Bismillāhi Raḥmāni Raḥīm
Date: 8th Rabbiu- Thānni, 1442 A. H / 23rd November, 2020
Subject: Al-Farā’id (The Islamic Law of Inheritance)
Lesson: 104
Topic: Hermaphrodite’s Inheritance (Mirāth Al-Khunthā): Part 3
Salām Alaykum Warahmatullāh Wabarakātuh,
Dear Participants
Today Inshā’ Allāh, we are looking at the legal verdicts concerning hermaphrodite’s inheritance shares
It has to be echoed here that the hermaphrodite debates and issues were also in vogue during the life time of the Prophet as reported in some sound ahādith especially in the collections of Abū Dāwud. In a situation where hermaphrodite is a legal heir; his or her share of estate constitutes major debates among various jurists. In an attempt to clear this puzzle, the following are legally legislated:
a. Some jurists of Ḥanafi School and one of the views of Shafi‘ī School opined that the share of the hermaphrodite is calculated both as a male and as a female; and after this; the hermaphrodite gets which ever share is the smaller. They claimed that this is the opinions of majority of the companions of the Prophet.
b. According to Imām Ibn Ḥanbalī, the hermaphrodite is given smaller share and the balance reserved until the actual gender is determined
c. Furthermore, some scholars posited that if hermaphrodite dies at the state of being ambiguous hermaphrodite (al-Khunthā al-Mushkil) without the gender ascertained or the gender is complex to be determined even after reaching puberty, the hermaphrodite is given the average share of the male and female, that is; the share of the male and female combined.
d. It was also reported that according to Mālikī Fiqh, the hermaphrodites takes half of the combined shares of the male and female.
e. If the actual sex of hermaphrodite is ascertained either by the determinant of which of the sexes organs works affirmatively in excretion (such as urinating) or through puberty (bodily) development or through Instruments examination or through the determination of Deoxyribonucleic acid (DNA), he or she is deemed to inherit the estate as a male or female.
f. If the sex is determined and becomes al-Khunthā Ghayr Al-Mushkil(unambiguous hermaphrodite), as a male heir, hermaphrodite will inherit as a son, brother and paternal uncle without any prejudice while as a female heir, she will inherits as a daughter, sister and maternal aunt in which all their respective apportioned rights and privilege as a legitimate heir would be given.
Inshā’ Allāh, we shall continue the discussion in our next class.
Jazākumullāhu Khayran for reading today’s lesson.
Yours in Islām
©Busari Muhammad Jamiu (Abū ‘Ᾱishah)
The Founder/Instructor
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