Difference of Religion as a cause for loosing Inheritance
- Step 1. Clarifying the Legal Framework to prevent Inheritance due to Difference based on Religion
- Step 2. Interviewing the victim and collecting primary data
- Step 3. Intervening of the lawyer as legal representative of the victim and the procedure to be followed
- Step 4. Procedures and appealing decisions
This article is prepared to assist practicing lawyers to stand for the rights of some persons who lose their right to inherit from the members of their family as a result of religions they believe in. This is because the Personal Status Law of Muslims allows marriage between a Muslim man and a non-Muslim woman if she is Christian or Jewish, but it does not allow inheritance between them. Due to the great diversity in Sudan, the family may consist of individuals professing different religions or not professing any religion; However, the law, as we have said, does not take into account this diversity by stipulating the difference of religion as an impediment to inheritance.
This article aims to clarify the contradiction between our national law with regard to inheritance and the international and regional human rights standards. The article stresses the necessary procedures to be followed by lawyers and the pleas they can depend on to resist these laws before the courts.
The Sudanese society enjoys great religious and cultural diversity, and one of the fruits of this diversity is that one family includes people of different religions or people don’t have a religion, and one family includes people belonging to multiple sects that the law may not recognize some of and consider them as apostate sects.
The practical experience for that, was the ruling of the Sharia court in the case of Mahmoud Muhammad Taha in 1968, where the requests came in the lawsuit demanding to declare Mahmoud Muhammad Taha as apostasy, dissolve his party for its danger to the Islamic society, confiscate his books, close his party’s house, and issued a statement to the public explaining the opinion of scholars on the beliefs of The accused, and to divorce his Muslim wife from him, not allowing him or any of his followers to speak in the name of religion or interpret verses from the Qur’a,n blaming the person who converted to his sect after this announcement, dismissing him if he was an employee, fighting him if he was not an employee, and divorcing his Muslim wife from him.
The court actually decided to announce Mahmoud apostasy from Islam, and to consider the rest of the requests contained in the claim statement among the matters that followed the judgment, in the sense that the member of the Republican sect is not considered a Muslim and therefore he/she is not permissible to inherit the rest of his family if they do not belong to it, and vice versa. Thus, this applies to the rest of the sects that the law does not consider to be included in Islam.
There are many examples of those who have lost their right to inheritance from their Muslim father because of their belief in their mother’s religion or they renounced Islam; while their Muslims brothers enjoy this right, which is account for blatant discrimination on the basis of religion.
Step 1. Clarifying the Legal Framework to prevent Inheritance due to Difference based on Religion
Article 351 of the 1991 Personal Status Law for Muslims prohibit inheritance between persons with different religions and this happens in three cases:
The First Case: intermarriage
Intermarriage (when a Muslim man marries a woman from the People of the scripture) is the most common cause of losing the inheritance on the background of religion. Article 13 of the Personal Status Law for Muslims states that it is required for both spouses, among other conditions, that the woman is not be forbidden to the man, whether forever or temporarily. Article 19 of the Law states: (It is temporarily prohibited, among other cases that Muslim men may marry a woman from a religion that has been divinely revealed). Accordingly, these texts will have the following consequences:
- A Muslim man may marry a Christian or a Jewish woman,
- A Muslim man may not marry a woman who believes in or embraces a religion other than Islam, Judaism, or Christianity,
- A Muslim woman may not marry a man who embraces a religion other than Islam.
Certainly, these cases stipulated by the Law violate the principle of equality on the basis of religion and gender. But what concerns us in this article is that marriage is permissible among those embracing different religions according to the conditions set out above. As such, a Muslim husband and his Christian or Jewish wife cannot inherit each other upon the death of either of them.
The Second Case: Descent
Inheritance due to descent is prohibited in cases where marriage mentioned in the first case, results in the birth of sons or daughters, and in this case, the sons or daughters do not inherit their Muslim father if they believe in the religion of their Christian or Jewish mother. The significance of preventing a Muslim woman from marrying a non-Muslim man is for fear that the children will owe the religion of their father, assuming that the father is always the breadwinner of the family and has the supreme say. And in this situation, there is a support from jurisprudence and law, where it came in a hadith narrated by Al-Bukhari and Muslim in the two Sahihs that Muhammad (peace be upon him) said: “No child is born except on the natural instinct, so his parents are Jewish or Christian. The other word: on the religion of Islam, and this means that a Muslim is born according to the nature of God who created people in it. However, despite that many children chose the mother’s religion, especially in cases where the spouses separate and the children are brought up in the care of their mother.
The Third Case: Change of Religion
For a Muslim, changing the religion is a crime punished by death according to the provisions of Article 126 of the 1991 Criminal Act. A legal issue arises here regarding the inheritance among members of Islamic sects, as the 2015 amendment give consideration to some of the principles believed in by these sects constitutes a renunciation of Islam.
Several examples of these cases include a case in Omdurman Court, the Quranics Case at Al-Nasr Court, the Republican Brotherhood case (in the 1980s), in addition to the Shia communities which are mainly targeted by the legislator among others. According to the law, inheritance is not permissible between members of these communities which are accused of apostasy, and their relatives, given that their relatives are not affiliated with their sect.
The Practical Effects of denying the Inheritance due to Religion
The Sudanese society has considerable religious and cultural diversity, and one consequence of this diversity is that a single family can include Christian, Muslim, or non-religious persons. The same family can also include members affiliated to different communities, some of which may not be recognized by law and therefore considered to be committing apostasy. The practical case for this example is the Sharia Court judgment in the case of Mahmoud Mohamed Taha in 1968; the Statement of the lawsuit filed contained the following requests:
- The declaration of Mahmoud Mohamed Taha's apostasy as proven by evidence.
- Dissolution of his party for posing a threat to the Islamic community.
- Confiscation of his books, and the closing down of his party’s premises.
- Issuance of a public statement explaining the opinion of Islamic jurisprudence scholars regarding the defendant's beliefs.
- Divorce his Muslim wife from him.
- Preventing him or any of his followers from speaking in the name of Islam or interpreting the verses of the Qur'an.
- Punishing whoever embraces his sect after this announcement, dismiss him/her if he/she is an official, struggle against him/her if he /she is not an official, and divorce his Muslim wife from him.
The court issued its and announced his apostasy from Islam and considered the rest of requests contained in the Statement of lawsuit filed part of the judgment. In this sense, the Republican Brotherhood is not considered a Muslim sect, and therefore, inheritance is not permissible between a member of this sect and his family, given that the family members are not affiliated to this sect and vice versa. Thus, this applies to other communities considered by law unaffiliated to Islam.
One of the good examples also is that many of the sons and daughters of Muslim husbands and Christian wives have lost the right to inheritance because of embracing their mother's religion. On the other hand, many of them took hold of the inheritance for being Muslim at the expense of their brothers or sisters who followed their mothers and embraced Christianity.
Step 2. Interviewing the victim and collecting primary data
Firstly, the lawyer is to check the information regarding the person who has been prohibited from inheritance and his relation to the deceased person (father, mother, son, daughter … etc.). Then, the lawyer is to scrutinize the documents issued by the Muslim family Court, such as inheritance deed and the reasons the Court relied on to prohibit this person from inheritance. This happens only when the deceased person is Muslim.
the lawyer is to be sure about the desire of the person excluded from inheritance to resist these laws because this may be considered a strategic litigation case and its results may make great changes in the future.
Step 3. Intervening of the lawyer as legal representative of the victim and the procedure to be followed
According to Advocacy Act 1983, the licensed lawyer is considered a public attorney and has the right to represent clients without any need to show a power of attorney or any other document to the court.
This type of cases involves a clear violation of the Constitution and international human rights covenants because of discrimination on the basis of religion and gender. In addition, it does not recognize citizenship as a basis for rights. Therefore, any such case is suitable for strategic litigation, that is, if one case has been successful, it would be considered as a legal procedure and would have influence on any other person with a similar case.
Therefore, we will clarify the legal procedures to be followed in terms of procedures and substantive foundations that can be adopted in combating discrimination on the basis of religion and gender.
Step 4. Procedures and appealing decisions
In this type of cases, procedures mostly begin before the Personal Status Court for Muslims when the heirs submit a request to issue a Legal Declaration on Estate for the purpose of the inheritance distribution of the deceased and his heirs if he was a Muslim. Usually, courts deny the right to inheritance for those embracing a religion other than that of the Islam, (i.e not Muslims), and the inheritance is granted to Muslim heirs only.
Objection to the content of the Legal Declaration on Estate shall be through submitting a request of rectification to the Supreme Court. After that, a review can be requested before the Review Chamber, and then to file a constitutional case before the Constitutional Court.
When submitting a request of rectification to the Supreme Court or the Supreme Court’s Review Department, issues relating to the rights contained in the Constitution (Constitutional Declaration) and the international covenants ratified by Sudan can be raised, with reference to the fact that ordinary courts (other than the Constitutional Court) are obliged to apply the provisions of the Constitution, as to some aspects, and that the matter is not restricted to the Constitutional Court. In the event that a petition in this sense is submitted to a court other than the Constitutional Court, it must be made clear that such a petition does not require the court to assume the functions of the Constitutional Court and declare the article unconstitutional. Rather, the petition appeals to the court not to apply any legal text contradicting the provisions of the Constitutional Declaration in general and the Bill of Rights in particular. In holding such an opinion, we cited Article 6/2 of The Interpretation of Laws and General Clauses Act, 1974 which reads: (If any provision in any law is inconsistent with any provisions of the Constitution, the provision of the Constitution shall prevail to the extent of such inconsistency). Paragraph 3 of the same article states that: (The provisions of a subsequent law shall prevail over these of a preceding law to the extent of any inconsistency).
Accordingly, it is clear that the entity concerned with the application of these texts are the ordinary courts (not the Constitutional Court), because the Constitutional Court, by virtue of its function defined by the Constitutional Declaration and its own law, does not abide by any law whenever such a law contradicts the Constitution and the international conventions ratified by Sudan. In other words, when Article 6 of The Interpretation of Laws and General Clauses Act of 1974 was enacted, the legislator meant its provisions to be applied by ordinary courts.
In addition, the Constitutional Declaration stipulated in its Article 67 that the rights and freedoms set forth in the Declaration shall not be reduced. The Constitutional Court and other competent courts shall preserve, protect and apply this Declaration, and the Human Rights Commission shall oversee its application. We see that lower courts are obliged to apply the provisions of the Constitution whenever the provisions of the law contradict them.
In the precedent of The Government of Sudan against M. R. M. (Judicial Decisions Journal for the year 2007, page 141), The Supreme Court ruled that: (The Constitution is above the Law and must be followed, that the provisions of Article 156 of the 2005 Interim Constitution must be applied, and that the provisions of the Constitution prevail over the law), a matter that support our opinion on this point.
In the event that the Supreme Court rejected the request for examination and review, a constitutional case can be filed that is essentially based on the constitutional and human rights principles we referred to in this article without prejudice to the above petition related to the ordinary courts exercise to their power to protect the Constitution. Because the Constitutional Court is originally competent to the protect the Constitution as long as all venues of grievances have been exhausted.