A seriously overlooked anomaly in our legal system
Before Islam, the system of inheritance was confined to male descendants. Women did not have any share of inheritance, and they themselves were inheritable too. Siblings from the mother’s side, like half-brothers or half-sisters, were completely excluded.
Islam, by clearly stating in the Quran that women have the right to inherit for themselves, changed the status of women in an unprecedented fashion. The Quran states:
“Men shall have a share in what parents and kinsfolk leave behind, and women shall have a share in what parents and kinsfolk leave behind.” (Quran 4:7).
Thus, whether women can inherit at all is not the controversy. Rather, the dispute centres around the “share” that is to be inherited and the real issue is that even after knowing what Quran says about the inheritance right of women still their rights are denied completely.
A male relative receives a share equal to that of two females applies only to the inheritance of children by their parents. Parents who inherit from a deceased child, for example, each inherit one-sixth of the property if the deceased child is survived by a child of his or her own. In that instance, the division is equal between the mother and the father of the deceased. The verse then states what the mother shall receive if the deceased left no children or if the deceased left siblings. Presumably, the father and the mother inherit equally in those situations. The rationale behind a brother receiving double his sister’s share, on the other hand, is based on the Islamic legal presumption that he has an obligation to provide for her support. Bearing in mind that these verses were revealed in Arabia over 1400 years ago, when women had no financial security other than what was provided by men, these verses demonstrate the care and respect given to the family unit, and ensured that women’s rights would continue to be protected. Hence, brothers with sisters were given larger shares than their sisters, together with the legal obligation to spend a portion of this wealth on those sisters.
In Islam, women are entitled the right of inheritance. In general circumstances, though not all, Islam allots women half the share of inheritance available to men who have the same degree of relation to the decedent. For example, where the decedent has both male and female children, a son’s share is double that of a daughter’s. Additionally, the sister of a childless man inherits half of his property upon his death, while a brother of a childless woman inherits all of her property. However, this principle is not universally applicable, and there are other circumstances where women might receive equal shares to men. For example, the share of the mother and father of a childless decedent. Also the share of a uterine brother is equal to the share of a uterine sister, as do the shares of their descendants.
Arab society traditionally practised the custom of bride price or dower rather than dowry; the man paid a gift to his wife or her family upon marriage, rather than the opposite, placing a financial burden on men where none existed on women. This custom was continued but changed materially by Islam. The divine injunction stipulated that the dowry (haq mehar) is due to the wife only, not her family. (Presumably, in few areas in KP it is still practised as in a cash amount is given to the family of bride upon marriage by the groom, which some say amounts to selling the daughter.) It can also be deferred thereby reducing the burden if the husband is unable to afford the requested dowry at the time of the marriage. The wife can defer it till a stipulated date or it can become a debt on the estate when the husband dies. And give their dowries willingly to women (as an obligation), but if they, of their own accord, remit a portion of the dowry, you may enjoy it with pleasure.
Rights are not denied to women. Women do not get what is their right. This statement is conflicting yet is the reality. Women’s right to inheritance plays a vital role in the socio-economic and political empowerment of women, but unfortunately women are often denied the right to inheritance due to deep-rooted patriarchal system, biased interpretation of divine directives, laws of the land and above all inefficient mechanism for the implementation and enforcement of laws which are actually delaying tactics. Registration of birth and marriages is mostly avoided in Pakistan.
A survey indicates that the births of about 49.4% of female and 50.6% of male respondents respectively were found unregistered. Similarly, the marriages of 53.21% female and 39.68% male respondents respectively were unregistered. 40.81% of female respondents did get share in inheritance. However, such women were generally not given control and authority over the property. The women who were either denied share in inheritance or who succeeded in getting their right mostly faced challenges owing to customary practice, complex legal system and procedure.
Owing to customary practices mostly women are forced to withdraw their right to inheritance in favour of male family members seemingly voluntarily or under compulsion.
The widow loses her right of inheritance if she remarries outside the family of her deceased husband prior to getting her share in husband’s inheritance. However, in case a widow has already acquired share and wants to remarry outside her husband’s family, she is mostly made to transfer her share to male family member of her deceased husband. And she is often forced to do this by her own parents. The basic problem and root cause of all the problems faced by women is their inheritance right, because of that she has to suffer throughout her life, she can’t remarry after being widow or divorced because of the financial crises then she has to depend on her parents or brothers they look after her but she has to surrender her inherited property to them as a price of her social security.
The practice of giving women the right to inherit was practised in those tribes of our rural areas where there was an ancient matriarchal culture that ensured that the woman remains within the tribe after marriage. In such cases, whatever she inherited would remain within the tribe and be passed on to her off springs. If a woman left the tribe after her marriage, the inheritance would be drastically reduced to avoid its falling into the hands of another tribe. The women were entitled to inherit if the deceased had no legal male heir, was the last survivor of the coparcener, had been separated from the other members or his property had been self acquired. But the women’s right would not extend beyond their claim to a personal maintenance.
There was a time in history when the property of the deceased was to be divided equally among his children, but the immovable property was often kept together and enjoyed in common. Thus, the daughters, who left the parental house after marriage, were debarred from possessing the immovable property. The father was responsible for providing a dowry for each daughter on her marriage, but if the daughter took vows (a set of promises leading to a monastic life of a nun) with the father’s consent or at his instigation he would give a share in his property.
And in cases where the father had not given a vowed daughter a share before his death, she would receive only one-third of a son’s share to be utilized till her lifetime only. In the event of her death this would revert to her male sibling. If the daughter took vows without the father’s consent, she would be entitled to a dowry on his death. If a daughter was unmarried at the time of her father’s death, she was entitled to receive her dowry from her brothers and sisters over which she had a right till her lifetime only; if she had children, then it would pass on to them. If she died issueless, her dowry would be reverted to her family-brothers in the first instance and their heirs after them.
The requirements for inheritance with reference to daughters were applicable to mothers and widows too. A widow used to be left in possession of what her father had given to her on her marriage, but with only a life interest in it. She had the right to live in her husband’s house but she had no right to dispose it off as it was meant for her children. If her husband gave her a marriage gift, she could continue to enjoy it, or otherwise she could use some of her inheritance which would be transferred to her children on her death. In case she died issueless, all she had received from her father would revert to his heirs, except the bride-price which her husband had paid for her to her father. If her father had given her that, her husband could keep it. If not, her father or his heirs would repay it to her husband. But if her father had given her the right of disposal, she could dispose it off as she liked.
Even now in Pakistan it is seen, mostly in Sindh and Balochistan, that to keep the property in family a woman is force to marry Quran means she has to spend her life as a nun, she is made a complete fool by giving her fake respect of being more pious than others.
It is considered to be a sin to claim inherited property from brothers and the sister who does it is not respected at all, and treated as a rebellious person. That woman remains deprived from her parents’ and brothers’ love whole her life.
These were the old customs and traditions while these days when you see our society you realise that women inheritance rights are not only denied in the lower classes, they are also denied in the upper class, especially in our feudal system. Whether women are educated or not, that doesn’t make any difference. There is no concept of women inheritance right in almost 70 percent of our rural areas. It is noteworthy that women of lower or middle class are still entitled to their property rights because they are strong as they work hard and considered to be tough and fearless as compared to upper class women, and if their inheritance rights are denied they simply go to courts and fight for their rights while upper class women always need social security of their parents, husbands or brothers so they hardly go against their decision. And if their inheritance rights are denied they accept it quietly and surrender everything instead of fighting for their rights.
This is the high time to educate our women to stand for their inheritance rights. There must be proper legislation in the National Assembly for the right of inheritance of women. Not just a resolution but proper implementation of law must be made sure. Women should be educated through print and electronic media in a way that it should become a movement. We should do this if not for ourselves but for our daughters to be secure and independent.
The writer is in-charge PEMRA, a social activist and a writer.
Source: Pakistan Today
A seriously overlooked anomaly in our legal system