Legal Provisions Regarding Disqualifications of Heirs under Muslim Law
Under the Islamic law a non-Muslim was not entitled to inherit the property from a Muslim. In India this is not so. A Muslim who had renounced Islam, or had in any manner ceased to be a Muslim, will, nonetheless, be entitled to inheritance in the property of his deceased Muslim relation whose heir he is.
But his non-Muslim descendants will not be entitled to inherit the property of the deceased Muslim. At the same time, it should be noticed that the inheritance to the property of a convert to Islam is governed by Muslim law.
(This should be read subject to what has been stated in Chapter I in respect of certain Muslim communities who are, in respect of testamentary succession, still governed by their original personal law or customary law).
Under the Hanafi law an heir who has caused the death of the deceased intentionally, inadvertently, by accident, mistake, or negligence is excluded from inheritance. Under the Shia law the heir is disqualified only if the death is caused intentionally.
This is a principle of general policy, and if followed in most systems of law that an heir who has caused the murder of the deceased is disqualified from inheritance. In the pre-Islamic Arabia the inheritance was tagged with blood-wide and blood-feud, and in that system, a murderer could obviously not inherit. The principle was adopted in the Islamic law and is recognized in all Muslim countries.
Child in the Womb:
Under Muslim law a child in the womb of her mother is entitled to inherit, if it is born alive. A still-born child is treated as having been born alive if its mother was treated with violence as a consequence of which she gave birth to it. The law among the Shias and the Sunnis in this regard is the same.
Under the Hanafi law an illegitimate child is not entitled to inherit from its father, but it is allowed to inherit from its mother. The mother can also inherit the property of her illegitimate children. The illegitimate child inherits not merely the property of its mother but also the property of all other relations with whom it is related through the mother.
Thus, when a Hanafi female dies leaving behind her husband and an illegitimate son of her sister, the husband will take 1/2 as sharer and the residue will go to sister’s son. Since the illegitimate child cannot inherit from its father, it cannot inherit from any other relation through the father.
Under the Ithana Ashari School, an illegitimate child is treated as nullius filius, and cannot inherit the property of any of its parents. The question of its inheriting the property from any other person through its parents does not arise.
Daughters as a rule are entitled to inheritance. But sometimes they are excluded from inheritance by custom or statute. In such a case the shares of other heirs are calculated as if daughter did not exist.
Among the Gujars of Punjab and Jammu and Kashmir, daughters are excluded from inheritance by custom. They succeed to the property only in default agnates. Under the Bombay Watan Act, 1886, if a Muslim watenndar died leaving a widow, a daughter and a paternal uncle, then the daughter had no right to share in watan land. In such a case the widow and uncle take the land, as if the daughter did not exist.
Insanity and unchastity:
Insanity and unchastity are not disqualifications under the Muslim law, and, therefore, an insane or unchaste heir is entitled to inherit.
Under the Ithana Ashari law, the eldest son who is of sound mind is exclusively entitled to wearing apparel of his father, his copy of Koran, his sword, and his ring, provided the father had left some other property besides these.
Under the Ithana Ashari law, a childless widow is not entitled to a share in her husband’s land, both agricultural as well as urban. However, she is entitled to her share in the value of trees and buildings standing on the land as well as share in the movable property of her husband. Immovable property includes the debts due to her husband.
In Abdul Hammed Khan v. Peare Mirza, it was held that a childless widow, in the absence of other heirs, was entitled to inherit not merely her share but also rest of the property including the land, of her husband by the application of the doctrine of return.
Since stepparents are not related to their stepchildren they are not entitled to inherit the property of their stepchildren.
If an heir is absent at the time of the distribution of assets, then his share to be kept apart from him until such time as he is presumed to be died.