Hiba And The Disinherited Daughter: Strategic Use Of Gifts Under Muslim Personal Law To Circumvent Women's Inheritance Rights In India
- IJLLR Journal
- 53 minutes ago
- 1 min read
Vaishnavi Upadhya, KLE Law College, Bengaluru
ABSTRACT
Muslim Personal Law, regulated mainly by the Muslim Personal Law (Shariat) Application Act, 1937, follows the system of faraid established in the Holy Quran, whereby the Quran assures daughters of having a rightful share of their father’s inheritance. The system of faraid thus ensures that the inheritance rights of daughters in relation to ancestral property are protected. The problem, however, lies in the very structure of the system of faraid, which includes a provision known as hiba, where hiba implies the power of giving all of one’s possessions before death, without there being any limit on the amount that can be transferred in this manner. Once the three elements of hiba declaration, acceptance, and delivery of possession have been fulfilled, the courts have always found that hiba was validly performed and not inquired too deeply about the impact that this might have on the potential heirs. Based on a critical study of Supreme Court judgments, the structure of the faraid system, various reform schemes, and the experience of Muslim women, it is proved in this paper that Indian courts have opted for technicality over justice in matters of Muslim women's inheritance rights. In order to solve the problem of fraud committed against Muslim woman heirs through gift, it is suggested that a legislation must be introduced to create a rebuttable presumption of fraud in case an entire estate is gifted within a reasonable period before death.
