Background:

After the partition of India in 1947, the legislation relating to Muslim family law introduced in
British India continued to govern personal status. A seven-member Commission on Marriage and
Family Laws was established in 1955 with a remit to consider the personal status laws applicable
in the new state and determine the areas needing reform. The Commission submitted its report in
1956, suggesting a number of reforms. The Muslim Family Laws Ordinance 1961 adopted some
of the provisions of the Report of the Marriage and Family Laws Commission, aiming to reform
divorce law and inheritance law relating to orphaned grandchildren, introduce compulsory
marriage registration, place restrictions on the practice of polygamy, and reform the law relating
to dower and maintenance in marriage and divorce, as well as to amend existing legislation with
relation to marriage age.
In early 50’s, pressure was built by a sizeable portion of society regarding the rights of women in
a man dominated society. All Pakistan Women Association which contended to be the
representative organization of women urged that amendments be made in the laws prevailing at
that time as regards to the succession and marriage etc. APWA was also struggling for the rights
of women in Pakistan. So the promulgation of MFLO 1961 was considered to be a major
achievement in this regard.

Critics:
Since 1961, from the date of adoption of MFLO there are differences of opinion among the
persons. Some of them supported such enactment and some of them denied. The persons who
opposed the law are known as traditionalists and the others are modernists. The traditionalists
claim that this enactment is against the express commandments of Quran and Sunnah.

Effects of Muslim Family Laws ordinance:

Pakistan brought a major change in 1961 by section-4 of the Muslim Family Laws Ordinance
.Section 4 of the Muslim Family Laws Ordinance, 1961 has given a right to the heirs of a pre-
deceased son to inherit the share of their father in the property of their grand father.
Section-4 the MFLO’1961 affects the fundamental principles of Muslim Law of Succession.In
Islamic Law of Succession, the matter of inheritance by grandchildren from predeceased child of
deceased stands on a critical position. By the rule of traditional succession law any son of the
deceased excludes such grandchildren generally. But now Section 4 has brought some changes as
to such traditional rule for the benefit of such grandchildren which works as shields from total
exclusion.

ORPHAN GRANDCHILD’S RIGHT UNDER SHARIA LAW:

Islamic Law of Succession is based on two fundamental principles as follows
· Exclusion based on hierarchy of degree
· Nearness of relationship
In maintaining such principles in certain circumstances the children of predeceased child of a
deceased person could not get property under Sharia Law of inheritance. It means that if a person
has two sons. One son dies before his father's death, when succession opens after death of such
person, the children of such son who died before the death of father, would get no share in property
of grandfather. Only the alive son will get share in the property. But this rule has been overridden
after the application of Section 4 of MFLO. Now the children of pre-deceased son gets share in the
property as if there father were alive.

SECTION-4 OF THE MFLO’1961:

This law was passed on the basis of a report given by the Commission on Marriage and Family
Laws. Commission was formed by the then Government of Pakistan on 4th August 1995. The
main task of the Commission was to analyze the family law provisions. The Commission although
was not asked or authorized to make recommendations regarding the problem of succession of
orphan grandchild, it suggested to incorporate the rule of representation. The arguments of the
Commission behind suggestion of incorporating representation rule were as follows:
Basis of exclusion:
Rules of exclusion is strictly followed in Islamic Law of Inheritance and the Commission claimed
that there is no Quranic provision or Hadith which excludes an orphan grandchild and existing rule
of exclusion taken from the customs of then Arab society before the advent of Islam.
Doctrine of representation:
The section 4 of MFLO introduced the Doctrine of Representation, thus to say that, the children of
pre-deceased son represents their father. They will get only the shre to which their father was
entitled if he were alive.
Validity:
The Federal Shariat Court has declared this section repugnant to Islam through its judgement
reported as PLD 2000 FSC1 with effect from 31.3.2000. But an appeal against the judgement of
the Federal Shariat Court is pending before the Shariat appelate Bench of the Honourable Supreme
Court.
According to proviso of section 203D (2) of the Constitution of Pakistan 1973, the decision of
Federal Shariat Court shall not be deemed to take effect before expiration of the period within
which an appeal therefrom may be preferred to the Supreme Court or where an appeal has been so
preferred before the disposal of such appeal.
Hence in Allah Rakha and others v. Federation of Pakistan and others , in which section 4 has
been declared repugnant to Islam by this hon’ble court, the appeal is still pending in Shariat
Bench of Supreme Court, and the section 4 of MFLO continues to carry same effect as also
declared by Supreme Court in Muhammad Ali and others v. Muhammad Ramzan and others and
in the case of Fazeelat Jan and others v. Sikandar through his Legal Heirs and others.
Scope:
According to section 4, the share from the deceased grandfather’s property has been bestowed
upon the children of his predeceased son but this does not mean that the order heirs of the
deceased would be excluded from their share of inheritance. This section does not override the
law of sharia and consequently, the parties will not get more than their share in the property in
accordance with law of sharia.
The succession provided for in section 4of the ordinance is for the benefit of the orphaned sons
and daughter of predeceased parent under Muslim Family Laws Ordinance,1961. It was meant
to remedy the discrimination which was believed to exist against grand children whose parent
had died before the succession opened. The law provides that the parents of such a grand
children will be deemed to be alive for the purpose of succession.
The purpose of enacting section 4was to cater the need for grandchildren to remove their
sufferings but this provision cannot be interpreted in a manner effecting the shares of other
descendants in the property in accordance with law of sharia.
Under the Islamic sharia, the predeceased son is not entitled to any inheritance as only the
survivors to a deceased are entitled to the inheritance. But in term of section 4 of the Muslim
Family Laws Ordinance, 1961 a grandson is entitled to inherit from the estate of his grandfather
in lieu of his deceased father. A grandchild shall inherit in estate of his/her grandfather
according to his/her share under Muslim law in the entitlement that his/her predeceased father
would have in the estate of his/her grandfather. Grandson is entitled for receiving shares which
his father/mother would have inherited if he/she has been alive at the time of opening of
succession. Grandchildren, therefore, can inherit the share of the predeceased father from their
grandfather.

Retrospective effect:
Section 4 of Muslim Family Laws Ordinance, 1961 is prospective in nature and cannot be given
retrospective effect to undo or reopen inheritance already concluded under Muhammedan Law
prior to promulgation of Muslim Family Laws Ordinance, 1961. Muslim Family Laws
Ordinance, 1961 has no retrospective effect and cannot be applied to the events happening
before its promulgation. Provisions of section 4 are not applicable retrospectively but are
effective from the day when Muslim Family Laws Ordinance, 1961was promulgated.

Opening of Succession:
It is an established principle of Muslim Law that succession of a Muslim opens the moment he
dies and same is neither dependent nor suspended till or non-happening of certain event.

Meaning of per stripes:

Term per stripes means a share per head. It was held that section 4 has been added to Fulfill the
needs of grandchildren and to remove their sufferings but it cannot be interpreted so as to
decrease the share of other descendants. It was then observed that according to the said
provisions a share from the deceased grandfather property has been bestowed upon the children
of predeceased son or daughter but this does not mean that other heirs of the deceased would be
excluded from their share of inheritance. It was finally observed that grandchildren are not
entitled to more share than what could be inherited from the parents according to Islamic law,
consequently estate would be divided in proportion of the respective shares their parents and
heirs claiming through different line of descent would get their own share per stripes.
Claim of inheritance:
Non-challenging of the mutation by the mother during her lifetime does not subsequently debar
the children from claiming the share of inheritance of their father that vested in them, the
moment the propositus died.

Share of daughter:
Where deceased has only one daughter then such daughter of the pre-deceased son would inherit
1/2 share from the property of her father while remaining share of her father would go to other
collateral means cousins.

Share of daughter and wife:

Daughter, if assumed not to be traceable or to have died before deceased, would be entitled to
her share in land left deceased, would be entitled to her share in land lift by deceased. Wife, if
died before death of her husband, would not receive any share in land lift by him.
Granddaughter of the propositus is entitled to the share equivalent to the one which her deceased
father would have received, if alive, at the time of opening of succession, therefore, she is
entitled to 1/2 share of the propositus property, which her pre-deceased father would have
inherited, if he had been alive. Widow of the propositus is entitled to 1/2 share and the rest
would go to the relatives according to the law of inheritance.

Widow is not entitled to receive share:

This section relates to and deals with the right of inheritance of the issues of the predeceased son
and daughter. It provides that if a person dies and leaves behind issues of such of his sons or
daughters who were dead in his life time, the issues of the deceased sons or daughters will be
entitled to inherit the shares that their father it the mother would have inherited had they been
alive at the time of death of that person. The object and rational behind this provision is to
ameliorate the distress of those unfortunate children whose father and mother are snatched away
by death in the life of their grandfather. Such orphan grandchildren are sought to be
compensated in such a way by giving the share in inheritance to which their father or the mother
would have been entitled. The express and unambiguous phraseology and language of the
provision of law leaves no obscurity or doubt that the “children of such son” are only entitled to
inherit and receive share which expression does not possibly within its ambit include the widow
“of such son”. Thus, only the son is entitled to receive the share.
The true interpretation of section 4 of the Muslim Family Laws Ordinance, 1961would be to
entitle the children of predeceased son or daughter to claim inheritance of the propositus and that
the widow of the predeceased son is not so entitled.

Distant Kindred:
Distant kindred only inherits when there are no residuaries. Once it is established that the
deceased had left as his heirs the shares and residuaries, there will be no occasion for inheritance
being claimed from the estate of the deceased by a distant kindered. Person claiming inheritance
admittedly being son of predeceased sister is a distant kindred and in the presence of sharer the
residuaries will not inherit from the estate of deceased when relationship of the claimant with
deceased is admitted and his place in the matter of inheritance is determined. Such place by
means of analogy to section 4, Muslim Family Laws Ordinance, 1961cannot be changed as he
will remain what he is.
Provisions of section 4 of Muslim Family Laws Ordinance, 1961 are applicable to a specific
category or class of legal heirs I.e. sons and daughters of deceased which cannot be applied to
the son of predeceased sister of deceased. Sons and daughters of predeceased sister come in the
third category of legal heirs. I.e. distant kindred. Shares out of assets at first are to be consumed
by the sharers and left over to be consumed by the residuaries and if there are no residuaries then
same have to revert back to the sharers. If sharers and residuaries are available then distant
kindered are not entitled to share under Islamic law.

Share of daughter of daughter of son:

Original owner of property predecessor in interest of the parties, died leaving behind two
widows. First widow had only one son, while second one, had two sons. One son of second
widow died leaving behind a daughter who also died leaving behind one daughter. Plaintiff, the
only son of first widow of original owner was consanguine brother of deceased son of second
widow, who died without leaving behind any male issue at the time of his death. Granddaughter
of deceased son of original owner, would stand for her mother, the daughter of deceased son, as
deceased did not have any son. Predeceased daughter would get 1/2 share from her father under
section 4 of Muslim Family Laws Ordinance, 1961, but her daughter, would get 1/2 share from
the inheritance of her deceased mother, and not the whole. Section 4 Muslim Family Laws
Ordinance, 1961, would not increase said daughter share, her entitlement would come down to
1/4 in the total legacy of her deceased grandfather and 3/4thereof would go to plaintiff/only son
of first widow of original owner, being consanguine brother of deceased, who died without
leaving behind any male issue. Impugned inheritance mutation was cancelled, so was the result
of all subsequent mutations attested on the basis of said inheritance mutation under the doctrine
of ‘lis pendens’. Impugned judgments and decrees of the courts below, were set aside and suit
filed by the plaintiff was decreed, in circumstances.
Arguments in Favor of Section 4:
In short, Family Laws in Pakistan which recommended 1961 legislation gave the following reasons
and arguments for inheritance of the children of predeceased father:
• There is no Quranic verse or authoritative Hadith which excludes orphaned grandchildren
from inheriting their grandfather’s property.
• The exclusion was based on pre-Islamic practice, which gave all property rights to male
members capable of carrying arms to defend the interest of the tribe or the family, and
assumption that economic security of the female members would be taken care of by the
male members, although Holy Qur’an and Sunnah later recognized many property rights of
the women.
 • The Qur’an has time and again expressed great solicitude for the protection and welfare of
the orphans and their property. Any law depriving them of inheriting their grandfather’s
property would go entirely against the spirit of the Qur’an.
Conclusion:
To conclude it, we can say that promulgation of section 4 of MFLO protected the orphans from
exploitation. Orphans are vulnerable and are often left helpless. Now as they have got the right to
inheritance in their grandfather's property, they can fulfill their needs upto some extent.