A child loses a father. Years later, the grandfather dies, and the child is dispossessed again as the estate passes to the uncles, and the orphan takes nothing. No court has erred. This is the ordinary operation of classical Sunni inheritance law, administered in India through the Muslim Personal Law (Shariat) Application Act, 1937.Earlier this month, Siraj Karoly, a senior lawyer in the Kerala High Court, asked the Law Commission to recommend an amendment to the 1937 Act and introduce the concept of an Obligatory Bequest (Wasiyyat Wajibah), under which the children of a predeceased son or daughter receive their parent’s share, up to one-third of the total estate. The plea is sound in principle. Its fate, however, will be based on the model, and the model will be based on 80 years of comparative experience.A rule open to reform from withinClassical Sunni law excludes the remote heir by the nearer ones. The children of a deceased son are shut out by his surviving brother, and the children of a deceased daughter fare even worse. Shia, Hindu and Christian orphaned grandchildren, by contrast, succeed by the doctrine of representation. The remedy requires no rewriting of Islamic law. The children of a deceased son and daughter are non-heirs as per Sunni law, and a bequest to a non-heir up to one-third of the net estate is valid as per the Hanafi school. Ibn Hazm, the Zahiri School jurist, held that the bequest of up to one-third of the estate to the orphan grandchildren is a duty which a judge may enforce, and consequently, Egypt’s law of 1946 was codified on his line of argument. For Shia Muslims, whose law already gives the grandchild the parent’s share, it merely confirms an existing right.Borrowing the best from each countryNo country has solved this perfectly, and India need not copy from any one of them. It can do something wiser instead, borrow what works, and leave behind what does not.From Egypt, India can borrow the foundation. Since 1946, Egyptian law has treated the grandfather as if he had left a bequest to his orphaned grandchildren, equal to the share their dead parent would have received, up to one-third of the estate. It is paid first, before the other heirs divide what remains. Tunisia gives this to the children of daughters as well as sons. India should do the same, because a rule that favours one line of the family cannot be defended on the touchstone of Articles 14 (right to equality) and 15 (against discrimination) of the Indian Constitution.From Jordan and Kuwait, India can borrow fairness. A grandchild who already inherits, or who received gifts from the grandfather during his life, should receive only what is still missing. Nothing is lost, and nothing should be paid twice. From the Emirates, India can borrow practical tools, say, for example, wills that can be registered, and experts to value the estate when there’s disagreement within the families.Story continues below this adFrom Pakistan, India can borrow warnings. Pakistan gave grandchildren their parent’s full share by doctrine of representation, and its Federal Shariat Court struck the rule down in Allah Rakha vs Federation of Pakistan in 2000, preferring the bequest instead. The court held that orphaned grandchildren inheriting through representational succession is against the injunctions of Islam, holding that classical Sunni law excludes them if direct children of the deceased are alive.Legal Minds | How changing white-collar jurisprudence is impacting bail strategyThe result is a model that treats the children of sons and daughters alike, caps the bequest at one-third, and applies equally to Sunni and Shia Muslims. The dead parent is imagined alive only to measure the share and takes no part in dividing the rest. Debts are paid first, then the bequest, then any other bequests, and the living heirs share what remains.Adopting the model in IndiaA good doctrinal argument is necessary but not sufficient. Egypt’s reform came with an explanation presenting it as the revival of a suspended Quranic duty, and India should present it as the same. Pakistan’s model shows the cost of thin consultation; however, even the concept of obligatory bequest met resistance from its conservative section. The Bill should therefore go early to the Parliamentary Standing Committee, the Law Commission and the All India Muslim Personal Law Board (AIMPLB). Malaysia, which began with sons’ children and later extended the bequest to daughters as well, shows that codification improves with review, so periodic assessment and amendments should be there, if needed.The constitutional warrantArticle 14 condemns a rule under which a child’s inheritance depends upon the order in which father and grandfather die. In Shayara Bano, the Supreme Court held that a practice of Muslim personal law, applied through the 1937 Act, could be struck down as manifestly arbitrary, and the older view in Narasu Appa Mali that personal law escapes Article 13 (laws inconsistent with or in derogation of the fundamental rights) has weakened. Article 15 is engaged because Shia Muslim, Hindu and Christian orphaned grandchildren inherit by representation while Sunni Muslim ones do not, and the children of daughters fare worst of all. A disparity of this kind between communities living under one Constitution invites the most scrutiny.Story continues below this adArticle 21 (protection of life and personal liberty) protects the dignity of a child left without provision. The court has read that guarantee to include the material conditions of a life with dignity, from Francis Coralie Mullin to Puttaswamy, and an orphan disinherited by an accident of chronology is the textbook example of a person the article is meant to protect. Article 25(2)(b) preserves the state’s power to legislate for social welfare and reform, and a measure drawn from a good doctrinal argument is meant to amend the religious law from within. That is what makes it at once defensible before a court and acceptable within a community.Why reform mattersThe benefits of the obligatory bequest are plain. It gives an orphaned grandchild a secure claim on the grandfather’s property, so that a child who has lost a parent is not also left without a share. The claim is protected by priority over the grandparent’s voluntary bequests, and a later will cannot defeat it. The one-third ceiling keeps the shares of the other heirs largely intact, so the family is not thrown into dispute. The model treats the children of sons and daughters alike, and it applies equally to Sunni and Shia Muslims. It also rests on a recognised doctrinal position and is proven in practice, from Egypt in 1946 to many Muslim-majority countries since. As advocate Karoly rightly pointed out, the change cannot be made by government order or notification, and only Parliament can amend the 1937 Act, but with proper consensus of the community. What the orphaned grandchild lost was a claim on the family’s property, and that claim is exactly what the bequest restores.Also Read | Protecting workers amid changing labour laws: Judge’s visionary blueprintConclusionEgypt shows that the reform can be enacted. Jordan and Kuwait show how to make it fair. The Emirates show how to run it, and Pakistan shows what to avoid. From these lessons, India can build a law that treats all orphaned grandchildren equally, caps the bequest at one-third, and applies to Sunni and Shia alike. The Constitution does not merely permit such a law. It invites one. Advocate Karoly’s representation has put the question before the Law Commission this month, and it is now for Parliament to act. Succession law answers with precision the question of who survives. It has been slower to ask who is left behind. Thankfully, a well-drafted obligatory bequest provision asks both.Sadaf Parvez is a Lecturer at the Faculty of Law, Jamia Millia Islamia, specialising in Personal Laws and Comparative Constitutional Law.Story continues below this adWritten by eminent law professionals, the Legal Minds Column aims to break down complex statutory frameworks into insights, both for members of the fraternity and the general public.For feedback and pitches, write to us at expresslegal@indianexpress.com