LongBench v2 / 67040276bb02136c067cd8ae / In the context of Islamic inheritance law, where the shares of male and female…

The Islamic Legal Provisions for Women’s Share in the 
Inheritance System: A Reflection on Malaysian Society
Raihanah Abdullah
University of Malaya, Malaysia
Wirdati Mohd Radzi
University of Malaya, Malaysia
Fuadah Johari
Universiti Sains Islam Malaysia (USIM), Malaysia
Golam Dastagir
University of Malaya, Malaysia
Abstract
Characterized as divinely ordained, the Islamic law of inheritance defines women’s 
rights to property of the deceased with specific roles and responsibilities for each 
individual. Obviously, the Islamic law of inheritance is a major contribution to the 
legal system of the world, compared to the customary laws in the pre‐Islamic Arab 
society that denied any proprietary right by way of inheritance to female relatives 
including daughters. However, the jurisprudential inquiry into the legal nature of 
inheritance rights of women entails a close analysis of various factors, including 
the contemporary socio‐economic conditions of Muslim women. This paper revisits 
the historical and social aspects of the Islamic legal provisions with regard to in-
heritance rights in an effort to determine if the legal provision has merits to be 
implemented in light of the changing socio‐economic conditions of women in 
Muslim majority states. It argues that a much clearer position that reflects the chang-
ing role of women needs to be postulated, though the challenge is to determine 
whether the Islamic epistemological position allows any room for restructuring the 
Islamic legal provision from the perspective of the current situation of Muslim 
nations such as Malaysia. An examination of the position of Muslim women’s rights 
to property on the basis of the ontological, epistemological, and methodological 
aspects of legal rulings in Islam prompts us to call for a novel method of thinking, 
understanding, and implementing the Islamic inheritance provisions against the back-
drop of the present globalized but stereotyped Muslim world. To that end, it con-
cludes with the suggestion of enacting what can be called in modern terms “by‐laws” 
within the Islamic framework in juxtaposition with the existing law of Islamic society 
in general, and that of Malaysia in particular.
Key words
Muslim women, inheritance law, Islamic law, Malaysia


30  ❙  Raihanah Abdullah⋅Wirdati Mohd Radzi⋅Fuadah Johari⋅Golam Dastagir
Introduction
Women in modern times occupy a large percentage of the workforces 
in management and professional positions. With the rapid development 
of global economy more women tend to be moving away from their 
traditional roles of housewives and childcare providers to identify them-
selves as professionals and wage earners in order to eke out additional 
income for their families, a role which even a few years ago rested sole-
ly upon men’s shoulders in Muslim nations. According to the 
International Labour Organization (ILO), the number of women in the 
labour market will increase from 38 percent in 1970 to over 41 percent 
by the year 2020 (A. Omar & Davidson, 2001).
It is noted that women’s participation in the global workforce is a di-
rect response to the increasing pressure of modernized society, which 
is dominated by what may be called ‘capitalist economy’ and 
‘industrialisation’ (Giddens, 1990), ‘rationalization’ (McClennan, 1992) 
and even ‘secularization’ (Hamilton, 1992). Put simply, this is 
‘modernity,’ which Eisenstadt (1966) cited in Kiely & Marfleet (1998) as 
“The process of change towards those types of social, economic and 
political systems that have developed in Western Europe and North 
America” (Eisenstadt, 1966, p. 1).
Eisenstadt’s definition suggests that for societies to be ‘modern’ and 
‘developed,’ nation states or societies must initiate a changing process 
reflecting the social, economic and political systems such as those found 
in the Western world. Interestingly, religious matters as a facet of social 
life are being discussed more openly in recent years in the context of 
the changing patterns of modern social and economic life. As one of 
the fastest growing religions in the world today (Nagata, 1994), Islam 
is concerned with issues that need reconsideration. Muslims believe that 
Islam is not just a religion but also a complete social order and ‘a way 
of life’ for them. However, more often than not, Islam is charged with 
not holding a favourable position for women, though Hashim (1999) re-
marks that “…although these charges are levelled at all major religions, 
Islam in particular has a reputation for being ‘anti‐woman’ and for sup-
porting a segregated social system where women are economically and 
politically marginalised” (Hashim, 1999, p. 7).
Muslim scholars generally disagree with such a view, arguing that the 


Asian Women 2014 Vol.30 No.1  ❙  31
Qur’ān provides for equal rights of both sexes. Muslims are normally 
suspicious of feminist movements, for they see feminists’ emphasis on 
equal rights as opposed to the Islamic notion of the complementary 
roles and functions of both sexes, with corresponding rights and duties 
that they believe further reflect each sex’s particular strengths and weak-
nesses (Hashim, 1999). The changing political borders and the aftermath 
of modernization processes (for instance through the colonization of 
many Third World countries in the modern period) pose further di-
lemmas for nation‐states with predominantly Muslim population to 
maintain the Sharīʿah as the law of the land against the onslaught of post
‐colonialist, Western legal systems. In effect, it is the legal system that 
is one of the most controversial issues in Islam, particularly with regard 
to the gender problem. The constitutions of many Muslim states have 
inherited a marked legacy from the Western imperialists and Islam is of-
ten declared as the ‘Official Religion,’1 but with no real legal jurisdiction 
over the life of Muslims.  However, Muslims can draw from the Sharīʿah 
law directly concerning personal and family matters, such as marriage 
and divorce, settlement of divorce (property), guardianship of infants 
and children, conversion and other non‐public matters. In some coun-
tries, Islamic criminal law is being practiced and enforced. Interestingly, 
Muslim women are, perhaps unsurprisingly, most affected by the admin-
istration of this selective implementation of Islamic personal laws as well 
as Islamic criminal law. Many feminist movements in Muslim societies2 
seem to have arisen from the reaction of Muslim women over the 
‘injustices’ they have undergone for ages under the law in question 
(Abdullah & Khairuddin, 2009).
Muslim Women’s Rights to Inheritance (Mirath)
In the pre‐Islamic Arab world, women in general were deprived of 
fundamental human rights, except for those with high status. John L. 
1 Such as the case of the Malaysian Constitution; Article 2 proclaims in effect that Islam is 
the official religion of the Federation although other religions are not hindered from being 
practiced. 
2 A vast number of works had documented the ‘plight’ of women in predominantly Middle 
Eastern Muslim societies. See for example Riphenburg 1998; Stowasser 1998; Roded 1999.


32  ❙  Raihanah Abdullah⋅Wirdati Mohd Radzi⋅Fuadah Johari⋅Golam Dastagir
Esposito (2001) has shared the views of other scholars and argued that 
the status of women was inferior during the Jahiliyyah (literally meaning 
“ignorance”) period. The inferior status ascribed to women during this 
period was evident through the practices and customs of the Jahiliyyah 
people in matters concerning family and social life.3 During the pre‐
Islamic period, the customary laws in Arab society did not allow female 
relatives including daughters to enjoy any proprietary right by way of 
inheritance. Not only that, but the wife was completely deprived of any 
right whatsoever in the property of her deceased husband, not to men-
tion, cognates, who were totally excluded. The Qur’ān has indeed clearly 
provided a respectable status to women. Fazlur Rahman (2003) explains 
this as follows:
The teaching of the Qur’ān on the subject of women is a part 
of its effort to improve the condition of, and strengthen the 
weaker segments of society in pre‐Islamic Arabia–orphans, 
slaves, the poor, women, etc. – segments which had been 
abused by the stronger elements in the society.4
Islam introduced some outstanding changes in the Arab world includ-
ing changes that improved the dignity of women. Of the major im-
provements over the customary Arab laws some important features in-
clude a female’s right to inheritance, a widow’s inclusion in the in-
heritance law, and a daughter being an heir, etc. It is often argued the 
goal of the reforms brought about by the Qur’ān is to ensure that  
women are not victimized.  Of course, these reforms have raised the 
status of women by establishing certain rules and regulations in relation 
to the family institution.5 This shows that the Qur’ān did not introduce 
3 Esposito, John L., Women in Muslim Family Law, pp. 14-15; Stowasser, B.F., “The Status 
of Women in Early Islam,”  in Freda Hussain (ed.), Muslim Women, Croom Helm, 1984, 
p. 15; Fazlur Rahman, “Status of Women in the Qur’ān,” in Guity Nashat (ed.), Women 
and Revolution in Iran, Westview Press Inc., 1983, p. 37.
4 Rahman, Fazlur, “Status of Women in the Qur’ān,” in Guity Nashat, Women and Revolution 
in Iran, p. 37.
5 Ali, Ameer, The Spirit of Islam, p. 227. See also Esposito, John L., Women in Muslim Family 
Law, p. 13.


Asian Women 2014 Vol.30 No.1  ❙  33
polygamy but rather reformed the practice.  As for the legal inheritance 
on the women, four verses of the Surah an‐Nisa’ of the Qur’ān are of-
ten quoted, these being 4, 11, 12, and 176. Of these, the verse seven 
states that (Ibn Kathir, 2000):
Unto the men (of a family) belongeth a share of that which 
parents and near kindred leave, and unto the women a share 
of that which parents and near kindred leave, whether it be 
little or much–a legal share (Q. IV, p. 7).
The aforesaid verse precisely reveals to us that Islam provides a legal 
provision for women on the rights of inheritance. Furthermore, the 
male must provide his bride with a matrimonial gift, and this usually 
takes the form of tangible or intangible property, which shall belong to 
the wife, even if she happens to be divorced in her later life. In sum, 
a married Muslim woman’s financial rights are ascertained from a variety 
of sources on many contingent conditions – her dower (mahr) at the 
start of her married life, full maintenance during her married life and 
share of inheritance from her family, which excludes her share from her 
husband’s property as well as the unique provision of Harta 
Sepencharian (Malay: property jointly acquired) for Muslim women in 
Malaysia (Abdullah, Martinez, & Radzi, 2010). Thus, the Muslim wom-
en’s right to property tends to be equitably secured.
Islamic Legal Provisions for Muslim Women’s Share in the Inheritance 
System
The Islamic legal provision for inheritance is a complicated law. 
Islamic law of inheritance ordains the share of inheritance, which an 
heir is entitled to, as a predetermined percentage. For instance, the 
wife’s share is determined at  of a portion of the property, if the de-
ceased husband left no child and  shares if the deceased left a child. 
There are six portions preordained in the Qur’ān cited as fractions of 
, , , ,  and  (Wan Harun, 2006, p. 82). The much‐talked about 
source of this share system lies in two verses of the Qur’ān (IV, pp. 
11‐12), the first of which states: 


34  ❙  Raihanah Abdullah⋅Wirdati Mohd Radzi⋅Fuadah Johari⋅Golam Dastagir
God (thus) directs you as regards your children’s (inheritance): 
to the male, a portion equal to that of two females: if only 
daughters, two or more, then their share is two‐thirds of the 
inheritance; if only one, her share is a half. For parents, a sixth 
share of the inheritance to each, if the deceased leaves 
children; if no children, and the parents are the (only) heirs, 
the mother has a third; if the deceased leaves brothers (or 
sisters) the mother has a sixth. The distribution in all cases is 
after the payment of legacies and debts. Ye know not whether 
your parents or your children are nearest to you in benefit. 
These are settled portions ordained by God… (Q. IV, p. 11).
There is no doubt that the Qur’ān lays down the policies of how the 
women will inherit deceased persons’ property. However, the con-
troversial rule is that the female share is half the male, except for the 
cases in which the mother receives a share equal  to that of the father. 
The majority of the culama rationalize that in order to understand the 
reason behind the rule one must take into account the fact that a hus-
band or a male’s financial obligations surpass those of the female. In 
Islam, the man is believed to be primarily responsible for his family–in 
all matters of daily necessities right up to the family’s safety, security 
and future. In addition, the man is also responsible for the welfare of 
his parents, as well as other female members of his family for as long 
as they remain unmarried. Islam does not deprive any inheritor of their 
legal right to property. As there is provision for women, so is for men 
as to the right to property of the deceased, though there is a difference 
of ratio between them (Fattah, 2004, p. 1121). As for the clarity of the 
distribution of property, the Qur’ān also lays down:
In what your wives leave, your share is a half, if they leave no 
child; but if they leave a child, ye get a fourth; after payment 
of legacies and debts. In what ye leave, their share is a fourth, 
if ye leave no child; but if ye leave a child, they get an eighth; 
after payment of legacies and debts. If the man or woman 
whose inheritance is in question, has left neither ascendants 


Asian Women 2014 Vol.30 No.1  ❙  35
nor descendants, but has left a brother or a sister, each one 
of the two gets a sixth; but if more than two, they share in 
a third; after payment of legacies and debts; so that no loss 
is caused (to any one). Thus is it ordained by Allāh (Q. IV, 
p. 12).
In the above distribution system enshrined in the Qurсān, which is an 
injunction by definition of Islamic law, an important provision is “…af-
ter payment of legacies and debts.” It is also to be noted that in the 
passage “In what ye leave” and in the clause “…if ye leave a child,” 
by the term “ye” is meant “husbands.” On the other hand, the term 
“they” in the passage “…if they leave no child” is directed at “wives.” 
On the basis of the above verses, shares of the predetermined heirs 
could be categorized as follows in Table 1.
Table 1 Epistemological Evidence of Inheritance Shares Based on the Qur’ān 
(IV, p. 11‐12)
Share Portion
Epistemological Evidence from the Qur’ān
God (thus) directs you as regards your children’s (inheritance): to the male, a portion 
equal to that of two females 
if no children, and the parents are the (only) heirs, the mother has a third
if only daughters, two or more, their share is two-thirds of the inheritance
 
but if they leave a child, ye get a fourth; after payment of legacies and debts
if the man or woman whose inheritance is in question, has left neither ascendants nor 
descendants, but has left a brother or a sister, each one of the two gets a sixth
if ye leave no child; but if ye leave a child, they get an eighth; after payment of legacies 
and debts
[Wan Harun, (2006, p. 82), with slight modification]
As can be seen from the above, there are twelve sharers in number: 
husband, wife, father, mother, daughter, son’s daughter, true grand-
father, true grandmother, full sister, consanguine sister, uterine sister, 
and uterine brother. The gender‐based classification of these sharers as 
male and female, shows that the female heirs outnumbers the male 
ones, as the former are eight in number, while the latter, only four. 


36  ❙  Raihanah Abdullah⋅Wirdati Mohd Radzi⋅Fuadah Johari⋅Golam Dastagir
Furthermore, all these twelve sharers can be categorized as primary heirs 
and secondary heirs. Among the twelve sharers five heirs are never ex-
cluded and they belong to the primary category of heir. They are hus-
band, wife, father, mother, and daughter. On the other hand, seven 
heirs may be totally excluded under certain circumstances, and thus they 
belong to the secondary category of heir. They are true grandfather, true 
grandmother, son’s daughter, full sister, consanguine sister, uterine sister, 
and uterine brother. However, of the twelve sharers, son’s daughter, 
grandfather and grandmother are not explicitly mentioned in the Qur’ān; 
rather, they are added to the list as substitute heirs on the basis of 
al-qiyās (similarities between the new and the old cases treated in either 
the Qur’ān or Ḥadīth) introduced in the source of fiqh (Islamic juris-
prudence) during the era of the Righteous Caliphs (632‐661).
So, we see that all legal female heirs are essentially predetermined por-
tion (furudh); for instance, a daughter will get ½ of the inheritance, 
whereas several daughters will inherit ⅔ of the property. This contra-
dicts the legal heirs that inherit through casabah (undetermined) shares 
applied to such cases in which the share portion is not predetermined 
and the heirs shall inherit only after all predetermined portions (furudh) 
have been disposed of and there remains a surplus of the inheritance 
property left (Wan Harun, 2006, p. 84). 
Analyzing the above verses, Jalaludin as‐Sayuti (2004, p. 194) articu-
lates the reason behind the revelation (casabah an‐Nuzul) of these partic-
ular verses (11‐12) of Surah an‐Nisa’. According to him, during the 
Jahiliyyah period, inheritance was not distributed to women or to sons, 
who were not adults, or old enough to go for war.  The case of cAbdur 
Rahman (a kin of Hasan bin Thabit) – a famous poet, can be cited here. 
When he passed away, he left behind a wife, Ummu Kuhhah and five 
daughters. The relatives of the deceased came to claim rights over his 
property. Ummu Kuhhah came to see the Prophet about the matter and 
subsequently these particular verses were revealed to  the Prophet in re-
lation to the inheritance rights of daughters. Another example was cited 
by Jalaludin as‐Sayuti (2004, p. 194) narrated by Ahmad, Abu Daud, 
Tirmizi and al‐Hakim, which tells about the wife of Saad bin Al‐Rabi, 
who came to the Prophet and said: “O Messenger of God, these two 
girls are the daughters of Saad bin Al‐Rabi who has fought alongside 
you in the Battle of Uhud and become martyred in the said battle. The 


Asian Women 2014 Vol.30 No.1  ❙  37
uncle of the two girls has come and taken his entire legacy with nothing 
left.” The Prophet thus said, “God will determine His Laws.” As such, 
the verse eleven of Surah an‐Nisa’, which elucidates laws concerning he 
inheritance shares for women, was revealed to the Prophet. This shows 
the practical necessity of the revelation of Islamic laws.
That said, Islamic inheritance laws are undoubtedly a very complex, 
comprehensive, and to some extent, confusing system of share 
apportionment. Explaining the matter for clarity, Souaiaia (2008) further 
divides the classes of heirs into three:
(1) Those inheriting fard shares; (a) three males (father, grandfather, 
and maternal brother); (b) seven females (mother, grandmother, 
daughter, the daughter of the son, sister, paternal sister and ma-
ternal sister); 
(2) Those inheriting casabah shares; (a) the deceased’s issue (son and 
son of the son downwards), (b) the deceased’s ancestor (father 
and grandfather upwards), (c) the deceased’s father’s issue (full 
and half uncle downwards), and (d) the deceased’s grandfather’s 
issue (great full and half uncles downwards);
(3) Those inheriting neither fard nor casabah shares such as son of the 
daughter, daughter of a brother, son of a sister and paternal and 
maternal aunts (Souaiaia, 2008, p. 63).
Indeed, the heirs of a deceased person specified in Islam can be of 
three types – sharers, agnatic heirs, and uterine heirs or distant kindred. 
The sharers, as mentioned before, tend to stand top on the priority list 
of property distribution, as they hold twelve in number, though they are 
categorized as primary and secondary heirs. But their shares are specifi-
cally fixed in the Qur’ān. Then the remaining property will be dis-
tributed among the casabah or agnatic heirs, who get the residue. In con-
trast, the uterine heirs or distant kindred may be eligible for the prop-
erty, if and only when, the above‐mentioned two groups are absent, save 
the spouse. These are blood relations, but are neither sharers, nor re-
siduaries for, instance, daughter’s children, children of son’s daughter. 
Although these classes are already to receive a predetermined share, as 
Chaudhry (1998, p. 530) explains it as follows:


38  ❙  Raihanah Abdullah⋅Wirdati Mohd Radzi⋅Fuadah Johari⋅Golam Dastagir
…not all possible heirs always inherit; some classes may 
exclude others, and some heirs within a class may exclude 
others within the same class. However, the spouse, parents, 
and children of the deceased cannot be excluded, although 
their shares may be decreased by the existence of more heirs.
As for the Qur’ānic distribution of shares between male and female, 
Ahmed Souaiaia  (2008, p. 66) comments that this formula, although it 
seems to be “‘mathematically sound,”’ raises a few questions, most nota-
bly on the issue of the general applicability of this legal rule in all cir-
cumstances (such as the existence of other first class heirs). This leads 
to the issue of diminished share of female heirs due to the existence 
of other first class heirs. In what appears to be perceived inequality, 
Souaiaia (2008) further claims that the Qur’ānic exegetes provides a 
number of justification:
First, they said that women did not have to fight in wars and 
work outside to provide for the family. Men did: They fought 
more and worked more and he who works more and spends 
more (on the family) is in greater need for more; hence, the 
larger share in terms of inheritance. Secondly, they argue, men 
are more complete and more qualified to hold religious and 
political positions…Therefore, he who possesses such traits is 
deserving of more awards (Souaiaia, 2008, p. 67).
It is widely argued that the right to inheritance is justified by the dou-
ble shares for men because of man’s greater economic responsibility in 
the family system (Shah, 2006). Souaiaia (2008) further claims that these 
justifications are based neither on primary, nor on secondary sources of 
the Sharīʿah, but rather on deductive reasoning to “justify their under-
standing of the verses dealing with inheritance.” Similarly, Shaheen 
Sardar Ali (2002) also contends that the perceived inequality of women’s 
inheritance rights is due to the fact that women are not the provider 
of households‐ unlike men, who are specifically instructed by the Sharīʿah 
to do so. In addition, Ali also mentions that a woman may opt not to 


Asian Women 2014 Vol.30 No.1  ❙  39
share her financial resources with her husband even if the husband is 
destitute. What she owns is heirs to dispose off according to her wishes 
and she is not obligated to share it with her husband. Another justifica-
tion for the diminished share of women in inheritance is the fact that 
at the start of the marriage contract, the husband is required to provide 
dower (mahr) to the wife (Ali, 2002, p. 73). During the Prophet’s time, 
it was solely a man’s responsibility to spend money on his wife, chil-
dren, and other relatives (sisters, widows) and a woman was under no 
obligation to spend money on her family. Islam says that she gets less 
than a man to be spent on herself and also may keep her own property 
without spending it on her household.  That women will inherit a small-
er share, not because of their gender, but because of their economic 
contribution seems to be a sound argument. In the same vein, we argue 
that if women contribute equally to the family men are not burdened 
by discharging lion’s share financial responsibilities. Furthermore, the 
Qur’ān also allows us to make bequests for women in order to prevent 
economic injustice.
Reconsidering The Islamic Legal Provisions for Muslim Women’s 
Share in the Inheritance System
As more Muslim societies and nations are responding to globalization 
and modernization through changes in socio‐economic and socio‐legal 
systems, there have been numerous calls by various sectors of the 
Muslim societies to reconsider the legal rulings, especially in light of the 
above justifications. Ali (2002), for instance, argues that the situations 
described above are subject to changing realities of a society, as well as 
the socio‐economic circumstances of the present day, and are therefore 
weak justifications. She also questions whether men are always the bread
‐winners of families as there are many instances in which cases women 
are put in the position as the head of the families and have to take on 
the responsibility and meeting entire household expenses, such as the 
case of single mothers or widowed women. On the justification of 
women receiving a dower that diminishes her right of inheritance, Ali 
(2002) goes on to say that it is often the case whereby the amount of 
dower stipulated in the marriage contract is invariably less than the 
equivalent share in inheritance.


40  ❙  Raihanah Abdullah⋅Wirdati Mohd Radzi⋅Fuadah Johari⋅Golam Dastagir
It is clear that Islam has determined a precise share for woman in 
the Islamic inheritance system. Based on 2:1 share between male and 
female, we may claim that one‐third of the entire wealth of an economy 
is to be owned by the women. However, there is a strong prejudice 
against the social and economic role of women. The share of women 
to inheritance becomes meaningful only when their right to own their 
share is ensured. It is now time for the Muslim jurists to reconsider 
their set of biased assumptions from the perspective of the 21st century, 
so that the wealth, that the law of inheritance transfers to women, is 
not reversed to men on one pretext or another. And for economists, 
the necessity of reconsideration of the oft‐applauded redistribution role 
of the law of inheritance lies in good‐will. Until the law of inheritance 
is conceived in a non‐contradictory social setting the redistribution ef-
fects of the law of inheritance may be accepted with serious reservation 
(Khan, 1989).
Legal Reconsideration in the Changing Perspective
To a Muslim, Islam is not just a ritualistic set of beliefs and norms; 
rather, it a well‐formulated system of law that applies to states and their 
subjects. Notwithstanding, it is the worldview of the universe, within 
which a Muslim lives and conducts his/her daily activities. Islamic law 
has both moral and legal values embedded in its provisions. However, 
the expression of limitations is traceable in the Scriptures. These tend 
to function as the check and balance placed on the human endeavor 
of freedom to secure, if necessary, “a scheme of ordered liberty” and 
to prevent arbitrary and despotic limitations on human freedom 
(Ramadan, 1961, p. 46).
Islamic law is unique in the sense that there are parts of Islamic law 
that are self‐explanatory in nature. However, there are also aspects that 
are enforceable by some sort of external forces such as education, train-
ing programmes, character building, changing people’s mindset, and the 
like. Furthermore, a Muslim society may require mobilization of public 
opinion, the general will of the society, enactment of new provisions in 
conformity with the Sharīʿah law for the betterment of women in ques-
tion, as we believe, a substantial part of the Islamic system of law can 
operate only through the coercive powers and authority of the state. 


Asian Women 2014 Vol.30 No.1  ❙  41
Thus, not only the Qur’ān and the Ḥadīth, but ijtihād (individual reason-
ing in accordance with the Sharīʿah principles), ijmāс(consensus), and qiyās 
(similarities) as well have been recognized as significant sources of 
Islamic law. 
Some argue that there are two distinct areas within which the Islamic 
law operates; the religious, ritual and devotional (cibadah) matters and 
the human relational (mu’amalah) matters (Chaudhry, 1998). The laws in 
relation to cibadah matters are fixed and unchanging;, in contrast, the 
laws in relation to mu’amalah matters are subject to, insofar as it is al-
lowed, reinterpretation and the exercise of individual reasoning (ijtihād) 
according to the changing situations and corresponding needs of the 
society. 
However, any change to the Islamic law, according to Chaudhry 
(1998) is subject to certain conditions, most importantly, that the change 
must not violate the general objectives of the law itself while preserving 
the well‐being of the community and the individual. Applying this con-
cept to the changing conditions of the Muslim society on the issue of 
women’s share in inheritance, the determination of the objectives of the 
law is paramount. The law on maintenance of family requires that a 
man must be responsible for the family’s sustenance. The objective of 
the law is clear, that is, to protect the well‐being of the family. Women 
assuming responsibility for maintaining the family does not preclude the 
male members of the family from doing their part. However, with this 
change in the social demographics becoming more prevalent due to a 
variety of reasons, the Muslim society must reconsider the fact that the 
women are not entrusted with the responsibility in the first instance and 
must then conceptualize a new provision to facilitate these new roles of 
Muslim women. This in no way abrogate the original function of the 
male members of the society but  is a legal recourse to address the per-
ceived injustice in the distribution of inheritance shares. The Muslim 
policy makers are thus entrusted with the task to formulate a system 
that will facilitate Muslim women who had to assume the roles of men 
in the society, especially in the economic sense. It may take on a variety 
of forms, even as a form of penalty against the men for failure to pro-
vide for the women members of the society.


42  ❙  Raihanah Abdullah⋅Wirdati Mohd Radzi⋅Fuadah Johari⋅Golam Dastagir
Methodological Reconsideration in the Changing Perspective
Given the socio‐cultural pattern of the Arab society in which the 
Islamic law was enacted, it may be argued that the discourse of owner-
ship relies on its utility rather than its actual possession (Hasan, 1995). 
Some argue that the fundamental problem in Islamic economy is not 
the limited economic supply due to the unlimited demand for it (Arif, 
1985). Rather, the fundamental issue in Islamic economy is the fact that 
economic resources are a trust (amanah) from God to mankind and the 
question of how this responsibility should be properly managed to ob-
tain success (al‐falah). Arif goes on that property or economic resource 
in Islam is a form of trust from God in that even though man appears 
to own it physically, the real function of a man is to become a trustee 
to the property on earth. As such, in Islam, material wealth alone is not 
guaranteed for the attainment of success, if the way in which the prop-
erty is obtained is through a process that is abhorred by God (Kader, 
2001, p. 4).
In this context, let us have a look at the methodological approach 
that attempts to reconcile the requirements of a modern life with the 
established legal provisions – a system that postulates the position of 
women as heirs. This can be formulated through paradigmatic dis-
cussions from an Islamic perspective as follows:
1. Ontological position: What is out there to know? What do we be-
lieve constitutes the social reality?
2. Epistemological position: What can we know (the theory of knowl-
edge) and how can we know what we know?
3. Methodological position: How can we go for acquiring that knowl-
edge?
From the ontological point of view, what we believe constitute the 
social reality in Islam must be based on the primary sources (the Qur’ān 
and the Ḥadīth). We accept this being an unequivocal social reality 
based on the concept of Tawḥīd (the Oneness of God) [Qur’ān, XX:6]. 
The verse has an ontological evidence of the totality of ownership  
that belongs to God as described earlier by Arif (1985). Similarly, the 
ontological evidence of the provisions that secure inheritance for wom-


Asian Women 2014 Vol.30 No.1  ❙  43
en has been discussed in the previous sections, which was through the 
verses 11‐12, Surah al‐Nisa’. Epistemologically, based on the said verses 
as well as the casabah an‐Nuzul, the socio‐economic conditions within 
which the women during the Prophetic times operated are vastly differ-
ent from the modern women in the global village of modern society. 
Modern Muslim women are more actively pursuing economic activities 
and owning material wealth. This goes back to the ontological position 
about the ownership of material wealth that was discussed in the pre-
vious section. In Islamic economy, as mentioned earlier, the question is 
about the total ownership of matters that belong only to God.
Based on this analysis, we may suggest a paradigmatic position for 
Muslim women’s inheritance shares. As table 2 illustrates.
Table 2 Islamic Paradigmatic Positions on Women’s Inheritance Shares
Paradigmatic Positions
Islamic Paradigmatic Positions
Ontological 
Position
What is out there to know? What 
do we believe constitutes the 
social reality?
Our social reality is based on the 
concept of Tawḥīd (the Oneness of 
God)
Epistemological 
position
What can we know (the theory 
of knowledge) and how can we 
know what we know?
We know this based on the primary 
and secondary sources of the Islamic 
Law
Methodological 
position
How can we go for acquiring 
that knowledge?
∙ Islamic‐based model of methodology
∙ New interpretation (ijtihād)
That circumstances necessitate new interpretation (ijtihād) of Islamic 
law by jurists is not new in Islam. For example, the introduction of the 
doctrine of “awol” along with that of “radd” can be cited here. This 
doctrine is not mentioned in the Qur’ān and Ḥadīth, nor was it present 
during the time of the Prophet MuÍammad. Rather, this was introduced 
by a companion during the time of Caliph ʿUmar Ibn Khaṭtāb  (born 586 
CE) by way of ijtihād, which afterwards turned into a “by‐law” by ijmāс. 
The term “awol” literally means “increase.” If the sum total of the 
shares exceeds the unity after distributing all the legal shares, then there 
arises the case of “awol,” in which situation the share of each sharer 
will be decreased proportionately. For example, if there are two full sis-
ters and a husband, their shares will be reduced to 3/7 and 4/7. The 
case of “radd,” literally meaning “return,” entails a situation in which 


44  ❙  Raihanah Abdullah⋅Wirdati Mohd Radzi⋅Fuadah Johari⋅Golam Dastagir
the sum total of the shares becomes less than the unity. What happens 
is that the residual property is returned  in proportion to the sharers 
again.
The Malaysian Muslim Women Scenario
Muslim women comprise half of the current Malaysian workforce 
alongside Muslim men, sometimes becoming the major bread winner of 
the family, a position  occupied traditionally by men. The question at 
this juncture is: with the change of time, roles and responsibilities of 
women, will the Islamic rights to inherit properties change that are phil-
osophically based on the position of women as the manager of the 
Muslim household and not the provider?
Malaysia is a moderate Muslim majority country with a federalist sys-
tem of democratic government. Essentially, the highest law of the land 
is the Federal Constitution, which is clearly secular in its orientation and 
implementation. However, the Sharīʿah is still in practice, although it is 
relegated to the Muslim Personal Laws. Special Islamic Courts systems 
are also in place, which are separated from the civil Courts of 
Judicatures. Malaysia is unique in that for a decidedly secular constitu-
tional nation‐state, the administration of Muslim personal affairs, the 
Sharīʿah is applicable through the canonization of Islamic legal principles 
in various Enactments and Ordinances. It must also be pointed out that 
the affairs of Muslims are under the jurisdiction of each and every State 
Rulers. 
Women have long been a major source of human capital in Malaysia, 
toiling in the fields alongside men during the pre‐independence Malaya 
and evolving into production‐line workers within the manufacturing sec-
tors, as the nation became more industrially focused (Kaur, 1999; R. 
Omar, 1994). Today, many could be found working outside of home, 
be it in urban or rural areas (Foley, 2004; R. Omar, 2003). Women have 
equal rights to vote and are entitled to equal pay compared to men for 
an equal amount of work. In 2004, women constituted 47 percent of 
the total Malaysian labour force participation (Employment Summary 
Statistics, 2005). Islamic identity is fairly visible and intimately inter-
twined with the Malay ethnic culture. In fact, many of the traditional 
Malay cultural artefacts have been considerably changed, if not replaced 


Asian Women 2014 Vol.30 No.1  ❙  45
totally by Islamic religious symbols (Haque, 2003). The following is a 
brief historical description of Malay women.
In feudal times (circa 15th century AD), the Malays were generally div-
ided into two groups: the ruling elite/aristocracy and the peasantry. 
Within this social structure, the roles of women were determined ac-
cording to the social stratum. The noble ladies did not partake physically 
in any economic activities outside their palaces although many are 
known to have invested their wealth in the business sector through in-
termediaries, and such women appear to have shared their own in-
dependent income at the time. They were more concerned with bringing 
up the next generation of aristocracy and were sometimes involved in 
the politics of the palace. The peasant ladies were more actively in-
volved in economic activities outside of their homes, such as engaging 
in property owning activities that were provided for them through Islam 
and the Malay Adat (customs), agriculture and trade.
In this respect, although on the rise, women’s contribution was not 
considered a productive output as it is measured by using the modern 
and capitalistic gauge called‘money.’ Ariffin (2000) argues that this is the 
main reason behind the presumed ‘inactivity’ and ‘passive’ nature of 
Malay Women in pre‐independence times. It is not the case that they 
were not actively engaged in employment or work; rather, it is because 
their efforts to contribute to the national economy were not sufficiently 
recognized and rewarded. The patriarchal nature of Malay society was 
evident in terms of providing educational opportunities for women, and 
influenced the nature of women’s involvement in external economic 
activities. The presumption loomed large that Malay women were just 
going to tend the family land, so there was no need to educate them. 
Rather, education was a privilege reserved for the Malay males who 
were traditionally responsible for moving away from home to work and 
succeed.
However, things have changed in the post‐independence period. With 
the structuring of education systems, more women are now entering in-
to and graduating from schools. Since then, as more opportunities have 
been made available for the masses to participate in the education sys-
tems more women in general and Malay women in particular have 
benefited. Ariffin (2000) adds that the side effect of the ‘revolution of ris-
ing expectations’ among the educated women also plays a part in encour-


46  ❙  Raihanah Abdullah⋅Wirdati Mohd Radzi⋅Fuadah Johari⋅Golam Dastagir
aging more women to educate themselves and to seek for better em-
ployment opportunities, securing financial stability and independent 
standard subsistence for these women. The nation’s economic develop-
ment and the shift of emphasis from primary to secondary industry also 
generated a diverse range of employment prospects for women. The 
Malaysian Economic Reports 1999-2010, which give a detailed account of 
labour force participation and employment ratio between female and 
male for a decade, illustrate that women in the workforce are close to 
half of the active male working population.
Malaysian women have equal access to education with more of them 
studying in local universities compared to men (R. Omar, 2003). The 
total number of women in professional, managerial, and administrative 
positions is steadily increasing annually, although these women are large-
ly confined to the teaching and nursing professions or what Omar 
(2003) defines as ‘soft subjects’ or professions (R. Omar, 2003). This 
shows that while women play an important role in sustaining the coun-
try’s human capital pool, the gender division of labour does still exist. 
While the women workforce facilitates the nation’s economic growth es-
pecially in the unskilled or semi‐skilled sectors, these very sectors render 
the women workforce to be generally secondary (Kaur, 1999).
Although women could be said to have a comfortable status in 
Malaysia, there are still areas that could be improved upon. With policies 
that are sensitive to the needs of women in general, the government 
continues to find ways that could further assist women in general and 
Malay women in particular. The establishment of the National Advisory 
Council for the Integration of Women in Development (NACIWID) is 
an example of some of the governmental efforts towards that end. 
Women play a major role in the development of the newly industrialised 
Malaysian nation. However, the legacy of patriarchal society and 
Western segmentation of women could not be totally abolished. As a 
result, many women are still burdened with double taxing, dual‐role re-
sponsibilities – at home and in office, and with little choice, they are 
expected to soldier on, whatever the circumstances. Thus, it is widely 
argued that the position of women in Malaysia should be improved es-
pecially with a good, women‐friendly legal system, and the im-
plementation of just “Family and Personal Laws” that provides higher 
financial security and better legal protection than what Malaysian women 


Asian Women 2014 Vol.30 No.1  ❙  47
currently enjoy.
Conclusion
Compared to the pre‐Islamic laws of the Arab world, Islam not only 
introduced the concept of economic empowerment of women, but also 
ensured a wife’s right to her  deceased husband’s property. However, 
Islamic law of inheritance clearly makes a  distinction between male and 
female in terms of their portion of property, despite the fact that it does 
not make any distinction between male’s property and female’s property. 
Notwithstanding, as against the other legal systems of disposal of prop-
erty by way of making arbitrary ‘will’ that may lead to deprivation of 
blood relatives and favoritism of strangers, Islamic system of inheritance 
develops what may be called fair policies rather than laws, broadly 
speaking, toward the goal of establishing fairness and social justice.
Since Muslim women have been playing an important role in the de-
velopment of Muslim nations in recent years regardless of their pur-
suance of paid or unpaid employment and other economic activities, it 
is important that their financial position be secured, in every circum-
stance, by Islamic law. Unfortunately, this is always not the case. The 
share of inheritance is based on the Qur’ānic provisions that assigned 
specific portions based on the classes of heirs. Epistemologically, the 
share of inheritance seems to be fixed with no room for arbitrary ex-
ercise of testamentary power unlike the system that prevailed in the pre‐
Islamic Arab world. However, methodologically, the changing socio‐eco-
nomic conditions of women prompt the Muslim society to reconsider 
an Islamic‐based methodology with scope of reinterpretation (ijtihād) to 
resolve the issues of perceived injustice in the distribution of inheritance 
shares. It may be possible to suggest a system that supports the women 
who assume the role and responsibility of the men as provider of 
household. This could be based on the ontological concept of total 
ownership of wealth by God, which renders responsibility and trust 
alongside the physical ownership of material wealth. Women, who as-
sume the roles and responsibilities of men, are also considered as trust-
ees of God’s property, and, therefore, are in need of support, especially 
from the Muslim community, to be able to continue carrying out the 
task of providing financial support for the family. This concept of trust 


48  ❙  Raihanah Abdullah⋅Wirdati Mohd Radzi⋅Fuadah Johari⋅Golam Dastagir
(amanah) must be understood clearly by the Muslim society, so as to en-
sure that everyone can be relied upon to play a proper role and respon-
sibility for the benefit of the Muslim community that itself needs 
changes within.
While the women’s workforce facilitates a nation’s economic growth 
especially in the unskilled or semi‐skilled sectors, particularly in develop-
ing Muslim countries like Indonesia, Pakistan, and Bangladesh, the 
Muslim majority nations are yet to acknowledge and accept women’s 
contribution with dignity. As such, Malaysian Muslim society in general 
and Muslim women in particular must be aware of the challenges and 
development of the local and global economy in order to address those 
challenges and apply the best developmental practices in their own lives 
to ensure that these individuals become financially self‐sustaining. To 
this end, we might think of what can be called the “hibah” (voluntary 
gift) model, in which the parents may plan and manage their property 
before death in such ways that all children may receive equal dis-
tribution of wealth. But since Islam does not support an “arbitrary will 
system,” the parents may provide circumstantial evidence under which 
the “hibah” might be justified. Our second model designates the claim 
of inheritance through the court proceedings in which the aggrieved 
party, basically the daughter, may claim a major portion of her parents’ 
property, alleging that her brother (son of the deceased parents) misera-
bly failed to discharge his responsibilities required by the Qur’ān. This 
model can be called “fadhāl” – the “additional share,” and would require 
the daughter, the claimant, to prove in the court with circumstantial evi-
dence that the son of the deceased parents neglected his responsibilities 
to support their parents and the family financially, socially, physically, 
and emotionally. Subject to the court’s verdict in her favor, the daughter 
might be entitled to an equal or even the whole share of the inheritance. 
Both the models apply to the case of the “victimized” daughter – the 
former before, and the latter after, the death of the parents.  Since the 
Qur’ānic justification of inequality of women’s inheritance rights is more 
concerned with recognizing the economic contribution to the family 
than it is with wrangling over the gender issue, the time has now come 
to revisit and readjust this provision in the wake of empowerment op-
portunities of women entrepreneurship that helps them shoulder family 
responsibility with substantial financial contribution. This involves a 


Asian Women 2014 Vol.30 No.1  ❙  49
number of factors, such as individual needs, socio‐economic conditions, 
discursive reasoning, mental readiness, changing patriarchal mindset, and 
so on.
Thus we argue that since there are scopes of formulating new “by‐
laws,” as in the cases of “awol” and “radd” in the wake of the necessity 
of changing circumstances, the Islamic‐based methodology provides 
room for reinterpretation of law on the basis of need in changing sit-
uations and must be enhanced and encouraged among the Muslim com-
munity in an effort to effectively apply the Islamic law in Malaysia, 
where though women play an important role in sustaining the country’s 
human capital pool, the gender division of labor is shrouded in the pat-
riarchal nature of the Malay society. Given the changing socio‐economic 
condition in the 21st century with dramatic increase in women’s empow-
erment and financial liability in Muslim societies, the Muslim jurists are 
required to show a rare forward‐looking flair as a way out to resolve 
this age‐old issue by virtue of qiyās, ijmāс, and ijtihād in the milieu of 
urfu (local customs and traditions), istihsān (juristic preference of appro-
val), and maslah al-Mu’salah (benefits acknowledged by the Sharīʿah) with-
out violating the Qur’Énic injunctions. However, as Amina Wadud puts 
it, no theory is good unless we put it in practice.


50  ❙  Raihanah Abdullah⋅Wirdati Mohd Radzi⋅Fuadah Johari⋅Golam Dastagir
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52  ❙  Raihanah Abdullah⋅Wirdati Mohd Radzi⋅Fuadah Johari⋅Golam Dastagir
Biographical Note: Raihanah Abdullah (Ph.D.) is Associate Professor at 
the Department of Sharīʿah and Law, Academy of Islamic Studies, and 
Deputy Dean of the Humanities Research Cluster, University of Malaya, 
Malaysia. She is actively involved in research in the area of Islamic 
Family Law, Islamic Law and Gender, and Islamic Law and Society. 
Among her recent research publications is Raihanah Abdullah & Soraya 
Khairuddin, 2009, “The Malaysian Shari’a Courts: Polygamy, Divorce and 
the Administration of Justice,” in Asian Women. She can be reached at 
raihanah@um.edu.my.
Biographical Note: Wirdati Mohd Radzi (Ph.D.) is Senior Lecturer in 
Sports Management at the Sports Centre, University of Malaya, 
Malaysia. Her area of research interests ranges from sports sociology to 
gender and sports. Among her recent research publications is Wirdati 
Mohd Radzi and Raihanah Abdullah, 2010, “Through Rose‐Tinted 
Glasses: Muslim Women Sport Managers in Malaysia,” in Asian Women. 
She can be reached at wirdati@um.edu.my.
Biographical Note: Fuadah Johari (Ph.D.) is Senior Lecturer in Faculty 
of Economics and Muamalat, Universiti Sains Islam Malaysia (USIM), 
Malaysia. Her area of research interests ranges from Islamic Economics 
and Economic Development and Gender studies. She is presently 
working on a research project that looks at the contribution of Zakat and 
Islamic Endowment (Waqf) to the Malaysian Economy. On top of that, 
she has supervised Ph.D. students on the special case of poverty and 
women empowerment in Islam. She can be reached at 
fuadah@usim.edu.my.
Biographical Note: Golam Dastagir (Ph.D.) is Senior Research Fellow at 
the Centre for Civilisational Dialogue, University of Malaya, Malaysia and 
Professor of Philosophy at Jahangirnagar University in Dhaka, 
Bangladesh, where he was the former Chairman of the Department of 
Philosophy and Director of the Centre for Philosophical Research. He did 
his Ph.D. in Islamic Philosophy at the University of Hull (England) on a 
British Commonwealth Scholarship in 1998. Over the past four years he 
has been affiliated with the University of Toronto in Canada as a Visiting 
Professor. Involved with many interfaith organizations, he writes 
extensively on Islamic Philosophy, World Religions, Comparative 
Philosophy, and Sūfism. He can be reached at m.g.dastagir@gmail.com.