Kaneez Fatima is perhaps living the last years of her life. In a life spanning 75 years, a decade has been spent fighting for her dokhtari (Muslim women’s right to ancestral property). She does not know if she would win the battle in her remaining years, but Fatima insists that she will not give up until her last breath: “I will fight till I am alive, and after my death, my children will continue the fight. My fight is for the right given to me by Islam and the law of the land. I have only sought my share of my parents’ property. I asked for it repeatedly but to no avail. They (the parents) kept promising to give it ‘soon.’ When they did not offer anything, we went to court in 2013. It has been 10 years, and the case continues. They still promise to give my share, but have not coughed up even a penny.”
A native of Bihar’s Gaya district, Fatima admits that her husband left about 60 acres of land for the family, but insists that she still wants her share in the ancestral property. When asked if she would give her daughters their own share in turn, Fatima says “Of course, I will. I will divide my property among my sons and daughters while I am alive so that my daughters would not have to fight for their rights, like me.”
The court decides property matters among Muslims under the Mohammedan Law-Shariat Act 1937. Why do such cases reach the court? Advocate Momtaj Ahmed Khan responds, “Muslim women do not get their rightful share in ancestral property. When denied their share, the women are forced to approach the court as part of their struggle. I have witnessed at least a thousand cases like this. I have successfully helped them secure their rights in many cases. Such cases are heard by civil courts and decided under Mohammedan Law or Islamic law (Shariat). The government has accepted the Shariat as the law to decide on all matters of civil nature related to Muslims. These include marriages, divorces and other marital issues, matters related to Waqf or division of property.”
Dokhtari, a Persian word, is derived from “dokhtar,” which means daughter, and therefore signifies the share that belongs to the daughter. Shahin Parveen (name changed), a Ranchi resident, has been living in extreme poverty. She does not have a house of her own and depends on aid and odd jobs for the education of her three sons. She says, “Citing Dokhtari norms, I have repeatedly urged my mother to at least give me land enough to build just two rooms so that once my sons grow up and start earning, we can build a house there. However, she just remains silent.”
It is common in Muslim society to deny the daughter their right to ancestral property. Women like Shahin keep pleading, to no avail, while even elderly women like Fatima have to make the rounds of courts.
Muslim clerics say that hardly any daughter receives their share in ancestral property, and even those who receive something as per Muslim law, are given a lesser share than the men.
In March, Bushra Ali filed a special leave petition in the Supreme Court, which alleges that the division of family property according to the Shariat is discriminatory towards women, as they do not get equal rights as men. Bushra was given just half of the ancestral property share that her brothers inherited.
Does the Shariat law not grant equal rights on ancestral property to daughters and sons? In order to answer this question, we have to go into the details of how the property is divided under this law.
Imarat Shariah is a major Muslim organization that resolves the religious issues of Muslims in accordance with Islamic law. The group’s Mufti Mohammad Anwar Qasmi explains how the property is divided.
“Actually the share granted to women in ancestral property is given separately in their role as a daughter, sister or sometimes mother. The division is carried out through different formulas. The share due to the daughter is called dokhtari. Shariat says that sons and daughters both have a right to family property. Understand it thus, if a man dies leaving behind five sons, five daughters and a wife, then the property would be divided into eight parts, out of which one would be allotted to the widow. The remaining seven parts would be divided into 15 parts, 10 to be divided among the five sons with two parts each, while the daughters would be granted one part each. If the deceased had four wives, the one-eighth share will be divided equally among the four. On the other hand, if the man dies childless, his property will be divided into four parts, with one being given to the widow - or if there is more than one widow, the 25 per cent share will be divided among them - while the other three parts will be divided among the deceased’s siblings. In the case the siblings are dead, it will be divided among the nephews.”
Qasmi adds that if the deceased has only daughters, they would not be the sole heirs of the estate, as nephews would also have claims.
This makes it clear that under Shariat, ancestral property is not divided equally between daughters and sons. We can use an easy example to understand this: if a three-acre plot of the ancestral land is to be divided between two sons and two daughters, the sons would receive an acre each while the remaining one acre would be divided equally between the two daughters. The other important point is that if the deceased has only daughters, they would have to share the property with their male cousins.
This might appear strange at first glance. In recent years, you may also have heard clerics say that Islam grants equal rights to women.
So, if Islam claims to grant rights to women, why are they not granted equal rights to property, and given half of the sons’ share?
Qasmi responds, “See, the wife also gets a share from her in-laws, and she is also getting some property from her parents. Thus, she gets her rightful share, you cannot say that she is being denied rights. Secondly, as per Shariat, people receive a share according to the number of responsibilities they bear. It is the husband who bears the entire expenses for his wife, household, children’s education, parents, and siblings. Actually, the wife has no responsibility. She does not have separate expenses of her own. If someone argues that men and women should get an equal share, then the responsibilities listed in Shariat should also be divided equally. Shariat urges women to take it easy, as their needs and concerns are to be taken care of by their husbands, fathers or brothers."
It is precisely this difference that is objected to by activist Dr Rahila Parveen. “Children of the same parents are treated differently based on gender when the property is divided. On one hand, it is claimed that Islam grants rights to women, but at the time of division, they reduce their share and call it Islamic law. This is a contradiction. Also, if someone has just a daughter, the parents’ property should belong to her alone. That is the just approach. But no, her share would be snatched from her and partially handed to her cousin.”
Further, she adds, “In our society, girls are raised to believe that they have no right to family property, and therefore do not demand a share. But I insist that even where the daughter does not ask for it, parents should take the initiative to divide their wealth. However, the parents refuse even when the daughter asks for her rightful share. Our society is extremely orthodox. The parents’ responsibility is seen as limited to merely marrying off the daughter. That’s it! No responsibility, no relationship remains after that.”
