Orphaned Grandchildren in Islamic Law of Succession

Orphaned Grandchildren in Islamic Law of Succession: Reform and Islamization in Pakistan
Author(s): Lucy Carroll

Source: Islamic Law and Society, Vol. 5, No. 3, The Islamic Inheritance System (1998), pp. 409-447
Published by: Brill

Stable URL: http://www.jstor.org/stable/3399266
Accessed: 18-03-2016 04:08 UTC
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ORPHANED GRANDCHILDREN IN ISLAMIC LAW OF
SUCCESSION: REFORM AND ISLAMIZATION IN PAKISTAN*
LUCY CARROLL
Abstract
The Islamic law of succession, worked out in precision by the classical jurists from
a few Qur'anic verses, is regarded as the central core and prime achievement of the
shari'a. However, in the changed circumstances of the fifteenth century Hijra,
attention has focused on some perceived inequities of the traditional scheme, raising
challenging questions of whether and how the traditional law can be reformed. This
essay examines Pakistan's attempt to deal with the problem of the "orphaned
grandchild." It then turns to a consideration of the fate of the reformist legislation
in the context of "Islamization" and the institutional heritage of the Zia period.
Introduction
If a person has five sons and four of his sons pre-deceased him, leaving
several grandchildren alive, is there any reason in logic or equity
whereby the entire property of the grandfather should be inherited by
one son only and a large number of orphans left by the other sons
should be deprived of an inheritance altogether. The Islamic law of
inheritance cannot be irrational and inequitable.1
[I]nheritance is based on the degree of kindred and to parcel out the
property of grandfather among his pre-deceased sons' children at the
cost of his other sons is to strike at the very root of the system of
inheritance. The fact that at times the grandsons are reduced to penury
is quite a different issue and is purely a matter of luck. 2
ORPHANED GRANDCHILDREN are liable to fare badly as heirs intes-
tate.3 In traditional Sunni law, the children of a predeceased son are
excluded from a share of the inheritance by the presence of a surviving
son. If the predeceased son left only female issue, they are additionally
liable to exclusion by the presence of two or more daughters of the
* This essay has been adapted from the chapter on orphaned grandchildren in
vol. IV (succession) of my forthcoming work on Muslim Family Law in South Asia.
1 Report of the Commission on Marriage and Family Laws, Gazette of
Pakistan Extraordinary, 20 June 1956, 1197-1232, 1223.
2 Note of Dissent to ibid. by Maulana Ihtisham-ul-Haq Thanvi, Gazette of
Pakistan Extraordinary, 30 August 1956, 1560-1604, 1603.
3 "Orphaned grandchild" refers to a grandchild whose parental link with the
propositus predeceased the propositus.
? Brill, Leiden, 1998 Islamic Law and Society 5,3
410 LUCY CARROLL
propositus. Daughter's children are, of course, "distant kindred"4 in
Hanafi law and, therefore, excluded by the presence of any blood
Qur'anic heir or any agnatic heir.5
In a tribal society in which the extended patrilocal family was the
rule, and the surviving son took over responsibility for the children of
his predeceased brother, the exclusion of the children of a predeceased
son from a share of their grandparent's estate by the presence of the
surviving son may not have occasioned much hardship. Similarly the
daughter's children would be the direct responsibility of their father and
their paternal relatives, irrespective of whether their mother was alive or
not; their exclusion from a share of the maternal grandparent's estate
was ensured in Sunni law by ranking them as "distant kindred."
In Ithna Ashari law, exclusion of the children of a predeceased child,
although even more emphatic than in Hanafi law, is at least not
discriminatory on the basis of gender: the children of a predeceased
child (either sex) are excluded by the presence of a surviving child
(either sex).6 While the children of a predeceased daughter are excluded
by a surviving son (or a surviving daughter), the son's children are
equally excluded by the presence of a surviving daughter (or a
surviving son).
Regardless of how well the system might have worked in other times
and other circumstances, in contemporary societies where geographical
mobility is often necessary for economic reasons and nuclear families
are increasingly common, the total exclusion of one line of the
deceased's descendants, due to the premature death of an intervening
4 The category of "distant kindred" includes all blood relatives who are not
male agnates or Qur'anic heirs-e.g., daughter's children; son's daughter's children;
daughters of agnatic brothers; children of agnatic sisters and uterine siblings;
paternal and maternal aunts and their issue; maternal uncles and their issue; etc.
"Distant kindred" are all either women or connected to the propositus through a
female link. They are "distant," not necessarily in kinship terms (P's daughter's
children are, after all, P's grandchildren), but in reference to the probability that
they will ever partake of the inheritance. In Hanafi law "distant kindred" are
excluded by any male agnatic relative or any blood Qur'anic heir. In Maliki law,
"distant kindred" are excluded by the state treasury, which figures as an heir in the
absence of male agnates and blood Qur'anic heirs.
5 For an introduction to the Hanafi law of intestate succession, see Lucy
Carroll, "The Hanafi Law of Intestate Succession: A Simplified Approach," Modern
Asian Studies, 17(1983):629-670.
6 E.g., a Shi'i daughter will exclude not only a son's daughter (who will share
the estate with a single daughter in Sunni law), but also a son's son (who, as a
male agnate, cannot be excluded de jure by a female in Sunni law). For an
introduction to the Ithna Ashari law of intestate succession, see Lucy Carroll, "The
Ithna Ashari Law of Intestate Succession: An Introduction to Shia Law Applicable
in South Asia," Modern Asian Studies, 19 (1985):85-124.
ORPHANED GRANDCHILDREN IN ISLAMIC LAW OF SUCCESSION 411
generational link, appears both unjust and unjustified. The social
assumptions underlying the traditional law have been compromised,
thus posing a problem for Muslim jurists and scholars.
The change from a pastoral or agricultural to an increasingly industrial
economy, the growing concentrations of people within large impersonal
cities and the movement of people from place to place, as their
occupations demand, far from their ancestral homes-all these factors
have tended to make the larger family of the past less meaningful as a
social unit.7
[I]n recent times .... brothers tend to become less involved in questions
concerning their nephews and nieces and a Muslim gives considerably
greater attention to his daughter, long after her marriage, then he gives
to an agnatic nephew.8
Pakistan Commission, 1956
In its 1956 Report the Pakistan Commission on Marriage and Family
Laws (chaired by a former Chief Justice of Pakistan, Justice Mian
Abdul Rashid) urged that "legislation should be undertaken to do
justice to the orphans in respect of the property of their grandfathers."
The Commission stressed that there was "no sanction in the Holy
Qur'an or any authoritative Hadith" for the exclusion of the orphaned
grandchild, while there were "numerous injunctions in the Holy Qur'an
expressing great solicitude for the protection and welfare of the orphans
and their property.'9
Although the suggestion that the matter might be dealt with by the
grandfather making a will and leaving up to a third of his estate to the
orphaned grandchildren (either voluntarily or perhaps compulsorily, on
the lines of Middle Eastern legislation)l0 was mooted before the
7 Kemal Faruki, "Orphaned Grandchildren in Islamic Succession Law," Islamic
Studies, 4(1965): 253-274, 254.
8 Ibid.
9 Report, loc. cit., 1222-1223.
10 In Egypt (1946), Syria (1953), Tunisia (1957), and Morocco (1958) the
problem of the orphaned grandchild was addressed through legislation making the
estate of the grandparent of the excluded grandchild/children liable for an "obliga-
tory bequest" in favor of the grandchild/children. The latter is (are) entitled to the
share of the inheritance which would have come to the predeceased child of the
propositus (parent of the grandchild/children) had such child been alive at the time
of P's death, subject to a maximum (regardless of how many claimants there may
be and irrespective of the fact that the several orphaned grandchildren claim through
more than one predeceased child of P) of one-third of P's net estate. Another four
states acted in the matter after the Pakistan legislation of 1961: Kuwait (1971),
Jordan (1976), Iraq (1979), and Algeria (1984). These states followed the legislative
pattern of the Middle East and provided for obligatory bequests.
The restriction of one-third of P's estate which is available to meet the claims of
412 LUCY CARROLL
Commission, it was rejected because it was felt that such a scheme
would "not do full justice to the orphans."''
The Commission favored instead recognition of a right of represen-
tation in regard to lineal descendants, for which course it attempted to
find an analogy in the position of the Sunni paternal grandfather, who
is heir to the estate of his agnatic grandchildren if his son/their father
has predeceased him. This is an unconvincing analogy: the father's
father takes in the absence of the father, not because he represents the
father, but because in the absence of the father, he is the nearest male
agnatic ascendant; he takes on exactly the same principle that the son's
son takes in the absence of a son.
However, the principle of representation is not unknown in Islamic
law; examples are found in the allocation of shares among the Hanafi
"distant kindred" and in Shi'i succession law. The simplest illustration
of the latter concerns direct descendants of the second or further
generations removed from the propositus in the absence of higher
descendants.
(a) P leaves son A's son and daughter; son B's son; son C's daughter; and
son D's two sons.12
the orphaned grandchildren derives from the fiction that the latter receive a share of
P's estate as a bequest; the traditional law limits the testamentary power of P to
one-third of his estate. The further fact that the "obligatory bequest" of the Middle
East comes into operation only when the orphaned grandchild receives nothing at
all from the estate of P in his/her own right reflects the traditional rule of Sunni law
of "no bequest to an heir."
Basing their approach toward amelioration of the position of the orphaned
grandchild on the notion of a bequest which the propositus should have made, and
will be presumed to have made if he didn't actually do so, allowed the Middle
Eastern reformers to find a juristic basis for the reform in the verse of bequests, Q.
2:180:-"It is prescribed, when death approaches any one you, if he leave any
goods, that he make a bequest to parents and next of kin, according to reasonable
usage; this is due from the God-fearing." (Yusuf Ali, trans.)
See N.J. Coulson, Succession in the Muslim Family (Cambridge: Cambridge
University Press, 1971), 144-157; J.N.D. Anderson, "Recent Reforms in the Islamic
Law of Inheritance," International and Comparative Law Quarterly, 14(1965):349-
365. For the legislation see Tahir Mahmood, Personal Law in Islamic Countries
(Delhi: 1987).
11 Report, loc. cit., 1223. The Commission referred to the case of a man four of
whose five sons had predeceased him leaving many grandchildren; see passage set
out at the commencement of this essay.
12 This illustration is deliberately designed so that all grandchildren are heirs to
P regardless of P's sectarian affiliation. The daughter's children would also be heirs
of a Shi'i propositus who left no surviving children, but daughter's children are
"distant kindred" in Hanafi law and would take no share of P's estate in the
presence of his son's children (who are either male agnatic or Qur'anic heirs of P).
Propositus
II11
son A son B son C son D
(deceased) (deceased) (deceased) (deceased)
II
I-rI
A's son A's daughter B's son C's daughter D's son D's son
If P were a Hanafi, the distribution is per capita (as opposed to per
stirpes) and it is only necessary to know that P was survived by four
son's sons and two son's daughters. Each son's daughter takes 1/10
and each son's son 2/10 of P's estate.
If, however, P were a Shi'i, the distribution is per stirpes or accord-
ing to lines of descent: each son of P is allocated 1/4 of the estate, and
that share is passed down to his children. Son A's son and daughter
divide their father's 1/4 share on the basis of the 2:1 rule (son's son
2/12; son's daughter 1/12); son B's son takes his father's 1/4; son C's
daughter takes her father's 1/4; and son D's sons divide their father's
1/4 equally.
Note, however, that the rule that "the nearer excludes the more
remote" takes precedence: a surviving son would have totally excluded
all P's grandchildren, the traditional law recognizing no principle of
"representation" that could come to their aid. That is, representation
comes into play not to determine who is entitled to a share of the estate
but only to calculate the individual shares of several entitled claimants.
If a son E is added to illustration (a), the situation posed by the
Pakistan Commission is produced.'3
(b) P leaves son A's son and daughter; son B's son; son C's daughter; son
D's two sons; and son E.
Propositus
IIII
son A son B son C son D son E
(deceased) (deceased) (deceased) (deceased)
II
A's son A's daughter B's son C's daughter D's son D's son
13 See introductory quotation.
414 LUCY CARROLL
Under traditional Hanafi and Shi'i law, son E is the sole heir of his
father and would take the entire estate.
Unlike the Middle Eastern reformers who sought explicit Qur'anic
support for the introduction of the scheme of "obligatory bequests" to
benefit the excluded grandchild,14 the Pakistani reform rests unapolo-
getically upon ijtihad. The Report of the Marriage and Family Laws
Commission commences with an introduction justifying ijtihad,15
particularly in the circumstances of the independent Islamic Republic of
Pakistan and the "progressive and evolutionary forces" at work in the
world of the twentieth century-a world of which the new nation was a
part, forces from which it was not immune. During the period of
colonial rule, the Commission asserted, Muslim law had "ceased to be
a growing organism responsive to progressive forces and changing
needs."
What was accepted as the personal law of the Muslims was con-
servative, rigid, and in many respect[s] undefined, but owing to political
subjection any liberalisation or reconstruction was well-nigh impos-
sible. Now that Pakistan is a free and sovereign State created expressly
with the purpose of giving Muslims an opportunity to remould their
lives and laws according to the fundamentals of Islam there is no
excuse for any further delay in converting that aspiration into reality.
.... The members of the Commission are of the firm conviction that
the principles of law and specific injunctions of the Holy Qur'an, if
rationally and liberally interpreted, are capable of establishing absolute
justice between human beings and are conducive to healthy and happy
family life. They hold the view that Islamic law, through the centuries,
has suffered much distortion and its liberal aspects have been ignored
and suppressed. We have to go back to the original spirit of the Qur'an
and the Sunnah and lay special emphasis on those trends in basic Islam
that are conducive to healthy adaptations to our present circumstances. 16
The Pakistan Muslim Family Laws Ordinance, 1961
The Muslim Family Laws Ordinance, promulgated by Ayub Khan in
1961, adopted many of the recommendations of the Commission on
Marriage and Family Laws, including the recommendation that some-
thing should be done to protect the interests of the orphaned grandchild
as heir to the grandparent. The Ordinance proceeded to guarantee to the
14 See fn. 10 above.
15 The Commission defined ijtihad as "interpretative intelligence working
within the broad framework of the Qur'an and the Sunnah." Report, loc. cit., 1199.
16 Ibid., 1203-1204.
children of a predeceased child (either sex) a share of their (paternal or
maternal) grandparent's estate;17 on what would appear to be the clear
reading of the terms of the Ordinance, the orphaned grandchildren
became entitled to that share of the estate of their grandparent which
would have passed to their parent had he or she been alive at the time
of the grandparent's death. The relevant provision of the Ordinance
(section 4) reads:
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. 18
What is revolutionary about the Pakistani legislation is that it intro-
duces the principle of representation to overturn the "nearer excludes the
more remote" rule and to define those entitled to participate in the
inheritance. Since the deceased daughter's children "represent" her no
less than a deceased son's children "represent" him, the most profound
alteration introduced by the Ordinance in the traditional law of
succession obviously is in regard to the position of the daughter's
children in Sunni law. Although Ithna Ashari law considers the daugh-
ter's children and the son's children as equally close relatives of the
propositus, in Sunni law the children of a daughter are "distant
kindred" and seldom entitled to share in the estate of their maternal
grandparents, being excluded by the presence of any blood Qur'anic
heir or any male agnatic heir however distant. By contrast, the children
of a predeceased son are often actual heirs in traditional Sunni law: in
the absence of a surviving son, the son's son is the highest ranking
male agnate; and the son's daughter will be an heir in the absence of a
surviving son or two surviving daughters.
17 The language used by the Commission focused on the agnatic grandchildren,
and property left by the paternal grandfather; the Ordinance of 1961 unambiguously
encompassed the estate of any grandparent and the children of P's deceased
daughter.
18 Note that, contrary to the legislation of Syria, Morocco, Jordon and Algeria,
the predeceased daughter's children are treated identically with the predeceased son's
children; and that, contrary to the legislation of Egypt, Syria, Morocco, Jordon and
Algeria, no orphaned great-grandchildren (children of a predeceased child of a
predeceased child) benefit from the Pakistani reform. Further, there is no maximum
limit on the share which may be taken by the orphaned grandchild, and the
grandchild need not be totally excluded from a share under the traditional law
before the terms of the Ordinance are attracted. These last two distinctions between
the Pakistani and the Middle Eastern reforms derive from the Pakistani rejection of
the law of bequests as the juristic basis of the reform.
416 LUCY CARROLL
Under the terms of the Muslim Family Laws Ordinance, the prede-
ceased daughter's children are recognized as heirs on equal terms with
the children of a predeceased son; they are not disqualified simply on
the basis of their female link with the propositus. It is particularly this
aspect of the reform introduced by section 4 of the Muslim Family
Laws Ordinance that aroused controversy. In the words of one critic:
The children of daughters are all distant kindreds. The Ordinance of
1961, by invoking the principle of representation in the case of the
daughter's children, aims at converting the distant kindreds into sharers
[i.e., into Qur'anic heirs] in contravention of the sacred law ....
Sentiments such as sympathy towards orphans in their helplessness
may enter into the case of the children of the predeceased son. More-
over, their case is also legally stronger as they are the agnates of the
deceased, but the children of the predeceased daughter are neither
legally on the same footing as the children of the son nor on any
sentimental grounds. 19
The notion that one is, because of more meaningful (i.e., agnatic) ties of
kinship and because of instinct and emotion, more interested in one's
grandchildren through a son than in one's grandchildren through a
daughter says at least as much about attitudes toward a daughter and
her place in the family of her birth as it does about attitudes toward
grandchildren.
Although the terms of section 4 of the Pakistani Ordinance appear
clear and unambiguous, the Courts of Pakistan were to disagree over
their interpretation; three alternative modes of applying the provisions
of the Ordinance dealing with the inheritance rights of the orphaned
grandchild were to be advanced by three different High Courts before
the matter was eventually concluded by a decision of the Supreme
Court of Pakistan.
The academic interpretation of section 4
By virtue of the Ordinance (so it would appear on a clear reading of its
unambiguous terms) the predeceased child is resurrected for the purpose
of distributing the estate, and the share thus assigned to the predeceased
child of P is then passed to his or her children. If the predeceased child
left more than one child, the share passed to them would presumably
19 A.B.M. Sultanul Alam Chowdhury, "The Problem of Representation in the
Muslim Law of Inheritance," Islamic Studies, 3(1964):375-391, 383-384.
be divided equally if all are of the same sex, and on the basis of the 2:1
rule if males and females are both present.20
This interpretation of the Pakistani legislation would produce the
following results in illustrations (a) through (f).
son D's two sons.21
Under the academic interpretation of the Muslim Family Laws
Ordinance, the Hanafi (and Shi'i) grandchildren would be in the same
position as are Shi'i grandchildren under the traditional law.22
Under traditional Hanafi and Shi'i law, son E is the sole heir of his
father and would take the entire estate.
Under the academic interpretation of section 4 of the Muslim Family
Laws Ordinance, each of the five sons (including the four resurrected
sons) would take 1/5 of P's estate. Son A's share would be allocated
2:1 between his children (son 2/15; daughter 1/15); son B's 1/5 would
go to his son; son C's 1/5 would go to his daughter; and son D's 1/5
would be divided equally between his sons.
(c) P leaves 4 daughters, germane sister, and son's daughter.23
Under traditional Hanafi law, the distribution would be: daughters
collectively 2/3; germane sister (taking as female agnatic heir) 1/3; and
son's daughter excluded by presence of more than one daughter. If the
parties were Shi'is, the daughters would exclude the germane sister as
well as the son's daughter and take the entire estate.
20 This is the interpretation adopted by commentators on the Pakistani legisla-
tion, regardless of whether they supported or rejected the reform. This interpretation
was endorsed by the Peshawar High Court in 1975; see below.
21 See diagram page 413 above.
22 See discussion page 413 above.
23 llustrations (c), (d), (e), and (f) are taken from N.J. Coulson, op. cit., 147-
148, and are significant in the context of the controversies surrounding the method
of calculating the share of the orphaned grandchild under the Middle Eastern
legislation. Although Coulson does not acknowledge the source, at least (e) and (f)
were taken from Abu Zahra's critique of two of the methods proposed for
calculation of the "obligatory bequest" imposed upon P's estate for the benefit of
the orphaned (and excluded) grandchild. (See J.N.D. Anderson, op. cit., 360-361.)
Note also that when Coulson purports to solve these four problems according to
"Pakistani law" after the Ordinance of 1961, he assumes either that all Pakistanis
are Sunnis (whereas the Shi'i community is significant both numerically and, more
importantly, politically), or that the 1961 Ordinance imposed Sunni law on
Pakistani Shi'is (which, of course, it did not do).
418 LUCY CARROLL
Under the Ordinance the distribution would be (Hanafi): Distribute
as if P left four daughters (1/6 each) and resurrected son (2/6). Resur-
rected son excludes germane sister. Share allocated to resurrected son is
passed to his daughter. If the parties were Shi'is the result would be
identical. Note, however, that the germane sister is excluded by the Shi'i
daughter; her exclusion is not dependent upon the resurrection of the
son.24
(d) P leaves husband, germane sister, uterine sister, and daughter's
daughter.
Under traditional Hanafi law, the distribution would be: husband (in
absence of child/agnatic grandchild) 3/7 (1/2 reduced by awl);25
germane sister 3/7; and uterine sister 1/7. If the parties were Shi'is, the
daughter's daughter (direct descendant) would exclude P's siblings, re-
strict the husband to a Qur'anic share of 1/4, and take 3/4 of the estate.
Under the Ordinance the distribution would be (Hanafi): Distribute
as if P left husband 1/4 (in presence of resurrected daughter); resur-
rected daughter 1/2; germane sister (taking as female agnatic heir) 1/4;
24 Two of the differences between the Pakistani and the Middle Eastern reforms
may be demonstrated by altering illustration (c) by reducing the number of daugh-
ters to one: P leaves daughter, germane sister, and son's daughter.
Under the traditional Hanafi law the shares would be: daughter 1/2; son's
daughter 1/6; and germane sister (taking as female agnatic heir) 1/3. Since the
son's daughter is not totally excluded and is an intestate heir of P, she cannot be
the recipient of an "obligatory bequest" under the Middle Eastern reforms. The
orphaned granddaughter is, however, a beneficiary under the Muslim Family Laws
Ordinance and (on the interpretation presently under discussion) would take the 2/3
share that her father would have taken had he survived his father. (Resurrected son
excludes germane sister.) There is no limit on the amount of the estate that the
orphaned grandchild can take under the Pakistani law and her share may exceed the
one-third maximum imposed on the "obligatory bequest" of the Middle East.
Under the traditional Shi'i law, the daughter, as the sole class I heir, takes the
entire estate; the Middle Eastern "obligatory bequest" would give the granddaughter
a bequest of one-third of P's estate, reducing the daughter's share to 2/3. In Paki-
stan (on the interpretation of the Ordinance presently under discussion) the Shi'i
granddaughter would take the 2/3 share of her father and reduce the daughter's share
to 1/3. Again, there is no maximum set on the share taken by the grandchild.
A third difference between the "obligatory bequest" of the Middle East and the
Pakistani legislation is that under the latter P retains full testamentary power over
one-third of his estate; his heirs, including the orphaned Pakistani grandchild,
claim their shares from the remaining two-thirds of the estate if P has left a valid
will disposing of one-third. The "obligatory bequest" to the orphaned grandchild
takes precedence over any bequest the Middle Eastern propositus may have made
and may will exhaust the one-third available for testamentary disposition.
25 Awl is proportional reduction of all shares when the fractions distributed to
the Qur'anic heirs total, in sum, more than unity. In this illustration the Qur'anic
shares of 1/2 (3/6), 1/2 (3/6), and 1/6 total 7/6 and must be proportionally reduced
by changing the common denominator to seven.
and uterine sister excluded by presence of resurrected daughter. If the
parties were Shi'is, the daughter's daughter, a class I.b heir, excludes
the siblings and takes 3/4 of the estate; she does not need to have
recourse to the Ordinance.
(e) P leaves father, mother, son, daughter, and son's daughter.
Under traditional Hanafi law the distribution would be: father 1/6;
mother 1/6; son 4/9; and daughter 2/9. If the parties were Shi'is the
result would be identical.
Under the Ordinance the distribution would be (Hanafi or Shi'i):
Distribute as if P left father 1/6; mother 1/6; son 4/15; resurrected son
4/15; and daughter 2/15. The share of the resurrected son is passed to
his daughter.
(f) P leaves husband, son, daughter, and son's daughter.
Under traditional Hanafi law the distribution would be: husband 1/4;
son 1/2; and daughter 1/4. Shi'i law produces an identical result.
Under the Ordinance the distribution would be (Hanafi or Shi'i):
Distribute as if P left husband 1/4; son 6/20; resurrected son 6/20; and
daughter 3/20. The share of the resurrected son is passed to his
daughter.
As the above illustrations demonstrate, the resurrected child excludes
relatives who would have been heirs in his absence and/or affects the
proportions of the estate taken by other heirs inter se. Thus the resur-
rected Sunni son excludes the germane sister in (c) and the resurrected
Sunni daughter excludes the uterine sister in (d). In (e) the provision
made for the orphaned grandchild comes out of the shares of the
surviving son and daughter, without affecting the shares of the parents
of P; while in (f) the share of the husband of P is not affected and again
the surviving children bear the burden.26
Academic interpretation of the meaning and effect of section 4 of the
Ordinance was, of course, subject to judicial endorsement-or judicial
rejection. The Courts of the land have the final voice in the interpre-
tation of legislation.
26 Such criticisms, which may have some validity when directed against the
"court method" of calculating the "obligatory bequest" in the Middle East are not
really relevant in the context of the Pakistani legislation because the latter does not
rely upon the fiction of a bequest to provide the juridical justification for the reform.
The objective of the Muslim Family Laws Ordinance is clearly to benefit the direct
descendants of P, and to place the children of the predeceased child of P in the
position of their parent in terms of heirship to P. (For the controversies over
calculation of the share of the excluded grandchild under the Middle Eastern
legislation, see Anderson and Coulson as cited in fn. 10 above.)
420 LUCY CARROLL
Judicial interpretation of section 4, Muslim Family Laws Ordinance 27
Three of the four High Courts of Pakistan had occasion to pronounce
on the interpretation of section 4 before the matter was conclusively
determined by the Supreme Court of Pakistan. Although the wording of
this section would appear to be clear and unambiguous, the three High
Courts came to three different conclusions concerning the meaning of
the section and the manner in which the share of the orphaned
grandchildren should be determined. The first High Court to pronounce
upon the matter endorsed the academic interpretation of the Ordinance.
Strict interpretation: Peshawar, 1975
Mst. Zarina Jan v. Mst. Akbar Jan28 presented the Peshawar High
Court with the necessity of applying section 4 of the Muslim Family
Laws Ordinance to a situation arising on the following facts:
P leaves daughter and daughter of a predeceased son.
It was agreed between the parties that the first step in the distribution of
the estate was to allot two-thirds as the notional share of the prede-
ceased son, and one-third to the daughter.
The daughter of P, however, rather ingeniously contended that the
son, having been resurrected for the purpose of this calculation, should
then be treated as having died immediately after his father and that his
two-thirds share in the estate of his father should be divided among his
heirs, i.e., his sister (the daughter of P) and his daughter (the grand-
daughter of P). Since the parties were Hanafis, if this method of cal-
culation were adopted, the son's estate would have gone in equal
shares to his daughter and his sister (female agnatic heir). The daughter
of P thus claimed one-third as her share in P's estate as heir to him,
plus one-half of the two-thirds share that had been allocated to the
resurrected son of P as heir to her brother, making a total of two-thirds.
The lower appellate Court accepted the argument of P's daughter
and, on the basis of the calculations outlined above, awarded her two-
thirds of her father's estate (one-third as heir to her father and one-third
as heir to her predeceased brother).
27 Much of the discussion which follows appeared in my articles, "Succession
of Orphaned Grandchildren in Pakistan: Conflicting Judgments on the Method of
Calculation," Islamic & Comparative Law Quarterly, 4(1984): 247-250; and
"Section 4 of the Muslim Family Laws Ordinance: Three Alternative Interpre-
tations," All Pakistan Legal Decisions Journal, 41 (1989): 44-48.
28 All Pakistan Legal Decisions (hereinafter "PLD") 1975 Peshawar 252.
The Peshawar High Court accepted the granddaughter's appeal,
holding that under the Ordinance the orphaned grandchild's share was
that of the deceased parent.
Under the Ordinance Mst. Zarina daughter of [the predeceased son of
Shah Zaman] ... is entitled to inherit the same share to which her father
... was entitled in the inheritance of his father Shah Zaman. The reason
is that the Ordinance by adopting the principle of per stirpes distribution
of the inheritance meant to keep intact the share of predeceased son or
daughter to be inherited by his son or daughter, i.e. according to it, the
heirs [sic; read "children"] of the predeceased issue will inherit from
propositus what their predecessor-in-interest would have inherited....
[T]he learned lower Appellate Court erred in opening the succession of .
. [the predeceased son of P] for division between his daughter [P's
granddaughter] and sister [P's daughter]. The impugned interpretation
militates against the letter and spirit of section 4 of the Ordinance .... 29
The orphaned granddaughter was thus awarded the full two-thirds
share which her father would have taken had he been alive at the time
of P's death.30
The case serves to illustrate the extent to which-according to this
interpretation of the terms of the Ordinance-the traditional Hanafi law
had been altered in favor of the direct descendants of P at the expense
both of P's surviving children and his male agnatic collaterals.31
Although it is not mentioned in the decision, it may be assumed that the
deceased in Mst. Zarina Jan left a male agnatic relative. Under the
traditional law, such an agnate, no matter how distant the connection,
would have shared the estate with the daughter and the son's daughter,
taking one-third of the inheritance. Under the Ordinance, as interpreted
by the Peshawar High Court, he is totally excluded by the resurrected
son.
29 Ibid., 253-254.
30 See also the subsequent case decided by a Divisional Bench of the same
court, Mst. Fazal Jan v. 2nd Member, Board of Revenue (PLD 1985 Peshawar 27).
This litigation involved a competition between the germane sisters of P and the
daughters of his predeceased son: the resurrected son was held to bar the sisters from
any share in the state, which went entirely to P's grandchildren. "It is crystal clear
from the reading of the above reproduced law [section 4 of the Muslim Family
Laws Ordinance] that the heirs [i.e., the issue] of the pre-deceased children, on the
death of the grandfather, become entitled to their father's share in the property of
their grandfather. ... [The predeceased son] is to be considered alive for the
purposes of inheritance, at the time of the death of his father .... In the
circumstances,.. [the sisters of P] were debarred to inherit any share of the property
left behind by [P] ...."
31 And his female agnatic siblings when the competition is between an agnatic
sister and a son's daughter; see previous footnote.
422 LUCY CARROLL
The position of the male agnate under the Pakistani Ordinance was
directly at issue in a case which initially came on appeal before the
High Court of Lahore and was, eventually, to go to the Supreme Court
of Pakistan.
Loose construction: Lahore, 1983
Eight years after the decision of the Peshawar Court in Zarina Jan, the
Lahore High Court decided the case of Kamal Khan v. Mst. Zainab,32
which arose on the following facts:
P leaves daughter of a predeceased son and the son of a predeceased
brother.
Both lower Courts awarded the whole estate to the orphaned grand-
daughter, since this is what her father would have taken as the son of P
had he been alive at P's death.
The Lahore High Court, however, accepted the nephew's appeal.
Dissenting from the view of the Peshawar Court in Zarina Jan, the
Lahore Court favored the method of calculation which the daughter in
that case had proposed. According to the Lahore Court's interpretation
of the terms of section 4 of the Ordinance, although the predeceased
child of the propositus is deemed to be alive for the initial calculation of
the distribution of his parent's estate, the share allotted to the prede-
ceased child in this notional distribution is then in turn distributed
among all his heirs as if he had died immediately after his parent. Thus,
in the present case, the predeceased son would initially be notionally
awarded the whole of his father's estate. This share would then be dis-
tributed among his heirs, i.e., his daughter and his male agnatic cousin,
the daughter taking one-half as a Qur'anic heir and the cousin taking
the remaining one-half as the male agnate. The Lahore Court observed:
The law provides that the parent of such a grandchild will be deemed to
be alive for the purpose of succession. It cannot, however, be assumed
that the law ever intended to give a share to the grandchild more than
what would have been his due if the parent was actually alive when the
succession opened.
The whole process of succession depends on the fiction that Rajoo [the
predeceased son] was alive at the time of the death of [his father]
Sufaid Khan. In this event Rajoo will naturally inherit the entire estate
of his father being the only son but he can [only] pass on such of
his estate to his children as is permissible under the Islamic Law of
32 PLD 1983 Lahore 546.
Inheritance. Mst. Zainab being the only surviving child [of the pre-
deceased Rajoo] she cannot get more than one-half of the estate of
Rajoo and the remaining half must revert to the collaterals. If the rule
laid down in the Peshawar judgment is to be adopted then Mst. Zainab
will get twice the share allowed to her under the Islamic Law of
Inheritance.33
Of course, if the predeceased child of P were actually alive when suc-
cession to his parent opened, the grandchild would get nothing because
excluded by the presence of his own parent. Under the Ordinance, the
grandchild necessarily obtains more than "would have been his due if
the parent was actually alive when the succession opened."
The objection raised by the Lahore High Court that according to the
method of calculation adopted by the Peshawar High Court, the agnatic
granddaughter in competition with the grandfather's nephew would
"get twice the share allowed to her under the Islamic Law of Inheri-
tance" is singularly unconvincing. According to the calculations
adopted by the Lahore High Court, the agnatic granddaughter received
exactly what she would have received if the Ordinance had not been
placed on the statute books. The purpose of the Ordinance was
precisely to alter and improve the position of the orphaned grandchild;
thus it should come as no surprise if, under the terms of the Ordinance,
the orphaned granddaughter in the present case should receive a larger
share than she would have under "the Islamic Law of Inheritance."
Admittedly, the Ordinance was basically designed to protect the inter-
ests of the orphaned grandchild in competition with a surviving child,
but this is no reason for assuming that the interests of the orphaned
grandchild in competition with an agnatic collateral even further
removed should not be even more worthy of protection.
Further, in its reference to the "Islamic Law of Inheritance," the
Lahore Court is obviously referring to the Sunni law of inheritance.
Even accepting the method of calculation adopted by the Lahore Court,
and distributing the share allotted to the predeceased child among his or
her heirs in a second distribution (rather than passing it intact to his or
her children), had the parties been Shi'is, the predeceased child's
daughter would have excluded his agnatic sister in the Peshawar case,
as well as his male agnatic cousin in the Lahore case. Shi'i law is part
and parcel of "Islamic law."
In effect, the Lahore Court re-wrote section 4 and proceeded as if
that section read:
33 Ibid., 548.
424 LUCY CARROLL
the opening of succession, such predeceased child shall be allotted a
notional share equivalent to what he or she, as the case may be, would
have received if alive. This notional share shall then be distributed
among the heirs of the predeceased child, as if that child had died
immediately after his or her parent.
This is clearly not what the Ordinance actually says. Section 4 declares
that the orphaned grandchild "shall... receive a share equivalent to the
share which such [predeceased] son or daughter [of P] ... would have
received if alive."
Very loose construction: Karachi, 1988
Finally in 1988, the Karachi High Court had occasion to consider the
interpretation and application of section 4 of the Muslim Family Laws
Ordinance in Muhammad Fikree v. Fikree Development Corporation.3
P leaves six daughters and the son and daughter of a predeceased son.
The (Hanafi) grandchildren claimed one-third of the estate, arguing that
the daughters collectively should take two-thirds-a calculation which
would be correct were it not for the Muslim Family Laws Ordinance.35
The daughters argued that the grandchildren should share in the one-
fourth of the estate which their father (the predeceased son of P) would
have taken if alive.
The Karachi High Court ruled that the Ordinance did not apply in
the circumstances of the case, because in the absence of the Ordinance,
the grandchildren would not be totally excluded from a share of their
grandparent's estate. The learned judge explained:
[S]ection 4 of the Muslim Family Laws Ordinance will be applicable
only in those cases where the 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 [as that] to which the predeceased
son or daughter belonged. As in the present case the grandson and the
granddaughter of... [P] are otherwise entitled to inheritance under the
normal law of Shariat, they will take their shares accordingly. 36
34 PLD 1988 Karachi 446.
35 The Shi'i grandchildren in similar circumstances would be totally excluded
under the traditional law by the presence of a daughter and would take nothing in
the absence of the Ordinance.
36 Ibid., 450. Although in order to qualify for an "obligatory bequest," the
orphaned grandchild in the Middle East must be totally excluded as an heir
intestate, the Pakistani Ordinance imposes no such precondition. And since the
Pakistani reform does not rest on an analogy with a bequest, no such precondition
Again, the Court has re-written the clear terms of section 4, pro-
ceeding as if it read:
the opening of succession, the children of such son or daughter, if any,
living at the time the succession opens, if they would otherwise be
totally excluded from any share in the estate of their grandparent, 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.
Again, this is not what the Ordinance actually says.
This case is interesting because it illustrates the only situation in
which the grandchild in the presence of surviving children would be
better off in the absence of the Ordinance than in its presence.37 Such a
result can only occur if the parties are Sunnis and P leaves more than
four daughters, a son's son, and no son. The result is a function of the
fact that in Hanafi law, daughters collectively, no matter how many
there may be, are not permitted to take more than two-thirds of the
estate as Qur'anic heirs in the presence of a male agnate howsoever
distant. If they are present with their brother, daughters take with the
son as agnatic co-sharers (and not as Qur'anic heirs); each will take a
share equal to half that taken by her brother. However, if their only
brother is dead, leaving the daughters to take as Qur'anic heirs rather
than co-sharers, their collective share is limited to two-thirds, with the
remainder going to any male agnate who may be present.
This rule of Hanafi law contrasts sharply with the rule of Shi'i law,
in which the daughter, as a direct descendant of the propositus, is as
strong an heir as is a son, and will totally exclude not only any agnatic
collaterals but also a son's son.
The fact that the Ordinance improved, in certain circumstances, the
position of the Hanafi daughter might well be considered an added
benefit of this enlightened legislation, rather than as a reason for
judicial re-writing of the statute.38
can be logically implied in the face of the clear terms of the Ordinance.
37 The orphaned agnatic Hanafi grandchild in circumstances where there are no
surviving children can easily find himself in a worse position by virtue of the
Ordinance. E.g., P leaves son A's son and son B's four sons. Under the traditional
law each grandson would take 1/5; under section 4, son A's son takes 1/2 and each
of son B's sons 1/8.
38 Actually the daughter is generally considerably disadvantaged by the Ordin-
ance. In the presence of an agnatic grandchild she is entitled, under the traditional
Hanafi law to a share of 1/2. The resurrected son immediately reduces her share to
1/3 and (under the academic or strict interpretation of section 4) passes to his own
daughter (or son) a share twice as large as that now taken by the daughter.
426 LUCY CARROLL
Supreme Court of Pakistan, 1990
The case which reached the Supreme Court was Mst. Zainab v. Kamal
Khan,39 on appeal from the decision of the High Court of Lahore in
Kamal Khan v. Mst. Zainab (discussed above), in which the litigation
arose from the following situation:
P left daughter of a predeceased son and the son of a predeceased
brother.
The apex tribunal upheld the interpretation of section 4 of the Ordin-
ance propounded by the High Court (son's daughter 1/2; brother's son
1/2).
Section 4 has been added to cater [for] the needs of grand-children and
to remove their suffering, but it cannot be interpreted so as to decrease
the share of the other descendants. According to Section 4, [a] share
from the deceased grandfather's property has been bestowed upon the
children of his predeceased son [and daughter] but this does not mean
that the other heirs of the deceased would be excluded from their share
of inheritance ....
The succession in the present case opened on the death of... [the
grandfather, P].... [P's son], if alive would have inherited the entire
property of his father. Notionally, it would be presumed that ... [P's
son,] after inheriting the estate of his father, had died. Accordingly, the
succession would re-open and all the legal heirs of the deceased would
get their shares in accordance with the Muslim Law of Inheritance. The
contention that the appellant [daughter of P's son] would inherit the
entire share of her father being the sole surviving child, is against the
principle of Muslim Law of Inheritance. She would get whatever she
would be entitled to get on the death of her father. The principle of
Muslim Law of Inheritance was that the near in degree would exclude
the remotest. Before the introduction of Section 4, the children of
predeceased son were deprived of any share. The intention of Section 4
is to safeguard the interest of the children of predeceased son and not to
deprive the other heirs of the propositus of their due. Thus s ection 4
cannot be interpreted in a way so as to exclude the other legal heirs of
the ... [grandfather, P]. [Emphasis added.]40
In this remarkable passage, the Supreme Court of Pakistan first
states that while section 4 of the Muslim Family Laws Ordinance caters
for the needs of the orphaned grandchild/children, "it cannot . . .
decrease the share of the other descendants" of the propositus.
Obviously, if the totally excluded grandchild is to be given anything at
39 PLD 1990 Supreme Court 1051.
40 Ibid., 1057.
all, and if the share of the Sunni agnatic grandchild (who might have
taken something under the traditional law) is to be enhanced-which
would appear to be both the intention and the effect of section 4-the
share(s) which some other heir(s) would otherwise take under the
traditional law (pre-section 4) will have to be diminished. And, as the
illustrations discussed above have indicated, if P has left surviving
issue, the spouse and parents will not bear the burden of the reduction,
which will fall upon the surviving siblings (the "descendants" of P) of
the predeceased child. If P had left a son's daughter and a son (rather
than an agnatic nephew), that son, under the traditional law, would
have taken the entire estate and excluded the son's daughter. Under the
Muslim Family Laws Ordinance, the son's share would be reduced to
1/2, the other half being allocated to the predeceased son and (under the
academic or strict interpretation of section 4) passed to his daughter.
Under the interpretation adopted by the Supreme Court, the predeceased
son's 1/2 would be allocated to his daughter (P's grandchild) and his
brother (P's surviving son),41 with the result that the surviving son
takes 3/4 rather than all of his father's estate. There is simply no way
that provision can be made for the orphaned grandchild without "the
share of other descendants" being decreased.
Similarly, the statement that provision for the orphaned grandchild
"does not mean that the other heirs of the deceased would be excluded
from their share of the inheritance" cannot be sustained. On the facts of
Kamal Khan, even as section 4 was interpreted by the Supreme Court,
the nephew of P was excluded as an heir to P; the fact that P's nephew
subsequently comes in as an heir to P's son (under the interpretation of
section 4 endorsed by the Supreme Court) cannot alter the fact that he
was excluded as an heir to P.
And, of course, it is not the case that every person who ranks as an
intestate heir of P under the traditional law but who is now excluded by
virtue of section 4 by the resurrected child of P will always be an
intestate heir of the resurrected child. If the facts of the Kamal Khan
case are altered so that P left an agnatic sister instead of an agnatic
nephew, P's sister would (under the traditional law) share his estate
with his son's daughter. P's sister is, however, excluded as an heir to P
by his resurrected son; father's sister is a "distant kinswoman" to the
resurrected son and would not be an heir to him in the presence of his
daughter. Similarly, if on the facts of the Kamal Khan case P had been
female rather than male, her brother's son is still her agnatic heir and
41 Assuming the predeceased son left no other heirs; see below.
428 LUCY CARROLL
would (under the traditional law) share her estate with her son's
daughter. But mother's brother's son is a "distant kinsman" of the
resurrected son and would not be an heir to him in the presence of his
daughter.
While the Supreme Court of Pakistan may state that "section 4
cannot be interpreted in a way so as to exclude other legal heirs of the
[propositus]," their interpretation itself excludes the nephew of P as an
heir to P.
The Supreme Court's statement that "[b]efore the introduction of
Section 4 [of the Muslim Family Laws Ordinance], the children of
predeceased son were deprived of any share" is not even correct in the
circumstances of the case with which the Supreme Court was dealing.
Under the traditional Hanafi law, the son's daughter in Kamal Khan
would take one-half of P's estate in the presence of his agnatic nephew.
By enacting that the orphaned grandchild (as sole surviving child of
his/her parent) would receive the entire share that his/her father (or
mother) would have taken from the estate of the grandparent, the
Ordinance undoubtedly went "against the principle of Muslim Law of
Inheritance." But this surely comes as no surprise: as a piece of reform-
ing legislation, section 4 of the Muslim Family Laws Ordinance was
intended to alter the "Muslim Law of Inheritance."
There is some irony in the fact that in vehemently opposing section 4,
Sultan Alam Chowdhury postulated a situation which he thought
illustrated representation running riot:
(g) P leaves wife; daughter B; son C; and daughter of a predeceased
daughter A. The predeceased daughter left, in addition to her daughter,
her mother (P's wife), father (P, who was alive when she died),
husband, full sister, and full brother.
Propositus wife
r7
son-in-law daughter A daughter B son C
(deceased)
daughter's daughter
"If the predeceased daughter is brought to life by fiction to give her
share per stirpes to her daughter," argued Sultan Alam Chowdhury,
"then the rights of other legal heirs [of the resurrected daughter] such as
husband, mother, brother and sister which, due to her dying before the
propositus, merged in the general pool will automatically be revived.
And it will, indeed, be illegal, inequitable and unfair to exclude all other
legal heirs in order to satisfy only a particular set [of heirs of the
predeceased daughter, i.e., her children]."42
Similarly, Tanzil-ur-Rahman, a staunch opponent of section 4, after
attacking the reform on the ground that it was opposed to shari'a
added:
Presuming at one moment the deceased son as alive and considering
him to be dead the next, is an absurd proposition. Secondly, if the
deceased son is considered alive at the time of death of the grandfather
but is again considered to be dead, how and under what law the
division of his legacy could be kept confined to his son and daughter? It
is quite possible that the deceased son leaves a widow and other
relatives alive as well.43
As a result of the Supreme Court judgment in Kamal Khan, Sultan
Alam Chowdhury's worst fears have come to life. And, indeed,
questions that neither Chowdhury nor Rahman raised must present
themselves for consideration.44
Kamal Khan: The calculations
The highest Court in the land having spoken, it is necessary to re-
calculate the illustrations used above according to the interpretation
endorsed by the Supreme Court.
son D's two sons.
Hanafi. First distribute as if P left 4 sons, 1/4 each. Since sons A, B,
and D left sons, the share allocated to each remains with his direct
descendants (in the presumed absence of any Qur'anic heir such as
wife or mother). Son C, however, left only a daughter and half of his
share in P's estate will go to his agnatic heirs, i.e., his brother's sons,
per capita (1/32 each).
42 Chowdhury, 383.
43 Tanzil-ur-Rahman, "Succession Under Muslim Family Laws Ordinance,
1961," PLD 1982 Journal 99-113, 111. Also, A Code of Muslim Personal Law,
(Karachi: Islamic Publishers, 1980), vol. II, 635. The point was also alluded to by
the Shariat Bench of the Peshawar Court in Mst. Farishta v. Federation of
Pakistan, PLD 1980 Peshawar 47 (Shariat Bench), 72.
44 See below, section entitled, "Kamal Khan: the question of creditors."
430 LUCY CARROLL
Shi'i. The share of each brother (in the presumed absence of parents
and spouse) remains with his direct issue; C's daughter excludes his
nephews.
Hanafi. First distribute as if P left 5 sons, 1/5 each. The shares
allocated to sons A, B, and D remain with their direct descendants (in
the presumed absence of any Qur'anic heir, such as wife or mother).
Half of son C's share in P's estate goes to his agnatic heir, his brother
E, who excludes the brother's sons.
Shi'i. The share of each brother (in the presumed absence of parents
and spouse) remains with his direct descendants; C's daughter excludes
his brother.
(c) P leaves four daughters, germane sister, and son's daughter.
Hanafi. First distribute as if P left: four daughters 4/6 collectively; son
2/6; and germane sister excluded by resurrected son. In the second
distribution, the 1/3 taken by the resurrected son is allotted as if he had
died leaving four sisters; his parent's germane sister ("distant kins-
woman"); and daughter. Note that in spite of the statement of the
Supreme Court, the resurrected son excludes, as a legal heir of P, the
germane sister, who is not an heir to the predeceased son.
If P were male (father of the predeceased child), the sisters of the
predeceased son (the daughters of P) are his agnatic siblings and are
not excluded by his daughter; if P were female (mother of the pre-
deceased child), the sisters are not necessarily agnatic siblings of P's
son and if uterine siblings they are excluded as heirs to the resurrected
son by his daughter.
Assuming that P were male, the 1/3 taken by the resurrected son is
distributed between his daughter (granddaughter of P) 1/2 x 1/3 equals
1/6 and agnatic sisters (daughters of P) 1/2 x 1/3 equals 1/6
collectively.
The final distribution of P's estate thus is: germane sister nothing;
daughters collectively 4/6 plus 1/6 equals 5/6; and son's daughter 1/6.
P's germane sister is excluded but his daughters inherit both as heirs to
him and as heirs to their briefly resurrected brother.45
45 Note that in the second distribution-the distribution of the share nominally
awarded to the predeceased child (P2) of the deceased in the first distribution (i.e.,
distribution of the estate of P1)-the heirs involved are the heirs of the predeceased
child (P2). The individual heirs of P2 must then be identified in terms of their
Shi'i. Same result, although germane sister is excluded by daughter, not
by resurrected son.
(d) P leaves husband, germane sister, uterine sister, and daughter's
daughter.
Hanafi. First distribute as if P left husband 1/4; resurrected daughter
1/2; germane sister 1/4 (taking as female agnatic heir); and uterine
sister excluded by resurrected daughter. Note that, in spite of the
statement of the Supreme Court, the resurrected daughter excludes, as a
legal heir of P, the uterine sister, who is not an heir to the predeceased
daughter.
Assuming that P's husband is the father of her daughter, the 1/2
taken by the resurrected daughter is distributed as if she had died
leaving father 1/2 (1/6 as Qur'anic heir plus 2/6 as agnatic heir) x 1/2
equals 1/4; maternal aunts ("distant kinswomen"); and daughter 1/2 x
1/2 equals 1/4.
The final distribution of P's estate is thus: husband 1/4 plus 1/4
equals 1/2; germane sister 1/4; and daughter's daughter 1/4. P's uterine
sister is excluded but her husband inherits both to her and to his briefly
resurrected daughter.
Shi'i. In the first distribution the husband takes 1/4 and the daughter
3/4. P's daughter leaves father, maternal aunts, and daughter. Daughter
and father are class I heirs; the Shi'i father cannot take as a residuary
in the presence of the daughter and the shares of both are enhanced by
radd:46 father 1/4 x 3/4 equals 3/16; and daughter 3/4 x 3/4 equals 9/16.
Husband's total share is thus 1/4 plus 3/16 equals 7/16.
(e) P leaves father, mother, son, daughter, and son's daughter.
Hanafi. First distribute as if P left father 1/6; mother 1/6; son 4/15;
resurrected son 4/15; and daughter 2/15. The 4/15 share taken by the
resurrected son is distributed as if he left brother, sister, daughter, and
grandparents. If P were female (mother of predeceased son) the pre-
deceased son's siblings are not necessarily agnatic and P's father is a
"false" grandfather47 (and thus a "distant kinsman") to the resurrected
respective relationships to P1 in order to arrive at the final distribution of Pi's
estate.
46 Radd is proportional enhancement of the Qur'anic shares of blood relatives
(the spouse relict does not participate in radd) when the fractions distributed to the
Qur'anic heirs amount in sum to less than unity and there is no agnatic heir entitled
to claim the residue.
47 In Hanafi law a "false" grandfather is a non-agnatic grandfather (i.e., a male
ascendant between whom and the propositus there exists one or more female link).
432 LUCY CARROLL
son. If P were male (father of the predeceased child), the predeceased
son's siblings are agnatic and P's parents are "true" grandparents and
thus Qur'anic heirs.
Assuming P to have been male, the resurrected son left as his heirs:
true grandfather 1/6 x 4/15 equals 4/90 (12/270); true grandmother 4/90
(12/270); daughter 1/2 x 4/15 equals 4/30 (36/270); agnatic brother 2/3
x 1/6 x 4/15 equals 4/135 (8/270); agnatic sister 1/3 x 1/6 x 4/15 equals
2/135 (4/270).48
The final distribution of P's estate is thus: father 1/6 plus 4/90 equals
57/270; mother 57/270; daughter 2/15 plus 2/135 equals 40/270; son
4/15 plus 4/135 equals 80/270; and son's daughter 4/30 equals 36/270.
P's parents and surviving children inherit both as heirs to P and as
heirs to the briefly resurrected son of P.
Shi'i. The 4/15 taken by the resurrected son is passed to his daughter,
who is his only class I heir.
(f) P leaves husband, son, daughter, and son's daughter.
Hanafi. First distribute as if P left husband 1/4; son 6/20; resurrected
son 6/20; daughter 3/20. Assuming P's children were all by her surviv-
ing husband, the 3/10 taken by the resurrected son is distributed as if he
died leaving daughter 1/2 x 3/10 equals 3/20; siblings excluded by
father; and father (1/6 plus 2/6) x 3/10 equals 3/20.
The final distribution of P's estate is thus: husband 1/4 plus 3/20
equals 8/20; son 6/20; daughter 3/20; and son's daughter 3/20. P's
husband inherits both to her and as father of his briefly resurrected son.
Shi'i. The 3/10 taken by the resurrected son is divided between his
daughter (1/2 plus 3/12 as radd) x 3/10 equals 9/40; and father (1/6
plus 1/12 as radd) x 3/10 equals 3/40. The final distribution of P's
estate is thus: husband 1/4 plus 3/40 equals 13/40; son 12/40; daughter
6/40; and son's daughter 9/40.
(g) P leaves wife; daughter B; son C; and daughter of a predeceased
daughter A. The predeceased daughter left, in addition to her daughter,
her mother (P's wife), father (P, who was alive when she died),
husband, full sister, and full brother.49
A "false" grandmother is a female ascendant between whom and the propositus a
"false" grandfather intervenes. "False" grandparents are not Qur'anic heirs.
48 I am further assuming that the agnatic siblings of the resurrected son are
germane siblings inter se.
49 See diagram p. 428 above.
Hanafi. First distribute as if P left wife 1/8; son 1/2 x 7/8 equals 7/16; 2
daughters 1/4 x 7/8 equals 7/32 each.
The 7/32 allocated to the predeceased daughter is distributed among
her heirs (excluding her father whom, by virtue of the Ordinance, she is
presumed to have survived): mother 1/6 x 7/32 equals 7/192 (42/1152);
husband 1/4 x 7/32 equals 7/128 (63/1152); daughter 1/2 x 7/32 equals
7/64 (126/1152); brother (P's son) 2/3 x 1/12 x 7/32 equals 14/1152;
and sister (P's daughter) 1/3 x 1/12 x 7/32 equals 7/1152.
The final distribution would be: P's wife 1/8 plus 42/1152 equals
186/1152; daughter A's husband 63/1152; daughter A's daughter
126/1152; daughter B 7/32 plus 7/1152 equals 259/1152; and son C
7/16 plus 14/1152 equals 518/1152. P's wife inherits both to her
husband and to her resurrected daughter; daughter B and son C inherit
both to their father P and to their resurrected sister.
Shi'i. Daughter A's daughter excludes her mother's siblings. A's heirs
are her mother (P's wife) 3/1650 x 7/32 equals 21/512; husband 1/4 x
7/32 equals 28/512; and daughter 9/1650x 7/32 equals 63/512.
The final distribution would be: P's wife 1/8 plus 21/512 equals
85/512; daughter A's husband 28/512; daughter A's daughter 63/512;
daughter B 7/32 equals 112/512; and son C 7/16 equals 224/512. Only
P's wife inherits both to him and to the resurrected daughter.
(At this point one not inconsiderable advantage of the academic or
strict interpretation of section 4 surely has become clear: the ease of
calculating the share taken by the orphaned grandchild, as also that of
the other heirs entitled to share in the distribution of the estate of the
grandfather!)51
50 The shares of A's mother (1/6), husband (1/4), and daughter (1/2) amount in
sum to less than unity and the shares of the blood Qur'anic heirs must be increased
by radd. A's mother, therefore, takes 1/4 of the 3/4 equals 3/16 remaining after A's
husband has been awarded his 1/4; A's daughter takes 3/4 of the 3/4 equals 9/16.
The surviving spouse does not participate in radd.
51 A point brought home by a decision of a three-member Bench of the Supreme
Court of Pakistan. Mst. Qabal Jan v. Mst. Habab Jan (1992 Supreme Court
Monthly Review 935) arose on these simple facts: P left widow, daughter, and
daughter of a predeceased son-and a very considerable amount of property.
Under the Kamal Khan interpretation of section 4, the estate would first be
distributed: widow 1/8; son 14/24; and daughter 7/24. The 14/24 allocated to the
predeceased son would then be distributed: mother 1/6 x 14/24 equals 14/144;
daughter 1/2 x 14/24 equals 42/144; and germane sister (taking as female agnatic
heir) 1/3 x 14/24 equals 28/144. The final result would be: P's widow 1/8 plus
14/144 equals 32/144; P's daughter 7/24 plus 28/144 equals 70/144; and P's son's
daughter 42/144.
The Supreme Court in dealing with the second distribution (distribution of the
14/24 allocated to the predeceased son) correctly gave the son's daughter 1/2 of her
434 LUCY CARROLL
Kamal Khan: The position of the grandchildren's mother
According to a strict reading of section 4 of the Muslim Family Laws
Ordinance, the share of the predeceased parent is passed, directly and
intact, to the grandchildren. Assuming the predeceased parent to have
been the son of the propositus, the grandchildren's mother (the widow
of P's predeceased son) is left unprovided for.
Under the construction adopted by the Supreme Court of Pakistan,
her predeceased husband is notionally awarded his share in his
parent's estate, and then, in a second distribution, that share is divided
among his heirs, one of whom is his widow who would take her one-
eighth share (given the presence of a child).
(h) P (male) leaves mother, two daughters, germane sister, and a grand-
daughter (the child of his predeceased son who also left a widow).
Hanafi. Under the traditional law the distribution would be: mother 1/6;
daughters collectively 2/3; germane sister 1/6 (taking as female agnatic
heir); and son's daughter excluded by presence of more than one sister.
In Pakistan after the decision of the Supreme Court in Kamal Khan
the estate would first be distributed as if P left mother 1/6; son 1/2 x 5/6
equals 5/12; two daughters 1/4 x 5/6 equals 5/24 each (5/12 collective-
ly); and germane sister excluded by presence of resurrected son. The
5/12 taken by the resurrected son would then be distributed as if he had
died leaving true grandmother 1/6 x 5/12 equals 5/72; widow 1/8 x 5/12
equals 5/96; daughter 1/2 x 5/12 equals 5/24; agnatic sisters (taking as
female agnatic heirs) 5/24 x 5/12 equals 25/288 collectively.
The final distribution of P's estate would thus be: mother 1/6 plus
5/72 equals 68/288; two daughters collectively 5/12 plus 25/288 equals
145/288; son's widow 5/96 equals 15/288; son's daughter 5/24 equals
60/288.
Shi'i. Under the traditional law the distribution would be: mother 1/5
(1/6 increased by radd); and daughters collectively 4/5 (4/6 increased
by radd).
In Pakistan after the decision of the Supreme Court in Kamal Khan
the 5/12 taken by the resurrected son would then be distributed as if he
father's 14/24 (7/24 = 42/144). It then gave the son's mother (widow of P) 1/6 of
the 7/24 remaining after deducting the 7/24 given to his daughter from the son's
total share of 14/24, instead of giving her 1/6 of the son's full share (i.e., the Court
gave the mother 7/144 instead of 14/144). The Court then determined the share of
the son's sister in his estate by giving her what was left of the 7/24 after the
deduction of the mother's 1/6, or 5/6 of 7/24 (i.e., the Court gave the sister 35/144
instead of 28/144).
had died leaving widow 1/8 x 5/12 equals 5/96 and daughter 7/8 (1/2
increased by radd) x 5/12 equals 35/96; siblings, aunt, and grandparent
excluded by presence of direct descendant.
The final distribution of P's estate would thus be: mother 16/96;
daughters collectively 40/96; son's widow 5/96; and son's daughter
35/96.
Kamal Khan: the question of creditors
The second notional distribution occasioned by the fictional resurrection
and presumed subsequent demise of the predeceased child of P raises
the question of whether creditors of the predeceased child have claims
on his notional estate? In Muslim law debts must be discharged before
the estate is distributed and creditors take precedence over heirs. Does
this rule apply to the creditors of the resurrected predeceased child of P?
If the share of the grandparent's estate, instead of being directly
allocated to the orphaned grandchild as arguably the Ordinance
intended, is distributed on the assumption that the resurrected son (or
daughter) of P has died, what possible reason can there be for ignoring
claims of creditors against the estate of the resurrected son?
The question is particularly important because one of the prede-
ceased son's major creditors will very likely be his widow claiming for
her mahr. If a man dies young during his father's lifetime, he is
unlikely to have many assets in his own name, and unless his father
has stood surety for payment of his daughter-in-law's mahr, the widow
may well be left with a claim for mahr that she cannot enforce because
the purse is empty.
If the widow can claim her mahr from the portion of her father-in-
law's estate falling to her notionally resurrected husband on the death
of his parent, her position will be considerably improved, and the
interests of the immediate family (surviving spouse and children) of the
predeceased child of P will be greatly enhanced vis-a-vis his other heirs.
Particularly if the orphaned grandchildren of P are female, a major
portion of the estate of their notionally resurrected father will be
diverted from them to agnatic heirs of their father.52 If the estate falling
for distribution among the heirs of the resurrected son has been ab-
sorbed or greatly reduced by satisfaction of the widow's claim to mahr,
a much larger portion of the property will obviously remain with the
widow and her children.
52 This outcome occurs as a result of the Supreme Court decision in Kamal
Khan, although arguably contrary to the intention of the legislative draftsman and
the clear terms of the Ordinance.
436 LUCY CARROLL
This provocative question has not yet arisen in litigation. The first
hurdle is that the statute of limitation would be applied to the widow's
claim for mahr; in that case, her claim would not stand if her husband
had predeceased his father by more than three years.53
However, Muslim law does not recognize a law of limitation and in
the context of Pakistan's process of Islamization and given the anxiety
of the Pakistani courts to affirm and protect the property rights of
Muslim women, it is not impossible that it might be held that the
widow's claim for mahr is not subject to limitation, or at least not
subject to limitation in circumstances involving application of section 4
of the Muslim Family Laws Ordinance on the ground that limitation for
a claim against the estate which the predeceased child of P, briefly
resurrected for the purposes of inheritance and succession, inherited
from his parent runs from the date of his fictive, rather than his actual,
death.54
Islamization and the question of the fate of the ordinance
The claim on the part of a seven member Commission containing three
female members and only one representative of the ulema of a right to
exercise ijtihad, and the promulgation of many of the Commission's
recommendations as law by a martial law administration possessing
neither Islamic nor democratic credentials, were events which did not
commend themselves to all sections of society. The ulema were particu-
larly and predictably outspoken in their dissent from the Muslim Family
Laws Ordinance.55
[T]he framers of [the] present law [section 4 of the Muslim Family
Laws Ordinance] kept in view only [the] one aspect of the hardship to
grand-children and[,] possessing no complete knowledge of the niceties
of the Law of Inheritance[,] have arbitrarily interpreted the Qur'an and
the Sunnah. Obviously this law contravenes the provisions of the
53 Schedule I, art. 104, of the Limitation Act, 1908, provides that a suit "By a
Muhammadan for deferred dower" shall be instituted within three years from the
date "when the marriage is dissolved by death or divorce."
54 The latter argument would be applicable to any creditor of the predeceased
child of P.
55 In addition to the section concerning orphaned grandchildren, the Ordinance
raised the minimal age of marriage for females from 14 to 16 years; made
registration of Muslim marriages compulsory; imposed some restrictions on the
Muslim husband's rights of both easy extra-judicial divorce (talaq) and polygamy;
and provided an expeditious alternative mode of procedure for the deserted or
neglected wife who sought maintenance from her husband.
Qur'an and Sunnah of the Holy Prophet and the consensus of the
'ummah and practice of 1400 years.56
The "loose" interpretations of section 4 by the Lahore High Court
and the Karachi High Court may illustrate the extent to which the
judiciary were willing to go to wrench as much as possible of the
traditional law of succession from the clutches of reform, even if such
preservation necessitated judicial rewriting of the statute itself. The
same might be said of the decision of the Supreme Court, although that
decision appears to illustrate more prominently a surprising unfamiliar-
ity with the law of succession.
Although General Zia (who came to power in a military coup in
1977 and died in a mysterious airplane crash in 1989) supported the
Muslim Family Laws Ordinance, institutions which he created and
forces which he unleashed have now raised the question of whether that
Ordinance can survive at all.
Zia and the creation of the Federal Shariat Court57
When General Zia seized power in Pakistan in 1977, he promised
elections within ninety days; when he reneged on that promise, he
promised "Islamization." The politization of Islam, as Zia courted the
only potential source of political support on which he could draw,58
produced many more problems than it solved.
A major demand of the Islamists was Islamization of laws, i.e., an
effort to bring all existing laws into conformity with the injunctions of
Islam as contained in the Qur'an and exemplified in the hadith of the
Prophet. In response to this demand, while at the same time attempting
to contain the Islamization process, General Zia empowered the
superior courts to exercise a jurisdiction similar to judicial review in
constitutional law, except that the reference is not to a constitution but to
56 Tanzil-ur-Rahman, "Succession Under Muslim Family Laws Ordinance,
1961," PLD 1982 Journal 99-113, 111. Also, A Code of Muslim Personal Law,
vol. II, 636.
57 The material in this section is extracted and condensed from Lucy Carroll,
"Nizam-i-Islam: Processes and Conflicts in Pakistan's Programme of Islamisation,
with Special Reference to the Position of Women," Journal of Commonwealth and
Comparative Politics, 20 (1982): 57-95.
5 The nine-party Pakistan National Alliance which coalesced to oppose Prime
Minister Bhutto and the Pakistan People's Party in the March 1977 general
elections was united in opposition to Bhutto and in favor of Islam, although
among themselves there was little agreement, and little possibility of agreement,
about exactly what the campaign slogan pledging "implementation of the Islamic
system" would mean in terms of actual policies.
438 LUCY CARROLL
"the injunctions of Islam." Shariat Benches of the High Courts and the
Supreme Court were established in early 1979.59 These benches,
comprised of Muslim judges of the respective courts, were empowered
to examine any "law" and to decide whether or not it was "repugnant to
the Injunctions of Islam as laid down in the Holy Qur'an and the
Sunnah of the Holy Prophet." If the Shariat Bench found a law contra-
ry to the injunctions of Islam, the law, to the extent of the repugnancy,
would cease to operate from a date to be set by the Bench. Appeal from
the Shariat Bench of a High Court lay to the Shariat Bench of the
Supreme Court.
The Shariat Benches of the High Courts were subsequently
dissolved and replaced by a single Federal Shariat Court.60 The reason
given for this change was the backlog of petitions accumulating before
the High Court Shariat Benches and the need for a full-time court,
rather than a Bench of an otherwise busy court, to deal with them.61
Questions of geographical jurisdiction and inefficient duplication of
work resulting from similar cases being brought before the various
provincial High Courts were certainly also involved. Appeal from a
decision of the Federal Shariat Court lies to the Shariat Bench of the
Supreme Court.
The "Islamic review" jurisdiction of the Shariat Courts62 was,
however, severely restricted by a clause defining and limiting the "law"
that was amenable to such examination: "'law' includes any custom or
usage having the force of law but does not include the Constitution, any
fiscal law, Muslim personal law, any law relating to the procedure of
any Court or tribunal or any law relating to the levy and collection of
taxes and fees or banking or insurance practice and procedure
[emphasis added]."63
As was so often to be the case, Zia gave the Islamists form but not
substance. While Islamists were asserting that the only tax recognized
by Islam were the charity taxes of zakat and ushr, Zia was too astute to
59 Presidential Order 22 of 1978 (4 December 1978). Repealed and replaced by
Presidential Order 3 of 1979 (7 February 1979), which incorporated the provisions
concerning the Shariat Benches into the Constitution.
60 Presidential Order 1 of 1980 (27 May 1980).
61 Dawn, 6 June 1980.
62 I am using the term "Shariat Courts" to refer to the Shariat Benches of the
High Courts (later the Federal Shariat Court) and the Shariat Bench of the Supreme
Court.
63 This is the phrasing as it occurred in the Order of 4 December 1978. The
Orders of 7 February 1979 and 27 May 1980 modified it by making fiscal, tax,
banking, and insurance law immune for a period of only three years, later extended
to ten years. The ten years expired in 1990.
risk state bankruptcy by allowing religious fundamentalists to pro-
nounce on tax and revenue laws. With Islamists inveighing against
interest in any form, Zia was too conscious of the domestic and inter-
national complications that would arise should interest payments be
summarily and totally banned. Etc.; etc. The reason for the exclusion of
"Muslim personal law" from the "Islamic review" jurisdiction of the
Shariat Court was specifically to protect the Muslim Family Laws
Ordinance from the expected attack of the fundamentalists. In the result,
the most important, and most potentially controversial, laws were
excluded from "Islamic review."
Zia was further able to resist, at least initially, the demand of the
Islamists that the question of whether any law was contrary to "the
injunctions of Islam" should be determined by committees of learned
ulema (Muslim clergy and religious scholars). Instead, the "Islamic
review" jurisdiction was to be exercised by senior, western-educated
jurists who were presently holding, or had retired from, or were quali-
fied to be appointed to, the position of judge of the superior courts. As
originally constituted in May 1980, the Federal Shariat Court consisted
of five Muslim judges appointed by the President: the Chairman of the
Federal Shariat Court was to be a person who is, or has been, or is
qualified to be, a judge of the Supreme Court; each of the four members
was to be a person who is, or has been, or is qualified to be, a judge of
a High Court.64
However, a year later Zia bowed to pressure and appointed three
ulema to the bench of the Federal Shariat Court, and in 1982 provision
was made for two ulema to sit on the appellate Shariat Bench of the
Supreme Court.65
The Shariat Courts and the Muslim Family Laws Ordinance
Not surprisingly, one of the first laws to be challenged before a Shariat
Bench was the Muslim Family Laws Ordinance: Mst. Farishta v. The
Federation of Pakistan,66 decided by the Shariat Bench of the Peshawar
High Court in late 1979. The particular provision of the Ordinance that
was called into question was the one concerning succession rights of
orphaned grandchildren.
64 Presidential Order 1 of 1980 (27 May 1980), as amended by Presidential
Order 4 of 1980 (21 June 1980). Although it is not required, the practice has been to
select one member from each of the provincial High Courts.
65 Presidential Order 5 of 1981 (13 April 1981); Presidential Order 12 of 1982
(15 August 1982).
66 PLD 1980 Peshawar 47 (Shariat Bench).
440 LUCY CARROLL
Since the constitutional amendment of 7 February 1979 incorporat-
ing the new Chapter concerning the Shariat Benches explicitly stated
that the provisions of that Chapter would override any other provision
of the Constitution, the protection from judicial scrutiny afforded the
Ordinance elsewhere in the Constitution could not exclude the juris-
diction of the Shariat Bench.67 The first question in the Farishta case
was, therefore, whether the clause excluding "Muslim personal law"
from its purview precluded the Shariat Court from examining section 4
of the Muslim Family Laws Ordinance in terms of its conformity to
"the Injunctions of Islam." The Peshawar Shariat Bench interpreted the
phrase "Muslim personal law" to mean only the law as known to the
shari'a; "legislative enactments which overrule that law," the Bench
concluded, lay outside this definition and thus outside the exclusion
clause.
Claiming jurisdiction, the Peshawar Court proceeded to hold that the
section of the Muslim Family Laws Ordinance conferring upon
orphaned grandchildren a right to a share of their grandparent's estate
was contrary to the injunctions of Islam.
The Zia government appealed the decision to the Shariat Bench of
the Supreme Court, which overruled the Peshawar Shariat Bench on the
jurisdictional point.68 "Muslim Personal Law," the Supreme Court
concluded, could not refer to Islamic law in the sense of the divine law
because "the Injunctions of Islam as laid down in the Holy Qur'an and
the Sunnah of the Holy Prophet" constitute the standard against which
the Shariat Court was to examine those laws in regard to which it had
been granted Islamic review jurisdiction.
[If "Muslim Personal Law"] refers to the Divine Law of the Muslim
persons, in the very nature of things it makes no sense, because ... as it
[i.e., Divine Law] had already been made a touchstone for testing other
laws it could not be made the subject of being tested itself and... with
reference to which touchstone?69
The term had been used in a broader sense and included any statutory
law applicable to Pakistani Muslims as Muslims, as distinct from
general law applicable to all.
67 The Muslim Family Laws Ordinance, 1961, was protected by Article 8(3)(b)
of the 1973 Constitution, which provided that certain laws, including the Ordin-
ance, could not be challenged on the ground that they were "inconsistent with or in
derogation of" any of the Fundamental Rights proclaimed in the Constitution.
68 Federation of Pakistan v. Mst. Farishta, PLD 1981 Supreme Court 120
(Shariat Bench).
69 Ibid., 123.
The Muslim Family Laws Ordinance was thus immune from exami-
nation by the Shariat Court and could not be challenged before it on the
ground of any alleged repugnancy to the injunctions of Islam. This did
not imply, the Supreme Court observed, that Muslim personal law was
immune from the process of Islamization; it merely meant that the
question was one falling within the purview, not of the Shariat Court
but of the Council of Islamic Ideology and the legislature.
However, a dozen years later (1993) a five member (including two
ulema) Shariat Bench of the Supreme Court again considered the
meaning of the phrase "Muslim personal law" in the clause restricting
the Islamic review jurisdiction of the Shariat Courts. Dr. Mahmood-ur-
Rahman Faisal v. Government of Pakistan70 arose from a challenge to
the Zakat and Ushr Ordinance, promulgated as part of Zia's Islamiza-
tion program in 1980. As in the Farishta case, the first question that
had to be answered was whether or not the Shariat Court had
jurisdiction to examine the relevant Ordinance in view of the definition
of the word "law" in the constitutional provisions creating the Shariat
Courts and defining their jurisdiction. The Federal Shariat Court,
following (as it was bound to do) the decision of the Shariat Bench of
the Supreme Court in Farishta, had dismissed the petition. The
petitioner appealed to the Shariat Bench of the Supreme Court praying
for a review of the decision in Farishta. In the course of that review and
reconsideration, the Shariat Bench of the Supreme Court overruled its
previous decision.
The interpretation of the expression "Muslim Personal Law" ... in a
manner which reduces the effective role of [the] Federal Shariat Court
contemplated under the Constitution, in the process of Islamization of
laws,.. will be contrary to the necessary intendment of the Constitution.
We are, therefore, inclined to interpret the expression "Muslim Personal
Law" in a manner which would enlarge the scope of scrutiny of all
codified and statute laws not strictly falling within the meaning of
"Muslim Personal Law."71
In order to follow the reasoning adopted by the Court, it is necessary to
recall the events which followed immediately upon the promulgation of
the Zakat and Ushr Ordinance in 1980. The vehement objections of the
Shi'is to the Ordinance-on the ground that in Shi'i law zakat is a
voluntary tax and the State was not within its rights in enforcing com-
pulsory payment72-led to a bloody confrontation in the streets of the
70 PLD 1994 Supreme Court 607 (Shariat Bench); decided 13 June 1993.
71 Ibid., 619.
72 The only concession to Shi'i beliefs in the Ordinance was found in the
442 LUCY CARROLL
capital, and to two important amendments. On the one hand, the Zakat
and Ushr Ordinance was amended to permit a Muslim to opt out of the
system of compulsory collection by filing a sworn declaration to the
effect that his faith andfiqh "do not oblige him to pay the whole or any
part of Zakat... in the manner laid down in this Ordinance.'73
Additionally, Article 227(1) of the Constitution was amended. This
Article states: "All existing laws shall be brought in conformity with the
Injunctions of Islam as laid down in the Holy Qur'an and Sunnah ...
and no law shall be enacted which is repugnant to such Injunctions."
The amendment adds: "In the application of this clause to the personal
law of any Muslim sect, the expression 'Qur'an and Sunnah' shall
mean the Qur'an and Sunnah as interpreted by that sect."74 Primafacie,
this amendment produces a glaring anomaly between the terms of the
(amended) legislative mandate and the mandate of the Shariat Courts:
the former must follow fiqh in enacting personal laws; the latter must
test laws for conformity with the Qur'an and the Sunnah of the
Prophet, and the great bulk of fiqh has no explicit sanction in the
Qur'an or in prophetic precedent, but is based on the extrapolations,
analogies, and interpretations of Qur'anic passages by classical
jurists.75
The full impact of this anomaly is circumvented by the facts: (i)
Article 227(2) reads: "Effect shall be given to the provisions of clause
(1) [quoted above] only in the manner provided in this Part [Part IX of
the Constitution, "Islamic Provisions"]." Part IX of the Constitution
provides for the establishment of the Islamic Council, whose functions
do not exceed offering advice and making recommendations to Parlia-
ment, the Provincial Assemblies, the President, and/or a Provincial
following provision:-"In respect of a person who may believe that the whole or
any part of the recoveries effected from him in the manner laid down in this Ordin-
ance are not according to his belief, such recoveries shall nevertheless be made, but
shall be deemed to be contribution to Zakat Fund on the part of that person." Zakat
would be compulsorily collected from Shi'is, who were told to consider such com-
pulsory levies as voluntary contributions.
73 Ordinance 52 of 1980 (29 October 1980). See Lucy Carroll, "Nizam-i-Islam:
Processes and Conflicts in Pakistan's Programme of Islamisation, with Special
Reference to the Position of Women," loc. cit.
74 Presidential Order 14 of 1980 (18 September 1980).
75 Note also that while the phrase "Holy Qur'an and Sunnah" appears several
times in the Constitution, including in Article 227(1) and the amendment thereto, in
the Chapter dealing with the Shariat Courts, the phrase is the "Holy Qur'an and the
Sunnah of the Holy Prophet" The former phrase would include the Sunnah of the
first two Caliphs, or perhaps the first four Caliphs, or perhaps only the fourth
Caliph, depending upon one's ideological and sectarian position; the latter phrase
would include the Sunnah of none of the Caliphs.
Governor. These bodies and officials are obliged to consider the advice
and recommendations so offered, but clearly retain discretion to con-
sider and reject. (ii) The Islamic review jurisdiction of the Shariat
Courts expressly excludes "Muslim personal law."
In the recent case,76 however, the Shariat Bench of the Supreme
Court sought an interpretation that would remove the anomaly and
attempted to find in the amendment of Article 227(1) a clue to the
interpretation of the phrase "Muslim personal law" as used in the
Chapter defining the jurisdiction of the Shariat Courts.
It needs no elaboration here that Muslim Ummah consists of several
sects and each sect interprets Holy Qur'an and Sunnah of Holy Prophet
... in its own way and considers it as the personal law of that sect.
This personal law of each sect of Muslims has been given full
protection during the process of Islamization by adding the explanation
to Article 227(1) of the Constitution. . . . [I]t appears that the
Constitutional scheme of Islamization of laws intended to keep the
personal law of each sect of Muslims outside the scope of scrutiny of
Federal Shariat Court under Article 203-D of the Constitution. The
expression "Muslim Personal Law" used in Article 203-B(c), therefore,
. means the personal law of each sect of Muslims based on the
interpretation of Qur'an and Sunnah by that sect.... All other codified
or statute laws which apply to the general body of Muslims will not be
immune from scrutiny by the Federal Shariat Court in exercise of its
powers under Article 203-D of the Constitution.
.... [O]nly by reason of being a codified or statute law and applicable
exclusively to the Muslim population of the country, a law would not
fall in the category of "Muslim Personal Law" unless it is also shown
to be the personal law of a particular sect of Muslims, based on the
interpretation of Holy Qur'an and Sunnah by that sect. [Emphasis
added.]77
Having concluded that the Zakat and Ushr Ordinance was not outside
the scope of the Islamic review jurisdiction of the Federal Shariat Court,
the Shariat Bench of the Supreme Court remanded the case to that
Court for disposition. The decision of the Federal Shariat Court on the
Zakat and Ushr Ordinance is not yet available.
Concluding remarks
The significance of the 1993 decision of the Shariat Bench of the
Supreme Court is that it lays open for challenge before the Federal
76 PLD 1994 Supreme Court 607.
77 Ibid., 620-621.
444 LUCY CARROLL
Shariat Court every provision of the Muslim Family Laws Ordinance.
It would be very difficult to argue that a minimal age of sixteen years
for marriage of females; or compulsory registration of marriage; or
compulsory notification of extra-judicial talaq, with effectiveness of the
talaq dependent upon, and delayed for a period of ninety days follow-
ing, such notification; or the requirement for prior permission from a
public authority for polygamous marriage; or a right of inheritance for
orphaned grandchildren, including daughter's children, constitutes "the
personal law of a particular sect of Muslims, based on the interpre-
tation of Holy Qur'an and Sunnah by that sect" and thus lies outside
the Islamic review jurisdiction. Of course, merely because, under the
interpretation of the relevant section of the Constitution by the Shariat
Bench of the Supreme Court, the Federal Shariat Court possesses
jurisdiction to examine the reforms introduced by the Muslim Family
Laws Ordinance does not necessarily mean that all of them will be
found contrary to the injunctions of Islam and the Sunnah of the Holy
Prophet, since arguably some points are not unambiguously covered
either by explicit Qur'anic texts or authentic hadith. Nevertheless, there
can be little doubt that section 4 of the Ordinance will not survive; the
rule that "the nearer excludes the more remote" is too solidly incor-
porated in the fiqh of all sects, too intrinsically part of "shari'a" as
commonly understood, and too firmly believed to be based on Qur'anic
and prophetic precedent. In terms of reform and modernization of
Muslim family law in Pakistan, of ijtihad in contemporary times and in
response to contemporary needs of Pakistani society, the Shariat Bench
of the Supreme Court has truly opened a Pandora's box that would
better have been left closed.
There is, however, a potential flaw in the judgment. The decision in
Dr. Mahmood-ur-Rahman Faisal v. Government of Pakistan was a
decision which was concerned virtually exclusively with constitutional
law and interpretation of constitutional provisions. Constitutional issues
must be determined by a five-member Constitutional Bench of the
Supreme Court, not by three justices sitting with two ulema to constitute
a Shariat Bench, from whose jurisdiction "the Constitution" has been
expressly excluded by the Constitution itself.78
78 The Constitution is excluded from the jurisdiction of the Shariat Courts in
the sense that such tribunals may not examine any constitutional provision in terms
of its conformity with the injunctions of Islam, and hold void any provision which
did not pass this test. The fact remains, however, that interpretation and
construction of the Constitution is the prerogative of the Constitutional Bench of
the Supreme Court, not the Shariat Bench.
One can only await further developments as this important drama
unfolds.
Update, April 1998
This essay was written nearly three years ago. The 1993 decision of the
Shariat Bench of the Supreme Court in Dr. Mahmood-ur-Rahman
Faisal v. Government of Pakistan has not been called into question
before a Constitutional Bench of the Supreme Court and still holds the
field. On April 3, 1998, the Pakistani newspaper, Dawn, reported that
the Federal Shariat Court had begun to hear arguments on petitions
challenging two provisions of the Muslim Family Laws Ordinance in
terms of their compliance with "the Injunctions of Islam;" the two
provisions under scrutiny are those concerning the minimal restrictions
imposed on polygamy (section 6) and the provision of a right of
inheritance for the orphaned grandchild (section 4). The decision is
expected to be handed down in June, 1998.
It is unlikely that section 4 will survive. The real question is can any
reform survive? Or is Pakistan to be trapped in a time warp? During the
course of the hearings in the initial Farishta case79 before the Shariat
Bench of the Peshawar High Court, it had been suggested that the
Court recommend legislation similar to the Egyptian statute creating a
compulsory bequest in favor of the orphaned grandchild. This idea the
Bench rejected on the ground that it would amount to "importing
something into the Shariat which may be equally indefensible."80 While
the "obligatory bequest" constitutes, given the statutes enacted in eight
countries since 1946,81 an interpretation (or reinterpretation) of a
considerable segment of the Muslim ummah, it would be difficult to
contend that it is founded on the Qur'an and the Sunnah of the Prophet
-as these have been traditionally interpreted for many centuries past-
a fact which illustrates the complete break on reform or modernization
or reinterpretation that the 1993 judgment of the Shariat Bench of the
Supreme Court appears to have imposed. Equally the situation
illustrates the importance of the personnel comprising the Bench which
will decide the case and their individual intellectual and philosophical
approaches to the meaning of Islam in the world of the twenty-first
century and the context of contemporary Pakistan.
79 Mst. Farishta v. Federation of Pakistan, PLD 1980 Peshawar 47 (Shariat
Bench).
80 Ibid., 78.
81 See fn. 10 above.
446 LUCY CARROLL
Whichever way the Federal Shariat Court decides, there will defin-
itely be an appeal to the Shariat Bench of the Supreme Court. It is in the
course of this appeal process that an appeal to a Constitutional Bench
of the Supreme Court, raising the constitutional questions that the
decision of the Shariat Bench of the Supreme Court in Dr. Mahmood-
ur-Rahman Faisal v. Government of Pakistan brought to the fore, may
occur. If the definition of "Muslim family law," as laid down by the
Shariat Bench of the Supreme Court in Federation of Pakistan v. Mst.
Farishta82 is re-instated, the Muslim Family Laws Ordinance (and any
future reformist legislation) will continue to be immune from Islamic
review jurisdiction of the Shariat Courts.
It is clear that the litigation now in progress (including the inevitable
appeals) will define the parameters of possible legislative reform of
Muslim law in contemporary Pakistan, and the limits of the Islamic
review jurisdiction of the Shariat Courts. The issues could hardly be
more important.
Postscript: Bangladesh
The Muslim Family Laws Ordinance is applicable in present-day
Bangladesh as well as in Pakistan. A case which recently came before
a five member Bench of the Bangladesh Supreme Court, chaired by the
Chief Justice himself, arose on the following facts:83
P leaves widow, six sons, and the daughter of a predeceased daughter.
Although P died in 1984, his daughter had died in 1955 and the ques-
tion which had divided the lower Courts and brought the matter to the
Supreme Court was whether section 4 of the Ordinance was attracted
when the predeceased child of P had died before the Ordinance came
into force in July 1961. The Supreme Court, quite rightly, held that the
only relevant death date in terms of the applicability of section 4 was
that of the propositus him/herself.84
82 PLD 1981 Supreme Court 120 (Shariat Bench).
83 Sheikh Ibrahim v. Nazma Begum, 1992 Dhaka Law Reports (Supreme Court)
276.
84 The same question had arisen in Pakistani litigation and was early laid to
rest in Yusuf Abbas v. Mst. Ismat Mustafa, PLD 1968 Karachi 480, 506-509.
"These words [of section 4 of the Ordinance] would bring within their compass the
sons and daughters dying before, as well as after[,] the Ordinance came into force.
The only condition is that the death should occur before the succession opened, and
if the succession opens after the promulgation of the Ordinance, section 4 would
apply with full force, and the children of the pre-deceased son or daughter of the
propositus would be entitled to be included in the succession to the estate of the
propositus" See also Muhammad Sadiq v. Aslam Baig, 1994 Civil Law Cases 75
[I]t is the date of opening of succession which is of material importance.
The propositus died in 1984, where upon succession to his property
opened; and had his daughter . . . been alive at that time, she would
have inherited the share now claimed by ... [her daughter]. The date of
death of the daughter of the propositus, whether it was before or after
the coming into force of the Ordinance is immaterial. The interpretation
of section 4 as given by the learned Single Judge is correct.85
In the context of the present paper, what is interesting to note is that
the Single Judge whose decision was endorsed by the Bangladesh
Supreme Court had awarded the daughter of the predeceased daughter
of P the whole share of which her mother (P's daughter) would have
taken had she survived her father. This calculation rejects the view
which found favor with the Supreme Court of Pakistan in Kamal
Khan86 (according to which the share notionally awarded to the
predeceased daughter would have been divided between the daughter's
heirs, including her agnatic brothers and her daughter). However, the
Court found the daughter's share to be 1/13-a fraction which can only
be obtained by ignoring the presence of P's widow.87
(Lahore).
85 1992 Dhaka Law Reports (Supreme Court) 276.
86 Neither the 1983 decision of the Lahore High Court nor the 1990 decision of
the Pakistan Supreme Court was brought to the notice of the Bangladesh Court.
87 It may be that the widow renounced her share of the inheritance, but no such
statement is found in the judgment, nor was any proof of relinquishment intro-
duced.

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Orphaned Grandchildren in Islamic Law of Succession: Reform and Islamization in Pakistan

Author(s): Lucy Carroll

Published by: Brill

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SUCCESSION: REFORM AND ISLAMIZATION IN PAKISTAN*

shari'a. However, in the changed circumstances of the fifteenth century Hijra,

grandchild." It then turns to a consideration of the fate of the reformist legislation

several grandchildren alive, is there any reason in logic or equity

whereby the entire property of the grandfather should be inherited by

should be deprived of an inheritance altogether. The Islamic law of

inheritance cannot be irrational and inequitable.1

[I]nheritance is based on the degree of kindred and to parcel out the

property of grandfather among his pre-deceased sons' children at the

is quite a different issue and is purely a matter of luck. 2

ORPHANED GRANDCHILDREN are liable to fare badly as heirs intes-

tate.3 In traditional Sunni law, the children of a predeceased son are

excluded from a share of the inheritance by the presence of a surviving

liable to exclusion by the presence of two or more daughters of the

vol. IV (succession) of my forthcoming work on Muslim Family Law in South Asia.

1 Report of the Commission on Marriage and Family Laws, Gazette of

Pakistan Extraordinary, 20 June 1956, 1197-1232, 1223.

2 Note of Dissent to ibid. by Maulana Ihtisham-ul-Haq Thanvi, Gazette of

Pakistan Extraordinary, 30 August 1956, 1560-1604, 1603.

3 "Orphaned grandchild" refers to a grandchild whose parental link with the

propositus predeceased the propositus.

? Brill, Leiden, 1998 Islamic Law and Society 5,3

propositus. Daughter's children are, of course, "distant kindred"4 in

Hanafi law and, therefore, excluded by the presence of any blood

Qur'anic heir or any agnatic heir.5

In a tribal society in which the extended patrilocal family was the

his predeceased brother, the exclusion of the children of a predeceased

son from a share of their grandparent's estate by the presence of the

daughter's children would be the direct responsibility of their father and

their paternal relatives, irrespective of whether their mother was alive or

not; their exclusion from a share of the maternal grandparent's estate

was ensured in Sunni law by ranking them as "distant kindred."

In Ithna Ashari law, exclusion of the children of a predeceased child,

although even more emphatic than in Hanafi law, is at least not

discriminatory on the basis of gender: the children of a predeceased

child (either sex) are excluded by the presence of a surviving child

(either sex).6 While the children of a predeceased daughter are excluded

by a surviving son (or a surviving daughter), the son's children are

equally excluded by the presence of a surviving daughter (or a

and other circumstances, in contemporary societies where geographical

mobility is often necessary for economic reasons and nuclear families

are increasingly common, the total exclusion of one line of the

deceased's descendants, due to the premature death of an intervening

male agnates or Qur'anic heirs-e.g., daughter's children; son's daughter's children;

daughters of agnatic brothers; children of agnatic sisters and uterine siblings;

absence of male agnates and blood Qur'anic heirs.

5 For an introduction to the Hanafi law of intestate succession, see Lucy

Carroll, "The Hanafi Law of Intestate Succession: A Simplified Approach," Modern

Asian Studies, 17(1983):629-670.

male agnate, cannot be excluded de jure by a female in Sunni law). For an

Ithna Ashari Law of Intestate Succession: An Introduction to Shia Law Applicable

in South Asia," Modern Asian Studies, 19 (1985):85-124.

generational link, appears both unjust and unjustified. The social

assumptions underlying the traditional law have been compromised,

thus posing a problem for Muslim jurists and scholars.

The change from a pastoral or agricultural to an increasingly industrial