Inheritance of a Missing Person under Islamic Law by Abu Aisha (Part 2)

Bismillāhi Rahmāni Rahīm 

Date:   21st Rajab, 1441 A H / 16th March, 2020

Series 2:   Al-Farā’id (The Islamic Law of Inheritance): The Theories  

Lesson:   56

Topic: Inheritance of the Missing Heir (Mīrāth Al-Mafqūd): Part 2  

You are welcome to today's class on inheritance law in Islām!!!

In our last class, we defined who Al-Mafqūd is. He or she is someone whose whereabouts are unknown and it is not certain whether he or she is alive or dead. We also said that there are a lot of contentious debates among the four schools of thought and various jurists as regard whether the missing person can be a beneficiary of estate devolution as a potential heir or would he or she be inherited in absence by his legal heirs.  In solving these questions, the scholars propounded verdicts on the waiting period, Al-Mafqūd’s shares as heir, appearance of Al-Mafqūd and the Iddah of Al-Mafqūd’s wife/wives. However, due to limited space, we shall be discussing the verdicts one after the other:

Waiting Period- There are divergent opinions among the schools of thought as regard the waiting period to be observed by the relatives in case of a missing person’s property devolution.  Islamic law prescribed that the death of al-Mafqūd is calculated from time when he or she disappeared, while his or her property shall be reserved and not devolved until his death is ascertained in which a certain period has elapsed and he has been legally presumed dead.   

        On this, Imām Shāf‘ī  suggested 7 years, Imām Mālik suggested 4 years if the missing person is unheard of, relying on the judicial decision of Khalīfah ‘Umar who gave verdict that any woman who misses her husband for four years should make iddah of four months and ten days,  though, Mālikī’s school declared that normal life span is Seventy years and if such person has disappeared under specific situation such as war and fatal epidemic, a judicial pronouncement of death may be obtained prior to the expiry of the recognized life span.       

         Furthermore, Imām Abū Hanīfah was also reported to have taken the life span from the time of birth to be 120 years while Imām Ibn Ḥanbalī suggested 90 years after which the missing person would be presumed dead.  In other views, Hanbalī and Shāfi‘ī schools pronounced that Sharī‘ah Court is allowed to determine the length of time that should elapse before a missing person would be declared dead, while according to Imām Ibn Hanbalī, the time period may be as short as 4years from the time of the disappearance when there is strong presumption of death such as shipwreck, battle and plague. Shāfi‘ī  School also suggested that he/she could be pronounced dead by court after expiration period that no one of his kind (peer) is living.

       Inshā Allāh, the lesson continues in the next class.  Jazākumullāhu Khayran for reading today’s lesson.  

Yours in Islām  

© Abū  ‘Ᾱisha 

The Instructor (+2348023670884)

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