Preferential gifts as a tool of injustice

The Muslim Personal Law (Shariat) Application Act 1937, through section 2, envisages Islamic Shariat to have its full application in certain cases, such as gifting properties when the parties are Muslims. Gifts are a form of transfer of property where the donor transfers the property to the donee in good faith without any consideration. However, at times, gifts may have adverse impacts on third parties, and that shall be the main focus of this write-up.

Imagine this hypothetical scenario: Al Amin's mother died a year ago. His father remarried and became the father of another son. After a few months, the father gifted almost all valuable properties to the second wife and the newborn son. With an infant sister, Amin is now living with fear and uncertainty. Similarly, suppose Mr Azad has four sons and two daughters. Out of no just reason, he gifted his most valuable property located in Gulshan to his sons, depriving his daughters and wife.

Such preferential gifting- especially gifting property to one's sons, depriving the daughters- is quite common in our society. Notably, Islamic Shariat (Quran and Sunnah) does not approve of arbitrary deprivation of heirs through such gifting, rather calls such practice injustice. For instance, in Sahih Bukhari, Hadith no 2587, Prophet Muhammad (PBUH) said, "Be afraid of Allah, and be just to your children" when he came to know that a preferential gift was made to a son by the father, unjustly depriving his other children. Again, in Sahih Muslim, Hadith no 1623, Prophet Muhammad (PBUH) noted "I cannot bear witness to an injustice" in response to a preferential gift resulting in similar deprivation. Even within the tenets of the Hanbali school of thought, such gifts are deemed as void.

Significantly, academic arguments go "if it is found that a gift is not a mere gift and [is] made with motive to deprive some heirs then that should be declared void treating it as an evading device to Islamic Law Inheritance" (Professor Ekramul Haque, Dhaka University Law Journal, 2014, volume 25).

Our Constitution aims at realising a society free from exploitation. It provides economic and social justice for our people. At the core of our emergence, lies the values of equality, human dignity, and social justice. Article 28(1) bars the State from discriminating against its citizens on the ground of religion, amongst others. In my view, preferential gifting practices have the potential to be abused to the disadvantage of individuals who are vulnerable (including, for instance, women). For the sake of public policy, restrictions are often imposed at a reasonable extent against property rights (for example, to prevent monopoly). Similarly, this unfettered practice of preferential gifts should also be restricted.

Notably, the Indian Supreme Court declared triple talaq void. In the case of Shayara Bano v Union of India (2017), there were two important issues- whether the triple talaq was an essential religious practice in Islam and whether it violates fundamental rights. The court found that triple talaq comes under Talaq al Bida, which is not haram, but the Prophet (PBUH) himself did not practice or approve of it. In the context of unjust preferential gifting, our court can also adopt a similar view and treat it as void in order to prevent the injustice. Additionally, there can be one more safety test, which is to see whether the legislative reform made in this regard is compatible with Shariat as a whole.

Our aim to build a society free from economic exploitation is not possible, leaving such a tool of injustice that disproportionately impacts women as is. People have economic freedom, and this author does not seek interference with such freedom. It is the arbitrary use of such freedom that ought not to perpetuate injustice and deprivation.

The writer is LLM student, University of Dhaka.