Muslim Family law ordinance, 1961

                                          

    

        

1.   Introduction .

2.   Islamic Laws of Inheritance.

3.   Objective of this assignment .

4.   Definition of the doctrine of representation .

5.   Background of enacting section -4 of  Muslim Family Law Ordinance- 1961 .

6.   Discussion of section -4 of  Muslim Family Law Ordinance- 1961 .

7.   Advantage of section -4 of  Muslim Family Law Ordinance- 1961 .

8.   Interfere of  section -4 of  Muslim Family Law Ordinance- 1961 .

9.    Provable solution.

10.Conclusion .

    

1.Introduction:-

                           

                                Any legal system of succession the fundamental consideration is the content to which an individual has the personal right to determine the de-solution of his property after his death. The dilemma of inheritance of grandchildren from the pre-deceased child is one of the most critical areas of Islamic law. Pakistan brought a significant change in 1961 by section 4 of the Muslim Family Laws Ordinance (MFLO), which is a milestone event in the history of reformation of Islamic law. In Bangladesh the same law has become accepted through the promulgation of the ‘Laws Continuance Enforcement Order, 1971. this law has faced many judicial challenges in Pakistan since its promulgation. In Bangladesh, however, it has not     been yet focus of academic or judicial interpretation.

     Since 1961, from the date of adoption of this Ordinance ,

     there are many persons who supported it ; and also

     many     others who have opposed the law seriously.

     Many jurist and writers termed it as a conflict between

     traditionalists and the modernists.  

2.Islamic Laws of Inheritance:-

                                                         This article gives an overview of the Islamic laws of inheritance with the aim of increasing the awareness of the Muslim community living in the west regarding this important aspect of Islamic law. The scope of this article is confined to traditional Sunni Islamic law.
When a Muslim dies there are four duties which need to be performed. These are:

1.      payment of funeral expenses

2.      payment of his/ her debts

3.      execution his/ her will

4.      distribution of remaining estate amongst the heirs according to Sharia

It is assumed that the preliminary issues have been resolved and we shall confine ourselves principally to discussing the fourth and last duty. The task is to firstly, determine which of the relatives of the deceased are entitled to inherit and secondly, to determine the quantum share entitlement of each of the heirs concerned.
Needless to say Muslims must follow all the commandments of Allah (SWT) as Allah the Almighty says, "It is not for a believer, man or woman, when Allah and His Messenger have decreed a matter that they should have any opinion in their decision. And whoever disobeys Allah and His Messenger, has indeed strayed into a plain error." [Quran 33:36]
The particular importance of the Islamic laws of inheritance is obvious from the verses immediately following those verses giving specific details on inheritance shares, "These are limits (set by) Allah (or ordainments as regards laws of inheritance), and whosoever obeys Allah and His Messenger will be admitted to Gardens under which rivers flow (in Paradise), to abide therein, and that will be the great success.
And whosoever disobeys Allah and His Messenger, and transgresses His limits, He will cast him into the Fire, to abide therein; and he shall have a disgraceful torment." [Quran 4:13-14]
The laws of inheritance take on an even greater prominence in Islam because of the restriction placed by Sharia on the testamentary power of the testator as we shall see later in this article.
The divine justness and equitability of the Islamic laws of inheritance have been correctly appreciated by many non-Muslim scholars such as Professor Almaric Rumsey (1825-1899) of King's College, London, the author of many works on the subject of the Muslim law of inheritance and a barrister-at-law, who stated that the Muslim law of inheritance, "comprises beyond question the most refined and elaborate system of rules for the devolution of property that is known to the civilised world.¹"
To understand the Islamic laws of inheritance as a whole it is necessary to consider the system of inheritance that operated within the Arabian peninsula prior to the revelation of the Quranic injunctions on inheritance. Although we do not have the exact details of the system that operated prior to the Quranic revelations we do know that the system of inheritance was confined to the male agnate relatives ("asaba") of the deceased. In this old customary system only the male agnates (asaba) were entitled to inherit. Amongst the male agnates there were rules of priority, which determined which of the surviving male agnates were entitled to inherit. It is likely that the rules of priority that operate amongst the asaba in Sharia are a carry-over of the old customary agnatic system. In Islamic law the son takes priority over the father who in turn takes priority over the brothers who in turn take priority over the paternal uncles.
As we shall see the Quran does not expressly state the share of the male agnate relatives as such, although it does enact that the share of the male is twice that of a female. The Sunni jurists take the view that the intention of the Quranic injunctions was not to completely replace the old customary agnatic system entirely but merely to modify it with the objective of improving the position of female relatives. The Sunni Islamic law of inheritance is therefore, an amalgamation of the Quranic law superimposed upon the old customary law to form a complete and cohesive system. The rights of the asaba were recognised by the Prophet Muhammad (SAWS) himself. Abdullah ibn Abbas (RA) reported that the Prophet Muhammad (SAWS) said, "Give the Faraid (the shares of the inheritance that are prescribed in the Quran) to those who are entitled to receive it. Then whatever remains, should be given to the closest male relative of the deceased." (Sahih al-Bukhari)
The Shia jurists on the contrary took the view that since the old agnatic customary system had not been endorsed by the Quran it must be rejected and completely replaced by the new Quranic law.
By specifying clear cut entitlement and specific shares of female relatives, Islam not only elevated the position of women but simultaneously safeguarded their social and economic interests as long ago as 1400 years. The Quran contains only three verses [4:11, 4:12 and 4:176] which give specific details of inheritance shares. Using the information in these verses together with the traditions of the Prophet Muhammad (SAWS) as well as methods of juristic reasoning, the Muslims jurists have expounded the laws of inheritance in such meticulous detail that large volumes of work have been written on this subject.
"Allah commands you regarding your children. For the male a share equivalent to that of two females. " [Quran 4:11]
This first principle which the Quran lays down refers to males and females of equal degree and class. This means that a son inherits a share equivalent to that of two daughters, a full (germane) brother inherits twice as much as a full sister, a son’s son inherits twice as much as a son’s daughter and so on. This principle is however, not universally applicable as we shall see later in verse 4:12, the descendants of the mother notably the uterine brother and uterine sister inherit equally as do their descendants.
"If (there are) women (daughters) more than two, then for them two thirds of the inheritance; and if there is only one then it is half." [Quran 4:11]
Women in this context refers to daughters. The Quran gives the daughter a specific share. In legal terminology the daughter is referred to as a Quranic heir or sharer (ashab al-faraid). The Quran mentions nine such obligatory sharers as we shall see later. Muslims jurists have added a further three by the juristic method of qiyas (analogy). So in Islamic jurisprudence there are a total of twelve relations who inherit as sharers.
If there are any sons the share of the daughter(s) is no longer fixed because the share of the daughter is determined by the principle that a son inherits twice as much as a daughter. In the absence of any daughters this rule is applicable to agnatic granddaughters (son's daughters). The agnatic granddaughter has been made a Quranic heir (sharer) by Muslim jurists by analogy.
If there is only a single daughter or agantic granddaughter her share is a fixed one-half, if there are two or more daughters or agnatic granddaughters then their share is two-thirds. Two or more daughters will totally exclude any granddaughters. If there is one daughter and agnatic granddaughters, the daughter inherits one-half share and the agnatic granddaughters inherit the remaining one-sixth, making a total of two-thirds. If there are agnatic grandsons amongst the heirs then the principle that the male inherits a portion equivalent to that of two females applies.
"And for his parents for each of them there is one-sixth of the inheritance if he has a child, but if he does not have a child and the parents are the heirs then for the mother one-third." [Quran 4:11]
The Arabic word "walad" has been variously translated as child, son, children and offspring by translators. However, there is universal agreement amongst the Sunni Muslim jurists that "walad" here refers to any child or agnatic grandchild (grandchild through son).
If there is a child or agnatic grandchild amongst the heirs then each of the parents inherits one-sixth. In the absence of a child or agnatic grandchild the mother inherits one-third, the share of the father is not mentioned under these circumstances. The father in fact inherits as a residuary (a residuary heir gets whatever remains of the inheritance after the Quranic sharers have been allocated their shares, residuary heirs are generally male agnates) under these circumstances.
To these two Quranic heirs, the mother and the father, the maternal grandmother and paternal grandfather have been added by analogy. The maternal grandmother substitutes the mother in the latter's absence.
"… but if he has brothers (or sisters) then for the mother one-sixth" [Quran 4:11]
The consensus of opinion is that the word "akhwatun" used in the Quranic text means two or more brothers or sisters of any kind. So that any combination of full, consanguine or uterine brothers and sisters, if two or more will mean that the mother inherits a one-sixth share.
"And for you there is one-half of what your wives leave behind if there is no child, but if they leave a child then for you there is one-fourth of what they leave behind; … " [Quran 4:12]
Again according to Islamic law the word "walad" here is interpreted as child or agnatic grandchild. The husband, another Quranic heir, inherits one-half in the absence of a child or agnatic grandchild and one-quarter in the presence of a child or agnatic grandchild.
"And for them one-fourth of what you leave behind if you did not have a child, but if you have a child then for them one-eighth of what you leave behind; …" [Quran 4:12]
This statement gives us the ruling on the share of the wife (widow). The share of the wife is one-quarter in the absence of a child or agnatic grandchild and one-eighth in the presence of a child or agnatic grandchild. Two or more wives share equally in this prescribed share.
Before continuing with the translation of verse 4:12 let us consider a situation where a woman dies leaving behind a husband and both parents as the only heirs.
The husband inherits one-half of the estate, there is no argument on this point. However, if we give the mother a one-third share then the father is left with only one-sixth. Should the male (father) not get twice the share of the female (mother) of equal degree and class?
This problem arose during the caliphate of Umar ibn Khattab (RA). After consultation with the learned companions the majority opinion was that the father should get twice the share of the mother, that is to say, the principle that the male inherits the share of two females is upheld. The father therefore, inherits one-third and the mother one-sixth
In light of this ruling the sentence of verse 4:11 on this matter which reads, "...but if he does not have a child and the parents are the heirs then for the mother one-third." is interpreted to mean, "...but if he does not have a child and the parents are the (only) heirs then for the mother one-third."
"And if a kalala man or woman (one who has neither ascendants nor descendants) is inherited from, and he (or she) has a (uterine) brother or (uterine) sister then for each of them (there is) one-sixth. But if they (uterine brothers and sisters) are more than that then they are sharers in one-third (equally)." [Quran 4:12]
The interpretation of the second half of verse 4:12 has been a source of controversy, one reason being the meaning of the word "kalala". This word "kalala" occurs only in two places in the Quran [4:12 and 4:176] and on both occasions regarding inheritance. "Kalala" may mean "one who leaves neither parent nor child" or "all those except the parent and child". It is generally taken to mean the former.
It is universally agreed that the siblings referred to in this verse are uterine siblings (those with the same mother but different fathers).
The uterine siblings only inherit in the absence of any descendants or ascendants. However, uterine siblings are not excluded by the mother. If there is only one uterine sibling he or she inherits a one-sixth share. If there are two or more uterine siblings they together inherit a one-third share equally.
The heirs mentioned in the Quran (mother, father, husband, widow, daughter, uterine brother, full sister, uterine sister, consanguine sister) together with the three heirs added by juristic method of analogy (paternal grandfather, maternal grandmother and agnatic granddaughter) form a group of heirs called Quranic heirs or sharers (ashab al-furud). These heirs when entitled to inherit are given their fixed shares and the remaining estate is inherited by the residuaries (asaba).
Under Islamic law some of the Quranic heirs, namely the father, paternal grandfather, daughter, agnatic granddaughter, full sister, consanguine sister and the mother, can also inherit as residuaries under certain circumstances.
Certain heirs referred to as primary heirs are always entitled to a share of the inheritance, they are never totally excluded. These primary heirs consist of the spouse relict, both parents, the son and the daughter. All remaining heirs can be totally excluded by the presence of other heirs. There are several rules of exclusion which determine the exclusion of some heirs by the presence of others. It not possible to discuss all these rules in an article of this nature but in brief :
a person (e.g. brother) who is related to the deceased through another (i.e. father) is excluded by the presence of the latter,
an individual nearer in degree (proximity) to the deceased excludes the one who is remoter within the same class of heirs (son excludes all grandsons),
full blood excludes half-blood through father (so a full brother will exclude a consanguine brother but not a uterine brother)
The majority view is that the full and consanguine brother is not excluded by the paternal grandfather. However, the Hanafi fiqh allows the paternal grandfather to totally exclude the agnatic siblings.
Heirs may also be prevented from inheriting by disqualification. The only two practical situations which are causes of disqualification are difference of religion and homicide.
The Prophet (SAWS) said, "A Muslim cannot be the heir of a disbeliever, nor can a disbeliever be the heir of a Muslim." (Sahih al-Bukhari)
Generally speaking, and this is also the majority view, a Muslim cannot inherit from a non-Muslim. Although the Hanafi fiqh does allow a Muslim to inherit from an apostate.
Allah's Messenger (SAWS) said, "One who kills a man cannot inherit from him." (Tirmidhi and Ibn Majah)
All the jurists agree that intentional or unjustifiable killing according to Sharia is a bar to inheritance because if such people are allowed to kill and then benefit from the estate of the victim, it will encourage incidents of homicide.
It should be noted that only relatives with a legitimate blood relationship to the deceased are entitled to inherit from the deceased under Islamic law. Thus, illegitimate children according to Islamic law and adopted children have no part in inheritance. Incidentally legal adoption as practised in the west is forbidden in Islam.
Under certain circumstances after allocation of the estate amongst all the heirs with fixed shares there is a residue left over but there are no residuaries. This residue called al-radd is returned to those sharers who are entitled to it, in proportion to their original shares. Conversely a situation may arise when the total sum of the assigned shares of the heirs with fixed shares is greater than unity. In this situation all the shares are abated proportionately by the doctrine of al-awl which involves decreasing the fractional shares to a common denominator, and increasing the denominator in order to make it equal to the sum of the numerators.
The amalgamation of the old customary agnatic law and the Quranic law has led to a number of problems which Muslim jurists have solved with great ingenuity. I shall mention one such case which occurred during the caliphate of Umar ibn Khattab (RA). A woman died leaving behind a husband, mother, two uterine brothers and two full brothers.
Umar ibn al-Khattab (RA) by systematically applying the rules gave the Quranic heirs their shares, husband (1/2), mother (1/6) and the two uterine brothers (1/3). The two full brothers acting as residuaries received nothing because there is no residue. The two full brothers, who would have been the sole heirs under the old customary agantic system, argued that even if their father was a donkey or a stone cast into the sea and they had no paternal relationship, they still had the same and equal relationship with the deceased as the uterine brothers through the same mother. Umar ibn al-Khattab (RA) reconsidered his ruling and allowed the full brothers to inherit equally with the uterine brothers in the share of 1/3.
The reader will have noticed that uterine (or cognate) relatives have not figured in the discussion thus far. This group of potential heirs contains all those relatives who are neither Quranic sharers nor male agnates and constitute the largest group within the context of inheritance. They are referred to as dhawu al-arham (or distant kindred). The majority view is that they are entitled to inherit when there are no residuaries and no sharers entitled to al-radd. Only the traditional Maliki fiqh does not allow the distant kindred to inherit, any residue is given to the bait al-mal (public treasury). The rules of inheritance amongst the distant kindred are relatively complex and hence not mentioned here.
The Islamic laws of inheritance that have been discussed here can be legitimately accommodated and practically implemented within many existing western legislation systems by way of a valid will. In fact for those Muslims living in the west a will becomes an essential necessity to prevent intestate succession law of the land being applied to their estate after they die.
The will should comply with the law of the land so that it can be executed after a person’s death without any unnecessary legal problems. Needless to say nothing in the will should be contrary to Sharia.
Sharia has placed two restrictions on the testator. Firstly, to whom he can bequeath his estate and secondly, the amount that he can bequeath. The majority view is that a bequest in excess of one-third of the net estate is invalid unless consented to by the legal heirs as is a bequest in favour of a legal heir.
I hope that this article will benefit all those Muslims wishing to conduct their lives according to the divine will of Allah (SWT).

3. Objective of this assignment:-

1.    To find out the background of enacting section -4 of MFLO,1961.

2.    To find out  those places where have been interfered in the Muslim succession law  by the section -4.

3.    Discussion of section -4 of  Muslim Family Law Ordinance- 1961 .

4.    To find out  the  advantages of section -4.

5.    To find out  the bad impact of the section -4

6.    And to find out  the provable solution  this problem.

4.Definition of the doctrine of representation :-  “Principle of Representation” in Islamic Inheritance Law

I received the following question via e-mail from someone in Finland who read one of my posts on the MPACUK Forum. The question is answered herewith for the benefit of all.

QUOTE E-MAIL
I wanted to ask you a question.
The scenario is that a person passes away while his father is still alive. Now this person has sons and a daughter of his own by this time. The person who has passed away, also has other male and female siblings. Now the question is whether the sons and daughter of the deceased person still have a share in their grand father's property and cash assets or are they excluded on the pretext that their father has passed away during their grand father's lifetime? Please feel free to emphasise in detail.
END QUOTE

 

5.Background of enacting section -4 of  Muslim Family Law Ordinance- 1961 :-

                                       This law was in fact passed as a consequence of the report of  the commission on marriage and family laws .on the 4^th of august 1955,then the government of Pakistan formed a seven member commission on marriage and family laws to analyze the provision with special emphasis to the protection of the women’s right .It is event the technically  speaking , from the terms of reference .that the commission was not authorized to make comments regarding the problem of succession of orphaned grandchildren .However the commission made the suggestion for the incorporation of the representational rule  of succession of the orphaned grandchildren .   

6.Discussion of section -4 of  Muslim Family Law Ordinance- 1961 :-

                                          Government of Pakistan

                                                Ministry of law

                                      Ordinance no.VIII of 1961

                                      Rawalpindi,the 2^nd march1961

                                                          An

                                                    Ordinance

To give effect to certain recommendations of the commission on marriage and family laws .

Sec.1. Short title ,extent ,application and commencement –

(a)             This ordinance may be called the Muslim family laws ordinance,1961

Sec.4 . succession – In the event of the death of any son of daughter of the propositus before the opening of the succession ,the children of such son or daughter ,if any, living at the time the succession opens, shall per stripes receive as hare equivalent to the share which such son or daughter ,as the case may be ,would have received if alive.   

                                     

7.Advantage of section -4 of  Muslim Family Law Ordinance- 1961 :-

                                   Because of the two fundamental principles of Islamic law of succession ,exclusion based on hierarchy of degree and nearness of relationship ,under certain circumstance , the predeceased child of a deceased person could not get property under shariah law of inheritance. For example , if someone died leaving one son and one sons son from another predeceased son, then according to the classical shariah law of inheritance the son will entire property and sons son will be totally excluded. Undoubtedly such law causes hardships the to the descendent of the predeceased children .

Thus in order to remove the sufferings caused to such orphaned grandchildren ,section 4 of the Muslim family ordinance ,1961was passed.

The Qur’an puts much emphasis on the welfare of the orphans. But it has not been substantiated that the doctrine of representation is only the way to ensure the welfare of the orphan children.

8.Interfere of  section -4 of  Muslim Family Law Ordinance- 1961 :- Undoubtedly ,section -4 is one of the most reformations done in the area of the Islamic law of succession . The impact of the section -4 of the Muslim family law ordinance,1961 upon shariah laws of inheritance is to be analyzed properly . this particular provision encapsulated in section 4 ,in fact , adversely affected certain fundamental principles of Islamic law of inheritance. Some of instances are ………

(1).Violation of order of priority among different classes of heirs:

For the purpose of distribution of property of the property among the heirs, Islamic law of inheritance classifies them into three broad categories in order of priority. They are the sharers, agnatic heirs and distant kindred.  The legal order of distribution among them is that the property will go to the sharers first, and the residue property wick be distributed among the agnatic heirs

in order of priority intra classes. Thus groups one and two may get the property at the same time one after another, since the first group does not exclude the second group rather just takes precedence over the other. The heir who is grouped as distant kindred can succeed only in the absence of the heirs of the first two groups except the husband or widow. Thus, each heir of the first two groups except husband and widow excludes any distant kindred totally. In other words, a distant kindred can not get any property in presence of any sharer or agnatic heir except the husband and widow. This is the basis of exclusion of the heirs which forms the first basis of exclusion. This order of priority is totally diminished by section 4 of the MFLO 1961. Thus under MFLO, even distant kindred, e. g. daughter’s son or daughter’s daughter, gets the property with the heirs of the first and second group.

Under Sharia: A distant kindred is excluded by sharer or asaba.

Heir	Share	Reasoning
Son Daughter	Res	Son is originally an asaba and the daughter has been converted into residuary by the son.
Daughter’s Daughter	Excluded	The heirs of the superior classes (both sharer and asaba)   are present.

Under MFLO:A distant kindred succeeds with sharer or asaba.

Heir	Share	Reasoning
Son Daughter Daughter’s Daughter	Res	Son is originally an asaba and the daughter has been converted into residuary by the son. Daughter’s treated as a daughter.

Under MFLO, a distant kindred not only may inherit with sharer and asaba but even sometimes may exclude a sharer.

Under Sharia: A distant kindred is excluded by a sharer.

Heir	Share	Reasoning
Uterine brother and uterine sister	1/ 3 increases to the whole by Radd	As sharer, they are more than one in number and no excluder to them is present.
Daughter Daughter’s	Excluded	The sharers are present who exclude all distant kindred.

Under MFLO: A distant kindred even may exclude a sharer.

Heir	Share	Reasoning
UB and US		Daughter’s daughter is treated as daughter and so she excludes them like the daughter.
Daughter’s Daughter	½     that increases to the whole by Rada.	Since she is getting the property of the daughter.

(2).Violation of the fundamental principle of distribution between male and female in the ratio of 2:1:

The Holy Qur”an clearly declared that  “a male receives a share equal to that of two females ; 11  Thus, the son will get double of daughter’s share. It will not be applicable between son and son’s daughter, because they do not belong to the same class and the term ‘walad” used by the Qur”anic verse either mean “child”or “son” s xhils” , but in the same case it can not be used for both the meaning. However, this Qur”anic principle which forms an important rule of Islamic law of inheritance has been clearly affected by the provisions of section 4.For example,

Under MFLO: male and female get equal share violating Qur’anic principle of distribution.

Heir	Share	Reasoning
Son’s son (offspring of the pre – deceased son 1)	½             as residuary	Representing his     father  (PDS1)
Son’s daughter (offspring of the pre – deceased son 2)	½             as residuary	Representing his     father  (PDS2)

In the above case , son’ s daughter is getting ½ in the representative capacity of her father though she is a female, whereas Qur’an clearly says about the personal capacity . Interestingly, if both of them would be the oddspring of the same pre-deceased son, then their position under sharia and MELO would have been same. For example,

Both under sharia and MFLO: male is getting double share of the female.

Heir	Share	Reasoning
Son’s son (of pre – deceased son 1)	2/3             as residuary	Representing his     father  (PDS1)
Son’s daughter (of pre – deceased son 1)	1/3            as residuary	Representing his     father  (PDS 1)

Thus , if we consider above two son’s daughters, each of them in fact enjoys the same identity, that is son’s daughter, and sharia also treats each of them in the same way; whereas MFLO distinguished between these two because of the application of the doctrine of representation. This is the double standard taken by the MFLO towards the same kind of heir.

(3).Violation of the fundamental principle pf hierarchy pf degree: 

Islamic law of succession recognizes the princdiple pf hierarchy of degree by which nearer in degree excludes more remote.  Thus the nearness of the relationship forms the prior claim to get the property.

However, this rule is not strictly applicable on Sunni school, as the daughter does not exclude the son’s son, and thus it applied only inthe same class of heirs. But, it is true that under Shia school even the daughter excludes son’s son.

Under MFLO: Violation of the principle of hierarchy of degree.

Heir	Share	Reasoning
Son	½ as residuary	As asaba
Son’s Son	½ as residuary	Representing his father (PDS) whereas he would be totally excluded by Sharia because of the hierarchy of degree by the presence of son.

(4).Creates new methodology of distribution:Under sharia law ,everyone gets the property in his or her own capacity. But p0f section

Creates new methodology of distribution:Under sharia law ,everyone gets the property in his or her own capacity. But p0f section   4 is applied, then every child of the pre – deceased child will get the property in a representative capacity always. Thus, it will create a completely new mode of distribution. The innovative line will be clear from the following example:

MFLO: introduces new scheme of distribution

Heir	Share under MFLO	Share under Sharia
Son’s son (of PDS 1) Son’s son (of PDS 1)	½    representing their father PDS1, each gets 1/4	All will be converted into residuary together to be divided the whole property among them equally, each gets 1/3 at his inde3pendent capacity.
Son’s son (of PDS 2)	½    representing their father PDS2

In the above examples, someone dies leaving 2 son’s sons from his first pre – deceased son and  1 son’s  . sharia treats them equally as each of them gets property in his independent capacity. But, the MFLO distributes the property to them as the representatives of their deceased father, Thus, interestingly, MFLO has become discriminatory towards the sons of the same grade under the similar circumstance. Probably, the persons who advocated for making such a rule they even could not contemplate of such an anomalous situation, though they always tried to portray their report to had been made based on equity and just principles.

(5).Unnecessary interference under certain circumstances :- There are many cases where the orphaned grandchildren are not deprived even under sharia law. But, section 4 becomes applicable everywhere irrespective of their exclusion. For example , if someone dies leaving one daughter and one son’s son. Then according to sharia the daughter will get ½ as a sharer and the rest ½ will go to the son’s son . but MFLO modifies it and accordingly , daughter will get 1/3 and the son’s son gets 2/3. there is no logical basis for bringing such a change.

(6). It diminishes the difference between male and female heirs and also undermines the superior female heir :  Under the MFLO , the son’s son and son’s daughter enjoy the same status , as each of them is treated as representative of his/ her father and thus enjoys the status of a son . Anomalously , it is still recognizing the fundamental difference between son’s and at the first level , but does not recognize the same in the next level .

(7).Abolishes the original status of the son’s daughter as a share with the impact of reducing the number of “Qur’anic heirs” (sharers) from 12 to 11:Under MFLO  the status of son’s daughter has been changed and now she is always enjoying the status of an agnatic heir representing the son and the gets the residue like the son even in the absence of her male counterpart .  Thus  , in no case now the son’s will be treated as a sharer under MFLO , the heir of the first class . Because , section -4 generally applied  the rule pf representation in case of son’s daughter and so even she is not excluded by the Sharia,  Still the MFLO will be applicable and will be confer with her  the hypothetical status of her dead father . In practice , by the application of section 4 son’s daughter will never get any property as a sharer in her own capacity . so. Consequently , the total number of sharer now has become eleven, which is contradictory to the established number of sharers for long as a twelve.

(8).violates the principle of ‘tasib’ : Son’s daughter is originally a share and by tasib she is converted into a residuary only by her male counterpart and gets the residue. Thus under sharia law according to tasib a son’s daughter can never be an asaba in her own without her male counterpart , whereas under MFLO she is always treated as an asaba in her own even in the absence of any of her male counter parts.

9.Provable solution:-

There is an alternative solution that was suggested by some person that is to make a Will” by the grandfather in favour of the said grandchildren. It does not affect the sharia law of succession as section 4 of the MFLO does affect.

A ‘Will’ must be made as follows, no ‘Will’ for more then one-third of the property or anything in favour of any heir who succeeds, then in no way it hampers the succession law.

The advantages of such device are that—firstly, this system of Will may be made applicable in those cases where the said grandchildren are excluded only. So if any grandchildren of any predeceased child gets property under the original scheme of sharia law of inheritance, this rule of obligatory bequeath will not be applicable.

Secondly, it solves the problem following a different device, so in no way it affects the sharia law of inheritance.

Thirdly, no question of being affected of other heirs arises, unlike MFLO. It does not abrogate the male-female ratio of the property as it is an independent way of solving the problem, as that rule is applicable only in the case of succession. Thus, it appears that following this device any clash with the Quranic verses regarding inheritance may be avoided technically. This is the great advantage of this formula  

10.Conclusion :-

                                         To   conclude , it appears that the concept of representation as has been imported by section 4 of the Muslim Family Law Ordinance , 1961 has in itself intrinsic conflict with Islamic law of succession . it upsets the while structure of islamic law of  inheritance . it also violates the rule of  ijtihad , as an ijtihad cannot be done that results violation of any Qur’anic verse. At the same time , it created injustice to others by concentrating justice only to the orphaned grandchildren .  In doing so , it created more problems than solution . Unnecessary interference in another great defect of this law as in many cases it provides a new scheme of distribution for the orphaned grandchildren though they were not actually deprived under the existing sharia law .