EDITORIAL: Inheritance is certainly a complicated subject, but for Muslims it has been clearly codified by Holy Quran, enforced and practiced by Holy Prophet (PBUH) in his life time and later developed by jurists and Ijma-ul-Umma. It is most scientific, methodical and well laid out which has stood the test of its perfect applicability over many centuries. No possible question could occur on the Muslim law of succession, much less by a jirga of Swat that had justified illegal distribution of land and upheld by Peshawar High Court. As the case came before the two-member bench of Supreme Court, Justice Qazi Faez Isa observed that neither the judiciary nor a jirga could be a substitute to the Islamic law of inheritance when Islam had already settled the matter 1,400 years ago. Earlier, the civil judge had dismissed the writ by the legal heirs on the grounds that the family had already settled the dispute over distribution of property through a 20-member jirga, and that the claim had been made 27 years after the death of the owner. Justice Isa particularly took notice of a document that carried the thumb impression of a seven-year-old child as a witness while a minor cannot be considered as a witness or awarded death penalty even for a crime as serious as murder. When the counsel pleaded that while deciding the matter the court should also take into account the “ground realities”, Justice Isa asked: what ground realities the pleader was talking about when on that very land the women were treated as lesser human beings? It was the so-called ground realities that the dictators paraded as justification for imposing martial law, and had it validated by the judges. The judge also asked: how come when in Saudi Arabia a property dispute would be decided in about a month, here in Pakistan such cases take 40 years?
The immutability of Islamic law of inheritance, the so-called ground realities that influence verdicts by jirgas and punchayats and inordinate delays in decisions by courts in property cases are the three critical matters of public importance in Pakistan that Justice Qazi Faez Isa talked about. The question of inheritance arises on the death of the owner of a property. No other faith or creed has answered the question who should inherit it and in what proportion in such a refined and elaborate way as the Islamic law of inheritance. Two cardinal principles govern Islamic law of inheritance: (1) the nearer in degree excludes the more remote and (2) double share to male than to female of parallel degree. The women are fundamental heirs, and to deprive them of their due share in inherited property by way of ‘marrying them with Quran’ or in line with ground realities is violation of Islamic law of inheritance. Even when jirgas, punchayats and elders’ commands may help resolve local disputes they are not entitled, in any way, to snatch from women what the Quran has stipulated for them. Therefore, the courts, in inheritance cases which involve the rights of legal heirs or parties inter se should make efforts to ensure that no legal heir is denied of his or her legal share in estate of the deceased concerned on a technical ground. But equally important is that the property cases should be decided as expeditiously as possible.
Copyright Business Recorder, 2021
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