Darulifta Ahlesunnat
(Dawateislami)
Question
What do the Scholars of Islam and the Muftis of the Shari’ah
say regarding this issue that my name is _________, and my husband’s name
is_________________. My husband was addicted to hashish etc. He used to leave
home, then he would eventually return. However, since 2009 he has been missing
without any information about his whereabouts or whether he is alive or
deceased. My husband was born on 01-01-1958 which corresponds to 10 Jumada al-Ukhra 1377 AH, making him 66 years old according to the
Islamic calendar. Both of his parents passed away during his lifetime, and he
does not have any sons. Among his heirs are his wife, three daughters, two
brothers and two sisters. My husband owns a house in his inheritance. How will
this house be divided?
بِسْمِ اللہِ
الرَّحْمٰنِ الرَّحِیْمِ
اَلْجَوَابُ بِعَوْنِ الْمَلِکِ الْوَھَّابِ
اَللّٰھُمَّ ھِدَایَۃَ الْحَقِّ وَالصَّوَابِ
If a person goes missing and it is uncertain
whether he is alive or dead, then his status regarding his property is
considered as if he is alive, and his property will not be inherited. Instead,
the property will be preserved. If he returns by the age of 70 years, his
property will be returned to him. However, if it is still unknown whether he is
alive or dead when he turns 70, the matter should be presented to the Qazi-i-Shehr (city Islamic Judge). In the absence of a judge, if
the city Mufti makes a ruling declaring his death, then whatever possessions he
has at that time will be distributed among the individuals who are alive at the
time of his presumed death. Those who have passed away before his presumed
death, will not inherit his property. Therefore, in the case asked, the
inheritance rulings do not currently apply to your husband's property. Once
your husband reaches the age of seventy years, if it is still unknown whether
he is alive or dead, the matter should be presented to the city's Mufti or a
senior Islamic scholar who can act as a substitute for a judge. If the Mufti or
the substitute judge issues a ruling declaring his death, then the heirs who
are alive at that time will receive a distribution of the property according to
their respective shares.
In Durar al-Hukkam, an explanation of Ghurar al-Ahkam, it is mentioned:
”(غائب لم يدر أثره) أي في أي موضع هو (ولم يسمع خبره)
أحي هو أم ميت (حي في حق نفسه) بالاستصحاب (ولا يقسم ماله قبل أن يعرف حاله) لأن
ظاهر حاله الحياة والقسمة بعد الممات ۔۔۔ (وبعده) أي بعد موت
أقرانه (يحكم بموته في) حق (ماله يوم تمت المدة۔۔۔ ويقسم ماله
بين من يرثه الآن) ولا يرثه وارث مات قبل المدة“
It is mentioned in Bahar-e-Shariat: "If a
person is missing and there is no information about his life or death, he is
considered alive in terms of his own wealth, and his wealth cannot be divided
among the heirs, but for the wealth of others, he will be considered as dead, i.e. he will not inherit from anyone. The property of the
missing person will be kept safe, until the ruling about his death is issued
and its duration according to the opinion of the author of Fath al-Qadir is,
after seventy years of the missing person's age have passed, then the judge
will pass the order of his death. At that point his wealth will be divided
among the heirs who are present at the time of the death order. The wealth of
the missing person will be kept safe until the ruling of his death is issued
and it will be distributed among the heirs who are alive at that time.”
Sadr al-Sharia Badr al-Tariqa Mufti Muhammad Amjad
Ali Azami رَحْمَةُ اللهِ عَلَيْه responds to a similar
question: "A person who is absent in such a way that he cannot be traced
is referred to as a missing person. In such cases, the person’s wealth should
be preserved until his death is confirmed or the Qazi (Islamic Judge) issues a
ruling of death. The timing of when the judge orders the death may vary
according to the opinions of different Islamic scholars. But the view adopted
by Imam Ibn Humam is that his age should reach seventy years. It is mentioned
in Radd al-Muhtar from Fath al-Qadeer:
”واختار ابن ھمام سبعین لقولہ علیہ الصلوٰۃ والسلام اعمار
امتی مابین الستین الی السبعین فکانت المنتھی
غالبا “
And since the said woman’s age is about seventy
years, therefore, if it is proved that the age of seventy years has passed,
then the ruling of death can be issued. However, this is the task of the
Islamic Judge and since there is no Islamic Judge in India, the responsibility
falls on the most senior Islamic Scholar of the city, as in this scenario he
can be the substitute of a Judge. The matter should be presented to him, and if
he issues a ruling of death, then in this case, the deceased’s wealth should be
divided equally between the two heirs according to the conditions of
Shariah.
وَاللہُ اَعْلَمُ عَزَّوَجَلَّ وَرَسُوْلُہ
اَعْلَم صَلَّی اللّٰہُ تَعَالٰی عَلَیْہِ
وَاٰلِہٖ وَسَلَّم
Answered By: Muhammad
Tariq Raza Attari Al Madani
Verified by: Mufti Abu Muhammad Ali Asghar Attari
Ref No: FAJ-7046
Date: 5th Ramadan
ul Mubarak, 1443 A.H. (April 7, 2022)