Section 4 of the MFLO 1961; No Retrospective Effect
Chowdhury Tanbir Ahamed Siddique:
When a child loses his father or mother or both, he/she becomes an orphan. An orphan never goes beyond the root of his/her strain automatically, but voluntarily can. In the eyes of law, after losing a father no child will become a stranger or alien of their grandfather’s family. But unfortunately, before 1961 in our country there was a practice where orphaned grandchildren were treated as aliens, they didn’t get any property from their grandfather as an inheritance. That was the darkest era of the Muslim Sharia Laws. For more clarification, when a father dies before opening the succession, his children were not entitled to get property from his father as an inheritance. We are very well known that Muslim Sharia Laws came from the Holy Quran, Hadith, Ijma, Qiyas. But there was a misinterpretation of the inheritance rights of orphaned grandchildren by jurists. The Very strong evidence is that our Prophet Mohammad (Sm) was also an orphaned grandson, but he was not abducted from his inheritance rights. It’s clear that lack of potential interpretation, this controversial theory was established in Muslim Sharia Law.
In the year 1961, I mean in Pakistan period an ordinance was passed named The Muslim Family Laws Ordinance 1961. Section 4 of the mentioned ordinance was the key drafting as well as the main attention of the lawmakers. Section 4 provides,
“In the event of death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stirpes, receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive.”
Problem solved, the deceased person’s children will receive their share as they are alive. So, after passing this ordinance no orphaned grandchildren are abducted from their grandfather’s property as inheritor. Now they are entitled to such an amount of property, which they would get if their father is alive.
But alas! After 1961, when orphaned grandchildren’s inheritance rights were solved, at the same time a technical legal problem also arose where huge controversy and debate also happened. The problem was about the succession before 1961 where orphaned grandchildren were deprived, can they claim their right under section 4 of the Muslim Family Laws Ordinance 1961?
It’s true that before passing this ordinance a lot of orphaned grandchildren were to abstain from their grandfather’s property. But that was legal although unethical. After that when the ordinance passed, most of the orphaned grandchildren were claimed for their property which transferred to other shareholders before 1961. This ordinance passed in 1961, so it will only deal with the dispute of 1961 and after 1961 not before it’s born. What happened before 1961, that’s not the headache of this ordinance. A judgment establishes this concept strongly that the Muslim Family Laws Ordinance 1961 has no retrospective effect. The case was Sarwar Jan vs Mukhtar Ahmad PLD 2012 SC 217. This case deals with the issue of retrospective/prospective applicability of the Muslim Family Laws Ordinance 1961. In this case, the Supreme Court of Pakistan rejected the plea that the Ordinance could have retrospective application. The facts of the case are that Ilam Din died in 1956. One of his sons had died a year before his death. After the promulgation of the Muslim Family Laws Ordinance 1961, the descendants of the predeceased son applied for their share of the estate of their grandfather on the basis of the right created under the section 4 of the Ordinance. The court decided that the Ordinance would only be applicable prospectively. The matters relating to the inheritance that had been settled before the promulgation of the Ordinance would not be reopened to financially benefit the children of predeceased children of a propositus.
Nowadays it stills an issue of a dispute where peoples are not agreeing with the transfer of shares before 1961. They are claiming their share as orphaned grandchild which was already transferred to another before 1961. What happened before 1961 that was legal, no one can claim their orphaned grandchild share for any act which was before passing this ordinance. That’s not the foolishness of random people, it’s a legal mechanism. Government passes each and every law with a proclamation where it mentioned that this law will come into force from which date. Sometimes the government passes a law in this year but mentioned that this law came into force 5 years or 10 years ago etc, it’s called retrospective effect. But, the Muslim Family Laws Ordinance 1961 has no retrospective effect. So, if any orphaned grandchild lost his inheritance right before passing this ordinance, he or she or their heirs can’t claim remedy under this ordinance.
Chowdhury Tanbir Ahamed Siddique: Writer, Researcher, Land Surveyor.