CHAPTER ONE

1.1 GENERAL BACKGROUND

There are some obstacles and impediments which prevent an inheritor to benefit from the assets left by his/her deceased relation. Broadly, there are four cases consisting of the obstacles, bar or impediment to inheritance, they include Homicide (Qatl), difference of religion, Apostasy (Riddah), and Slavery. Some jurists, however, includes difference of domicile as an impediment to inheritance . Each one of them functions independently from another and bars the beneficiary from materializing his right of inheritance2.

There are divergent views from different schools of Islamic Jurisprudence over the concept or rather what constitute impediments to inheritance under Islamic Law, despite the fact that some of these impediments are clearly contained in the primary sources as explained by the Prophet (S.A.W).

Impediments to inheritance are the personal acts or attributes of a person which disqualifies him from succession who would otherwise be an entitled heir on grounds of blood or marital relationship with the praepositus .

For those relatives of the deceased person ‘who are debarred from inheritance by reason stated above, do not adversely affect the right of other heirs from inheritance, neither do they exclude nor restrict their respective shares . In essences, disqualified heirs are deemed, in law, to be non-existing at all for the purpose of Islamic law of inheritance. For example, where a deceased person left behind two or more agnate brothers who, if not disqualified, would have restricted the mother’s Qur’anic share from one-third (1/3) to one-sixth (1/6) even when they are excluded by the father of the deceased person, but for the disqualification which befalls them, would not affect or restrict the mother’s Quranic share. This is because, for that impediment, they are not recognized in the eyes of the law.

1.2 STATEMENT OF PROBLEM

The provision of the Holy Qur’an and the Sunnah of the Prophet (SAW) has specifically and unambiguously state those that are debarred from inheritance. This debarment is either partial or complete.

But the problem lies on the arguments forwarded by each school of Islamic Jurisprudence or jurists with respect to a particular bar on inheritance. It will not be feasible for the Muslim world if these arguments can go on without careful regard being had to the fundamental provision of Qur’an and Sunnah.

The second problem is in respect of the research work itself. This topic i.e. “An Analysis of the Impediments to Inheritance under Islamic Law” is a vital topic that concerns every aspect of the distribution of estate of a Muslim, particularly where there is a marriage relationship between a Muslim man and non-Muslim woman and it give rise to protracted litigation especially where the legitimacy of one of the potential heirs is in dispute.

Thirdly, with respect to apostasy, many writers or Islamic law jurists undermined a situation where, for example, a man renounces his religion but his wife or children remain Muslims or vice versa. This is a controversial area that needs a thorough research and clear explanation but has been neglected.

Finally, the issue of killing as an impediment to inheritance under Islamic law is also an area that is very vital under the principles of Islamic law but not much has always been said about it. And, most writers limits, themselves on basically only four or to some extent five elements that constitutes impediment to succession under Islamic laws. However, the present researcher suggests that it is more than that, for there are other elements that debar a person from inheriting a deceased estate either temporally or permanently.

1.3 AIMS AND OBJECTIVES OF THE RESEARCH WORK

It is the object of this work to;

a. Trace the history of inheritance prior to and after the advent of Islam to identify what constitute impediments to inheritance prior to and after the inception of Islam.

b. Look into the provision of the Qur’an and Sunnah and see how the heirs are categorized.

c. Analyze what constitute permanent and temporary bar to inheritance.

d. Look into different arguments provided by different Islamic schools of though in respect to those impediments; and

e. Propound workable solutions to the problems relating to those impediments in the Muslim community.

1.4 JUSTIFICATION

This research work will,

i. Provide reading materials for undergraduate students of inheritance; ii. Educate the generality of Muslim community on impediments to

inheritance and its factors; iii. Help other scholars and researchers to improve their work by including the new areas which they overlooked or neglected.

iv. Benefit judges, lawyers as well as student of Islamic law to understand in a broader sense what constitute impediments to inheritance under Islamic law.

1.5 SCOPE AND LIMITATION OF THE STUDY

The scope of this research will be limited to Islamic law of inheritance. But some reference may be made to other legal systems whenever there is a need to do that. The work will first consider the nature of inheritance prior to Islam and then after the advent of Islam, then deal with the issue of impediments under the subsequent chapters.

1.6 RESEARCH METHODOLOGY

The research methodology adopted for this thesis I essentially doctrinal approach. Reliance is placed on textbooks, journals, seminar papers as well as conference papers which were accessed both from the libraries and outside sources.

1.7 LITERATURE REVIEW

This research comprises the ideas, views, as well as argument of many renowned Islamic law jurists. They have immensely made great contribution in the field of inheritance under Islamic law and they have done their utmost best, particularly on the topic: “Impediments to inheritance under Islamic Law”. This researcher found their existing literatures very resourceful.

Law of inheritance is a very important phenomenon in Islamic Law and, it plays a very significant role in the Islamic legal system. It is believed to be closely allied to and strongly indicative of society’s normative system, social structure, and principles of family organization.

This being so, many writers shad attempt to write much voluminous books and papers on eh topic. In fact, there is no author of Islamic law book that finishes his writing or research without touching on the topic. The knowledge of inheritance is 9/10 of the Islamic knowledge. This is because the Prophet (SAW) says the knowledge of Islamic law of inheritance is nine-tenth of the entire Islam. But then much books, articles, journals researches, etc have not been written to deal exhaustively with the impediments to inheritance. Therefore, impediments to inheritance under Islamic law are a very vital area that needs a lot of research in Islamic jurisprudence because of its complex nature.