The protection of elderly parents is both a social and legal concern

Recently, the government amended the Transfer of Property Act 2026, which introduces legal recognition of lifetime usufruct rights in respect of the transfer of property by way of gift. It creates a new mechanism allowing a person to donate property while retaining the right to use and enjoy it throughout their lifetime.

The amendment has created debate concerning its scope, underlying purpose, and compatibility with the principles of Sharia law. Khalid Khan from Law Desk has approached Dr Shahnaz Huda for her comments on the amendment.

Tap here to add The Daily Star as a trusted source

Professor Dr Shahnaz Huda has been teaching law at the University of Dhaka since 1989, specialising in personal and comparative family laws, gender and child rights issues. She obtained her Doctorate from the University of East London, UK, and completed post-doctoral research at the School of Oriental and African Studies (SOAS), University of London, UK, as a Commonwealth Academic Fellow on family law in South Asia.

“Given the absence of comprehensive social security, including adequate pensions and institutional care, legal mechanisms protecting elderly parents’ property and ensuring continued care are particularly important. Such mechanisms should therefore be understood not merely as regulating property transfers, but as a form of social protection against dispossession, neglect, and abandonment.”

Law Desk (LD): Do you think this new amendment can meet its purpose of strengthening protection for aging parents?

Dr Shahnaz Huda (SH): I believe the law will provide significant relief to the Muslim parents who have only daughters. Under Islamic inheritance law, a single daughter receives half of the estate, while two or more daughters collectively receive two-thirds; the remainder may devolve upon residuary heirs or Asaba such as brothers, uncles, cousins, or nephews. Thus, parents with only daughters face a dilemma: retaining property may result in a large portion passing to distant relatives, while transferring it during their lifetime may leave them uncertain about care and security in old age. As traditional familial support weakens, the law can provide important protection by enabling parents, particularly those with only daughters, to secure both their property and long-term welfare.

LD: Some quarters allege that the new amendment violates the provisions of Shariah law. What is your opinion on that?

SH: It is worth noting that a key aspect of this form of gift is that it merely retains for the parent a usufructuary right over the property while the corpus of the property is transferred immediately. This is a very practical solution, if viewed liberally. I think, rather than considering this as a transfer retaining a life interest, it can be framed as a conditional gift, which might make it acceptable under Islamic jurisprudence. Since the Shia school allows making such conditional gifts, I believe this can be accommodated within the Shariah principles. While borrowing across Shia to Sunni is slightly unusual, it is not impossible. We imported principles from other schools of thought (madhhabs) into the Hanafi/Sunni framework in many instances using Islamic principles in order to reform the law. For example, several provisions from the Maliki School that were more beneficial to women were incorporated into the Dissolution of Muslim Marriages Act, 1939.

Under Islamic law, making a gift of one’s property is solely the property owner’s own choice, and such a gift may be made to an outsider also. Right of ownership means that he/she has the right to sell, gift, or even destroy the property. Again, under Islamic law, the right of a person to make a bequest or will/wasiyyat which operates after the death of a person is restricted to one-third of one’s property. Additionally, it is also generally impermissible to bequest property to an heir. Therefore, the recent amendment to the Transfer of Property Act is a viable solution.

LD: Do you think that a new piece of legislation as this one could solve the problem of parental protection, or could it be dealt with socially?

SH: It needs to be emphasised that the protection of elderly parents is both a social and legal concern. Where changing family structures and social norms make familial support inadequate, legal intervention becomes necessary. India’s Maintenance and Welfare of Parents and Senior Citizens Act, 2007, illustrates such protection under Section 23, which indicates that a property transfer by a senior citizen may be declared void if it was made subject to an obligation of providing care, and the transferee fails to provide such basic amenities and needs. In Bangladesh, instances of elderly parents facing neglect, mistreatment, or eviction after transferring property to their children highlight the limits of relying solely on familial or moral obligations. Given the absence of comprehensive social security, including adequate pensions and institutional care, legal mechanisms protecting elderly parents’ property and ensuring continued care are particularly important. Such mechanisms should therefore be understood not merely as regulating property transfers, but as a form of social protection against dispossession, neglect, and abandonment.