Muhammad Munir

Abstract
• The issue of the share of grandchild in section 4 of the Muslim Family Law Ordinance 1961 in Pakistan has sparked the hottest debate in the law of inheritance. This work discusses this controversial issue to find out, first, the background of this thorny issue; secondly, to evaluate the arguments of the supporters and opponents of representational succession; thirdly, to check the Islamicity of section 4; fourthly, to analysis how is this section interpreted by the higher Courts in Pakistan; finally, this work looks at the possible alternative to section 4 or representation for the grandchildren.
Introduction
• Pakistan promulgated the Muslim Family Law Ordinance 1961 (hereafter MFLO) after a long debate and recommendations of the Commission on Marriage and Family Law in Pakistan to reform personal laws. One of the most controversial and condemned provisions of the MFLO has been section 41 which provided representational succession for the orphaned grandchildren. This was the most unprecedented reform ever carried out in any Muslim state in the world. The ‘Ulama (religious scholars) straight away rejected it and many other experts of Islamic law put a scornful attack on this new formula.
Background of the Share of the Grandchild in Pakistan:
Solution to the Problem of Orphaned Grandchildren by Representational Succession
• One area of Islamic law that is well explained in minute detail in the Qur’an is inheritance. With the exception of brother and son of the propositus, the other sharers in the estate who got fixed shares are twelve in total.
Representational Succession or Circumventing the Islamic Law of Inheritance
• As stated above, one of the principles of the Islamic law of inheritance is that “a nearer in kinship excludes the remoter from inheritance” the children of a predeceased son or daughter cannot inherit the property of their grandfather who is survived by a son or sons. This rule is absolute and has no exceptions. Some Middle Eastern states attempted to solve the problem by adopting the device of “Obligatory Bequests.”
Arguments for Representational Succession
• Most of Members of the Commission on Marriage and Family Law were secular and preferred representational succession for the grandchildren. The main arguments put forward by them in support of representation are: First, there is no clear Qur’anic verse or authoritative hadith excluding orphaned grandchild from inheriting their grandfather’s property. Secondly, since the grandfather inherits the property of his grandsons even though the father of the testator has predeceased him, the same principle be applied to the lineal descendants.
Section 4 in the Federal Shariat Court: The Question of Islamicity
• Above we have discussed that interpretation of section 4 of the MFLO 1961 by the Lahore High Court and the Supreme Court of Pakistan amounts to a brand new interpretation of this section not intended by the legislature and never imagined by it supporters and opponents. In Allah Rakha v. The Federation of Pakistan, the Federal Shariat Court in Pakistan has declared section 4 of the MFLO 1961 as repugnant to the injunctions of Islam.