well-educated, knowledgeable women, inheritance
claims are increasing and will increase further, but
Sharì≠a law will not allow for gender equality.
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Erika Loeffler FriedlSouth AsiaInheritance laws in South Asia fall within the
jurisdiction of personal laws. These are not univer-
sal, but are differentiated by religious denomina-
tion. However, in precolonial times, the civil law of
the land, now defined as customary law, tended to
be homogeneous. Thus Muslim daughters fre-
quently did not claim their full share of inheritance,
permissible under Qur±ànic laws. They gave their
share to their brothers to protect their right to
return to the family home in case of conflict, di-
vorce, or widowhood. Significantly, Hindu daugh-
ters rarely inherited from fathers under the laws of
the Dharmashastras (law books), but were permit-
ted a limited share under custom (Agarwal 1998).
Both were compensated through gifts mainly of
immovable property at the time of marriage, a
practice that continues today. The underlying prin-
ciples were to keep landed holdings intact so as to
maintain the power and prestige of families in the
male line.
The principle of property ownership and man-
agement by Muslim women was accepted, how-
ever. It was only under colonial rule, through the
introduction of the category of pardanishin,or
veiled lady, in an 1867 court case in Calcutta, that
officials sought to curtail their unlimited right of
property alienation: they were required to prove
that independent advice had been obtained before
making any transactions (Murshid 2002). Num-
erous cases under this category reached the Privy
Council, the highest court of appeal. These demon-
strate the wealth of the litigants, and the fact that
women inherited landed property both as daugh-
ters and as widows.
south asia 303From the nineteenth century, inheritance rights
of Indians were regulated through customary prac-
tice, legislation, and court proceedings. The con-
trary claims of religion and custom under British
colonial rule determined the regional variation in
the nature and implementation of inheritance laws.
Religion was paramount in formulating the inheri-
tance laws of Bengal, whereas, in the Punjab, cus-
tom defined those rights (Mahmood 1977).
Contrary to popular perceptions, personal laws
were not always based on perceived religious
injunctions. For example, through an 1847 land-
mark decision, the Bombay Supreme Court exemp-
ted the Khojas and Memons from the application
of Anglo-Muhammadan Law, which would have
permitted daughters a share of the inheritance.
Justice C. J. Perry argued that the Company
Charter had made no absolute enactment for the
adoption of the Qur±àn in matters of inheritance,
and that the practice of excluding females from
inheritance had become a Muslim custom (Perry
1988 reprint).
Appealing to religion to bring about legal changes
was common. Based on the Qur±ànic principle that
charity begins at home, Muslims created family
endowments and charitable trusts (wakfs) to pro-
tect future generations from hardship and poverty.
Only the remaining properties were available for
disposal under inheritance laws. Classical theory
acknowledged that although Islamic inheritance
laws were egalitarian, they led to the fragmentation
of properties, and eventually made them economi-
cally unviable. British Orientalists, like their French
counterparts in Algeria, argued that these endow-
ments were un-Islamic (Powers 1989). Indian
courts held that endowments had to be primarily
charitable to be legal under Islamic law. Muslims
were accused of wanting to escape the rules of their
religion. The effect of this ruling was to break down
large holdings, cripple the old aristocracy, and free
up land for the land market. It was only through
popular pressure backed by political mobilization
that the Privy Council decision was overturned
through legislative enactments. Indian Muslims led
by Muhammad Ali Jinnah and supported by the
Congress Party secured the Muslim Wakf Valid-
ating Act 1913. However, it was given retroactive
effect only after the passage of the Muslim Wakf
Validating Act 1930. The long-term impact was to
diminish the practice of establishing family endow-
ments in South Asia.
The courts often deprived women of the owner-
ship of property: daughters frequently were not
permitted to inherit, even if it could be proved
through the record of customs called the Riwaj-i-am