The study and research on which this essay is based were made possible by a Fellowship awarded by the National Endowment for the Humanities, Washington, D.C., whose support is most gratefully acknowledged. I am indebted to Mr J. B. Harrison, School of Oriental and African Studies, University of London, for reading and commenting on the manuscript. Responsibility for facts, opinions, and interpretations rests, of course, with the author alone.

¹ Coulson, N. J., Succession in the Muslim Family (Cambridge: 1971), p. 108.CrossRefGoogle Scholar

² Carroll, Lucy, ‘The Hanafi Law of Intestate Succession: A Simplified Approach,’ Modern Asian Studies, 17, 4 (10 1983): 629–70CrossRefGoogle Scholar (Hereinafter cited as Carroll, ‘Hanafi Law.’)

³ As in Sunni Islam, so also there are internal divisions among the Shias. In South Asia, the Ithna Asharis constitute the predominant Shia grouping. Followers of the Ismaili Shia school (e.g., a majority of the Khojas and some of the Bohoras) are also present in the subcontinent. Differences between Ithna Ashari law and Ismaili law are minimal.

⁴ By relegation in Hanafi, Shafi, and Hanbali law to an inferior category of heirs (i.e., the ‘distant kindred’), who will not participate in the inheritance as long as a blood relative is to be found among the superior heirs (agnatic or Quranic blood relatives); or by exclusion by the State treasury as a higher ranking heir in Maliki law.

⁵ Hereinafter abbreviated ‘h.l.s.’ Likewise, ‘how high so ever’ is abbreviated ‘h.h.s.’

⁶ For ‘true’ and ‘false’ grandparents in Hanafi law, see Carroll, , ‘Hanafi Law,’ pp. 640–2.Google Scholar

⁷ For these terms see ibid., p. 632.

⁸ In Shafi and Hanbali Sunni law she is excluded for the same reason; in Maliki Sunni law the State takes precedence over distant kindred.

⁹ Carroll, ‘Hanafi Law.’

¹⁰ In Sunni law the father converts the mother into a co-sharer only in circumstances where rule 2(a) in the ‘Mode of Distribution’ presented in Ibid. applies; the Shias reject this rule.

¹¹ ibid., pp. 636–7.

¹² For a discussion of the method of recalculating the Quranic shares in Hanafi law, see ibid., pp. 651–3. Subject to the specific provisions noted below, whereby certain relatives are excluded from participation in radd in particular circumstances, recalculation of the shares involves identical mathematical procedures in Sunni and Shia law.

¹³ And also the true grandfather h.h.s., whom the Sunnis recognize as a Quranic heir in the absence of the father. Shias do not recognize the grandfather as a Quranic heir.

¹⁴ The father never participates in radd in Sunni law, because occasion for the operation of the principle of radd can never arise in Sunni law when the father is present.

¹⁵ E.g., Coulson, , Succession in the Muslim Family, p. 119Google Scholar; Mahmood, Tahir, The Muslim Law of India (Allahabad: 1980), p. 263Google Scholar; Fyzee, A. A. A., Outlines of Muhammadan Law (Delhi: 1974), p. 461Google Scholar support the view that the consanguine sister does not bar the uterine from radd. F. B. Tyabji (whose work is entitled to great respect) admits the difference of opinion and comes down on the side of those who believe that the uterine sibling is barred from radd in the presence of a consanguine sister: Muslim Law: The Personal Law of Muslims in India and Pakistan (Bombay: 1968), pp. 886, 887–8.Google Scholar

¹⁶ As the daughter (Class I) excludes the sisters (Class II), and as the germane sister excludes the consanguine sister (strength of blood tie), only relatives from one of these categories would figure (actually or nominally) as heirs in any situation where over-subscription of the estate arose. On the other hand, if none of these relatives is present as a Quranic heir (actually or nominally for purposes of distribution of the estate), the estate cannot be over-subscribed.

¹⁷ Carroll, , ‘Hanafi Law,’ pp. 642–3.Google Scholar

¹⁸ The major legal distinction between nikah and mut'a marriage is that while the former is contracted theoretically for life and at least until divorce, the latter is contracted in advance for specific period. The period for which a mut'a marriage is contracted may be defined in days, weeks, months, or years, but a specific period must be stated. The Sunnis regard mut'a as equivalent to legalized prostitution and refuse to recognize it.

¹⁹ She is ‘childless’ in regard to P if she has no children by him (although she may have children by a previous marriage), or ifall the children she bore him predeceased him.

²⁰ The Ismaili Shias apparently do not follow this rule. See Mahmood, Tahir, The Muslim Law of India, p. 268.Google Scholar

²¹ See below.

²² In Sunni law, the son does not exclude either the father or (in the absence of the father) the true grandfather in his capacity as a Quranic heir; the Shias do not recognize the true grandfather as a Quranic heir.

²³ Carroll, , ‘Hanafi Law,’ pp. 646–7.Google Scholar

²⁴ The number of portions is obtained by multiplying the number of sons by two and adding this sum to the number of daughters.

²⁵ The result in Hanafi law is identical.

²⁶ According to lines of descent.

²⁷ The result in Hanafi law would be: wife 1/8 (3/24); mother 1/6 (4/24); son's son 17/24 (male agnatic heir); daughter's son (distant kinsman) excluded.

²⁸ The result in Hanafi law would be: husband 1/4 (3/12); mother 1/6 (2/12); son's sons (male agnatic heirs) 7/12 (7/24 each); daughter's children (distant kindred) excluded.

²⁹ Individually among all entitled heirs without reference to lines of descent.

³⁰ This example is deliberately designed in such a way that all relatives present are heirs in both Sunni law and Shia law.

³¹ Note that if ascendants higher than grandparents are the nearest heirs, those paternal ascendants who are connected to the father through a female link also divide the share passed up to them equally, not on the basis of the 2:1 rule.

³² In Hanafi law the result is identical although the rationale is different. Father's mother takes 1/6 as Quranic heir (true grandmother); father's father takes 1/6 as Quranic heir (true grandfather) and residue of 1/6 as male agnatic heir.

³³ The result in Hanafi law would be: wife 1/4; father's mother and mother's mother (true grandmothers) 1/6 collectively (1/12 each); father's father 7/12 (1/6 plus 5/12 as male agnatic heir); mother's father (distant kinsman) excluded.

³⁴ The result in Hanafi law is identical.

³⁵ And perhaps the consanguine sister; opinion is not unanimous on this point.

³⁶ The result in Hanafi law would be: wife 1/4; germane brother's sons 3/8 each (male agnatic heirs); consanguine brother's son excluded by presence of germane brother's son (higher male agnate); and children of uterines and of germane sister (distant kindred) excluded by presence of an agnatic heir.

³⁷ This example is deliberately designed in such a way that all relatives present are heirs in both Sunni and Shia law.

³⁸ As no grandparent can exclude a collateral, and no collateral can exclude a grandparent, if any germane collaterals are present (and regardless of whether any consanguine collaterals are also present), the paternal grandparents must be treated as equivalent to germane collaterals. In the presence of only consanguine collaterals, paternal grandparents must be treated as consanguine collaterals. If both germane and consanguine collaterals are present, the consanguine is excluded by the germane, not by the paternal grandparent.

³⁹ The result in Hanafi law would be: wife 1/4; mother's mother (true grandmother) 1/6; father's father 7/12 (1/6 plus 5/12 as male agnatic heir); germane sister excluded by presence of male agnatic ascendant.

⁴⁰ The result in Hanafi law would be: husband 3/7 (1/2 reduced by awl); germane sister 3/7 (1/2 reduced by awl); father's mother (true grandmother) 1/7 (1/6 reduced by awl). Consanguine brother is male agnatic heir but is de facto excluded; mother's father (false grandfather) is distant kinsman and is excluded by presence of any agnatic or blood Quranic heir.

⁴¹ The result in Hanafi law would be: husband 1/2; germane paternal uncle's son (male agnatic heir) 1/2. Maternal uterine aunt (distant kinswoman) excluded by presence of male agnatic heir.

⁴² The result in Hanafi law would be: wife 1/4; paternal germane uncle (male agnatic heir) 3/4. Paternal consanguine uncle excluded as agnatic heir by paternal germane uncle; paternal uterine aunt and paternal germane aunt (distant kinswomen) excluded by presence of male agnatic heir.

⁴³ The result in Hanafi law would be: wife 1/4; paternal germane uncle (male agnatic heir) 3/4. Paternal uterine aunt, maternal germane aunt, and maternal uterine uncle are all distant kindred and excluded by presence of male agnatic heir.

⁴⁴ Carroll, , ‘Hanafi Law,’ pp. 648–63.Google Scholar

⁴⁵ Note that the remarks concerning the compulsory application of Muslim law of succession, exclusion of agricultural land if an applicable local statute ousts Muslim law of succession in regard to such property, and the effects of solemnization/registration of marriage under the Indian Special Marriage Act, 1954, made in my previous article (Carroll, , ‘Hanafi Law,’ p. 664)Google Scholar apply equally to Shia and Sunni Muslims.

⁴⁶ Baillie, Neil B. E., A Digest of Moohummudan Law (London: 1887), Vol. II, p. 305.Google Scholar

⁴⁷ Ibid., p. 373.

⁴⁸ Ibid., pp. 266, 369.

⁴⁹ Coulson, , Succession in the Muslim Family, pp. 176–8.Google Scholar

⁵⁰ See Carroll, , ‘Hanafi Law,’ pp. 668–9Google Scholar, where these three examples are considered on the assumption that the propositus was a Hanafi Sunni.

⁵¹ Two important, although embryonic, steps in this direction might be found in the 1976 amendment of the Hindu Marriage Act (1955) granting the Hindu girl a right to repudiate a marriage contracted before she reached the age of fifteen years comparable to the right possessed by a Muslim girl; and in sections 125–128 of the new Code of Criminal Procedure (1974) granting a divorced wife (regardless of religious communion) unable to support herself a right to claim maintenance from her ex-husband. See Carroll, Lucy, ‘Muslim Family Law in South Asia: The Right to Avoid an Arranged Marriage Contracted During Minority,’ Journal of the Indian Law Institute, 23 (1981): 149–80, at pp. 177–80Google Scholar; and Carroll, Lucy, ‘Muslim Family Law in South Asia: Important Decisions Regarding Maintenance for Wives and Ex-Wives,’ Islamic and Comparative Law Quarterly, 1 (1981): 95–113.Google Scholar

⁵² Mst. Farishta v. The Federation of Pakistan, All Pakistan Legal Decisions 1980 Peshawar 47 (Shariat Bench); Federation of Pakistan v. Mst. Farishta, All Pakistan Legal Decisions 1981 Supreme Court 120 (Shariat Bench). See: Carroll, Lucy, ‘Nizam-i-Islam: Processes and Conflicts in Pakistan's Programme of Islamisation, with Special Reference to the Position of Women,’ Journal of Commonwealth and Comparative Politics, 20 (1982): 57–95CrossRefGoogle Scholar. See also: Lucy Carroll, ‘Succession of Orphaned Grandchildren in Pakistan: Conflicting Judgments on the Method of Calculation,’ Islamic and Comparative Law Quarterly, forthcoming.

⁵³ Carroll, ‘Hanafi law.’