Excerpt from “Islāmī Qānūn-e-Wirāthat” by Maulānā Abū Nu‘mān Bashīr Ahmad
❖ Definition of Dhaw al-Arhām
Those close relatives who are neither among the Aṣḥāb al-Furūḍ (sharers) nor among the ʿAṣabah (residuaries) are called Dhaw al-Arhām, such as maternal uncles, maternal aunts, and paternal aunts.
❖ Difference of Opinion Concerning Their Inheritance
There are two primary views regarding the inheritance of Dhaw al-Arhām:
① Those who are deprived of inheritance:
According to one group, Dhaw al-Arhām do not inherit. In the absence of Aṣḥāb al-Furūḍ or ʿAṣabah, the estate is transferred to Bayt al-Māl (the public treasury).
This opinion is held by:
- Abū Bakr al-Ṣiddīq رضي الله عنه
- ʿUthmān ibn ʿAffān رضي الله عنه
- Zayd ibn Thābit رضي الله عنه
- Saʿīd ibn al-Musayyib
- Saʿīd ibn Jubayr
- Imām al-Shāfiʿī
- Imām Mālik رحمهم الله
② Those who are entitled to inheritance:
According to another group, in the absence of Aṣḥāb al-Furūḍ and ʿAṣabah, Dhaw al-Arhām are entitled to inherit.
This view is held by the majority of the Companions, such as:
- ʿUmar ibn al-Khaṭṭāb رضي الله عنه
- ʿAlī ibn Abī Ṭālib رضي الله عنه
- ʿAbdullāh ibn Masʿūd رضي الله عنه
- Abū ʿUbaydah ibn al-Jarrāḥ رضي الله عنه
- ʿAbdullāh ibn ʿAbbās رضي الله عنهما
It is also the opinion of ʿUmar ibn ʿAbd al-ʿAzīz, Shurayḥ, ʿAṭā’, Ṭāwūs, ʿAlqamah, Ibn Sīrīn, Imām Abū Ḥanīfah, Imām Aḥmad ibn Ḥanbal رحمهم الله, and many other jurists and scholars.
After the decline of the Bayt al-Māl system in the third century Hijrī, all four schools of jurisprudence agreed upon this latter view.
❖ Preferred Opinion (Rajih View)
From both rational and textual perspectives, the second opinion is stronger, as Allah Almighty says:
﴿وَأُولُو الْأَرْحَامِ بَعْضُهُمْ أَوْلَىٰ بِبَعْضٍ فِي كِتَابِ اللَّهِ﴾
“In the Book of Allah, blood relatives are more entitled to one another (in inheritance).”
(Surat al-Anfāl 8:75)
The Prophet ﷺ also said:
الخال وارث من لا وارث له
“The maternal uncle inherits from one who has no (other) heir.”
(Sunan Abī Dāwūd, Kitāb al-Farā’iḍ, Ḥadīth: 2899; Sunan Ibn Mājah, Kitāb al-Farā’iḍ, Ḥadīth: 2738)
Rationally, this view is sound, for Dhaw al-Arhām share two connections with the deceased – by blood and by Islamic brotherhood – whereas Bayt al-Māl has only one (Islamic) connection. Hence, twofold relation has greater right than one.
❖ Conditions for Inheritance of Dhaw al-Arhām
① No Ṣāḥib al-Farḍ (fixed sharer) should be present, because the remainder is then returned (radd) to them, except for the husband or wife, since radd does not apply to them.
② No ʿAṣabah should be present.
❖ Difference Regarding Method of Distribution
Scholars have differed on how to distribute inheritance among Dhaw al-Arhām. There are three primary methods:
① Method of Ahl al-Raḥm (Equality):
According to this group, the estate is equally distributed among all existing Dhaw al-Arhām — male or female, near or distant, strong or weak.
For example, if the deceased leaves behind a grandson, granddaughter, maternal uncle, paternal aunt, nephew, and niece (six heirs), then the estate will be divided equally into six shares, one for each.
② Method of Ahl al-Qarābah (Degree of Kinship):
According to them, the distribution considers first the degree of closeness, then the strength of relation, with differentiation between male and female as per the Qur’ānic principle:
لِلذَّكَرِ مِثْلُ حَظِّ الْأُنْثَيَيْنِ
“For the male is the share of two females.”
③ Method of Ahl al-Tanzīl (Representation):
According to this group, Dhaw al-Arhām are treated as standing in place of those Aṣḥāb al-Furūḍ or ʿAṣabah through whom they are related to the deceased.
For instance, a daughter’s children represent the daughter, and a sister’s children represent the sister.
❖ Preferred Method
The method of Ahl al-Tanzīl is the strongest (rajih) based on evidences. It is the opinion of the majority of scholars, Tābiʿīn, and Imāms.
❖ Types of Dhaw al-Arhām
① Those related through the deceased, such as the offspring of daughters, granddaughters, or great-granddaughters.
② Those to whom the deceased is related, such as a corrupt grandfather (jadd fāsid, e.g., maternal grandfather, mother’s paternal grandfather) or a corrupt grandmother (jaddah fāsidah).
③ Those related through the deceased’s parents, such as the children of full sisters, or paternal or maternal brothers’ daughters.
④ Those related through the deceased’s grandparents, such as paternal aunts, maternal aunts, and maternal uncles.
❖ Rules of Distribution
① If there is only one person among Dhaw al-Arhām, he or she takes the entire estate.
② If there are several heirs of the same rank, the estate is divided equally, without difference between male and female.
Example: If there are three granddaughters and one grandson, the estate is divided into four equal shares.
③ If there are heirs of different ranks, distribution is made according to their rank. The one through whom the inheritance is traced (mudlī bih) is treated as the deceased, and the shares are calculated accordingly.
④ If a husband or wife is also among the heirs, they receive their prescribed share, and the remainder is divided among Dhaw al-Arhām according to the above principles.
⑤ If an heir is related to the deceased through two lines of kinship, they inherit through both connections.
Example: The deceased leaves a grandson who is both the son of a granddaughter and the son of a grandson, and another heir who is only the granddaughter’s daughter — the one with dual lineage inherits twice.
Conclusion:
Dhaw al-Arhām, though not among the Aṣḥāb al-Furūḍ or ʿAṣabah, are legitimate heirs in Islam when closer heirs are absent. Their inheritance is governed by the principle of proximity and representation (tanzīl), as established by the majority of jurists.
