The Share of Orphaned Grandchild under Islamic Law and Pakistani Legal System: A Re-Evaluation of Representational Succession in Section 4 of the Muslim Family Law Ordinance 1961

Abstract

The issue of the share of grandchild in section 4 of the Muslim Family Laws Ordinance 1961 in Pakistan has sparked the hottest debates on the law of inheritance. The work in hand 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 analyse how is this section interpreted by the higher Courts in Pakistan; finally, this work looks at the possible alternative to section 4 or representational succession. The major outcomes are: that the vast majority of scholars consider representational succession as a re-writing of the Islamic law of inheritance; that interpretation of section 4 by the superior courts in Pakistan amounts to the situation as if the Ordinance had not been enacted; that experts of this field prefer ‘obligatory bequest’ over representational succession but the option of bequest has too many hidden problems. Obligatory bequest is not a good alternative to representational succession because it would amount to an acknowledgment of the fact that the state has shifted the burden of taking care of the orphans to individuals. In other words, the state has failed to do one of its duties.