The right to practice any religion is a fundamental right
guaranteed under Article 41 of the Constitution of Bangladesh
("the Constitution"), which provides for the freedom of
religion to be practiced, propagated and
professed.1 The term "religion" refers to
one's views of their relationship with God, to the obligation
these views impose and the obedience to one's
will.2 The freedom of religion consists the notion
of freedom to believe and the freedom to act.3 In
other words, it can be said that an individual has the right to
choose and follow any religion of choice;4 not
necessarily the one assigned at birth which essentially means that
the freedom also includes the right to hold no religious belief at
all.5 The term "atheist" is defined as a
person who denies the existence of God and denounces any faith or
religious practice.6 In the neighbouring
jurisdiction of India, it is an established principle that there is
no constitutional guarantee to the faith of the atheists who
believe that there is no God.7 Article 39 of the
Constitution of Bangladesh provides, among others, the freedom of
thought and conscience. Therefore, it could be argued that an
atheist's thinking about non-existence of God (no matter how
repulsive that may be for a pious individual), may afford some
protection under the theory of free of thought and conscience under
Article 39 of the Constitution.
Leaving aside the constitutional issue, there are interesting
issues in inheritance law for an atheist. What happens to heirs to
a property or estate who do not believe in a specific faith? The
word "heir" is used to describe a person who, under the
laws of intestacy, is entitled to receive an intestate
decedent's property.8 According to law, a will
is a legal declaration of the testator's intention which states
as to what should be done with their property once they pass
away.9 Where succession is governed by a testament
or will, the laws of testamentary succession will kick in and allow
for the distributions of the proportions mentioned in the testament
or will to the specific person(s) accordingly. This is a clear
codification of what the deceased wished to do with their property
and so it can be argued that the religion of the heir is immaterial
in this regard. However, it should be noted that a Mahomedan cannot
dispose more than one third of the property by
will.10 On the other hand, when an individual dies
without making a will he or she is said to have died intestate
(i.e. without declaring a will or giving away his/her property by
gift) and in that case his or her property will be inherited by
their heirs in accordance with the law of succession as applicable
to that person. Thus, the issue is more pertinent if an individual
dies intestate leaving an atheist heir. In relation to
non-testamentary succession (i.e. where there is no will or
gift/heba), the Muslim Personal Law (Shariat) Application Act, 1937
will be applicable. However, when a person dies intestate, the
inheritance is governed as per the Muslim Shariat laws as
applicable to the Sunnis and Shias.
Property rights under Muslim Law:
As stated above, when a person leaves no will, then the inheritance will be governed by the Mahomedan laws. Generally, after the payment of the funeral expenses, other expenses such as succession certificates and such, any wages due for the funeral, any other debts, the legacies shall be paid which shall not exceed one third of what remains after all the said payments have been made.11 The residue is to be distributed among the heirs of the deceased according to the rules and regulations followed by the community or sect of whom the deceased was a member at the time of his death.12 If the deceased was a Sunni at the time of his or her death, his or her property would be distributed among his or her heirs according to the Sunni law, and if he or she was a Shia, it would be distributed according to Shia law.13 In other words, succession to the estate of a deceased Mahomedan is governed by the law of the sect to which the deceased belonged at the time of his or her death, and not by the law of the sect to which the persons claiming the estate as his or her heirs belong.14 In other words, the property would be devolved upon according to the faith of the deceased and it does not depend upon the faith of the heir.
Moreover, the Quran does not stipulate about the distribution of the estate of a deceased Mahomedan when the heir is a non-believer. Therefore, an argument can be made that it will not be against the law to distribute the property of a deceased Mahomedan to an atheist heir.
Property rights under Christian Law:
In relation to intestate succession, the Succession Act 1925 will be applicable for the people of Christian faith. So, when a Christian dies leaving no will, his or her property devolves upon the surviving husband or widow, lineal descendants and kindred. The 1925 Act does not mention faith of an heir in relation to distribution of the property. Therefore, the religion of the person getting the property in inheritance is irrelevant while deciding the matter. Therefore, there is no bar on the right of any person to inherit the property of the deceased Christian if he or she is an atheist.
Property rights under Hindu Law:
The Hindu Law of Inheritance (Amendment) Act 1929 is the applicable law for the persons who are subject to the law of Mitakshara and is applicable to for the ones whose property is not disposed by will. On the other hand, under the Dayabhaga system the right to inherit arises from spiritual benefit or religious efficacy. However, the Hindu schools of thoughts do not stipulate as to what happens to the property distribution upon inheritance when an heir turns out to be an atheist. Therefore, even in this regard it can be argued that there is no bar to property distribution to an atheist heir of a Hindu deceased.
Footnotes
1. Article 41 of the Constitution of the People's Republic of Bangladesh
2. Commissioner H.R.E v. Lakshmindra, AIR 1954 SC 282
3. 16A Am Juris 2d, Const., Para 465
4. Constitutional Law of Bangladesh, 3rd Edition, Mahmudul Islam, at page 375
5. McGowan v. Maryland (1961) 366 US 420
6. Webster School Dictonary
7. Atheist Society of India v. Andhra Pradesh AIR 1992 AP 310
8. Black's Law Dictionary
9. Section 2(h) of the Succession Act 1925
10. Principles of Mahomedan Law, Mulla, 22nd Edition, at page 33
11. 11 Principles of Mahomedan Law, Mulla, 22nd Edition, at page 33
12. Hayat-un-Nissa v. Muhammad (1890) 12 All.290: 17 I.A 73
13. Ibid
14. Principles of Mahomedan Law, Mulla, 22nd Edition, at page 34
Originally published 24 March 2022
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