Research Article: 2021 Vol: 24 Issue: 6S
Ahmed Bin Abdulaziz Al-Shatri, Prince Sattam Bin Abdul Aziz University
This study attempts to describe conditions and jurisprudential provisions to illustrate if there is any provision in certain circumstances to discriminate while apportioning (Al-Attiyah) between children. Islamic law prohibits any kind of discrimination and emphasizes fairness and equality particularly while apportioning (Al-Attiyah) between children. However, in certain circumstances, some disadvantaged children need to be favoured over others depending on their health and other exceptional situation. This study provides a descriptive analysis of the cases pleaded in Sharia courts either demanding favoritism between some children with exceptional circumstances or seeking equality and fairness in apportioning (Al-Attiyah). It discusses the judicial applications and the real-life incidents regarding favoritism in apportioning between children in the light of jurists' and scholars’ statements about such cases.
Apportioning (Al-Attiyah), Children, Fairness, Favoritism, Jurisprudence
It is an established fact that Islamic Sharia ensures fairness and equality, particularly in cases that implicate fairness without favoritism. This includes the necessity of fairness in terms of apportioning and discrimination of any kind is impermissible and prohibited in Islamic Sharia. It is in the very foundation of apportioning (Al-Attiyah) that it must be treated equally and fairly as demonstrated quite vividly by Prophet Muhammad’s ( ??? ???? ???? ????) famous hadith narrated by An-Nu'man bin Bashir:
An-Nu`man bin Bashir said, “My father gave me a gift but `Amra bint Rawaha (my mother) said that she would not agree to it unless he made Allah's Messenger ( ??? ???? ???? ????) as a witness to it.’ So, my father went to Allah's Messenger ( ??? ???? ???? ????) and said, ‘I have given a gift to my son from `Amra bint Rawaha, but she ordered me to make you as a witness to it, O Allah's Messenger (??? ???? ???? ????’ Allah's Messenger ( ??? ???? ???? ????) asked, ‘Have you given (the like of it) to every one of your sons?’ He replied in the negative. Allah's Messenger ( ??? ???? ???? ????) said, ‘Be afraid of Allah, and be just to your children.’ ‘My father then returned and took back his bestowal.’” (narrated by Muslim) According to a narration, ‘Do not make me a witness for injustice’. According to another narration, ‘Take it back’. In another narration, ‘Bring it back’, and in another narration, ‘I am not going to bear witness to this act of injustice’. According to another narration, ‘Call someone other than me as a witness to this’, and as narrated by Ahmed and Al-Nassaie, ‘Treat them fairly’. (Sahih Bukhari).
However, presently, because of complex and difficult socio-economic conditions, some segments of society, particularly children, suffer. In such a situation, some disadvantaged children need to be favoured over others depending on their health and other circumstances. Keeping in view the present situation and the importance of this issue, this study attempts to describe conditions and jurisprudential provisions to illustrate if there is any provision in certain circumstances to discriminate while apportioning between children.
The significance of this research study can be highlighted in the following terms. In our society, there are several males and females with special needs and difficult circumstances who are favoured in terms of receiving support and apportioning by their parents. Society needs to disseminate issues and facts about such matters to bear witness to the reality in society. Some parents devoid their children with special needs of any favour justifying that it is necessary to give apportion fairly. Some cases involve children complaining against their parents’ apportioning without considering their difficult circumstances.
This study discusses the contemporary needs and demands, the commandments of Shariah, and the jurisprudence based on that. It has been divided into six sections. The first section attempts to define apportioning (Al-Attiyah). The second section relates hadiths by the Prophet ( ??? ???? ???? ????) regarding prohibiting favoritism in apportioning between children. The third section includes the jurists' statements about prohibiting favoritism in apportioning between children. The fourth section discusses the exceptional cases in which favoritism in apportioning is justified between children and the jurists' statements about them. The fifth section considers the ways of apportioning fairly between the children. The last section discusses the judicial applications and the real-life incidents regarding favoritism in apportioning between children.
Apportioning (Al-Attiyah) is a noun that is linguistically defined as ‘something given’. Its plural form is ‘Attaya’ or ‘A'attiya’ and the plural of the plural form is ‘O'attiyat’ (Manthoor, 1986). It occurred in Mokhtar Al-Sihah: He gave ( ????? him money, gave him ?????) Attiyah (?????). Its noun is Att( ???? ).). The origin of this is Attw ending in w ( ?) because it is ????)) which means ‘I gave’. However, the Arabs pronounce the W ( ?) and Y ( ?) if they come after Alif ( ?), as alif ( ?) is smoother to pronounce (Eyad, 2019). The jurists used it in special situations, and one of them deals with this if he desires to and does so (Shihab, 2002).
Apportioning (Al-Attiyah) in Al-Sharia is apportioning of an existed financial entity, which certainly can be apportioned and indefinitely can be delivered in real life without compensation (Al-Bahuti, 2007). In addition, the endowment ( ????? ), the charity ( ?????? ), the gif ( ?????? ), and the apportioning ( ?????? ) have similar meanings. All of them to possess a property in life without compensation and the apportioning ( ?????? ) is inclusive of all of them (Al-Turki & Al-Helou, 1997).
However, apportioning (Al-Attiyah) differs from the will in four ways. Firstly, apportioning (Al-Attiyah) begins with the first then the next, and the wills equalize between every individual (the advanced and the late ones). Secondly, apportioning (Al-Attiyah) is reversion able, while the will is not reversion able. Thirdly, the acceptance of apportioning (Al-Attiyah) is considered at the time of apportioning because it is possessed immediately. However, the will is not considered to be accepted immediately, as it is possessed after death. Fourthly, apportioning (Al-Attiyah) falls necessary and is given to in life when associated with acceptance and receiving even if it is quite abundant. Whereas the will is the possession after death (Al-Mardawi, 1998)1.
There are many hadiths of prophet Muhammad ( ??? ???? ???? ????) regarding discrimination in apportioning between children:
1. An-Nu`man bin Bashir said, “My father gave me a gift but `Amra bint Rawaha (my mother) said that she would not agree to it unless he made Allah's Messenger ( ??? ???? ???? ????) as a witness to it … (narrated by Muslim). In another narration: ''Call someone other than me as a witness to this''. He then said, "Would you like them to be equal in their kind treatment of you?" He replied, "Yes." He said, "Don't do it, then” (Sahih Muslim)2
2. The Messenger of Allah said: ‘Treat your children fairly, treat your children fairly and treat your children fairly.’
3. Ibn Abbas narrated: The Prophet ( ??? ???? ???? ????) said, ‘Treat your children equally regarding gifts. If I were to favor anyone, I would have favored women’ (Sunnan Al-Kubra).
The First Statement
Favouritism between children regarding Apportioning (Al-Attiyah) is absolutely prohibited which is the doctrine of Hanbalis3, Al-Dhaheriah4, Al-Salafi5, and Ibn Al-Kayyem6. Following are the evidences in support:
The First Evidence
An-Nu`man bin Bashir said, “My father gave me a gift but `Amra bint Rawaha (my mother) said that she would not agree to it unless he made Allah's Messenger ( ??? ???? ???? ????) as a witness to it … Allah's Messenger ( ??? ???? ???? ????) asked, 'Have you given (the like of it) to every one of your sons?' He replied in the negative. Allah's Messenger ( ??? ???? ???? ????) said,‘Take it back.’ 7
The Second Evidence
The Prophet ( ??? ???? ???? ????) called it unfair and ordered him to take it back. He refrained from testifying. Unfairness is prohibited, and the order should be followed 8.
The Third Evidence
Favoritism towards some children creates hostility and abhorrence and leads towards breaking the ties of kinship. Accordingly, the Prophet ( ??? ???? ???? ????) prohibited it such as marrying a woman over her aunts (Al-Turki & Al-Helou, 1997).
Al-Salafi (1995) said, ‘A man must treat his children fairly as Almighty God and his Messenger have ordered’.
Al-Fiqi (1975) said, ‘This is a threat, not a permit because this Apportioning was in the text of hadith and the Prophet ( ??? ???? ???? ????). No one is permitted to testify the validity of injustice and who is going to witness this apportioning. The Prophet ( ??? ???? ???? ????) refrained to testify to it and informed us that it was impermissible and that it was unfairness that was against fairness (Dhameeriah, 2010).
The Fourth Evidence
As promotion of welfare and prevention of evil is in the essence of Sharia, it requires the prohibition of favoritism9.
The Second Statement
Treating children fairly is desirable in apportioning (Al-Attiyah) whereas favoritism breeds contempt and hatred. This is the statement of Hanafis10, Malikis11, Shafi'is12. Following are the evidences in support:
The First Evidence
An-Nu`man bin Bashir said, “My father gave me a gift but `Amra bint Rawaha (my mother) said that she would not agree to it unless he made Allah's Messenger ( ??? ???? ???? ????) as a witness to it … Allah's Messenger ( ??? ???? ???? ????)said, ‘Be afraid of Almighty God and treat your children fairly.’” (Sahih Bukhari).13
In this hadith, the Prophet ( ??? ???? ???? ????) did not order him to return the apportioning, rather he ordered him to treat all his children fairly, in terms of consultancy, that if he had done it, it would have been better (Al-Najjar & Al-Haq, 1994).
The Second Evidence
Malik related to me from Ibn Shihab from Urwa ibn Az-Zubayr that A'isha, the wife of the Prophet (may Allah bless her and grant her peace) said, “Abu Bakr as-Siddiq gave me palm trees whose produce was twenty awsuq from his property at al-Ghaba. When he was dying, he said, 'By Allah, little daughter, there is no one I would prefer to be wealthy after I die than you. There is no one it is more difficult for me to see poor after I die than you. I gave you palm trees whose produce is twenty awsuq. Had you cut them and taken possession of them, they would have been yours, but today they are the property of the heirs, and they are your two brothers and your two sisters, so divide it according to the Book of Allah.' A'isha continued, "I said, 'My father! By Allah, even if it had been more, I would have left it. There is only Asma. Who is my other sister?" Abu Bakr replied, 'What is in the womb of Kharija? (Kharija was the wife of Abu Bakr's brother from the Ansar.) I think that it is going to be a girl” (Malik, 1994).14
It is quite evident that giving the belongings to one of his kinship ties, depriving others, would not be adhering to Al-Sharia provision (Al-Alawi et al., 1991). It is prohibited to give all the belongings to some children. However, if he apportions some or a small part of his belongings, it is permissible. As Abu Bakr apportioned some of his belongings to his daughter, Aisha 15.
The Third Evidence
According to some of the narrations of the Hadith, the words: ‘Call someone other than me as a witness to this,’ mean that the Prophet ( ??? ???? ???? ????) is the imam, and the imam would not testify
but rule. These words are evidence of the validity of the contract's legitimacy 16.
It is not necessary for the Imam to testify or refrain to perform testifying if he is obliged to. Al-Mohtag stated, ‘It became permissible if the imam testifies to some of his deputies’ (Ibn-Hajar, 1995).
The Fourth Evidence
While fairness brings harmony in domestic affairs, favouritism and discrimination result in disobedience, envy, and abhorrence. For this reason, it was obliged to avoid favoritism, as fairness is an obligation to be accomplished (Sahih Al-Bukhari)17. The first statement is more powerful to be followed due to the strength of its evidence whereas the second statement is invalid due to the weakness of its evidence.
In addition, favoring some children over others with apportioning at the time of death depends on the inheritors' acceptance. ‘It is not necessary to apportion to an inheritor with anything or more than one-third except with inheritors' acceptance if he dies after that time’ (Al-Tayyar, 2005).
Al-Fiqi (1975) said that one of the prohibited deceptive tricks is that, if someone wants to apportion some of his/ her inheritors with some inheritance as s/he knew that the will is impermissible, his apportioning is regarded as a will in his/ her illness. The deceptive trick is to say ‘I apportioned him this and that was in my healthy times’, or he confesses a debt to him. Accordingly, he declares this forward, and that is deceitful. Apportioning to the inheritor at the time of death is not considered applicable by most scholars (Al-Fiqi, 1975)18.
The prohibited favoritism between children in Apportioning (Al-Attiyah) is to bestow some children in a situation that requires them to be treated fairly. However, to give one of the children what he/ she needs if the other does not need the same is neither regarded as favouritism nor unfairness (Al-Salafi, 1995)19. A number of cases are excluded and not considered favoritism, and the most important ones are mentioned below:
The First Case
It is permissible to give children what they need if there are specific health conditions such as lifetime disease like blindness or disability, or sudden fatal disease. In such specific expenditure on health, disease, and so on, it is permissible to give everyone what they need and this is not considered discrimination between them (Al-Othaimin, 2013).
The Second Case
Another case includes people with unusual and immediate needs, e.g., paying off a financial criminal penalty, giving the dowry, giving the wife's expenditure, bearing the costs of studying and education, etc. (Al-Darb & Al-Othaimin, 1995). Fares & Al-Saadani (1994) said, ‘it is permissible that Abu Bakr (may Almighty God be pleased with him) has favored Aisha with an apportioning because of kinship ties, her needs and her incapability neither to make a living nor arrange resources for it, being the mother of believers, being the wife of the Prophet ( ??? ???? ???? ????) or for other virtues (Al-Turki & Al-Helou, 1997). Fares and Al-Saadani (1994) also said that one could favour one’s child for the right purpose because of a need, family, studies, etc., or due to others' debauchery and wickedness (Al- Fares & Al-Saadani, 1994).
The Third Case
Another case excluded of favoritism is favoring one of the children with apportioning due to his/ her parental obedience and piousness. The Sheikh of Islam, Al-Salafi, (1995) said, it is rightful if one of them is being favored due to a legitimate cause such as being in extreme need and obedient to Almighty God, while the other is rich and disobedient to Almighty God and spends the apportioning on committing sins. If he gives to those, whom Almighty God ordered to give them and prevents those, whom Almighty God ordered to prevent them, he performs his best (Al-Salafi, 1995).
The Fourth Case
Another case in this regard is that of favoring one of the children in apportioning (Al-Attiyah) for his work with his parent while other children do not. It further has two aspects:
1. If a child works with his parents in their worldly works, trade, and development of their business and the child asks his parents for a wage for his work, they should pay him a wage as they pay to the other workers for their work.
2. The child pays money with the intention of partnership with his parents in the business so that he is their partner according to the share of his money. According to the Permanent Committee for Scientific Research and Fatwa, ‘Those who work with their parents if they ask for a wage for their work, pay them the same wage as they pay the other wage earners for their work. Moreover, those who paid their parents money with the intention of partnership are their partners as much as the money they pay to their parents. Whereas concerning what a father apportions to his children from his money, he must treat them fairly whoever is in his house or out of his house works with him or does not work with him (The Permanent Committee for Scientific Research and Fatwa) 20.
The Fifth Case
The fifth case involves favoring one of the children due to a large number of children in his family and due to his need and poverty. Hammad & Dhameeriah (1994) said, ‘children should be treated fairly in terms of apportioning (Al-Attiyah). If some children are poor and needy, and some of them are rich and contented, it should be considered to favor the poor and needy children over the rich and contented ones. For that reason, comforting the poor and needy is preferable to making the rich and contented richer (Hammad & Dhameeriah, 1994). Sheikh Mohammed bin Ibrahim Al-Sheikh, the Chief Mufti in Saudi Arabia, stated, ‘If apportion is due to a legitimate justification such as being poor while his brothers are rich, or an enduring desire to study, not aiming for favoritism, it is permissible. One of these purposes is that perhaps the rest of his brothers shall be willing to study to be like him (Qassim, 1979)21. He also said if a child was favored over others for his virtue, religion, poverty, being a father for several children, or in terms of a working wage from his father, these are considered legitimate confirmations for being permissible, except for lusts purposes (The Standing Committee for Scientific Research and Fatwa)22.
The scholars differed in the method of apportioning (Al-Attiyah) fairly between children. There are two statements in this regard:
First Statement
The accurate action on the part of the parent is to give them as much as they are going to inherit from him after his death. The male child should get the same as the portion of the two females. This is the doctrine of Hanbalis23, followed by the Sheikh of Islam Ibn Taymiyyah24 and Sheikh Ibn Athaimin25.
The First Evidence
Adhering to the division of Almighty God26, Almighty God says:
Allah thus commands you concerning your children: the share of the male is like that of two females (An-Nisa, 4: 11).
The Second Evidence
The second evidence is to consider the situation of life based on what situation will take place after death.
This topic is not related to inheritance, as each text has its own provision. He should fairly apportion every one of his children. If he does not adhere to this, he does not treat fairly between his children (Al-Dhaheri, 2010).
Second Statement
There is no difference between male and female children. The male and the female should be apportioned equally. This is the doctrine of the Hanafis26 and the Shafi'is27. Evidences in support have been given below:
The First Evidence
An-Nu`man bin Bashir said, “My father gave me a gift but `Amra bint Rawaha (my mother) said that she would not agree to it unless he made Allah's Messenger ( ??? ???? ???? ????) as a witness to it … Allah's Messenger ( ??? ???? ???? ????) asked, 'Have you given (the like of it) to every one of your sons?' He replied in the negative. Allah's Messenger ( ??? ???? ???? ????) said, ‘Take it back’ (Muslim, 2019).29
The Prophet said: ‘Return it’ which is a reference to fairness between the children in apportioning and which is the fair treatment between them (Al-Kasani, 1982).
The Second Evidence
Ibn Abbas narrated that the Prophet ( ??? ???? ???? ????) said, ‘Treat your children equally regarding gifts. If I were to favor anyone, I would have favored women.’
In another narration, the Prophet ( ??? ???? ???? ????) said, ‘If I were to prefer anyone, I would have preferred women over men’ (Narrated by Said bin Mansour and Al-Beheqi30 and confirmed by Al-Hafiz Ibn Hajar. Source: Al-Sunan al-Kubra´ 11092)31.
The Third Evidence
In addition, if a child is indulged in any obscenity, he should not be given more than what he is entailed because it will be like financial assistance to commit sins (Al-Kasani, 1982).
The Fourth Evidence
Fairness leads towards domestic harmony whereas favoritism creates disaffection. Accordingly, children should be treated fairly. It is the most accurate (and Almighty God knows best) the first statement is more accurate because of the strength of its evidence than the second statement with weak evidence.
The First Case
The first case involves some inheritors claiming a lawsuit to countermand their father's apportioning to his wife and children when he became ill before his death. The apportioning given to them has been confirmed, and the inheritors' case was countermanded.
Some inheritors claimed a lawsuit against their father's wife and her inheriting children demanding to countermand the apportioning of their father for her and her children. Five months before his death, their father apportioned her and her children a real estate. Their father was sick at that time due to an illness caused by a stroke in his head. The defendant positively confirmed the apportion. Furthermore, their father, at the time of apportioning, was fully conscious. He had a stroke in his head and was only affected by the fact that his hand was not functioning properly due to the stroke.
Judgment
The origin of the legal discretions is based on accuracy review (Al-Thakheerah). If the father apportioned one or some of his children with an apportioning (Al-Attiyah), and then he dies before he takes it back from him/ her or them, this has become confirmed to be his/ her or their own property. Consequently, the rest of the inheritors are obliged to accept this (stipulated by Ahmed...). In addition, since the Apportioning (Al-Attiyah) is confirmed in an official document by the notary, it has been confirmed that the father was legally competent and has no fatal disease. Since the inheritor of both parties died before taking back his apportioning from the defendants, (review Al-Sharh Al-Kabeer is considered 17/68), the judgment stated that the claimants do not have any rights and are not eligible for the ownership of any of the property in dispute. As a result, their claim was dismissed. The claimants objected – the judgment was confirmed (Sixth Human Rights Chamber of the Court of Appeal in Makkah).32
The Second Case
Some inheritors claimed to amend the contract of establishing a company after the death of their father to make all the children become partners in it without favoring some of them. The judgment was made that the company contract should be amended as all the children became partners in the company.
The inheritors demand to amend the contract regarding the establishment of the company after the death of its owner to be all his children's property. Accordingly, some children rejected to complete the amendment procedures with competent authorities, and the rest of the children's demand to confirm their partnership with the company in dispute. They stated that the company in dispute was established by their father, and he made the other children partners in the company except for one son and his daughter claiming they were employees. Their lawyer stated in the statement of claim that their father's actions, including determining shares, ratios, capital, and distribution of profits in the company were ostensible actions and the fact that the real owner of the entire company is only the father. Their lawyer confirms the ostensibility of the partnership in the company, and that the exclusive and real owner of the company was the father.
Judgment
The entire jurists decided that the father could not apportion any of his children without apportioning others as he is obliged to fairly treat them all.
An-Nu`man bin Bashir said, "My father gave me a gift but `Amra bint Rawaha (my mother) said that she would not agree to it unless he made Allah's Messenger ( ??? ???? ???? ????) as a witness to it … Allah's Messenger ( ??? ???? ???? ????) said, ''Call someone other than me as a witness to this). The Prophet ??? ???? ???? ????) ) ordered (as mentioned in Bukhari and Muslim about Al-Numan ibn Bashir) by saying, ‘Be afraid of Almighty God and treat your children fairly.’”
Imam Kudamah said, ‘A person must treat between his children fairly in Apportioning (Al-Attiyah). If he singles out some of them for apportioning a child or any of them, he is sinful and he has to do one of two options: either taking back what he apportioned to his son or completing the other children's portions. Since the contract for the establishment of the company was conflicting with the Sharia laws regarding fairness between the children, and some children were not apportioned from their father's apportioning (Al-Attiyah), the establishment contract must be amended to involve them into all shares of the company since the beginning of its establishment as their brothers33.
Apportioning (Attiyah) is an act of apportioning an existing financial entity, which can be apportioned in life without compensation.
The jurists differ regarding favoritism between the children in apportioning (Al-Attiyah). The difference of opinion ranges from absolute prohibition of favoritism regarding apportioning (Al-Attiyah) to a desire for fair treatment between children with a few exceptions.
The excluded cases which may involve favoritism include medical conditions such as fatal diseases, blindness, physical disability, or other such cases; urgent needs of any of the children like paying off a criminal penalty or a debt which can potentially lead to legal implications; preferring a child due to his/ her righteousness or obedience; favouring a child for his/ her work with his/ her parents; and supporting a child because of being a needy and poor parent of several children in his/ her family. The jurists differed regarding the method of treating the children fairly in apportioning (Al-Attiyah).
The obligatory treatment between children means to treat them in the same way as much as they are going to inherit from the parent after his/ her death. The jurists differ and there are two statements. The first statement says that the male is given an apportion equal to that of two females. The second statement affirms that both the male and the female are given a portion equally.
Among the judicial applications in fairness between the children in apportioning (Al-Attiyah), the first case involves some inheritors claiming a lawsuit to countermand their father's apportioning to his wife and children when he became ill before his death. The apportioning given to them has been confirmed, and the inheritors' case was countermanded. The second case was that of some inheritors who claimed to amend the contract of establishing a company after the death of their father and make all the children become partners in it without favoring some of them. It was judged that the company contract should be amended as all the children became partners in the company.
The cases of favoritism between children in apportioning (Al-Attiyah) require further research and investigation of a number of exceptional cases, which are applicable to judgments and jurisprudence controls.
This study recommends that the role of Saudi Arabia must be highlighted by applying Islamic Sharia, especially in terms of fairness in apportioning (Al-Attiyah). There is a need to spread the knowledge of Islamic Sharia derived from the source of revelation highlighting its facilitation and ease using websites and other technical means. There is also a need to spread awareness through different media to consider exceptional and unusual circumstances in which some children may be favoured over others. The parents should be guided regarding apportioning (Al-Attiyah) so that they can distribute it between their children fairly. In addition, Saudi universities, particularly Prince Sattam Bin Abdulaziz University, must take further initiatives to resolve domestic and social issues by conducting and publishing more research studies emphasizing equality and fairness.
This project is supported by the Scientific Research Deanship at Prince Sattam Bin Abdulaziz University through Research Project NO.17249/02/2020