Women & Law of Inheritance

Syeda Viquar-un-nisa Hashmi President

10th Oct. 2012

What is Inheritance?

Inheritance in common parlance means money or property derived from one’s parents or ancestor. In legal terms it is the property received from an ancestor under the laws of inheritance or a property that a person receives by bequest or devise.

Primitive Practices

Total denial of Women’s Right to Inheritance (e.g., in Africa, Arab and hindus (the followers of the schools of thought like Baudhayana and Vasishtha.))

Women’s entitlement to Inheritance subject to conditions or under limited circumstances

Women’s entitlement to Dowry/ Maintenance instead of share in inheritance (e.g., Babylonia)

Women’s equal right to inheritance (Feudal)

Women’s right to inheritance in preference to men. (Hindus polyandrous tribes of the promiscuous type)

Impact of Religions

JudaismCONCEPTS

Daughters are entitled to inheritance on equal footing with son.

“and their father granted them inheritance along with their brothers. (Job, 42:15)

Daughter (s) can inherit only in the absence of male legal heir.

“Say to Israelites, ‘if a man dies and leaves no son, turn his inheritance to his daughters” (Numbers 27:8)

Women are not entitled to inheritance (Deuteronomy 21:16)

Christianity

Same concept as in Judaism

No direct verse on women’s right to Inheritance

Progressive interpretations of biblical directive grant women right to inheritance on equal footing with men

IslamWomen have right to inheritance as:

Sharer

Residuaries

Distinct kindred

Residuary in his own right

Residuary in another’s right

Residuary with another

Zoroastrianism (followed by Parsis)

Equality of Rights

Excommunication on marrying a person of different religion

Prevailing policy /legal framework in Pakistan

Constitutional Guarantees

International Commitments CEDAW

Prevailing LawsPrevention of Anti-women Practices (Criminal Law Amendment)

Act, 2011Muhammaden LawChristian LawChristian’s women’s Right to Inheritance Hindu Law Parsi Law

Prevailing Customary Practices

Women’s rights to inheritance

Denial of Right

Voluntary withdrawal of right

Withdrawal of right under Compulsion:

“Haq Bukhshwana”

(Balochistan, NWFP and interior Sind).

Hindrances in Women’s access to Court of law/litigation and out-door activities

Other Factors Impacting Women’s Right to Inheritance

Discriminatory attitudes towards women

Lack of Decision making power

Family system

Marriage system Arranged Marriages Exchange Marriage (watta satta) Walvar (bride price)

Non-Registration of Marriage and Birth

Lacunas in the Prevailing Implementation Mechanism

No exclusive policy

no uniform mechanism

Land Revenue ActLack of title

Nominal penalty on default of registration or on furnishing wrong information

Lack of Mandatory provision for the production of birth, death and marriage registration certificates of the legal heirs

No mandatory provision for the publication of notice after Shijra-e-Nasb and waiting period for receiving claims

Transfer of female Right to inheritance in favour of male legal heirs

Succession Act

Lack of detailed determination of right to inheritance

Registration of Births, Deaths & Marriages Act, 1886

Family Laws Ordinance, 1961

Lack of Compulsory registration of the Births, Death and Marriages

Lack of legal sanction

Practical aspect of Implementation Mechanism

Union Council & its Functionaries

Nikah (Marriage) Registrar

Educational institutions

Health Department (BHUs/RHCs etc.)

National Database Registration Authority (NADRA)

Revenue Department

Subordinate Judiciary

Implications of the lacunas on Women

(Findings of NCSW’s Research Study)

Negative Portrayal of Women

Women are incapable of managing their own property Men ………………. 36.58%Women ……………27.17%

Women should not possess the property at all.Men 15.3% Women 13.33%

Denial of Right to take Decision Selection of job/profession – 66%

Selection of Spouse – 76%

Independence in travel – 66.1%

Interaction with people – 64.9%

Family and Marriage system

0

10

20

30

40

50

60

70

Exchange Walvar

Arranged Love marriage

Arranged marriages Arranged marriages - 63.5%- 63.5%Walvar’ Walvar’ - 14.87%- 14.87%Watta satta Watta satta - 10.91%- 10.91%Court marriage Court marriage – 2.25%– 2.25%

Non-Registration of Birth

Female – 49.4%

Men – 50.6%

48

48.5

49

49.5

50

50.5

51

51.5

52

Women Men

Reasons

Customary Practices – 40.58%

Lack of system - 10%

No immediate need – 30.08%

0

5

10

15

20

25

30

35

40

Lack of system No needCustomary

Challenges

Frequency of women having faced Challenges – 55.57%

Types of Challenges:Customary practices -

53% Procedural – 19% Legal system - 27.4%

0

10

20

30

40

50

60

70

Customary Legal Procedural

Women’s access to Court of law/litigation and out-door activities

Problems in getting Justice

Eda Khan’s case

Lack of Monitoring Mechanism

Way Forward

Legal reforms Revenue record must be computerized to facilitate women in

having access to legal documents. The taskforce with its members from both public sector as

well as Civil Society Organizations, should be constituted in Sindh to investigate cases of marriage to the Holy Qur’an. The taskforce should be enabled to initiate criminal proceedings in Court on behalf of the aggrieved women.

The customary practices of watta satta and wulvar should be banned and made punishable offences.

The topic of ‘Women’s Right to Inheritance’ must be introduced in the curriculum at School, College and University levels as a separate subject.

Birth certificate from Union Council must be mandatory for admission in the primary schools.

f. School administration should be held responsible for verifying the date of birth from the Birth Registry at union Council.

g. Marriage and Divorce Registry must be held responsible for verifying the date of birth/age of both the bride and bride groom from the Birth Registry.

h. Training and gender sensitization of lady councilors, Patwari, Tehsildar and Nikahkhuwan and utilizing their services for bringing about positive change in the perception of people about the concept of women’s rights to inheritance.

i. Lady local government councilors should be involved in monitoring the process of transferring the inherited property to the women legal heirs of the deceased person.

j. Sharia Fatwa must be prohibited unless specifically authorized in writing by the PIMRC in individual cases.

k. Dissemination of knowledge/awareness about women’s right to inheritance through media.

l. Legal documents should be made reader friendly and easily understandable to both men and women.

m. Capacity building of the concerned officials.

n. Women should be inducted at all the tiers of Revenue department for dealing with the matters of inheritance.

p. Judicial reforms should be implemented as per the essence of access to justice program.

q. Consultation meetings on the law of inheritance of both Muslims and Non-Muslims be held to discuss the gender issues with the objective to initiate reforms in the prevailing laws of the land on the basis of justice and equity.