ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW 271
Case 7
One further case deserves consideration and that is where it
might at first appear that the 1961 law also affects the Qur'gnic
share and this is when P is survived by a daughter A, the child B of
a predeceased second daughter, and C, a distant agnatic cousin.
Under classical law, A and C would have received 4 each, the
grandchild B receiving nothing, but under both the 1946 law (by
all three methods) and the 1961 law P's net estate is shared equally
in thirds by A, B and C.
Yet, in fact, the 1961 law is complying with the minimum for
daughters prescribed by the Qur'iin, when more than one, namely
213 which is to be shared amongst them as was the case until the
second daughter died. The Qur'anic share which A originally
expected to receive (of 4 of 213) she continues to receive and by
the death of her sister, B's mother, she is not enabled (under the
1961 law) to gain the sort of benefit which she would have
expected to receive if she had been the only child throughout,
namely 3 of the net estate and the orphaned grandchild B assumes
by right his or her mother's share.
Under both the 1946 and 1961 laws, the amount received by the
distant agnatic cousin is a more accurate reflection of his relation-
ship to the deceased propositus (namely 113) then the half portion
allotted to him in the classical system at the expense of the
propositus' own direct descendants.
V. Summary
It is unnecessary to recapitulate here all the reasons which have
impelled an increasing number of Muslim countries to provide by
law for orphaned grandchildren who were excluded from inheriting,
under classical interpretations of Islamic law, from their grandparent
in the presence of a Iiving brother of their deceased parent.
It is sufficient to recall that Islam places great emphasis on the
family as the foundation for a healthy community and seeks to
preserve this family against the inroads of tribalism on one side and
an unbridled individualism, on the other. The family has also been
increasingly affected by the changing nature of society produced by
the growth of impersonal cities, an industrial civilization and a
constant movement of population, which changes have adversely
affected the protection afforded to orphaned children by their