This allegation is often raised by those who have not studied the whole concept of inheritance. In fact, the law which the Qur'an propound in this regard is seen to be the most scientific and just of all.
The issue of inheritance has been addressed in the verses 11 and 12 of Surah Nisa. The right of inheritance of the person who has neither father nor offsprings has also been dealt with in the last verse (176 ) of this same chapter. The Islamic approach to the wealth of inheritance is derived from these verses and from the practices of the Prophet in this regard. The basic postulates of this approach are as follows.
One: No one has the right to a person's wealth as long as he is alive.
Two: Those of his successors who died during his own life time will not been entitled to inheritance from his wealth (The question of inheritance itself comes into being with the death of a person. Prior to that it is but his own wealth, never the wealth of inheritance as such).
Three: It will be only those of his successors who are alive at the time of his death who will be entitled to a share of his wealth of inheritance.
Four : Inheritance is basically allocated to close relatives. Marriage and blood relations will naturally fall into this category.
Five : Close relatives of the deceased will obstruct the right to inheritance of the more distant ones in the same line of succession. By close relation is meant parents, husbands, wives, sons and daughters. Nobody else can claim any right in the presence of these closest of relatives.
Six: The accepted standard for allocating the wealth of inheritance is the nature of one's relationship with the deceased person; never the financial condition or the requirements of the claimant himself.
Seven : In the absence of the closest relatives, or links of the deceased, the right of inheritance is then conferred upon the next link in the line of succession. It is for this reason that if there is no father, it would go to the grandfather and if there is no son then to the grandson.
In the light of these basic postulates, the offsprings of the children who had died while their father was still alive can have no legal share in his inheritance if there are others of his children who are alive at the time of his own death. The reason for this is that the right of inheritance cannot reach successors in the second generation of the family tree while those of the successors of the first generation are still alive. The question here is : Is this not an unjust law?
The first reply to this question will be the counter-question : Will it be possible to apportion the wealth of inheritance in a completely just manner with the help of mere legislation alone? Factually, of course, no system of law - not even Islam, for that matter - can successfully implement full justice in this regard. Look at a few of the models that can serve to successfully demonstrate these facts:
1. The deceased person leaves behind two children. One is handicapped. The other is fully fit. The first cannot earn his living. The second can work and earn wealth. How will the wealth of the deceased be allocated in this case? In the interest of justice, the one who is able to earn his own living must be given a lesser share while the one who is unable to do so must be allocated a larger portion. However, can any system render this justice by the use of a law?
2. The deceased leaves behind three children. The eldest is aged forty. He is a businessman. He started off as a co-worker in his father's business and his own enterprize has now come of age. The second is a physician. He had studied using the wealth of his father. Today he virtually mints money. The third is a lad of eighteen. a student His father died before he could attain to any position. How is the wealth to be allocated in this case? Both the elder sons earn their own income; indeed, they had reached the stage of making their earnings with the wealth of their father. As for the younger son he never had much from the earning of his father even when he was alive. Here, too, it will be just that the younger son should, at least, get a larger portion in the share of his father's inheritance. Is it possible to make a law that would facilitate the allocation of the inheritance wealth in this manner?
3. The deceased leaves behind three children. One is highly successful. He is able to amass piles of money. The second is a man engaged in social service. The last one is a miser. He would save all the acquired wealth and would make sure that his expenses would stay within his planned limits. If all three were given ten rupees, the first one would convert it into twenty, the second one would prepare a meal for himself and his poor neighbor, the third would have two meals with it. Should the wealth of inheritance be divided equally between the three? That would not be justice. But here it is not practicable to implement justice through the normal process of law.
Here, it becomes clear that it is not possible for mere laws and regulations to implement justice in all respects in the case of inheritance and other economic problems. In all such problems Islam does not prescribe solutions depending solely on laws alone. Indeed, it seeks to create a situation wherein justice can be established in such matters by heightening the moral consciousness of man and by encouraging the showing of mercy and kindness to those undergoing tribulations.
Why cannot a law be made which would then enable the orphaned grandson to have the right to inheritance as well? In fact, the creation of such a law would then destroy all the foundational premises which Islam puts forward in the matter of inheritance.
There is only one way in which the orphaned grandson can be allowed the right to inheritance. Imagine that the deceased son to be still alive. Project his children as the representatives of the deceased person. Then allocate the wealth that was to be given to the dead son amongst his children. Imagine that a person has two children. The elder one has three and the younger one has two children. The elder one died while the father was still alive. So when the father himself passed away, only the younger son remained alive. There is one thousand rupees as the wealth of inheritance. The younger son takes five hundred. The remaining five hundred is divided amongst the three children of the deceased elder son. This, in general, is the usual order of allocation.
How practicable is this order of preference in the Islamic system of inheritance? It should not be forgotten that if the preferential theory is applied anywhere within the system of inheritance, it will become imperative to apply it throughout the whole as well. How correct will be this procedure? Examine the matter. Observe a few of the issues involved:
1. The husband has a right in the inheritance of the wife. If they have children his right will be one fourth, and, if not, his will be one half. Assume now that the husband passed away before his wife. Here, if the preferential theory was to be accepted, the father, mother, the children through other wives, of the husband all will be entitled to share in the inheritance of his wife.
2. This is also the case with the rights of the wife in the inheritance of the wealth of her husband. If the death of the wife precedes that of the husband, her share will then have to be given to her mother, father and other relatives as well.
3. Fathers are also entitled to a share in the wealth of their children. Assume that the father passed away before his son. The father, however, has other children as well. Even if the son himself has children, if the father is alive even after his death, the wealth of inheritance to which he was entitled would then have to be given to his close relatives.
4. This is also the case with the share to which mothers are entitled in the wealth of their children. If the mother passes away before her son, her close relatives will then be entitled to the wealth of her son if we are to go by the preferential theory of inheritance.
The acceptance of the preferential theory will thus become the cause of imbalance in the order of allocation. A person has two sons and both of them. One has one son and the other has two sons. According to the Islamic order of allocating the wealth of the grandfather, all three grandchildren are entitled to an equal share. However, if the preferential theory is accepted, as far as the brotherless grandson is concerned, the two sons of his uncle will each receive only one half of that to which he is himself entitled. Here, it need not be said that to allocate the right of the individuals who are similarly related to the same person in different proportions will only serve to create a gross imbalance in the order of allocation.
In the foregoing section, a description of the problems that arise out of accepting the preferential theory of inheritance as a law, has been provided. It was for this reason that the Qur'an stopped short of prescribing a law to the effect that the grandchildren are entitled to a share in the wealth of a person even while his own children are still alive. For it is necessary that all its practical difficulties must first be addressed. If the right to inheritance was provided to the grandson by way of bringing a new law to the effect, the very foundation of the Islamic law of inheritance would then come apart and would prove impracticable as well. It, thus, becomes clear to us, here, that the Qur'an was, indeed, revealed by Him who is well-conversant with all the possible faults and shortcomings in law.