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.
Written by Junayed Chowdhury, Managing Partner and Sadia Islam, Consultants at Vertex Chambers
† Disclaimer: The opinions and comments expressed in this Blawg are not to be regarded or construed as legal advice by and from Vertex Chambers or any of its members. It is highly advisable that any person should seek independent legal advice before relying on any of the contents of this Blawg
[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
AstuteHorse