Daffodil International University
Faculty of Humanities and Social Science => Law => Topic started by: AbdurRahim on July 24, 2015, 09:21:16 AM
-
Doctrine of representative:
The Quran has not fixed any share for grandchildren. According to the Islamic law the grand children are excluded from inheritance as their father dies before opening the inheritance. However many states have brought changes into the existing Islamic law. Pakistan also brought a significant change in the case in 1961 by inserting section 4 of the Muslim Family Law Ordinance 1961. Later on Bangladesh has accepted through the promulgation of the “Laws Continuance Enforcement Orders 1971”. From the date of adoption of this Ordinance many persons supports it. This section has affected the whole format of Islamic Law of Succession. No other country except Bangladesh has accepted it thought it was started in Pakistan.
In Pakistan this change faced many judicial challenges. But this is not faced in Bangladesh.
Section 4 of the Muslim Family Law Ordinance 1961:
“In the event of the death of any son or daughter of the propositus before the opening of the succession, the children of such son or daughter, if any living at the time the succession opens, shall stripes receive a share equivalent to the share which such son or daughter as the case may be, would have received if alive”.
That means the deceased’s son or daughter will represent the deceased share. This is called the doctrine of representation.
For example: A person dies leaving, son, daughter, son’s son, son’s daughter and father.
Solution in Muslim Law:
Son: 10/18 (as Residuary)
Daughter: 5/18 (as residuary)
Son’s son: Excluded by son
Son’s daughter: Excluded by son
Father: 1/6 (as sharer)
Solution in Statutory law/1961:
Son: 10/42 (as residuary)
Daughter: 5/42 (as residuary)
Son’s son: 10/42(as residuary)
Son’s daughter: 10/42(as residuary)
Father: 1/6 (as sharer
Here son’s son and son’s daughter are representing their father. Though son’s daughter is female, she gets 10/42 but own daughter gets 5/42.
Impact of section 4 of MFLO 1961
1. Violation of order of priority
2. Violation of 2:1 principle
3. Creates new method
4. Superiority of female than other female
5. Abolishes the Quaranic Status of son’s daughter
-
How section 4 of MFLO violate 2:1 principle?
-
Section 4 of the Muslim Family Law Ordinance 1961 says that, “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 the 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.”
That means the predeceased son's son or predeceased son's daughter will represent their predeceased father and will be able to get his share as well.
Therefore if we see the example above, we have seen that, a person dies leaving behind his son, daughter, predeceased son’s son, predeceased son’s daughter and father. Thus they get according to section 4 of the MFLO, 1961 the following shares.
Son: 10/42 (as residuary)
Daughter: 5/42 (as residuary)
Predeceased Son’s son: 10/42(as residuary)
Predeceased Son’s daughter: 10/42(as residuary)
Father: 1/6 (as sharer)
Here son’s son and son’s daughter are representing their father. Though son’s daughter is a female, she gets 10/42 like the son's son. Therefore Male: Female= 2:1 this principle is violated.
Hope you will understand dear Sonali ma'am. Keep smiling.
-
Spot on! DIU Forum has become a very useful platform for teaching-learning-sharing of knowledge!
-
Agreed sir. We should keep the spirit. Keep it up ma'am.
-
Oh! that means if there son's son and son's daughter they will get per stripes of their predeceased father. the share of their father will not distribute among them 2:1.
-
Sir would you please explain the Omaratian rule of succession with example.
-
Sonali maam
Omariyatan Rule is applied only in two case
a. husband, father, mother
b. wife, father, mother
-
Agreed ma'am. Thanks sir.
-
Rahim sir I agree with your opinion. Would you pls explain how the share will be distributed among the sharers!!!!!!!
-
Agree but need implementation.