Source: Fiqhi Rulings and Issues in the Light of Quran and Hadith, Inheritance Issues: Volume 02: Page 224
All praise is due to Allah, and blessings and peace be upon the Messenger of Allah. To proceed!
The issues mentioned in the previous articles regarding inheritance were related to those cases in which the death of the deceased (the testator) is certain and absolutely clear, and likewise, the presence of the heir at the time of the death of the testator is also certain. These are all clear cases in which there is no doubt or difficulty of any kind.
Now it is intended to explain the cases in which the death of the deceased or the life of the heir is not certain and clear. Sometimes the condition of the deceased's death or the heir's life becomes doubtful, for example: the state of a fetus in the womb, persons drowned in water, persons buried under a house or wall, a missing person, or doubt about whether an heir is male or female, such as a difficult hermaphrodite (khuntha mushkil), about whom it is difficult to decide whether he is male or female. Similarly, the reality of a fetus in the womb is sometimes not clear.
Due to the doubt in the condition of these mentioned persons, the following chapters are mentioned so that the true situation becomes clear.
Explanation of Khuntha Mushkil
The word Khuntha is derived from "Ankhnath," which means to be soft, broken, or bent. "Khuntha Famm al-Saqa" is said when a person breaks the mouth of a water-skin and drinks water from it.
In the terminology of inheritance law, a khuntha mushkil is a person whose physical condition is doubtful, meaning that they have both male and female genitalia, or they have no genital organ at all, neither male nor female.
A khuntha person can be from any of the categories of paternity, brotherhood, maternal unclehood, or guardianship, because in each category there is a possibility of them being male or female. However, they cannot be from the category of parentage (father, mother, grandfather, grandmother), because if that were the case, their physical condition would not remain doubtful, meaning they would not be a khuntha mushkil. Also, it is not possible for a khuntha mushkil to be a husband or wife, because if they are khuntha mushkil, their marriage is not valid.
❀ ① Allah Almighty has created the children of Adam as either male or female, as Allah Almighty says: __ARABIC_N__
﴿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 soul and created from it its mate and dispersed from both of them many men and women. And fear Allah, through whom you ask one another, and the wombs. Indeed, Allah is ever, over you, an Observer."
Reference: An-Nisa:1
And in Surah Ash-Shura it is stated:
﴿لِلَّهِ مُلكُ السَّمـٰوٰتِ وَالأَرضِ يَخلُقُ ما يَشاءُ يَهَبُ لِمَن يَشاءُ إِنـٰثًا وَيَهَبُ لِمَن يَشاءُ الذُّكورَ ﴿٤٩﴾... سورة الشورىٰ
"To Allah belongs the dominion of the heavens and the earth. He creates what He wills. He gives to whom He wills female [children], and He gives to whom He wills males."
Reference: Ash-Shura 42:49
Then Allah Almighty stated the ruling for each of the two, but no ruling was stated for a person who is both male and female. Therefore, this is evidence that these two attributes, i.e., feminine and masculine, cannot be combined in one person. And how can this be possible when Allah Almighty has placed distinguishing signs and such characteristics in both genders that clearly differentiate them? However, despite this, confusion sometimes arises because both types of organs, i.e., male and female, are present in their body.
❀ ② Scholars have unanimously agreed that a hermaphrodite will be associated with the masculine or feminine gender based on their predominant characteristics. For example, scholars hold the opinion that the decisive factor in making a hermaphrodite an heir is the manner of urination. If they urinate in the manner of a male, they will be considered male, and if they urinate in the manner of a female, they will be considered female, because generally this condition distinguishes one gender from the other.
Reference: It was asked from Sayyiduna Ali (may Allah be pleased with him) about a person who has both male and female organs, which inheritance should be given to him, i.e., the male share or the female share? He replied, "The organ from which he urinates." Similar narrations are also reported from Sayyiduna Umar (may Allah be pleased with him), Qatadah (may Allah be pleased with him), and Jabir (may Allah be pleased with him). Al-Bayhaqi (Saarim)
.And the organ from which urine does not exit will be considered a defect and an extra organ. If urine comes from both passages, the one from which more urine comes will be considered valid. If initially urine was passed from one organ, and later it started coming from both, then the first condition will be considered valid. And if urine comes equally from both passages in terms of time and quantity, then the appearance of other signs will be awaited until puberty. Until then, the person will be considered a difficult hermaphrodite.
Some signs that appear at puberty are specific to males, such as: the growth of mustaches, the appearance of a beard, and the discharge of semen from the penis, etc. If even one of these signs appears, the person will be considered male. Similarly, some signs are specific to females, such as: menstruation, the appearance of pregnancy, and the prominence of breasts. If even one of these signs appears, the person will be considered female.
❀ ③ If none of the male or female characteristics appear, then the person is a difficult hermaphrodite, and if there is no hope of physical change, whether or not there are other heirs with them, the scholars have the following opinions regarding the distribution of inheritance:
✔ 1. Some scholars hold the view that the hermaphrodite will be given the lesser share of the two parts, i.e., male and female, while the other heirs will receive the larger share. And if the person is an heir in one respect and not an heir in another, then they will be considered a non-heir.
✔ 2. According to some scholars, if there is hope for a change in their physical condition, such a hermaphrodite is called marja (one whose clarification is expected), and they and their co-heirs will be given a smaller share, while the remaining share will be reserved until their physical condition becomes clear or the heirs reach a suitable settlement.
✔ 3. Some scholars hold the opinion that the share of a hermaphrodite will be half of the male share and half of the female share
Reference: For example: if the male share is one rupee and the female share is fifty paisa, then the hermaphrodite will receive seventy-five paisa. (Saarim)
, even if there is a difference between the two shares. If the heir is determined by only one consideration, i.e., male or female, then half of that share will be given. This ruling applies in both cases, whether there is hope for the hermaphrodite's condition to change or not.✔ 4. The view of some scholars is that if there is hope of a change in this, then the hermaphrodite and the co-heirs with him will all be given a smaller share, because that much share is certain, and the remaining property will be kept reserved until the situation becomes clear. And if there is no hope of change, then he will be given half the share of both the male and the female, provided that he is an heir in both conditions. And if he is an heir in only one condition, i.e., male or female, then he will be entitled to half of that share. And Allah knows best.
Explanation of the Inheritance of the Fetus
Sometimes the fetus is also included in the list of heirs, but its condition is uncertain as to whether it will be born alive or dead, whether it will be one or more, female or male. Due to these various possibilities, the ruling also changes. This is why the scholars have explained the issues of the fetus with great care and have established a separate chapter on the fetus in the books of inheritance.
The child in the womb is called "fetus." When the "deceased" passes away and among his heirs there is a fetus, sometimes it is an heir in every respect, sometimes it is barred in every respect, and sometimes it is an heir in some respects and barred in others, provided it is alive at the time of birth.
For a fetus to unanimously become an heir, two conditions must be met:
◈ ① Being present in the womb at the time of the deceased's death, even if only in the form of semen.
◈ ② Clear signs of life must be found at the time of birth. The Messenger of Allah, peace be upon him, said:
"إِذَا اسْتَهَلَّ الْمَوْلُودُ وَرِثَ "
"If the child cries out loudly, he will be made an heir."
Reference: Sunan Abi Dawood, Al-Fara'id, Chapter on the newborn who survives then dies, Hadith 2920
One meaning of "Istihlal" is as shown in the translation; however, according to some scholars, it means that any sign of life is found in it, not necessarily crying, for example: sneezing or moving, etc., because these are conditions from which signs of life can be known. This is the second condition.
Now, the first condition, i.e., the presence of pregnancy at the time of the "Moorith's" death, will be fulfilled when the pregnant woman delivers the child within the prescribed period, and this period can be minimum or maximum depending on different circumstances.
After the death of the Moorith, there can be three situations regarding delivery:
❀ ① Delivery occurs within the minimum gestation period from the time of the Moorith's death. In this case, the fetus will absolutely be an heir because delivery within this period is proof that the fetus was present in the womb at the time of the Moorith's death.
It should be noted that the minimum gestation period is six months, and there is consensus among scholars on this. Allah Almighty says: __ARABIC_N__
﴿وَحَملُهُ وَفِصـٰلُهُ ثَلـٰثونَ شَهرًا...﴿١٥﴾... سورة الاحقاف
"The period of pregnancy and weaning is thirty months."
Reference: Al-Ahqaf:46:15
Also, the Divine command is:
﴿وَالوٰلِدٰتُ يُرضِعنَ أَولـٰدَهُنَّ حَولَينِ كامِلَينِ...﴿٢٣٣﴾... سورة البقرة
"Mothers shall breastfeed their children for two full years."
Reference: Al-Baqarah:2/233
Reflecting on these two verses, it becomes clear that if from the thirty months, the nursing period of two years, i.e., twenty-four months, is subtracted, six months remain, which is the minimum duration of pregnancy.
❀ ② The delivery should occur after the death of the deceased and after the maximum duration of pregnancy has passed. In this case, the fetus will not be an heir, because delivery after such a long period indicates that the fetus did not exist at the time of the deceased's death, but rather the pregnancy began after the death of the deceased.
Regarding the determination of the maximum duration of pregnancy, scholars have three opinions:
✔ 1. The maximum duration of pregnancy is two years, as stated by Umm al-Mu'minin Sayyida Aisha رضي الله تعالى عنها: "The womb of the mother does not carry the pregnancy for more than two years."
Reference: Al-Sunan al-Kubra by Al-Bayhaqi: 7/443
Such a statement is not related to Ijtihad, therefore it is a "Marfoo' Hadith," meaning it is a command from the Messenger of Allah صلى الله عليه وسلم.✔ 2. The maximum duration of pregnancy is four years.
✔ 3. Often, the duration of pregnancy is five years.
According to us, the most correct opinion is that the maximum duration of pregnancy is four years, because there is no explicit evidence in the Quran and Sunnah limiting it, so we refer to actual occurrences. Accordingly, there are many such incidents where the pregnancy remained in the mother's womb for four years.
❀ ③ Short-term pregnancy, that is after six months, and often miscarriage before the full term of pregnancy. In this case, if her husband or master is present and has been intimate with her, then the fetus will not be an heir of the deceased, because the existence of the fetus at the time of the deceased's death is not certain. It is possible that the fetus was conceived after the death of the deceased.
And if during this period there was no intimacy with her, for example: her husband or master was not present, or was absent from her, or due to some incapacity or abstention, he refrained from intimacy, then the fetus will be an heir, because its existence is established from the deceased.
Scholars agree that when a child cries out after birth, it proves life. There is disagreement regarding other matters, such as the child’s movement, sucking milk, or breathing. Some scholars consider only the cry as valid and do not include other matters. While some scholars consider every sign that indicates life along with the cry as valid, and this is the prevailing view, because the words of the hadith "اسْتَهَلَّ" do not mean only crying, but according to some scholars, movement etc. are also included. And even if, hypothetically, "اسْتَهَلَّ" means only crying or sound, it does not prevent reasoning through other signs. And Allah knows best.
Method of assigning a share to the fetus
When among a person's heirs there is an unborn child whose status as an heir is unknown, and the heirs demand the division of the inheritance before the child's birth, it is appropriate to wait for the child to be born to avoid disputes, so that the situation becomes clear and the inheritance is divided only once.
If the heirs do not agree to delay the division of the inheritance and wait for the birth, can the inheritance be divided or not? There are two opinions among the scholars on this matter:
✔ 1. They should not be allowed to divide the inheritance because the status of the unborn child is uncertain, and it is also possible that there may be more than one child, which would affect the shares of the unborn child and the other heirs. Therefore, it is necessary to wait until the situation becomes clear after the birth.
✔ 2. Heirs are entitled to demand the distribution of the inheritance, and they cannot be forced to wait for the gestation period, because it causes them harm. It is possible that they are so needy and poor that waiting for the long gestation period is difficult for them. As for the fetus, a maximum share can be reserved for it as a precaution. In summary, there is no mandatory reason to delay the distribution of the inheritance.
The second opinion seems stronger, but among its proponents there is disagreement about how much of the inheritance should be reserved for the fetus, because the actual reality of the fetus is known only to Allah Almighty. There are many possibilities, for example: whether the fetus will be born alive or dead, whether there will be one child or more, whether it will be a boy or a girl. Undoubtedly, these possibilities affect the rights of the heirs. There are three well-known opinions regarding the amount of the share reserved for the fetus:
✔ 1. It is difficult to determine the number of fetuses because it is not possible to know how many children a woman is carrying in her womb. However, among the heirs who share in the inheritance along with the fetus, if a person is an heir in one scenario and barred in another, or if he is an 'asaba (agnate), then such a person will not be given anything from the inheritance. And if a person is an heir in every scenario but receives a smaller share in one case and a larger share in another, he will be given the smaller share. And the one whose share does not differ in any case, whether the fetus is a boy or a girl, will receive the full share. After that, the remaining share will be kept reserved until the situation of the fetus becomes clear.
✔ 2. A larger share of the inheritance will be reserved for the fetus, and a smaller share for the other heirs. The share of two boys or two girls for the fetus, whichever is greater, will be reserved, and the co-heir will receive a fixed share. Then, when the fetus is born and the situation becomes clear, if the fetus is entitled to the majority of the suspended property, it will be given; and if the suspended share is less, the deficiency in its share will be recovered from the heirs.
✔ 3. A share of one boy or one girl, whichever is greater, will be reserved for the fetus, because generally a woman gives birth to only one child, so the ruling will be based on the prevailing and common custom.
It is obligatory upon the judge to appoint a guardian for the fetus from among the heirs, because the fetus is incapable of taking care of its own interests. The guardian will be responsible for ensuring that each rightful heir receives their due share in case of any changes in the shares after the birth.
According to us, the second opinion is based on caution and justice, because the occurrences of the birth of two children happen frequently, while the occurrences of the birth of more than two children are rare.
According to the preferred opinion, there can be six states 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 boys.
◈ ⑥ Both will be girls.
A separate issue will be made for each case, and according to the calculation, each heir among the other heirs will be given their share. The heir whose share is the same in every case will be given the full share. The one whose share is less in one respect and more in another will be given the lesser share. And the one who is an heir in one respect and a non-heir in another will be deprived. The remaining inheritance will be suspended and preserved until the situation becomes clear with the birth of the child, as explained above. And Allah knows best.
Statement on the Inheritance of a Missing Person
The literal meaning of "missing" is "nonexistent or lost item." The meaning of "فقدت الشیء" is: "I searched for the thing but could not find it." Here, "missing" refers to a person who is absent, meaning someone who has disappeared to such an extent that it is unknown whether they are alive or deceased.
The reasons for their disappearance can vary, for example: someone went on a journey, or went to fight, or a shipwreck occurred, or disbelievers took them captive, and then it became unknown where they had gone.
During disappearance, there is uncertainty about whether the missing person is alive or deceased. Each of these two situations has specific rulings, for example: the rulings concerning his wife, the missing person's own inheritance, others sharing with him, inheriting from the missing person, etc. It is not possible to prefer one of these potential situations over the other; therefore, it is necessary to set a period during which his actual condition can be determined. When that period passes, it is considered evidence of the missing person's death.
Due to this necessity, the scholars have agreed on setting a period, but they differ regarding its length. There are two opinions about this:
✔ 1. The ijtihad of the judge is valid in determining the duration, because the life of the missing person is the original premise, and this premise will be maintained in the form that is certain or equivalent to certainty. In short, the decisive matter is the ijtihad of the judge, whether the prevailing assumption is in favor of his safety or death, and whether he went missing before or after the age of ninety. He will be awaited until there is evidence of his death, or until such a period passes that it becomes the prevailing assumption that it is no longer possible for him to be alive. This is the opinion of the majority.
✔ 2. There is some detail in this opinion, because the missing person can be in different states:
❀ A situation in which the aspect of the missing person's death is predominant, for example: if he got lost at the place of death, or went missing in the midst of fighting ranks, or a ship sank in which some people died and some survived, or a person left his home or city for prayer but did not return. Such a person should be awaited for up to four years from the time of disappearance
Reference: The evidence is the decision of Sayyiduna Umar رضي الله عنه in which he said that if a woman's husband goes missing and there is no news of him, she should wait for four years. Then she should observe the 'iddah of death for four months and ten days. Al-Muwatta of Imam Malik, Divorce chapter, The 'Iddah of the one whose husband is missing 2/119
.Because this is a period during which travelers and merchants come and go repeatedly. If no news is received during this period, the prevailing assumption will be that he is not alive.
❀ And if there is a strong presumption that the missing person is alive and safe, for example: he went on a journey for trade, tourism, or seeking knowledge, and then no news was received about him, then such a person will be awaited from the time of birth until the age of ninety years, because generally a person does not live beyond this age
Reference: Determining the period from birth to ninety years is as unreasonable as it is immovable, because if at the time of disappearance a person's age was one or two days less than ninety years, then waiting for one or two days is not correct in any way but rather a corrupt matter. Because no one supports such a long period for discussion and search. (Saarim)
.According to us, the first opinion is the most correct and reliable, which is that the waiting period for the missing person is dependent on the ruler's ijtihad, because due to differences in cities, individuals, and circumstances, the situation also varies. Moreover, in today's era, means of information and communication are common and fast, to the extent that the whole world has shrunk to the size of a city, and the conditions are no longer like those of earlier times.
If any heir of the missing person dies during the waiting period
✔ 1. If there is no other heir besides the missing person, then the entire inheritance should be preserved until the waiting period is completed or the situation becomes clear.
✔ 2. If there are other heirs of the deceased along with the missing person, then scholars have different opinions regarding the method of dividing the inheritance. Among these, the most correct opinion, agreed upon by a large number of scholars, is that the other co-heirs should be given a smaller share, which is certain, and the remaining inheritance should be preserved.
The general rule regarding this is that the correction of the issue will first be made by assuming the missing person to be alive, and then the correction of the same issue will be made by assuming him to be dead. Now, if a person is an heir in both cases but has a smaller share in one case and a larger share in the other, he will be given the smaller share. And the one who gets an equal share in both cases will be given his full share. And the one who gets a share in only one case and not in the other will be given nothing. The remaining inheritance will be kept reserved until the situation becomes clear.
The previous situation was when the missing person himself was the heir. But if the missing person himself is the testator, then when the waiting period passes and no news of him is found, the judge will issue a death ruling regarding him. Then whether it is his personal property or property he received from someone as inheritance during the period of disappearance and it is preserved, all this property will be distributed among those heirs who are alive at the time the judge issues the death ruling. Those who died during the waiting period will not be heirs, because the judge's ruling was issued after their death.
The condition for inheriting is that the heir must be alive after the death of the testator.
This is what I have, and Allah knows best what is correct.
