A Critical Appraisal of Obligatory Bequest as Prevalent in Muslim Countries

Abstract

The obligatory bequest has been adopted by legal force in several Muslim states. The basic purpose of this adoption is to overcome the economic grievances of orphaned grandchildren. This reform seems to be justified from an Islamic perspective because it does not radically interfere with the Islamic law of inheritance. Orphaned grandchildren who are excluded under the traditional law of inheritance are its beneficiaries. These grandchildren inherit the share of their predeceased parent within the bequeathable limit of one-third of their grandparent’s estate. However, if the grandparent does not make any bequest in their favour, the court will assume that the grandparent has made the bequest and enforce it. Pakistani courts have preferred obligatory bequest over Section 4 of the Muslim Family Laws Ordinance, 1961. However, obligatory bequest is not an ideal solution; it has restricted its benefit to grandchildren only and no provision is made for spouses and surviving parents. Additionally, both these reforms of obligatory bequest and Section 4 suffer from similar anomalies of representational succession. However, the state is the ultimate guardian of all deprived and needy classes. Therefore, the most appropriate way to tackle the economic necessities of orphaned grandchildren is through the welfare and development programmes of Muslim states. This article thoroughly analyses the obligatory bequest and discusses the different models applicable to Muslim countries. Moreover, the article probes the arguments for and against obligatory bequest and examines their implications.