Custom and Female Right of Inheritance

An Appraisal of the Evolution of Judicial Decisions in British India and Pakistan

Abstract

This article analyses the incorporation, recognition, codification, and enforcement of custom in the prevalent law of the subcontinent during British rule, by analysing the series of judgments on cases related to female right of inheritance. It also answers the following questions: From where these customs originated among Muslims? What were the principles, which English-led courts settled for custom to be enforced as law? How were these customs codified in Punjab during the land settlement process by the English land revenue authorities? and subsequently, which statutes provide basis for recognition of prevailing custom as law? Answers of these questions are extracted from the decisions announced before independence by colonial courts and after partition by excusatory legal system of Pakistan. Then, the article discusses the phase of Islamisation of adopted colonial law, which starts from promulgation of West Pakistan Muslim Family law Act on March 15, 1948. It also investigates how courts interpret that law, what conflicts emerge from these interpretations, how long the plea of “existing customary law in tribes” remained the ratio decidendi of decisions by the court over Muslim Personal Law in cases where female descendants were ousted from their right of inheritance ordained by Allah in the Qur’an, especially the case of Muhammad Ishaque decided by Federal Shariat Court in 1981, which for the first time declared customary law repugnant to the injunctions of Islam, and the subsequent decision of the Supreme Court in appeal on it and amendment in the form of section 2-A of Muslim Personal Law Shariat Application Act in 1983. Finally, it analyses the decisions of the court after that amendment with its scope in terms of its retrospectivity prior to March 15, 1948, which remains the point of contention in most of decisions especially in 2012 when the Supreme Court restricted operation of section 2-A before March 15, 1948 by a dissenting decision.