| Surah an-Nisa, 7-10
"For men there is a share in what the parents and the nearest of kin have left. And for women there is a share in what the parents and the nearest of kin have left, be it small or large - a determined share. [7]
And if the kins and the orphans and the needy are present at the time of distribution, give them some of it and speak to them in fair words. [8]
And those people should be fearful who, if they leave behind some helpless children, would remain anxious for them. So, they should fear Allah and say what is right." [9]
Surely, those who eat up the property of the orphans unjustly, they only eat fire into their bellies, and soon they shall enter a blazing Hell."[10] (4:7-10)
Right from the opening of Surah Al-Nisa', the theme of universal human rights, particularly those relating to family life, has been appearing regularly. Verses before those dealt with the rights of orphans. The four verses here also take up particular rights of women and orphans which relate to inheritance.
The first verse (7) refutes the custom of Jahiliyyah under which women were just not allowed to inherit. The verse declares their entitlement to their share as fixed by Islamic law and strictly forbids any attempt to decrease their due right. Since the subject concerned those who had a determined share in inheritance, and it is not uncommon that when such distribution is being made, some persons from among the poor and the orphans do make their appearance on the occasion, therefore the second verse (8) lays down the rule that they should be treated benignly. But, this command is not obligatory; it is, rather, commendatory.
The third and fourth verses (9,10) also emphasize the importance of injunctions relating to orphans.
Commentary
The Right To Inherit From Parents And Other Nearest Of Kin
Before Islam, orphans and women, the weaker links in the human chain, had been victims of all sorts of injustice. To begin with, none of their rights were recognized as such. Even if one of these was conceded, who could wrest it from men and hope to hold it safe? Such power and authority did not exist.
The breakthrough came when Islam championed their cause, legalized their rights and instituted safeguards to see that these stay secure against infringements. All this happened in the background when nations around the world had allowed these two weaker units of human society to remain deprived of their natural and obligatory rights. Such was the state of the law of inheritance.
The pre-Islam Arabs seemed to have lived by the the very principle that the one deserving of inheritance is the one who rides a horse, fights against enemies and collects battle spoils. (Ruh al-Ma'ani), v. 4, p. 21). As quite obvious, women and children could not live by this principle. So, according to their principle of inheritance, only a young and adult boy could become the inheritor. A girl was absolutely out of consideration for this purpose, irrespective of whether she was major or minor. And a boy too, if minor and immature, would not be deserving of inheritance.
There was an incident during the blessed time of the Holy Prophet Sallallahu 'Alayhi Wasallam: Peace be upon him when a Companion, Sayyidna Aws ibn Thabit Radhi-Allahu Anh: Allah be pleased with him died. He left behind two daughters, a minor boy and his wife as the inheritors. But, very much like the old Arab custom, two of his cousins from the father's side came and took the whole property in their possession and just gave nothing to anyone from among the children and wife of their deceased brother. This may have been so because, according to their customary practice, a woman was absolutely out of the pale of inheritors, major or minor. This conveniently ruled out the wife and the two daughters. As far as the boy was concerned, he was a minor and, therefore, he too was excluded from inheriting anything. As a result, the two paternal cousins became the inheritors of the whole property.
Inspiteof what happened, the widow of Sayyidna Aws ibn Thabit Radhi-Allahu Anh: Allah be pleased with him still wanted that these cousins who had taken possession of the entire property left by her deceased husband might as well marry the two orphaned daughters so that she is relieved of the concern for their marriage. But, as they did not accept this proposal too, she went to the Holy Prophet Sallallahu 'Alayhi Wasallam: Peace be upon him and narrated to him her sad story and explained the destitution of her children. Since, by that time, the 'verse of inheritance' was yet to be revealed in the Holy Qur'an, the noble Prophet Sallallahu 'Alayhi Wasallam: Peace be upon him withheld his response. His heart was at peace; he was confident that this unjust practice will be removed through Divine revelation. Thereupon, the following verse was revealed:
"For men there is a share in what the parents and the nearest of kin have left. And for women there is a share in what the parents and the nearest of kin have left, be it small or large -a determined share."
After that came the second verse of inheritance which contains the details of shares. The second section of this Surah comprises these details. So, the Holy Prophet Sallallahu 'Alayhi Wasallam: Peace be upon him followed the injunctions of the Qur'an, gave the wife the one-eight of the total inheritance and distributed the rest of the property over the son and the daughters of the deceased in a way that the half of it went to the boy and the remaining half was shared equally by the two girls; and the cousins, since they were not the nearest of kin as compared to children, were excluded. (Ruh al-Ma'ani)
The Rule Of Inheritance
This verse lays down the rule relating to the law of inheritance as a corollary to some of its injunctions, which is: (... in what the and the nearest of kin have left.) The two words, 'al-walidan (the parents) and 'al-aqrabun' (the nearest of kin) spell out two basic principles of inheritance. The first one is the bond of birth which exists between children and their father and mother and which has been described through 'al-walidan.' The second one is the general kinship which is the sense of the word, 'al-aqrabun'. According to the correct interpretation, the word, 'al-aqrabun covers all kinds of family relationships. This may be the mutual bond of birth as in children and their parents; or, it may be of the other kind as in general family relationships; or, these may be relations established through marital connection.
The word, 'al-aqrabun' covers all, but parents were set apart specially because of their importance. Then, this word has also established another principle of inheritance, that is, the mere fact of kinship is not enough for a claim on inheritance. Rather, it is necessary that the heir is nearest in kinship, for - if the degree of nearness or closeness were not made the standard condition - the inheritance of every deceased person would have to be, of necessity, distributed over the entire human population of this wide world. The reason is simple to understand because everyone is the offspring of one father and mother, Adam and Eve, peace be on them. Be it close or not so close, there does exist some sort of mutual relationship in everyone. When it comes to distribution of inheritance, it is, to begin with, beyond the realm of possibility.
However, speaking academically, if such an arrangement was somehow made, the resulting distribution of property would be something like one insignificant particle for each which will be no good for anyone. So, it was necessary that, given the pivotal position of kinship in the matter of inheritance, the principle should be: If choice has to be made from a collection of different relatives, then, the nearest of kin should be preferred over the farther ones and, in the presence of the nearest, the farthest should not be given a share. However, if there are relatives who are all declared to be the nearest at the same time, even if the nature of nearness in them be different, then, all of them will deserve a share in the inheritance as the father and mother alongwith children, or wife etc., for they all are the nearest, though the nature of nearness differs.
In addition to that, this very word, 'al-aqrabun' establishes that the way men are sharers in inheritance, so are women and children, who too cannot be deprived of this right, for kinship of children, parents or any others, is the same in a boy and girl as far as the fact of being related is concerned. A boy is born to his parents and so is a girl, who is born to them. When the right to inherit depends on being related, there is no sense in depriving a small child or a girl.
Another point about the style of the Holy Qur'an is worth noticing here. Instead of mentioning the entitlement of women in a separate sentence, the Holy Qur'an could have easily merged it with the entitlement of men in a single sentence, by saying, "For men and women both there is a share...." But the Holy Qur'an has elected to mention the entitlement of both sexes in two separate independent sentences, even though it seems to be a repetition. This is to emphasize the fact that the right of women in inheritance is quite independent and is as important as the right of men.
Furthermore, this very word, 'al-aqrabun' also tells us that the distribution of property left behind is not based on the criterion of need; it is, rather, based on the criterion of nearness in kinship. Therefore, it is not necessary that the one more needy among the relatives should be the one more deserving of a share in inheritance. On the contrary, the one nearest in kinship to the deceased will be the one more deserving of a share in the inheritance as compared to the farther - even though, the farther may be poorer and more needy. If we set aside the principle of nearness in kinship and use the need or the beneficial effects for some relatives as the criterion, it can neither turn into a rule nor can it take the form of a settled and solid law, because any criterion, other than nearness in kinship, will inevitably be temporary as based on opinion because poverty and need or usefulness are not permanent. Conditions change. Levels change. Under such conditions, there will appear a host of claimants and those responsible for settlement would have a hard time in arriving at decision.
The problem of an orphaned grandson's inheritance
If this Qur'anic principle is understood clearly, the problem of an orphaned grandson's inheritance - which has been made to look like a disputed issue for no sound reason - resolves itself automatically on the basis of a categorical decision. In other words, if an orphaned grandson is more needy as compared to the son, but, in accordance with the law of 'al-aqrabun' (the nearest in kinship), he cannot claim a share in the inheritance because he is not 'the nearest' in the presence of the son, other arrangements have been made to take care of his needs. One such arrangement appears in the next verse.
This religious position has been opposed by none but some of the contemporary, westernized modernists. Other than these, the entire Muslim Ummah has been holding the belief, as clarified by the Qur'an and the Hadith, that the grandson will not inherit in the presence of a son of the deceased, irrespective of whether his father is dead or alive.
The right of inheritance is operative in everything owned by the deceased
The phrase (be it small or large) in this verse corrects another custom practiced by some ignorant people where some things or properties were assigned to special inheritors. For example, a horse or some weapon like a sword could only be inherited by young males as a matter of right. Others were deprived of these. The instruction given by the Holy Qur'an makes it very clear that in everything under the ownership of the deceased, be it big or small, there is a standing right of all inheritors. It is not permissible for any inheritor to keep anything special for himself before the total inheritance has been formally distributed according to rules.
Fixed shares in inheritance have been determined by Allah
The last phrase (a determined share) in verse 7 is to stress that different shares fixed for different inheritors in the Holy Qur'an have been determined as such by Allah Almighty. Nobody has any right to add or delete or change or transpose any of these by personal opinion or analogical deduction.
Inheritance is a compulsory transfer of ownership
This particular word, (mafrudan: determined) throws light on yet another principle, that is, the ownership which passes on to inheritors through the law of inheritance is automatic and compulsory. It does not require the acceptance or consent of the inheritor nor is it necessary that he be satisfied with it. The fact is that, even if he were to make a clear declaration that he will not take his share, still then, he is the owner of his share in the sight of the Shari'ah. But, if he does not want to keep his share, he may, after having become the owner, gift it to somebody or sell it or distribute it, in accordance with the rules of Shari'ah.
A sign of goodwill to other relatives
It is likely that there are some relatives of the deceased who cannot receive a share from his inheritance according to the rules of Shari'ah. At the same time, it is obvious that everyone does not know the details of the system of share distribution. Generally, every relative would like to have some share out of the inheritance. Therefore, relatives who have been excluded under the provisions of the Islamic law of inheritance may feel disappointed at the time of the distribution of inheritance, specially so when they are physically present at that time, and more so when there are some orphans and poor and needy among them. A scenario in which other relatives are walking away with their respective shares while they simply look on is terrible.
Now look at the beauty and delicacy of the Qur'anic arrangement of things. On the one hand, there is the just rule offered by the Qur'an itself - that the nearer in kinship shall exclude the farther. On the other hand, there is that wonderful concern for the disappointment of 'the excluded farther'. Therefore, a regular verse (8) has been devoted to carry the necessary instruction as to how this situation will be handled.
It means that distant relatives, orphans and the needy who are to be excluded from having a share in the inheritance and who, nevertheless, show up at the time of its distribution, then, it is the moral obligation of those who get a share in the inheritance that they voluntarily give them some of it, which would become an act of charity for them, and certainly, a modality of reward from Allah. At a time like this, when wealth and property are coming to them, without their having made any effort, simply through the mercy of Allah Almighty - then, their own hearts should beat with the urge to give whatever they can, in the way of Allah, an example of which appears in another verse (Al-An'am: 6:141) cited below:
"Eat the fruit of your farm when it bears fruit and on the day of its harvesting give away the due (of the poor and the needy) on it."
In short, the fact that distant kindred, orphans and the needy assemble at the time of the distribution of inheritance should be no cause of irritation. On the contrary one should be grateful to Allah that He has bestowed on him something he did not work for, therefore, it will be good to give away a part from it as a token of gratitude. In fact, one should take it as a God-sent opportunity to let these people have a little from what they have received which would certainly compensate the sense of deprivation faced by these people. Incidentally, this includes and covers the grandson of the deceased who was excluded from the inheritance.
His uncles and paternal aunts should actually be pleased to give him something each from their respective shares.
The statement at the end of the verse (8): (and speak to them in fair words) gives the guideline in case these people are not satisfied with the manner and quantum of what they get but start demanding a share equal to that of everybody else, then, this demand being unjust and contrary to Shari'ah, there is no way to satisfy it, however, instead of behaving to them in a crude manner which may hurt their feelings, the actual rules of Shari'ah should be explained to them in a polite manner. They can be told that they do not have a share in the inheritance as stipulated by the rule of Islamic law and that which has been given to them has been given to them as a gift. At this point, one should make sure that the gift or donation given to such people does not come out of the total property inherited.
Here it is important that the donation should be made by adult inheritors present, from their respective shares. Such gifts from the shares of the minor and the absent are not allowed in Shari'ah.
Fear Allah while distributing inheritance
The third verse (9) addresses Muslims in general exhorting them to make it certain that the inheritance of the deceased reaches his children fully and fairly. They must abstain from any mode of action which may affect the share of the children adversely. The general sense of the verse covers the eventuality when one sees a Muslim making a will or disposing property off in a manner which could cause damage or loss to his children and other inheritors. If so, one must stop him from such bequeathal or such disposal, very much like what the Holy Prophet Sallallahu 'Alayhi Wasallam: Peace be upon him did when he stopped the blessed Companion, Sayyidna Sa'd ibn Abi Waqqas Radhi-Allahu Anh: Allah be pleased with him from giving the whole, or half, of his property in charity (Sadaqah), allowing him to give only one-third of his property as such (Mishkat, Bib al-Wasaya, p. 265), because, 'If the whole, or half of the property was given in charity, the share of the inheritors would have either been all consumed, or curtailed.'
Also included in the general sense of the verse is that guardians of the orphaned children should protect their property and give it to them in full when they become mature. They should take pains to accomplish this mission of trust and never let the least negligence on their part affect their duty; if they wish that others treat their children well after them, without causing them any harm or injustice, then, they should treat the children of others - the orphans - in the same manner.
Misappropriation of the property of the orphans
The fourth verse (10) carries a severe warning for those who pilfer or dispose off the property of orphans unlawfully. It declares: 'Surely, those who eat up the property of the orphans unjustly, they only eat fire into their bellies, and soon they shall enter a blazing Hell.'
This verse equates the property of the orphan with the fire of Hell. Many commentators have interpreted this metaphorically, that is, eating the property of the orphans unjustly is like stuffing one's stomach with fire - because this is what is going to happen to him ultimately in the Hereafter. But, those with deeper insights and proofs do not support the presence of some figure of speech here. According to them, whatever is eaten up from the property of the orphan unlawfully is, in reality, nothing but fire - even though, it may not look like fire at that time. This is like somebody saying that the match-box in his hand was fire, or the piece of arsenic, a killer. Obviously, handling a matchbox does not burn the hand, nor does arsenic kill a man by simple handling, not even by putting it in the mouth. However, a slight friction reveals that somebody who called the match-box a fire was right; and similarly, once the arsenic goes down the throat, we know that the one who called arsenic a killer was true.
Common generalizations of the Holy Qur'an also support the view that whatever deeds, good or evil, man is doing, these very deeds are the trees, the flowers and the fruits of Paradise, or the embers of Hell - even though, their form here is different, but these will come forth on the Day of Doom transformed in their true forms. The Holy Qur'an says in (Kahf-18:49) that on the Day of Doom, they shall find what they did - present! In other words, the punishment and the reward they shall see will be, in reality, the result of their own deeds.
It appears in some narrations that those who devour the orphan's property unjustly will be raised on the Day of Doom in a state that flames of fire will be seen coming out from inside their bellies through their mouths, nostrils, ears and eyes.
And the Holy Prophet Sallallahu 'Alayhi Wasallam: Peace be upon him said that a set of people will be raised on the Day of Doom with their mouths erupting with fire. His noble Companions asked as to who these could be. He said: "Have you not read it in the Qur'an? (which says): (those who eat up the property of the orphans unjustly)." (ibn Kathir, v.1, P. 456)
The gist of the meaning of the verse is that the property of the orphan eaten up unjustly will be, in reality, the fire of Hell, though it may not be sensed as fire at that time. It is for this reason that the Holy Prophet Sallallahu 'Alayhi Wasallam: Peace be upon him has given very clear instructions to observe most stringent precaution in this matter. Sayyidna Abu Hurairah Radhi-Allahu Anh: Allah be pleased with him narrates that the Holy Prophet Sallallahu 'Alayhi Wasallam: Peace be upon him said: (I warn you to abstain from the property of the two weak ones -the woman and the orphan.) (ibn Kathir, v.1, p.456)
A review at this point shows that the entire first section of Surah al-Nisa' contains injunctions relating to orphans. They bid protection of the property of the orphans, avoidance of encroaching on their property as one's own and the giving of their due share from the property they have received in inheritance; and they forbid the hasty consumption of the property of the orphans for fear of their growing mature and assuming its control, or the taking of orphaned girls in marriage and lowering their dower, or to usurp their property. In the end the text says that eating up the property of the orphan unjustly is filling of bellies with fire because, after their death, such people will be recompensed by fire filled in their bellies. Mark the use of the word, 'ya'kuluna' and the warning given to those who 'eat up' the property of the orphan. It means that using the property of the orphan in whatever manner it may be - eating, drinking, consuming, utilizing - is totally unlawful, and a sure cause of Divine wrath. The punishment of eating up what belongs to somebody else unjustly and without any right covers all sorts of uses.
When someone dies, the right of every inheritor attaches itself to everything he owns, to each and every part, to everything big or small. It is tragic that the minor children of the deceased become orphans. Mostly, such children face a certain degree of injustice and excess in every home and everyone who assumes control of the property after the death of the father of these children - whether an uncle or elder brother or mother or some guardian or trustee - falls into doing things forbidden in this section. To begin with, they just go on postponing the distribution of the property for years together, spending a little here and there to feed and clothe these children. After that, they open up and become all too liberal in spending this jointly-held property on religiously unacceptable practices, customs and wasteful heads of expenditure. They would even spend it on their own person and go on to the limit of manipulating legal documents entering the names of their own children in place of the orphans. These are things hardly a home remains unaffected from.
The donations made for orphans in religious schools and orphanages must be spent on them. Not spending these on the orphans is a form of 'eating up' the property of the orphan.
Rulings
1. Inheritance includes everything owned by the deceased, even the clothes on the dead body. People tend to give these out in charity without realizing that they belong to what has been left by the deceased. There are places where copper utensils are given out to the poor well before the total property is formally distributed, although minors and absentees from among the inheritors have rights in all such things.
The proper method is to first distribute the property in accordance with whatever shares are to be received by children, wife, parents, sisters and anyone else as stipulated by the Islamic law of inheritance. Once the ownership passes to sharers, it is upto them who can, if they so desire willingly, give away part of it in charity on behalf of the deceased. If the receivers of such shares wish to do that jointly, let them make sure that they are all adults, for the permission of the minor is not valid. As far as inheritors who are absent are concerned, nothing can be taken from their shares without their permission.
2. The sheet spread over the Janazah while carrying the deceased to the graveyard is not part of the required shroud (Kafn). It is not permissible to buy it from the proceeds of the property left by the deceased, because that is something held jointly. However, if someone was to cover the cost on his own, that would be permissible. There are places where a prayer-mat is torn out of the cloth purchased for the shroud and is used by the Imam who leads the janazah prayers. The mat is later given to the Imam. This expense is extra to the needed shroud and it is not permissible to buy it from the proceeds of the hitherto combined inheritance.
3. In some areas, new utensils are procured for bathing the deceased and which are broken after use. First of all, there is no need to buy new ones for a bath can be given using utensils already in the house; and if, for any reason, they have to be purchased, then, breaking them is not permissible. It not only amounts to wasting of property but also means causing loss to orphans and absent inheritors whose due rights are attached to the total property.
4. Any expenses before the distribution of inheritance, such as entertainment of guests or charity and alms, are totally impermissible. Giving charity and alms in this manner brings no merit or reward for the deceased. In fact, such giving under the notion that it will bring good returns for the departed soul is a far greater sin. The reason is simple. After the death of a person, all his property belongs to the inheritors in proportion to their respective rights in it. Then, there are orphans among them. Giving away things in charity from the combined property which includes the share of the orphan is like stealing from somebody's property and giving it in charity on behalf of the deceased. This is not correct. First distribute the property, then, let the inheritors give in charity from their shares for the good of the deceased, if they so desire.
It is better not to go for charity and alms from the combined inheritance even before the actual distribution, even though it be with the permission of inheritors. This is because the permission of whoever is an orphan among the inheritors is not just valid right from the outset. As for the adult ones, it is not necessary that their 'permission' comes out of their willing heart. It is quite possible that they are left with no option but give their permission lest they are disgraced before others. In other words, they may say yes with a heavy heart just to ward off the sense of shame.
Let us look at an anecdote ascribed to a pious elder, which will further clarify the issue. This pious elder went to visit a sick Muslim. He had hardly sat with the patient for a little while when the latter died. The sage immediately put out the lamp burning there and gave someone the money to buy oil and re-light the lamp with it. When people around asked him for the reason of his doing so, he said that this lamp was under the ownership of this person until such time that he was alive and it was correct to use that light. Now that the deceased has left this mortal world, his inheritors have the necessary right over everything he owned. So, it is only through the permission of all inheritors that we can use this lamp and since all of them are not present here, this lamp was lighted at a personal cost. [Ma'ariful Qur'an]
» Posted by Seifeddine-M on 8th February 2012
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