ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

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272 KEMAL FARUKI deceased parent's brothers and sisters as was normal in the larger family groups of the past. Two contrasting solutions, according to Islamic principles, have been applied to this question of orphaned grandchildren. The first is the system of obligatory bequwts, of which the 1946 Egyptian law is the most notable example and the second, the 1961 system of inheritance by right which has been applied in Pakistan. Both have their juristic origins in Islamic sources and legal principles. The system of obligatory bequests seeks to justify itself by an interpretation of Qur'gnic verse I1 : 180, which interpretation is by no means consistent, while the system of inheritance by right seeks to justify itself by exposing a lacunae, even contradiction, in classical rules of interpreting the Qur18nic and haid& references as they find expression in the exclusion rule. While the 1946 Law avoids the question of the status within the family of the orphaned grandchild, the 1961 Law squarely identifies him or her as a close relative. This indecisiveness of the 1946 Law leads to it shifting ground from case to case with regard to the basis on which the grandchild is to be provided for, particularly in estimating the portion of the estate to which the grandchild is entitled ; while the 1961 Law consistently applies the consequences of regarding such an orphan as having assumed his or her parent's rights vis-a-vis the grandparent, from the time of the parent's death. The changes brought about by the 1961 Law in the shares of the other heirs are, therefore, entirely consistent with this view of the grandchild's status within the family. even where they signifi- cantly affect the classical dispositions, while the 1946 Law in an attempt to avoid disturbing the rights of the other heirs (unsuccess- fully) attempts to provide for the grandchild out of the bequeathable one-third. In introducing the question of legacies, the 1946 Law makes a much more far-reaching disturbance of Islamic succession rules, affecting not merely objects within a class but the classes themselves, particularly the class of legacies and the class of inheritances. In doing so, the 1946 Law creates an entirely new-almost self-contradictory-class of "obligatory1' bequests, which cannot be subsumed under the classes of debts, legacies or inheritances. In actual practice, the so-called legacy to the orphaned grandchild shows itself to be, in truth, a concealed inheritance portion, a hilah or legal device, which fluctuates arbitrarily vis-a-vis the other
ORPHANEDGRANDCHILDREN IN ISLAMIC SUCCESSION LAW 273 heirs (let alone legacies) and seriously disturbs the rights of the other heirs inter se even those of the "fixed" Qur'anic sharers. All this is, of course, in addition to the total violation of the deceased's last testamentary wishes which Islam considers to be of the highest religious merit when they are for certain purposes and within the bequeathable limit of one-third of the net estate. The principle of representation, however sparingly used in the classical system, is nevertheless not unknown there and this principle, whatever its implications, is necessary for the application of the 1946 Law as much as for the 1961 Law. This is so whichever method is adopted for applying the 1946 Law. There are three such methods that have been used or suggested, two of them leading to violations in practice of the provisions of the 19% Law itself (which provisions cannot be dropped from the 1946 Law without destroying the fiction that a legacy has been created), while the third method by also disturbing the rights of the heirs inter se shows the true nature of the 1946 Law, of dealing not with legacies but concealed inheritance portions. If the strengthening of the agnatic family in its direct lineal order from generation to generation is an enduring Islamic family ideal, then the 1961 Law is fully in harmony with this. In contrast, the 1946 Law hesitates to commit itself as to the orphaned grandchild's status within the family and, as a result, finds itself in a series of contradictions which obtrude in the controversy as to which of the three methods should be adopted for applying it, by the consequences of trying to cloak an inheritance portion as a legacy and by the erratic results it produces, sometimes being based on the bequeathable one-third, sometimes on the predeceased parent's share and at other times on amounts provided in intestacy under classicaI law. NOTES 1. See e.g. IX : 24, where the prior claims of Islam over the family are asserted. 2. IV : 7-12 read with IV : 177. 3. 41j'YI literally means only a "close" relative. which, of course, further strengthens the foregoing arguments. 4. See one reference in IV : 11 and two in IV : 12. 5. In addition there are invalid legacies e.g. to a gambling casino. 6. This is particularly true of direct male descendants ; descendants through a female having entered. by this generation, another family grouping altogether. 7. Thesedivergences of classical law from the exclusion rule were pointed out by the author in his booklet Islamic Family Law in Pakistan (Karachi. 1964)
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ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

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