A Critical Appraisal of Obligatory Bequest as Prevalent in Muslim Countries
Abstract
The obligatory bequest has been adopted in several Muslim states by legal force. The basic purpose of this adoption is to overcome the economic grievances of orphaned grandchildren. This reform seems to be justified from an Islamic perspective because it does not radically interfere with the Islamic law of inheritance. Those orphaned grandchildren who are excluded under the traditional law of inheritance are its beneficiaries. These grandchildren inherit the share of their predeceased parent within the bequeathable limit of one-third of the estate of their grandparent. However, if the grandparent does not make any bequest in their favour then according to the notion of obligatory bequest court will assume that the grandparent has made the bequest and enforce it. Pakistani courts have preferred obligatory bequest over Section 4 of the Muslim Family Laws Ordinance, 1961. However, obligatory bequest is not an ideal solution, it has restricted its benefit to grandchildren only and no provision is made for the spouse and surviving parent. Additionally, both these reforms of obligatory bequest and Section 4 suffer from similar anomalies of representational succession. However, the state is the ultimate guardian of all deprived and destitute classes. Therefore, the most appropriate way to tackle the economic necessities of orphaned grandchildren is through the welfare and development programmes of the state. This article has thoroughly analysed the obligatory bequest and discussed its different models applicable in Muslim countries. Moreover, it probes the arguments for and against it and examines its different aspects.
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