28/06/2022
2022 SCMR 1131
Great grandchildren are not within the meaning of “children” for the purposes of s. 4 of the Muslim Family Laws Ordinance, 1961 (“Ordinance”)?
S.4 has been declared to be contrary to the Injunctions of Islam by the Federal Shariat Court (“FSC”) by its judgment reported as Allah Rakha and others v Federation of Pakistan and others PLD 2000 FSC 1. However, this judgment is under appeal before the Shariat Appellate Bench of this Court (C.Sh.A 1/2000 and connected cases (Tanveer Jehan v Federation of Pakistan and others, etc.)). Article 203G of the Constitution provides, inter alia, that no court including this Court itself shall, save as provided in Article 203F (which provides for appeals to the Shariat Appellate Bench), “entertain any proceeding or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the [Federal Shariat] Court”. The proviso to clause (2) of Article 203D provides, inter alia, that if an appeal has been preferred to the Shariat Appellate Bench then the decision of the FSC shall be deemed stayed pending disposal of the appeal. The position that emerges therefore is that for purposes of deciding this matter s. 4 of the Ordinance is to be regarded as being in the field but the provision must be interpreted and applied on its own footing, purely as a matter of statutory interpretation.
Now, it is a fundamental principle of the law of Muslim inheritance that the legal heirs of a person are only determined at the moment of death and not before. This rule is clearly reflected in s. 4 by use of the words “opening of succession”. The point is then reinforced by the immediately succeeding words, “the children of [the predeceased] son or daughter, if any, living at the time the succession opens” (emphasis supplied). The words emphasized impose a clear limitation: s. 4 applied only to those grandchildren as are alive at the time of death of the propositus. Had these words been absent then, perhaps, a case could be made out for the interpretation put forward by learned counsel for the leave petitioners. However, the words do exist and therefore must be given due effect. To accept the case sought to be made out would, in effect, erase them from the statute. That would be contrary to well established rules of interpretation. It is of course well known that under the rules of Muslim inheritance the legal heirs of a predeceased son or daughter do not inherit from the parent of the predeceased. Section 4 carves out a carefully constructed exception from this rule. It is not without significance that the section does not refer to the legal heirs of the predeceased son or daughter: the words used are “the children of such son or daughter” and not ‘legal heirs’. Quite obviously for the predeceased son or daughter to have children they would have to have had a spouse, who could also be alive when the parent passes away. Yet, any spouse is excluded from the applicability of s. 4. It is also to be kept in mind that some of the rules of Muslim inheritance can apply across generations, which is encapsulated in the phrases “how high so ever” and “how low so ever” used in the standard treatises. Any possibility of s. 4 having such an effect (which, in essence, is the case pleaded by the leave petitioners) is carefully excluded by use of the words emphasized above, i.e., “living at the time the succession opens”. Read as a whole, the purpose and intent behind s. 4 is clear. The exception created by it is limited and circumscribed. It applies only to those grandchildren as are living at the time of the death of the propositus. An extended meaning cannot be given to the section in terms as urged by learned counsel for the leave petitioners. They, being the great grandchildren, did not have any share in the property left behind by the propositus on the basis of s. 4.
