that the practice would be welcomed by the com-
munity. In 1934, the Lahore Full Bench argued that
a valid custom had to date back to time imme-
morial, rather than be the expressed wish of a
community (Indian Law Reporter1935). Thus, in
practice, the inheritance rights of Muslim daugh-
ters were similar to those of Hindu daughters.
Widows were favored over daughters to an
extent in being permitted the use of inherited prop-
erty, but without any powers of alienation. There
was evidence to prove that widows became maliks
or absolute proprietors in Dewa (Oudh). However,
in a 1929 landmark case, the Privy Council decided
that in the absence of sons, widows succeeded to a
life estate only, rather than one with survivorship.
The ruling brought the property inheritance rights
of Muslim widows to the same level as those of
Hindu widows (Murshid 2002). But, there was an
anomaly in the conceptualization of these rights. A
Hindu widow was permitted a limited inheritance
as a member of the husband’s joint family, whereas
a married daughter was not as she technically be-
longed to another family. However, the joint family
as a legal concept was not applied to Muslims in
matters of property ownership, although the notion
was invoked in mediating the inheritance claims of
Muslim widows.
These cases highlight three features. The limited
rights of inheritance by women demonstrate that
the administrative objective of preserving landed
estates was pursued at the cost of female owner-
ship. The colonial state reserved the right to deter-
mine customary law by selecting authentic custom.
Finally, it formulated Anglo-Muhammadan Law
through creating binding rules of decision, which
could only be overturned by acts of legislature.
Colonial officials admitted to interference in one
area only: that of inheritance and succession in the
case of apostasy. Through the 1850 Caste Disabil-
ities Removal Act (XXI), the legislature provided
that renunciation of religion or loss of caste would
not impair the right of inheritance in the Company
Courts (Grady 1869).
The workings of Anglo-Muhammadan Law were
unsatisfactory in that it placed too much emphasis
on custom in regions such as the Punjab, or on reli-
gion in provinces such as Bengal. Muslims resented
their inability to exercise absolute control over land
through powers of alienation, wills, or bequests of
more than one-third of their property. To a lesser
extent, they were concerned about the limited rights
of inheritance available to women (Murshid 2003).
It was in this context that the demand for a
Shariat act arose in western India. The Muslim
Personal Law (Shariat) Application Act 1937 over-304 inheritance: contemporary practice
rode all custom and usage in favor of personal law
in matters of adoption, inheritance, gifts, marriage,
divorce, trusts, wakfs, and so forth, and was made
binding on all Muslims.
After independence, the states of South Asia
modified their family laws, but left the minorities
untouched. There were few changes in Muslim
inheritance laws. The Hindu Code of 1956 recog-
nized formal equality between the sexes, but in
practice continued the status quo. The Succession
Act of 1956 favored the mitaksharasystem whereby
only males were coparceners, and had the right to
will away their shares in joint property. The right of
a daughter to a share in the self-acquired property
of her father was restricted. Husbands’ relatives
were given rights to inherit women’s property or
stridhan, not their parents. Moreover, fathers and
brothers often made women sign away their inher-
itance rights before they married. Thus the law and
the practice facilitated the disinheritance of women,
in the interest of preventing fragmentation. In real-
ity, it permitted individual males to dispose of their
properties without hindrance, which suited big
businesses (Kishwar 1994, 2156).
Opponents of the Succession Act cited Muslim
law to seek protection for Hindu women. In theory
at least, Muslims could will away one-third of their
property, or gift away all of it during their lifetime.
At wedlock, Muslim wives often received gifts in
property, which could not be affected by debt.
The only changes to the inheritance laws in
Pakistan and Bangladesh stem from the 1961
Muslim Family Laws Ordinance. It accepted the
principle of inheritance by grandchildren, where
the father had already died. While this principle
continues to be observed in Bangladesh, it was
annulled in Pakistan during President Zia ul-Huq’s
Islamization drive.Bibliography
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