BACKGROUND:

1. The Presidents Order No.3 of 1979 i.e., the Constitutional (Amendment)

Order of 1979 was promulgated on the 7th of February, 1979. Invoking the
above jurisdiction a petition was filed in the Peshawar High Court for the
first time challenging the validity of section 4 of the Muslim Family Laws
Ordinance, 1961. The Shariat Bench of Peshawar High Court vide judgment
reported as Mst. Farishta v. Federation of Pakistan (PLD f980 Peshawar 47)
held that section 4 of the Ordinance was opposed to the Injunctions of Islam.
2. Appeal against this judgment was taken to the Shariat Bench of the Supreme
Court of Pakistan on which the said judgment was set aside.
3. But the Federal Shariat Court did not take the case questioning that this court
only deals with Ushar and Zakat Ordinance.
4. But a number of Lawyers and Ulamas told the court that Muslim Family
Law Ordinance also comes under the jurisdiction of the Federal Shariat
Court.

Section (4) of MFLO, 1961:

“In the event of 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 stripes, receive a share equivalent to the share which
such son or daughter, as the case may be, would have received if alive.”

Reforms through MFLO, 1961:

Vulnerability of Grandchild:
Being excluded by heirs of nearer degree, as shown above, the orphaned
grandchild become economically and socially vulnerable. So all over the Muslim
world the jurists thought and tried to solve this problem, using different devices,
intending to preserve the interest of the orphaned grandchildren in the property of
the propositus. To this end, a new sort of doctrine of representation was adopted in
Pakistan in 1961. The Government of Pakistan promulgated the Muslim Family
Laws Ordinance (hereinafter MFLO) in 1961 touching some of the substantive
Islamic personal law issues. Section 4 of the Ordinance reads as follows:
“In the event of 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
stripes, receive a share equivalent to the share which such son or daughter, as the case may be,
would have received if alive.”

Thus, it is clear that Section 4 of the MFLO, 1961 has accommodated the doctrine
of representation by suspending the rule of nearer excluding the remote.
No Verse Specifically Mentioned In the Quran:
This is due to the factors advocated by the entities in favour of sec. 4 of MFLO that
were of the view that no verse was specifically mentioned in the Quran that
excludes an orphan grandchild from inheritance. Moreover, another point that
substantiates the claim of the framers and favorers of Sec. 4 is the notion of
humanity and compassion.
The objections of Ulemas:
A big number of ulema rejected the updated law and the latter was subjected to
severe criticism as being outside the parameters and principles set by the Quran
and the Sunnah10. The major arguments that were highlighted that challenged the
validity of sec. 4 were that several verses of Surah Nisa clearly stated the manner
in which the shares of inheritance were to be distributed, and nowhere does it state
that a grandchild shall be given a share in inheritance like other sons of the
propositus. Furthermore, it is also imperative that a Hadith of the Prophet (peace
be upon him) be mentioned regarding the subject, which states:
“Narrated by Ibn-e-Abbas, the Holy Prophet said: give the shares of the inheritance as
prescribed in the Holy Quran to those who are entitled to receive it, then whatever remains,
should be given to the closest male relative of the deceased.”

In another Hadith, the Apostle of Allah Almighty said:

“The grandchildren are to be considered as one’s children (in the distribution of inheritance) in
case none of one’s own children are still alive; a grandson as a son, a granddaughter as a
daughter, can inherit (their grandparents’) property as their own parents would (where they are
alive) and they prevent the sharing of the inheritance with all those relatives who would have
been prevented from the same, where their parents are alive. So, one’s grandson does not share
the inheritance with one’s own son (if the son is alive)”.

It is clear from the abovementioned sources of Islamic law, as prescribed by the

Quran and the Sunnah of the Holy Prophet (pbuh), that the principle prevalent with
regard to the law of inheritance is that the nearer in kinship excludes the remoter
from inheritance, and this rule does not have any exceptions13; grandchildren are
only to be considered as one’s own children in the distribution of inheritance
provided that none of the propositus’ children is still alive. The grandchild,
therefore, has been particularly excluded from inheritance if other children of the
propositus are still alive. The principle laid down by this Hadith has been followed
by all classical Islamic schools of thought, including Fiqh-e-Jafria.
An important question that needs consideration, following the aforementioned
discussion, is: what would be the solution for the apparent socio-economic
problem that might arise for the orphaned grandchild after the demise of the
propositus, who may have left an estate from which uncles and aunts would
inherit, but the grandchild would be deprived of the same? This problem has been
tried to be solved by some Muslim states such as Egypt and several Middle-
Eastern states through the appreciation of a principle known as ‘obligatory
bequests’ whereby a mandatory will is drawn up in favor of the orphaned
grandchild for a share in propositus inheritance equal to what the parent would
have inherited had he survived provided that this does not exceed one-third of the
total property. This view finds support from Verse 180 of Surah-Baqarah of the
Holy Quran:
“It is prescribed for you when death approaches [any] one of you if he leaves wealth [is that he
should make] a bequest for the parents and near relatives according to what is acceptable--- a
duty upon the righteous.”

Section (5) of MFLO, 1961:

Registration of marriage:
1. Every marriage solemnized under Muslim Law shall be registered in
accordance with the provision of this Ordinance.
2. For the purpose of registration of marriage under this Ordinance, the Union
Council shall grant license to one or more persons, to be called Nikah
Registrars, but in no case shall more than one Nikah Registrar be licensed
for any one ward.
3. Every marriage not solemnized by the Nikah Registrar shall, for the purpose
of registration under this Ordinance, be reported to him by the person who
has solemnized such marriage.
4. Whoever contravenes the provisions of subsection (3) shall be punishable
with simple imprisonment for a term which may extend to three months or
with a fine which may extend to one thousand rupees, or with both.
 5. The form of Nikahnama, the registers to be maintained by Nikah Registrars,
the records to be preserved by Union Council, the manner in which marriage
shall be registered and copies of Nikahnama shall be sup plied to the parties,
and the fees to be charged therefor, shall be such as may, be prescribed.
6. Any person may, on payment of the prescribed fee, if any, inspect at the
office of the Union Council the record preserved under subsection (5), or
obtain a copy of any entry therein.

Section 6 of MFLO, 1961:

Polygamy:
(1) No man, during the subsistence of an existing marriage, shall, except with
the previous permission in writing of the Arbitration Council, contract
another marriage, nor shall any such marriage contracted without such
permission be registered under this Ordinance.
(2) An application for permission under subsection (1) shall be submitted to the
Chairman in the prescribed manner, together with the prescribed fee, and
shall state the reasons for the proposed marriage, and whether the consent of
the existing wife or wives has been obtained thereto.
(3) On receipt of the application under subsection (2) the Chairman shall ask the
applicant and his existing wife or wives each to nominate a representative,
and the Arbitration Council so constituted may, if satisfied that the proposed
marriage is necessary and just, grant subject to such conditions, if any, as
may be deemed fit, the permission applied for.
(4) In deciding the application the Arbitration Council shall record its reasons
for the decision and any party may, in the prescribed manner, within the
prescribed period, and on payment of the prescribed fee, prefer an
application for revision (to the Collector) concerned and his decision shall
be final and shall not be called in question in any Court.
(5) Any man who contracts another marriage without the permission of the
Arbitration Council shall—(a) pay immediately the entire amount of the
dower, whether prompt or deferred, due to the existing wife or wives, which
amount, if not so paid shall be recoverable as arrears of land revenue; and
(b) on conviction upon complaint be punishable with simple imprisonment
which may extend to one year, or with fine which may extend to five
thousand rupees, or with both."
Section (7) Of MFLO, 1961:
Talaq:
(1) Any man who wishes to divorce his wife shall, as soon as may be after the
pronouncement of Talaq in any form whatsoever, give the Chairman notice
in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever contravenes the provisions of subsection (1) shall be punishable
with simple imprisonment for a term which may extend to one year or with
fine which may extend to five thousand rupees or with both.
(3) Save as provided in. subsection (5), a Talaq unless revoked earlier expressly
or otherwise, shall not be effective until the expiration of ninety days from
the day on which notice under subsection (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of notice under subsection (1) the Chairman
shall constitute an Arbitration Council for the purpose of bringing about a
reconciliation between the parties, and the Arbitration Council shall take all
steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time Talaq is pronounced, Talaq shall not be
effective until the period mentioned in subsection (3) or the pregnancy,
whichever be later, ends.
(6) Nothing shall debar a. wife whose marriage has been terminated by Talaq
effective under this section from remarrying the same husband, without an
intervening marriage with a third person, unless such termination is for the
third time so effective." "And if ye fear a breach between them twain (the
man and wife), appoint an arbiter from his folk and an arbiter from her folk.
If they desire amendment Allah will make them of one mind Lo! Allah is
ever Knower, Aware." (4:35). O ye who believe! If ye wed believing women
and divorce then before ye have touched them, then there is no period that
ye should reckon. But content them and release them handsomely. (33:49).
O Prophet! When ye (men) put awav women, put them away for their (legal)
Period and reckon the period, and keep your duty to Allah, your Lord. Expel
them not from their houses nor let them go forth unless they commit open
immorality. Such are the limits (imposed by) Allah, and who so transgressed
Allah's limits, he verily wronged his soul. Thou knows not: it may be that
Allah will afterward bring some new thing to pass. (65:1). "Then when they
have reached their term, take them back in kindness or part from them in
 kindness and call to witness two just men among you, and keep your
testimony upright for Allah. Whoso believeth in Allah and the Last Day is
exhorted to act thus. And whosoever keepeth his duty to Allah, Allah will
appoint a way out for him." (65:2) "And for such of your women as despair
of menstruation, if ye doubt, their period (of waiting) shall be three months,
along with those who have it not. And for those with child, their period shall
be till they bring forth their burden. And whosoever keepeth his duty to
Allah, He make his course easy for him." (65:4)

Conclusion:
To conclude the discussion, the primary aspect worth acknowledging is that
Islam is a religion that has laid down a complete code of conduct in regard to
each and every aspect of human life, ranging from the matters of minutest of
details to the laws of immense importance (i.e. inheritance, zakat, etc). It is
vital for every Muslim to abide by the limitations and the commands as fixed
by Allah Almighty. The law of inheritance is one such topic, the substance
and procedure of which is depicted by Allah Himself in the Quran, and
explained by the Prophet (pbuh), hence holds immense importance in Islam.
The enactment of sec. 4 MFLO 1961 has come to be seen by many Islamic
jurists, scholars and researchers as being in direct conflict with the
instructions of Allah Almighty, as an orphaned grandchild is given shares
from an inheritance he/she is not qualified to receive. The Constitution of
Pakistan, in Art. 203D, has bestowed upon the Federal Shariat Court, a
prerogative to question any law that is deemed to be repugnant to the
injunctions of Islam. We have seen that the Court has held Sec. 4 as being in
clear violation of the commands of Allah and his Prophet (pbuh). However,
the fact that the said ruling is held suspended until the Shariat Appellate
Bench of the Supreme Court decides the matter, and the fact that the
adjudication regarding this matter has been pending for almost many years, is
nothing but hazardous; meanwhile, the courts in Pakistan are routinely
applying the principles of Sec.
4, entitling heirs to a share in the propositus’ property, openly opposing the word of
Allah and his Prophet (pbuh). An ordinary citizen of Pakistan has
every right to ask the supreme judiciary of Pakistan to bring about a
transparent standpoint regarding this matter of immense importance. The
latter’s stagnancy over this issue is not only disappointing but also
hypocritical as a pending adjudication for many years clearly depicts the fact
that resolving this contention concerning a vital aspect of Islamic law is not on
their agenda, whereas they profess to be the bearers and protectors of Islam
and Sharia. Controversial provision in Section 4, the Muslim Family Laws
Ordinance, 1961. Although no one, in the cases in Pakistan, has challenged
this section, from the prospective of proposition regarding right to inherit by
the sons & daughters of predeceased uncles and aunts, the question - whether
the change brought by the section is justified or not should not go unexamined
and unanswered. I think we should amend Section 4 of MLFO to address the
per stripes succession from its right perspective. This should be taken as a
matter of immense importance and urgency and should conclude the pending
adjudication, bringing certainty and clarity to the subject once and for all.