The Waqf Bill 2024, or the Waqf (Amendment) Bill, has been referred to a Joint Parliamentary Committee (JPC) as the Narendra Modi government’s own allies were not keen to get it passed immediately. Opposition parties were also critical of the Bill.
The rationale of the family waqf
Some of their concerns are genuine as changes such as abolition of waqf by a user, and the granting of excess powers to the District Magistrate would lower the protection to waqf properties. Though there is hardly anything worthwhile in the Bill to effectively deal with the problem of the illegal encroachment of waqf properties, there are still some positive features such as a digitisation of waqfs and the inclusion of women and non-Muslims in waqf boards. Similarly, on the contentious issue of family waqf, the proposed reforms should be welcomed. Let us try to understand the rationale of the family waqf, how the colonial judiciary had responded to this unique kind of waqf, and the changes that have been made in the Muslim world.
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Though the Koran does not specifically use the term waqf, there are some 20 verses that encourage people to do charity. Waqf is Islam’s unique contribution to charity and is aimed at helping the poor and the underprivileged. Once a property becomes waqf, its corpus cannot be alienated, gifted or sold but its usufruct/use alone can be utilised. There are various types of charities in Islam such as sadaqah (voluntary giving of cash); zakat (mandatory 2.5%) and waqf (voluntary and general though not confined to immovable properties). Waqfs are of three types: waqf khari (public waqf) totally devoted to welfare of humanity; waqf al-ahli or waqf alal-aulad (family waqf) for the benefit of his family and al-waqf al-mushtarak (public and family waqf) for the combined benefit of both family and the larger society.
Family waqf is not only based on the English dictum of ‘charity begins at home’ but has theological sanction as family members must be given priority in charity. The Koran explicitly encourages the spending money on parents and relatives (2:215). The Prophet also said that, ‘A dinar you spend in the path of Allah; a dinar you spend on a poor person; a dinar you spend on your family; greatest of them in reward is what you had spent on your family.’
Abu Talah ‘Obid Allah was the first who created the family waqf with the concurrence of Prophet when after the revelation of the Koranic verse — ‘By no means shall ye attain righteousness unless ye give (freely) of that which ye love’ (3:92), he endowed his garden called Biruha. The Prophet’s wives such as ‘Aisha, Hafsah, Umm Salamah, Umm Habibah’ created waqf for the benefit of their family members, and Safiyyah created a family waqf for the benefit of her brother who was a Jew. Similarly, almost all the companions who had properties, created waqfs. Some like the first Caliph Abu Bakr, endowed his house to his children; the second Caliph ‘Omar endowed his land at Thamgh to his children; Sa’d ibn Abu Waqqas too endowed his house in Egypt and Madina to his kith.
Family waqfs were used in addition to pious reasons to protect property, particularly agrarian, from fragmentation. It was supposed to lead to the growth of fixed assets and protect property from the prodigal children and eventually be used for public welfare.
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Scholars such as Murat Cizakca, Jeffrey A. Schoenblum, Gregory C. Kozlowski, AAA Fayee, and Ronald K. Wilson were critical of family waqfs. Their argument was that the family waqf was developed as an institution to defeat the women’ right to inheritance and for “the aggrandisement of a family”. There may be some truth in this conclusion, but the waqf has been historically used to overcome other problems of Islamic law of inheritance such as the exclusion of orphaned grandchildren. Family waqf gave this opportunity to [the] grandfather to make a waqf of one third of his property in favour of orphaned grandchildren. It also helped the founder or waqif to provide for the special care of his aged parents, and minor and disabled children. In many cases, including in this writer’s family, daughters were made primary beneficiaries. Of course, in some cases, males were made beneficiaries and daughters just had the right to residence and subsistence allowance. In many cases, women were excluded as well.
Waqfs across the world
But under the Maliki law of the Sunni school, such endowments were null and void. Under the Shafi’i and Maliki schools, the creator of waqf cannot reserve any benefit for himself. But the Hanafi and Hanbali schools considered them valid as a provision for reserving a part of the benefits for himself, which may encourage people to create waqfs.
The Privy Council in Abdul Fata (1894) invalidated the family waqf as it considered the benefit to the general public to be too remote. But in 1913, this decision was overturned by the British government. Scholars such as J.N. Anderson and J. Hamilton had criticised this judgment as “wholly mistaken interpretation of Islamic law”. Under the influence of colonialism, which preferred free transfer of ownership, several Muslim countries even abolished family waqfs. Egypt, in 1946, first restricted it to two generations and finally abolished it in 1951. Syria abolished it in 1949. Kuwait restricted it to two generations in 1951. Iraq permitted liquidation of the family waqf in 1954. Tunisia, Libya and the United Arab Emirates abolished the family waqf in 1954, 1973 and 1980, respectively. In countries such as India, Bangladesh, Malaysia, Singapore and Indonesia, family waqfs, though permitted, were not given privileges of waqf properties. Thus, in India, as family waqfs were not treated as charitable, they have not been included in waqf surveys. There is no effective statutory supervision of family waqfs. Unlike charitable trusts, family waqfs are not entitled to exemptions or tax reliefs from capital gain tax, stamp duty and inheritance tax.
Though the Income-Tax Act, 1961 exempts religious and charitable waqfs, under Section 13, income-tax is payable by the family waqf even in cases where income is to be used for family as well as religious or charitable purposes. Similarly, estate duty is applicable on the passing of property from one beneficiary to another though passing of property is alien to waqf jurisprudence. Many agrarian family waqfs were acquired by the government on nominal payments under land reform laws.
Section 2(1)(r) of the Waqf Act 1995 does include family waqfs within the definition of waqf. It says that when the line of succession fails, the income of such a waqf shall be spent on education, development and welfare.
A new section and impact
The newly proposed Section 3A(2) of 2024 Bill proposes a reform — that the family waqf shall not result in a denial of inheritance rights of heirs, including women heirs. The effect of this reform, which is welcome, is that a Muslim can now create a family waqf only in respect of a third of his property if he is excluding all his heirs; and, he cannot any more altogether exclude female heirs. But the problem with this provision is that if he gives even a token benefit to female heirs, i.e., much less than they are otherwise entitled to under Muslim law of inheritance, such a family waqf would remain valid.
The other problem is this: can we place similar restrictions on the testamentary powers of non-Muslims? A Hindu, for instance, under the Hindu Succession Act, 1956, can give away his entire property to a son to the exclusion of other heirs including female heirs. Hindu women’s ownership of properties is nowhere near their legal entitlement under the 1956 Act.
Let the JPC improve this provision and bring in uniformity so that a Uniform Civil Code or Secular Civil Code, as and when it is enacted, incorporates it.
Faizan Mustafa is the Vice-Chancellor of Chanakya National Law University, Patna. The views expressed are personal
