Restructuring The Law Of Inheritance In Pakistan: Who To Blame?

Restructuring The Law Of Inheritance In Pakistan: Who To Blame?

Muslim law of inheritance has always come forth as quite a complex, and at the same time extremely significant topic of discussion within Islamic law. The gravity of the law of inheritance in Islamic jurisprudence can be ascertained by the fact that Allah Almighty has laid down specific emphasis upon the substance and principles governing inheritance laws in the Quran[1]; Surah Nisa, Verse 7 states:

“From what is left by parents and those nearest related there is a share for men and a share for women, whether the property be small or large – a determinate share.”

This article specifically refers to the discussion of inheritance laws in Pakistan and shall focus on a particular aspect that has been subject to a profusion of debate in the country, namely: Sec. 4 of the Muslim Family Law Ordinance (MFLO) 1961, and the controversy surrounding the said provision of the latter legislation being contrary to the set injunctions of Islam. The ensuing part of this work shall emphasize the role of the august courts of Pakistan and the part they have played (or ought to play) in bringing to an end the apparent dispute that has arisen by the enactment of the abovementioned provision.

Before embarking upon a detailed discussion as to the prominence of sec.4 of MFLO and the contentious nature of the latter that has resulted in decades-long agitation, it is first vital to briefly highlight as to what sec. 4 actually is. The latter provision became part of MFLO that came into existence pursuant to the recommendations of the Commission on Marriage and Family Law in Pakistan to reform personal laws[2]. It was a result of a question framed by the Commission which stated[3]:

“Is there any sanction in the Holy Qur’an or any authoritative Hadith whereby the children of the predeceased son or daughter are excluded from inheriting property?”

It was following this question, that sec. 4 MFLO came into existence which reads as follows:

“In the event of 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 stripes, receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive.”

There are several notable aspects of sec. 4 MFLO that require acknowledgement in order to understand the law better. The foremost point of consideration is that the provision will only apply in those cases where son and daughter of a predeceased son or daughter are sought to be excluded on account of the existence of other heirs of the same category to which predeceased son or daughter belonged[4]. This is due to the factors advocated by the entities in favour of sec. 4 of MFLO that were of the view that no verse was specifically mentioned in the Quran that excludes an orphan grandchild from inheritance. Moreover, another point that substantiates the claim of the framers and favorers of sec. 4 is the notion of humanity and compassion[5].  Furthermore, it is worthy to note that the principles of succession being ‘per stripes’ shall be in accordance with root or stock to which grandchildren belong and will get only such share to which grandchild is entitled through the parent. In case of a single surviving grandchild, principle of per stripes is pushed to the background but cannot be employed to support a principle which militates against Islamic law of inheritance[6].

In stark contrast to the abovementioned view, the newly formed provision sparked controversy within the scheme of the Islamic jurisprudence that governs this aspect of inheritance law in Islam. A big number of ulema rejected the updated law and the latter was subjected to severe criticism as being outside the parameters and principles set by the Quran and the Sunnah[7]. The major arguments that were highlighted that challenged the validity of sec. 4 were that several verses of Surah Nisa clearly stated the manner in which the shares of inheritance were to be distributed, and nowhere does it state that a grandchild shall be given a share in inheritance like other sons of the propositus. Furthermore, it is also imperative that a Hadith of the Prophet (peace be upon him) be mentioned regarding the subject, which states:

“Narrated by Ibn-e-Abbas, the Holy Prophet said: give the shares of the inheritance as prescribed in the Holy Quran to those who are entitled to receive it, then whatever remains, should be given to the closest male relative of the deceased.”[8]

In another Hadith, the Apostle of Allah Almighty said:

“The grandchildren are to be considered as one’s children (in the distribution of inheritance) in case none of one’s own children are still alive; a grandson as a son, a granddaughter as a daughter, can inherit (their grandparents’) property as their own parents would (where they are alive) and they prevent the sharing of the inheritance with all those relatives who would have been prevented from the same, where their parents are alive. So, one’s grandson does not share the inheritance with one’s own son (if the son is alive)”.[9]

It is clear from the abovementioned sources of Islamic law, as prescribed by the Quran and the Sunnah of the Holy Prophet (pbuh), that the principle prevalent with regard to the law of inheritance is that the nearer in kinship excludes the remoter from inheritance, and this rule does not have any exceptions[10]; grandchildren are only to be considered as one’s own children in the distribution of inheritance provided that none of the propositus’ children is still alive. The grandchild, therefore, has been particularly excluded from inheritance if other children of the propositus are still alive. The principle laid down by this Hadith has been followed by all classical Islamic schools of thought, including Fiqh-e-Jafria[11].

As mentioned above, the framers of sec. 4 MFLO laid credence upon the aspects of humanity and compassion towards the orphans as being of vital essence. However, the fact worth noticing is that, as discussed previously, the principles of inheritance in Islam are based on nearness and proximity, and not upon any financial point of view, and the latter aspect has nothing to do with the concept in question. If the same is regarded as the base ideology in structuring the principles of inheritance, it would engender immense complications. For example, if the orphaned children of the predeceased are to be given a share in the propositus’ property as the other children of the propositus; why not include the widow of the predeceased child of propositus in the share in inheritance? Why not include, for that matter, the children of predeceased brothers or sisters etc. and if such stance is taken, there will be no end to the inclusions[12] bringing about greater uncertainty. The critical point which seems to be ignored by the legislatures is that this scheme of inclusion has disturbed the divinely settled/Quranic shares of legal heirs and any discretion in such matters without the consent of the legal heirs would be akin to curtailing divinely settled rights and distribution of wealth.

An important question that needs consideration, following the aforementioned discussion, is: what would be the solution for the apparent socio-economic problem that might arise for the orphaned grandchild after the demise of the propositus, who may have left an estate from which uncles and aunts would inherit, but the grandchild would be deprived of the same? This problem has been tried to be solved by some Muslim states such as Egypt and several Middle-Eastern states through the appreciation of a principle known as ‘obligatory bequests’[13] whereby a mandatory will is drawn up in favor of the orphaned grandchild for a share in propositus’ inheritance equal to what the parent would have inherited had he survived provided that this does not exceed one-third of the total property. This view finds support from Verse 180 of Surah-Baqarah of the Holy Quran:

“It is prescribed for you when death approaches [any] one of you if he leaves wealth [is that he should make] a bequest for the parents and near relatives according to what is acceptable – a duty upon the righteous.”[14]

Moving on to dilate upon the role of the Pakistani courts subsequent to the enactment of sec. 4, it is vital to first acknowledge that the Constitution of Pakistan in Art. 203D lays down an aspect significant for the topic under discussion. The said provision vividly asserts the jurisdiction and power of the Federal Shariat Court to call in question and decide, whether or not, any law or provision of law is in contrast with the injunctions of Islam, as laid out in the Quran and Sunnah. If the Court holds any law to be against the injunctions of Islam, the President or the Governor of a Province[15] has to take all the necessary steps to amend the law and bring it in conformity with the injunctions of Islam, and such law shall cease to have effect on the day the decision of the Court takes effect.

A practical applicability of the contents of the aforementioned paragraph can be seen in a famous case of [Allah Rakha vs Federation of Pakistan][16] where the Federal Shariat Court declared sec. 4 to be against the tenets and injunctions of Islam. This decision of the Federal Shariat Court was appealed to the Shariat Appellate Bench of the Supreme Court on March 2000 and is still pending adjudication. The dilemma surrounding the entire prospect concerning a matter of such grave importance due to the pending adjudication of the phenomenon in question cannot be ignored and subsided in a manner currently being implied. The practical repercussions of such an indiscreet mannerism towards such a topic of value left hanging in such a fashion speaks volumes of the ineffectuality of our judicial system. It is vital to emphasize upon the recent trend seen in the case law pertaining to the principles concerning sec. 4 MFLO. Due to the pending adjudication for the determination of the fate of the mentioned provision, the heirs of the predeceased children of the propositus are subjected to the share of the latter’s inheritance as equals to the share of the living children of the propositus; which, as has been depicted quite clearly in the earlier part of this Article, is prima facie repugnant to the limits set by Allah and His Messenger (PBUH). In the case of [Allah Dewaya vs Muhammad Hussain][17] the contention that the claim of heirs of a predeceased daughter for the shares of the inheritance left by the original owner is illegal, was repelled due to the fact that the appeal against the judgment (Allah Rakha case) concerning sec. 4 of MFLO was pending adjudication in the Supreme Court, and hence the decision of the Federal Shariat Court would stand suspended till disposal of the appeal by the Supreme Court.

The case mentioned in the preceding paragraph, as well as a plethora of other recent cases[18] are seen to give effect to the antagonistic principles as portrayed by sec. 4 MFLO; giving an orphaned grandchild the legal right to attain the share of inheritance as his/her predeceased parent would have gotten had they been alive, whereas this is in staunch disparity with the laws of Islam. The only prominent reason for this seems to be the undecided principles of sec. 4 MFLO.

Conclusion

To conclude the aforementioned discussion, the primary aspect worth acknowledging is that Islam is a religion that has laid down a complete code of conduct in regard to each and every aspect of human life, ranging from the matters of minutest of details to the laws of immense importance (i.e. inheritance, zakat, etc). It is vital for every Muslim to abide by the limitations and the commands as fixed by Allah Almighty. The law of inheritance is one such topic, the substance and procedure of which is depicted by Allah Himself in the Quran, and explained by the Prophet (pbuh), hence holds immense importance in Islam.

The enactment of sec. 4 MFLO 1961 has come to be seen by many Islamic jurists, scholars and researchers as being in direct conflict with the instructions of Allah Almighty, as an orphaned grandchild is given shares from an inheritance he/she is not qualified to receive. The Constitution of Pakistan, in Art. 203D, has bestowed upon the Federal Shariat Court, a prerogative to question any law that is deemed to be repugnant to the injunctions of Islam. We have seen that the Court has held Sec. 4 as being in clear violation of the commands of Allah and his Prophet (pnuh). However, the fact that the said ruling is held suspended until the Shariat Appellate Bench of the Supreme Court decides the matter, and the fact that the adjudication regarding this matter has been pending for almost 17 years, is nothing but hazardous; meanwhile, the courts in Pakistan are routinely applying the principles of Sec. 4, entitling heirs to a share in the propositus’ property, openly opposing the word of Allah and his Prophet (pbuh). An ordinary citizen of Pakistan has every right to ask the supreme judiciary of Pakistan to bring about a transparent standpoint regarding this matter of immense importance. The latter’s stagnancy over this issue is not only disappointing but also hypocritical as a pending adjudication for 17 years clearly depicts the fact that resolving this contention concerning a vital aspect of Islamic law is not on their agenda, whereas they profess to be the bearers and protectors of Islam and Sharia. The Shariat Appellate Bench of the Supreme Court, therefore, should take this matter to be as one of immense importance and urgency and should conclude the pending adjudication, bringing certainty and clarity to the subject once and for all.

———-

References:

[1] Al- Quran [4:11]; [4:12]; [4:33]; [4:177].
[2] Re-inventing the Islamic Law of Inheritance: The Share of Orphaned Grandchild in Islam and Pakistani Legal System by Dr. Muhammad Munir
[3] [Allah Rakha vs Federation of Pakistan] – PLD 2000 FSC 1.
[4] PLD 1986 SC 228.
[5] Ibid footnote 3, para 52.
[6] PLD 1983 Lahore 546.
[7] Ibid footnote 2.
[8] Sahih Bukhari, Hadith No. 724, Vol. 8, P. 477.
[9] Sahih Bukhari, English, Vol. 8, P. 479
[10] Ibid footnote 2.
[11] Ibid footnote 3, para 46.
[12] Ibid footnote 3, para 52.
[13] Ibid footnote 2.
[14] Translation by Sahih International.
[15] Art. 203D(3)(a) of Constitution of Pakistan.
[16] Ibid footnote 3.
[17] CLC 2007 PESHAWAR 1787
[18] [SCMR 2015 869]; [MLD 2015 PESH 652]; [YLR 2014 LAHORE 301]

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Hashaam Qaiser

The writer is a law graduate of the University of London and is currently working as an Associate in 'Khan and Muezzin Barristers, Advocates and Legal Counsels.



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