The debate over the recently passed Property Transfer (Amendment) Act, 2026—particularly the provision recognising a distinct form of property transfer that allows donors to retain lifetime usufruct rights—has again raised questions about the place of religious norms in the making of civil law. Some Islamist politicians and commentators have claimed that it violates Shariah provisions on property transfer and inheritance. Their arguments and examples are worth discussing. But the first question should be this: can the state provide a citizen with an additional civil route for transferring their property? My position is that it can, and it should.

Providing such a route does not mean going against any religion. Rather, it gives citizens another option for exercising their rights. People should be free to follow religious rules but they should also have the opportunity to choose a lawful civil arrangement outside those rules. There is no reason to turn these two rights into enemies.

I am not a student of law, but as I understand it in basic terms, the amendment to the act creates a separate method of transferring property while reserving the right to enjoy it for life. This can be used within certain family relationships, such as between parents and children, grandparents and grandchildren, or spouses. Ownership is transferred, but the donor can retain the right to use and enjoy the property for as long as they live. Most importantly, Section 122A(4) expressly preserves the validity of heba and other recognised methods of transfer. So, the claim that the law abolishes heba and introduces it under a new name is not true. Rather, it simply provides citizens with another legal option.

Islamists are overlooking this distinction for their own political convenience. Instead of discussing the question of citizens’ rights, they have taken the debate into the religious sphere. If someone wants to make a heba according to religious rules, the state should not prevent them. Nor is the state doing so in this case. But if someone, especially an elderly parent, wants to transfer their property while retaining security for the rest of their life, should one interpretation of a religion stand in their way?

This is where the discussion of rights comes in. The state is providing a legal framework for a citizen who wishes to transfer their property while retaining security for life. The argument being made against it, therefore, amounts to saying that everything must remain confined to one religious method and that citizens should have no alternative. Regulating the ownership, possession, use, and transfer of property falls within the state’s ordinary lawmaking authority. The existence of religious rules on a subject does not place that subject entirely within the exclusive jurisdiction of religious authorities. Religious experts may offer opinions, debate, and advise citizens. But their approval cannot be made a precondition for enacting ordinary property law.

History also supports this position. The Muslim Personal Law (Shariat) Application Act, 1937, enacted during British rule, was itself a piece of state legislation. It provided that, in specified matters involving Muslims, the law would be the rule of decision notwithstanding any custom or usage contrary to it. In other words, the application of Shariah was also determined through legislation and the judicial system. The act recognised religious rules, but that recognition did not give religious authorities a permanent veto over the legislature.

Then, there is the Muslim Family Laws Ordinance, 1961, promulgated during Ayub Khan’s rule. It followed the recommendations of the Commission on Marriage and Family Laws of the 1950s. The ordinance introduced provisions concerning marriage registration, prior permission from an arbitration council for polygamy, notice and a 90-day period before a talaq could take effect, and inheritance rights for the children of a deceased son or daughter. The reforms generated considerable debate but the state exercised its authority to determine the legal consequences of family relationships.

These examples show that religious objections do not, in themselves, eliminate the state’s authority to reform personal or family law. In today’s democratic Bangladesh, that authority is even more necessary. It should be exercised through parliamentary accountability and on the basis of constitutional rights. That is not the responsibility of any religious leader.

Elderly parents stand to benefit most from the new arrangement introduced by the government. Many people want to give property to their children but fear losing control over their home or livelihood after transferring ownership. The opportunity to reserve lifetime rights may reduce that fear. A mother who wants to give property to her daughter will be able to do so while retaining her right to live in it. Similarly, a father will be able to transfer property to his child while retaining the right to use it and receive income from it during his lifetime. This is a way of giving legal recognition to a right to security rather than leaving it entirely dependent on goodwill within the family. This law is for citizens of all faiths, and its use is voluntary.

The Property Transfer (Amendment) Act, 2026 also has potential benefits for preserving women’s rights. It is true that it does not itself establish equal inheritance rights for daughters and sons—something that remains one of the injustices in our society. Sometimes a family has only daughters, yet they do not receive the whole property, and their paternal cousins may also receive a share. At other times, brothers deprive their sisters of their property. These things often happen through appeals to Shariah and social custom, although religious law does recognise women’s right to a share of property, even if it does not provide equal rights.

So if parents want to give property to their daughter during their lifetime, they may now have less reason to fear losing their own security. The same opportunity is relevant when a woman wants to transfer her own property. At the same time, we must consider the other side. Fathers may also transfer property during their lifetime in ways that deprive daughters of their inheritance. The right position, therefore, is to support the civil option while demanding effective safeguards for women’s property rights. That should be our next demand. The possibility of misuse is not a reason to abolish a right altogether.

Some people are drawing on the experiences of Egypt or Malaysia to argue that state involvement in religious matters can ultimately intensify religious conflict. This warning is not without merit, and it certainly deserves consideration. But the constitutional arrangements, judicial interpretations, and political histories of one country cannot simply be transposed onto an optional property provision in Bangladesh. The relevant question here is narrower: should the state make one particular interpretation of fiqh compulsory for everyone, or should it allow different lawful routes to coexist? I find the second approach more reasonable.

Supporting a civil framework, however, does not mean supporting every provision of the law. Some questions remain. For example, how will a donor’s free consent and mental capacity be verified at the time of property registration? How will the donor’s lifetime rights be enforced if a child mortgages the property or transfers it to a third party? Will a donor who suffers abuse or neglect be able to obtain a prompt remedy? And how can the risk of women’s inheritance rights being harmed in practice be reduced? These questions need answers.

Although Section 122B provides limited grounds for transfer variation or revocation, it does not expressly address every form of abuse or neglect that may arise within a family. These gaps highlight the need for stronger safeguards to protect donors’ rights and for a more careful legislative process to ensure that such protections are built into the law.

In a society like Bangladesh, the state’s role is not to make one religious interpretation the only legal route available to everyone. Creating lawful alternatives for citizens, while respecting constitutional guarantees of equality, religious freedom, and property rights, is also part of the state’s responsibility. Religious experts should have a voice in the discussion, of course, but they are not a substitute for parliament.

Asif Bin Ali is a doctoral fellow at Georgia State University in the US. He can be reached at [email protected].

Views expressed in this article are the author's own. 

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