Section 4 of Muslim Family Laws Ordinance 1961, Pakistan: An Exploration

of Interpretive Tensions
Dr Shahbaz Ahmad Cheema*

Abstract: Section 4 of the Muslim Family Laws Ordinance (MFLO) in Pakistan is a benevolent
legal provision for the inheritance rights of the children of predeceased children of propositus
who are disinherited under classical Islamic law of inheritance. However, after the lapse of more
than six decades since this enactment, no uniform and coherent formulae have been devised to
construe and apply it. Many interpretive tensions have arisen during the course of its application
by the judiciary which the present article explicates. The foundational tension was created when
a class of non-legal heirs was converted into legal heirs and transposed on a self-contained
scheme of classical Islamic law of inheritance. The enactment of the Muslim Personal Law
(Shariat) Application Act 1962 also contributed to engendering of interpretive tensions.
Furthermore, the judiciary’s concern for the disinheritance of orphaned grandchildren under
classical Islamic law of inheritance, if the Section 4 is not followed, manifests its own potential
for interpretive tensions. The paper argues that the construction of the Section 4 by the judiciary
is characterised by two considerations: the first is Islamic transformation of the provision, and
the second is a will to protect orphaned grandchildren’s interest under the Section 4.

Keywords: Dis/inheritance of Orphaned Grandchildren; Obligatory Bequest; Representational

Succession; Muslim Family Laws Ordinance; Pakistani Judiciary

I. INTRODUCTION

The issue of disinheritance of orphaned grandchildren dates back to pre-Islamic customs of

Arabia, and the Prophet Muhammad might have been excluded by his uncles from the estate of
his grandfather.1 Many such customary practices on inheritance, particularly the rules relating to
residuaries, are adopted by Sunni law of inheritance.2 The children of predeceased son of a
propositus are excluded to have any share in presence of their paternal uncles under classical
Islamic law of inheritance as expounded by all schools of thought. 3 The position of the children
of daughter is more precarious as they are originally treated as distant kindred under Sunni law
of inheritance, and in case of a daughter predeceases her parent, her children are not entitled to

* Professor, University Law College, University of the Punjab, Lahore. Email: shahbazcheema@ymail.com
1
J. N. D. Anderson, ‘Recent Reforms in the Islamic Law of Inheritance’ (Apr., 1965) (14)2 The International and
Comparative Law Quarterly, 349-365, 356.
2
The phrase ‘Sunni law of inheritance’ refers to all Sunni school generally and particularly to Hanafi law of
inheritance in this article. There are some notable differences between Hanafi and Maliki schools, so the latter is
never intended throughout the article.
3
Kemal Faruqi, ‘Orphaned Grandchildren in Islamic Succession Law: A Comparison of Modern Muslim Solutions’
(September 1965) (4)3 Islamic Studies 253-274, 253.

Electronic copy available at: https://ssrn.com/abstract=4388281

anything from their maternal grandparent in presence of any sharer or residuary.4 In Pakistan, the
Section 4 of the Muslim Family Laws Ordinance 1961 (MFLO) reformed the classical
perspective on disinheritance of the children of predeceased children, both daughter and son, of a
propositus and introduced the principle of representation,5 in preference to the obligatory bequest
as adopted by many other Muslim countries with some variations.6

The experience of Pakistan with the Section 4 of MFLO could be termed as ambivalent to say
the least. At the beginning of this provision, the legislative authority intended to benevolently
grant the share of deceased parents to their orphaned children from the estate of the latter’s
grandparent. This exceptional arrangement under the MFLO was soon followed by the Muslim
Personal law (Shariat) Application Act 1962 (hereinafter Shariat Act) that provided for the
application of classical Islamic law of inheritance. Both the legislative instruments were part of
the constitutional structure that tilted towards Islamisation under the Constitution of 1962 and
others that replaced it. The Shariat Act was a blanket permission to apply the uncodified Islamic
law in the field of family law including intestate succession, and hence, it had a revivalist tenor.
Conversely, the Section 4 was a reformist enactment intended to depart with the inheritance
structure sanctified by classical Islamic law of inheritance. The exceptional nature of the Section
4 of the MFLO in the legal domain that characteristically refers to Islam as an important source
of law has significantly impacted the mis/interpretation of the provision. Conflict of values
orchestrated by the enactment of the Section 4 of MFLO on the one hand, and Islamisation drive
on the other hand are to account for constricted and at times amorphous nature of interpretation
of Section 4.

The characteristic indeterminacy on the part of the legislature as manifested by the above
legislative instruments was translated into the interpretation and application of the Section 4 by
the judiciary. During the course of the application of the Section 4, the judiciary has espoused
and raised a number of interpretive tensions. Majority of such tensions are product of similar sort
of ambivalence on the part of the judiciary that have been highlighted with respect to the
legislature in the preceding paragraph that the former intends to be reformist and revivalist in the
same breath.

The article explores and analyses the interpretive tensions generated by the judiciary. In addition
to the introduction and the conclusion at the end, the article is divided in three sections. The next
section deals with the academic debates on representational succession of orphaned

4
Lucy Carroll, ‘Orphaned Grandchildren in Islamic Law of Succession: Reform and Islamization in Pakistan’(1998)
(5)3 Islamic Law and Society 409-447, 410; Shahbaz Ahmad Cheema, Islamic Law of Inheritance: Practices in
Pakistan (Islamabad: Shariah Academy 2017) 125-133. The sole exception to the above statement is that of the
spouse relict.
5
Section 4 of MFLO says, “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.”
6
Anderson (n 1) 358-359; Lucy Carroll (n 4) 411.

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grandchildren in Pakistan. Thereafter, the role of the judiciary is analysed in two different
sections. One of them explores the scope of the Section 4 as determined by the judiciary and its
impact on the inheritance rights of other legal heirs. The other section dealing with the role of the
judiciary analyses the retrospective application of the MFLO in some important cases. Both these
sections are founded on two different but linked considerations which I will explain in the
concluding part of the next section.

II. DABATES ON REPRESENTATION SUCCESSION OF ORPAHNED

GRANDCHILDREN

In comparative analysis of obligatory bequest and representational succession as developed by

Pakistan under the Section 4 of MFLO, Faruqi preferred the latter as it was designed to
strengthen the direct lineal order from generation to generation. Conversely, the former suffered
from the vice of converting a voluntary instrument into an obligatory one and that too by
curtailing the space available to a testator for fulfilling those desires which he couldn’t
materialise during his life.7 The Commission on Marriage and Family Laws that introduced the
idea of representational succession also deliberated on the concept of obligatory bequest, but
dismissed it as being incapable of doing complete justice to orphaned grandchildren. 8 The
Commission’s preference for representational succession was also informed from the customary
law that had been followed in the western province of Pakistan (now Bangladesh) in which some
deceased relatives were represented by their heirs.9 Additionally, the practice of making wills
was “virtually unknown in customary law”.10 There are many who have criticised the Section 4
of the MFLO because it significantly interferes with an established system of classical
inheritance law and causes serious repercussions for the entitlements of sharers and residuaries.11

Anderson termed the Section 4 of the MFLO as straightforward and practical, but at the same
time cautioned that its application might cause complications. 12 Coulson regarded the scheme of
representational succession as ‘systematic and comprehensive’. 13 However, he cautiously
pointed out that some aspects of the MFLO might have anomalous consequences. For instance, if

7
Kemal Faruqi, ‘Orphaned Grandchildren in Islamic Succession Law: A Comparison of Modern Muslim Solutions’
(September 1965) (4)3 Islamic Studies 253-274, 253.
8
‘Report of the Commission on Marriages and Family Laws’, The Gazette of Pakistan, Extraordinary, Karachi, 20
June 1956, 1197. The report is also reproduced in Khurshid Ahmad, Marriage Commission Report X-Rayed
(Karachi: Charigh-e-Rah Publications 1959).
9
Lucy Carroll, ‘The Pakistan Federal Shariat Court, Section 4 of the Muslim Family Laws Ordinance, and the
Orphaned Grandchild’ 2002 (9)1 Islamic Law and Society 70-82, 72.
10
ibid 72.
11
Ahmad (n 8); Muhammad Taqi Usmani, Humaray Aaili Masail (in Urdu) [Our Family Issues] (Karachi: Darul
Ashayat 1963); Tanzilur Rahman, Muslim Family Laws Ordinance: Islamic & Social Survey (Karachi: Royal Book
Company 1997). For an academic summary of critical voices and their perspectives, See Muhammad Munir, ‘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’(2018) 2 The Asian Yearbook of
Human Rights and Humanitarian Law 95-116.
12
Anderson (n 1) 356.
13
N. J. Coulson, A History of Islamic Law (Edinburgh University Press 1964) 145.

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the Section 4 is applied literally it may cause an abnormality that a paternal granddaughter is
placed on a much higher position than a daughter in excluding the male agnates. 14 Furthermore,
the strict application of the Section 4 substantially reduces the shares of sharers and residuaries
in presence of maternal grandchildren, who under classical Islamic law of inheritance are distant
kindred.

It is pertinent to point out that the Commission on Marriage and Family Laws was of the view
that the manner of representational succession is Islamic by all means as it was an outcome of
the exercise of Ijtihad that was warranted by special circumstances of the orphaned
grandchildren. There is nothing in the Quran nor Sunnah of the Prophet Muhammad that
explicitly sanction the disinheritance of orphaned grandchildren from their grandparent. 15 The
exclusion of orphaned grandchildren was founded on a pre-Arabian custom that crept into
Islamic law.16 The Quran ordains for the protection and welfare of orphaned grandchildren and
any rule that deprives them from their due share is “entirely against the spirit of Holy Quran”. 17

The Commission made a vigorous effort, through its concise and compact report on this issue of
disinheritance of orphaned grandchildren, to convince all other stakeholders including legislature
and judiciary which were relevant to full materialisation of the innovative proposal of
representational succession that awarding the share of predeceased child to his/her children
should not be perceived as contrary to Islamic law. However, the belief in Islamic nature of
representational succession as entertained by the Commission was not shared by the superior
judiciary as the analysis in the article unfolds, and soon after the enactment of the MFLO, the
judiciary started to point out the exceptional nature of the Section 4. Moreover, the legislature
espoused from the very beginning a characteristic apprehension that various provisions of the
MFLO would not survive the judicial review on the basis of the fundamental right to profess
one’s religion as incorporated in the Constitution of 1962 and others that followed it. That is why
it had been keeping the MFLO in the list of protected statutes that could not be challenged on the
ground of fundamental rights.18

Lucy Carroll has given an impression that the Islamisation drive under President General Zia ul
Haq’s regime (1977-1988) has been exclusively responsible for departing away from ‘strict
construction’ of the Section 4.19 As per Carroll’s perspective, the strict interpretation was more in
line with the true meaning and spirit of the provision as well as more beneficial to the orphaned
grandchildren than other constructions (‘loose construction’ and ‘very loose construction’). 20
However, it is pertinent to point out that the confusion about the Islamic nature of the Section 4
was entertained by the judiciary even during President General Ayub’s period who was the
14
ibid 157.
15
Ahmad (n 8) 79.
16
ibid 80.
17
ibid 80.
18
Rahman (n 11) 46.
19
Carroll (n 4).
20
ibid (n 4).

Electronic copy available at: https://ssrn.com/abstract=4388281

architect of the MFLO and the courts did not hesitate to express that the provision was not
standard or ideal law from Islamic perspective, but rather an exception or departure from general
law of inheritance.

In Banaras Khan v Bahadur Shah,21 the court noted “Section 4 is a special departure from the
general law and is applicable only to the sons and daughters of the pre-deceased sons and
daughters”.22 In this case, the court was approached with a plea that the implications of the
Section 4 should be extended to the son of predeceased sister. The court could have refused such
extension merely on the ground of literal construction of the provision. Nevertheless, the court
thought it appropriate to highlight the exceptional and special nature of the Section 4 from
general law, i.e., Islamic law of inheritance.

In Saeed Ahmed v Mahmood Ahmed,23 the court had to decide on the appointment of legal
representatives of deceased Ghulam Fatima for the possession of a residential house by
redemption of the mortgage. And one of the questions was whether predeceased son’s heirs
including the petitioner Saeed Ahmed could be considered as legal representative or not? The
petitioner was Muslim, but not a citizen of Pakistan. The court held that the MFLO was only
applicable to Muslim citizens of Pakistan. Irrespective of the correctness or otherwise of the
conclusion, the observations of the court are noteworthy. It observed that the Section 4 was in
“the nature of a departure from accepted Muslim law of inheritance”. It further pointed out that
“it is not necessary that all Muslims residing in Pakistan, irrespective of their nationality, should
be governed by this Ordinance [MFLO], on the contrary the presumption would be that they
would be governed by the ordinary Muslim law of inheritance, as that is the law of the land in
Pakistan is so far as the general body of Muslims is concerned”. So, in line with the above
referred case, the court portrayed the Section 4 as an exception to Muslim law of inheritance.

It is pertinent to note that the lower appellate court in Zarina Ja v Akhbar Jan24 held that while
giving share to the children of predeceased child (i.e., predeceased’s daughter), the Section 4 had
not ousted the entitlements of other legal heirs (i.e., predeceased’s sister) under Islamic law. This
is exactly that perspective which is termed as loose construction by Lucy Carroll. It implies that
the seeds of exceptionality and alienness of the Section 4 were sown well before Zia’s period that
some attempts to Islamically transform the Section 4 were in the process of being matured.

The present article has time and again referred to the terminologies primarily coined Lucy
Carroll. So, it seems appropriate to explain those terminologies before moving ahead. According
to Lucy Carroll, the Section 4 has been construed in three different manners. The first is termed
as ‘strict construction’25 that is informed by the decision of Peshawar High Court in Zarina Jan v

21
PLD 1965 W.P. (Rev.) 68.
22
Italics have been added for the purposes of emphasis.
23
PLD 1968 Lah 520.
24
PLD 1975 Peshwar 252.
25
Carroll (n 4) 420-422.

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Akhbar Jan.26 This approach is a literal interpretation of the Section 4 that only considers the
orphaned grandchildren as exclusively entitled to the supposed share of their predeceased’s
father/mother (i.e., predeceased son/daughter of a propositus), and does not give anything from
that share to other legal heirs. The second is regarded as ‘loose construction’ 27 which is mainly
shaped by Zainab v Kamal Khan28 and its precursor in the Lahore High Court.29 This approach is
characteristic of granting the orphaned grandchildren to the extent of their Islamic law
entitlement in addition to accommodating other legal heirs of the predeceased child to inherit
from the latter. The last one is ‘very loose construction’ 30 and its standard illustration is the case
of Karachi High Court titled Muhammad Fikree v Fikree Development Corporation.31 This
construction forecloses the applicability of the Section 4 in those circumstances when the
orphaned grandchildren are otherwise entitled to inheritance under Islamic law.

The Section 4 was not enacted in a legal vacuum. It was legislatively enforced in a legal arena
where a mixture of customary and Shariah oriented rules were in vogue: the orphaned
grandchildren were deprived on the basis of the latter rules. Furthermore, the enactment of the
Section 4 was not the conclusive and final event in the relevant field: any subsequent legal
change might have consequences for its scope and applicability. Approximately after a year and
half of the MFLO, the Shariat Act was introduced. The Shariat Act was brought into effect with
an aim to extend legislative sanctity to the uncodified rules of classical Islamic law on various
areas of family law including inheritance. Under the sway of reformist approach sanctified by the
MFLO, one may risk interference and curtailment of the rights of other legal heirs. On the
contrary, under the revivalist tenor invigorated by the Shariat Act, one may end up stepping
behind from the full realisation of the literal import of the Section 4 of the MFLO. In such a
situation, the competition between conflicting values is likely to happen that becomes a major
source of interpretive tensions.

For the purpose of clarity, there is no specific provision in the Shariat Act as it was originally
enacted that confined the scope of the Section 4 of MFLO in explicit terms. The Section 4 was
for one eventuality, and the rest would have to be dealt with under the Shariat Act. Furthermore,
after the amendment introduced in the Shariat Act in 1983, nothing was specifically added that
impacted adversely the scope of Section 4. However, both these laws were meant to be applied in
the same field and full application of the one was bound to have impact on the other. Therefore,
the judiciary as an interpretive custodian of constitutional structure of Pakistan that is inspired by
Islamic texture entered into the domain of ascertaining as to what extent the Section 4 should be
allowed to modify the classical Islamic law of inheritance.32

26
PLD 1975 Peshawar 252.
27
Carroll (n 4) 422-424.
28
PLD 1990 SC 1051.
29
Kamal Khan v Zainab PLD 1983 Lahore 546.
30
Carroll (n 4) 424-425.
31
PLD 1988 Karachi 446.
32
Iqbal Mai v Falak Sher PLD 1986 SC 228.

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The judiciary’s approach with respect to the application of Section 4 is anchored by two
considerations: the first is that the Section 4 is originally an affront to the classical Islamic law of
inheritance, and therefore, its impact should be confined to the minimum extent possible. The
next section of the article is demonstrative of this consideration. Secondly, the judiciary is not
indifferent to the plight of the orphaned grandchildren in case of non-application of the Section
4, and that is why it has made efforts to beneficially accommodate them despite the death of their
connecting link with propositus. The penultimate section highlights the second consideration in
context of the retrospective application of the Section 4. Both these considerations are often in
conflict with each other. Hence, this conflict is noticeable in the judicial pronouncements.
Conflicting considerations are not likely to produce a homogenous and coherent jurisprudence.

Some other aspects have additionally contributed to the anomalous application of the Section 4.
The phraseology employed by the provision is another fertile source of interpretive tensions.
Once a law is enacted, it is the judicial organ that has to deal with it in terms of interpretation and
application. Any laxity on the part of a legislative body during the course of an enactment may
put the judiciary on trial as to how that particular provision or legal domain is construed and
applied harmoniously. The judiciary presumes that the legislative organ enacts a law that is
internally coherent and externally in harmony with other laws applicable in the same field.
However, such pious attributions simpliciter are not potent enough to prevent the emergence of
interpretive tensions. At this juncture, the judiciary plays its part by trying to address them, and
in this effort, its decisions either rectify some or become source for some other interpretive
tensions. The next two sections unfold and confirm these observations. The analysis in those
sections is founded primarily on case-law pronounced by the superior judiciary in Pakistan.

III. SCOPE OF THE SECTION 4

The exact scope of the Section 4 of the MFLO has been debated by the courts since its inception.
We notice different perspectives on: who would become beneficiary? Is this provision is
confined to children of predeceased son/daughter or other legal heirs of the predeceased either by
way of marriage or blood, e.g., widow/er or residuaries, would also have share? If the Section 4
is construed literally, the children alone are given benefits, but if it is interpreted in context of
constitutional imperative of Islamisation along with the Shariat Act, its scope and meaning is
transformed to extend the inheritance rights to other legal heirs of predeceased child not
specifically mentioned in the Section 4. The first approach is termed as ‘strict construction’ and
the second as ‘loose construction’ by Lucy Carroll.33

The MFLO was enacted with a specific intent, and the phraseology employed by the Section 4 is
demonstrative of that object and purpose. Soon after the promulgation of the MFLO, Pakistan
incorporated the provisions relating to Islam in its Constitution of 1962 in addition to the
enactment of the Shariat Act that engendered conflict of values. On the one hand, the reformist

33
Carroll (n 4).

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trend was prominent in the MFLO. On the other, the overarching legal system was more inclined
toward Islamic imperatives. In this atypical mixture of values, the question before the judiciary
was that whether fidelity should be maintained with the literal construction as well as the
objectives of the Section 4 exclusively and the children of a predeceased child should be
benefited and none other or a space should be carved out for the application of Islamic law of
inheritance to the maximum degree. So, in addition to giving benefits to the children of
predeceased child, the rights of other legal heirs of predeceased child, e.g., spouse and
residuaries, should also be taken into consideration.

A sort of tension and confusion is perceptible in the decisions of the superior judiciary between
two different perspectives on the Section 4: one is inspired by the intention and logic of the
provision that its benefits should be extended to the children of predeceased child exclusively.
On the other, the second perspective is of the opinion that the Section 4 is for the benefits of the
deprived grandchildren to the extent of their entitlement under Islamic law and not beyond, but it
does not intend to interfere with the rights of other eligible legal heirs. As mentioned above, this
last perspective is inspired by Islamic constitutional imperatives and the Shariat Act. In addition
to this ongoing tension, we come across some decisions in which both abovementioned
perspectives are purportedly applied together. Some legal heirs of the predeceased child in
addition to his/her children are given their Islamic law share, e.g., the residuaries, but some
others, i.e., widow or widower, are deprived by again falling back on the literal approach to the
Section 4. Therefore, finding a consistent and homogenous approach on the Section 4, if it is not
impossible, is quite difficult.

The classic expression of the strict construction is embodied in Saabran Bibi v Muhammad
Ibrahim. 34 In this case, the predeceased son left behind one son and widow. The widow
afterwards married to one of the brothers of the predeceased son, and had children from that
marriage as well. On the death of the father of the predeceased son, the share of the latter in the
former’s estate was allotted to his son and widow (1/8) under the Section 4 of the MFLO. When
the widow disposed of that allotted 1/8 th share, it was disputed by the son of the predeceased son
that the widow (i.e., his real mother) was not originally entitled to that share, so, she could not
exercise such proprietary rights on that illegally allotted share. The court concluded the
controversy in favour of the son of the predeceased son and debarred the widow, and during the
course of arguments, it relied exclusively on the purpose of the Section 4 that was manifested by
its literal construction. The court in an emphatic manner held that “the express and unambiguous
phraseology and language of the provisions 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”. The same opinion was resonated by the same

34
2005 CLC 1160 [Lahore].

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court in another case titled Muhammad Hanif v Muhammad Ibrahim,35 that the widow of the
predeceased son is not entitled under the Section 4.

Before Islamabad High Court,36 the great grandchildren attempted to draw benefit of the Section
4. The court relying on the phraseology held that it is for the children of predeceased child and
does not include them in any manner. When this case was brought before the Supreme Court, 37
its approach manifests once again rhetoric fidelity to the literal construction of the Section 4 of
the MFLO. The apex court emphasised that the Section 4 is carefully crafted exception from the
traditional rules of inheritance and “it is not without significance that the Section does not refer
to the legal heirs of the predeceased son or daughter: the words used are ‘the children of such son
or daughter’ and not ‘legal heirs’. Quite obviously for the predeceased son or daughter to have
children they would have to have had a spouse, who could also be alive when the parent passes
away. Yet, any spouse is excluded from the applicability of s. 4.” The case was decided by a full
bench comprised of three judges including the incumbent Chief Justice of Pakistan, Umar Ata
Bandial. The decision as to its conclusion is irreproachable, and the manner of arguments
manifest purposive as well as literal approach confining an exception to its own delimited
boundaries. However, in a flow of argument, the author of the judgment alluded to the
disinheritance of spouse in explicit words that once again bring to the canvas a number of earlier
judicial decisions in which the other legal heirs including widow/widower of the predeceased
son/daughter have drawn benefit under the Section 4.

The present Chief Justice of Pakistan, as he then was, in Main Mazhar Ali v Tahir Sarfar38 held
that the widower of the predeceased daughter of propositus was entitled to his prescribed share
from the property devolved on the predeceased daughter. In this case, the court relied on two
decisions of the Supreme Court that would be discussed shortly. 39 In Sardar Muhammad v
Jantey,40 the widow of the predeceased son of the propositus was given her prescribed share
from her predeceased husband’s supposed share under the Section 4.

In a recently pronounced decision by Islamabad High Court, after analysing a number of

precedents, it was held that the widow did not come within the scope of the Section 4 of the
MFLO as it confined to children of the predeceased son and daughter. The court further opined
that the provision was an exception to Islamic law of inheritance; so, it should have been
construed strictly.41

35
2005 MLD 01 [Lahore].
36
2021 CLC 1821 [Islamabad].
37
Hassan Aziz v Meraj ud Din (Civil Petition No. 3011 of 2021)
<https://www.supremecourt.gov.pk/downloads_judgements/c.p._3011_2021.pdf> accessed 11 March 2023.
38
PLD 2011 Lahore 23.
39
Zainab v Kamal Khan PLD 1990 SC 1051; Bhaggay Bibi v Razia Bibi 2005 SCMR 1595.
40
1999 YLR 1928 [Lahore].
41
Shehnaz Akhtar v Zeenat Tariq PLD 2022 Islamabad 360.

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The Lahore High Court in Ghulam Haider v Nizam Khatoon 42 excluded the widow of the
predeceased son, who had two concurrent decisions in her favour from the subordinate courts, in
presence of his daughters by arguing that the Section 4 is for the benefit of the children of
predeceased son/daughter exclusively. The court, in this case, granted 2/3rd out of the share of the
predeceased son to the daughters and the remaining 1/3rd was diverted towards the residuaries. It
is perplexing to note that on the one hand, the court deprived the widow, and on the other, it held
the residuaries to be entitled. This logic is indefensible: either the court should have deprived the
both, i.e., the residuaries and the widow, or it should have given proportionate shares to the both.
Under classical Islamic law of inheritance, the widow is sharer and her share is more secured
than any residuary. In the present case, this priority was turned upside down. This anomalous
approach partially applies the both strict construction and loose construction simultaneously in
one case.

The court assumedly relied in the above decision, on Kamal Khan v Zainab 43 which was
confirmed by the Supreme Court on appeal. 44 The court in the first mentioned case argued that
the Section 4 of the MFLO is for the benefit of the grandchild whose parent has predeceased his
grandparent to remedy the discrimination in traditional Muslim law of inheritance, but it could
not be construed to give the grandchild more share than he would have been entitled if his parent
was alive. The court further held that the rule of per stripes cannot be given meaning that
militates against the Islamic law of inheritance. The division bench of the apex court while
hearing the same controversy in appeal confirmed the arguments extended by the high court. In
addition to the line of reasoning developed by the high court, the apex court noted that, despite
non obstante clause, the Section 4 of the MFLO is to be read in conformity with the Section 2 of
the Shariat Act. At the time of enactment, the legislature presupposed that a legislative measure
would “operate fairly, justly and equitably, not unreasonably.” Resultantly, the Section 4 is not
meant to increase one’s shares from those that are prescribed under Islamic law by placing literal
reliance on the wordings and phraseology of the provision. Further, the Section 4 should not be
construed against the interest of other heirs who are eligible to inherit under Muslim law of
inheritance.

Zainab v Kamal Khan’s approach was executed by three members’ bench of the Supreme Court
in Qabal Jan v Habab Jan.45 In this case, the deceased left behind three heirs: widow, daughter
and predeceased son’s daughter. The widow of the deceased was given 1/8 (3/24), the daughter
7/24, and the remaining 14/24 (which was calculated by notionally considering the predeceased
son as alive on the death of propositus) was claimed by the predeceased son’s daughter under the
Section 4 of the MFLO. The court repelled her claim and awarded her 7/24 out of 14/24, while
other 7/24 was divided among the predeceased son’s mother (i.e., the widow of propositus) to the

42
2002 YLR 3245 [Lahore].
43
PLD 1983 Lahore 546.
44
Zainab v Kamal Khan PLD 1990 SC 1051.
45
1992 SCMR 935.

10

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extent of 1/6 (which became 7/144), and the sister (i.e., the daughter of propositus) was held to
get the residue (that amounted to 35/144).

In the abovementioned case, inheritance was calculated twice: first, the predeceased son was
considered alive, and the estate of propositus was distributed among the latter’s heirs, i.e.,
widow, daughter and son. Second, the predeceased son’s legal heirs were arrayed to be as
mother, son’s daughter and sister, and then the second round of distribution of inheritance was
carried out among them. In the last distribution, the mother and the son’s daughter were treated
to be as sharers, and the sister as residuary in light of Muslim law of inheritance.46

The earlier referred decision of the Supreme Court47 was once again followed by three members’
bench of the apex court in Bhaggay Bibi v Razia Bibi which is another standard articulation of
the loose construction.48 In this case, one half of Mughla’s estate at the time of his death was
notionally transferred to his predeceased son Maula Dad. Out of that half property, the daughters
of the predeceased son were given 2/3rd share (i.e., 16/24), and his widow 1/8th (i.e., 3/24). The
remaining share (i.e., 5/24) was once again given to the residuaries. The daughters and the
widow of the predeceased son argued that the remaining share should also be given to them
under the Section 4 of the MFLO. The court repelled their contention and said that the Section 4
“does not override the law of Shariah and consequently, the parties will not get more than their
share in the property in accordance with law of Shariah and the widow and the daughters of
Maula Dad would get to which they would have been entitled on the death of Maula Dad, after
opening of succession of Mughla.”

The manner of loose construction favoured in the last mentioned three cases of the Supreme
Court is apparently more in line with Islamic constitutional imperatives. However, it possesses
discriminatory implications for granddaughter/s exclusively in comparison to grandson/s. So far
as the son/s of the predeceased child is concerned, his/their share remains unaffected by the
Islamic transformation of the Section 4. For instance, a propositus leaves behind one son and one
grandson of a predeceased son. The son would have half of the estate and the remaining half
would be inherited by the grandson under the Section 4. If we replace the grandson with
granddaughter/s, the Section 4 starts generating different consequences irrespective of both male
and female children are intended in the phrase of ‘children of such [predeceased] son or
daughter’.

In Qazi Fazal Ahmed v Riaz-ur-Rahim,49 two daughters of the predeceased child were given 2/3
from the estate and the remaining 1/3 was reverted to the residuaries. In another case titled
Mukhtar Ahmad v Rasheeda Bibi, 50 the sole granddaughter was given half of what her

46
Cheema (n 4) 67-69.
47
Zainab v Kamal Khan PLD 1990 SC 1051.
48
2005 SCMR 1595.
49
PLD 2004 SC 77.
50
2003 SCMR 1664.

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predeceased parent had inherited and the remaining half was diverted towards the collateral. 51 It
is pertinent to point out that the residuaries who were either restricted or excluded under the strict
and literal construction of the Section 4 were brought in and given some share by gendered
reading of the children of predeceased son/daughter in the Section 4. So, the loose construction,
as termed by Lucy Carroll, is not only a way to make relevant the rules of Islamic law of
inheritance, but that relevancy would have exclusive impact on the daughter/s of the predeceased
son/daughter.

This approach could not have been possible had the meanings of ‘per stripes’ occurring in the
Section 4 of the MFLO was not transformed enough to accommodate divergent meanings. The
apex court in Zainab v Kamal Khan 52 observed that “this (per stripes) assumes greater
importance only where the propositus leaves behind a number of grandchildren whose parents
died during the life time of the propositus. The principle of succession in such case will not be
inheritance per capita but per stripes in accordance with the root or stock to which the grandchild
belongs, and will only get the share to which the grandchild is entitled through his parents. In
[the] event of there being a single surviving grandchild the principle [of] per stripes is pushed to
the background but cannot be employed to support principle which militates against the Islamic
law of inheritance.” So, according to the court, if there is one predeceased child, the phrase per
stripes would have negligible implications, and in those cases where there is more than one
predeceased child, per stripes would start operating to keep the shares of grandchildren confined
to their respective predeceased parent. It is perplexing that how conveniently such sharp
divergence in meanings was attributed to the single phrase.

The above understanding of per stripes is contrary to the one that was emphasised by a Peshawar
High Court in Zarina Jan v Akhbar Jan.53 The high court said that the principle of per stripes in
the Section 4 mandates to “keep intact share of predeceased offspring to be inherited by such
offspring’s offspring.” So, the meanings would not alter in cases of single predeceased child or
more than one predeceased child nor in cases of male or female grandchildren. The stock share
of the predeceased child would be maintained and distributed among his/her child/children. For
instance, one female child of predeceased son of propositus would be entitled to the entire share
of her predeceased father and not that share to which she is entitled under Muslim law of
inheritance.54

The construction of Zainab v Kamal Khan generates gendered implications which Zarina Jan v
Akhbar Jan attempted to foreclose. Suppose that instead of the granddaughter, a grandson would
have been there in place of Zainab, then the entire share of his predeceased father would have
been inherited by him, and nothing would be left for the residuary to inherit. In such an

51
See also Tabassam Bibi v Abdur Rashid Khan 1999 CLC 1216 [Lahore]; Aqsa Sabir v Dr Sajjid Hussain 2015
MLD 652 [Peshawar].
52
PLD 1990 SC 1051.
53
PLD 1975 Peshawar 252.
54
Abdul Ghafoor v Mst. Anwar 1985 CLC 818 [Peshawar].

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eventuality, the evolved jurisprudence of loose construction for the purpose of confining the
granddaughter to her Islamic law share might not be necessitated. So, the phrase per stripes
despite its own gender neutrality has been reduced to cause gendered application of the Section
4.

This is not the final crystallization of Islamic transformation of the Section 4 and there is
something more that is yet to be unfolded: whether a legal heir could be benefited both under the
classical Islamic law of inheritance and the Section 4 of the MFLO simultaneously? Whether the
application of the Section 4 is only warranted in those circumstances when the grandchildren are
not eligible under classical Islamic law of inheritance? This issue was first discussed in
Muhammad Fikree v Fikree Development Corporation, 55 and the conclusion arrived at by
Karachi High Court that the application of the Section 4 is only meant to cater for those
circumstances when the children of the predeceased child are not eligible to have any share
under Islamic law of inheritance. So, when they are entitled to have under classical Islamic law
of inheritance, the Section 4 does not remain relevant in that situation. This approach is ‘very
loose construction’ according to Lucy Carroll.56

An issue similar to the above came up before the Supreme Court after one and half decades in
Fazeelat Jan v Sikandar,57 but the court decided it divergently. In this case, the court envisioned
the possibility of inheritance of a grandson twice: first, as residuary, and then under the Section 4
with respect to the share of his predeceased father. The present case is apparently in sharp
contrast to Muhammad Fikree v Fikree Development Corporation.58 Though the decision in the
last mentioned case was not specifically and exclusively relied in any case afterwards, its
approach that the Section 4 was enacted with intent to remedy the deprived and destitute
orphaned grandchildren was considered favourably in Zainab v Kamal Khan.59 That is why the
Supreme Court in the latter case confined the shares of the orphaned grandchildren to the extent
of Islamic law share maximally, and disapproved that they should be enriched financially at the
cost of other legal heirs.

The intricacies of Fazeelat Jan v Sikandar60 require us to reproduce its facts for the purposes of
analysis how it fits in the jurisprudence orchestrated by the superior courts on the Section 4 of
the MFLO. The propositus left behind a widow, daughter, nephew/brother’s son, and
grandson/son of predeceased son (Sikandar). The Supreme Court opined that since the grandson
was eligible as residuary under Islamic law of inheritance without any reference to the Section 4,
so, his share should first be calculated as such. And thereafter in another round, his share could
also be calculated under the Section 4. The court observed that “[t]he claim under Section 4 of

55
PLD 1988 Karachi 446.
56
Carroll (n 4) 424-425.
57
PLD 2003 SC 475.
58
PLD 1988 Karachi 446.
59
PLD 1990 SC 1091.
60
PLD 2003 SC 475.

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Muslim Family Laws Ordinance, 1961, being besides the point for time being, the grandson
Sikandar, in the prevailing succession that existed at the time of opening of succession,
independent of his father, was entitled to 18/48 share in the inheritance of his grandfather in his
capacity as residuary. … In the circumstances, Sikandar is entitled to 18/48 or 9/24 or 3/8 share
in the inheritance of his grandfather being a residuary in his own right and also under Section 4
of Muslim Family Laws Ordinance, 1961.” The last part of the sentence is important that states
“and also under Section 4”. Since the case was specifically pertained to the entitlement of
Sikandar as residuary, so, the court decided that point precisely, while affirming his entitlement
under Section 4 of the MFLO independently. The second round of calculation of inheritance
under the Section 4 was not before the court, it did not venture into the calculation of that share.
However, it is perplexing how that particular share would once again be calculated and then
merged with the entitlement of the grandson under the classical Islamic law of inheritance. If this
possibility is applied to its logical end, it is bound to give the orphaned grandson more than what
he would have been entitled to under classical Islamic law of inheritance. This negates the very
essence of Zainab v Kamal Khan.61 Consequently, the envisioned approach of Fazeelat Jan v
Sikandar 62 is neither in conformity with ‘very loose construction’ nor ‘loose construction’.
Furthermore, if the application of the Section 4 as envisioned by the apex court in the present
case is followed, it would impact adversely on the entitlement of the children of predeceased
daughter of a propositus exclusively, because they being distant kindred do not have any
possibility of double inheritance.

The decision in Fazeelat Jan v Sikandar63 raises an important question as to how one could be
entitled to inherit simultaneously under classical Islamic law of inheritance and the MFLO. If
this is possible then it is an affront to the theory of notionally considering the predeceased child
as alive, and thereafter distributing his/her shares among his/her children (i.e., grandchildren of
propositus). If the predeceased child is notionally considered alive, then how could there be
possibility of the grandson to inherit directly from his grandparent in the presence of his
notionally alive father under the classical Islamic law of inheritance. Applying both schemes of
law, i.e., classical Islamic law of inheritance and the Section 4 of MFLO, in sequence for
enriching twice the grandson does not do justice with the rest of the legal heirs of the propositus.
It is this double injustice with other heirs of propositus that the Supreme Court attempted to
rectify in Zainab v Kamal Khan.64 In the latter case, the apex court concluded that the Section 4
should not be construed to interfere with entitlements of other legal heirs of propositus while
granting shares to the children of predeceased child. This approach implied that other legal heirs,
such as residuaries and in some cases spouse relict, were also given some share particularly when
the predeceased child left behind daughter/s. This approach maximised the share of other legal

61
PLD 1990 SC 1091.
62
PLD 2003 SC 475.
63
ibid.
64
PLD 1990 SC 1091.

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heirs of propositus and the import of the Section 4 was delimited to the maximum extent possible
for accommodating the rules of classical Islamic law of inheritance.

If the manner proposed in Fazeelat Jan v Sikandar 65 is followed, it necessitates the

reconsideration of shares of legal heirs in many celebrated cases. It is pertinent to mention that
jurisprudence on the Section 4 in general is characteristically evolved on Zainab v Kamal
Khan.66 Fortunately, the shares of the granddaughter and the residuary in the latter case remain in
the same proportion even if the dictum of the former case is applied meticulously. However, this
harmony is destabilised when some other notable decisions of the Supreme Court are
reconsidered in light of Fazeelat Jan V Sikandar.67

In Qabal Jan v Habab Jan, 68 the deceased left behind three heirs: widow, daughter and
predeceased son’s daughter. Under classical Islamic law of inheritance, the predeceased son’s
daughter (i.e., paternal granddaughter) is a legal heir in the given proposition. She is entitled to
have 1/6th share to complete the cumulative share of 2/3 rd reserved for the daughters. So, under
Islamic law of inheritance, the widow will have 1/8, the daughter 1/2, and the paternal
granddaughter 1/6. In line with the ratio of Fazeelat Jan V Sikandar,69 another recalculation
under the Section 4 becomes due before conclusive determination of shares of legal heirs. For
that purpose, we will consider the predeceased son as alive and then after calculation of his
share, we will arrange all legal heirs (i.e., widow, daughter, and paternal granddaughter) as his
legal heirs (i.e., mother, sister, and daughter) for calculation of their respective shares.
Thereafter, this last step is to be merged into that calculation that was carried out under the
classical Islamic law of inheritance. The shares calculated in this manner would be different from
that distribution which was actually carried out by the court in the case.70

It is a relief, albeit temporarily, that the fullest implications of Fazeelat Jan v Sikandar71 have not
yet been explored and delved into in any other case as of now. However, the issue of possibility
of double inheritance, and its consequent impact on theory of considering a predeceased child as
notionally alive under the Section 4 might face this sort of challenge any time. Similar to the

65
PLD 2003 SC 475.
66
In this case, the propositus (i.e., grandparent) left behind granddaughter (i.e., predeceased son’s daughter) and a
residuary. In light of the ratio of Fazeelat Jan v Sikandar, the granddaughter is entitled to have her share under
classical Islamic law of inheritance as sharer (i.e., 1/2) without considering the Section 4, and the rest would be
given to the residuary (i.e., 1/2). Again in a second calculation under the Section 4, the predeceased son if
considered alive, he would have the entire estate, and then this would be given to his daughter (granddaughter), and
the residuary as per their respective Islamic law entitlements. So, in both rounds of calculations, the entitlements of
both legal heirs remain in the same proportion even if they are merged together.
67
PLD 2003 SC 475.
68
Qabal Jan v Habab Jan 1992 SCMR 935.
69
PLD 2003 SC 475.
70
The widow of the deceased was given 1/8 (3/24), the daughter 7/24, and the out of the remaining 14/24, the
orphaned granddaughter was awarded her 7/24, while other 7/24 was divided among the predeceased son’s mother
(i.e., the widow of propositus) to the extent of 1/6 (which became 7/144), and the sister (i.e. the daughter of
propositus) was held to get the residue (that amounted to 35/144).
71
PLD 2003 SC 475.

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shift towards Islamic transformation of the Section 4, despite its being anomalous and
disharmonious, the fault line triggered by the last mentioned case is also an outcome of the
approach that the shares of legal heirs should be calculated as per their entitlements under the
classical Islamic law of inheritance whenever this course is possible.

IV. RETROSPECTIVE APPLICATION OF THE SECTION 4

It is not Islamic transformation of the Section 4 of MFLO and allied issues as discussed in the
previous part of the paper that are a fertile source of interpretive tensions. There are some other
important controversies, such as, retrospective application linked directly to the construction of a
phrase ‘opening of succession’ occurring in the Section 4. In previous part of the paper, the
phraseology of the Section 4 has either been ignored or watered down to fit within the broader
context of Islamic transformation of the provision that resulted into downsizing the entitlement
of orphaned grandchildren, particularly granddaughters, and enriching the shares of other legal
heirs of a propositus, particularly residuaries. However, we will notice in this part of the paper
that the phraseology of the Section 4 is read in the manner that may not be squarely in
conformity with Islamic law but that is beneficial for the interests of orphaned grandchildren. It
is this aspect of the judicial approach that is characterised by benevolence towards orphaned
grandchildren in the backdrop of the overall legal system that is perceptibly titled for the
maximal application of classical Islamic law of inheritance.

The MFLO was enacted in 1961 as a prospective piece of legislation. The Section 1(3) of the law
states that the date of its application would be announced by the federal government by
notification in official gazette. 72 Consequently, 15th July 1961 was declared as the date of
commencement of its applicability. 73 Despite an unequivocal declaration of prospective
application, the confusion as to retrospective application of the MFLO has been lingering on for
decades. The relevant part of the Section 4 states that the benefit extended in this provision
would be given if a child of the propositus die ‘before the opening of succession’ and the
offspring of the deceased child are alive ‘at the time the succession opens’. What is meant by the
opening of succession? Is it different from the time of death of propositus? The responses to
these questions will determine the controversy at hand.

Under Islamic law of inheritance, one’s legal heirs are ascertained and estate is distributed
among them at the time of one’s death. So, the time of opening of succession and the death of a
propositus generally coincide or should ideally be the same even if completing of formalities,
such as, mutation, occasions some delay. Following this approach, it is generally understood that
the application of the Section 4 is for those circumstances when a child of the porpositus

72
Section 1(3) initially stated that “It shall come into force on such date as the [Federal Government] may, by
notification in the official Gazette, appoint in this behalf.” In 2015 an amendment was introduced to make it read as
“It shall come into force at once.” See <http://punjablaws.gov.pk/laws/777a.html#_ftn3> Accessed on 11 March
2023.
73
PLD 1961 Central Statute 337.

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predeceases him/her leaving behind the orphaned grandchildren, and the death of the propositus
takes place after the application of the MFLO.74

If the propositus dies after the application of the MFLO and his/her child dies before the
promulgation of the law, then the orphaned grandchildren would have the share of their
predeceased parent. In this situation, the benefit of the Section 4 of the MFLO will be extended
to the orphaned grandchildren of the propositus because the latter’s succession opens on his/her
death and that occurs after the application of the MFLO. So, the death of the propositus is of
consequence and not the death of his predeceased child. In Yusuf Abbas v Asmat Mustafa,75 the
court held that “the only requirement of the Section [4 of the MFLO] is that succession should
open after the Ordinance is brought into effect even though in some cases a part of the requisites
for its operation such as the death of the plaintiff’s mother is drawn from a time antecedent to the
promulgation of the Ordinance.”

If the both, the propositus and his/her child, die before the application of MFLO, the estate
should be distributed in accordance with the law applicable then. So, in such a situation, the
Section 4 is not attracted.76 In Sarwar Jan v Mukhtar Ahmad,77 the propositus died in 1956 and
his predeceased son had died in 1955. The court emphasised on the rule of Muslim law that an
estate of deceased Muslim is to be distributed on his death and legal heirs alive then are entitled
to have their respective shares. The court further observed that since the distribution of
succession was concluded, like a past and close transaction, prior to the promulgation of the
MFLO, the same could not be reopened.

The tricky domain on the question of retrospective application pertains to the situation when a
propositus dies before the MFLO, but his/her succession is purportedly opened after the
application of the said law. Either the time of the porpositus’s death should be considered as the
sole determining factor or the opening of succession in reality should be taken to be the criterion
disregarding the actual time of death. On this issue, there are two judicial opinions. The first
holds that the death of a propositus determines the legal heirs, and the phrase ‘the opening of
succession’ is construed in consonance with the propositus’s death. This perspective relies on the
Islamic principle which has been judicially reiterated that at the time of death the estate is vested
in legal heirs and they are treated to be the owners irrespective of when the estate is actually
distributed.78 The Supreme Court in Ghulam Ali v Mst. Ghulam Sarwar Naqvi says that “as soon
as an owner dies, succession to his property opens. There is no State intervention or clergy’s
intervention needed for the passing of the title immediately, to the heirs.”79

74
Muhammad Sharif v Nawab Ali 2002 CLC 285 (Lahore).
75
PLD 1968 Karachi 480.
76
See, Muhammad Sadio v Aslam Baig 1994 CLC 75 (Lahore), and Muhammad Quraish Khan v Roohul Amin 1996
MLD 1156 [Peshawar].
77
PLD 2012 SC 217.
78
Ghulam Ali v Mst. Ghulam Sarwar Naqvi PLD 1990 SC 01.
79
ibid.

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Muhammad Murad v Allah Bakhsh80 is a standard illustration of this perspective. In this case, the
propositus died in 1951 and two of his sons had predeceased him. Some property owned by the
propositus actually devolved on him in 1974 through registered sale deed. In the background of
this eventuality, the children of the predeceased sons of the propositus initiated the litigation and
claimed that they should also be granted share of their predeceased fathers in that property. Their
claim was set aside by all judicial forums including the Lahore High Court. The high court
categorically observed that “it is an established principle of Muslim law that succession of a
Muslim opens the moment he dies and the same is neither dependent nor suspended till
happening or non-happening of certain event.” This rule is reiterated in some other cases as well
that the opening of succession is inextricably linked to the death of a propositus.81

The second opinion is represented by Sardar v Nehmet Bi.82 In this case, the court instead of
giving significance to the time of death of propositus held that the time of opening of succession
was of more importance. In this case, the propositus died in 1947 and his daughter predeceased
him in 1942. At the time of his death, his property was transferred to his widow as a limited
estate which was terminated at her death in 1962 on the promulgation of the Shariat Act. The
Shariat Act applies retrospectively and transfers the right of inheritance to the legal heirs of last
male owner from the time of his death. At the time of his death, his widow and sister were alive
while his daughter had predeceased him leaving behind her children. Now the controversy before
the court was about the right of inheritance of the predeceased daughter’s children. Had the
MFLO not been enacted in 1961, the case was straight forward one and under classical Islamic
law of inheritance whosoever was alive at the time of an owner’s death, s/he should have been
treated as legal heir. However, in context of the MFLO, a controversy arisen between two
competing perspectives. The first was that of the application of traditional Islamic law of
inheritance pure and simple to those legal heirs who were alive at the time of death of last male
owner. And Second option was that the children of the predeceased daughter were given share of
their mother while considering the opening of succession in the legal domain of 1962 where the
MFLO was an applicable law. This last option was beneficial for the predeceased daughter’s
children, but it possessed the potential of giving retrospective application to the MFLO that
unequivocally was a prospective legislation. The apex court argued that the Shariat Act created a
space for the application of Muslim Personal Law (i.e., Shariat), and the latter terminology was
not confined to any “specific statute. It is a compendious term to include all laws relating to
personal matters of Muslims. Therefore, the MFLO is covered under the umbrella of Muslim
Personal Law (Shariat).”83 So, whatever could be considered as Muslim Personal Law (Shariat)
that is applicable under the Shariat Act inclusive of the MFLO.

80
2006 MLD 286 [Lahore].
81
Muhammad Yaqob v Muhammad Ibrahim 2002 CLC 819 [Lahore]; Muhammad Ali v Abdul Aziz 1988 SCMR 267.
82
1992 SCMR 82.
83
For the purposes of construing ‘Muslim Personal Law’, the court relied on Federation of Pakistan v Mst. Farishta
(PLD 1981 SC 120). This construction of the phrase ‘Muslim Personal Law’ was radically transformed by
Mahmood-ur-Rahman Faisal v Government of Pakistan PLD 1994 SC 607 [FB]. See for a detailed analysis on this

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The apex court, under the sway of benevolence and compassion for the predeceased daughter’s
children, preferred the second option and argued that the both legislative instruments, i.e., Shairat
Act and the MFLO, should be read harmoniously without being scared of the latter’s
retrospective application. This benevolent approach also put into jeopardy the settled principle of
Muslim law of inheritance that succession opens at the time of one’s death and that eventuality
determines the legal heirs of the deceased. In this case, the daughter of the propositus who died
in 1942, five years prior to the latter’s death, became alive in 1962 by transposing one
retrospective legislation (Shairat Act) over a prospective enactment (MFLO).

This supposedly harmonious but essentially preference based approach of one law over another
was nonetheless puzzling and confusing. When Sardar v Nehmet Bi84 was brought before the
Supreme Court in Sarwar Jan v Mukhtar Ahmad, 85 the court itself was perplexed how to
vindicate its approach. The unease of the court in its argument during the latter case was amply
visible. The apex court observed that the former case was not decided “on the touchstone of
Section 4 (of the MFLO) simpliciter, rather predominantly on the basis of the provisions of the
Act” (i.e., Shariat Act). The candid admission of predominant application of one law over
another law is communicative enough to expose the harmonious reading of two legislative
instruments in the former case.

The approach in Sardar v Nehmet Bi 86 could only be justified from the perspective of
benevolence towards orphaned grandchildren even if that contravenes an important rule of
Islamic law of inheritance. Karachi High Court in Muhammad Nadir Khan v Government of
Sindh87 made a sloppy endeavour to supply legal and logical arsenal to the dictum of Sardar v
Nehmet Bi.88 The high court held that “if a person/propositus has left some property in which he
has not acquired the ownership, but has certain rights therein, no succession shall open thereof,
on the death of such person. As and when the requirements of obtaining ownership/proprietary
rights are acquired the same shall become subject-matter of succession. In such properties the
succession shall open on fulfilment of the conditions of acquiring the ownership/proprietary
rights.” In this case, the death of propositus occurred before coming into operation of the MFLO,
and the suit property acquired by him after the said law that led to the opening of succession
taking place distinctively from the actual death. Anyhow, if there was no legally enforceable
right during one’s life, then the acquisition of property after his death could not be linked to it. It
is the existence of right to certain property that is the most important factor and not the actual
acquisition of a property.

issue by Martin Lau, The Role of Islam in the Legal System of Pakistan (Leiden/Boston: Martinus Nijhoff
Publications 2006) 155-160.
84
1992 SCMR 82.
85
PLD 2012 SC 217.
86
1992 SCMR 82.
87
PLD 2007 Karachi 197.
88
1992 SCMR 82.

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The high court also referred to the example of unborn child under Islamic law of inheritance to
justify the deferral of the distribution of an estate. However, in this situation, the deferment does
not affect the rights of those who die after the death of propositus and before the delivery of
unborn child. Why this is so? The answer is the time of death of propositus is substantially
important for the determination of legal heirs’ status and respective rights. Conversely, the
court’s referral to the unborn child was to prove that the opening of succession could take place
differently than the actual death of a propositus. And the court’s another inference was that the
legal heirs would be ascertained at the time of opening of succession and not necessarily at time
of death as is done under classical Islamic law of inheritance. Anyhow, those who have
attempted to conceptualise the phrase ‘opening of succession’ as distinct from the death of
propositus, under the benevolent intention and impulse to protect the interests of orphaned
grandchildren, have misrepresented the classical Muslim law on the point.

It is noteworthy to highlight that the approach of the Supreme Court in Sardar v Nehmet Bi89
does not fit well in the backdrop of other cases of the same court. For instance, the apex court in
this case viewed the MFLO as an integral part of that Islamic law which the Shariat Act intended
to implement. However, the MFLO has been viewed as an affront to the Islamisation imperatives
of the Shariat Act. In 1986, the apex court contemplated that despite non-abstante clauses in the
both laws, MFLO and Shariat Act, the latter should be read to confine the implications of the
former to the maximum extent.90 It was this approach that was conclusively transformed into
Zainab v Kamal Khan.91 So, interpretive tensions engendered by Sardar v Nehmet Bi92 and other
cases of the same genre are none other than a manifestation of judicial benevolence towards
orphaned grandchildren and any effort to justify this approach on some sound legal ground
would remain problematic.

V. CONCLUSION

The enactment of the Section 4 of the MFLO was a crucial moment as it converted into legal
heirs a class of persons (i.e. sons and daughters of predeceased son/daughter of a propositus) that
was not treated as such under classical Islamic law of inheritance. During the course of this
provision’s construction and application, there are two considerations which have been held dear
by the judiciary. First, the domain of inheritance is and should be governed by Islamic law of
inheritance to the maximum possible extent while remaining within the legal system of Pakistan.
This perspective was progressively engrafted in the legal system by the judiciary under the
constitutional imperatives of Islamisation including Shariat Acts. The second is the benevolent
consideration that the orphaned grandchildren should be given some inheritance share out of the
estate left by their grandparent. There is an ever present tension between these two
considerations because the traditional Islamic law of inheritance does not legally create space for

89
ibid.
90
Iqbal Mai v Falak Sher PLD 1986 SC 228.
91
PLD 1990 SC 1051.
92
1992 SCMR 82.

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the accommodation of the second consideration, and in fact the foundational structure of Islamic
law of inheritance is considerably reshaped if one insists on upholding the second consideration.
The Pakistani judiciary, under the influence of the first consideration, has constrictively applied
the Section 4 and prevented its full realisation in its literal import. As a result, the judiciary has
created space for maximal implementation of Islamic law of inheritance even at the cost of the
phraseology of the Section 4 of the MFLO.

The introduction of reformist nature of the Section 4 of the MFLO in a legal domain that is
otherwise characterised by Islamisation raises questions as to the intention and capacity of the
legislature. The enactment of the Section 4 followed by Islamic provisions in the Constitution
1962 in addition to the enactment of Shariat Act gave expression to the legislature’s confusion.
On the one hand, it intended to be reformist and on the other, it did not aspire to depart from
Islamic law of inheritance as laid down in classical discourses. The legislature by one stroke of
legislative instrument, i.e., the enactment of the Section 4 of MFLO, made an attempt to reform
one particular aspect of disinheritance, and then by another stroke of legislative instrument, i.e.,
Shariat Act, declared that the same classical law of inheritance which caused disinheritance
would rein the subject of intestate succession. Similar sort of ambivalence as manifested by the
legislature is unfolded from our analysis of the construction and application of the Section 4 by
the superior judiciary. The latter wants to give maximal space to the classical Islamic law of
inheritance on the one hand, and on the other, it does not intend deprivation of the orphaned
grandchildren and in fact makes effort to create space for their entitlement. Hence, the
ambivalence entertained by the legislature at the beginning of the abovementioned legislative
instruments that is shared by the judiciary. In the perplexing legislative domain on the subject of
inheritance, expecting the judiciary to perform its judicial function consistently and coherently is
a big ask.

The solution to this tricky and complicated interaction is either to adopt the suggestion made by
Muhammad Munir93 that the state should not hide behind the Section 4 from discharging its
primal responsibility of taking care, in a comprehensive manner, of the orphaned citizens
inclusive of orphaned grandchildren, or to evolve a harmonious and coherent jurisprudence
afresh that is also free from the vices afflicted with the said provision. Considering the economic
circumstances, the first seems too idealist and impossible to execute at present, and the second
appears to be difficult because the judiciary is often inclined to perform its assignment within the
narrow confines of factual controversy before it, without getting into academic delicacies
inspired by divergent constructions and their consequent interpretive tensions.

It is not out of place to mention that though the Federal Shariat Court declared the Section 4 as
repugnant to Islamic injunctions,94 but the Supreme Court has not heard the appeal against it
after lapse of more than two decades. This inordinate delay reflects partly unwillingness from the

93
Munir (n 11).
94
Allah Rakha v Federation of Pakistan PLD 2000 FSC 01.

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Electronic copy available at: https://ssrn.com/abstract=4388281

highest judicial forum to deprive the orphaned grandchildren from having some share from their
parent’s supposed right of inheritance and partly providing an ample space to the legislature to
rethink the framework for the inheritance of orphaned grandchildren.

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Electronic copy available at: https://ssrn.com/abstract=4388281