Divergent Interpretations of Section 4 of the Muslim Family Laws Ordinance 1961, by the Superior Judiciary of Pakistan

Abstract

Representational succession under Section 4 of the Muslim Family Law Ordinance 1961 (hereinafter Ordinance) was introduced to reduce the economic sufferings of orphaned grandchildren. Superior Courts of Pakistan have interpreted it divergently. Interpretive tensions reflect confusion on the part of the legislature and judiciary. This article analyses different interpretations of Section 4 by the superior judiciary. It also examines the extent of consistency and inconsistency in its construction. Initially, courts had interpreted Section 4 on technical grounds and declined to grant any share to orphaned grandchildren. Soon after the court had construed it liberally and overruled the technical objections. Later on, courts interpreted it literally and granted the entire share of a predeceased child to his orphaned children. Then supplementary interpretation of Section 4 was offered by referring to Shariat law. Furthermore, courts had presented restricted interpretation. Both supplementary and restricted interpretations are against the clear intent and text of Section 4. In remote construction, the court had interpreted Section 4 out of context and determined other rights of a grandchild. The tangled interpretation of Section 4 has worsened the matter and further puzzled the distribution of shares to grandchildren. It seems that the Judiciary has interpreted it according to its whims instead of its spirit. There is no consistency in the construction of Section 4. However, it is needed on the part of the judiciary to develop a consistent theory in the construction and application of Section 4.