COMMENT: Female heirs: public policy in Islam —Hina Hafeezullah Ishaq
According to Islamic injunctions, a female is not bound to provide maintenance to anyone; her property is solely hers to be enjoyed as she wishes
Another feather in the cap of the federal government was the passage of the anti-women practices law that amended the Pakistan Penal Code. One such amendment was an addition of a new section, which specifically addresses the issue of female inheritance, or the lack thereof.
Section 498-A has been added to the penal code. It places a “prohibition of depriving a woman from inheriting property” and states “whoever deceitfully or by illegal means deprives any woman from inheriting any movable or immovable property at the time of opening of succession shall be punished with imprisonment for a term, which may not be less than seven years and a fine in amount of Rs.1,000,000.”
When a Muslim dies, there are four main issues that need to be taken care of, with respect to his estate. They are: the funeral and burial expenses need to be paid; debts need to be settled; if there is a will, up to one third of his total property needs to be executed and then the remaining property needs to be distributed in accordance with the shares as laid down in the Holy Quran. There is no concept of intermediary intervention, including that of a father, brother, son or husband or vice versa, in the matters of inheritance and succession in Islam. As soon as a person, irrespective of gender, dies, his or her property, both moveable and immovable, is to be immediately vested to his legal heirs, including females.
Islamic law is extremely clear on female inheritance. Even before the recent amendment to the law, our superior courts have dispensed justice to female heirs who had been deprived of their inherited property. There is a substantial amount of case law on the subject, which should ideally have been used as a beacon by the lower judiciary but unfortunately has been ignored in most cases, the result being years and years of litigation, with many claimants dying before the end of the process.
It is a well settled principle of law that regardless of the fact that the male co-sharers, mostly brothers, have claimed exclusive possession over the property of their sisters, it would be deemed that the sisters are in constructive possession. As is so rampant in our culture, the brothers often claim that the sisters have relinquished their right to the lawful inheritance in favour of the male co-sharers because of a contract or natural love and affection; such a claim has been held to be against the public policy of Islam. Firstly, it is unthinkable that natural love and affection only flows one way — brothers hardly ever give up their share of inheritance in favour of their sisters. There are exceptions of course, but the norm is the sisters being forced to give up their share on the pretext of natural love and affection. Secondly, any contract that is based on undue influence or coercion is void and cannot be enforced against a person. Again, the rules of interpretation when such alleged contracts are relied upon have to be in consonance with the spirit of the Quran and as set out in the Objectives Resolution in the Constitution of Pakistan.
Another mode of depriving females of their inherited property is through court decrees. Ex-parte and fraudulent decrees are obtained by the male co-sharers, with help from some black sheep in the legal fraternity and the judiciary, by which they transfer all the property in their own names. The Supreme Court has ruled that such mutations in revenue records have no value as they do not create any right to title and are maintained only for purposes of realisation of land revenue. Even if a female co-sharer has not been given a share in profits of the inherited land, this cannot serve to deprive her of her inalienable right in the property. In an attempt to secure females, the superior courts have also ruled that the question of limitation in filing for suits in courts to assert their rights in respect of their inherited property would not apply as they would be at all times deemed to be in constructive possession of the same.
Although the major victims of this deprivation are our rural, uneducated women, our urban and often educated women too have often not been given their inheritance. The urban female suffers due to emotional and cultural pressures; there is a fear of being ostracised from the family as a result of exercising the right to inherited property, which is ideally perceived as belonging to the brothers or other male members. The rural women suffer mainly because either their name is not included on the heirs list with the active connivance and collusion of the revenue officers or they are made to thumb-mark documents of relinquishment, power of attorneys, fraudulent sale deeds or bogus contracts. Another well settled principle of law is that all beneficiaries of such executed documents have to prove to the court that not only were the contents of such documents read over and explained to the female in question but that she had the mental capacity to understand the same and had access to independent advice and nothing was concealed and there was no misrepresentation and undue influence when she purportedly executed it. This rule has been extended to purdah-nashin, ignorant and illiterate women and applies in cases of alleged gifts in favour of male co-sharers as well.
A practice in vogue is to deny a female her right in inherited property on the basis of having provided her maintenance or dowry. The Quran has in most cases, with a couple of exceptions, allocated the male with twice the share of a female; there is a purpose behind this. According to Islamic injunctions, a female is not bound to provide maintenance to anyone; her property is solely hers to be enjoyed as she wishes, whereas the male is obligated to provide for his wife, children, parents and other needy relatives. Although an orphan female can be maintained out of the profits of her own inherited property, such maintenance does not deprive her of her right to inheritance. Even otherwise, it is deemed that a brother steps into the shoes of his deceased father in respect of being morally obligated to maintain his needy close relations.
The inheritance of females is a matter of public policy in Islam. They cannot opt out of this protection even if they wanted to. Any relinquishment of their right in such property is opposed to the public policy of Islam and even if it is proved against them it would be void. Any inheritance that accrues in favour of a female heir is deemed to remain intact at all relevant times regardless of any contract or relinquishment.
The legislation to make depriving a female of her inheritance a penal offence is a step in the right direction. Another good step is not making it religion-specific: not only females belonging to the majority religion but members of the minority ones will have an equal opportunity of benefiting from their inheritance provided their personal laws entitle them to such a share. There are still more steps that need to be taken but most important of all is the implementation of the law and following the rules laid down by the superior courts: it needs to be seen if those responsible for legislation, implementation and judicial dispensation would be subject to them. As Sophocles said, “Nobody has more sacred an obligation to obey the law than those who make the law.”
The writer is an advocate of the high court