Allah Rakha (Petitioner) vs. Federation of Pakistan (Respondent).

The case is Allah Rakha (Petitioner) vs. Federation of Pakistan (Respondent).

The petitioner, represented by Advocate M. Aslam, challenged parts of the Muslim
Family Laws Ordinance, 1961. The Federal Shariat Court (Original Jurisdiction)
bench included Chief Justice M. Mahboob Ahmed and Justices Fida Muhammad
Khan and Ch. Ejaz Yousaf.

Background and Issues

This case came before the Federal Shariat Court under Article 203-D of the Pakistani
Constitution, which allows courts to strike down laws that violate Islamic injunctions.
In several linked petitions (37 in total), petitioners asked the Court to examine
Sections 4, 5, 6 and 7 of the Muslim Family Laws Ordinance, 1961. These sections
deal with inheritance and family matters under statutory law. The key questions were
whether these sections conflict with Quranic law and Sunnah. In particular, Allah
Rakha’s petition focused on Section 4 (relating to inheritance by grandchildren) as
being repugnant to Islam. The petition was first filed in the Peshawar High Court
(after the 1979 amendment empowering High Courts on Shariat issues) and later
heard by the Federal Shariat Court.

Timeline of Events
1961: The Muslim Family Laws Ordinance is enacted, reforming aspects of
inheritance, marriage, etc.

1979: Pakistan’s Constitution is amended (Order No. 3) to give High Courts and the
Federal Shariat Court power to review laws for compliance with Islam (Article
203B/D).

26 May 1993: Allah Rakha files Shariat Petition No.29/1 of 1993 in the Peshawar
High Court against Section 4 of the Ordinance.

Mid-1990s: The petition is transferred to the Federal Shariat Court, which

consolidates it with other petitions on related issues. The Court also consulted
religious scholars (Ulema) and collected information on family laws from other
Muslim countries (Iran, Syria, Malaysia, etc.).

Mid-to-late 1990s: The Federal Shariat Court hears arguments, cites precedents
(including a Shariat Appellate Bench decision in 1994) and issues its final judgment.

Petitioner’s Arguments
The petitioner (Allah Rakha) argued that Section 4 of the Ordinance is contrary to
Islamic law. Under that section, a grandson could inherit from a deceased grandfather
even if the grandson’s parent (the grandfather’s child) had died first. In Islam, the
petitioner contended, inheritance should not be extended to grandchildren in this
situation. He said this section gave grandchildren a share that Quran and Hadith did
not allow.

Religious scholars (Ulema) supported the petition, issuing statements that the
Ordinance’s relevant provisions “are contradictory to the express commandments of
the Holy Quran and the Sunnah.” They argued that the legislature should not change
these inheritance rules.

Similar points were made about Sections 5–7: petitioners claimed these too violated
Islamic injunctions (for example, marriage consent rules and maintenance). They
insisted the Court should declare these sections invalid to protect Islamic law.

Respondent’s Arguments
The government (Federation of Pakistan) defended the Ordinance provisions as
positive reforms. It argued that Sections 4–7 were meant to protect widows and
orphans, and did not really violate Islam when properly understood. The government
maintained that the law was beneficial and was enacted for public welfare under
Islamic teachings.

The respondent likely cited legislative intent and the usefulness of the statutes. It may
have argued that earlier court rulings said such codified laws could be examined but
not every difference from traditional law is disallowed. In essence, the respondent
asked the Court to uphold the sections as not repugnant to Islam.

Legal Principles and Precedents

The Court relied on Article 203-D of the Constitution (from the 1979 Amendment),
which allows laws to be tested against the Quran and Sunnah. The Court noted that
after 1979, both High Courts and the Federal Shariat Court have this power.

The judgment reviewed key cases:

Mst. Farishta’s case (1981) – an earlier Supreme Court decision that had said the
Muslim Family Laws Ordinance was not strictly “personal law” and could not be
struck down. The petitioners pointed out that view.

Shariat Appellate Bench decision (PLD 1994 SC 607) – a later Supreme Court
decision that overturned Farishta. The Shariat Bench held that codified laws applying
only to Muslims are subject to Islamic injunctions and can be declared repugnant. The
Court cited this as current law.

The Court also considered the opinions of religious scholars (Fiqh) and looked at
how other Muslim countries treat these issues (noting responses from Iran, Egypt,
Malaysia, etc.). It emphasized that a law is unconstitutional only if it is clearly shown
to conflict with the Quran and Sunnah.
In short, the Court used Islamic legal principles (Quranic verses and Hadith on
inheritance and marriage) and Pakistani constitutional law (203D) to frame its
analysis.

Judgment and Reasoning

The Federal Shariat Court’s judgment, written by Chief Justice M. Mahboob Ahmed,
decided the questions petitioners raised:

Section 4 (Inheritance by Grandchildren): The Court held that Section 4 is

“opposed to the injunctions of Islam.” It agreed with petitioners that allowing a
grandson to inherit from a grandfather (when the father was deceased) was not
permitted under the Quran. The Court noted that Islamic law (as understood by all
schools) did not give grandchildren an independent share in this case. Therefore,
Section 4 was declared invalid (it could not stand as law).

Sections 5–7: The Court carefully examined the challenges to these sections as well.
(These sections deal with marriage and family matters.) The Court found that
Sections 5, 6, and 7 were not repugnant to Islam. It concluded that they were either
consistent with Islamic principles or not shown to clearly violate any Quranic
injunction. In other words, the petitioners failed to prove Sections 5–7
unconstitutional, so those parts of the Ordinance remained in force.

Reasoning: In reaching its decision, the Court relied on Islamic texts. It noted that the
petitioners provided religious opinions and that scholars had objected to the
Ordinance. The Court agreed with the concern that Section 4 conflicted with clear
Quranic inheritance rules. For the other sections, the Court found that the statutory
provisions did not clash with any explicit Islamic command. The Court also followed
the Supreme Court’s guidance (PLD 1994 SC 607) that codified Muslim laws must be
examined in light of religious texts.

Overall, the Court’s final judgment struck down Section 4 of the Ordinance as
invalid, while upholding the remaining challenged sections.

Dissent or Separate Opinions

The judgment was given by the full three-judge bench. There is a reference in the text
that one judge (described as “the only Alim” on the bench) dissented on a point,
suggesting not all judges agreed unanimously on every issue. The details of any
dissent are not fully spelled out, but it appears one judge had a different view on some
question (possibly related to the interpretation of Islamic law or how other sections
should be treated). However, the main outcome (invalidating Section 4 and upholding
the others) stands as the Court’s official decision.

Impact of the Decision

This decision had significant legal and social implications:
Legal: The ruling reaffirmed that any family law in Pakistan must align with the
Quran and Sunnah. By striking down Section 4, the Court effectively restored the
traditional Islamic rule on inheritance by grandchildren. Lawyers and judges must
follow this precedent in future cases. It also showed that the Federal Shariat Court
(and Shariat Appellate Bench) will vigorously enforce Islamic injunctions in statutory
laws.

Social: The judgment affected real people’s rights. Grandchildren who were getting
shares under Section 4 of the Ordinance would lose that entitlement. This outcome
pleased those who wanted strict adherence to Islamic law, but it may have been
controversial for families relying on the ordinance’s reforms. In a broader sense, the
decision signaled that Pakistan’s family laws cannot be easily reformed away from
Quranic teachings without judicial review.

Future developments: The case is often cited in debates on the Muslim Family Laws
Ordinance. It prompted discussions about whether Parliament should amend the law
(to either remove or modify these sections) and how to balance reform goals with
Islamic principles.

Sources: The above summary is based on the Federal Shariat Court’s written
judgment in SP-29/1 of 1993 (Allah Rakha v. Federation of Pakistan). All factual
details (petitioners, sections challenged, and court findings) are drawn from that
decision.