Section 4 of Pakistan’s Muslim Family Laws Ordinance, 1961:

An Exploration of Interpretive Tensions

Shahbaz Ahmad Cheema

 

Abstract: Section 4 of the Muslim Family Laws Ordinance (MFLO) in Pakistan is a benevolent legal provision for the inheritance rights of the children of predeceased children of propositus who are disinherited under classical Islamic law of inheritance. However, after the lapse of more than six decades since this enactment, no uniform and coherent formulae have been devised to construe and apply it. Many interpretive tensions have arisen during the course of its application by the judiciary which the present article explicates. The foundational tension was created when a class of non-legal heirs was converted into legal heirs and transposed on a self-contained scheme of classical Islamic law of inheritance. The enactment of the Muslim Personal Law (Shariat) Application Act 1962 also contributed to the engendering of interpretive tensions. Furthermore, the judiciary’s concern for the disinheritance of orphaned grandchildren under classical Islamic law of inheritance, if Section 4 is not followed, manifests its potential for interpretive tensions. The paper argues that the construction of Section 4 by the judiciary is characterised by two considerations: the first is Islamic transformation of the provision, and the second is a will to protect orphaned grandchildren’s interests.