estate and the grandmother is not entitled to anything in any manner, because she belongs to the second category and he to the first.
7. If there are the father and mother together, she will take one third if not prevented from it according to the Sunn; schools, by two brothers or sisters, and by two brothers or one brother and two sisters or four sisters according to the Imámís, as mentioned while explain ing kujb; the father will take the remainder. But if she is partially ex cluded by the brothers, her share will be reduced to one-sixth and the father will take the rest. A consensus prevails here.
A question might be appropriately raised here: Why do the Imám iyyah not return the remainder to both parents, as done by them if a daughter inherits with the father?
The reply is that both the father and the daughter are sharers when they inherit together, and when sharers inherit together each takes his determined share and the remainder 'returns' to all of them in pro portion to their shares. In the present case, the father while inheriting with the mother inherits as a residuary and not as a sharer because there is no child present, whereas the mother inherits as a sharer, and when ever a sharer inherits together with a residuary the latter takes the re mainder. (al-Masaalik, vol.2, baab al-mlrath)
8. If a daughter's son is present with the father, the father will take the whole estate and the daughter's son, according to the four Sunni schools, will get nothing because he is among the distant kindred.
The Imámís say: The father will receive one-sixth as his share and the daughter's son will take half as his mother's share. The re mainder will return to both exactly in the manner mentioned in the fourth illustration Dertainine to his inhPiitine with the fiall~hter
Mother's Shares
There are cases concerning the shares of the mother:
Imámís say: The mother shall inherit all the estate in the absence of the father, children, their children, or one of the two spouses. The rest of the jurists of the schools of thought say: The mother shall not inherit the whole estate unless in case of absence of all the residuaries and agnates. That is there are no father and his father, no children and their children, no siblings and their children, no grandfathers (???), no paternal brothers and their children. As for the existence of grandmothers, that would not bar the mother from inheriting all the estate, because all of the grandmothers would fall (from the list?) by her presence, the same way the grandfathers would fall because of the father. The same goes for the maternal brothers and moternal sisters who cannot bar the mother from inheriting the whole estate, since they because they were included (yudloona?) because of her and the rule is “whoever is included because of someone will be excuded because of him too. [The rule “man adla be gharihi hujiba bihi” is a given for the Imámís. Sunni jurists take exception in this rule the brothers of the mother who inherit with her though they were included because of her. \anbalís hold that the grandmother of the father inherits with the father, that is her son. “al-Mughnee, vol. 6, p. 211, second edition”]
The first case as it is with the existence of one of the spouses, The upper would take his share and the rest shall belong to the mother.
If there are with her a son, or sons, or sons and daughters; or a son of a son -even f excluded- she shall inherit the sixth, the rest is for the other or the others. This is by consensus. [According to the Sunnis; the mother shall take the sixth if the deseaced has sons of his own, or sons of his son -even if dropped. The existence or non-existence of the sons of the daughter however would not have any consequence in barring the mother from taking whatever is above the sixth. According to Imámís, are like one’s own sons; the daughter of the daughter for example would be considered as his own and who would bar the mother from taking whatever is more than the sixth exactly like the son.]
If a single daughter inherits with the mother and there are no other residuaries, such as the paternal grandfather, brothers, and pater nal uncles, and no sharers, such as sisters and spouse, the mother will receive one-sixth and the daughter half as sharers, and the remainder, according to the Imámi, the Hanaf and the \anbalí schools, will be shared by both after dividing it into four parts, the mother receiving one part and the daughter three parts.
The Shaafi'ee and the Maaliki schools state: The remainder will escheat to the bayt al-mal, and it has been mentioned in al-'Iqna' fihallalfaz Ab~Shuja~ (vol.2) that if an orderly system of bayt al-mal does not exist, as when the ruler is unjust, the remainder will return to the sharers in proportion of their shares.
. If there are two daughters inheriting with the mother in the absence of all other sharers and residuaries, as in the preceding illustra tion, the views expressed there apply here as well, except that the re mainder here will be divided into five parts, one part going to the mother and the other four to the two daughters.
The case where she inherits with the father has been discussed in the preceding section regarding the father's share in inheritance.
Where she inherits with the paternal grandfather in the absence of the father, the four Sunni schools observe: The paternal grandfather will represent the father, and the rule is the same in both cases.
The Imámís say: The mother is entitled to the whole estate, to the exclusion of the grandfather, because he belongs to the second category and she to the first. As per consensus, the grandmothers, paternal as well as maternal, do not inherit with the mother and, similarly, the maternal grandfather too does not inherit with her. According to the Sunni schools, none of the grandparents except the paternal grandfather inherit with the mother, and none of them inherit with the father except the maternal grandmother. But the Imámís do not consider grandparents capable of inheriting with either parent.
If a full or consanguine brother is present with the mother, she will, according to the Sunni schools, take one-third as sharer and the re mainder will go to the brother on account of ta'seeb, and if there are with her two full or consanguine or uterine brothers or sisters,23 she will take one-sixth and the remainder will be taken by the brothers, because she is excluded by them from inheriting more than one-sixth. According to the Imámís, she will take the whole estate by share and 'retum,' to the exclusion of the brothers.
If along with her are present a full or consanguine sister or two such sisters, the rule is like the case where a daughter or two daughters are present with her, as mentioned in the fourth and fifth cases.
If a single uterine brother or sister is present with her and there exists no other sharer or residuary, he/she will take one-sixth and the mother one-third, as sharers, and the remainder will 'return' to them in proportion to their shares. If there are with her two or more uterine brothers or sisters, they and the mother will each take one third as sharers and the remainder will be proportionately shared by them together, because that which remains after the sharers have been assigned their shares returns to them proportionately in the opinion of the Hanafi and \anbalí schools, and escheats to the bayt al-mal accord ing to the Sháfi`ís and the Málikís. The Imámís give the whole estate to the mother.
If a full sister and a consanguine sister are present with her, the mother will take one-third, the full sister half, and the consanguine sister one-sixth to complete the two-thirds (for her one-sixth and the full sister's half add up to two-thirds, the maximum which two or more sisters can inherit). The Imámís entitle the mother to the whole estate.
According to the Sunni schools the presence with her of full or consanguine paternal uncles and aunts is like that of full or con sanguine brothers with respect to inheritance and their respective shares.
Where there are with her a paternal uncle and a uterine sister, the mother will take one-third, the sister one-sixth, and the remainder will go to the uncle. Hence the uncle who, according to the Imámís, belongs to the third category, inherits together with the sister (who belongs to the second category) and the mother (who belongs to the first category). The Imámís entitle the mother to the entire estate.
If with the mother are present the husband, uterine brothers and full brothers, this case is called al-mas'alat al-himariyyah (the case of the ass), because in such a casetheCaliph'Umar had recognized the uterine brothers' right to inheritance and excluded the full brothers, which led one of the full brothers to say: O Leader of the Faithful, as~ume that our father were a donkey. Thereat, 'Umar changed his decision and included them among the heirs. The Hanafl and the \anbalí schools obsene: The husband will take half, the mother one-sixth, and the uterine brother one-third. The full brothers will receive nothing as they are residuaries and the inheri tance is exhausted by the sharers alone; i.e. every sharer takes his share and nothing remains for the residuaries. The Maaliki and the Shaafi'ee schools say: The one-third will be dis tributed among the full and uterine brothers, a male receiving the share of two females (al-Mughn~, vol. 6, p.180, 3rd ed.) The Imámís state: The whole estate goes to the mother.
If only a daughter's daughter is present with the mother, according to the Sunni schools, the mother will take one-third as sharer and the rest as 'return' and the daughter's daughter will receive nothing.
The Imámís say: The position of the mother with the daughter's daughter is similar to her position with the daughter, as mentioned in the fourth case.
Does the Mother Take One-Third of the Remainder?
The Sunni schools observe: If the father and a spouse are present with the mother, the mother will take one-third of what remains after the spouse has taken his/her share, not a third of the undivided estate. The stated reason, as mentioned in al-Mughni, is that if she takes one third of the original estate, her share will exceed the father's share. Al Shaykh Abu Zuhrah says in al-MIrath'inda al-Ja'fariyyah: "The father's taking half the mother's share appears far-fetched from the viewpoint of the intent of the Qur'anic verse." He means that on the basis of the mother's taking one-third from the original estate and not from the re mainder, her share will be 8/24, the husband's share 12/24 and the father's 4/24, which is half the mother's share. It is improbable for the verse to have intended such a result. But if she takes one-third of the remainder, her share will be 4/24 and the father's will be 8/24, which is twice her share; this is more probable and possibly what might have been intended by the verse.
The author of Kashf al-h.aqa'iq says: If the paternal grandfather is present instead of the father, he will not cause the mother to take one third of the remainder; rather, she will take one-third of the original estate. Accordingly, this situation arises only when the father and a spouse are present with the mother, and other instances are not covered by it. The Imámís say: The mother is entitled to one-third of the original estate and not to a third of the remainder, irrespective of the presence of a spouse because the zahir (literal sense) of the Qur'anic verse: XXXX ("for his mother is one-third") proves that it is one third of what the decedent has left, and this statement has not been restricted to a situation where a spouse is not present. Further, the rules of the Shari'ah are not derived by reasoning or by applying the criterion of improbability.
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