By G.M.Shakir (Adv.)

At the time the last message was being revealed to the humanity the whole world was in a state of chaos. All the previous books at religious scripts for the guidance of humanity had suffered changes either by addition, or deletion. Thus these books could not help the people to lead their life according to the directions of Allah. In this state of confusion weaker section of the society was most suffering and corruption was order of the day. The Quran refers to this state “Corruption doeth appear on land and sea because of (the evil) which men’s hands have done, that he may make them taste a part of that which they have done. In order they may return… Now when such state of affairs was in the world, how could there be a law in existence, which may do justice for all the persons.

The Arabian Peninsula was not an exception to this order. It was the custom by which all the governments where going on and the rights and duties of all individuals where determined by the customs and the Arabian Peninsula was not an exception to this rule. The Islam led a specific attitude towards custom. It abolished certain customs in totality and where need arised, the prophet (S.A.W) practically opposed the custom for instance in case of adoption the prophet (S.A.W) married his adopted sons divorced wife. Then another type of custom was strongly condemned for instance marrying the stepmother. The Quran issued the direction regarding this custom in the following words “And marry not those women, whom your fathers married”. Similar steps were taken for the abolition of custom of burying the daughters. The language used in the verse concerning the burial of daughters shows the attitude of Allah on the day of judgment that instead of asking the culprit reason for heinous act of killing daughter will be asked from the victim of offence “and when the girl child that was buried alive is asked, for what sin she was slain.” Some customs where such as could not have been abolished at once as doing so would have given rise to so many complicated problems for instance institution of slavery. There were certain customs regarding the succession, which were changed. For instance in the “days of ignorance” no share was provided to females in any capacity, descendants were preferred to ascendants. These customs where reformed so that the deserving relatives may get share and who deserves what was laid down by the Quran on the basis of nearness was decided by Allah himself as people do not have knowledge about it.

The Quran declares “your parents or children: ye know not which of them is nearer unto you in usefulness. It is an injunction from Allah. Lo Allah is knower, wise”. The verses of Quran brought substantial changes in the law relating to succession. Previously daughter, sons daughter, mother, wife where excluded from inheritance. The persons excluded whether male or female were now put in class first of heirs (sharers). These persons where technically called Zulfarooz. All the relations put in this class where weak. These are wife, daughter, son’s daughter, true grand mother, full sister, consanguine sister, father & mother, uterine sister as a general rule it was laid down that female in same class shall inherit half of the male as he has lesser financial liabilities. The son who was inheriting all in exclusion of daughter was made class second heir, in such a way that he is never excluded from he inheritance. The weakest of all was wife, who in the “days of ignorance” was totally destitute socially as well as economically. These where some major changes brought about by the law of succession.

The principle source of all the laws of Muslims is Quran and the Quran provide “Say obey Allah and the messenger. But if they turn away, lo Allah loveth not disbelievers (in his guidance). By this verse the another source of Islamic law is directions of the Prophet has legal importance and binding on Muslims. This has further been cleared by the other verse which reads “O ye who believe obey Allah and obey the Messenger and those of you who are in authority and if ye have a dispute concerning any matter, refer it to Allah and to his messenger if ye are in truth believer in the Allah and the last day that is better and more seemly in the end.” S by these commands it is clear that primary source of law in Islam is Quran and Hadith. Here it may be added that sunnat is an also important source and cannot be avoided just like Hadith. Both flow from the same authority and have equal value for the purposes of law. The Quran reads: “Say if you love Allah then follow me”. Anything which is in violation or contradictory to these sources of law it is unislamic so not binding. However the verse referred above makes it incumbent to obey the orders of the people who are in authority amongst Muslims, but his commands if opposed to primary source are to be rejected. That has been so agreed by all the four Khalifas, all the four religious scholars. It has strictly been laid down by the Quran. “Cooperate each other in cases of good and piety and do not cooperate with each other in case of sins…” The prophet has made it clear to obey only directions of Allah “No obedience to created in disobedience to creator”. Once such is the rule the custom has no place if it is hit by the basic sources of law. The words of the Hadith are self-evident that the Muslim shall not obey any person whose command or order which is in violation of Quran and the Prophet (S.A.W). Now the custom is nothing but demand of the society.

Certain writers are of the opinion that the custom is having some authority and so to be followed. At the same time their definition of custom “Uruf has relevance in the matter of mundane life only.” For instance weights and measures and currency etc. will be taken in consideration according to the custom of an area. The employees appointed to any post are not informed of there privileges like leave, medical benefits etc. however these matters will be governed by the custom in an area. The relevance of custom as per this definition does not come in between discharging the duties incumbent on a person religiously but it is very difficult to demarcate as to when any thing is religious and when mundane? A special kind of knowledge in which both the fields is necessary to say as to which custom is against the law and which not. The scholars who support custom are of the opinion that any custom which leads to disbelief Shirk and Bidah are to be rejected. Similarly the customs which may lead humanity to any destruction in future or having such tendency/result are to be discarded. In our society many customs have been adopted which are against the Islamic law of succession. One of such customs is division of property is not made immediately after the death of the person. It is delayed for so many years and distribution of property immediately is considered as shameful. Instead delaying the division among the concerned heirs is very wrong. If divided at the proper time it definitely will help discharging the debts of the deceased in time which is often delayed and the debtors complain of it so many times. The Prophet (SAW) has emphasized the discharge of debt immediately by saying “the person who is having money but delays the payment his honor and punishment to him becomes halal” and it has also been reported by Tirmidhi that Prophet (SAW) in reply to a question, to Qatada (RA) told that death in the cause of Allah is expiation to all the sins except the debts”.

There are the directions where the immediate payment of debt has been emphasized. Then the payment of dower which is also a debt is delayed and sometimes the widow is payed no dower till her death and whatever share she is having in property of her husband is also not paid due to delay. This is a serious interference with the law as it deprives her of right to inherit as well as right to get dower. Though the amount of dower is to be paid as soon as possible after the marriage but if it has not been paid during the lifetime of the husband it is to be paid after the death immediately. Considering the immediate division as shameful the right of creditors as well as widows is effected adversely. The another violation is caused with respect to the rights of orphans. The share remained mixed with the property and the elders spend out of joint property. Sometimes for their own benefit without any permission from the orphans. It has been held that doing so is filling belly with the fire. Even if the orphans give consent, it will not justify or legalize spending the property of minors as the consent of minor is no consent. Besides these orphans are living under the influence of major relatives and it becomes their duty not to make any undesired use of the property of orphans. The delay in distribution of property among heirs delays also those obligations which were on deceased but due one or other reason he could not discharge them during his lifetime. The will even if made by the deceased is not complied due to delay in division. Consequently the heirs get their rights but hesitate to discharge the duties towards deceased. Sometimes the widow may be interests in marriage but non-payment of share and dower causes a hurdle and she is deprived of her legal right. This is due to another custom, which disentitles the widow to inherit from the property of the deceased husband if she marries.

It is surprising that we adopt this custom which is not only against Islam but also we impliedly show the marriage after the death of one’s husband is a sin and is punished by not giving the share of inheritance to the lady. The most dangerous custom is of depriving the daughter of her right in succession usually practiced in some of the villages. This is gross violation of clear Quranic directions. Then the custom of granting more share to Khananishin daughter is also violation of the law. Granting more or lesser than what has been commanded is the violation of the law. The custom of adoption also touches the basic principles and needs complete abolition and this custom has already been discussed fully.