Women’s right to inheritance is enshrined in Islam and the law . why do they still have to fight for it?

Passing inheritance down through men is an old practice. Though the law ensures women’s right to inherit, old habits die hard.

Umar Bacha Published March 5, 2022 – dawn.com

In 2017, when Pihlwan Baig was still alive, he transferred his land to his six children, dividing it among his four daughters and two sons. Of the 24 kanals he owned in Ali Abad, Hunza, he gave each of his daughters a five marla plot and a shop.

When he passed away in January 2020, however, his sons decided to claim the entirety of Pihlwan’s property — even if they had to resort to violence to do so.

In an FIR registered in November 2021, Pihlwan’s daughter Zahra Banu explained how her brothers tried to force her to sign a piece of stamp paper. When she hesitated, they beat her. And when her husband came home and intervened, they left him and Banu’s 11-year-old son black and blue too.

The law

Article 23 of the Constitution guarantees the right to own property for every man and woman in the country. It is backed up by a long legal tradition of protecting women’s property rights in Pakistan, beginning with the Married Women’s Property Act of 1874 and the Dissolution of Muslim Marriages Act of 1939 under the British Raj, and going on after independence with the Muslim Family Laws Ordinance, 1961, the West Pakistan Muslim Personal Law Shariat Application Act, 1962, and the Prevention of Anti-Women Practices Act, 2011.

The most recent bill passed in this regard, the Enforcement of Women’s Property Rights (Amendment) Bill, 2021, seeks to ensure that the right of women to own and possess property is not violated by means of harassment, coercion, force or fraud.

Meanwhile, under the Prevention of Anti-Women Practices Act, 2011, denying women their inherited property through ‘deceitful or illegal means’ is punishable with imprisonment of up to 10 years, but no less than five, and/or a fine of Rs1 million.

But passing inheritance down through the men of the family is a tale as old as time. And though the law gives women the right to inherit, old habits die hard.

In fact, according to the Demographic and Health Survey 2017-18, “97 per cent of women [across Pakistan] did not inherit land or a house, while 1pc each inherited agricultural land and a house. Less than 1pc of women inherited non-agricultural plots or residential plots.” While the issue affects women across Pakistan, this piece focuses on those living in some areas of Khyber Pakhtunkhwa (KP) and Gilgit Baltistan (GB), where the data was accessible.

Inheritance denied

In December 2021 alone, the KP revenue department’s service delivery centre in Shangla recorded 30 incidents of tamleek — the practice of gifting property to legal heirs during one’s lifetime. Of these 30 cases, only two took daughters into consideration. In the rest, women had been set aside.

“It’s very common for men to deprive daughters of their property rights through tamleek,” says Amir Hassan, a revenue official, explaining that in this way, people are able to find a way around the laws that give women their due in a deceased person’s possessions.

“When it comes to inheritance, the deceased’s daughters do have a share, but even there, the sons usually come to agreements with them to gain their shares with their consent.”

Some, though, don’t bother with consent, opting instead to force their female relatives aside and usurp their property.

Waiting outside the Shangla district courts in Alpuri, 70-year-old Nasib Ranra laments the fact that she does not have a son. “Had I a son, I wouldn’t have to come to court to fight over the rights to my late husband Musa’s property. Alas, I have given birth only to daughters.”

After Musa Khan died, his brother Khoidad allegedly jumped at the chance to seize their father’s land. He quickly transferred the property — around 31 kanals of cultivated land and 465 kanals of non-cultivable land — to his own sons, depriving Ranra and her four daughters of their inheritance. And if that wasn’t enough, he was forcing her to vacate her marital home in Belkani too, she said.

Although a jirga had ordered Khoidad to return the property, he refused to back down. And so, Ranra had turned to the courts, hopeful that they would rule in her favour.

Shabana Khan and her two sisters, too, had filed a suit in 2021 after three of their brothers deprived them of a share of their father’s property. Presenting a falsified power of attorney in court in 2000, their brothers had been able to occupy hundreds of kanals of their late father’s land, leaving Shabana and her sisters with no recourse but a court case and a complaint lodged against the local revenue department.

According to Shabana’s lawyer Mian Safeer, her two youngest brothers, Azaz and Asghar, found themselves left out of the inheritance too, claiming they had been too young to know about the power of attorney when the land was transferred.

Shabana Khan, Zahra Banu and Nasib Ranra are only three of a multitude of women struggling to lay claim to their rightful inheritance in the country.

A common practice

Sultan Rome, a senior lawyer and a member of the Shangla district bar association, says he alone is representing clients in over three dozen inheritance cases; several of his colleagues in the bar association have similar caseloads. One of the reasons for this, he explains, is rising female literacy — women are simply better educated about their rights and so they are approaching the court if their relatives deprive them of their inheritance.

However, Khan Bahadur, a lawyer at the Peshawar High Court’s Swat bench, estimates that 80 per cent of the inheritance cases he has taken on in the past have ended with the parties patching up the dispute themselves. “You see, women usually do not want to ruin their relationship with their brothers,” he rationalises. Plus, he adds, society considers it shameful for women to appear in court.

“I think maybe just one per cent of women are taken into consideration when it comes to transferring land through tamleek,” he goes on to say. “In most cases, fathers just bequeath their property to their sons. These old customs are still followed in our region, denying women their rights. Brothers press their sisters not to ask for their share and fathers fear their daughters will take the property to another family [when they marry].”

Faizur Rehman, the deputy director of the service delivery centre in Shangla, concurs, saying it is a terrible pattern he has noticed throughout his tenure in the revenue department: men transfer their properties to their sons through tamleek, leaving their daughters with nothing.

“In tamleek, a person can transfer their land to their son or daughter. [Apart from tamleek,] if they choose to gift the property, they can do so to anyone even if they are not an immediate family member,” he clarifies.

Rehman adds that the revenue department had observed that people often sought to mislead officials when it came to inherited property. And so, he says, he set up a mechanism to avoid fraud in land registration by verifying the claims four times through various officials and religious clerics.

“Men in GB don’t hesitate to enrol their daughters in school — but when it comes to giving them property rights, they consider it a shameful thing,” says Baba Jan, president of the Awami Workers Party in GB, who often uses rallies and public meetings as an opportunity to call on people to set these practices aside and ensure the rights of both men and women. “For myself, I have told my sisters to take their share of [our father’s] property because it is their right. After all, we were all loved by our parents.”

Zahra Banu’s lawyer Nazeer Ahmed, though, insists that such cases are a rarity in GB’s Hunza and Nagar districts, where he claims people aren’t too eager to safeguard their daughters’ property rights.

The right of inheritance for women is enshrined in Islamic injunctions as well.

“The provision of inheritance is integral in Islam. The Holy Quran says ‘Allah thus commands you concerning your children: the share of the male is like that of two females. If (the heirs of the deceased are) more than two daughters, they shall have two-thirds of the inheritance; and if there is only one daughter, then she shall have half the inheritance’ (4:11),” recites Maulana Muhammad Fayaz, a senior cleric based in Shangla.

“If a person does not give a share to his daughter, he contradicts the orders of Allah and it is a sin; there is no exemption in Islam that permits you to deprive women of their inheritance from their father.”

The Supreme Court too has upheld these rights, pointing out last year that the Islamic law of inheritance was final and could neither be changed by the courts nor any jirgas. In his written judgment on the matter, Justice Qazi Faez Isa observed that it had become a norm to deprive women of their share in inheritance through fraud and other tactics. Adding that this went against Allah’s order, he termed such acts ‘abominable.’

For his part, KP Minister for Human Rights, Labour and Culture Shaukat Yousufzai insists that protecting women’s rights was a priority for the incumbent Pakistan Tehreek-e-Insaf government.

“We tabled the Enforcement of Women’s Property Rights (Amendment) Bill, 2021, and it was unanimously passed. Though its implementation will take time, the government will take action against those who fraudulently transfer inherited properties to themselves and swindle their sisters of their shares,” he states, adding that the government was striving to educate women about their property rights as well as the options available to them if they were forced to give up their inheritance.

It remains to be seen how effective these measures will prove to be. For now, however, Shabana Khan, Zahra Banu and Nasib Ranra and hundreds of others like them can only hope for justice through the courts before it is too late.

source https://www.dawn.com/news/1678231/womens-right-to-inheritance-is-enshrined-in-islam-and-the-law-why-do-they-still-have-to-fight-for-it

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