Section1. INTRODUCTION
In Islamic Law of Succession, the matter of inheritance by grandchildren from predeceased child of deceased stands on a critical position. By the rule of traditional succession law any son of the deceased excludes such grandchildren generally. But now this time many states brought some changes as to such traditional rule for the benefit of such grandchildren which works as shields from total exclusion. Pakistan brought a major change in 1961 by section-4 of the Muslim Family Laws Ordinance (MFLO). In Bangladesh the same law has become accepted through the promulgation of the ‘Laws Continuance Enforcement Order, 1971’.
Section-4 the MFLO’1961 affects the fundamental principles of Muslim Law of Succession. Bangladesh is the only country which has adopted such change. Although this law has faced many challenges in Pakistan but in Bangladesh no academic discussion or judicial interpretation is made till now.
Since 1961, from the date of adoption of MFLO there are differences of opinion among the persons. Some of them supported such enactment and some of them denied. The persons who opposed the law are known as traditionalists and the others are modernists. Both groups have logics behind their beliefs. Professor Serajuddin has rightly pointed it out that ‘It will however, be wrong to assume that only the traditionalists are opposed to orphaned grandchild’s inheritance. Again an internationally acclaimed scholar on Islamic Law thinks that section-4 of the MFLO is contradictory to the Sharia Law. So an analytical study upon section-4 of the MFLO should be made to identify the logical application of such enactment in the field of Muslim Law of Succession.
Here an effort is made to make a critical analysis of present section-4 of the Muslim Family Laws Ordinance’1961 by considering the rule of traditional Muslim Law of Succession.

2. ORPHAN GRANDCHILD AND SHARIA LAW
2.1 WHO IS AN ORPHAN?
Although the general concept in defining an orphan is that an orphan child is the child who has none of the parents. In the common use, an orphan does not have any surviving parent to care for him or her. In this approach, a maternal orphan is a child whose mother has died, a paternal orphan is a child whose father has died, and a double orphan has lost both parents.
In respect Muslim Law of Succession the last mentioned definition should be considered.
2.2 ORPHAN GRANDCHILD’S RIGHT UNDER SHARIA LAW:
Islamic Law of Succession based on two fundamental principles as follows: * Exclusion based on hierarchy of degree * Nearness of relationship
In maintaining such principles in certain circumstances the children of predeceased child of a deceased person could not get property under Sharia Law of inheritance. Example: Suppose someone dies leaving one son and son’s son from another pre-deceased son then according to the classical Shariah Law of inheritance, the son will get the entire property and the son’s son will be totally excluded from property. From above example it is undoubted clear that such a law causes hardship to the descendants of the predeceased children. To remove such hardship many modern states taken various initiatives among which the Middle East follow the rules of obligatory bequest in favor of orphan grandchild and only Pakistan and Bangladesh adopted the doctrine of representation through section-4 of the Muslim Family Laws Ordinance’1961.

3. ENACTMENT OF SECTION-4 OF MFLO’1961
3.1 INITIATIVES TAKEN FOR PROVIDING PRIVILEGES TO ORPHAN:
In order to remove the sufferings caused to such orphan grandchild some initiatives were taken in various countries among which in this India sub-continent the Muslim Family Law Ordinance’1961 is a mile stone. Section-4 of the MFLO ensures a special privilege to such orphan grandchildren. In Middle East the concept of obligatory bequest is accepted to remove such hardship. Here an analysis will be made regarding section-4 of the Muslim Family Law Ordinance’1961.
3.2 PROVISION OF SECTION-4 OF MFLO’1961:
Section-4 of the Muslim Family Laws Ordinance’1961 provides ‘in the event of the 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 of succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive.’
Through above enactment doctrine of representation is fully accepted in Muslim Law of Succession.
3.3 BACKGROUND OF ENACTING SECTION-4 OF THE MFLO’1961:
This law was passed on the basis of a report given by the Commission on Marriage and Family Laws. Such Commission was formed by the then Government of Pakistan on 4th August 1995. The main task of the Commission was to analyze the family law provisions. The Commission although was not asked or authorized to make recommendations regarding the problem of succession of orphan grandchild, it suggested to incorporate the rule of representation. The arguments of the Commission behind suggestion of incorporating representation rule were as follows: ►►Basis of exclusion: Rules of exclusion is strictly followed in Islamic Law of Inheritance and the Commission claimed that there is no Quranic provision or Hadith which excludes an orphan grandchild and existing rule of exclusion taken from the customs of then Arab society before the advent of Islam. But Maulana Haqopposed the contention of the said Commission and claimed that the rules of exclusion were based on both Quran and Hadith. In support of his claim he cited relevant Quranic verses and Hadith. Quran does not support of depriving an orphan. Quranic verses relating to inheritance should be interpreted with other provisions. The Commission stated that in some cases nearer relative may be excluded due to rules of exclusion. In such case contention should be given whether there is any other remedy or not and that instruction is in given in a Quranic verse that says: ‘It is ordained for you, when death approaches any of you and he is leaving wealth that he should make a fair bequest for the parents and near relatives---a duty upon the righteous.’ ►►Doctrine of representation: The Commission on its report suggested for the application of representation rule in distributing property when there is an orphan grandchild. The main argument of the Commission was that it should be applied in case of lineal descendant as like as lineal ascendant.
In short, Family Laws in Pakistan which recommended 1961 legislation gave the following reasons and arguments for inheritance of the children of predeceased father:
►There is no Quranic verse or authoritative Hadith which excludes orphaned grandchildren from inheriting their grandfather’s property.
►The exclusion was based on pre-Islamic practice, which gave all property rights to male members capable of carrying arms to defend the interest of the tribe or the family, and assumption that economic security of the female members would be taken care of by the male members, although Holy Qur’an and Sunnah later recognized many property rights of the women.
►Where the father of the propositus has predeceased him; the grandfather gets the share that the father of the propositus would have got. This means that the right of representation is recognized by the classical Shari’a law amongst the ascendants. Therefore, it is not logical or just that it should not be recognized among the lineal descendants.
►The Qur’an has time and again expressed great solicitude for the protection and welfare of the orphans and their property. Any law depriving them of inheriting their grandfather’s property would go entirely against the spirit of the Qur’an.
4. IMPACTS OF SECTION-4 OF MFLO ON SHARIA LAW
4.1 IMPACT UPON DOCTRINE OF PRIORITY:
The traditional Muslim Law of Succession follows the doctrine of priority among the heirs in distributing property of the deceased person. It is a general rule of traditional Sunni law that the heirs of distant kindred inherit only in absence of Quranic heir and residuary. But such doctrine is totally disobeyed by the section-4 of MFLO’1961. For the provision of section-4 of MFLO’1961 now there is no distinction among the heirs on the basis of doctrine of priority. In present time under MFLO a heir of distant kindred may inherit in presence of Quranic heirs and residuaries what is total contradiction of traditional Muslim Law of Succession. Example: Heirs | Under Sharia Law | Under sec-4 of MFLO’1961 | Son | Residuary | Residuary | Daughter | Residuary | Residuary | Daughter’s daughter | Excluded | Residuary | Table: 1 Violation of principle of priority among heirs by section-4 of MFLO’1961

4.2 IMPACT UPON QURANIC HEIRS:
Under traditional law a Quranic heir or residuary always excludes a distant kindred from inheritance. But under section-4 of MFLO’1961 it sometimes becomes quite opposite. Under this provision of law sometimes a Quranic heir or residuary is excluded by distant kindred. Example: Heirs | Under Sharia Law | Under sec-4 of MFLO’1961 | Uterine brother | Entitles property | Excluded by pre-deceased daughter | Uterine sister | Entitles property | Excluded by pre-deceased daughter | Daughter’s daughter | Excluded (distant kindred) | Entitles property by representation | Table: B—Exclusion of Quranic heirs by distant kindred undersection-4 of MFLO’1961
4.3 IMPACT UPON RULE OF TASIB:
Under traditional Sharia Law the principle of tasib is strictly followed which means a male receives a share equal to that of two females. The rule of tasib is described by the Quran itself. But section-4 of the MFLO’1961 sometimes violates such inviolable rule of Quran. Example: Heirs | Under Sharia Law | Under sec-4 of MFLO’1961 | Son’s son | 2/3 as residuary | 1/2 as residuary | Son’s daughter | 1/3 as residuary | 1/2 as residuary | Table: C-- Violation of principle of tasib among heirs by section-4 of MFLO’1961
4.4 IMPACT UPON DOCTRINE OF HIERARARCHY OF DEGREE:
Muslim Law of Succession recognizes the principle of hierarchy of degree by which nearer in degree excludes more remote. Although this rule is not strictly maintained by Sunni School, as the daughter does not exclude the son’s son, and thus it appears that this rule of exclusion is applied only in the same class of heirs. But in Shia School, such principle is followed strictly, as the daughter excludes son’s son. Such principle of hierarchy of degree is not followed by section-4 of the MFLO’1961. Example: Heirs | Under Sharia Law | Under sec-4 of MFLO’1961 | Son | Residuary | 1/2 as residuary | Son’s son | Excluded by son | 1/2 as residuary through representation | Table: D--Violation of principle of hierarchy of degree among heirs by section-4 of MFLO’1961

4.5 NEW METHODOLOGY OF DISTRIBUTION:
Under traditional Sharia Law, everyone gets the property in his or her own capacity. But when section-4 of MFLO’1961 then every child of the pre-deceased child will get the property in a representative capacity always. Thus, it creates a completely new mode of distribution of property. Example: Heirs | Under Sharia Law | Under sec-4 of MFLO’1961 | Son’s son of PDS one | 1/3 as residuary | 1/2 of 1/2 of the total property(1/4) | Son’s son of PDS one | 1/3 as residuary | 1/2 of 1/2 of the total property(1/4) | Son’s son of PDS two | 1/3 as residuary | 1/2 of total property through representation | Table: E—New methodology of distribution introduced by section-4 of MFLO’1961

4.6 UNNECESSARY INTERFERENCES:
There are some cases where an orphan is not deprived from property under the rule of traditional Muslim Law of Inheritance but section-4 of the MFLO’1961 interferes unnecessarily. The purpose of the legislature behind enacting the provision was not to deprive an orphan from property. So when an orphan inherits by traditional law then this provision should not be applied. Example: Heirs | Under Sharia Law | Under sec-4 of MFLO’1961 | Daughter | 1/2 as Quranic heir | 1/3 as residuary | Son’s son | 1/2 as residuary | 1/2 as residuary through representation | Table: F-- Unnecessary interferences of section-4of MFLO’1961 in some cases
5. APPLICATION OF SECTION-4 OF MFLO’1961
Section-4 of the MFLO’1961 is applicable only in two countries as follows: * Pakistan * Bangladesh
Although in above mentioned countries section-4 is applicable there is a slight difference in application of such enactment. Here a discussion will be made about this matter. But before it some matters should be described.
5.1 APPLICATION OF SECTION-4 OF MFLO’1961 IN PAKISTAN:
The section-4 of MFLO’1961 faced many judicial challenges after its enactment. Finally now this time the right of grandchildren is preserved through---- * Doctrine of representation * Rule of presumptive share
►►Doctrine of representation: Section-4 of the MFLO’1961 also termed as doctrine of representation. Because under this provision an orphan child inherits property through representing pre-deceased parents as the case may be. Normally representation means to represent someone. When under section-4 of the MFLO’1961 any orphan child inherits then such child is called heir by representation. Right of heir by representation is a statutory right and such heir inherits through another not by own right. The principle of representation has more than one meaning. It may be applied for the purpose of deciding: 1. What persons are entitled to inherit? 2. The quantum or the share of any given person on the footing that he is entitled to inherit
►►Rule of presumptive share: In addition with the doctrine of representation presumptive theory is followed in Pakistan under which a share is given to orphan grandchildren and the property again redistributed. ►Evolution of presumptive share under presumptive theory: The rule of giving presumptive share is followed in Pakistan with section-4 of MFLO’1961 as to inheritance of orphan grandchild. The theory upon which such share is given is known is presumptive theory and it is the result of the judicial explanation of section-4 of the MFLO’1961 by Supreme Court of Pakistan in 1990. Firstly the Peshawar High Court held that the Ordinance has adopted the principle of per stripes distribution and thus the claimant under the Ordinance would inherit the total share of pre-deceased father or mother which he or she would inherit if alive. Then the Lahore High Court held that in distributing property the pre-deceased parents of orphan grandchild would be deemed as alive but the legislature never intended to give greater benefit to the grandchildren than would have been their due if the parents was alive when the succession opened, thus the claimant will inherit portion of parents share which he or she would inherit if such parents alive and the rest property again redistributed among other heirs.For the conflicting decisions of different High Courts the Supreme Court of Pakistan took the note of such problem and sustained the decision of Lahore High Court. So, now in Pakistan an orphan grandchild entitles only presumptive share under section-4 of the Muslim Family Laws Ordinance’1961.
5.2 APPLICATION OF SECTION-4 OF MFLO’1961 IN BANGLADESH:
Although in Bangladesh the same provision of section-4 of the Muslim Family Laws Ordinance is applicable in case of distributing property to an orphan grandchild but no rule of presumptive share is applicable here. Thus, in Bangladesh an orphan inherit the total share of represented person.

CONCLUSION
In concluding statement from above analysis it can be said that the concept of representation in section-4 of the MFLO’1961 is conflicting with the Islamic Law of Succession. It also violates the rule of ijtihad, because no ijtihad can be done which result violates any verse of Quran. Herbert J. Liebesney termed section-4 as the most express deviation introduced Muslim Law of Succession.So, necessary legislation should be made to override such anomalies in respect of application of section-4 of the Muslim Family Laws Ordinance’1961.

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[ 2 ]. It was issued on 10 April 1971 says’---all laws that were in force in Bangladesh on 25th , 1971 shall subject to the proclamation aforesaid continue to be so in force with such consequential changes as may be necessary on account of the creation of the sovereign independent state of Bangladesh formed by the will of the people of Bangladesh.
[ 3 ]. Serajuddin Alamgir Muhammad, Shari’a Law and Society Tradition and Change in the Indian Sub-continent, Asiatic Society of Bangladesh, 1999; p.89.
[ 4 ]. Ibid.pp.89-90.
[ 5 ]. UNAIDS Global Report 2008
[ 6 ]. Ibid., pp.1602-1603
[ 7 ]. Sura Al-Baqara 2:132
[ 8 ]. Law Commission's report on Daughter's share in the succession of parents' property in absence of son(Issue No: 273 June 09, 2012 THE DAILY STAR)Y STAR
[ 9 ]. Pre-deceased Son
[ 10 ]. Aqil Ahmad: Mohammedan Law
[ 11 ]. Mst Zarina Jan vs Mst. Akbar Jan[PLD(1975) Peshawar]
[ 12 ]. Kamal Khan vs Mst. Zainab [PLD 1983(LAHORE) 546]
[ 13 ]. Farid vs. Manzooran [ PLD(1990)SC 511]
[ 14 ]. Herbert J. Liebesney, “Stability and Change in Islamic Law”, The Middle East Journal 21 (1967), 34.