The Muslim Family Laws Ordinance 1961: Unusual Problems
- Introduction To The Muslim Inheritance Law
- Description: Muslim Family Laws Ordinance 1961
- Why Pakistan Government Changed the Rule of Muslim Inheritance?:
- The Aftermath of the Change:
- The Unusual Problems and Authentic Solutions:
- Famous Case Law Relating With The Muslim Family Laws Ordinance 1961 :
- My View About MFLO 1961:
- Related Law Books PDF and Case Law PDF
- Free Download Case Law on The Muslim Family Laws Ordinance 1961 PDF
Introduction To The Muslim Inheritance Law
The Muslim Family Laws Ordinance 1961 was enacted to safeguard predeceased children. Muslim Inheritance is based on the theory that generally every male heir gets a double portion compared to every female of the same stage except father, mother, uterine brother, and uterine sister. But the Muslim Family Laws Ordinance 1961 is directly conflicting with this theory and using Latin theory Per stirpes. I strongly believe that this ordinance must have to modify only for not conflicting with the Holy Quran.
Description: Muslim Family Laws Ordinance 1961
According to nearer in degree excluded the more remote theory when a “A” died leaving with former died son B’s son “D” and B’s daughter “E” and a living son “C”,. The living son “C” will take the whole estate and “D” or “E” will not get anything. As a result, the living son “C” becomes rich, on the other side son, “D” and daughter “E” of the former dyed son “B” become poor. So, “D” and “E” become benignant of “C”. In South Asia, we saw many courteous and rich families became beggars only cause of this theory.
What Does The Holy Quran Say About Muslim Inheritance?
Is the Holy Quran truly desired to make “D” and “E” poor or excluded from the estate? The answer will be negative. According to The Sura Nisha of The Holy Quran – when you are inheriting of state of a deceased person and someone came who is poor or orphan give something to them.
The Holly Quran is the complete code of the human being. If we follow the rules of The Holy Quran then the orphans “D” and “E” should not became benignant of “C”. The Holy Quran there is no certain portion specified for “D” and “E”. As a result, when we inherit the estate of “A” excluded “D” and “E”; although they are orphans and they should have entitled to get the estate of their deceased grandfather. This rule adopted from the Latin legal term named Per stirpes.
Why Pakistan Government Changed the Rule of Muslim Inheritance?:
For a long time ago, this inhuman rule should be changed but no one takes a single initiative but Ayub Khan. Ayub Khan was the of the more inferior military rulers of Pakistan and the world. But he amended the inhuman rule of succession in 1961, which was called The Muslim Family Laws Ordinance 1961. According to section 4 of this ordinance “In the event of the death of any son or daughter of the propositous 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 a share equivalent to the share which such son or daughter, as the case may be, would have received if alive.”
The Aftermath of the Change:
The Muslim Family Laws Ordinance 1961 became activate on 15th July 1961. If “A” died after 15th July 1961 “D” and “E” will get become the shear holder of the deceased grandfather “A”. But the shear will be divided into two at first then the former dead son “B”’s son and daughter take the “B”’s shear with equal shear.
The Unusual Problems and Authentic Solutions:
In those examples I used (S) for Son, (D) for Daughter, (SS) for Son’s Son, (SD) for Son’s Daughter.
The Problem No: 1
The problem no: 1 we can see son “C” take son’s son takes “D” and son’s daughter “E” takes. So, “D” and “E” taking equal shear from their deceased grandfather. According to the main characteristic of Muslim Inheritance; every male heir gets a double portion compared to every female of the same stage. But this case son’s son and son’s daughter taking equal shear each. This is the biggest mistake of Muslim Family Law Ordinance -1961.
The Problem No: 2
In the Problem no: 2 “C”(S) and “D”(SD) both are taking each. But when the deceased leave with two living son and they got each. According to the holy Quran actually “D”(SD) get her shear from her father “B” and rest will take “C” as a residuary. After 1961 “D” got her father’s full portion. Also, this is one of the biggest mistakes of The Muslim Family Law Ordinance 1961.
The Problem No: 3
The problem no: 3 shows that “C”(D) is taking 1/3 and “D”(SD) gets 2/3. But According to the Holy Quran “C”(D) takes 1/2 and “D”(SD) must have to take 1/6. There is 1/3 remaining; it will take by “C”(D) and “D”(SD) according to Return Maxim as a result “C”(D) take 3/4, “D”(SD) takes 1/4. This rule must be specified in Section 4 of The Muslim Family Law Ordinance 1961.
Famous Case Law Relating With The Muslim Family Laws Ordinance 1961 :
The Honorable Peshawar High Court ruled that Under the Ordinance Mst. Zarina daughter of Mir Afzal is entitled to inherit the same share to which her father Mir Afzal was entitled in the inheritance of his father Shah Zaman. The reason is that the Ordinance by adopting the principle of per stripes distribution of inheritance meant to keep intact the share of the predeceased son or daughter to be inherited by his son or daughter according to it, the heirs of the predeceased issue will inherit from propositus what their predecessor-in-interest would have inherited. The impugned interpretation militates against the letter and spirit of Section 4 of the Ordinance which could not be the intention of the Lawmakers.
This case law is very much interesting because this case law told to follow the strict rule of the ordinance. But they cannot deny the rules of the Holy Quran. The Honorable Peshawar High Court should have to think about the rules of the Holy Quran. However, In Bangladesh we are also strictly following The Ordinance.
My View About MFLO 1961:
The Muslim Family Laws ordinance 1961 has changed a lot of things. It gave orphans to entitle of grandparent’s estate. This ordinance should be amended in the view of the Holy Quran.
The creator of this ordinance adopted the Latin called Per stirpes. But this rule is not recognized by the Muslim Law Makers and the Holy Quran. The creators of the Ordinance should have to adopt every male heirs get double portion compared to every female of the same stage except father, mother, uterine brother and uterine sister.
This Ordinance was created in Pakistan for Pakistan. But in Bangladesh this law must be changed and take it to a modern-day demand with the view of the Holy Quran. So, I have been proved that the problems created by this Ordinance can be curable and can be made it more convenient with the society and the Holy Quran.
Three examples given above are proving that section 4 of the Muslim Family Laws Ordinance 1961 there are some errors in it. Section 4 of the ordinance has some characteristics which are directly violating some rules of the Muslim Inheritance law.
The Muslim Law of inheritance based on the Holy Quran and changed by The Muslim Family Law Ordinance. So, why we cannot modify The Muslim Family Laws Ordinance 1961? I am strongly believing that The Ordinance must have to modify for correcting its own error. I would not like to exclude children of the predeceased son or daughter of the deceased. Because of that also I would not like to make the Muslim Inheritance law irrelevant with the Holy Quran.
Please shear your’s problem about MFLO 1961 in comments below, I will try my best to solve it.
Your Comment Please