Under the Islamic Law of Inheritance, generally a male takes a share double that of a female in his own category. But at the same time a woman is entitled to inherit in different capacities as a daughter, sister, wife and mother. Still there are some people, especially the western feminists, who have misgivings about the status of women in Islam. To them, Islam has underscored the status of women by giving them half the share of their male counterparts. To me, these notions are totally wrong and are based on ignorance rathen than proper know1edge of Islam. Such misgivings are simply spreadiug misunderstanding and misinformation about the normative teachings of Islam. In order to analyse the allegation of discrimination against the law of Islam, one has to understand the attitude of Islam towards a man and a woman first. According to Islam, men and women have, to certain extent, their distinct capacity and needs and hence both men and women should not be subject to same obligations.

The fact that a fundamental difference exists between men and women has been explained by Nobel Laureate Dr. Alexis Carrel (1873-1944) with great perception thus: The differences existing between man and woman do not come from the particular form of the sexual organs, the presence of the uterus, from gestation, or from the mode of education. They are of a more fundamental nature. They are caused by the very structure of the tissues and by the impregnation of the entire organism with specific chemical substances secreted by the ovary. Ignorance of these fundamental facts has led promoters of feminism to believe that both sexes should have the same education, the same powers and the same responsibilities. In reality, woman differs profoundly from man. Every one of the cells of her body bears the mark of her sex. The same is true of her organs and, above all, of her nervous system. Physiological laws are as inexorable as those of the sidereal world. They cannot be replaced by human wishes. We are obliged to accept them just as they are Islam, considering this distinct physiological nature, differentiates between human equality and functional equality of man and woman. As for the functional equality, it takes into consideration their essential biological differences and determines their functional spheres accordingly. Islam considers man and woman equal as human being, but not identical. It draws a line between the concept of equal sexes and the concept of identical sexes in view of the most apparent biological, emotional and psychological differences between men and women. It would be rather injustice (particularly to woman) to consider men and women identical and ignore the essential differences between them. Therefore, it is observed that 'in matters related to the protection of the rights of weaker sex Islam discriminates in its favour, and in matters related to bearing the responsibilities Islam favours man. Thus, the division of labour is effected along the just principle of potentialities and capabilities and not along any abstract impracticable ideals.

For the reasons of fundamental structural difference as explained above, in distributing the shares between men and women heirs, 'Islam in its wisdom, has preferred an empirical equity to a mathematical equality. Thus, it has ensured a perfect equilibrium in the families, considering various financial responsibilities imposed upon every man but upon no woman (underlining are mine). Man in Islam is fully responsible for the maintenance of his wife, his children,., and in some cases of his needy relatives, especially the females. This responsibility is neither waived nor reduced because of his wife's wealth or because of her access to any personal income gained from work, rent., profit, or any other legal means. Women, on the other hand, have been exempted from any financial responsibility to support the family. Moreover, they have no obligation to spend on their families out of their properties or any income after marriage.

Besides maintenance, under the law of Islam, a woman is also entitled to receive 'dower' from her husband while entering into a marriage contract. The husband has a legal obligation to pay the dower money to his wife and in case of his death, the wife is entitled to recover the same from the property of the husband as a debt. Also in old age the right of a woman for maintenance continues and if the husband dies and she becomes unable to live on her share of the estate of the deceased, she can claim maintenance from her children.

Hence it is seen that a female has actually very few material needs to satisfy on her own account as compared with a man who has been saddled with very heavy economic obligations and liabilities. Considering all the aspects of rights and obligations between men and women, there is ample justification for awarding a man greater share m inheritance which should be treated as equitable instead of 'mathematical equal,.

Again, under the Islamic law of inheritance, a woman has got full freedom to enjoy the property she inherited exactly like her self-earned property. Her absolute ownership over the property is sanctioned by the holy Qur'an in the following clear words:

"To the men belongs what they earned; And to the women belongs what they have earned.Islam fully recognises woman's right to her money, real estate or any other properties. She retains her full rights to buy, sell, mortgage or lease any or all her properties. It is also noteworthy that such right remains in force even after her marriage.

A female is acknowledged as an independent personality, in possession of human qualities and worthy of spiritual aspirations. Islam has treated both as members of one another as Allah (SWT says: "And their Lord has accepted (their prayers) and answered them (saying): 'Never will cause to be lost the work of any of you, be it male or female; you are members, one of another." (Qur'an, 3: 195; of 9:71; 33:35-6; 66:19-21)14. It makes no distinction belween male and female in the pursuil of education and knowledge. Fourteen hundred years ago, the prophet of Islam declared that the pursuit of knowledge is mandatory for every Muslim male and Muslim female.

It is a matter to be understood that the instances that a man gets double the share of a woman is not a sign of giving preference or supremacy to man over woman. Here we can say that when taken as a whole the rights of woman are equal to those of man although not necessarily identical.

The whole status of woman is given clearly in the Qur'anic verse: "And women shall have rights similar to the rights against them, according to what is equitable; but men have a degree over them" (2: 228). This degree is not a title of supremacy or an authorisation of dominance over her. It is to correspond with the extra responsibilities of man and give him some compensation for his unlimited. liabilities which is more clearly explained by the Qur'an by saying that men are trustees, guardians, and protectors of women because God has made some of them excel others and because men expend of their means (Qur'an, 4:34).16

What is needed to improve the status of women - Reform of family laws or enforcement?

Protection of women's rights is much more difficult than either defining them or codifying new legislations. The main obstacle that lies in the way of the practical application of the legal rights of women in Bangladesh is primarily the contradiction of attitudes that persist in a male-dominated society. In real life, women are deprived of their rights of maintenance, dower, dissolution of marriage, custody, guardianship and other forms of property in spite of the fact that these are legitimate rights under the law of Islam. It was found in a study of the metropolitan city of Dhaka that 88% of Muslim wives did not receive any dower. A study of two villages revealed that 77% of women from families with land did not intend to claim their legal share in their parental property to retain better links with their natal family.

Thus, whatever legal rights women may have they are not necessarily being recognised. by the society. In this regard, the practical aspect of problem for women has rightly been identified by Mr. Justice ARM Khairul Haque in the following words of a landmark decision. "It is to be noted that a woman always has to adjust her position, sometimes with her husband, sometimes has to compromise between her children and her job. Unlike a working man a working woman of necessity has always to keep an eye on the interest of her family. This is how a woman is thrown and pushed in a discriminatory situation. Innumerable examples of such ordeals faced by women can be cited keeping them far away from the hallowed concept of gender equality so beautifully stated in the books on Constitution which is of no aid or consolation to a working woman in her practical life in this harsh and sadistic world of equality. However, it should not be misunderstood that Islam protects any patriarchal family life. Declaring marriage as a civil contract, the Qur'an intends to bring to an end all kinds of patriarchal and matriarchal family systems. The fact that the Qur'an permits women to independently own and run trades and businesses demonstrates that the family law system in Islam is not essentially patriarchal.

It should, therefore, be remembered by all, particularly those who are concerned in establishing women rights that mere framing rules and new legislations treating man and woman equally in its mathematical term cannot possibly, improve the status of women unless we fail to recognise their granted rights socially. In this respect, the observation of Mr. Justice ABM Khairul Haque is noteworthy: 'In the office, the superior officer, more often a man than a woman. in dealing with his women employee, should keep in mind her natural inbred circumstances and peculiar situations uniquely attached to her life, unknown to most men. This goes not only for the ordinary working women but also those engaged in various professions such as a physician, a teacher, an engineer, etc. Even we Judges can set an example. We may accommodate the learned Lady Advocates with their prayers for adjournment and other prayers with the circumspection and more liberally than her counterparts in the profession. In following the concept of equality if similar standard is maintained towards both men and women we shall perhaps, literally follow only the form and not the spirit of the concept of the gender equality enshrined in our Constitution.

It is a clear fallacy to say that Islamic Law of Inheritance has breached the principle of equality between men and women in distributing property. Having taken into consideration the proper construction of the Article 27 of the Constitution one must recognise that the spirit of the principle of equality does not necessarily require any 'mathematical equality' rather it allows any classification on a rational basis. This aspect of constitutional interpretation of the principle of equality by our apex court is very much consistent with the whole scheme of the Islamic law of inheritance, on the one hand, ensured equal rights between men and women while on the other hand, has treated them equitably (for sharing the property only) on the basis of their respective capacity and needs. It needs to be emphasised that mere mathematically equal treatment between men and women will not only go against the spirit of the constitutional clause of equality as well as the interest of women but also frustrate the ends of justice. Hence it is evident that the real problem is not of any reform but lack of enforcement of women's rights which are granted under the law of Islam for achieving gender equality.

Source: The New Nation