Section 4 of Muslim Family Laws Ordinance 1961.pptx

The presentation summarizes various interpretations of the Section 4(1) of Muslim Family Laws Ordinance 1961 by the Superior Courts of Pakistan, i.e., High Courts and Supreme Court. Their endeavour to find out the most authentic interpretation of the said provision is characterized by various tensions. This legal provision is itself an exception of the general principles of Islamic Inheritance Law. However, the Pakistani courts attempt to figure out that interpretation, which as per their approach is in more consonance with Islamic legal tradition. This struggle to search for the most authentic interpretation has given rise to five interpretations that are the main subject of the present presentation.

1. Section 4(1) of Pakistan’s Muslim Family Laws Ordinance, 1961: An Exploration of Interpretive Tensions Dr Shahbaz Ahmad Cheema Professor, University Law College, University of the Punjab, Lahore

2. Classical Perspective & the Commission’s Opinion Disinheritance of paternal grandchildren in the presence of uncles under Classical Schools of Sunni (Four Major Sunni Schools) and Shia Laws ( Ithna Ashri School) from the estate of the grandparents Disinheritance of Maternal Grandchildren under Sunni Schools as Distant Kindred Various proposals : Obligatory bequest V Principle of representation Middle eastern and some other Muslim counties = OB Pakistan’s Commission on Marriage & Family Laws preferred the Principle of representation as more in line with Islamic spirit and ethos for the protection of rights of orphaned grandchildren

3. Section 4(1) of MFLO “In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stirpes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive.” Supposing someone alive after one’s death is a greatest anomaly Such supposition is bound to impact on other heirs’ rights Reformist approach as to Islamization of Laws Protected under various Constitutions of Pakistan, e.g., 1962 & 1973 Protection from the Federal Shariat Court’s Jurisdiction

4. Section 2 of Shariat (Application) Act 1962  Application of the Muslim Personal Law: “Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages or institutions, including waqfs, trusts and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law ( Shariat ) in case where the parties are Muslims.” Revivalist approach as to Islamization of Laws

5. Lucy Carroll’s Analysis of Section 4(1) There are three interpretations of Section 4(1) as per Lucy Carroll: Strict Interpretation Loose Construction Very Loose Construction There are two more interpretations of Section 4(1) as per my case analysis: Hybrid Construction Double Inheritance Construction

6. Strict Interpretation Zarina Jan V Akhbar Jan (PLD 1975 Peshawar 252) Propositus left behind a daughter (Akhbar Jan) and a daughter of a predeceased son (Zarina Jan d/o Mir Afzal) Under Sunni law: Akhbar Jan = 1/2 as a sharer Zarina Jan = 1/6 for consuming the maximum share of daughters, i.e., 2/3 Akhbar Jan = 3/6 = 3/4 Zarina Jan = 1/6 = 1/4 Under Shia law: Akhbar Jan inherits the entire estate = 1/2 as a sharer & 1/2 under rule of Radd/return

7. Strict Interpretation Peshawar High Court: Predeceased Son = 2/3 & Daughter = 1/3 The share of the predeceased’s son was then awarded to his daughter exclusively: Akhbar Jan = 1/3 Zarina Jan = 2/3 The PHC emphasised that per stripes in Section 4(1) indicates that the predeceased son’s share should exclusively be given to his daughter. The first appellate court had treated Zarina Jan as a sharer of the predeceased son (1/2 out of 2/3) and Akhbar Jan as his residuary (1/2 out of 2/3) on the ground that MFLO did not exclude the distribution as per Shariah based rules

8. Loose Construction Kamal Khan V Zainab (PLD 1983 Lahore 546) Propositus left behind: a daughter of predeceased’s son (Zainab) and a son of predeceased brother (Kamal Khan) Under Sunni law: Zainab as a sharer (1/2) and Kamal Khan as a residuary (1/2) Under Shia law: Zainab inherits the entire estate (1/2) as a sharer and (1/2) under the rule of Radd/return excluding Kamal Khan The LHC treated the predeceased’s son as alive and granted him the entire estate, and then out of that estate, (1/2) was given to his daughter as a sharer, and the residue (1/2) was awarded to Kamal Khan as a residuary The LHC argued that the children of predeceased children should only be given that amount/quantity of share, which they were entitled under Shariah and not more than that share The Supreme Court confirmed the LHC’s decision in Zainab V Kamal Khan (PLD 1990 SC 1051)

9. Loose Construction The Supreme Court said that the per stripes distribution only have consequences when the estate is required to be distributed among the orphaned children of more than one predeceased child, and not when it is distributed in favour of orphaned children of one predeceased child under Section 4(1) The Apex Court further opined that the application of Section 4(1) does not prevent the distribution of the estate under Shariah for the enforcement of other legal heirs’ rights The orphaned children of predeceased children are entitled to the extent of their own share and not more than that amount/quantity This interpretation is bound to reduce the shares of orphaned granddaughters exclusively without having any effects on grandsons

10. Hybrid Construction The previous interpretation has posed a complex question: who would be entitled to the estate of predeceased child who was supposed to be alive, after his/her death, for the purpose of Section 4(1) Whether the spouse of such predeceased child would have his/her prescribed share in that estate The courts have divergently answered this question. The most recent perspective does not grant any share to the predeceased child’s spouse This approach is erroneously considered to be in conformity with the loose construction It is characterized by mixture of strict and loose interpretation Strict interpretation for spouses who are sharers, and loose construction for other legal heirs who are mainly residuaries In this context, a critical question is: whose estate is to be distributed either propositus or predeceased’s child “Children of the predeceased children” in Section 4(1)

11. Hybrid Construction Hassan Aziz V Merajud Din (2022 SCMR 1131) The Supreme Court refused to give any share to the spouse of a predeceased child on the ground that the former did not have any relation with the propositus In this case the Supreme Court allowed to distribute the share of supposedly alive predeceased child for the determination of his children’s entitlement Qabal Jan V Habab Jan (1992 SCMR 935) Propositus: widow, daughter and a daughter of predeceased son Predeceased son: daughter (1/2), mother (1/6) as sharers, and sister as a residuary to the remaining estate

12. Very Loose Construction Muhammad Fikree V Fikree Development Corporation (PLD 1988 Karachi 446) When some share could have been awarded to the orphaned grandchildren under Shariah, then Section 4(1) is not applied Propositus: six daughters, one son and one daughter of predeceased son (paternal grandchildren) Six daughter = 2/3 (66%) as sharers One grandson & one granddaughter = 1/3 (33%) as residuaries In this case, Shariah based distribution was more beneficial to the grandchildren compared to Section 4(1) Under Section 4(1): Predeceased son = 1/4 or 2/8 (25%) Daughters = 3/4 or 6/8 (75%)

13. Double Inheritance Construction Is there any possibility of inheritance both under Shariah and Section 4(1) Fazeelat Jan V Sikander (PLD 2003 SC 475) This case pertained to an inheritance distribution before the enactment of MFLO The Supreme Court noted that the paternal grandson was entitled to his grandfather’s estate as being a residuary “and also under Section 4 of Muslim Family Laws Ordinance, 1961.” This reference to Section 4(1) in a case that predated the enactment might cause confusion as to the possibility of double inheritance of the orphaned grandchildren Fortunately, neither the present nor the previous interpretation has been followed in a single case ever since they were pronounced by the courts

14. Way Forward As suggested, but not in absolute terms, by the Federal Shariat Court to replace the principle of representation with obligatory bequest = obligatory nature of share is problematic As suggested by Dr Muhammad Munir that the state as an Islamic welfare state should take its responsibility to take care of the orphaned children = economic situation might be a hinderance Educating the people as to their moral responsibilities about their orphaned relatives = seems an extremely long term solution Judicial approach = let not to hear the appeal against Allah Rakha’s case to keep Section 4(1) applicable for time being …