In this photograph taken on January 22, 2017, members of the Pakistani transgender community attend a party in Peshawar. Modern-day Pakistani transgender people claim to be cultural heirs of the eunuchs who thrived at the courts of the Mughal emperors that ruled the Indian subcontinent for two centuries until the British arrived in the 19th century and banned them. / AFP PHOTO / Abdul MAJEED / TO GO WITH Pakistan-gender-social-lifestyle-politics-rights,FEATURE by Caroline Nelly Perrot

What are a eunuch's inheritance rights under Islamic Law?

There seems to be some confusion in society regarding the inheritance rights of eunuchs. It is important to note here that there is no dispute about the rights of inheritance of the transvestites (zenanas) or the transgenders (nirbans; castrated men) as they are males who have been castrated or dress up and behave like women. They are entitled to a male person's share in their inheritance. The persons whose inheritance rights are disputed are eunuchs (khusras or hermaphrodites) because it is difficult to ascertain whether they should get the share of a male or a female under Islamic Law.

In his book, 'Outlines of Muslim Personal Law,' Imran Ahsan Khan Nyazee has dedicated a short chapter to eunuchs and their inheritance. He has used the Arabic term 'khuntha' for eunuch. Imran Nyazee says the following:

The meaning of the term khunthā

The term khunthā literally means “doubled” or “doubling.” The word is applied to the child who is born with both male and female genetalia or with ambiguous genetalia. The words eunuch and hermephrodite are being avoided here, as they can mean different things, and the word khunthā will be used to convey the meaning. The Qur’ān states that it is Allah who gives male children to whom He will and it is Allah who gives female children to whom He will. The Qur’ān does not speak of rules for a person who is both a male and a female. The jurists, therefore, take it as a rule that both attributes cannot be combined in the same person even if the genatalia are ambiguous. The person is either male or female, but it may not be clear to us, due to what we consider to be a congenital defect, as to what is the sex of the person. Following the above rule, the jurists attempt to assign, to a person with ambiguous genetalia, the rules either of the male or of the female. Where it becomes difficult to assign a rule due to ambiguity, rules based upon caution are adopted. Whether a person is in reality a male or female is determined by apparent signs. When the child is young, the method is based on identifying the organ from which he or she urinates. This rule is based upon a tradition. As the child grows into puberty, other signs like facial and other hair, appearance of breasts as in females, and menstruation are added to support the conclusion. The physical tests laid down by the jurists may not be completely accurate all the time. An example is the person suffering from the androgen receptor deficiency where the person is in reality a male (with concealed testes), but has an appearance of a female (who does not menstruate). As this is a concealed matter, unless the person submits to medical examination, the rules laid down by the jurists may be assumed to be generally accurate.

As it is difficult to determine the exact sex of the person in many cases, most of the rules made by the jurists are for the ambiguous case called the khunthā mushkil.

The meaning of khunthā mushkil

When a child is born, the single test for determining sex is the male or female organ. This remains the test till other signs appear with the passage of time. The causes of ambiguity, when the child is born, may be one of the following:

  • The child has both male and female organs. This creates ambiguity and is removed by identifying the organ used for urinating. When the ambiguity cannot be removed even in this way, if both organs are used for urinating, the resulting case is that of ambiguity or khunta mushkil.
  • The organs may be missing altogether or may exist in a form that creates ambiguity, that is, the child neither has a male organ nor a female organ. This becomes an extreme case of an ambiguity or the case of the khunthā mushkil.

Removing the ambiguity through medical science

The jurists have not given final rulings in the case of the khunthā mushkil. In fact, Imām Abū Ḥanīfah has expressly said on several occasions, “I do not know,” and so did some Companions (God be pleased with them) before him. The jurists often say, “If it turns out that he is a male,” or “If it turns out that she is a female.” Statements like these are found for cases where a khunthā mushkil dies and his or her body is examined for hair on the chest and other signs, so that burial rites can be performed either by men or by women. In the allocation of shares in inheritance, statements like “If she is considered a female,” or “If he is considered a male,” are to be found. To avoid injustice and incorrect treatment, there appears to be no harm if expert medical opinion is sought in cases of the khunthā mushkil. An early medical examination, at the request of the parents, or when a national identity card is being issued, may help resolve intricate issues to a great extent. Suitable labels can be used to indicate whether such a person be considered a male or a female, for example intersex (male) or intersex (female). The illustrations from the law of inheritance for the khunthā mushkil highlight the need for medical examination.

Inheritance where the khunthā is not mushkil

Where it has been clearly determined and declared that a khunthā is to be deemed a male or a female, the shares will be allocated like those of males or females as the case may be.

Examples of inheritance of the khunthā mushkil

The general rule, in the opinion of Abū Ḥanīfah and Muḥammad, is that the khunthā mushkil is to be considered a female, unless as a male he will get a lesser share in which case he is to be considered a male. According to Abū Yūsuf, he is to be given one-half share of the male and one-half share of the female. This was the view of al-Sha‘bī as well.

A woman dies leaving behind a husband, a germane sister, and a consanguine brother/sister khunthā mushkil. In this case, if the khunthā is considered a male, he will get nothing, because 1/2 will go to the husband and 1/2 will go to the germane sister. If she is considered a female, the husband will get 1/2, the germane sister will get 1/2, while the consanguine khunthā sister will get 1/6th to complete the 2/3rd for the sisters. The entire distribution will be subjected to ‘awl (reduction), that is, she will get one share out of seven. Consequently, in this case according to Abū Ḥanīfah and Muḥammad, she will be considered a male and he will get nothing. According to Abū Yūsuf, he/she will get 1/14th, which is one-half of her share if she were a female.

If the woman had left behind her husband, her mother, a uterine brother and a germane brother/sister khunthā mushkil, then declaring him male would mean 1/2 for the husband, 1/6th for the mother, 1/3rd for the uterine brother, leaving behind nothing for the khunthā mushkil. If she is declared a female, then the distribution by way of ‘awl will be as follows:

According to Abū Yūsuf, she will get 3/18th, which is 1/2 of her share in the above example.

If a man dies leaving behind a child khunthā mushkil and other agnates (residuaries), then according to Abū Ḥanīfah and Muḥammd, the khunthā mushkil is to be given the share of a female, that is, 1/2 and the rest will go to the residuaries. According to Abū Yūsuf he/she will get 3/4th, because he would be entitled to the full estate once and 1/2 as female, half of which is 3/4th.

The cases get complicated as we work through the examples given by the jurists, which further emphasizes the need for seeking expert medical opinion.

(Source: Nyazee, Imran Ahsan Khan. Outlines of Muslim Personal Law. Rawalpindi: Federal Law House, 2012.)

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