ource: Fiqhi Ruling and Iue in the Light of Quran and Hadith, Inheritance Iue: Volume 02: Page 224
All praie i due to Allah, and bleing and peace be upon the Meenger of Allah. To proceed!
The iue mentioned in the previou article regarding inheritance were related to thoe cae in which the death of the deceaed (the tetator) i certain and abolutely clear, and likewie, the preence of the heir at the time of the death of the tetator i alo certain. Thee are all clear cae in which there i no doubt or difficulty of any kind.
Now it i intended to explain the cae in which the death of the deceaed or the life of the heir i not certain and clear. ometime the condition of the deceaed' death or the heir' life become doubtful, for example: the tate of a fetu in the womb, peron drowned in water, peron buried under a houe or wall, a miing peron, or doubt about whether an heir i male or female, uch a a difficult hermaphrodite (khuntha muhkil), about whom it i difficult to decide whether he i male or female. imilarly, the reality of a fetu in the womb i ometime not clear.
Due to the doubt in the condition of thee mentioned peron, the following chapter are mentioned o that the true ituation become clear.
Explanation of Khuntha Muhkil
The word Khuntha i derived from "Ankhnath," which mean to be oft, broken, or bent. "Khuntha Famm al-aqa" i aid when a peron break the mouth of a water-kin and drink water from it.
In the terminology of inheritance law, a khuntha muhkil i a peron whoe phyical condition i doubtful, meaning that they have both male and female genitalia, or they have no genital organ at all, neither male nor female.
A khuntha peron can be from any of the categorie of paternity, brotherhood, maternal unclehood, or guardianhip, becaue in each category there i a poibility of them being male or female. However, they cannot be from the category of parentage (father, mother, grandfather, grandmother), becaue if that were the cae, their phyical condition would not remain doubtful, meaning they would not be a khuntha muhkil. Alo, it i not poible for a khuntha muhkil to be a huband or wife, becaue if they are khuntha muhkil, their marriage i not valid.
❀ ① Allah Almighty ha created the children of Adam a either male or female, a Allah Almighty ay:
﴿يـٰأَيُّهَا النّاسُ اتَّقوا رَبَّكُمُ الَّذى خَلَقَكُم مِن نَفسٍ وٰحِدَةٍ وَخَلَقَ مِنها زَوجَها وَبَثَّ مِنهُما رِجالًا كَثيرًا وَنِساءً وَاتَّقُوا اللَّهَ الَّذى تَساءَلونَ بِهِ وَالأَرحامَ إِنَّ اللَّهَ كانَ عَلَيكُم رَقيبًا ﴿١﴾... سورة النساء
"O mankind! Fear your Lord, who created you from one oul and created from it it mate and dipered from both of them many men and women. And fear Allah, through whom you ak one another, and the womb. Indeed, Allah i ever, over you, an Oberver."
Reference: An-Nia:1
And in urah Ah-hura it i tated:
﴿لِلَّهِ مُلكُ السَّمـٰوٰتِ وَالأَرضِ يَخلُقُ ما يَشاءُ يَهَبُ لِمَن يَشاءُ إِنـٰثًا وَيَهَبُ لِمَن يَشاءُ الذُّكورَ ﴿٤٩﴾... سورة الشورىٰ
"To Allah belong the dominion of the heaven and the earth. He create what He will. He give to whom He will female [children], and He give to whom He will male."
Reference: Ah-hura 42:49
Then Allah Almighty tated the ruling for each of the two, but no ruling wa tated for a peron who i both male and female. Therefore, thi i evidence that thee two attribute, i.e., feminine and maculine, cannot be combined in one peron. And how can thi be poible when Allah Almighty ha placed ditinguihing ign and uch characteritic in both gender that clearly differentiate them? However, depite thi, confuion ometime arie becaue both type of organ, i.e., male and female, are preent in their body.
❀ ② cholar have unanimouly agreed that a hermaphrodite will be aociated with the maculine or feminine gender baed on their predominant characteritic. For example, cholar hold the opinion that the deciive factor in making a hermaphrodite an heir i the manner of urination. If they urinate in the manner of a male, they will be conidered male, and if they urinate in the manner of a female, they will be conidered female, becaue generally thi condition ditinguihe one gender from the other.
Reference: It wa aked from ayyiduna Ali (may Allah be pleaed with him) about a peron who ha both male and female organ, which inheritance hould be given to him, i.e., the male hare or the female hare? He replied, "The organ from which he urinate." imilar narration are alo reported from ayyiduna Umar (may Allah be pleaed with him), Qatadah (may Allah be pleaed with him), and Jabir (may Allah be pleaed with him). Al-Bayhaqi (aarim)
.And the organ from which urine doe not exit will be conidered a defect and an extra organ. If urine come from both paage, the one from which more urine come will be conidered valid. If initially urine wa paed from one organ, and later it tarted coming from both, then the firt condition will be conidered valid. And if urine come equally from both paage in term of time and quantity, then the appearance of other ign will be awaited until puberty. Until then, the peron will be conidered a difficult hermaphrodite.
ome ign that appear at puberty are pecific to male, uch a: the growth of mutache, the appearance of a beard, and the dicharge of emen from the peni, etc. If even one of thee ign appear, the peron will be conidered male. imilarly, ome ign are pecific to female, uch a: mentruation, the appearance of pregnancy, and the prominence of breat. If even one of thee ign appear, the peron will be conidered female.
❀ ③ If none of the male or female characteritic appear, then the peron i a difficult hermaphrodite, and if there i no hope of phyical change, whether or not there are other heir with them, the cholar have the following opinion regarding the ditribution of inheritance:
✔ 1. ome cholar hold the view that the hermaphrodite will be given the leer hare of the two part, i.e., male and female, while the other heir will receive the larger hare. And if the peron i an heir in one repect and not an heir in another, then they will be conidered a non-heir.
✔ 2. According to ome cholar, if there i hope for a change in their phyical condition, uch a hermaphrodite i called marja (one whoe clarification i expected), and they and their co-heir will be given a maller hare, while the remaining hare will be reerved until their phyical condition become clear or the heir reach a uitable ettlement.
✔ 3. ome cholar hold the opinion that the hare of a hermaphrodite will be half of the male hare and half of the female hare
Reference: For example: if the male hare i one rupee and the female hare i fifty paia, then the hermaphrodite will receive eventy-five paia. (aarim)
, even if there i a difference between the two hare. If the heir i determined by only one conideration, i.e., male or female, then half of that hare will be given. Thi ruling applie in both cae, whether there i hope for the hermaphrodite' condition to change or not.✔ 4. The view of ome cholar i that if there i hope of a change in thi, then the hermaphrodite and the co-heir with him will all be given a maller hare, becaue that much hare i certain, and the remaining property will be kept reerved until the ituation become clear. And if there i no hope of change, then he will be given half the hare of both the male and the female, provided that he i an heir in both condition. And if he i an heir in only one condition, i.e., male or female, then he will be entitled to half of that hare. And Allah know bet.
Explanation of the Inheritance of the Fetu
ometime the fetu i alo included in the lit of heir, but it condition i uncertain a to whether it will be born alive or dead, whether it will be one or more, female or male. Due to thee variou poibilitie, the ruling alo change. Thi i why the cholar have explained the iue of the fetu with great care and have etablihed a eparate chapter on the fetu in the book of inheritance.
The child in the womb i called "fetu." When the "deceaed" pae away and among hi heir there i a fetu, ometime it i an heir in every repect, ometime it i barred in every repect, and ometime it i an heir in ome repect and barred in other, provided it i alive at the time of birth.
For a fetu to unanimouly become an heir, two condition mut be met:
◈ ① Being preent in the womb at the time of the deceaed' death, even if only in the form of emen.
◈ ② Clear ign of life mut be found at the time of birth. The Meenger of Allah, peace be upon him, aid:
"إِذَا اسْتَهَلَّ الْمَوْلُودُ وَرِثَ "
"If the child crie out loudly, he will be made an heir."
Reference: unan Abi Dawood, Al-Fara'id, Chapter on the newborn who urvive then die, Hadith 2920
One meaning of "Itihlal" i a hown in the tranlation; however, according to ome cholar, it mean that any ign of life i found in it, not necearily crying, for example: neezing or moving, etc., becaue thee are condition from which ign of life can be known. Thi i the econd condition.
Now, the firt condition, i.e., the preence of pregnancy at the time of the "Moorith'" death, will be fulfilled when the pregnant woman deliver the child within the precribed period, and thi period can be minimum or maximum depending on different circumtance.
After the death of the Moorith, there can be three ituation regarding delivery:
❀ ① Delivery occur within the minimum getation period from the time of the Moorith' death. In thi cae, the fetu will abolutely be an heir becaue delivery within thi period i proof that the fetu wa preent in the womb at the time of the Moorith' death.
It hould be noted that the minimum getation period i ix month, and there i conenu among cholar on thi. Allah Almighty ay:
﴿وَحَملُهُ وَفِصـٰلُهُ ثَلـٰثونَ شَهرًا...﴿١٥﴾... سورة الاحقاف
"The period of pregnancy and weaning i thirty month."
Reference: Al-Ahqaf:46:15
Alo, the Divine command i:
﴿وَالوٰلِدٰتُ يُرضِعنَ أَولـٰدَهُنَّ حَولَينِ كامِلَينِ...﴿٢٣٣﴾... سورة البقرة
"Mother hall breatfeed their children for two full year."
Reference: Al-Baqarah:2/233
Reflecting on thee two vere, it become clear that if from the thirty month, the nuring period of two year, i.e., twenty-four month, i ubtracted, ix month remain, which i the minimum duration of pregnancy.
❀ ② The delivery hould occur after the death of the deceaed and after the maximum duration of pregnancy ha paed. In thi cae, the fetu will not be an heir, becaue delivery after uch a long period indicate that the fetu did not exit at the time of the deceaed' death, but rather the pregnancy began after the death of the deceaed.
Regarding the determination of the maximum duration of pregnancy, cholar have three opinion:
✔ 1. The maximum duration of pregnancy i two year, a tated by Umm al-Mu'minin ayyida Aiha رضي الله تعالى عنها: "The womb of the mother doe not carry the pregnancy for more than two year."
Reference: Al-unan al-Kubra by Al-Bayhaqi: 7/443
uch a tatement i not related to Ijtihad, therefore it i a "Marfoo' Hadith," meaning it i a command from the Meenger of Allah صلى الله عليه وسلم.✔ 2. The maximum duration of pregnancy i four year.
✔ 3. Often, the duration of pregnancy i five year.
According to u, the mot correct opinion i that the maximum duration of pregnancy i four year, becaue there i no explicit evidence in the Quran and unnah limiting it, o we refer to actual occurrence. Accordingly, there are many uch incident where the pregnancy remained in the mother' womb for four year.
❀ ③ hort-term pregnancy, that i after ix month, and often micarriage before the full term of pregnancy. In thi cae, if her huband or mater i preent and ha been intimate with her, then the fetu will not be an heir of the deceaed, becaue the exitence of the fetu at the time of the deceaed' death i not certain. It i poible that the fetu wa conceived after the death of the deceaed.
And if during thi period there wa no intimacy with her, for example: her huband or mater wa not preent, or wa abent from her, or due to ome incapacity or abtention, he refrained from intimacy, then the fetu will be an heir, becaue it exitence i etablihed from the deceaed.
cholar agree that when a child crie out after birth, it prove life. There i diagreement regarding other matter, uch a the child’ movement, ucking milk, or breathing. ome cholar conider only the cry a valid and do not include other matter. While ome cholar conider every ign that indicate life along with the cry a valid, and thi i the prevailing view, becaue the word of the hadith "اسْتَهَلَّ" do not mean only crying, but according to ome cholar, movement etc. are alo included. And even if, hypothetically, "اسْتَهَلَّ" mean only crying or ound, it doe not prevent reaoning through other ign. And Allah know bet.
Method of aigning a hare to the fetu
When among a peron' heir there i an unborn child whoe tatu a an heir i unknown, and the heir demand the diviion of the inheritance before the child' birth, it i appropriate to wait for the child to be born to avoid dipute, o that the ituation become clear and the inheritance i divided only once.
If the heir do not agree to delay the diviion of the inheritance and wait for the birth, can the inheritance be divided or not? There are two opinion among the cholar on thi matter:
✔ 1. They hould not be allowed to divide the inheritance becaue the tatu of the unborn child i uncertain, and it i alo poible that there may be more than one child, which would affect the hare of the unborn child and the other heir. Therefore, it i neceary to wait until the ituation become clear after the birth.
✔ 2. Heir are entitled to demand the ditribution of the inheritance, and they cannot be forced to wait for the getation period, becaue it caue them harm. It i poible that they are o needy and poor that waiting for the long getation period i difficult for them. A for the fetu, a maximum hare can be reerved for it a a precaution. In ummary, there i no mandatory reaon to delay the ditribution of the inheritance.
The econd opinion eem tronger, but among it proponent there i diagreement about how much of the inheritance hould be reerved for the fetu, becaue the actual reality of the fetu i known only to Allah Almighty. There are many poibilitie, for example: whether the fetu will be born alive or dead, whether there will be one child or more, whether it will be a boy or a girl. Undoubtedly, thee poibilitie affect the right of the heir. There are three well-known opinion regarding the amount of the hare reerved for the fetu:
✔ 1. It i difficult to determine the number of fetue becaue it i not poible to know how many children a woman i carrying in her womb. However, among the heir who hare in the inheritance along with the fetu, if a peron i an heir in one cenario and barred in another, or if he i an 'aaba (agnate), then uch a peron will not be given anything from the inheritance. And if a peron i an heir in every cenario but receive a maller hare in one cae and a larger hare in another, he will be given the maller hare. And the one whoe hare doe not differ in any cae, whether the fetu i a boy or a girl, will receive the full hare. After that, the remaining hare will be kept reerved until the ituation of the fetu become clear.
✔ 2. A larger hare of the inheritance will be reerved for the fetu, and a maller hare for the other heir. The hare of two boy or two girl for the fetu, whichever i greater, will be reerved, and the co-heir will receive a fixed hare. Then, when the fetu i born and the ituation become clear, if the fetu i entitled to the majority of the upended property, it will be given; and if the upended hare i le, the deficiency in it hare will be recovered from the heir.
✔ 3. A hare of one boy or one girl, whichever i greater, will be reerved for the fetu, becaue generally a woman give birth to only one child, o the ruling will be baed on the prevailing and common cutom.
It i obligatory upon the judge to appoint a guardian for the fetu from among the heir, becaue the fetu i incapable of taking care of it own interet. The guardian will be reponible for enuring that each rightful heir receive their due hare in cae of any change in the hare after the birth.
According to u, the econd opinion i baed on caution and jutice, becaue the occurrence of the birth of two children happen frequently, while the occurrence of the birth of more than two children are rare.
According to the preferred opinion, there can be ix tate of the pregnancy:
◈ ① The child will be alive or dead.
◈ ② If alive, it will be a boy.
◈ ③ It will be a girl.
◈ ④ There will be one boy and one girl.
◈ ⑤ Both will be boy.
◈ ⑥ Both will be girl.
A eparate iue will be made for each cae, and according to the calculation, each heir among the other heir will be given their hare. The heir whoe hare i the ame in every cae will be given the full hare. The one whoe hare i le in one repect and more in another will be given the leer hare. And the one who i an heir in one repect and a non-heir in another will be deprived. The remaining inheritance will be upended and preerved until the ituation become clear with the birth of the child, a explained above. And Allah know bet.
tatement on the Inheritance of a Miing Peron
The literal meaning of "miing" i "nonexitent or lot item." The meaning of "فقدت الشیء" i: "I earched for the thing but could not find it." Here, "miing" refer to a peron who i abent, meaning omeone who ha diappeared to uch an extent that it i unknown whether they are alive or deceaed.
The reaon for their diappearance can vary, for example: omeone went on a journey, or went to fight, or a hipwreck occurred, or dibeliever took them captive, and then it became unknown where they had gone.
During diappearance, there i uncertainty about whether the miing peron i alive or deceaed. Each of thee two ituation ha pecific ruling, for example: the ruling concerning hi wife, the miing peron' own inheritance, other haring with him, inheriting from the miing peron, etc. It i not poible to prefer one of thee potential ituation over the other; therefore, it i neceary to et a period during which hi actual condition can be determined. When that period pae, it i conidered evidence of the miing peron' death.
Due to thi neceity, the cholar have agreed on etting a period, but they differ regarding it length. There are two opinion about thi:
✔ 1. The ijtihad of the judge i valid in determining the duration, becaue the life of the miing peron i the original premie, and thi premie will be maintained in the form that i certain or equivalent to certainty. In hort, the deciive matter i the ijtihad of the judge, whether the prevailing aumption i in favor of hi afety or death, and whether he went miing before or after the age of ninety. He will be awaited until there i evidence of hi death, or until uch a period pae that it become the prevailing aumption that it i no longer poible for him to be alive. Thi i the opinion of the majority.
✔ 2. There i ome detail in thi opinion, becaue the miing peron can be in different tate:
❀ A ituation in which the apect of the miing peron' death i predominant, for example: if he got lot at the place of death, or went miing in the midt of fighting rank, or a hip ank in which ome people died and ome urvived, or a peron left hi home or city for prayer but did not return. uch a peron hould be awaited for up to four year from the time of diappearance
Reference: The evidence i the deciion of ayyiduna Umar رضي الله عنه in which he aid that if a woman' huband goe miing and there i no new of him, he hould wait for four year. Then he hould oberve the 'iddah of death for four month and ten day. Al-Muwatta of Imam Malik, Divorce chapter, The 'Iddah of the one whoe huband i miing 2/119
.Becaue thi i a period during which traveler and merchant come and go repeatedly. If no new i received during thi period, the prevailing aumption will be that he i not alive.
❀ And if there i a trong preumption that the miing peron i alive and afe, for example: he went on a journey for trade, tourim, or eeking knowledge, and then no new wa received about him, then uch a peron will be awaited from the time of birth until the age of ninety year, becaue generally a peron doe not live beyond thi age
Reference: Determining the period from birth to ninety year i a unreaonable a it i immovable, becaue if at the time of diappearance a peron' age wa one or two day le than ninety year, then waiting for one or two day i not correct in any way but rather a corrupt matter. Becaue no one upport uch a long period for dicuion and earch. (aarim)
.According to u, the firt opinion i the mot correct and reliable, which i that the waiting period for the miing peron i dependent on the ruler' ijtihad, becaue due to difference in citie, individual, and circumtance, the ituation alo varie. Moreover, in today' era, mean of information and communication are common and fat, to the extent that the whole world ha hrunk to the ize of a city, and the condition are no longer like thoe of earlier time.
If any heir of the miing peron die during the waiting period
✔ 1. If there i no other heir beide the miing peron, then the entire inheritance hould be preerved until the waiting period i completed or the ituation become clear.
✔ 2. If there are other heir of the deceaed along with the miing peron, then cholar have different opinion regarding the method of dividing the inheritance. Among thee, the mot correct opinion, agreed upon by a large number of cholar, i that the other co-heir hould be given a maller hare, which i certain, and the remaining inheritance hould be preerved.
The general rule regarding thi i that the correction of the iue will firt be made by auming the miing peron to be alive, and then the correction of the ame iue will be made by auming him to be dead. Now, if a peron i an heir in both cae but ha a maller hare in one cae and a larger hare in the other, he will be given the maller hare. And the one who get an equal hare in both cae will be given hi full hare. And the one who get a hare in only one cae and not in the other will be given nothing. The remaining inheritance will be kept reerved until the ituation become clear.
The previou ituation wa when the miing peron himelf wa the heir. But if the miing peron himelf i the tetator, then when the waiting period pae and no new of him i found, the judge will iue a death ruling regarding him. Then whether it i hi peronal property or property he received from omeone a inheritance during the period of diappearance and it i preerved, all thi property will be ditributed among thoe heir who are alive at the time the judge iue the death ruling. Thoe who died during the waiting period will not be heir, becaue the judge' ruling wa iued after their death.
The condition for inheriting i that the heir mut be alive after the death of the tetator.
Thi i what I have, and Allah know bet what i correct.
