Reappraisal of Lucy Carroll’s Tripartite Thesis on Section 4 of Pakistan’s Muslim Family Laws Ordinance 1961

Shahbaz Ahmad Cheema

 

Abstract: The most insightful analysis on multiple constructions of section 4 of Muslim Family Laws Ordinance 1961 (MFLO) - a legal provision providing for inheritance of orphaned grandchildren from their grandparents - was carried out by Lucy Carroll. According to Carroll, Pakistani judiciary construed the said provision in three different manners. She also coined engaging and fascinating phraseologies for these constructions as ‘strict interpretation’, ‘loose construction’ and ‘very loose construction’ to make them comprehendible as well as distinguishable. This tripartite thesis on the interpretation of section 4 has served as a foundational framework for many subsequent analyses. The present article reappraises Lucy Carroll’s tripartite thesis and identifies that there are indeed five different interpretations of section 4 of MFLO instead of three proposed by Lucy Carroll. This article proposes suitable phraseologies for two distinct interpretations as ‘hybrid construction’ and ‘double inheritance construction’. Similar to the originally identified three constructions, these two new constructions are reflective of the unsettled approach of the Pakistani superior courts as to what interpretive space should be crafted for section 4 within a legal landscape that has adopted Islamic law of inheritance as a default system. The article also critically explores the judicial reasoning on the issue of dis/inheritance of the spouse/widow of a predeceased child/son, and then classifies divergent judicial approaches as ‘loose construction’ and ‘hybrid construction’.