Notwithstanding the Islamic injunctions, principles of international law and legal and Constitutional safeguards on the empowerment of women, they are deprived of their economic and social rights, including the right to inheritance. Such denial is condoned on the pretense or pretext of misconceived religious notions, evil customary norms, wild tribal traditions and the unfair patriarchal system.
The right of women to specified a share of inheritance and entitlement to own and possess property, enshrined in the Quranic edicts and duly regulated by State legislation, remain unenforced. Consequently, far from enjoying equal rights or status in society, they lag behind and suffer exploitation and discrimination. This is indefensible, especially in an Islamic Republic. Therefore, remedial measures are warranted to let them enjoy their economic rights, so as to ameliorate their conditions in life and improve their status in society.
A redeeming feature of our contemporary world is the emerging realization/consciousness that till the time women attain emancipation and empowerment, and are conferred equal rights and status, the goals of economic development and social progress cannot be achieved. That is why concerted efforts are being made to end injustices and discrimination against women and improve their conditions in society. Thus, the New World Order lays enormous stress on respect for human rights and the equal rights of men and women. The Charter of the United Nations, the Universal Declaration of Human Rights, two International Covenants, the Convention on Elimination of all Forms of Discrimination against Women and the Convention on the Rights of the Child, provide for equality of rights and opportunities to women and protection of their civil, social, economic and political rights. And Pakistan, having ratified such conventions, is bound to honour its commitments.
The Constitution of Pakistan guarantees Fundamental Rights including the right to life, liberty, dignity, property and equality. It ordains the State to take affirmative action for the welfare and protection of women and children and establish equality of status, of opportunity and before law, for all citizens. It goes on to dictate that the “State shall protect the marriage, the family, the mother and the child”, and take steps to “ensure full participation of women in all spheres of national life”.
Amongst the religious movements, Islam devotes a considerable part of its thought and philosophy to ending injustice and oppression or exploitation of the weak and vulnerable sections of society. It ordains the emancipation and empowerment of women, ending their abuse and exploitation and improving their civil, social and economic status. Says the Quran in emphatic words: “And why should ye not fight in the cause of Allah and of those who, being weak, are ill-treated and oppressed? Men, women, and children whose cry is: Our Lord! Rescue us from this town, whose people are oppressors; and raise for us from Thee one who will protect; and raise for us from Thee one who will help!” (Sura Al Nisaa: 75).
The Islamic law, based on the Quranic edict, recognizes the right of women to inherit from blood relations and the spouse. The right to inherit and own property has a close nexus with enjoying legal personality. That such right was conferred fourteen centuries ago, was truly unparalleled. No such rights or privileges were given to women in the Western civilization. Thus, the British women could not inherit property because of the law of “primogeniture”, according to which the elder son claimed the entire real estate to the exclusion of all other sons and daughters. This nefarious practice lasted till 1925. Moreover, the principle of “coverture” led the legal personality of married woman (i.e. her rights and obligations) to be subsumed into the husband. It was only through the Married Women’s Property 1882, that the practice was abolished.
Notwithstanding this headstart by Muslim women, as ordained in Quran and regulated by law [The Muslim Personal Law (Shariat) Application Act 1962], nothing much has changed on the ground. Inheritance is generally denied to women. The superior courts have laid stress on the strict implementation of the law and observed that legal hitches/technicalities and procedural lacuna, including the principles of “res judicata”, “estoppel” and “adverse possession”, may not deprive a female of her right to inheritance. The Supreme Court further nullified the customary practice of depriving Christian women of their right to inheritance by male heirs, such practice being found contrary to the principle of justice, fair play and good conscience. In yet another landmark judgment, it rejected the legal claim of “adverse possession” by brothers, thereby upholding the claim of the sister in ancestral property. A recent amendment to the Pakistan Penal Code (S. 498C) further strengthened the enforcement of the law by penalizing those who deny inheritance to women. It says that the denial of inheritance through illegal or deceitful means shall be punishable with imprisonment for up to 10 years, with minimum 5 years and fine of one million rupees.
Mere enactment of laws is not enough. The Government’s responsibility goes beyond. It is required to enforce and implement them through the use of its coercive apparatus and by taking welfare measures, including the allocation of resources for enhancing the capacity of all stakeholders in the administration and justice sector to enforce the law. The test of good governance is indeed in making laws beneficial for its citizens and their full and effective enforcement
Some recent provincial statutes help facilitate the implementation of inheritance law. In Punjab (through an amendment to the Land Revenue Act 1962), the revenue authorities are obligated to transfer shares to all legal heirs including women through necessary mutation in the Record of Rights. Similarly, the authorities in the Excise and Taxation Department are obligated to effect succession through distribution of the urban property amongst all male and female heirs. In KP, through The Succession (Amendment) Act 2019, NADRA is empowered to issue letters of administration and succession certificates to the legal heirs. The same facility has recently been introduced for the residents of the Islamabad Capital Territory. The KP Enforcement of Women Ownership Rights Act 2012 penalizes the practice of depriving women of their ownership through fraudulent or coercive means. The punishment is imprisonment for up to five years and a fine of Rs 50,000. Again, the KP Enforcement of Women Rights Act 2019 helps facilitate the recovery of women’s property through the office of the Ombudsperson. The other provinces need to move in the direction of improving the enforcement mechanism to ensure that women get their due share in inheritance.
Needless to say that the mere enactment of laws is not enough. The Government’s responsibility goes beyond. It is required to enforce and implement them through the use of its coercive apparatus and by taking welfare measures, including the allocation of resources for enhancing the capacity of all stakeholders in the administration and justice sector to enforce the law. The test of good governance is indeed in making laws beneficial for its citizens and their full and effective enforcement.
This still leaves out the issue of unequal shares of male and female heirs in inheritance. Turkey is perhaps the only Muslin country, which provides equal male or female shares in succession. The anomaly is currently debated in Egypt and Tunisia. The issue needs to be debated among Islamic scholars and discussed in the Parliament and Provincial Assemblies.
