Mandatory will; a Critical Study of the Modern Legislation in Muslim Countries, Section 4 of the Muslim Family Laws and Judgments of the Higher Courts

وصیت واجبہ سے متعلق مسلمان ممالک کے قوانین، مسلم فیملی لاز آرڈنینس 1961 کی دفعہ 14 اور پاکستان کی اعلی عدالتوں کے فیصلوں کا تجزیاتی مطالعہ

Abstract

With the start of the codification of Muslim Personal Law in the Muslim countries, the question of exclusion and deprivation of orphan grand-children of the deceased from heir ship has gained importance. Bringing of section 4 on statute book was the result of the recommendations of the Commission on Marriage and Family Laws 1956. It was based on so-called ijtihād which caused confusion in the Islamic law of inheritance. Hence by declaring the section 4 repugnant to the injunctions of Islam, the Federal Shariʻat Court observed that the concept of “compulsory will” is an appropriate alternate to this problem. The court explains that making a will in favor of orphan grandchildren out of an estate of grandparents to the extent of one third would be very plausible solution to meet the socio- economic problem. The article aims to elaborate the concept of making of a will specially wasiyat wajiba in favor of orphan grandchildren. Various juristic opinions, rulings and legislation of Muslim countries have been analyzed in this regard. Majority of jurists are of the opinion that the making of will in the said case is only recommended and not mandatory. However according to some jurists it is mandatory. In this condition the legislative body may take steps to amend the law so as to bring the said provision in conformity with the injunctions of Islam.