Women Inheritance Rights: Rhetoric or Resurgence?

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Dr. Shakil Ghori*

This article was initially printed in the Daily Times in two parts. The first part appeared on 7 December 2018 and the second on 8 December 2018. Slight modifications have been made in this version to merge the two parts.

*The author has a Masters degree from London School of Economics (LSE) and a PhD from Oxford Brookes University and worked extensively in Pakistani education sector. He is currently working as an External Consultant for the Oxford Centre for Staff and Learning Development. This article is based on a research commissioned by International Land Coalition (ILC) based on Rome, Italy and Society for Conservation & Protection of Environment (SCOPE). The full report is available on request from the author on dr.shakil. ghori@gmail.com

Despite being high on the agendas of two large political parties i.e. PPP and PMLN, and deemed cornerstone of PM Imran Khan’s struggle for equality and justice in Pakistan, women inheritance rights in Naya Pakistan are yet to be realised.

Recent announcement of launching an awareness campaign by the Ministry of Human Rights and endorsed by the Council of Islamic Ideology to educate people about the rights of women to inheritance under Islamic jurisprudence and the constitution is music to the ears for thousands of activists in the country.

The right to own and control land is at the forefront of the inheritance rights that the women have been denied for a long time in our country. The existing statutory, customary and religious laws as well as practices are affecting women’s inheritance rights in Pakistan. The implementation of statutory laws supporting women’s inheritance rights are difficult to implement due to long held societal perceptions as well as acceptance and support for customary and religious practices.

Women in Pakistani, particularly in rural areas face many challenges and often their role is undervalued and unpaid. Low priority to girls education, limited ability to enter into waged employment, lack of control over income and assets, lack of decision making power within households, limited mobility, low level of participation in public life and high level of violence against women are some of the factors that hinder opportunities and access of women to have legitimate share of resources including inheritance and agriculture land. In addition, most agriculture extension programmes focus on men and participation of women in agriculture extension activities is not encouraged. Thus, due to lack of knowledge and credit, women participation in decision making with regard to farm activities is extremely limited.

The constitution of Pakistan clearly stipulates equal rights for women including right to own and control land. Pakistan has also ratified several international conventions promoting gender equality such as CEDAW and ILO core convention 100 on equal remuneration for women. However, the Constitution offers no direct provision on women’s right to inherit other than guarantees and principles of policy to ensure justice without discrimination.

It is surprising to note that no data is available on the extent of women’s access and control over land in Pakistan. The official documents including census, household panel surveys and other official surveys do not include gender disaggregated data pertaining to the women’s access and control over land. However, anecdotal evidences suggest very few women own land and even fewer control land. One of the research studies in Pakistan indicates that women own only three percent of the agricultural plots. Another study of women in Punjab suggests that 10 percent of the women reported to have land ownership; however, less than three percent of the women reported to have access to agriculture inputs, cultivation, water/irrigation, land tenure, right to sell/purchase land and visits from extension services.

The land and inheritance rights in Pakistan are regulated by an intricate combination of civil, Islamic and customary laws where civil laws such as Contract Act 1872, the Transfer of Property Act 1882 and the Registration Act 1908, largely governs “ownership and transfer of property are gender natural however inheritance rights are subject to Muslim Personal Law 1962” enforced under Sharia law (SDPI 2008a, p.1).

The inheritance for women is a complex and multi-faced issue impacting lives of countless women in Pakistan. “Inheritance right is one of the most ignored gender issues owing to biased interpretations of religious directives and deep-rooted patriarchal customary practices denying women their due right. If they are at all given a share in inheritance, often possession and authority over it is denied. This problem is aggravated owing to inadequate policies/laws, inefficient implementation, enforcement system and absence of monitoring mechanism. Lack of political will is also a contributing factor to this situation” (NCSW 2005, p.1).

The inheritance for women is a complex and multi-faced issue impacting lives of countless women in Pakistan. “Inheritance right is one of the most ignored gender issues owing to biased interpretations of religious directives and deep-rooted patriarchal customary practices denying women their due right”

Women’s ability to own and control land in Pakistan is determined by statutory, religious and customary laws. Statutory laws may be in favour of women owning land but they cannot be enforced in a context where customary and religious laws prevail. The way women are perceived by society in general limits the possibilities for women to exercise their ownership and control rights. Moreover, women may not be aware of the legislative and protective measures that have been instituted to ensure property rights and thus may do not seek recourse when needed (Pallas, 2011, p.271) due to lack of awareness and ignorance.

It is widely accepted that women are denied their rights to hold land titles, manipulated over land inheritance and expected to and sometimes pressurised to surrender their land inheritance rights in favour of the male members of their families.

Women were never registered as tenants and so were not in the receiving end of any of Pakistan’s land reform and land redistribution attempts. They only inadvertently benefitted through the ceiling on land holdings which caused large landowners to divide their property between relatives so as to keep the property secure. Since this ruling by the court, all land redistribution is done through irrigating state land and providing land titles. In 2008, the Government of Sindh led by the People’s Party created a program to redistribute uncultivated state land primarily to women.

Women’s ownership of property is curtailed by the fact that there is no law to allow women to claim land acquired by her husband during marriage. In case, if a woman has paid for such property in cash she can file a case under benami (anonymous) but such cases are difficult to prove. In the same vein, divorced women are not entitled to receive support from their husbands (SDPI, 2008, p.9).

The main conceptual hindrance to equality in Islamic inheritance law is the idea that the woman should receive half the share of the man. Many of the arguments and rationalizations for this law may no longer be applicable. It would be useful to encourage people to see this as a necessary minimum.

Women may be forced to relinquish their rights in what is known as Haq Bukhshwana, a practice which can be found in KP, Balochistan andSindh. Women are never married or married to the Qur’an to prevent transfer of property. In certain parts of the country it may be customarily unacceptable for women to own any property and even if she is the sole surviving heir, property will transfer to a distant relative. Women will be considered as property themselves and their guardianship is taken over by other men. Women, generally, do not claim their inheritance without some amount of male or familial support. If they do so without any support they will be censured and considered an outcast. In extreme cases, they may have to face violence like being killed as kari in Sindh.

Women may own land in name but may not be able to control it. Purdah of varying degrees will prevent them from managing this land.

This purdah will include such measures as veiling, seclusion, limited mobility and prevention from interacting with strangers or in public. Purdah was considered a crucial reason for why women could not manage land by male respondents in one survey. But purdah, mandatory under customary law, also prevented women from being able to build these skills.

Statutory law has been tightened to prevent women from having their property relinquished without their consent such that in some instances a woman may be required to go out, be present in front of a public official, and sign documents to ensure a transfer. Women complained that men who usually did not allow them to go out would have no problem parading them in front of public officials to obtain the necessary transfer documents.

In the SDPI survey of male respondents, 50 percent stated women did not claim land because of customary law, 32.4 percent said it was out of familial obligations and 29 percent said it was because of ignorance of laws. The female respondents in the SDPI surveyed explained their lack of rights through culture or custom and because they wish to preserve future family support.

The Awaz Foundation survey of South Punjab asked respondents why women do not demand their inheritance rights. The most stated answers were social customs/practices (85 percent), fear of annoying family (80 percent) and the possibility of having to turn to one’s natal family for future support (70 percent). Other responses were not as popular and included they may forego their rights as a symbol of respect (45 percent), because of lack of awareness (45 percent) or assertiveness (30 percent).

Interviews with key informants identified three categories under which women could hold, manage and control land in Pakistan. Firstly, women could get land through the state land distribution. It took place only in Sindh in two phases between 2008 and 2010. During first phase land distributed largely among males while in second phase land was allotted largely to females.

Secondly, women’s inheritance rights over residential and other properties.More recently in Punjab province, Women’s Empowerment Package 2012 and Punjab Women Empowerment Initiative 2014 were introduced. The measures under these initiatives includes; eliminating barriers and address the issues depriving women of their land rights. State land in a number of katchi abadis in Punjab is allotted under joint ownership to both spouses.

Thirdly, women may inherit agriculture land. Despite women contribution to agriculture, it is difficult for women to claim their inheritance rights over agriculture land under existing statutory and Islamic laws. It is claimed by one of the key informant that women own very small proportion of agriculture land in Pakistan.

The evidence suggest that effective advocacy campaigns together with targeted information dissemination strategy and available support mechanism on the ground could really advance the women’s land and inheritance rights by informing and lobbying key stakeholders as well as policy process. Thus, there is an immediate need for designing and developing effective advocacy campaigns to influence law, policy and practice in Pakistan at regional, provincial and national levels.

It is also important to focus on designing effective advocacy, disseminating targeted and relevant information, sharing knowledge and devising support mechanisms on the ground are central to any improvement in securing women’s inheritance and land rights to own, control and manage land. There is also a need to develop an understanding on the status of women’s land rights, laws and legislation pertaining to their inheritance rights, customary and religious barriers as well as how these statutory, customary and religious laws are translated into practice on the ground.

In addition, there is also a need to explore the application of statutory, customary and religious laws and evaluate comparative superiority or inferiority of these laws. It is important to note that there are differences in societal perceptions based on gender i.e. men/women, socio-economic status i.e. income/class and religion i.e. Muslim /Non-Muslims.

Some important steps that could be taken to further the cause of women inheritance rights are outlined here:

There are laws in place; however the non-implementation is due to the mindset. Thus, we need to work closely with law enforcement agencies, revenue officers, patwaris and court officials as well as other people involved in enforcing the law as well as imputing court decisions.

There is a need to interact with the political leadership as politician are in a better position to influence enforcement of laws and implementation of court orders at provincial and national level. In addition, political leadership could also influence collection, maintenance and transfer of land records. Women face problems at local revenue and patwari levels if they want to claim their inherence rights.

There is need to promote women education and economic empowerment as these could lead to improvement in the situation. An educated woman can understand and claim her rights.

In the SDPI survey of male respondents, 50 percent stated women did not claim land because of customary law, 32.4 percent said it was out of familial obligations and 29 percent said it was because of ignorance of laws. The female respondents in the SDPI surveyed explained their lack of rights through culture or custom and because they wish to preserve future family support.

Civil society organisations should come up with better and effective advocacy campaigns to inform people as well as policy and decision makers to put the right arrangements in place.

The legal system requires fundamental re-organisation to be more approachable for common people. Government even could introduce a minimum charge on the conditions that court cases and disputes will be settled quickly.

There should be special legislation on the implementation of court decisions. Courts should have implementation powers.

We should work together to put the issues of inheritance and land rights on the political agenda. Women currently fighting cases or willing to claim their rights should be provided with information, support and guidance.

Women claiming their inheritance rights should be supported in the court proceedings. A panel of advocates could be organised that can provide expert opinion for free as a social service. Targeted training to lawyers, particularly young lawyers should be imparted.

The existing legislation concerning these issues are appropriate, however, there are problems with enforcement and implementation. The whole issue of inheritence and land rights have positive consequences on women empowerment. Thus, any initiative to provide awareness and legal aid to the affected women should be supported.

The legislation pertaining to the inheritance and land rights should be reviewed and necessary amendment should be made to support women’s right to inherit. There is a need to carry out lobbying and research to find out the gaps in policy and practice.

It is a long-term struggle to sensitize common people and raise their awareness that dispossessing women of their rights is wrong and women need to be given their legal share.

There should be one unified legal code to deal with inheritance claims.

The civil procedure codes and rules need to be amended. The provincial rules encourage interlocutory applications that are used a delaying tactics. The law of evidences under the civil procedure code needs to be amended.

We need to lobby political parties and manifestos to demand promises to address the issues. After the 18th constitutional amendments, land is now a provincial subject.

The issues around land governance should be addressed, such as, the distribution of state land as per political party manifestos to landless haris, forming land agrarian councils at the provincial level and implementation of land reform. Effective lobbying and advocacy campaigns should be organised to address these issues.