Critical Evaluation of Section 4 of Muslim Family Law Ordinance with Case Laws. Compare it with Islamic law and of Family Courts Act, 1964.”

Author: Fazila Nawaz 

2          ABSTRACT

First Part of this paper covers Section 4 of Muslim Family Law ordinance that contains the principles of representatives which is contradicting with the Islamic principle of inheritance. However, in order to protect the rights of orphans the legislation of Pakistan and Judiciary strive hard to keep the principle of representative in practice. The second part of this paper covers the analysis of Family Court Act 1964. The sections of the Act are bringing improvement in the family laws; however, amendments are necessary to improve the enforceability of the provisions in the better way.  This study has critically evaluated Section 4 of the Family Law ordinance and has critically analyzed the Family court Act through context based research. Both topics have being covered under different heading to precisely cover the topics. 

PART ONE

1.     INTRODUCTION TO SECTION 4 OF MUSLIM FAMILY ORDINANCE

Islam is the only religion that has protected the rights of vulnerable to a greater scope. Quran and Sunnah have commanded to create social equality. Thereby, any step that creates hurdles for the vulnerable to achieve their rights is never supported by Islamic principles. However, in dealing with the rights of property Islam has laid the principle of inheritance that gives the preference in the kinship to nearer and excludes the remoter. The purpose of this rule was to avoid multiple transactions and complexities arise due to it. [1]

However, the matter of rights of orphans can never be subordinated over the principle of inheritance. In fact, when Quran has said the preference to be given to the nearer one than who can be more near to a grandfather other than the son or daughter of his deceased son or daughter. It is not necessary that the meaning of near could be construed only in meaning of the blood relation. Therefore, especially in dealing with the orphans of first degree there would be no repugnance to set aside principle of inheritance and prefer projection of rights of orphans.     

2.     CLASSICAL MUSLIM PRINCIPLE OF INHERITANCE

The classical Muslim principle of inheritance follows the rule that distant kindred are exempted from property. Quran has placed the law of succession and inheritance to the property of intestate Muslim on two grounded principles that the propositus has the sole ownership of the property inherited or self acquired in his lifetime, and the question of succession to the property of propostitus arise after the death only. These grounded principles are backed by the verse read as;

"You know not who among your children and parents are nearest to you in benefit. This is the law of God. Indeed, God is Wise and all-Knowing." (Quran 4:11)

In coherent to the verses of Quran the Schools of Muslim law to the question of better title of heir to acquired the estate is determined by giving the firmed position to the one who is nearest to the deceased. After satisfying nearest to the deceased, the shares go to the next nearest and the distant agnates does not inherit from the near agnate. The illah behind this rule is to avoid multiple transactions in a property and to protect the rights of the one who has a strong title to the property. [2]

This fundamental principle excludes the predeceased son’s son or daughter from the inheritance by the surviving son. For instance, son of a deceased is not entitled to have the inheritance rights from his grandfather when the uncle is surviving. As the son’s son or daughter is one degree remoter then the son of the grandfather surviving. Thus, this rule creates complexities when it comes in contradiction with the rights of orphan grandchildren that Quran has made compulsory to be protected. [3]

“Give orphans their wealth and do not exchange your worthless possessions for their valuables, nor cheat them by mixing their wealth with your own. For this would indeed be a great sin.”

3          PRINCIPLE OF REPRESENTATION IN SECTION 4 OF MUSLIM FAMILY LAW ORDINANCE

In order, to better protect the rights of orphan grandchildren in heritance the legislation of Pakistan has incorporated the principle of representation in the Muslim Family Law Ordinance. This statue allows the inheritance rights to the children of a propositus to acquire the share in the property according to the per stirpes received share that will be equivalent to the share which such a son or a daughter would have received if the deceased was alive.  The incorporation of principle of representation has attracted major controversies in the courts of Pakistan. The strong religious bodies have opposed this legislation to be repugnant to Islamic injunction and the judicial organ is seemed reluctant to finalize any uniform decision upon this law. Thereby, after the firm decision of Federal Shariat Court to repeal the Section 4, an appeal made against this decision is still pending Shariat Bench of Supreme Court.[4]

4          ARGUMENTS AGAINST THE SECTION 4 AND COURTS PRACTICES 

4.1     Allah Rakha v Federation of Pakistan[5]

In case of Allah Rakha v Federation of Pakistan, the claim was made that the Section 4 of Muslim Family Law ordinance is repugnant to the Islamic Injunctions. The Pakistan Commission on Marriage and Family law argued that there is no sanction found in Quran or Hadith to exclude son or daughter of a pre-deceased from the inheriting property from their grandfather. Also, such exclusion is entirely against the spirit of Islam and Quran. Thus, invokes ijtehad and the incorporation of principle of representation is also supported by the customary law of Pakistan. The solution in the form of obligatory bequest Scheme, suggested by the ulema was also rejected by the commission on grounds that it doesn’t do full justice with the orphans.

The ulema on the other side strongly condemned the arguments of commission stating that the law goes against the unambiguous laid rule by the Quran.  As suggested by the Islamic Ideological Council the burden of protecting the rights of orphans were put on the shoulders of aunts and uncles to comfort them with the economical facilities was not applicable to our society. However, the court was satisfied with the suggestion of ulema to make obligatory the bequest form for the inheritance rights of orphans. Thus court concluded the decision that Section 4 is repugnant to Islamic injunctions.

 

Other then the controversy to right of inheritance by the grandchildren from the grandfather the Pakistani courts has faced difficulty in deciding the amount of share to be inherited by the orphan.

4.2         Kamal Khan v. Mst Zainab[6]

Grandchild of the propositus whose mother was predeceased claimed for the share in the inheritance. The court decided to grant not more than one-half of the estate of her mother share and remaining half was revert to the collateral's. The court in essence wanted to protect the orphaned grandchildren yet, not beyond the share they are entitled to. 

The criticism on Section 4 by the ulema is also made on the grounds that it permits children of predeceased daughter to get the share from the children of predeceased son. The distant kindred were given the right of inheritance which is also against the Sunni fiqh.

4.3         Mian Mazhar Ali v Tahir Sarfraz[7]

In this case the Lahore High Court decided the widower of predeceased daughter of propositus has the right in the share of the inheritance. Whereas, in case of Ghulam Haider v Mst. Nizam Khatoon and Haji Muhammad Hanif v Muhammad Ibrahim the decision of the court were opposite to this ruling.

5          CRITICAL EVALUATION ON SECTION 4

The section 4 of Muslim Family Law Ordinance contains the western of principle of Representation that conflicts with the classical Muslim principle of inheritance. Islam in its core principles has always protected the rights of vulnerable. Quran has strictly commanded to protect the properties of orphans. The principle of inheritance was made to avoid the complexities that can be created due to multiple transactions. However, when the question is about protecting the rights of orphans in property there is no repugnance to set aside the principle and protect the main essences of Islamic law that is equality and justice to the vulnerable. Islam supports social equality and justice; thereby the preference of protecting the rights of orphan against the principle of inheritance will be in parallel with the objectives of Shariah.

For the issue of complexities arises because of the multiple transactions due to far degree kindred’s the court should deal with the cases according to the facts of the case and in accordance with the principle of social equality. However, for first degree of the nearest that includes the son or daughter of propositus, the principle of representation better suits for the protection of rights.

6          CONCLUSION

 Section 4 of the Muslim family law contains the principle of representation that contradicts with the Muslim principle of inheritance. The legislation of Pakistan has preferred to protect the rights of orphans, thereby has neglected the principles of inheritance in Islamic law. However, controversies against this application are still pending in the courts.  Yet, it is far better to apply the principle of representation in cases of first degree orphans to avoid the violation of orphan rights in Islam. 

PART TWO

7          INTRODUCTION TO FAMILY COURT ACT, 1964[8]

The family Court Act, 1964 entrusted the family matters to the family courts. The Family courts were first administered by the federal government of Pakistan, yet latter on brought under the provincial government. There are 26 sections in the Act. Eventually several amendments have been made to improve family laws in Pakistan.

The Section 3 of the Act has directed the government to establish district family courts in Districts. However, as we see the pending cases and limited courts in Pakistan has created administrative challenges for the Pakistani Judiciary and family cases are left in deadlocks for years. However, the Act has so far brought improvement in family law of Pakistan.

The Act stipulates that a family judge must have the experience as a district judge or an additional attorney to sit as a family judge. The Act gives the jurisdiction to the provisions of Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961 to hear a case according to the schedule.

The suit according to law, generates in a family court where the writings of the plaintiff contains the material facts related to the dispute and give the number of witnesses that will be produced by the plaint. The documents mentioned by the plaintiff are also needed to be produced in front of the court. After the plaint access to the court, the defendant is needed to show his presence within thirty days when he is intimation is done. Both defendant and plaint produce their writings before the court on fixed dates. The court tries to reconcile between the parties, if they don’t then the trial of recordings of evidences are produced before the court. Once a matter is concluded the court tries to make reconciliation again. If couldn’t make any consensus, the court moves towards the enforcement of degree. The court can summon the witnesses and a person guilty of contempt of court the court can be sentence to fine. The court permit to appear through an agent other than a witness is a pardha nasheen.

7.1.1        Naushaba Kazi, Xii Civil Judge, Karachi v Mehjabeen Farzana

Advocate Mehjabeen Farzan was alleged for contempt of court. She was accused for insulting and abusing the judge. The court charged her with 5000 fine and simple jail for one week. The accused was also debarred for the court for six months.[9]

8          CRITICAL ANALYSIS ON MAJOR SECTIONS IN FAMILY COURT ACT, 1964 WITH GENERAL PRACTICES [10]

8.1         Establishment of Family Courts and Appointment of Judges

The Family court Act, section 3 deals with the establishment of the family courts in Pakistan. Additionally, section 4 of the Family court gives the jurisdiction to the district judges, additional district judges and the civil judges to adjudicate the cases related to family matters. The general practice is this that provincial government didn’t appoint the judges, instead these are the district judges who appoint one or more courts to deal exclusively with the family cases. The analytical issue of rendering the service of family matters to the district and all the category of civil judges is an administrative issue. As, a lawyer of criminal cases can’t handle the matters related to family as vigilantly and softly, as an expert in family law same is the case with the judges. Thus, the need is to replace judges with the one who are specialized in family laws, instead of giving the judges juxtaposition with the amalgamation practice in other branches of law.     

8.2         Appointment of Female Judges

Pakistani women are so far fight an unending war against the misogynist society to get their rights. Family Court Act specially provision for the appointment of female judges not only supports the women empowerment, yet also facilitates smooth administration justices in the family matters. However, women judges are twice criticized by the traditionalist in Federal Shariat court and hurdles are still being created to keep women away from democratic processes.

8.2.1        Ansar Burney v Federation of Pakistan[11]

Petitioner Ansar Burney argued that women are not allowed in Islam to hold position of judge. He said according to the traditional Islamic jurisprudence that the testimony of women is worth half of one man; hence judgment of two ladies can be equivalent to that of one male. The Federal Shariat Court dismissed the appeal on grounds of the verse that says “what is not prohibited in Quran and Sunnah is allowed.”

Pakistani Judiciary has always paved the way for the female judge; hence we have female judges in all tiers of judiciary. However, as far women family judges is concern it is important to bring further analyses and research to determine the impact of women judges to provide better family court environment. Especially, when the number of women judge is limited in the judiciary.

8.3         Husband Surety Needed to be taken in Maintenance Suit

In Maintenance suits the husband tries to avoid the execution of the decree whereas, the law requires wife to fill an independent execution application. This create difficult for the mother and child to get facilitated with the right of maintenance soon after the separation. Hence, the family courts should be bound to pass maintenance decrees with modes of execution finalized in the final judgment. The decree must bind the husband to immediately provide the maintenance to child and wife. Or the surety bound must be taken from the husband during the time of written statement. Also, he should be refrained from disposing his property without the court permission. This will protect and enforce the rights of the minor. [12]

8.4         Appeal against Interim Order of the Family Courts

Section 14 of Family court Act, allows the family courts to review their own interim orders and appeals are not allowed against these interim orders. Even District judge is unable to review any finalized case, though it is a defective and illegal one. The family courts are subjected to control and supervision of High Court. However, the restriction of the appeal cause the judges to view the case more precisely and lead to delay that is itself going against the rule of family courts to finalize a family matter within six months.

9          CONCLUSION

The Family Court Act has brought improvement in the family laws of Pakistan. However, there are still some practices of court that are needed to be evolved for the better enforcement of laws in Pakistani society. If the legislation will make the laws after analyzing the behavior of Pakistani society especially in family matters a drastic change can be made.  

 

 

                                                                          

 

 

 

 

 

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