Plea for compulsory bequest to protect orphaned grandchildren under Muslim law

Senior High Court attorney Siraj Karoly has called upon the Law Commission to propose a revision in Muslim inheritance law to safeguard the inheritance rights of grandkids orphaned by the premature demise of their parent before their grandparent. In a petition to the Commission, Mr. Karoly highlighted the potential for the current law to bar such grandchildren from inheriting their grandfather's property when the latter survives sons.

This issue could be especially acute when the deceased parent leaves behind minor children and a widow. Muslim inheritance in India is governed by Muslim Personal Law (Shariat) Application Act, 1937. Under the prevailing Hanafi rule, if a son passes away before his father, the offspring of the deceased son may be omitted from the grandfather's inheritance if the grandfather has surviving sons.

This implies that children who suffer the loss of their father at a tender age may not automatically receive a share from their grandfather's estate, even if the latter possesses substantial assets. Mr. Karoly has invited the Law Commission to advocate for an amendment to the 1937 Act to tackle this predicament via the mechanism of Wasiyya Wajibah, or compulsory bequest.

This entails conferring upon the children of a son or daughter who predeceases the grandparent their share that their deceased parent would have been entitled to if alive, capped at one-third of the grandparent's net estate, after account of funeral expenses and debts. Mr. Karoly underscored that this move is in harmony with the Quranic tenet of caring for close kin and public welfare.

Egypt serves as an illustrative example, having incorporated a compulsory bequest provision in 1946, enabling children of a predeceased son or daughter to inherit the share that their parent would have been entitled to, subject to the aforementioned one-third cap. Several Muslim-majority nations have since embraced similar provisions.

Mr. Karoly implored India to emulate this model through an amendment to the Muslim Personal Law (Shariat) Application Act. He emphasized that such a change cannot be effected through a government order or notification, as the 1937 Act is a statute enacted by the Central legislature, necessitating legislative enactment by Parliament to modify the inheritance rights it delineates.

The proposed amendment would also supersede voluntary bequests made by the grandparent. The one-third ceiling would ensure conformity with the Egyptian model. Mr. Karoly argued that the proposed amendment would address instances where children lose a parent at a young age and are subsequently barred from inheriting from their grandfather's estate under the prevailing inheritance rule.

"We encounter numerous cases where children who suffer the loss of a parent at a young age are left without a share in their grandparent's property," he remarked. He has solicited the Law Commission to endorse a recommendation to the Union Ministry of Law and Justice to table a Bill in Parliament to amend the 1937 Act.