Interpretation of Section 4 of the Muslim Family Laws Ordinance, 1961 in the Judgments of the Peshawar High Court: An Islamic and Legal Analysis
Abstract
The promulgation of the Muslim Family Laws Ordinance in 1961 marked a significant milestone in Pakistan’s family law framework. Section 4 of the Ordinance grants representative inheritance rights to the children of a predeceased son or daughter in the estate of their grandfather or grandmother, with the objective of providing financial protection to orphaned grandchildren, although this provision departs from the classical principles of Islamic inheritance. According to Islamic jurisprudence, particularly the Hanafi school of thought, inheritance is distributed only among living heirs, and the presence of a closer heir excludes a more remote one. On this basis, the Federal Shariat Court declared Section 4 to be repugnant to the Qur’an and Sunnah in 2000; however, due to a pending appeal before the Supreme Court, the provision remains in force This study presents a comparative analysis of the inheritance rights of orphaned grandchildren within the framework of Islamic jurisprudence and Pakistani family law. An examination of Peshawar High Court judgments from 2017 to 2023 reveals inconsistencies in judicial interpretation and highlights the tension between statutory law and Shariah-based principles. Judicial precedents have, however, confined the application of Section 4 to the descendants of the predeceased child only. The Council of Islamic Ideology, in its recommendations of 1980 and 2006, proposed the doctrine of obligatory bequest (waṣiyyah wājibah) as a balanced solution that safeguards the rights of orphaned heirs without deviating from the Qur’anic system of inheritance. The study concludes that Section 4 should be viewed not merely as a departure from Shariah, but as a mechanism for promoting social justice, equity, and the protection of vulnerable groups. It further emphasizes that harmonization between legal and religious perspectives is essential for the development of a just and compassionate Islamic legal system.
