17/08/2026
SECTION 4 OF THE MUSLIM FAMILY LAWS ORDINANCE, 1961: A WELL-INTENTIONED PROVISION BUT IN CONFLICT WITH THE QUR’ANIC TEXT AND THE PRINCIPLES OF ISLAMIC INHERITANCE LAW?
1) Section 4 was introduced with the objective of providing a share in the estate to the children of a son or daughter who had predeceased the propositus. However, from an Islamic law perspective, this provision raises a fundamental Islamic jurisprudence question. Under the Qur’anic scheme of inheritance, particularly the principle that a nearer heir excludes a more remote heir, a grandson whose father had died during the lifetime of the propositus would ordinarily not inherit in the presence of his paternal uncles and aunts. The same principle applies, subject to the relevant rules of succession, to the children of a predeceased daughter.
2) Before examining the controversy surrounding Section 4, it is important to appreciate the possible rationale behind the classical rule under which, in the relevant circumstances, grandchildren whose parent had predeceased the propositus were not made direct heirs in the presence of nearer heirs. Islam is a universal faith, and the Qur’anic scheme of inheritance should therefore not be viewed merely as a mechanism of exclusion, but as part of a broader system intended to protect family rights and prevent injustice. Where a son or daughter predeceases the propositus, the grandchildren may often be young and vulnerable effectively orphaned at the time when the estate eventually opens. The Qur’an places great emphasis on safeguarding the property and rights of orphans. In practical terms, the persons most likely to control the estate and, unfortunately, to deprive such children of meaningful benefits would ordinarily be the surviving close relatives and heirs. The classical framework may therefore be understood as leaving room for the propositus, during his or her lifetime, to make appropriate provision for such grandchildren through wasiyyah (bequest), subject to the applicable rules and limits governing bequests to non-heirs. This could enable a grandfather, grandmother, maternal grandfather or maternal grandmother to identify and secure a defined portion or property for the grandchildren, rather than leaving them dependent upon a fractional inheritance share which, in the practical division of land, might place them at the mercy of surviving uncles, aunts and their families. In a composite or jointly held property, for instance, the most valuable or strategically located portions might remain with the surviving heirs, while the vulnerable grandchildren could be left with inferior or inconvenient portions. Thus, the exclusion of such grandchildren from direct inheritance in the classical scheme may be viewed not simply as deprivation, but as a legal structure within which their protection could be secured through other recognised mechanisms, particularly a bequest made during the propositus’s lifetime.
3) The most important mechanism available under Islamic law is a will (wasiyyah) in favour of a person who is not otherwise a legal heir, subject to the applicable limitations. In this context, one may legitimately ask whether, instead of introducing Section 4, the legislature could have adopted the concept of a mandatory will, particularly for the benefit of grandchildren whose parents had predeceased the propositus. Because Will can only be made in favor of non heir and Allah almighty for Said reason in Quran made grandchildren non heir in supra eventuality so that the propositous should make Will in favor of their grandchildren during their lifetime.
4). Several Muslim-majority jurisdictions, particularly in the Gulf and other parts of the Muslim world, have adopted forms of compulsory or mandatory bequest for such circumstances. Had a similar approach been adopted in Pakistan in the 1960s, the hardship faced by certain grandchildren could arguably have been addressed without altering the fundamental structure of the Qur’anic law of inheritance.
5) This becomes particularly important when we consider the Qur’anic emphasis on protecting the rights of orphans. The Qur’an repeatedly warns against consuming the property of orphans and treats it as a grave wrongdoing. In practical terms, the people most capable of depriving an orphaned grandchild of his or her economic rights may unfortunately be the very relatives who remain in possession of the family property.
Consider, for example, a jointly held or composite piece of agricultural land where the paternal uncles and aunts survive while the father of a grandchild has predeceased the propositus. Even where the grandchild has no legal share under the classical rules of succession, the practical reality may be quite different. The surviving relatives may retain the better or more valuable portions of the property, while the children of the predeceased heir may effectively be pushed to inferior locations or left with portions of land that have little practical value. In cases involving possession, demarcation and physical division of land, the formal exclusion from inheritance can therefore have serious socio-economic consequences.
6). It is precisely this tension between the textual rules of succession and the protection of vulnerable family members that, in my view, deserved much deeper consideration when Section 4 was introduced.
7). The historical decision to introduce Section 4 also raises an important constitutional and jurisprudential question. The Federal Shariat Court, in a decision concerning Section 4, declared the provision to be ultra vires the Constitution on the ground that it was inconsistent with the injunctions of Islam. The matter has subsequently remained subject to proceedings before the Shariat Appellate Bench of the Supreme Court under Article 203D, and the final determination of the issue remains awaited.
What is particularly intriguing from an academic perspective is that Pakistan had, at the time of framing its family laws, access to a distinguished body of Islamic jurists and scholars through the relevant constitutional and advisory institutions. One may therefore reasonably ask: Why was Section 4 chosen instead of developing a mechanism of mandatory bequest that could have addressed the hardship of orphaned grandchildren while preserving the Qur’anic scheme of inheritance?
As a law student, a practising advocate and, subsequently, a judicial officer with some experience in civil and family adjudication, I believe that this is precisely the kind of question that requires us to move beyond a superficial approach to Islamic family law. The interaction between Qur’anic text, classical jurisprudence, social realities and modern legislation requires careful and deeply reasoned analysis.
The objective should not be to alter the Qur’anic scheme of inheritance merely because a particular result appears socially inconvenient. Nor should the law ignore genuine hardship faced by vulnerable members of a family. The better approach may be to preserve the fundamental rules of inheritance while employing mechanisms already recognised within Islamic jurisprudence—such as wasiyyah—to protect those who fall outside the class of legal heirs.
In my view, therefore, the present controversy surrounding Section 4 provides an opportunity for a much broader reconsideration of the legislative policy underlying Muslim family law in Pakistan. If the Supreme Court ultimately concludes that Section 4 is inconsistent with the constitutional injunctions of Islam, it could also recommend or facilitate the development of an appropriate statutory framework for a mandatory will or compulsory bequest for qualifying grandchildren, drawing upon the experience of other Muslim jurisdictions.
Such an approach could potentially achieve a better balance: preserving the Qur’anic principles governing inheritance while ensuring that orphaned grandchildren are not left without meaningful protection merely because their parent happened to predecease the propositus.
Ultimately, the real objective should be neither to circumvent the Qur’anic law of inheritance nor to impose hardship in its name. It should be to understand the underlying philosophy of Islamic succession law and to develop a legal mechanism that protects both the sanctity of the revealed rules and the legitimate interests of vulnerable members of the family.
That, in my humble view, is where the real academic debate on Section 4 should begin.
Copied from the wall of Raja Faruku Ali khan
