Under Islamic law, Waqf is a legal concept that requires dedicating one’s own property for religious, charitable, educational, or any other activity that comes under public welfare and aligns with the Islamic principles. The dedicated property cannot be used for something that may be incompatible with Islam. Common examples can be for gambling, alcohol consumption, or prohibited eateries. The concept of a Waqf is deeply rooted in the principle of “sadqah-e-jariyah” found in the primary source of Muslim law, the Qur’an. Sadqah-e-Jariyahliterally means “ongoing charity” or “continuous charity.” The idea is that the Waqf shall continue to benefit people, including future generations, even after the person who made the Waqf has long since passed away. Although the term “Waqf” is not mentioned in the primary sources of Muslim law, the Qur’an, the core of Islamic jurisprudence, strongly emphasises the importance of charity, which is why it is widely practised among Muslims. The origin of Waqf, thus, can be traced back to the time of Prophet Muhammad ﷺ, when Caliph Umar approached him to seek guidance regarding the disposition of his land in Khaybar.
Umar sought the Prophet’s guidance on how to manage his land best, to which the Prophet is stated to have advised: “Hold the property and give its fruits (income) in charity.” This guidance represents the genesis of the concept of Waqf, which, while not initially termed as such, evolved into an established practice within the Muslim community and social order.
Origin of Waqf and Terminology
The terminology of the term Waqf to be used in legal parlance was only recognised during the 7th and 8th century under the Umayyad dynasty, which over time, gradually took the form of a formal legal and juristic institution. The literal meaning of the term Waqf, which means “to hold, to preserve” signifies a commitment to manage property for a charitable purpose. In essence, Waqf as a formal concept now refers to the permanent dedication of a property by a Muslim for a charitable purpose. Once designated as Waqf, the property becomes non-transferable, with only its benefits being directed toward recognised charitable causes.
Waqf-ul-Aulad: An Exception to the Rule
Within the broader framework of Waqf, a less known sub-concept called Waqf-ul-Aulad has emerged over time. This concept constitutes an exception to the general rule, under which a waqif i.e. the individual who dedicates his property to waqf, allocates the property’s benefits to its family and descendants while relinquishing his title to the Waqf’s property. In simpler terms, property declared as Waqf-ul-Aulad remains with the family of waqif unless the family ceases to exist, at which point, the property transitions to public for charity.
This exception is specifically recognised under the Hanafi school of thought within Islamic personal law. Some other schools interpret this concept differently, with limited acceptance and varying restrictions. Nevertheless, Waqf-ul-Aulad has often misunderstood and highly mischaracterised and critiqued under Muslim personal law.
It is noteworthy that there is no direct mention of this sub-category of Waqf in the primary sources of Muslim law, including the Qur’an, Sunnah, and Hadith. The rationale behind this exception appears to be an attempt to balance familial security with the ultimate goal of public charity.
The concept of Waqf, and in particularly Waqf-ul-Aulad, hits at this delicate balance between the private familial interest and social harmony through welfare, while remaining within the confines of Islamic law. This specific subset of waqf was institutionalised under Hanafi school of law and was later adopted by Indian Muslims for the simple reason that most of the Indian sub-continent follows the Hanafi school of thought. Nevertheless, these principles not only shed light on the importance of taking care of family but also highlight the importance of charity in community welfare and at societal level.
Property Rights: Waqf-ul-Aulad vs. Traditional Ownership
In order to understand an individual’s property rights in a nation state, one must consider the dichotomy between municipal laws and personal laws that may govern the person and in turn, its property rights. Self-acquired property is traditionally regarded as owned by the individual who holds the title. The ownership grants the titleholder of the property full autonomy to dispose of, transfer, sell, gift, or bequeath the property as per his own wishes, without any mandatory bequeath or division among the family members during lifetime. Such flexibility is a hallmark of conventional ownership, where legal and religious obligations are minimal, allowing the owner to exercise their rights freely.
Under the Muslim law, property has no distinction or classification like ancestral property and self-acquired property. Thus, the owner of the property has the right to do anything with the property, which includes selling it, gifting it, or making a will of that property. With Waqf, a unique concept has come up under the Muslim personal law, by which the owner can declare the property as part of a classic Waqf (directly to the public) or as Waqf-ul Aulad (first the fruits go to the family, then to the public).
Thus, in Waqf-ul-Aulad, the property is transferred to the family, but the ownership is held. The family doesn’t get the title of the property. The moment the family ceases to exist, the benefit goes to the public. The whole concept of Waqf-ul-Aulad ensures a Muslim has to balance one’s responsibility towards their family along with charitable purpose being undertaken through Waqf. This unique and beautiful concept appears to be the only one amongst all family law doctrines where one can withhold the ownership for the benefit of the community. Waqf-ul-Aulad, hence, serves a dual purpose.
Even under the Muslim inheritance laws, the property does not devolve upon the legal heirs unless the owner passes away leaving behind his/her assets and properties, i.e. the intestate passing away of the individual. Unlike the Hindu law, where a person is given the right even before birth, and solidified upon birth, the concept of partition suits is thus alien under the Muslim law.
Once the property is declared as Waqf-ul-Aulad, it becomes non-transferable. This secures the intended use for the benefit of the family and subsequently the community upon the cessation of the family’s existence. This can continue for all intends and purposes, in perpetuity.
This principle completely aligns with the secular doctrine of escheat, under which property reverts to the state if no family members remain to claim it. This structured mechanism ensures that the property is not just a mere source of wealth for the family but also a form of continuous charitable contribution reflecting a far-sighted approach and an ethically sound method for the utilisation of property in public good.
Additionally, Waqf-ul-Aulad is characterised by a regulatory framework that is better and surpasses that of traditional gift-giving. Gifts may be revoked under certain conditions, introducing uncertainty in ownership and later, management. Conversely, once a property is declared as Waqf-ul-Aulad, it becomes irrevocable, remaining under the vigilant oversight of the waqf board, the judiciary, and the state, with a designated Muttawali(manager) ensuring adherence to the intended purposes of the property.
In conclusion, the comparative analysis of Waqf-ul-Aulad and traditional property ownership reveals a distinct approach to property rights in both concepts. While conventional ownership affords complete freedom to the titleholder, it lacks the ethical dimensions and long-term vision inherent in Waqf-ul-Aulad. By preventing fragmentation and promoting charitable use, Waqf-ul-Aulad exemplifies a more responsible and sustainable model of property management that aligns with contemporary values of social responsibility and ethical stewardship.
Winding-Up
In conclusion, the recent amendments concerning Waqf-ul-Aulad have introduced provisions that are not only perplexing but also pose a significant threat to the rights of female legal heirs. The stipulation that Waqf cannot be declared unless female heirs receive their rightful shares distorts the foundational principles of Islamic law, which inherently grants property owners the authority to make decisions regarding their assets until their demise. This legislative approach erroneously implies that Waqf-ul-Aulad operates to the detriment of women, perpetuating misconceptions that undermine their inheritance rights.
Moreover, it is essential to recognise that the essence of Waqf lies in its commitment to charitable dedication, which transcends mere religious obligations to encompass educational and humanitarian purposes as well. The prevailing interpretation, however, restricts this noble concept to an unjust patriarchal framework that favours male descendants. Legal scholars and practitioners must advocate for a more inclusive understanding of Waqf that aligns with its original intent, ensuring that all family members, regardless of gender, can benefit from its provisions.
The glaring absence of comprehensive data regarding the application of Waqf-ul-Aulad in India further exacerbates this issue, underscoring the necessity for thorough investigation and reform. Without such scrutiny, the potential for misuse remains, jeopardising equitable rights for all heirs and perpetuating systemic inequalities within the community.
[The writer is PhD Candidate, Maharashtra National Law University, Mumbai, India; Adjunct Faculty of Law at Amity University Dubai, and Adjunct Faculty at Murdoch University (Australia) and Curtin University (Australia), Dubai campuses; and Partner, Adamya Legal Consultants, UAE]