Islam is founded on two cardinal principles – one, the unity of God (Wahdaniet) and second, the messengership of the Arabian Prophet (Risalat). According to the Quranic injunction, a Muslim by birth who has no faith in the unity of God and messengership of the Prophet may be treated as ‘kafir’ (Arabic term ‘kufr’) and such a person may not be called a Muslim.
Moreover, according to Mohammedan Law, when a person died leaving an heir who by birth or apostasy denies God’s unity and Muhammud’s messengership such heir could be excluded from succession.
The word ‘apostasy’ means abandonment of belief or faith. A person who has rejected his religious or political beliefs is known as an ‘apostate’. Islam is very envious about the blindness to its religious dogma and, accordingly, a most serious view was taken regarding apostasy. In Islam the blood relation of an apostate was not considered to be under the protection of law.
The marriage of an apostate, either male or female, with any person, either a Muslim or infidel or even an apostate, was held to be unlawful. The Shariati law also provided death penalty for a male apostate; a female apostate was to be imprisoned till she turned back to faith and was then forced to remarry the former husband on very small dower.
In India, the law of succession in the case of a Hindu or a Mohammedan depends on their own personal law. In other words, when once a person has changed his religion and changed his personal law, that law will govern the rights of succession of his children. In this respect, it is relevant to mention section 27 of the Civil Courts Act.
In sub-section (1) of section 27 of the said Act, it has been stated – “where in any suit or other proceedings it is necessary for a civil court to decide any question regarding succession, inheritance, marriage or caste or religious usage or institution, the Mohammedan law in cases where the parties are Mohammedans and the Hindu law in cases where the parties are Hindus shall form the rule of decision, except in so far as such law has by legislative enactment been altered or abolished”.
In sub-section (2) of section 27 it has further been clarified: “In cases not provided for by sub-section (1) or by any other law for the time being in force the court shall act according to justice, equity or good conscience”.
The Muslim law of inheritance owed its origin to the customs of pre-Islamic Arabs. It was in the 7th Century AD that the Prophet rectified many of the social and economic inequalities then widespread. In fact, Quranic Law came as a super-structure upon the ancient tribal law of the Arab countries.
However, in India all the provisions of Muslim Law are not applicable entirety. In India, Muslim law is applicable only to certain classes of matters which have been permitted to be applied by the statutory law of the land. On the contrary, in other cases it is allowed to be applied on the principles of justice, equity and good conscience.
An apostate or a person who professes a different faith from Islam has no title to the inheritance of a deceased Muslim. Moreover, succession to the estate of a convert to Mohammedanism is governed by the Mohammedan law and according to Mohammedan law a Hindu or a Christian cannot succeed to the estate of a Mohammedan.
For instance, if a man died leaving behind a son who does not follow the two cardinal principles of Islam i.e. a ‘kafir’ and a grandson who follows those principles of Islam i.e. a ‘true Muslim’, the son will be excluded from the succession. On the other hand, the grandson would take the inheritance to the absolute exclusion of his own father. Moreover, in the case of a female apostate her entire property whether acquired before or after apostasy goes to her Muslim heirs.
Not only in Islam but in Christianity also apostasy is a crime against religion. In Christianity an apostate is known as a traitor. In Russia, even now a convert from the Orthodox church is debarred from the rights of inheritance.
Muslim law prohibited all marriages of apostates, even with apostates. This disability has however been removed by the Caste Disabilities Removal Act, 1885. But this Act applies only to protect the actual person who either renounces his religion or has been excluded from the communion of any religion or has been deprived of caste. It is well settled according to the canon law of Islam that apostasy or conversion of a Muslim to any other faith results in dissolution of marriage.
Generally, according to the law of inheritance, six persons can never be excluded from inheritance viz. the father, the mother, the son, the daughter, the husband and the widow. But is Muslim law any one of them might be excluded from inheritance owing to infidelity or homicide or slavery or a being child of fornication.
Regarding apostasy the Prophet said – “the entire estate of a male apostate descends to his Muslim heirs whether it was acquired before or after apostasy. Similarly, in the case of a female apostate, her entire property whether acquired before or after apostasy goes to her Muslim heirs”.
Actually, the principle by which non-Muslims were excluded from the inheritance applied equally to those who were born in a different faith, and those who abjured Islam.
The entire system of Mohammedan law, as well as the religious beliefs and moral principles followed by the Muslim community throughout the world, are based upon the two pillars – firstly, the holy Quran and secondly, the Sunnah – i.e. the practice and precedents of the Prophet. These two pillars are the fundamental roots of Islamic law. In fact, the Prophet was keenly aware of the various problems that affected a lot of people in society.
Hence by imposing restrictions he had brought the people of Arab countries back to reality which was very essential for the advancement of a nation. In a word, it can be said that Muslim law is absolutely based on morality, sociability and, above all, socio-economic policy in comparison with any other personal laws of the land.
The writer is an Advocate, Calcutta High Court.