Systematic Analysis of Inheritance Rights of Khuntha (Simple Hermaphrodite) and Khuntha Mushkil (Problematic Hermaphrodite) under Islamic Law and Pakistani Legal System

Haseeb Fatima

Rasham Armab

 

Abstract: Khuntha (simple hermaphrodite) are persons who have sexual characteristics of both male and female. Islamic jurists have laid down specific rules for categorising them into male and female khuntha, depending on the predominant features of each sex. Likewise, they will inherit the share according to the sex assigned to them at birth or on puberty. However, a khuntha mushkil (problematic hermaphrodite) cannot be categorised into male or female due to its ambiguous genitalia. According to the majority opinion, khuntha mushkil are entitled to the smallest share, whether the heir is male or female. This article aims to analyse the inheritance rights of khuntha and khuntha mushkil under Islamic law and the Pakistani legal system. For this purpose, it examines the relevant provisions of the Transgender Persons (Protection of Rights) Act, 2018 (Pakistan), as well as judicial decisions. The Act adopted Maliki’s scheme of distributing shares among khuntha mushkil, which represents the average/balance share of a male and female heir, rather than the least share. This article concludes that the definition of the term ‘transgender’ creates confusion and ambiguity, and that the distribution of shares is perplexed. Therefore, for the effective implementation of the Act mentioned above, it is the state's responsibility to amend it and include the term 'khuntha' with its definition and inheritance rights.