ميراث الخنثى المشكل في الفقه الإسلامي و القانون العراقي

Abstract EN

The origin that masculinity and femininity have a clear effect on the inheritance provisions in terms of the amount of shares, assets, Blockage (Hajb) ,Awl (the proportionate reduction) ,Radd (the Redistribution), and since the gender of the hermaphrodite is intertwined between masculine and feminine, his inheritance differs from that of a male and a female in Islamic Sharia.

Muslim jurists have been cautious about his inheritance and therefore they set two scenarios in this case; in the first, he is considered as a male; and in the second seen as a female, and a result the inheritance of the hermaphrodite and the inheritance of other heirs are equal, they will be satisfied with one of the scenarios.

this is the position in in the Iraqi Personal Status Law(1959) and it is not limited to the Islamic jurisprudence.

This solution implies that the need for a medical or jurisprudential criterion to reveal the gender of the hermaphrodite may become irrelevant.

However, in some cases it is difficult to determine the inheritance.

Thus, this paper resort to the provisions of Islamic Sharia, which are represented here by the opinions of Muslim jurists regarding the inheritance of the problematic hermaphrodite.

The Islamic Fiqh has made good progress in this regard, and each doctrine has a point of view that reveals to us the keenness of the jurists to stay under the roof of Sharia.

This paper presents the main opinions of the jurists highlighting those fit with the evolving circumstances and the requirements of the current legal system.