Barrister Miti Sanjana :
In Bangladesh, the law of inheritance is based on personal law, i.e. the religious law of the individual in issue and generally we follow Islamic Shari’ah laws relating to inheritance. Existing laws related to rights of women in property are not very just and fair in our country. The proprietary rights of sons and daughters are completely different. If a deceased person has one daughter, who is the only child, she inherits half the property of her late father or mother. The rest of the property of the deceased will be distributed among the widow, father, mother and other relatives of the deceased. In this scenario, if a person has one or more than one daughters and does not have a son, after his death there is a possibility to distribute the property amongst his brother and/or his nephews (brother’s son/sons). If there is more than one daughter and no son, then the daughters jointly inherit two-thirds of the property of their father. However, if there is a son, then the daughter’s share will be equal to half of the son’s share. In any case, men inherit more than the women do. Moreover, it might be a crucial question whether inheritance by nephews and others relatives is a fair distribution.
The Transfer of Property Act, 1882 is a very important statutory law in relation to transfer of property. However, the scope of the Act is also limited in the sense that it only deals with the transfer inter vivos i.e. the transfer from one living person to another living person e.g. it does not deal with the transfer of property by way of will. Therefore if a father wishes his daughters to inherit substantial partition of his property after his death rather than his nephews and other relatives it is not possible to transfer by way of will under the Transfer of Property Act, 1882.
However, according to Muslim Law, any person, who is a major and is of sound mind can execute a Wasyat or will. A will or Wasiyat can be termed as an instrument by which a person declares his intention as to how his property is to be disposed of (distributed) after his/her death. The Wasiyat takes effect upon the death of the person making it. It can be revoked anytime before the death of the owner. But there are also some limitations, as a Muslim cannot dispose of more than one third of his total property by way of will. The remaining 2/3 share of the property shall be made distributed amongst the legal heirs of the deceased. Even for that 1/3rd share, the Muslim has to obtain the consent of the other heirs. Bequest in favour of any legal successor shall not be valid, unless all the other legal successors consent to the same after the death of the testator, i.e. person creating the Will.
Therefore a person who has only daughters but no son does not wants to transfer his entire property or a substantial portion of entire property in favour of his daughter/daughters has to transfer it during his lifetime by way of absolute gift. Such transfer has to be made by executing a Deed of Declaration of Heba. Gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration by one person to another. A gift of immovable property has to be mandatorily effected by a registered instrument. A transfer without registered instrument shall be regarded as void. Recently, the government of Bangladesh has attempted to revise this existing law of inheritance by introducing equal proprietary rights between man and woman. Different study analysis states that under the existing legal system, women are being discriminated in property distribution in Bangladesh.
Economic empowerment is very important for a woman’s self-development as well as her capability in family and society. Effects of disparities in relation to unfair inheritance right of women have adverse impact on overall development of country and it is a violation of Human Rights. Due to financial dependency, in a patriarchal society women face various problems like domestic violence, psychological abuse, polygamy everyday within the family. Equality of proprietary right between women and men is human right and is also a fundamental prerequisite for development and peace for any country.
(The writer is an Advocate, Supreme Court of Bangladesh and an activist.)
