Property Inheritance Rights of Women in Pakistan: Women in Pakistan have all
property rights as men do. But how often and effectively do they exercise these
rights, is a matter of debate. Research shows various socio-cultural barriers
preventing women from getting their rightful share in the property; however,
lack of awareness appears to be the root cause. In this article, we will
discuss property law in Pakistan property rights do women have in Pakistan and
under which particular laws and regulations are they being enforced.
Contents
·
Rights of Inheritance
·
Division of 20 Marla House
under Law of Inheritance
·
Division of 20 Marla House
among Legal Heirs under Various Conditions
·
Other situations where
women can exercise property rights
· Tenancy Rights of Women
Rights of Inheritance
Islam provides rightful share to
women in inheritance. The rights are protected by different applicable laws in
Pakistan, including Muslim Family Laws Ordinance, 1961, Muslim Personal Law
Shariat Application Act, 1962, Partition Act 1893, etc. Unfortunately, fair
division of property inheritance law in Pakistan, particularly
providing shares to women, has always been a problem in our society. In the
past, they would be forced to surrender their property rights in favor of their
male relations. And the excuse for this illegal activity would be that since
women get a dowry, in addition to the considerable expense that is being borne
on their marriages, they possess no legal right to claim a share in the
inheritance.
However, under various case
decisions, executed by superior courts of Pakistan, abandonment of rights in
favor of a male heir of the deceased has been termed illegal. Under Section
498A of Prevention of Anti-Women Practices Act, 2011, “depriving
women of inheriting property by deceitful or illegal means shall be punished
with imprisonment which may extend to ten years but not be less than five years
or with a fine of one million rupees or both.”
The following table outlines
women’s property rights/share under the law of inheritance. It is important to
note that the division of inherited property in Pakistan follows Shariah rules.
Based on the number of legal heirs, their gender, their mutual relationship,
and various other special conditions, the division of property may take several
forms. However, it generally follows the following formula as a major
yardstick.
‘X’ in this division of inherited
property in Pakistan, the table is the total wealth of the deceased; after
settling loans, mortgages and other balances the deceased owed to anyone in
whatever manner.
|
Individual Woman |
Inheritance Right |
|
Daughter |
½
of the brother’s share (in case she has brothers) 2/3rd of
X equally divided among all sisters (in case she has one or more than
one sisters) ½
of X (if she is the only child of her parents) |
|
Mother |
1/6th of
X (if the deceased had children) 1/3rd of
X (if the deceased had no children and parents are the only heirs) 1/6th of
X (if the deceased had brothers) |
|
Wife |
1/8th of
X (if she has children) 1/4th of
X (if she doesn’t have any children) |
Division of 20 Marla House under Law of Inheritance
For practical understanding land
law in Pakistan, let’s consider 1 Kanal (20 Marla) house in F7/1
Islamabad, which was inherited by a deceased’s wife, two sons, and a daughter.
The average market value of the house is Rs. 95,000, 000. We assume that the
deceased had no loans or other liabilities to pay and the entire value of the
house was thus to be divided among the heirs. The division takes place as
follows:
As given in the table, first of
all, the wife will take 2.5 Marla or Rs. 11,875,000, which is, in fact, 1/8th of
the total property or of its market worth. The remaining property (17.5 Marla)
or its worth (83,125,000) will be divided into 5 equal parts (each son takes 02
parts and the daughter takes 01 part). With this calculation, the daughter is
entitled to take either 3.5 Marla or Rs. 16,625,000, which is, in fact, ½ of
one brother’s share. Get to know about tax on property in Pakistan.
|
Relationship
with the deceased |
Share
in Marla |
Share
in Price |
|
Wife
– 1/8th |
2.5
Marla |
Rs.11,875,000 |
|
Daughter
– ½ of one brother’s share |
3.5
Marla |
Rs.16,625,000 |
|
Sons |
7
each x 2 = 14 Marla |
Rs.66,500,000 |
|
Total |
20
Marla |
95,000,000 |
Division of 20 Marla House among Legal Heirs under Various Conditions
1. Deceased has a daughter as the only child
In case the deceased has a
daughter as the only child, the wife gets 1/8th. The rest is divided into two
equal shares. One goes to the daughter while the other to the deceased’s
brothers or male cousins or other male relatives.
|
Relationship
with the deceased |
Share
in Marla |
Share
in Price |
|
Wife
– 1/8th of X |
2.5
Marla |
Rs.11,875,000 |
|
Daughter
– ½ of the rest |
8.75
Marla |
Rs.41,562,500 |
|
Deceased’s
brothers or cousins – ½ of rest |
8.75
Marla |
Rs.41,562,500 |
2. Deceased has no children
If the deceased has no children,
the value of the house is divided into four equal shares. One goes to the wife
while remaining three to the deceased’s brothers or cousins.
|
Relationship
with the deceased |
Share
in Marla |
Share
in Price |
|
Wife
– 1/4th of X |
5
Marla |
Rs.23,750,000 |
|
Deceased’s
brothers or cousins – 3/4 of X |
15
Marla |
Rs.71,250,000 |
Get to know the cost to construct 5 marla, 10 marla and 1 kanal house in Pakistan.
3. Deceased has only parents as the legal heirs
If the deceased has only parents
as the legal heirs, the house value will be divided into three equal shares.
The mother inherits one while the father gets two shares.
|
Relationship
with the deceased |
Share
in Marla |
Share
in Price |
|
Mother
– 1/3rd |
6.6
Marla |
Rs.31,666,666 |
|
Father
– 2/3rd |
13.4
Marla |
Rs.63,333,332 |
4. Deceased has a wife, children, and parents
If the deceased has a wife, children, and parents, the wife gets 1/8th. The rest of the value is divided into six equal parts. The mother and father get one share each while the remaining four are divided among children.
|
Relationship
with the deceased |
Share
in Marla |
Share
in Price |
|
Wife-
1/8th of X |
2.5
Marla |
Rs.11,875,000 |
|
Mother
– 1/6th of the rest |
2.9
Marla |
Rs.13,854,166 |
|
Father
– 1/6th of the rest |
2.9
Marla |
Rs.13,854,166 |
|
Children
– 4/6th of the rest |
11.6
Marla |
Rs.55,416,664 |
The law of inheritance is often
criticized for its ‘unequal division’ among men and women. In response, it is
argued that the division of inherited property is based on the financial
obligations and responsibilities men and women fulfill throughout their lives
in different capacities. For instance, a husband is responsible to pay the
expenses of his wife and his children; even if his wife has wealth, gifts,
acquired inheritance, or she earns for herself. A wife thus has been freed from
all financial obligations related either to herself or her children.
Additionally, a wife has a right to claim a share in all the possessions of her
husband, including any inheritance he acquires.
Apart from Inheritance, there are
several other situations where women’s right to exercise ownership of immovable
property gets established.
Other Situations where Women Can Exercise Property Rights
In addition to Inheritance,
various social and cultural practices provide women a right to own a property.
And if any effort is being made to deny them any of these rights, it is a clear
violation of law; which can be challenged at any competent platform.
Mehr
Marriage is a social contract.
Under Muslim Personal Law, in order to complete and strengthen this contract, a
husband is bound to pay his proposed wife a gift, called Mehr/Dower. The
quantity and form of Mehr is to be decided by both the parties. In case, a
husband gives her wife 20 Marla house as a Mehr, she becomes its sole owner.
She can dispose of it anywhere and anytime at her personal discretion without
sharing it even with her husband.
However, for this to happen, it
is necessary that the title ownership of the house is properly transferred to
her name. Once transferred, the woman can exercise all legal rights to protect
her property under the Property Transfer Act, 1882, Muslim Family Laws
Ordinance, 1961- Section (10) and other applicable laws.
Similarly, under the Dissolution
of Muslim Marriages Act, 1939, if the marriage does not survive, a wife can
take along all her property that she had earned for herself. If the dissolution
of marriage was demanded by wife, she would not have any right to claim Mehr.
However, if it was decided by the husband, she is entitled to the Mehr.
Dowry
It is a moveable or immovable
property given by the family of a woman at the time of her marriage. A woman
has no enforceable legal right to demand dowry, as it is generally a social
convention. However, once given to her – in this case, a 20 Marla house – she
becomes its legal owner and can file a civil lawsuit against anyone who
attempts to deprive her of this property. As discussed, to claim ownership of
the house, she needs to have this property transferred on her name.
Will
Like men, women can execute Will
in their lives. Under Sunni law, a woman can dispose of a maximum of 1/3rd of
her estate without obtaining the consent of her legal heirs. The rest of it
would be divided among all the legal heirs as per the law of inheritance. If
the Will exceeds the limit (1/3rd), the consent of the legal heirs is
necessary.
For instance, a woman executes a
Will for a 20 Marla house that she leaves behind as her legacy. Technically,
she can give away 1/3rd of the total property or its worth as a Will,
which means either 6.66 Marla or Rs. 316,666,666 in the given example; provided
all loans and liabilities are already settled.
Gift
A woman can give away her entire
property or any of its shares as a Gift-Hiba to anyone in her life without the
consent of the legal heirs. She can also give away her property in Gifts
through a Gift-Deed, by giving specific instructions that could be different
from the applicable law of inheritance. Similarly, she can receive a gifted
property, which can never be taken back; provided all legal formalities have
been fulfilled.
So far, we discussed various
situations that establish women’s rights to own and/or transfer immovable
property in Pakistan. There is yet another gray area where women’s property
rights are seldom admitted, though the law is very clear about it. It is the
Tenancy Rights of Women.
Tenancy Rights of Women
In Pakistan, women have a legal
right to occupy or possess any form of immovable property from anyone under an agreement
for a specified time period. However, due to various social and cultural
reasons, they fail to exercise their basic right.
Applicable laws in Pakistan,
including Registration Act, 1908, The Punjab Tenancy Act 1887 among others,
permit all women to acquire tenancy rights or to give tenancy rights as
landowners. In the given case of 20 Marla house, if she is the sole owner, it
is her legal right to carry title ownership of the house. Under the same
privilege, she has all legal powers to rent out the house and become a
landlord.
Similarly, if she plans to live
in a rented house, she is entitled to get the rent agreement prepared and
acquire tenancy rights on her name. However, different customs and social
perceptions of women deny them this right and their names fail to appear on the
Record of Rights. Or, if the name exists as a landowner on the Record of
Rights, it is excluded from different important documents like Jamabandi Form,
Shajra Nasab, etc. which adversely impact their right of ownership. Sometimes,
it even deprives them of their right of inheritance, as their names do not
reflect on certain documents related to Land Record.
Under the Married Women’s
Property Act, 1874, a married woman is entitled to separate her share of the
property and take property-related decisions in her hands. The same law
provides her a right to sign contracts pertaining to her property.
Conclusion
Although religious and legal
frameworks in Pakistan, property transfer law in Pakistan explain women
property rights, in theory, they fail to protect them in practice. Research by
public and private organizations finds that more than 80 percent of women in
Pakistan fail to claim and exercise their legal property rights. Ministry of
Human Rights and the Islamic Ideology Council are putting up some efforts which
definitely will take some time to materialize. The govt. has established an
exclusive helpline 1099 to report women property issues and get legal
assistance. I am confident that such initiatives have a major role to play in
alleviating issues like denying women’s property rights in Pakistan. However,
getting heard will not resolve any problem, unless there is a mutually
coordinated system that is supported by our social, religious and legal
systems. In my opinion, the following recommendations will give an appropriate
start to framing a more responsive system to protect women’s property rights in
Pakistan:
·
Immovable property as
dower/Mehr should be transferred to the woman at the time of Nikkah.
·
Inheritance and property
ownership disputes should be decided in special courts.
·
The courts should
consistently monitor that their decisions are implemented in true letter and
spirit
·
Awareness campaigns should
be run to educate women about their rights and existing land and property laws.
·
Concessional property
registration rates for women should be enforced
·
Claim to inheritance
rights, particularly for widows, facilitated without much procedural hassle.
We hope we’ve covered all the
major property rights women can claim in Pakistan. Let us know what barriers
you think women generally face in Pakistan when they attempt to exercise these
rights.
Also Read:
Islamic Law for Property Distribution
Real Estate Taxes in Budget 2019-20
