The Inheritance Of Women In the Western World past and Present

Inheritance in Europe was generally male centered in the beginning. Many male-biased systems operated among which are:

i)  Primogeniture- A system under which the property of the deceased passed undivided to the firstborn son.

ii)  Ultimo Geniture- A system under which only the youngest son inherited, as Could ce found in parts of England and under the German national law of 1933.

iii) Secondiniture- A system under which only the second-born son and his line are the only eligible heirs.

iv) Tertiogeniture- A system under which the sole heirs are the third-born and his line.

v) Seniorate- A system under which the oldest male member of the family inherited the whole property.

vi) Juniorate- A system under which only the eligible heir who is entitled to the entire deceased’ estate is the youngest male member of the family.

vii) Majorate or Minorate- A system under which the whole property passed undivided to the eldest or the youngest male standing in equal degree of consanguinity to the deceased. ⁴⁹ 

There was therefore no provision for the mother, the grandmother, the daughter, the son’s daughter, the sister and the wife. This system of passing a deceased’s property to a single heir (most of the time male) and excluding other co-heirs was not limited to Europe alone. It operated among the Hottentots of southwest Africa, the Maori of New Zealand, the inhabitants of the Tonga Island and parts of China and Siberia. ⁵⁰ 

Succession in the modern west the advocates of progress and equality of the sexes, is of two types:

1. Testamentary Succession – The devolution and distribution of the property of a person who dies having made a valid will.⁵¹
2. in Testate Succession – Devolution and distribution of the deceased’s property who made no will. Intestate succession is regarded in the modern west as strange and exceptional situation. ⁵² This is because; according to them it is practically tantamount to dying unconfused. ⁵³ Sir D Hughes Parry concludes that:

“This modern English legal system has tended to regard succession under a will as normal or natural and intestate succession as exceptional or accidental”⁵⁴ 

Testamentary succession is therefore the accepted norm in the modern west. This is based on the assumption that the power of an owner of property to determine who is to have it up on his death stimulates economic activity. ⁵⁵ It gives an individual a personal right to determine the devolution of his property after his death according to his wishes and preference.⁵⁶  

This resulted to untold hardships and turmoil among many families as members become either excluded by their brothers and sisters with whom they stand on the same level of nearness to their deceased relative or by even animals by virtue of being mentioned in a will.  

Just of recent a Britton died and was survived by a daughter. He left an estate worth over a million pounds but made a written will that all of it be taken to the animal orphanage in order to take care of those cats, dogs, e.t.c. Who have lost their owners ⁵⁷ 

The will addiction and its negative consequences led to the enactment of the family provision Act of 1938, where the court was empowered to vary or override the provision for the maintenance of the dependants. ⁵⁸ 

According to the English common law all real property which a wife held at the time of a marriage become a possession of her husband. He was entitled to the rent from the land and to any profit, which might be made from operating the estate during the joint life of the spouses. As time passed, the English courts devised means to for bid a husband’s transferring real property without the consent of his wife, but he still retained the right to manage it and receive the money which it produced. As to a wife’s personal property, the husband’s power was complete. He had the right to spend it as he saw fit.⁵⁹

Looking at the travails of the western women, past and present, as elaborated in the preceding pages, we will see that they are not really in a happy and enviable position as they have to work so hard to live, enjoying a kind of liberty which in some cases amounts to libertinism. They had to engage in a onerous and hard struggle for decades and centuries unaided by neither “men of God” nor “men of Caesar”, offer painful sacrifices and surrender manyu7 of their natural rights in order to get to where they are presently with the right to learn and freedom to work and earn.  

But true to our traditions of imbibing and holding superior what has already become a bear’s embrace in the west, were now accepting feminism. This movement, disseminated and supported by the s-called moderates, is gaining ground in the Muslim world, Nigeria inclusive.” Efforts are being made” in the words of Dr. Khurshid Ahmad “to smuggle women into the rough and tumble of socio-economic (and political) life. They are being made to leave their hearth and home. Purdah is being discarded and free mingling of both sexes is encouraged” ⁶⁰

It is a fact admitted even by the western scholars that throughout the Muslim history, there has never been a historical, geographical, economical, ideological or legal conditions such as should force women to take up arms for their rights like their counterparts in the west. Islam has accorded women, 1423 years ago, a status which has no similes in honour and respect in recorded human history without any pressure, strikes or sit-inns. She has the right to live, to be human, the right to own and dispose of her property, the right not to be inherited like property, be forced into marring who she doesn’t like, or be transferred. She has the right to work and earn,the right not to be de-womanized in order to get what she deserves e.t.c. one of the greatest of all these rights is the right to inherit from the property of her deceased relative, which is the subject matter of our study. 

The Inheritance of Women in The Jahiliyya period 

The beauty and humane nature of the Islamic reformation and revolution with regard to the inheritance of women can be appreciated only if we look at the position of women in the then immediate environment of Islam, Arabia, before the advent of Islam. 

In their perpetual strife, the Jahiliyya Arabs wanted fighters only, strong enough to protect themselves and kill others. Women in such a society were considered a liability. In wartime they were captured and violated on the battlefield. It is only women who beget, so it was considered a necessary evil that some of them had to be kept alive. But the Arabs a would rather not have any, they felt sad at the birth of a daughter and harboured the idea of strangling their female babies or bury them alive even when they were quite grownup as they felt this was something derogatory to their status. ⁶¹ The Qur’an says: 

When news is brought to one of them, or (the birth) a female (child) his face darkens and he is filled with inward grief! With shame does he hide himself from his people because of the bad news he has had! Shall he retain her on (sufferance) and contempt, or bury her in the dust? ⁶² 

Women were treated, in the Jahiliyya period with cruelty in many other ways. During the menstrual period they were considered polluted and segregated completely. They had to drink and eat separately. To the widow the Arabs were very cruel; she was shut up in a small closet clothed in dirty rags. She was immured like this for a whole year. At the termination of this solitary imprisonment, a goat or a donkey was pushed into her closet. When she had rubbed her body and her private parts against the animal she was allowed to come out with the excreta of the animal in her hand, which when she threw it away, brought her out of mourning. ⁶³ 

Women were deprived of all economic rights, including inheritance and do were. Whatever the bridegroom gave the bride in money or property was grabbed by her father because the girl was his property which he hade sold to her husband for a price. ⁶⁴

Inheritance among the jahiliyya Arabs was generally male dominated.⁶⁵ Women werenot only deprived of inheriting their parents, relatives and spouses but were inherited like chattels. They were bartered away like other exchangeable goods and were even disallowed from eating certain foods reserved only for men ^66. They were regarded as something between an animal and man ⁶⁷. Right of inheritance was confined to he who could fight and acquire booty. 

It follows therefore that he who could not fight could not inherit; because property was connected with offensive and defensive fight ⁶⁸. They used to say that No one should inherit except he who can pierce with a spear, acquire booty and consequently bring more property to the tribe. ⁶⁹ On the basis of this logic mothers, daughters, widows, sisters, small children and infants had no share in inyheritance⁷⁰. A husband took  the whole estate of  his deceased   wife, while  she had  no  legal  right  to  inherited  her  deceased husband,  but  was  regarded  among  his  inheritable  property. She had to escape to here family in order to avert being inherited or else the sheet was cast on her by the husband’s personal representative which indicated that she now belonged to him ⁷¹. a person could make a heir out whoever he wished and disinherit whoever he liked even if it were a blood relative. Strangers, in the name of compact friend and adopted sons were made to inherit to the detriment of blood relatives. ⁷²  

This belief (of the Jahiliyya Arabs) that women are by nature not entitled to inherit became so ingrained in them that even after they embrace Islam, when the eleventh verse of Surah Al-Nisa’ was revealed, making women eligible to inherit and even specifying their different shares in different situation they started grumbling how on earth could this be possible! A woman! That weak and half human who could neither fight nor acquire booty inheriting! This is incredible!⁷³ 

Generally speaking women in the Jahiliyya period enjoyed no recognition, respect or reverence for, says Nahzat Afza:

...The condition of women before Islam was miserable throughout the world. No religion gave them a share in the property of their parents or husbands. A woman was looked upon as evil and an unwanted burden, a source of disgrace and humiliation to the family. Women were universally treated as chattels. Their own consent in anything was considered immaterial. They had no independent status, could own no property (and) were given no right of inheritance. ⁷⁴