Mst. HAYAT BEGUM vs REHMAN MALIK S — 2023 PLD 6 PESHAWAR-HIGH-COURT

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Mst. HAYAT BEGUM VS REHMAN MALIK S. 4---Constitution of Pakistan, Art. 203-D---Succession---Powers of Federal Shariat Court---Scope---Section 4 of the Muslim Family Laws Ordinance, 1961, notwithstanding the fact that it has been declared repugnant to the injunctions of Islam by the Federal Shariat Court in the case of "Allah Rakha and others v. Federation of Pakistan and others" [PLD 2000 Federal Shariat Court 1] still holds the field in view of proviso to Art. 203-D(2) of the Constitution---Decision of Federal Shariat Court was assailed before the Supreme Court in appeal and same is still pending adjudication, thus, in accordance with the proviso to Art.203-D(2) of the Constitution, the decision of the Federal Shariat Court before disposal of the appeal by the Supreme Court is not effective. S. 4---Muslim Personal Law (Shariat) Application Act (V of 1962), S. 2---Principle of "per stripes"---Scope---Section 4 of the Muslim Family Laws Ordinance, 1961, has been enacted to remove the difficulties and sufferings of grandchildren but it cannot be interpreted so as to decrease the shares of the other descendants of the propositus---Section 4 in spite of being non-obstante clause, has to be interpreted in the light of S. 2 of the Muslim Personal Law (Shariat) Application Act, 1962 and both the statutes can stand together. S. 4---Succession---Scope---Son/daughter of a predeceased son can get their share in the property of their grandfather, but it would be subject to the shares as provided in the Holy Quran and if the distribution of share under the provisions of S. 4 is overlapping or inconsistent then Shariat would prevail. S. 4---Succession---Widow of predeceased son---Entitlement---Scope---Petitioner filed a suit for declaration to the effect that she being the widow of predeceased son of propositus was entitled in the legacy of her father-in-law---Validity---Section 4 of Muslim Family Laws Ordinance, 1961 clearly reflected the intention of legislature that in order to cater the suffering of sons or daughters of predeceased son, they could get their share as if the predeceased son or daughter was alive at the time of death of his/her propositus---Question as to whether other legal heirs of predeceased son or daughter could also be benefited from the provisions of S. 4, remained controversial, however, S. 4 could not be interpreted other than as it was and for whose benefit it was promulgated---In fact, the benefit was provided to the sons and daughters of a predeceased in the legacy of their propositus whereas the other legal heirs of a predeceased son/daughter might not be the legal heirs of grandfather or grandmother either in accordance with the text of the Holy Quran or tables provided by Islamic Law, especially the widow of predeceased son with relation to the legacy of her father-in-law or mother-in-law, had got no concerned, whatsoever---Neither she was sharer nor residuary---Legacy of her father-in-law or mother-in-law, in the event of the death of her husband in the lifetime of his father/mother, being predeceased son is not entitled---Revision petition was dismissed.

Mst. HAYAT BEGUM vs REHMAN MALIK S — 2023 PLD 6 PESHAWAR-HIGH-COURT

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