The law addresses a long-standing social problem concerning daughters’ shares in their parents’ property

The new amendment aims to encourage parents, grandparents, and spouses to transfer their property by way of gift to their children or grandchildren, while keeping their lifetime usufruct in that property, under the existing Transfer of Property Act of 1882, a colonial law.  I think that the objective of this amendment Act is not limited to parental protection solely; it also addresses a long-standing social problem relating to daughters’ shares in their parents’ property.

Under Sharia law, a daughter inherits only half of the deceased parent’s estate. The remaining property goes to other male relatives (agnatic heirs), such as uncle or cousin. Civil society members and human rights activists have time and again pointed it out and suggested law reform, for a single daughter or daughters to get the entire property of her deceased parents. In 2012, the Law Commission, headed by Professor Shah Alam, had submitted a report outlining how this problem could be solved within the Sharia framework. However, the then-government did not translate those recommendations into law as they were on a “fine line” with the Islamist groups. Looking from that perspective, the legislative intent of this amendment to the TP Act is commendable.

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Dr Anisur Rahman is a legal historian of modern South Asia. Dr Rahman’s research interests include South Asian Legal History, Global Legal History, and Islamic Law and Society in South Asia. He holds a PhD from the National University of Singapore (NUS). He is currently an Associate Professor at the Department of Law, Independent University, Bangladesh.

I think the amendment reflects an extra-Sharia arrangement. If we look at section 122A of the new law, we can see that the section begins with a non-obstante clause. The phrase ‘Notwithstanding anything contained in any other law...’ refers to the Muslim Personal Law (Shariat) Application Act, 1937, albeit not naming it explicitly, amongst others. In addition, sub-section 4 of section 122A makes it clear to us that this will be a distinct form of transfer of property, although it has not clearly stated what form of gift it would be, if different from hiba, to be made in accordance with Sharia law. Therefore, reading the non-obstante clause together with subsection 4 of section 122A, it becomes clear to us that an attempt has been made to resolve the above-mentioned issue through a secular law.

Here comes the idea of protection of aging parents, I suppose. Because hiba under Sharia law requires an immediate and unconditional transfer of full ownership and possession, which may create insecurity among parents over whether or not children will fulfill their filial duties after getting the property. But under this new amendment, it would be possible to transfer property by way of gift, keeping lifetime usufruct in that property. The new law also provides them with the power to revoke it later, which is not possible under Sharia law. This is precisely where the controversy arises, as the statute has overridden Sharia principles. It resembles a colonial approach to continue two parallel legal traditions.

Since the government wanted to navigate between religious and secular traditions, instead of having complete legislation, there may arise a few legal uncertainties in the days to come. Firstly, under which law should “legal heirs” mentioned in sub-section 3 be determined: Sharia or secular? And, secondly, this amendment Act is silent about section 4 of the MFLO 1961, which has allowed children of a predeceased child to inherit in the grandparent’s property.

However, to reiterate the purpose of the law, I commend the government for taking the initiative to address a long-standing social problem. It is really unfortunate that a single daughter would inherit only half of her parents’ estate, whereas a son faces no such limitation. Many had raised concerns about it before, but nobody came forward to eliminate this inequality, nor had anyone justified why a daughter should be deprived. It is a contradiction that we champion gender equality on the one hand, yet permit the above-mentioned discrimination to continue, on the other.

However, if the people who are now objecting to this amendment had engaged sincerely, a solution might have been found within the Sharia law framework. Consider the Muslim Family Laws Ordinance (MFLO) of 1961, where many Islamic scholars weighed in. Eminent Muslim thinkers from East Pakistan, including Dr. Muhammad Shahidullah, Abul Hashim, and Principal Ibrahim Khan, extended their support to the MFLO. The ideal position would have been to address the current dilemma through a similar standalone Act, whether a modified Sharia law gift or an entirely separate statutory transfer. Since the dilemma is hard to resolve through consensus, I think the government has attempted to address a long-standing social crisis through this secular law.