Latent shortcomings in section 4 of Muslim Family Law Ordinance
Thursday, December 17th, 2009On account of a fundamental rule of inheritance under Muslim law that “a nearer in degree excludes the more remoter” the children of a predeceased son or daughter can not inherit the property of their grandfather or grandmother who is survived by a son or sons. All the schools and sub-schools of Islamic law unanimously accepted this fundamental rule. So it is evident that in the opinion of Islamic jurists the provision of representation in respect of inheritance is absence in Muslim law. As under this principle grandchildren are excluded from inheritance, different Muslim countries of the world attempted to solve this problem by taking various devices.
In Syria and morocco the children of a predeceased son who would be excluded from succession under sharia law ,are now entitled to either the share of their father which they would have taken ,had he survived the propositus or one third of the net estate ,whichever is less .But till now no provision has been made for the children of the deceased ‘s daughter.
In Egypt the children of a predeceased son or daughter is entitled to the share of their parent which they would have received ,had he or she survived the propositus ,but within the maximum limit of one third of net estate.
Some Middle Eastern countries have adopted the device of ‘obligatory bequests’. In Libya the will act 1994 introduced obligatory bequest for orphaned grandchildren through predeceased sons. But Bangladesh and Pakistan have accepted the rule of representational succession for the orphaned grandchildren. Section 4 of Muslim family law ordinance1961 provides;
In the event of the death of any son or daughter of the propositus before opening of succession ,the children of such son or daughter ,if any ,living at the time of 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.’
According to this section a grandson or granddaughter represents his or her father or mother at the time of death of grandfather or grandmother and inherit what their parent would have inherited if alive, it is called representation. So representation means a more distant relative steps into the shoes of a nearer relative (e.g. a son representing his father) and inherits in an identical manner to the individual he represents. This doctrine of representation has brought in some cases caustic injustice to some heirs of the deceased .For the better understanding the latent injustices in section 4 of MFLO; we can discuss it by giving some examples;
Firstly; a dies leaving behind one daughter and one son’s daughter. So under Islamic law of inheritance daughter gets three-fourths and granddaughter gets one –fourth but according to this ordinance daughter gets one-third and granddaughter gets two-thirds. Only this single injustice upsets the whole community. Here both the heirs are female one is one degree nearer than the other one but nearer gets half of property of remoter. Do you think it is justice?
Secondly; under the ordinance the doctrine is applied only for the descendents of the deceased. It means the entire property which the deceased son would have inherited, if alive, goes to his children, depriving his wife and other relatives. For example; A dies leaving B, a son and D a grandson from predeceased son C and C’ s wife E. Here the property will be divided into two. B gets half and the rest half goes to D. So E is completely deprived .Is it justice?
Thirdly; the propositus dies leaving a daughter of a predeceased son and a full brother. Under MFLO, the entire property goes to son’s daughter and she completely excludes full brother. Is it not injustice?
Fourthly, Son is duty–bound to maintain his father but son’s son is not obliged to maintain his grandfather .So equal distribution among son and grandson is not justice.
Although section 4 of MFLO protected the right of grandchildren yet for the abovementioned injustices to the heirs it should be amended.
References:
A Text Book On Islamic Law– Dr. Muhammed Faiz-ud-din.
Shariah Law and Society– A.M.Siraj uddin.
Principles of Mahomedan Law– D.F. Mulla.
The Muslim Law of India– Tahir Mahmood.
