Inheritance Share of Childless Widow from Fiqa-e-Jafariya

Inheritance Share of Childless Widow from Fiqa-e-Jafariya Case Laws Civil Law Civil Revision Inheritance Knowledge - Civil Law Lahore High Court Litigation & Arbitration Shia Fiqh Solutions - Civil Law Mr. Justice Ibad-Ur-Rehman Lodhi in his judgment has decided the issue regarding inheritance share of childless widow from Fiqa-e-Jafariya in Civil Revision No. 795-D of 2010.

1. The question emerged in this civil revision petition was that, as to whether an issueless widow, whose husband was follower of Fiqa-e-Jafariya, can competently claim her share from the inheritance of such deceased husband, in the background that, the present petitioner, whose husband-Mohammad Khan, expired leaving her as “widow”, was refused to get her share as inheritance from the leftover estate of her husband, mainly by Ghulam Jaffar and Noor Khan, real brothers of deceased Mohammad Khan with the plea that, under Shia Law of Inheritance, an issueless widow is not entitled to claim her share from the inheritance of her deceased husband.

2. In this case, the learned trial court, vide judgment and decree dated 16.12.2008, proceeded to pass a decree in favour of the petitioner in her suit filed against above-referred Ghulam Jaffar and Noor Khan, whereby, she was held entitled to have a share from the leftover estate of late Mohammad Khan, her husband, in her capacity of “widow”. In appeal, however, such findings were reversed, particularly, by setting aside the findings on Issue No.8, and the petitioner was deprived from any share, to be claimed as inheritance from her deceased husband, being childless widow. The appeal, filed by present respondents was allowed by the learned Additional District Judge, Chakwal, vide judgment and decree dated 08.06.2010; hence, this civil revision petition before this Court.

3. The learned counsel for the respondent has mainly based his contentions by opposing the petition on a pamphlet entitled “Beevi Ki Meeras” by Allama Mufti Syed Tyeb Agha Musavi Jazairi, who at one point of time, when West Pakistan Legislative Assembly, was going to promulgate some law making issueless Shia widows competent to claim their shares from the estate of their deceased husbands, seriously controverted and the Legislative Assembly was not allowed to promulgate any law, touching the Shia Community. In this respect, the learned counsel for the respondent has placed reliance on Syed Muhammad Munir (represented by 10 heirs) and another vs. Abu Nasar, Member (Judicial) Board of Revenue , Punjab, Lahore and 7 others (PLD 1972 Supreme Court 346), wherein, although the issue under discussion was dealt with in some details, but ultimately, it was ruled out that, it was not open to the Supreme Court in 1972 to change a settled rule of succession, having the force of Ijma behind it at such latter stage and it was held that, if a change is desired to be made, this work should be undertaken by the Legislature itself, after consulting the Shia Community. The Legislature, however, as noted herein-above was resisted to promulgate any law on the subject and no amendment was made by the West Pakistan Legislative Assembly simply, for the reason that, it was opposed by the Shia Community. The following from the said judgment would be relevant for the present purposes:

“It seems that this question was raised sometime back in the West Pakistan Legislative Assembly but no amendment was made as it was opposed by the Shia community. In that connection, one Allama Mufti Syed Tyeb Agha Musavi Jazairi seriously controverted the argument that the Shia rule was against the text of the Holy Qur’an by maintaining in a pamphlet entitled “Beevi Ki Meeras” that the proper translation of the Arabic text of the Holy Qur’an quoted earlier …

This translation, it will be noticed, does not tally with the other translation which we have given above; but the learned author has also maintained that the rule excluding a childless widow from inheriting agricultural lands is based on the true traditions of Imam Jafar Sadek, the founder of the Shia School. Indeed, the learned author has cited as his authorities for this rule Muhammad Bin Muslim, Biyah al-Zarti and Zajar Sayeb and also cites Abdul Malek as authority for the following tradition:–

“It is said that Imam Muhammad Baqir also summoned the Book of Hazrat Ali. This was brought by Imam Jafar Sadek and in it was found written that for widows there will not be any share in the lands of their deceased husbands. This was written in the hand of Hazrat Ali himself which was recognized by Imam Muhammad Baqir.
But even according to these traditions it will be noticed that no distinction has been made between “childless” and “childful” widows. The denial is to all widows and the reason given for this rule is that, since the widow does not belong to the family of the deceased husband, she is excluded from inheritance in the lands in order to avoid disputes which are likely to occur if she remarries and thus introduces an outsider in the family.

The Shias claim that the differences between Shias and Sunnis arise as a result of their different interpretations of some of the Quranic texts. The Sunnis, it is said, accept the interpretation given by the four Imams, namely; Imam Abu Hanifa, Imam Malek, Imam Ahmad and Imam Shafi’e whereas the Shias rely on the interpretation of the Holy Qur’an given by only the Ahl-e-Bait (Members of the Household of the Holy Prophet) beginning with Hazrat Ali and ending with the last Imam and, as such, they claim that their interpretation is likely to be more correct. No one, they maintain, could have known the Holy Qur’an better than Hazrat Ali himself who in his Book had recorded these interpretations according to the instructions of the Holy Prophet himself.

In view of this difference in the interpretation of the Quranic text itself, we feel that it would not be proper on our part at this stage to attempt to put our own construction in opposition to the express ruling of commentators of such great antiquity and high authority. To depart from a rule of succession which the Shia community has universally been following ever since the days of Imam Jafar Sadek, as evidenced by the unanimous opinions of the Shia Jurists on this point, would be wrong. It is not open to us to change a settled rule of succession, having the force of Ijma’ behind it at this late stage. If a change is desired to be made this work should be undertaken by the Legislature itself after consulting the Shia Community. We can only point out that the Urdu translation given by Allama Mufti Syed Tyeb Agha Musavi Jazairi does not tally with the English translation given by S.V. Mir Ahmed Ali, another eminent Shia scholar.”

4. Keeping in view the importance of the question, emerged in this petition and the fact that, a particular class is being deprived from a right of inheritance, and the fact that the Legislature, despite the fact that, it was expected from it even in 1972 to take such legislative measures in order to settle the issue, has not taken any such steps, a public notice was ordered to be issued on 05.05.2016, inviting any segment of life to render assistance to the Court in this regard, particularly, Shia Ulema.

In response, Allama Syed Iftikhar Hussain Naqvi Najafi, a sitting Member of Council of Islamic Ideology, Government of Pakistan, appeared and rendered assistance. He has also referred his own collection on this point titled “Kitab-e-Meeras”; Volume-3, Chapter-9 whereof deals with the matter of inheritance of husband or wife.

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