Part 16

- The husband is entitled to three shares,

- The mother is entitled to two shares,

- The maternal sister receives nothing, as she cannot inherit in the presence of the daughter. This is according to the agreement of the majority of scholars, including those who approve of the scheme of Radd distribution, such as Abu Hanifah and Ahmad. As for those who do not approve of the Radd scheme of distribution, they divide the question into twelve shares:

- Six shares for the daughter,

- Two shares for the husband, and the twelfth share should be dedicated to the public treasury.

A daughter, maternal brother and a male cousin

Q: A woman died leaving behind a daughter, maternal brother and a male cousin. What is the share of each from the estate?

- The daughter is entitled to one-half,

- The male cousin is entitled to the remaining portion of the estate,

- The maternal brother receives nothing. However, it is preferable to give him some consideration if

he witnesses the distribution of the estate. His is according to the opinions of the Imams of the Four Juristic Schools.

A husband, father, mother, son and daughter

Q: A woman died leaving behind a husband, father, mother, son and daughter. After her death, her father died. leaving behind a father, sister, grandfather and a grandmother. Give each heir his share, bearing in mind the necessary changes after the death of the father?

- The husband is entitled to one-fourth,

- The two parents are entitled to two-sixths,

- The remaining portion of the estate goes to the son and daughter, one-third each. Then estate of the father is to be distributed as follows:

- One-sixth for the grandmother,

- The remaining portion of the estate goes to the father (i.e. the grandfather of the first deceased).

- The sister will get nothing, nor the grandfather, as both do not inherit in the presence of the father.

The distribution of the estate between the husband and the nephew

Q: A woman died leaving behind a husband and a nephew, what the share of each of them in her estate?

A: The husband is entitled to one-half of the estate. As for the nephew, according to one view, he is entitled to the remaining portion of the estate. This is the opinion of Imam Abu Hanifah and his companions, the famous opinion of Imam Ahmad, and a group of the Shafi’ companions.

The remaining portion of the estate is to be dedicated to the public treasury, which is the opinion of many of the companions of Imam Al-Shafi’i.

The origin of this question is a difference which occurred among the Muslim scholars concerning the inheritance of the uterine relatives who have no prescribed Qur’anic shares of inheritance, or according to the scheme of ta’sib. The opinion of Imam Malik, Imam Al-Shafi’i and famous narration after Imam Ahmad is that the deceased who leaves behind no heirs entitled to the prescribed Qur’anic shares, or inheritance by virtue of the scheme of ta’sib, his estate should go the public treasury.

This opinion of most earlier scholars, Imam Abu Hanifah, Imam Al-Thauri, Imam Ishaq, and Imam Ahmad bin Hanbal is that the remaining portion goes to the uterine relatives, as the Holy Qur’an says what means: “Bloodrelations among each other have closer personal ties, in the Book of Allah...” (33:6) The Prophet (peace be upon him) said: “The maternal uncle is the heir of the deceased who left behind no other relatives. He is to inherit his

estate (when he dies) and to ransom him (if he falls in captivity).” The daughters of one’s brother

Q: A man died leaving behind a wife, a full-sister and three daughters of his brother. Are the daughters of his brother entitled to inherit him? If yes, what are their shares of inheritance?

- The wife is entitled to one-fourth,

- The full-sister is entitled to one-half, the daughters of his son receive nothing, and the remaining one-fourth goes to the nearest male relative (asabah), otherwise it is to be returned to the full-sister, or be given to the public treasury.

Q: A man had suffered from a chronic disease for three months. He asked his wife to bring him a drink, but she did not bring him the drink immediately. He in turn said to her: “You are divorced thrice”. She still lived with him to serve him and take care of him. Twenty years later, he died. Is the divorce effective? Can his oath be broken on such-like case? Are the heirs rightful to disinherit his divorced wife?

A: The divorce is effective, so long as the husband is of sound mind and made it with fee will. However, the divorced wife is entitled to inherit, according to the opinion of Imam Malik, Imam Ahmad, Imam Abu Hanifah, and the earlier opinion of Imam AlI-Shafi’i. ‘Uthman bin ‘Affan (may Allah be pleased with him) applied this judgment in the case of the wife of ‘Abdul-Rahamn bin ‘Auf, whom the latter divorced in his death illness. ‘Uthman gave her the right to inherit from Ibn ‘Auf’s estate. She should count her ‘Iddah (waiting period) according to the longest of the two terms of ‘Iddah: the ‘Iddah for divorce or the ‘Iddah for the death of her husband. If the husband becomes insane, his divorce is ineffective.

Divorce before consummation of marriage

Q: A man divorced his wife once before consummating marriage with her, while his being in death illness. Can this be regarded as a contrivance on the part of the husband to disinherit his wife, thus be treated in a manner to spoil his plot and preserve to the wife her right of inheritance and the full amount of her dower? Or she is to be deprived from the inheritance, but be entitled to half of her dower?

A: According to the opinion of the majority of scholars, the woman divorced after the consummation of marriage shall be entitled to inherit from her husband. Thus passed the judgment of Caliph ‘Uthman bin ‘Affan (may Allah be

pleased with him) in the case of Tumadur bint Al-Asbagh, the wife of the Companion ‘Abdul-Rahman bin ‘Auf (may Allah be pleased with him), who divorced her in his death illness. This is also the opinion of Imam Malik, Imam Abu Hanifah and Imam AlI-Shafi’i in his earlier opinion.

As for the woman whose ‘Iddah ends, and the one who is divorced before the consummation of marriage, there are two opinions for the scholars in this, the more correct of which is that the wife will be entitled to inheritance in these cases also. This is the opinion of Imam Malik, the famous narration after Imam Ahmad and the opinion of Imam Al-Shafi’i. It was reported that the Caliph ‘Uthman bin ‘Affan (may Allah be pleased with him) judged that a woman in such case will be entitled to inheritance, even after the completion of her ‘Iddah. This judgment is based on the fact that a husband in his death illness is considered as legally interdicted, in the sense that his disposition will not be effective, should it badly affect the rights of the wife or any of the heirs.

A husband who divorces his wife before his death in a way to disinherit her

Q: A man divorced his wife in his death illness, three days before his death to disinherit her. Is this divorce effective? What is the share she is entitled to in his estate?

A: If divorce is revocable and the husband dies while the wife is in her ‘Iddah (waiting period), she is entitled to inheritance, according to the consensus of the Muslim scholars. If the divorce is irrevocable, the wife is also entitled to inheritance.

Thus judged the Caliph ‘Uthman bin ‘Affan (may Allah be pleased with him) in the case of Tumadur bint Al-Asbagh, the wife of the Companion ‘Abdul-Rahman bin ‘Auf, who divorced her thrice in his death illness. ‘Uthman (may Allah be pleased with him) consulted the Companions in her case and they told him that the wife in such case was entitled to inherit from her husband.

The disagreement on this question appeared during the rule of Ibn Al-Zubair (may Allah be pleased with him), who said: “In his place (meaning ‘Uthman) I would have not given her (the wife of ‘Abdul-Rahamn bin ‘Auf) a right to inherit.” However, consensus of the opinions of scholars had already been concluded before Ibn Al-Zubair became a mujtahid.

This was the opinion of the leading Successors and latter scholars. It is also the opinion of the people of Iraq, such as Imam Al-Thauri, Imam Abu Hanifah and_ his companions, the people of Median, such as Imam Malik and his companions, the jurists of Hadith, such as Imam Ahmad bin Hanbal and others. This also was the earlier opinion of Imam Al-Shafi’i. In his later opinion, he agreed with Ibn Al-Zubair. To them both, the divorce in the above

question is effective, as if it was the wife who died, the husband would have not inherited her. Just like this, the wife is not entitled to inherit him. Through divorce the woman became unlawful to her husband: he cannot have intercourse with her or seek pleasure with her. Thus, she becomes like a stranger woman to him, thus does not inherit.

The majority of Muslim scholars provided that the property of a man who is in his death illness is attached to the disposition of his heirs. He will not be entitled to dispose of it in a way to disinherit some of the heirs or prefer some of them to the others. He is not entitled to make a donation to a non-relative with more than one-third in his death illness.

In a hadith it was narrated: “Whoever cuts an inheritance, Allah will cut his inheritance in Paradise.” (a weak hadith). Concerning the ‘Iddah, there is a disagreement of opinions, but the soundest is that a woman divorced by her husband in his death illness should observe the waiting period according to the longest of the two terms (i.e. the term of ‘Iddah for a divorced woman or the ‘Iddah for a widow). Concerning her dower, there are two opinions, the preferred of which is that she is entitled to dower also.

Proposing to marry a woman already engaged to another person

Q: Is it permissible to a man to propose to a woman already engaged to another person?

A: It was narrated in the Two Sahihs after the Prophet (peace be upon him) that he said: “It is not lawful for a man to propose to a woman already engaged to his brother (Muslim) or to indulge in a bargain already concluded by his brother (Muslim). Thus the Four Juristic Schools agreed that it is unlawful to propose to a woman already engaged to another person.