Insisting on achieving equality in an issue implies a sense that there is a problem that requires finding solutions to be addressed. However, when we talk about inheritance provisions, we are not discussing a single problem but rather addressing a problem that branches out into a set of overlapping subproblems related to the distribution of inheritance among heirs.
Among these problems are those related mainly to the jurisprudential institution and the laws that were built on the basis of their interpretations in Arab and Islamic societies, including those related to the cultural system of the whole (norms, customs, traditions, etc.), which depend on refuting those who oppose them by relying erroneously on the provisions of the jurisprudential institution that keep the unfair quotas in the distribution of inheritance effective and are more powerful even over the authority of the law itself.
In a country like Yemen, which lives in a state of permanent conflicts and wars where the authority of laws is disrupted and social norms become the effective and actual provisions. Thus, as a result of that, there is almost no family without women's inheritance problems. Each family has a case either filed in court or with the district legal trustee or the head of the family. All these cases have a common denominator: a woman was deprived of her inheritance.
In Arab societies, the jurisprudential institution continues to detail the provisions of inheritance, especially those relating to women and their heirs after them, from a superficial standpoint that contains the text and keeps it available according to summons related to the stability of the text chronologically.
The Source of Inheritance Laws in Yemen is the Qur’an
On this subject, Judge Abdulaziz Sallouh says: "The laws of inheritance in Yemen come from the Holy Quran, and these textual laws are in force in accordance with the Sharia provisions, except for the law of legacy for grandchildren by the grandfather in the event of the son's death before his father. It was applicable in law that the grandson could inherit only by a “will” from the grandfather; however, this imbalance was addressed, and a law was developed that stipulates the right of grandchildren to inherit their grandfather as their father inherits, even after death, whether male or female.
Sallouh affirm that “the inheritance laws in Yemen are fair because they are supported by the Qur’anic text. As for the injustice inflicted on women in inheritance, it lies in the fact that they do not obtain their legitimate share of inheritance. The reason is not in the laws themselves, but in the application of these laws or not, which the concerned authorities have not done, especially in cases of inheritance disputes filed in the courts, in which the judiciary ruled in favor of women” (1).
Besides, those who are familiar with the foundations of the cultural structure as a whole, which to this day ingrain women’s right to inheritance in Yemen in comparison with men, realize that the structural dismantling of this system and structure requires destabilizing the cultural values of the past in their entirety, especially in their religious context. Here we mean by their religious context (the jurisprudence one), not Qur’anic verses and Prophetic hadiths, while paying attention to the necessity of providing contextual explanations about the transformation of these directed values into specific regulating laws according to the interpretations of jurisprudence. On this basis, we must differentiate between the terms Sharia and jurisprudence. Sharia is the set of religious values and principles that Muslims are guided by in their lives, and it is divine and eternal. This is in contrast to jurisprudence, which is a human process that seeks to derive concrete legal provisions from the Sharia, and jurisprudence, therefore, like any other man-made system of jurisprudence, is subject to its time and subject to change (2).
The legislation and laws in force in Arab countries, including Yemen, verify women’s right to inheritance on a similar basis as men. But the point of dispute lies in the jurisprudential perspective’s insistence on discouraging equality between women and men, based on a Qur’anic verse in Surah An-Nisa: Interpreted as {Allah commands you as regards your children's (inheritance); to the male, a portion equal to that of two females} “Those who reject the principle of revising the jurisprudential judgments regarding inheritance argue that the texts on which these judgments are based are “peremptory texts that are definitive in their origin and definitive in meaning" and are also among the matters in which the Ijtihad (effort) is not permissible." (3).
By reviewing this verse from several frameworks, away from limiting the Qur'anic verses to a period of time and a semantic angle associated with the occasion of mentioning them, Dr. Zahia Jouirou presented in her book (The New Feminicide: Articles on Fatwa and Women's Jurisprudence) a logical explanation of the verses of inheritance.
Dr. Zahia believed that the verses of inheritance were revealed “to endorse and recognize, on the one hand, the principle of equality between men and women in obtaining a share of what parents and relatives leave, and to determine, on the other hand, certain shares that were determined on the basis of harmony with the nature of the family and social system prevailing at the time, without the intention of determining them being to establish a strict and integrated system capable of covering all possible situations. Our evidence for this is the limitations of these verses on the one hand and their silence about many problematic situations on the other.”
However, what happened was that the jurisprudential institution presented these rulings as constants that cannot be re-read according to the data of the present. Apart from the nature of equality in its Western concepts, we find that the Qur'an has recognized the principle of equality in the words of the Almighty in Surah Al-Hujurat, verse (13): Interpreted as {People, We have created you from a male and a female, and made you into nations and tribes that you might know one another. The noblest of you before Allah is the most righteous of you. Allah is the Knower, the Aware}.
Through the overall concept of what equality is and honoring on the basis of piety, we can recognize the equal right of women to inheritance as long as there is no difference between them except through piety! There can be no contradiction between the concept of equality between people—as mentioned in the Qur'an—and the insistence of the jurisprudential institution to discourage any attempt to provide readings and laws that endorse the principle of equality between male and female in inheritance, codifying that by stating that the texts contained are “peremptory, definitive, and meaningful texts”.
I'm the Man, not you. This is the Rule of Religion
Despite the ratification of women's share in inheritance in Yemeni laws, which were based on jurisprudential interpretations of inheritance verses, the connotations of interpretations that involved a patriarchal ideology moved with their biased concepts to affect the set of norms and traditions that society believes in. Thus, men believe that they have the right to seize women's share of inheritance, as long as the principles themselves were based on their preference over them on the basis of a deficient understanding of the principle of guardianship, which made the laws ineffective, not applied in reality, and not taken into account.
In a country like Yemen, which lives in a state of permanent conflicts and wars where the authority of laws is disrupted and social norms become the effective and actual provisions. Thus, as a result of that, there is almost no family without women's inheritance problems. Each family has a lawsuit either filed in court or with the district legal trustee or the head of the family. All of these cases have a common denominator: a woman deprived of her inheritance, fighting for years to extract her inheritance while the men in her family refuse to enable her to inherit it.
Mohammed Ghaleb spent six decades in the alleys of the courts in Taiz and Sana'a governorates, proving his mother's right to her inheritance that was denied to her by her brothers.
Mohammed died, and he followed his mother who had died before that, before he got any of her inheritance, despite the fact that he obtained a final verdict proving his mother’s eligibility for a share of her father’s inheritance, a verdict that his uncles rejected on the pretext that the sister does not inherit. This is so that a foreigner (the sister’s husband and his children) would not share the heirs with them. This refusal was supported by the complicity of the authority authorized to implement the rulings of the judicial authority.
N’imah (daughter of Mohammed Ghaleb), who lives in the Taiz countryside, says: “My sisters and I were deprived of my paternal grandmother’s land. This whole land surrounding our house was denied to us. They deprived us of our rights.”
“Patriarchal culture prevails in rural Yemeni societies, which constitute 70% of the total population in Yemen, as a result of which women’s right to inheritance is confiscated for many reasons, including familial and social, and some of which are the result of accumulations of exclusion.”
N’ima continued her speech while she was pointing to a copy of her grandmother's father's title deed (the document proving the ownership of the land for heirs), which she inherited from her father, by saying, “This is my paternal grandmother’s land, and we have a share in it. My grandmother even instructed her brothers not to deprive my father of her land, as they deprived her of it. She died, and my father died after her, and here we are, the third generation of the family that is still eating away the right of its daughters to inheritance."
Ni'mah added: "My cousins denied their sisters the inheritance, as my uncles did before with my grandmother and father, but I will keep this title deed (the land ownership document), and I will bequeath it to my children and after them my grandchildren, so that the day may come when the rights return to their owners."
Harmful Social Norms Confiscate Women's Right to Inheritance
Social norms govern its dominance over the lives of Yemeni women. Within a triple hierarchy, norms come first, before religion and laws, in neutralizing any rights guaranteed to women. The social norms fuel the culture of shame in Yemeni society. Consequently, if a woman’s voice rises and she claims her rights, they say to her, "Shame." A woman cannot claim her right to inheritance, bypassing the decision of the males in her family. She cannot claim her rights from her brothers, uncles, or cousins. Further, the conservative society will not allow her to cross the threshold of the house to go to the courts. The patriarchal society, especially in the Yemeni countryside, does not accept a woman's complaint against her relatives, even if this complaint is her right to claim her inheritance, which many men consider to be a gift or charity. This is only possible if they want to give it, and they can refrain from it.
A woman who goes to the courts to complain is considered a disgrace and a shame that will remain attached to her throughout her life. So how can she complain about her brother or uncle?
In the face of the culture of shame and societal pressure, women have no choice but to remain silent until their male relatives decide to give them their share of the inheritance, only if they decide.
In turn, Safiya Raweh says: “I have reached the eighth decade of life, and I am still waiting for my share of my father’s inheritance. What will come after this age? I have forgotten my inheritance. I have forgiven my brothers, and the one who is still alive gives me a sum of money every Eid as a gift to me on this occasion when he comes to visit me."
Safiya adds, “He believes that by doing this he gave me my share of the inheritance, to the point that he insisted and instructed his son to visit me after him and to give me the same amount that he gives me every Eid al-Fitr, which is twenty thousand Yemeni riyals ($13). I wish he had instructed his son to give me, or give my children after me, my share of the inheritance. But he never recognized my right to my father's inheritance."
She says, “I still remember that a few months after my father’s death, my brothers divided the inheritance. But they did not mention me or my sister. I screamed and stood in their faces, and when they were stubborn and refused to give me my rights, I told them, “I will complain about you to the judge." My mother—may God have mercy on her—stood in my face and told me, “There is no sister who would drag (complain about) her brothers to the courts. Do not let people laugh at us. Don't bring shame on our family.” My mother’s voice was enough to keep my mouth shut all these years.".
In this context, Judge Abdulaziz Sallouh says: “Although the laws in force in Yemen guarantee Yemeni women their stipulated right to inheritance, the patriarchal society has another opinion, and it is the one who turns norms into resistance laws that stand even against the woman’s legitimate right to inheritance and further continues to deprive them of their rights through the exploitation of imbalances—by men—in the specialized institutions in the Ministry of Justice and the judiciary.
Patriarchal System Turned From the Countryside to the City
The patriarchal culture prevails in Yemeni rural societies, which constitute 70% of the total population in Yemen, as a result of which women’s right to inheritance is confiscated for many reasons, including family and social reasons, and some of which are the result of accumulations of exclusion that have been going on for decades, which the tribal societies have turned into postulates and rights that are unique to males, on the basis of guardianship with its interpretation based on the gender preference of males over females.
This patriarchal system, with all its negative aspects, has moved to replace the laws in Yemeni cities that are supposed to be governed by the rule of law, so men deprive women of their inheritance rights through forgeries and violations of laws, taking advantage of the war situation that Yemen has been experiencing for years.
For her part, Samira Abdulhameed tells how her elder brother denied her and her siblings her father's inheritance, who owned real estate, brick production factories, and lands in the cities of Aden and Taiz.
In this regard, Samira says that her elder brother seized everything after the death of their father. She and her brothers continued to claim their rights from him, but he refused. So the brothers had to file a lawsuit against their older brother. However, during the trial, the brother showed forged documents of purchase and sale agreements and contracts for all his father's wealth written in his name, taking advantage of his influence, and when she and her brothers wanted to file an appeal against the validity of the contracts, her brother threatened her after he found out that she was the one who was leading her brothers and pushing them not to give in to her brother's allegations and to continue to claim their rights.
Samira accuses the relevant governmental institutions, such as real estate, courts, and executive authorities, of being involved in helping her brother acquire all the inheritance through forged sales contracts.
On the other hand, Judge Fouad Abdulrahman said: "The Islamic religion stipulates women's right to inheritance and guarantees her this right, but it happens that family men intervene and deliberately forge documents and title deeds related to family property with the intention of defrauding the Sharia and laws, which results in depriving women of their inheritance.”
Judge Fouad adds: “The courts adjudicate cases according to documents, and in cases of seizing inheritance, these documents related to real estate, lands, money, and trade management are usually in the hands of the men in the family. Sons succeed their fathers in obtaining all the documents related to money management, while girls remain excluded and outside the financial knowledge of the size of the inheritance distribution, which means that fathers implicitly participate in putting the hand of their male sons over the heirs, making them guardians of it, and depriving females of their rights from the moment when fathers handed over all the documents and property deeds to their male sons. These documents are usually subjected to concealment and forgery, and even the woman’s share of the inheritance is confiscated under the pretext that the brothers were the ones who worked to expand trade or purchase lands.”
The Basic Principle is Equality
If we want to ratify the principle of equality between women and men in inheritance based on the verses of the Holy Qur'an, we will often encounter the interpretations of the jurisprudential institution based on "the generality of the word, not the specific reason."
The jurisprudential institution refuses to provide interpretation or judgment regarding Muslim family laws, especially inheritance, because they are fixed laws of divine origin (4).
In the year of Ramadan, Omar bin Al-Khattab suspended the punishment for theft due to the lack of the conditions for the punishment, which was stated in the Almighty’s saying, in Surah Al-Ma’idah, verse (38): “ [As for] the thief, the male and the female, amputate their hands in recompense for what they committed as a deterrent [punishment] from Allah.”
The evidence here is that it is possible in the event of “necessity” and the public interest to prioritize necessity and lift the penalty for the occurrence of harm, which means accepting reality and its data that change from time to time.
One of the most illogical explanations to justify the male getting a larger share of the inheritance is that he is responsible for supporting the family, and the woman is part of the family. However, this explanation may have been acceptable in a past era, but in our reality today, women work alongside men. Further, women work in the countryside, participate in the cultivation and harvesting of land, and also work at home. So, how could the meaning of expenditure be determined on the basis of which the inheritance share of both men and women was interpreted?
“Prioritizing interest is the approach that should be taken into account in such cases. We need to implement existing provisions and laws and formulate new provisions and laws that benefit and secure the well-being of the individual and society (5).”
Further, there are examples in some Arab and Islamic countries that have adopted laws that guarantee equality between males and females in inheritance that can guide us in the reformulation of inheritance laws in Yemen. For example, in Kuwait and Afghanistan, females inherit the same share of the mother's estate as males, equally. Additionally, the Shiite doctrine in Lebanon, Kuwait, and Bahrain also approves the transfer of the entire heirs to the daughters in the absence of males, which means the exclusion of the agnates from inheritance; this example is approved by the Sunni laws in Iraq and Tunisia (6).
In addition to prioritizing the public interest, societal pressure, based on reshaping a new awareness of the social norms that present themselves as an alternative in patriarchal societies such as Yemen, can be an essential element in the process of the most comprehensive reform of all established postulates regarding women, which means transforming society from a passive recipient actor into a supporter and believer in reform.
It is easy to adopt and present ideas, but it is difficult to turn them into actions except by pushing society in all its various orientations to recognize that reality requires us to expand the circle of Ijtihad (effort) rationally and logically commensurate with the lived reality.
References:
https://www.musawah.org/wp-content/uploads/2019/
https://www.musawah.org/resources/knowledge-building
