The Inheritance of Biological Daughter Between The Justice of Sharia and The Injustice of The Legislato (An Analytical Comparative Study)

Abstract

The biological daughter is considered as one of the inherit branches who are not subject to blocking at all. The Islamic law and the amended Iraqi Personal Status Law No. (188) of 1959 referred to her inheritance, but they varied in the manner of her inheritance. The Islamic law sometimes made the biological daughter a shareholder, such that she takes her inheritance and her share specified in the Holy Qur’an before the other relatives who heir but with no specified shares, and she is given the greater obligation of the half and two-thirds. Also, she has been sometimes made an agnate taking her share with her brother according to the Qur’anic rule " The male has double the share of the female".  

As for the Iraqi Personal Status Law, article (2) of paragraph (91) of the law dealt with the inheritance of the biological daughter, and it never made the biological daughter an obligatory holder of the inheritance, in violation of absolutely proven and clear texts from the Holy Qur’an and the Sunnah of the Prophet. It also violated Islamic jurisprudence, as it made the biological daughter stronger than the son in terms of blocking, as she blocks all the heirs, including grandfather and grandmother, except for the parents, the spouses, and the son who is her guardian. The Iraqi legislator also restricted the return of the rest of the inheritance only to the daughter - not the father and the mother - after giving the inheritors their obligatory inheritances, so he made the biological daughter in all circumstance having the status of an agnate, which means implicitly canceling her obligation stipulated in the Holy Qur’an, and this is in violation of the consensus of Islamic jurisprudence - Sunni and Jaafari - and the comparative laws. However, it is it is eye-catching that this provision of Iraqi law, in most cases, harms the daughter’s share in the inheritance. Instead of the daughter benefiting from the inheritance and taking more according to the law, it made the daughter takes less than what she receives in accordance with the Islamic law, and this is considered unfair and unjust for the right of the biological daughter of her share of the inheritance.