The Share of Orphaned Grandchildren under Islamic Law and Pakistani Legal System: A Re-evaluation of Representational Succession in Section 4 and Its (Mis)interpretation by Courts
The Asian Yearbook of Human Rights and Humanitarian Law, Vol. 2 (2018), pp. 95-116
27 Pages Posted: 12 May 2014 Last revised: 19 Dec 2018
Date Written: December 18, 2018
The issue of the share of a grandchild under section 4 of the Muslim Family Laws Ordinance 1961 has been hotly debated since its inception. The article ignites the old debate mainly to re-evaluate the arguments of its (non) Islamicity according to orthodox Islamic law as well as the Federal Shariat Court and to critically analyse the (mis)interpretations of this section by the different High Courts and the Supreme Court of Pakistan over the past several decades. The major findings are that the vast majority of Muslim, as well as some non-Muslim scholars, consider representational succession as a re-writing of the Islamic law of inheritance; that interpretation of section 4 by the superior courts in Pakistan amounts to the situation as if the Ordinance had not been enacted; that experts in this field prefer ‘obligatory bequest’ over representational succession but the option of bequest has too many hidden problems. By arguing that obligatory bequest is not a good alternative to representational succession, the article recommends that the state should fulfil its responsibility of taking care of orphaned grandchildren in the society and such a sensitive responsibility should not be shifted to individuals through legislative or judicial manoeuvring.
Keywords: Grandchild, MFLO 1961, Share of Grandchild, Grandchildren, Islamic law of Inheritance, Islam, Pakistani Legal System, Representational Succession, Obligatory Bequest, Judiciary, Peshawar High Court, Lahore High Court, Supreme Court of Pakistan
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