Difference of Religion:A Bar to Inheritance


Bismillahir RHRH,
Assalamu alaikum WRWB,
HADITH-7 CLASS-Fiqh/Civil Law
TEXT:
Usamata Ibn Zayd RA reported,the prophet SAW said 'An unbeliever can not
inherit (from) a Muslim and neither would a Muslim inherit (from) an
unbeliever'...Bukh & Mus.
COMMENTARY:
Wealth and property of a dead person are usually shared among his or her
heirs or inheritors according to Islamic injunctions.Familial and
marital relationships are the usual basis for inheriting a dead person.
Certain circumstances could pose a bar to potential heirs,and prevent
them from inheriting their dead 'relations'.These include among other
things-relationships,including children born,out of wedlock or as
products of adultery;homicide among or between mutual heirs;ignorance of
precedence in death between mutual heirs;difference of religion etc.
Islam being the most rapidly growing religion in the world has made the
latter,ie difference of religion,no longer uncommon as between
spouses,parents and children and vice-versa.Allah SWT has,
in the Quran,allowed Muslim men to marry women from ahl-kitab.Certain
sahaba like Hudhaifa Ibn al-Yamani RA had a christian,or in another
narration,a jewish wife.Furthermore,the revertion of ahl-kitab couples
to Islam,ie atleast the husband even if not the wife,still leaves their
matrimonial relationship intact.Now among muslim spouses,the Quran has
specified that wife/wives should,on demise of her/their husband,be given
either one-eighth or one-quarter of his property depending on whether or
not he has children,respectively.The husband also should,on demise of
his wife,be given a half or one-quarter of her property depending on
whether or not she has children,respectively.Would there be inheritance
between a couple in who the husband is a Muslim while the wife is of
ahl-kitab?
The above textual hadith and another reported by Abdullah Ibn Umar RA
where he said the prophet SAW said,'Two persons from (two differing)
religions do not inherit each other',addressed this question.Most Ulama
present their opinion in accordance with the explicit rulings of the
above two ahadiths ie a christian or jewish wife/wives can not inherit
her/their muslim husband.Other scholars like Muadh and Muawiyya RA on
the other hand have reported that a muslim can inherit from an
unbeliever citing the prophetic saying'Islam only prospers never
declining' as their basis.Once a family of brothers,jews and muslims
(reverts),whose father a jew earlier died,and the jewish brothers took
possesion of the inheritance,but the muslims disagreed and took their
case to Muadh Ibn Jabal RA who also gave the Muslims their shares.
Muawiyah RA has also been reported to have judged similarly saying that
-We inherit the people of the book but they do not inherit us just like
the prophet had said'It is allowed for us to marry their women but not
for their men to marry from us'.Scholars like Awza,i RA had opined that,
based on the second hadith above,even a jew can not inherit a christian
and vice-versa.
Allah SWT has said,'Those of you who die and leave widows should
bequeath for their widows a year's maitainance without expulsion..'2:240
One would initially assume this verse is all encompassing ie widows
including ahl-kitab would inherit,or be cared for at the expense
of,their dead husband atleast for a year.However,many scholars believe
this verse has been abrogated by other verses more specifically those
specifying four months ten days as seclusion(Iddah) period and those on
inheritance(Mirath).Ibn Zubair RA,as if doubtful of the abrogation,asked
Usman Ibn Affan RA,'Why is the verse still left whilst its judgement is
nullified,and why does it succeed(not preceed) the verse on Idda that
nullified it,does it mean its judgement is still valid?'.Usman replied,
'It is certainly as I found it(ie the verse)'.Allamah Yusuf Ali also
feels the verse is not abrogated.Certainly,however the verse alone does
not allow an ahl-kitab woman to inherit her husband even if it may allow
a bequest and a temporary accomodation for her.
Normally there are rules and shares for parents,children,brothers etc
out of the deceased's property.But similarly,an ahl kitab father can not
inherit his muslim children and vice-versa,and also relatives of
different religion may not mutually inherit each other.
These relations-wife,parents,children,relatives etc. are not however to
be left uncared for,and they should be helped if there is genuine
need.For Allah SWT has said,'It is prescribed when death approaches any
of you,if he leaves any goods that he makes a will to parents and
relations...'2:180.This verse also has been abrogated by the verses
specifying the inheritance(mirath) rules for near relatives.But from the
foregoing,these relatives by virtue of difference in religion are not
termed as heirs.And since in Islam,inheritance is not the sole method of
wealth acquisition and disposition,other means of wealth disposition
could be extended to these relatives if there is genuine need.Other
modes of wealth disposal like wills,gifts,bequest etc  could be
employed to transfer ownership of wealth or property to a non-inheritor.
That a christian wife can not inherit her deceased Muslim spouse does
not mean or suggest 'feminisation of poverty' for her husband has the
option of leaving behind for her a maximum of one-third of his wealth
(by a will),higher than the highest share,of one-quarter,she could
possibly recieve even if she were a Muslim,as an heir.Allah knows best.
Maasalam,AGH.