INTESTATE SUCCESSION
Apart from the matter of polygamy, then, the changes effected by the Ordinance in the current substantive law of marriage and divorce are far from radical, particularly when compared with the corresponding Tunisian reforms.
But in one respect the Ordinance goes* This Hanafi rule has been replaced in most Middle Eastern countries by the more favourable doctrine of the other Sunni schools.
* This adopts the suggestion of the Commission. The vague wording of the Commission’s report made it doubtful at the time how they visualized their recommendation being carried into effect. It now appears, as I suggested in my article (p. 144, Note 1), that the intention was to continue the policy of the Child Marriage Restraint Act, 1929.
for beyond the Tunisian law and introduces a reform which is positively shattering in its impact upon the traditional law; for one terse, and perhaps to the Western lawyer seemingly innocuous, section1 completely disrupts the Shari'a law of intestate succession. We quote the section in extenso. ‘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 stirpes receive a share equivalent to the share which such son or daughter, as the case may be, would have received, if alive.’
The traditional Shari'a law of intestate succession recognizes two principal categories of heirs: the so-called ‘Qur’anic sharers’, twelve relatives in all and mainly women, who receive a specific fraction of the estate, and the residuary heirs or ‘asaba who are the agnate kindred of the deceased. The simple rule regulating succession by the latter class to the residue left after the deduction of the Qur’anic shares is that the nearest ‘asaba only takes. For this purpose these relatives are divided into four classes, each class completely excluding all lower classes and within each class the nearer relative in degree excluding the more remote.
It is this last rule, of course, which completely precludes any principle of representation in the traditional law. As might be supposed, modem Muslim reformers have been concerned to remedy the hardship occasioned by this rule where orphaned grandchildren are excluded from inheritance by the survival of a son of the deceased. Yet the fact that inheritance is one of the subjects regulated in detail by the Qur’an itself and that the ‘no representation’ rule has been the subject.of a consensus of opinion of all Muslim jurists since the days of the prophet necessitated a cautious approach.In the event Egypt adopted, in 1946, the system known as ‘obligatory bequests’ under which, notwithstanding the absence of any testamentary disposition to this effect by the deceased, the orphaned grandchildren of the deceased are entitled, in the presence of his surviving son, to the share their own parent would have received had he or she survived, within the maximum of one-third of the nett estate.[58] [59] This system, since adopted by Syria, Morocco and Tunisia,[60] is based, convincingly enough, on principles adduced from the traditional authorities, and since the ‘obligatory legatees’ are never legal heirs in their own right it harmonizes well with the general Shari’a scheme of succession. The Pakistani provision, on the con[****************] trary, is clearly not confined in operation to the case where grand* children are excluded from succession by a son of the deceased, and the havoc it plays with the traditional Shari'a system may be shortly illustrated. Where there is no immediate child of the deceased surviving, a daughter’s son or daughter’s daughter, who would previously not have inherited at all, may now take the lion’s share of the estate. The son’s daughter, in competition with a daughter of the deceased, previously took, as a Qur’anic share, one-third as much as her aunt. She will now take, as a residuary heir, twice as much as her aunt. Leaving many other complications aside, this is perhaps sufficient to show how the delicate balance achieved by the Shari'a between the two distinct categories of heirs is completely upset. In effect this simple reform, apart from destroying the fundamental rule of residuary succession by the nearest 'asaba, both adds to and subtracts from the list of Qur’anic sharers and admits as primary heirs relatives who would previously never have inherited at all. By comparison the Tunisian reform of 1959, under which a daughter or son’s daughter of the deceased excludes all collateral relatives,1 important though it is, is far less disruptive of traditional doctrine. The only Islamic precedent for the Pakistani reform lies in the Iraqi Code of Personal Status, 1959. This, in fact, adopts the representation rule.2 But the whole system of succession therein enacted departs completely from the traditional Shari*a system, an approach presumably dictated by the demands of national unity. For the population of Iraq is approximately evenly divided between Sunnis and ShTis, and though a uniform system of marriage and divorce on a traditional basis might be supportable, the divergencies between the Sunni and the Shi*i systems of succession are too fundamental to admit of any such compromise. Such factors were in no way relevant to Pakistan. The reform is obviously intended to operate within the framework of the traditional law, but its effect is so far reaching that one may perhaps be excused for wondering whether all its implications were fully appreciated or whether the reformers have in feet gone further than they intended.