"Heritable Disease Holders' Share in

Inheritance Laws (Muslim) in Bangladesh"

Abstract

This research article focuses on rules in special cases highlighted recommended provisions those who
have heritable disease under the Islamic law of inheritance. The article object is to provide a
framework for property distribution among heirs who got severe life taking heritable disease and
examine the actual reason behind the fluctuation of shares of the heirs in terms of property
distribution. It highlights the sources of Islamic law of inheritance, including the Quran, Sunnah, and
Consensus opinion(Ijma), and the concept of heritable property. The article also emphasizes how
significance of the study for the welfare of the heirs who are financially lack behind due to heritable
illness. The research suggests the need for constitutional, family, and civil laws to incorporate
provisions that ensure fair treatment and equal rights for individuals with heritable diseases or
disabilities during inheritance distribution.

Keywords: Muslim law, Inheritance, Heirs, Heritable disease, Property distribution,

Hereditary diseases, Genetic disorders

Introduction
This article focuses on the rights of inheritance of an heir who has heritable disease under the
Muslim Law. The article aims to provide a framework regarding the distribution of properties
of a deceased person among the heritable disease holder heirs. It examines and analyses the
actual distribution of property among heirs and the reasons behind the fluctuation of the
property share of the mother. The article explores the concept of inheritance in "Islamic Law"
as well as the sources of the Islamic law of inheritance with the Bangladesh perspective.
Furthermore, the article highlights the main sources of "Laws of Inheritance," including the
Constitution of Bangladesh, Family Laws, Civil Laws, Disability Rights Legislation, and
Healthcare Policies. Lastly, the article sheds light on hereditary diseases, their definition,
categories, and the most common ones.

Main Objectives of the Research

The sole aim of this research work is to focus on them who got heritable disease from father
but others heirs did not get so and getting equal share with heirs who has such a disease
(heritable) under Muslim law. However, the specific objectives of the research are as follows:

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a) To give a framework regarding distributions of properties of a deceased person among
the heirs who has heritable disease.

b) To examine and analyze the actual distribution of property among heirs. Furthermore,
what are the reasons behind the fluctuation of the mother share.

Significance of the research

This research work would be useful in terms of humanity to all those involved; not only to
the civil but also the family courts Judges in their application of Muslim Personal law; to
Lawyers in handling with the family matters; to parents and guardians as well as families in
determining and distribution of the properties of deceased person among the heirs who has
heritable disease; to teachers, researchers and students of law who is ambitious to pursue a
career in the same field, etc. This research examines the possible property distribution
methods in the lights of the Quran, Sunnah and different opinions of the imam and jurist,
from an Islamic law perspective to the heirs (heritable disease holder).

Concept of Inheritance in “Islamic Law”

The “Muslim law of inheritance” is well-known as “ilm ul-fariad”. The “Ilm ul-fariad” is
Arabic term which literally means acquaintance or learning of the sanctions regarding
inheritance law (Haque, 2009). The word “Mirath” means inheritance the distribution process
is from the all types of the property of the deceased person between his heirs. The learning of
“Mirath” in shariah provides all the guidelines who can be succeed and who is to be inherited
and what portions will get the successors.

The Main Sources of “Islamic Law of Inheritance”

The Muslim jurists recognized merely three sources of the Islamic law of inheritance viz.

a) “The Holy Quran”;

b) “The Hadith”; and

c) “Ijma or Consensus opinion”.

Contrasting with the further classification of law, no confidence has been made on Qiyas
or Analogy with esteem just before putting miserable the “law of inheritance”.

Heritable Property under the Islamic Law of Inheritance

Heritable property is that, which remains after paying of the following expenditures of the
deceased:

a) Funeral and burial expenses;

b) Debts including dower of his widow;

c) Fixing the value or will which can only be a maximum of one third of the total
properties; and
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d) Payable wages for personal service to the deceased. 1

The Main Sources of “Laws of Inheritance

The Constitution of Bangladesh:

The Constitution can serve as the foundation for ensuring equality, non-discrimination, and
the protection of the rights of individuals with heritable diseases or disabilities in matters of
inheritance. Amendments or interpretations of constitutional provisions could strengthen
protections and promote fair treatment in inheritance distribution.

Family Laws:

Bangladesh has specific family laws, such as the Muslim Family Laws Ordinance, 1961,
which governs inheritance among Muslims. Reforming these laws to include provisions that
address the needs and rights of individuals with heritable diseases or disabilities could
promote more equitable inheritance distribution.

Civil Laws:

Civil laws in Bangladesh, including the Succession Act and related statutes, provide the legal
framework for inheritance matters among non-Muslim communities. Amendments or
additions to these laws could incorporate provisions aimed at ensuring fair treatment and
consideration for individuals with medical needs in inheritance distribution.

Disability Rights Legislation:

Bangladesh has legislation aimed at protecting the rights of persons with disabilities, such as
the Persons with Disabilities Rights and Protection Act, 2013. Strengthening and enforcing
these laws can help ensure that individuals with disabilities are not discriminated against in
matters of inheritance.

Healthcare Policies:

While not directly related to inheritance laws, improving healthcare policies and services can
contribute to reducing the impact of heritable diseases and disabilities on individuals and
families. Accessible and affordable healthcare can alleviate some of the burdens associated
with medical conditions, potentially influencing inheritance distribution decisions.

Hereditary diseases

Hereditary diseases, commonly known as inherited diseases or genetic disorders, are defined
and categorized as being a set of genetic diseases that happen due to changes in one's genetic
material (DNA). These diseases are transferred from generation to generation by gene, or in
other words, they are inherited from ancestors or parents to their offspring.
1
Provisions of the Rights of Inheritance in Special Circumstances in the Muslim Law: An Overview, SCIRP Open
Access, Mohi Uddin, 22 March 2021, https://www.scirp.org/journal/paperinformation

3|Page
The most common hereditary diseases

There are varieties of hereditary diseases the most common ones are as follows:

1. Skin cancer
2. Cardiomyopathies (hypertrophic cardiomyopathy, dilated cardiomyopathy,
Arhythmogenic cardiomyopathy and restrictive cardiomyopathy)
3. Arthritis2

Inherited arrhythmia syndromes (sudden arrhythmic death syndrome, or SADS), long QT

syndrome, Brugada, Catecholamainergic polymorphic ventricular tachycardia (CPTV)

Inherited aortopathies, for example Marfan syndrome

1. Breast cancer

2. Prostate cancer

3. Lung cancer

4. Neuromuscular disorders (eg muscular dystrophy, myotonic dystrophy)

5. Familial hypercholesterolaemia

Heritable Diseases in Bangladesh

The most common hereditary diseases are in Bangladesh, including thalassemia,

cardiovascular disease, cancer, diabetes mellitus, and congenital anomalies. The significant
mortality rates associated with these diseases and the lack of genetic testing available in our
country Bangladesh. Additionally, the high incidence of hemoglobinpathies and
chromosomal disorders are prevailing in Bangladesh.

Financial Issue Consideration

According to the Surah An Nisa Verse 11,

“Allah thus commands you concerning your children: the share of the male is like that of two
females. If (the heirs of the deceased are) more than two daughters, they shall have two-thirds
of the inheritance; and if there is only one daughter, then she shall have half the inheritance.
If the deceased has any offspring, each of his parents shall have a sixth of the inheritance; and
if the deceased has no child and his parents alone inherit him, then one-third shall go to his
mother; and if the deceased has brothers and sisters, then one-sixth shall go to his mother. All
these shares are to be given after payment of the bequest he might have made or any debts
outstanding against him.

2
Professor Gerald Carr-White: cardiologist in SE1 South Bank London. (n.d.). Top Doctors.
https://www.topdoctors.co.uk/doctor/gerald-carr-white

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“You do not know which of them, your parents or your children, are more beneficial to you.
But these portions have been determined by Allah, for He indeed knows all, is cognizant of
all beneficent considerations .”3

In addition from this rule reference for directions can be made as to distribution of the
deceased property and reasonable considerable ground of the inheritance laws, viz., that the
share of the male should be double than the share of female. Since Islamic law imposes
greater obligations on men in terms of expenses of family life and relieves women from such
obligations, it is equitable that a woman’s share transferred as an inheritance should be less
than the share allocated to a man.

However, the commentary of the Islamic scholars financial consideration is valid

consideration, there is no prohibition for this kind of convenience in the Holy Quran and
Hadith. Islamic scholars are consensus for these types of considerations for the welfare of the
heirs and it is fair. Financial considerations are also valid in other aspects like, gift, will
(marz-ul-maut) etc.

Financial Considerations only for severe Heritable Disease

All the type of financial considerations can be made toward the heritable diseases holders
applicable only for those who have severe chronic disease. Therefore, considerations include
will during Marz-Ul-Maut, after death of the deceased (father) to the heritable disease holder
heirs.

During Marz-Ul-Maut

Donatio Mortis Causa, a legal maxim which means “a gift of personal property in
contemplation of death” or simply a gift from deathbed. This kind of a “gift” is given by the
person who is sick and in the anticipation of death. This kind of gift is only valid upon the
death of the giver by the existing illness. The main ingredients of this kind of gift are that the
gift should be made in contemplation of his/her death.

A valid gift during marz-ul-maut must fulfill all the conditions necessary for the validity of a
gift including the delivery of possession. Such a gift cannot be made in favor of an Heir. It
may also be not made in excess of one-third of the estate of the donor. Gift to heirs and
exceeding the one- third of the estate would require the consent of the heirs.

A man has the right to bequeath up to a maximum of one-third of his inheritance. The
principle laid down in regard a man cannot bequest a portion of his inheritance either to a
relative who is not legally entitled to any prescribed share in the inheritance or to others
whom he considers in need of help, e.g. an orphaned grandson or grand-daughter, the widow

3
Surah An-Nisa Ayat 11 (4:11 Quran) With Tafsir - My Islam. (2023, January 29). My Islam.
https://myislam.org/surah-an-nisa/ayat-11/

5|Page
of a son (financial distress), any brother, sister, brother's wife, nephew, and other distant
kindered who seem to be in need of financial support. 4

However, special provisions can be made to give the privilege to the heirs those who have
heritable disease during Marz-Ul-Maut to make will toward them. Such a gift cannot be made
in favor of an Heir this prohibition can withdraw for the sake of heritable disease holders
because of financial issue.5

Retrospective effect after distribution of the property

According to the Hadith by Jabir concerning the reason behind revealing the Ayah 11 of
'Surah Nisa', Ahmad recorded from Jabir that he said, "The wife of Sa`d bin Ar-Rabi` came to
Allah's Messenger and said to him, these are the two daughters of Sa`d bin Ar-Rabi`, who
were killed as a martyr during the war of Uhud and their uncle took their money and they are
neglected. Subsequently, this Ayah revealed about the inheritance rules and the Messenger of
Allah (SW) sent word to their uncle commanding him,

To give two-thirds (of Sa`d's money ) to Sa`d's two daughters and one eighth for their
mother, and whatever is left is yours.)" Abu Dawud, At-Tirmidhi, and Ibn Majah collected
this Hadith.

To give two-thirds (of Sa`d's money ) to Sa`d's two daughters and one eighth for their
mother, and whatever is left is yours.)" Abu Dawud, At-Tirmidhi, and Ibn Majah collected
this Hadith. 6

From this Hadid it is apparent that, in terms of property distribution retrospective effect can
be done for the heirs who revealed later he has heritable disease to avail special privilege to
get more property than as usual prescribed rules. In addition, this type of privilege can be
offer by reforming the prevailing laws regarding heritance for those who have sever life
taking heritable disease. However, it is valid because from the teaching of Holy Quran Verse
11 surah An Nisa, Mothers property can be reduce from one third to one sixth but father share
will remain constant when sons are more than one and the reasons behind this type of ruling
by taking account the considerations that father bear all the expenses of his heirs such as
marriage, education, maintenance, etc.

Daughter with heritable disease

If a father left his daughters and their disease also revealed subsequently after the distribution
of the property then she can avail such special privilege in terms of father’s property and she

4
Q. (n.d.). ‫ المصحف الشريف ( سورة قرآن‬- ‫(القرآن الكريم مكتوب كامل‬The Holy Qur’an is written in its
entirety - the Holy Qur’an ,Surat Al-Qur’an, surah quran ). https://surahquran.com/tafsir-english-aya-11-sora-
4.htm
5
International Journal of Law Management & Humanities | Research Paper Publication India. (2024, February
26). International Journal of Law Management & Humanities. https://www.ijlmh.com
6
Santoso, I., Jeddawi, M., Sahyana, Y., Arsyad, R., & Alma’arif, A. (2023). Gross Human Rights Violations
Research Trend: A Bibliometric Analysis and Future of Research Agenda. Jurnal HAM (Badan Penelitian Dan
Pengembangan Hak Asasi Manusia), 14(1), 69. https://doi.org/10.30641/ham.2023.14.69-90

6|Page
will also get the same portion of property in comparison with the son who is of sound health.
As a recommendation of distribution of property the provisions can be made as follows:

Heirs Propositus Propositus

(Heritable Disease)
Son 2/3 ½
Daughter 1/3 ½

Conclusion

This research article focuses on the Islamic law of inheritance and its application in special
cases like heritable diseases. The article provided the various sources of Islamic law of
inheritance, including the Quran, Sunnah, and Consensus opinion. The article also discusses
the concept of heritable property and the distribution of property among heirs (heritable
disease holder) after the death of a father. The research article emphasizes the significance of
the study for civil and family courts judges, lawyers, parents, guardians, families, teachers,
researchers, and students of Islamic law in this regard. The article also highlights the need for
the constitutional, family, and civil laws to incorporate provisions that ensure fair treatment
and equal rights for individuals with heritable diseases or disabilities during inheritance
distribution.

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List of References

1. SCIRP Open Access. (n.d.). https://www.scirp.org/journal/paperinformation

2. Professor Gerald Carr-White: cardiologist in SE1 South Bank London. (n.d.).
Top Doctors. https://www.topdoctors.co.uk/doctor/gerald-carr-white
3. Surah An-Nisa Ayat 11 (4:11 Quran) With Tafsir - My Islam. (2023, January
29). My Islam. https://myislam.org/surah-an-nisa/ayat-11/List of References
4. Q. (n.d.). ‫ المصحف الشريف ( س ورة ق رآن‬- ‫(القرآن الكريم مكتوب كامل‬The Holy
Qur’an is written in its entirety - the Holy Qur’an ,Surat Al-Qur’an, surah
quran ). https://surahquran.com/tafsir-english-aya-11-sora-4.htm
5. International Journal of Law Management & Humanities | Research Paper
Publication India. (2024, February 26). International Journal of Law
Management & Humanities. https://www.ijlmh.com
6. Santoso, I., Jeddawi, M., Sahyana, Y., Arsyad, R., & Alma’arif, A. (2023). Gross
Human Rights Violations Research Trend: A Bibliometric Analysis and Future
of Research Agenda. Jurnal HAM (Badan Penelitian Dan Pengembangan Hak
Asasi Manusia), 14(1), 69. https://doi.org/10.30641/ham.2023.14.69-90

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