The Hanafis interpret the principles of customary law and Islamic law in such a manner as to blend them together in a harmonious manner; the customary heirs are not deprived of their right of inheritance in the estate of the deceased, but only a portion out of the estate is taken out and given to the heirs enumerated in the Koran This means that the basic structure of customary succession viz., the rule of agnatic preference, is retained the agnates are still preferred over cognates.
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The Koranic succession takes the agnatic principles further by recognizing the right of female agnates. Thus, if there is a female agnate (as specified in the Koran) nearer to a male agnate (as specified under the customary law), then, by virtue of nearness of her claim to take a share in the estate of the deceased, she is allowed to take a share. But thereby, the male agnate is not deprived of a share in the inheritance.
ADVERTISEMENTS:
The female heir takes her specified share, and male agnate takes the residue. Or where the female agnate and the male agnate are equally near to the deceased, then the male heir takes twice the share of the female heir.
It is submitted that this principle applies not only to female agnates but also to male agnates (i.e., those heirs who are made heirs by the Koran), and it is wrong to generalize that the male heir as such always takes double share of a female heir.
Thus, uterine brother and father as sharers do not take more than the uterine sister and mother respectively. It should also be noticed that most of the newly created heirs (i.e., those specified by the Koran) are the near blood relations of the deceased who were ignored in the customary law.
If one scans the heir’s specific by the Koran, one will find that none of them is remoter than the customary heirs. They were excluded by the customary law, either because they were females or cognates.
ADVERTISEMENTS:
The Koranic imposition of new heirs does not deprive the male agnates of their inheritance, but their rights are liable to be affected if there exists a Koranic heir. If we examine the rights of the Koranic heirs vis-a-vis the customary heirs, we find two situations; (i) the Koranic heir may be nearer to the customary heir.
In such a case a specified portion of the estate is given to the Koranic heir at the first instance and then whatever is left is given to the customary heir. If there is more than one Koranic heir, then all of them take their specified portions, and the residue goes to the customary heirs.
For instance, when a deceased has left a daughter and a brother, the former will take 1/2 (as specified by the Koran) and the brother will take the residue which is 1/2. If the deceased had left two daughters and a brother, then the daughters together will take 2/3 (as specified by the Koran) and the brother will take the residue which is 1/3. (ii) The Koranic heirs and the customary heirs may be equally near to the deceased.
In such a case double portion is given to the customary heir. In this situation the Koranic heir is a female of equal proximity with the customary heir, but she was disqualified under the customary law on account of her sex. Now she has been made to rank equally with the customary heirs in respect of the residue of the estate after the prior claim of the Koranic heirs are satisfied.
ADVERTISEMENTS:
As to the rights of heirs vis-a-vis each other, if the heirs of the same class differ from each other in their sex, they inherit equally (here the principle of male taking twice the share of a female does not apply). For instance, if a Muslim dies leaving behind father and mother, then each takes 1/6 of the estate. In this case neither can claim priority over the other on the basis of greater proximity or on the basis of customary law.
The modifications, thus, made by the Koran as interpreted by the Hanafis are restricted to agnates, with a few exceptions where under some cognates, such as uterine brother and uterine sister, are also included.
The modifications do not go to any collateral remoter than sisters. Further, these modifications in their application to relations other than descendants are hedged with exceptions. The Hanafis have so interpreted the Koranic rules that the customary heir’s right to inheritance is not affected, though a slice of the estate is taken away for the Koranic heirs.
Sometimes the customary heirs are also required to share the residuary estate with the Koranic heirs, and in that process, sometimes, no residue of the estate is left for them. (But this happens in a few cases).
Under the Hanafi law, the general rule of distribution of the estate is per capita and not per stripes.