Mst.Sunar Begum vs. Federal Government of Pakistan.

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IN THE FEDERAL SHARIAT COURT

( ORIGINAL JURISDICTION )

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PRESENT '

MR. JUSTICE GUL MUHAMMAD KHAN, CHIEF JUSTICE

MR. JUSTICE FAKHRUDDIN H. SHAIKH

MR. JUSTICE MUFTI SYED SHUJAAT ALI QADRI

.MR. JUSTICE MUFTAKHIRUDDIN

MR. JUSTICE KAMAL MUSTAFA BOKHARY

MR. JUSTICE ABDUR REHMAN KHAN KAIF

SHARIAT PETITION NO.7/I OF 1986

Mst. .Sunar Begum. Petitioners Mst. Bakhat Bhari.

Mst. Malkani.

Mst. Ghulam Zainab wife of Shahbaz.

(All residents of Mauza Saggar, Tehsil Talagang, District Chakwal).

VERSUS

Federal of Pakistant Respondents through Secretary, Ministry of Justice, Islamabad.

2.Government of Punjab through Secretary,• Law Department, Lahore.

Counsel for the Mr. Muhammad Munir Petitioners Peracha, Advocate.

Date of Institution 29-4-1986 Date of hearing 11-10-1987 Date of decision 11-10-1,987

JUDGMENT

FAKHRUDDIN H. SHAIKH,J.- In this Shariat Petition a custom in Punjab has been challenged on the basis of its repugnancy to the injunctions of Islam. According to this custom a widow in the presence of sons or other male lineal descendants gets maintenance only oui of her husband's property which) on her death, reverts to his sons or male lineal descendants. The petitioners have relied on section 5 of the Punjab Laws Act, 1872 which has given this custom the force of law. This section is reproduced as under:- "(5) In questions regarding succession, special property of females, betrothal, marriage, divorce, dower adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions? , or any religious usage or institution, the rule of decision shall be:--- any custom applicable to the parties concerned which is not contrary to justice equity or good conscience, and has not been by this or any other enactment altered or abolished and has ti, not been declared to be void by any competent authority.

The Muhammadan Law, in cases where the parties are Muhammadan, and the Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by such custom as is above-referred to."

Law

2.Under section 3 of the Muslim Personal/(Shariat) Application Acts of 1948 and 1962 (hereinafter referred to as the Actsof 1948 and 1962), limited estate in respect of immoveable property held by a Muslim female

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S.P.No.7/1/1986 Offt _ ,c7n under the customary law was terminated. Section 2 of Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance, 1972 (hereinafter referred to as the Ordinance of 1972) provided that limited estates in repsect of immoveable property held by dc:

Muslim females shall be deemed to have been terminated with effect from 31st December, 1962. Section 2 of the,. Ordinance of 1972 is reproduced hereunder:- "2.Removal of Doubts. (1) Notwithstanding anything contained in the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (West Pakistan Act V of 1962), The West Pakistan Muslim Personal Law (Shariat) (Amendment) Ordinance 1963 (West Pakistan Ordinance XXXIX of 1963), the West Pakistan Muslim Personal law (Shariat) Application (Amendment) Act, 1964 (West Pakistan Act XXVIII of 1964) or any other law, or any proceedings pending before ahy,Court or other authority, the limited estates in respect of immovable property held by Muslim females under the Customary. Law shall be deemed to have been terminated with effect from 31st day of December, 1962."

The grievance of the petitioners is that inspite of the Ordinance of 1972, a widow, in case where her deceased husband is survived by sons or lineal male descendents, gets nothing out of the property of the deceased except maintenance. In this connection they have referred to the case of Nawab and others Versus Muhammad Fazil and another (PLD 1964 Lahore 334) in which S.A. Mahmood, J., held that the Act of 1948 applied to holders of life estates and not to holders of right of maintenance.

The distinction between the two categories of widow made by the single Judge in the above case, was uncalled for. In the case of Shah Nawaz & 26 others Versus Rab Nawaz & 2 others (1982 CLS 160) Division Bench of Lahore High Court held that:- "Widow, as a general rule, in preseace of

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sons or other male l'±tIal descendants, get& nothing but maintenance and even a childless widow in presence of child of another widow ordinarily gets only maintenance though in certain cases she could be allowed her share." However, in spite of the above observations, the learned Judges concluded that the childless widow shall be deemed to hold her usual widow's life estate, under the customary law.

In the above two Judgments, the provisions of Ordinance of 1972 did not come under consideration. The case of Nawab was decided in 1964, while the case of Shah Nawaz and others also related to events which took place in 1950. Hence the Ordinance of 1972 could not have been referred to. Still in the last mentioned case the childless widow was held to have life estate under the customary law. Be that as it may, the Ordinance of 1972 has removed all doubts in respect of right of a widow quacustomary law to the extent that such law is repugnant to the injunctions of Islam. Section 5 of the Act of 1962 provides that all properties kept by a deceased shall on termination of life estate)devolve on the legal heirs of the deceased according to the Shariat. The term 'life estate' used in the Act of 1962 and Ordinance of 1972 shall be deemed to apply to widows of both the categories, that is the one who held life estate and the other who is maintenance holder. A maintenance holder in fact holds some land in lieu of maintenance for life. Hence the laws of 1962 and 1972 did not save .the custom which allowed only maintenance to a widow. To hold otherwise would amount to frustrate the very object of the above laws, which was to make provisions for the application of Shariat to Muslims in the matter, inter-alia, of succession. These laws cannot be deemed to have

perpetuated a custom which was un-Islamic. All such , customs in relation to succession shall be deemed to tatic

GA-IZ

19.e abolished in view of the Acts of 1962 andO'rdihance of 1972.

8.Consequently we hold that there is no substance in this petition which is dismissed.

JUDGE-I

CHIEF JUSTICE JUDGE-II

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JUDGE-III JUDGET TO)(1

JUDGE-V

Islamabad, the October, 1987.

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