4. An-Nisaa

People entitled to inheritance were briefly mentioned in verse 7 of the previous section which also carries details about some kinds of those so entitled. Also given there are their shares under different circumstances. More details in this connection shall be appearing later towards the end of this Surah. Remaining shares have been identified in ahadith. Muslim jurists have collected and codified all details of the rules of inheritance from the Qur'an and Hadith, giving it the status of a permanent science which, in Islamic terminology, is known as عِلمُ الفرایض ` Ilmul-Fara'id (the Science of the Laws of Inheritance).

The present verse (11) describes shares for children and parents along with some related aspects of inheritance.

INHERITANCE

Preliminary Rights on the Property of the deceased

According to the principles of Islamic law, the expenses incurred on the shrouding and burial of a Muslim deceased should be the first thing to be paid out of the property left behind by him. This should be done in accordance with Shari'ah avoiding the extremes of extravagance or stinginess. After that, his debts should be paid. If the amount of his debts is just equal to the property left by him, or even more than that, then, there will be no distribution of inheritance and no application of any will. And in case there remains some property after paying debts, or if there are no debts, then, subject to any will made by him which should not be a will of sin, then, this ‘will’ should be carried out to the extent of one-third of his remaining property. If someone makes a will for his entire property, it will not take effect. Such ‘will’ shall be considered valid for only one-third of his property. The fact is that making a will for more than one-third of the property is not appropriate; and if it is done with the intention of excluding inheritors, it becomes a sin.

Once the debts are paid and the will has been applied within one-third, the rest of the property should be distributed among the legal heirs, details of which are available in books of فرایض Faraid, the Muslim law of inheritance. Incidentally, if the deceased has made no will, then, following the payment of debts, the whole of the remaining property shall be distributed as inheritance.

The share of children

As it has appeared in the previous section, the distribution of inheritance shall be on the principle of الاقرب فالا قرب (the nearest, then, the nearest). Since the children of the deceased and his parents are the nearest, therefore, they inherit under all conditions. These rela-tions are the nearest and most direct of all relationships that human beings have, others being indirect. So, the Holy Qur'an takes up their shares first and beginning from the share of children, it says:

يُوصِيكُمُ اللَّـهُ فِي أَوْلَادِكُمْ ۖ لِلذَّكَرِ‌ مِثْلُ حَظِّ الْأُنثَيَيْنِ

Allah directs you concerning your children: for a male there is a share equal to that of two females.

This is a universal rule which entitles boys and girls both as recipients of inheritance, determines the shares of each and, at the same time, unfolds the operative rule in the event the deceased leaves behind both male and …

Upto this point, the text has described the shares of those competent to inherit, those who had the affinity of lineage and birth with the deceased. The present verse talks about some others who do have the competence but are not related by lineage. Instead, they are related by marriage. Details appear in the Commentary.

Commentary

The share of the husband and the wife

In this part of verse 12, the shares of the husband and the wife have been determined. The share of the husband has been mentioned first, perhaps to show its importance because after the death of the wife, the husband becomes part of some other family. If the wife dies at the home of her parents with her assets too being there, her people may avoid giving the share due to the husband. By describing the right of the husband first, the Holy Qur'an has possibly condemned this practice. To explain in details, it means that in case the deceased wife has left no child behind, the husband will get, after the payment of debt and execution of will, one-half of the total property left by the deceased. Out of the remaining half, other heirs, such as the parents of the deceased, her brothers and sisters, will get their shares according to rules set for them.

If the deceased wife has left children - one or two or more, whether male or female, either from the same husband, or from some previous husband, then, the present husband will get, after the payment of debt and execution of will, one-fourth of the total property left by the deceased woman. Shares from the remaining three-fourth will go to other heirs.

If it is the husband who dies leaving his wife behind and leaves no children, the wife will get, after the payment of debt and the execution of will, one-fourth of the total property left by the deceased. And if he has left a child - either from the present wife or from some other wife - she will get, after the settlement of debt and will, a one-eight share. And if the deceased husband had more than one wife, all alive at the time of his death, the attending details shall remain the same, however, the share prescribed for the 'wife' (i.e. 1/4 or 1/8) shall be divided equally between all the wives. In other words, every woman will not get a share of one-fourth and one-eighth. Instead, all wives will share the one-fourth or one-eight equally. Then, under both these conditions, the inheritance which remains after settling the share of the husband/ wife will be distributed among other heirs left by them.

Ruling

It must be ascertained before the' distribution of inheritance that the مہر mahr (dower) of the wife has been paid. If the deceased has not paid the mahr of his wife, this will be taken as debt, and will have to be paid first from the total property, like all other debts. The inheri-tance will be distributed only after that. It should be noted that the woman, after having received her mahr, shall go on to receive her fixed share in the inheritance as a competent inheritor. And in case, the property left by the deceased is not more than the value, of dower, and nothing remains after it is paid, the entire property will be given to the woman against her debt of mahr very much …

Commentary

It is the consistent style of the Holy Qur'an that whenever it has described the beliefs and injunctions prescribed by Allah, it is followed by promises of reward or warnings of punishment.

This is what has been done here in these two verses after mentioning the rules of inheritance. The purpose is to stress upon Muslims to obey these injunctions.

SOME ADDITIONAL RULES OF INHERITANCE

A Muslim cannot inherit from a Kafir

Although, the distribution of inheritance is based on nearness of kinship, but there are certain exceptions to this rule. First of all, the deceased and his inheritor should not be from two different religions. Therefore, a Muslim will not inherit from any kafir and no kafir from a Muslim, no matter what lineal relationship they may have between them. The Holy Prophet ﷺ said: لا یرِثُ المسلِم الکافرِ ولا الکاففرُ المَسلم (مشکوٰۃ ص 263)

(The Muslim does not inherit the kafir, nor does the kafir (inherit) the Muslim.) (Mishkat, p. 263)

This rule relates to a situation when a person is a Muslim or a kafir by birth. But, if a person who was first a Muslim, turned away from Islam and became an apostate and died or was killed in that state of apostasy, all his earnings while being a Muslim shall go to his Muslim inheritors, and whatever he may have earned after his apostasy shall be deposited in the Bayt al-Mal (Public Exchequer).

But, if a woman becomes an apostate, all her property, whether acquired during her days of Islam or during apostasy, shall go to her Muslim inheritors. However, an apostate as such, man or woman, shall not inherit from any Muslim nor from any other apostate.

The inheritance of the killer

If someone kills a person from whose property he was entitled to receive a share, he shall no longer remain his inheritor and shall be excluded from the inheritance of the person whom he has killed.

The Holy Prophet ﷺ said: القاتلُ لا یرِثُ (مشکوٰۃ ص 263) (The killer shall not inherit.) (Mishkat, p. 263) However, some forms of qatl al-khata' (accidental or unintended homicide) are excepted from this rule, details of which appear in books of Fiqh.

The inheritance of the unborn child

If a person leaves some children and his wife is pregnant, then this unborn child will also be counted among inheritors. But, since it is either difficult or uncertain to determine the sex or the number of children in the mother's womb, it would be appropriate to postpone the distribution of inheritance until the birth of the child. If, the distribution of property has to be made necessarily, then, as an expedient measure, one must suppose two situations in terms of a boy or a girl and distribute to the inheritors the lesser portion coming out of the two situations. The remaining should be held for the child-to-be-born.

The inheritance of a woman in the period of ` iddah عِدَّت

In case a person divorces his wife and the divorce is revocable, and this person dies before the revocation of the divorce and the expiry of his wife's waiting period, then this woman will get a share in the inheritance, for the marriage is in force.

If a person divorces his wife during his sickness culminating in his death, even though the …

Commentary

It is the consistent style of the Holy Qur'an that whenever it has described the beliefs and injunctions prescribed by Allah, it is followed by promises of reward or warnings of punishment.

This is what has been done here in these two verses after mentioning the rules of inheritance. The purpose is to stress upon Muslims to obey these injunctions.

SOME ADDITIONAL RULES OF INHERITANCE

A Muslim cannot inherit from a Kafir

Although, the distribution of inheritance is based on nearness of kinship, but there are certain exceptions to this rule. First of all, the deceased and his inheritor should not be from two different religions. Therefore, a Muslim will not inherit from any kafir and no kafir from a Muslim, no matter what lineal relationship they may have between them. The Holy Prophet ﷺ said: لا یرِثُ المسلِم الکافرِ ولا الکاففرُ المَسلم (مشکوٰۃ ص 263)

(The Muslim does not inherit the kafir, nor does the kafir (inherit) the Muslim.) (Mishkat, p. 263)

This rule relates to a situation when a person is a Muslim or a kafir by birth. But, if a person who was first a Muslim, turned away from Islam and became an apostate and died or was killed in that state of apostasy, all his earnings while being a Muslim shall go to his Muslim inheritors, and whatever he may have earned after his apostasy shall be deposited in the Bayt al-Mal (Public Exchequer).

But, if a woman becomes an apostate, all her property, whether acquired during her days of Islam or during apostasy, shall go to her Muslim inheritors. However, an apostate as such, man or woman, shall not inherit from any Muslim nor from any other apostate.

The inheritance of the killer

If someone kills a person from whose property he was entitled to receive a share, he shall no longer remain his inheritor and shall be excluded from the inheritance of the person whom he has killed.

The Holy Prophet ﷺ said: القاتلُ لا یرِثُ (مشکوٰۃ ص 263) (The killer shall not inherit.) (Mishkat, p. 263) However, some forms of qatl al-khata' (accidental or unintended homicide) are excepted from this rule, details of which appear in books of Fiqh.

The inheritance of the unborn child

If a person leaves some children and his wife is pregnant, then this unborn child will also be counted among inheritors. But, since it is either difficult or uncertain to determine the sex or the number of children in the mother's womb, it would be appropriate to postpone the distribution of inheritance until the birth of the child. If, the distribution of property has to be made necessarily, then, as an expedient measure, one must suppose two situations in terms of a boy or a girl and distribute to the inheritors the lesser portion coming out of the two situations. The remaining should be held for the child-to-be-born.

The inheritance of a woman in the period of ` iddah عِدَّت

In case a person divorces his wife and the divorce is revocable, and this person dies before the revocation of the divorce and the expiry of his wife's waiting period, then this woman will get a share in the inheritance, for the marriage is in force.

If a person divorces his wife during his sickness culminating in his death, even though the …

Sequence

In previous verses, the objective was to correct the malpractices of the days of ignorance committed about orphans and inheritances. The people of jahiliyyah also used to subject women to cruel treatment. They had certain other evil customs also, such as marrying prohibited women.

The present verses are meant to correct such customs, however, it has been permitted that if a woman commits a proven guilt, she can be punished. This subject of correcting the evil customs will continue through the next two or three sections.

Commentary

These verses prescribe punishments for men and women who commit zina, (adultery or fornication). If this comes from women, the first verse requires the presence of four male witnesses to prove it. It means that the executive authority before which the case goes should call for four qualified witnesses to prove zinc. Then, it is necessary that all the witnesses are male. The testimony of women in this connection is not valid.

Since the guilt of zina is of extremely grave nature which not only violates honour and modesty, but also brings bad name to the family, Islam has taken very strict attitude while setting the standard of evidence to prove this guilt. Firstly, there came the condition that witnesses have to be men; the evidence of women was not considered valid. Secondly, the number of the required witnesses is raised to four. As obvious, this condition is very hard to meet. It is something which can very seldom take place. This strict approach was taken so that the husband of the woman, his mother or (another) wife or sister do not level undue accusations against her out of personal spite. It was also to check that other ill-wishing people do not get any chance to release their personal hostility by accusing her falsely. Testimony to zina by less than four individuals renders their evidence invalid in which case the complainant and the witnesses may all be charged as liars and the Hadd of Qadhf (punishment for false accusation) becomes operative against them for having falsely accused a Muslim.

It has been very clearly said in Surah An-Nur:

لَّوْلَا جَاءُوا عَلَيْهِ بِأَرْ‌بَعَةِ شُهَدَاءَ ۚ فَإِذْ لَمْ يَأْتُوا بِالشُّهَدَاءِ فَأُولَـٰئِكَ عِندَ اللَّـهِ هُمُ الْكَاذِبُونَ ﴿13﴾

which means that those who cannot produce four witnesses are liars.

Some revered elders, describing the wisdom behind the need to have four witnesses, have said that since this case involves two ; individuals, man and woman, this one single case comes, so to speak, under the purview of one rule for two cases. Since each case requires two witnesses, so four witnesses will be necessary in this case.

Towards the end of the verse, it is said that should they both repent and correct themselves, then, leave them. It means that, in case they have repented after punishment, they should not be disgraced and punished any more. It does not mean that the act of repentance has absolved them of the punishment because this repentance has been mentioned after punishment as obvious from the ramification of the letter fa' (literally, "then, turn away", which has been left as under-stood in the present translation). However, in case …

Homosexuality

The above discussion was based on the assumptions that both verses 15 and 16 relate to the fornication or adultery committed between men and women. However, some commentators of the Holy Qur'an, including Qadi Thanaullah Panipati, are of the view that verse 16 refers to homosexual act committed between two males. Verse 16 is translated as follows:

"And those two of you who commit it (the shameful act), torture them both".

Here the Arabic word used for 'those two of you is a masculine pronoun which presumes males on both sides. On this basis, these commentators have opined that this verse relates to two males committing unnatural shameful act, i.e. homosexuality. The commentators, who take both verses as referring to fornication or adultery, refute this argument on the principle that in general usage masculine expressions include feminine also. Be that as it may, the possibility of a reference to homosexuality in this verse cannot be ruled out. Therefore, it is pertinent here to give some details about the severe prohibition of homosexuality. Here are some Traditions of the Holy Prophet ﷺ and his noble Companions ؓ on this subject:

عن ابی ہریرہ ؓ ان رسول اللہ ﷺ قال : لعن اللہ سبعۃ من خلقہ من فوق سبع سمٰوتہ وردّد اللعنۃ علی واحد منھم ثلاثاً و لعن کل واحد منھم لعنۃ تکفیہ، قال : ملعون من عمل عمل قوم لوط، ملعون من عمل عمل قوم لوط ملعون من عمل عمل قوم لوط ، (الحدیث)

As narrated by Sayyidna Abu Hurairah ؓ the Holy Prophet ﷺ said: "Allah has cursed seven types of his creatures from above the seven heavens. He has cursed one of them thrice, while has cursed the others one time which is enough for them. (About the one whom He has cursed thrice) He has said, "Cursed is he who did what the people of لوط (علیہ السلام) Lot did. Cursed is he who did what the people of Lot did. Cursed is he who did what the people of Lot did." (At-Targhib wat-Tarhib)

عن ابی ہریرہ ؓ ان رسول اللہ ﷺ قال : أربعۃ یصبحون فی غضب اللہ و یمسون فی سخط اللہ، قُلتُ : مَن ھم یا رسول اللہ ؟ قال : المشتبھون من الرجال بالنساء والمتشبھات من النساء بالرجال، والذی یأتی البھیمۃ ، والذی یأتی الرجال۔

Sayyidna Abu Hurairah ؓ عنہ reports that the Holy Prophet ﷺ said: "Four types of people are, when they begin their day, under the wrath of Allah and when they reach their evenings they are under the rage of Allah." I asked: "Who are they, 0 Messenger of Allah?" He said: "Men who imitate women and women who imitate men and he who goes unto animals and he who goes unto men".

و عن انم عباس ؓ قال : قال رسول اللہ ﷺ ـ من وجدتموہ یعمل عمل قوم لوط فاقتلوا الفاعل و المفعول بہ

As narrated by Sayyidna Ibn ` Abbas. ؓ the Holy Prophet ﷺ said: "If you find someone doing what the people of Lot did, kill both the doer and the one with whom it is done. (op. cit.)

In At-Targhib wat-Tarhib cited above, Hafiz Zaki' al-Din has said that four caliphs, Sayyidna Abu Bakr, Sayyidna ` Ali, Sayyidna ` Abdullah ibn Zubayr and Hisham ibn ` Abdul-Malik ؓ had condemned those guilty of sodomy to the fire. In this connection, he has also related, on the authority of Muhammad ibn Al-Munkadir, an event to the effect that Sayyidna Khalid ibn Walid ؓ wrote a letter to Sayyidna Abu Bakr ؓ reporting that there …

Repentance was mentioned in the previous verse. Now, given in the present two verses are conditions under which repentance is or is not accepted.

Commentary

Repentance from a deliberate sin

At this point, it should be noted that the Holy Qur'an has used the words "in ignorance" which apparently gives an impression that the repentance may be accepted when a sin is committed unintentionally and unknowingly. But if it is committed deliberately, it will not be acceptable. However, according to the explanation of this verse given by the noble Companions, may Allah be pleased with them all, the word, جھالہ 'jahalah" (ignorance) here does not mean that a sinning person is not aware of a sin as sin, or has no intention or volition to commit a sin. Instead, it means that it was the insensitivity and heedlessness of a person towards the evil end of sin and its ultimate punishment which became the cause of his audacity to venture into sin, even though he knew a sin as sin, and had approached it with intention and volition as well.

In other words, the word, 'jahalah" or ignorance used here is in the sense of carelessness or stupidity. This is supported by an evidence in Surah Yusuf. Sayyidna Yusuf (علیہ السلام) (Joseph) had said to his brothers: هَلْ عَلِمْتُم مَّا فَعَلْتُم بِيُوسُفَ وَأَخِيهِ إِذْ أَنتُمْ جَاهِلُونَ ﴿89﴾. Here the brothers have been called, ' jahilun", the ignorant ones, although what they did was not the outcome of any error or forgetfulness but they had done that knowingly and with full deliberation. Yet, it is because of their heedlessness towards the evil end of their act that they have been called 'jahil" (ignorant).

Abu al-` Aliyah and Qatadah ؓ report that the noble Companions, may Allah be pleased with them all, agreed that کل ذنب اصابہ عبد فھو جھالۃ عمداً کان أو غیرہ ، that is, 'any sin committed by a servant of Allah is, anyway, an act of ignorance, be it deliberate or otherwise.'

The master of exegesis, Mujahid said: کل عامل بمعصیۃ اللہ فھو جاھل حین عملھا "Everyone who is doing anything in disobedience to Allah is, for that matter, ignorant while doing it," even though, on the outside, he may appear to be a person of great learning. (Ibn Kathir)

In his Tafsir, al-Bahr al-Muhit, Abu Hayyan has said: This is just like what has been reported in a hadith لا یزنی الزانی وھو مؤمن ، that is, 'a person who commits zina (adultery) will not be doing so while in a state of being a true Muslim.' It means that the time when he succumbed to the temptation of this evil act, that was the time when he was flung far off from the demand of his faith. For this reason, Sayyidna ` Ikrimah ؓ said : امور الدنیا کلّھا جھالۃ that is, 'everything one does in this mortal world - outside the framework of obedience to Allah - is ignorance.' The logic is very obvious since the person disobeying Allah is preferring short-lived pleasures over those everlasting; and, anyone who takes the punishment which will last forever and ever in exchange for this short-lived series of pleasures cannot be called rational, sensible or smart. Such a person would be universally termed as ignorant, even if he knows the evil of his act and has all the intention and …

Repentance was mentioned in the previous verse. Now, given in the present two verses are conditions under which repentance is or is not accepted.

Commentary

Repentance from a deliberate sin

At this point, it should be noted that the Holy Qur'an has used the words "in ignorance" which apparently gives an impression that the repentance may be accepted when a sin is committed unintentionally and unknowingly. But if it is committed deliberately, it will not be acceptable. However, according to the explanation of this verse given by the noble Companions, may Allah be pleased with them all, the word, جھالہ 'jahalah" (ignorance) here does not mean that a sinning person is not aware of a sin as sin, or has no intention or volition to commit a sin. Instead, it means that it was the insensitivity and heedlessness of a person towards the evil end of sin and its ultimate punishment which became the cause of his audacity to venture into sin, even though he knew a sin as sin, and had approached it with intention and volition as well.

In other words, the word, 'jahalah" or ignorance used here is in the sense of carelessness or stupidity. This is supported by an evidence in Surah Yusuf. Sayyidna Yusuf (علیہ السلام) (Joseph) had said to his brothers: هَلْ عَلِمْتُم مَّا فَعَلْتُم بِيُوسُفَ وَأَخِيهِ إِذْ أَنتُمْ جَاهِلُونَ ﴿89﴾. Here the brothers have been called, ' jahilun", the ignorant ones, although what they did was not the outcome of any error or forgetfulness but they had done that knowingly and with full deliberation. Yet, it is because of their heedlessness towards the evil end of their act that they have been called 'jahil" (ignorant).

Abu al-` Aliyah and Qatadah ؓ report that the noble Companions, may Allah be pleased with them all, agreed that کل ذنب اصابہ عبد فھو جھالۃ عمداً کان أو غیرہ ، that is, 'any sin committed by a servant of Allah is, anyway, an act of ignorance, be it deliberate or otherwise.'

The master of exegesis, Mujahid said: کل عامل بمعصیۃ اللہ فھو جاھل حین عملھا "Everyone who is doing anything in disobedience to Allah is, for that matter, ignorant while doing it," even though, on the outside, he may appear to be a person of great learning. (Ibn Kathir)

In his Tafsir, al-Bahr al-Muhit, Abu Hayyan has said: This is just like what has been reported in a hadith لا یزنی الزانی وھو مؤمن ، that is, 'a person who commits zina (adultery) will not be doing so while in a state of being a true Muslim.' It means that the time when he succumbed to the temptation of this evil act, that was the time when he was flung far off from the demand of his faith. For this reason, Sayyidna ` Ikrimah ؓ said : امور الدنیا کلّھا جھالۃ that is, 'everything one does in this mortal world - outside the framework of obedience to Allah - is ignorance.' The logic is very obvious since the person disobeying Allah is preferring short-lived pleasures over those everlasting; and, anyone who takes the punishment which will last forever and ever in exchange for this short-lived series of pleasures cannot be called rational, sensible or smart. Such a person would be universally termed as ignorant, even if he knows the evil of his act and has all the intention and …

Sequence of verses

Repentance was mentioned in the previous verses in proportion to the related requirement of the text. Before this, there was a series of injunctions pertaining to women. The present verses too carry some more imperatives against the excesses suffered by women at the hands of their husbands, even heirs. Details appear in the Commentary.

The aim is to correct such social disorders. It may be noted that husbands have been particularly addressed in وَعَاشِرُ‌وهُنَّ (live with them). Verses 20 and 21 conclude the subject.

Commentary

Women before Islam: Eradication of Injustices

Given in these three verses are steps taken to eliminate injustices to which women were commonly subjected:

1. The most glaring of these was that men used to act as owners of the life and property of women, so much so, that a woman taken in marriage was passed on as a piece of property after her husband's death, on to his heirs. They were considered as the new owners and inheritors of the property, plus the wife. They could, if they wished to, marry her or give her in marriage to somebody else against payment. The son of the husband from another wife could himself marry her after the death of his father. When a living human being has been taken as an article of ownership, what would have happened to the normal property is all too obvious. This one basic social ill became the cause of hundreds of other unjust practices against women, some of which are pointed out below:

(a) If a woman received some property in inheritance or some gift from her parents, the poor thing stayed deprived of it. Everything received in her name was devoured by men at her husband's home.

(b) If, somehow the woman did come in possession of her share of the property, men would prevent her from remarrying so that she could not take her share out of the house - they wanted her to die right there where she was, leaving her property which they could possess after her.

(c) In some places there was the practice that if the husband did not like his wife because of whimsical factors and not because of any shortcoming of the wife, then, while he skipped relating to her as his wife, did not get rid of her by giving her a divorce. This was to harass her to the limit that she was forced to give him back the jewellery and dower money he had given her; or, if he had not yet given these as due, he expected that she would forgo her claim before she could hope to be released. There were situations when the husband, despite having divorced her would not let the divorced wife remarry so that she breaks up and returns to him the amount of dower he had given her, or forgoes the dower still unpaid.

(d) On occasions, following the death of her husband, his heirs would not let the widow remarry. They would do so either to satisfy their false sense of prestige, or to let her go only after they get some-thing for themselves in the deal.

As said earlier, all these injustices were perpetrated on the basis of the central assumption that man owned not only the property but also the very life of the woman. The Holy Qur'an struck at the very root of this evil which produced other injustices and openly …