The homemaker’s inheritance: Property rights and gender disparity
When Pakistan ranked second from last in the world in the Global Gender Gap Index report of 2018, it captured the various manifestations of patriarchal and discriminatory gender relations in the country. Of course, gruesome cases of physical and sexual violence, honor killings and forced marriages are invariably the more visible demonstrations of Pakistan’s gender disparity, and are quickly attributed to our conservative socio-cultural milieu. But what is often overlooked are the economics that underpin both gender violence and disparity.
The statistics on women’s access to property, capital and credit in Pakistan are alarming. Out of the 63,560,831 agricultural landowners in Pakistan’s richest province Punjab, only 31.3% are women, and only around a quarter of current and deposit accounts in the Bank of Punjab are held by women. Even fewer women have access to long-term loans according to last year’s Punjab Gender Parity Report. With limited proprietary and financial assets, and therefore a lower economic and social standing, the average Pakistani woman is at the receiving end of an unfavorable power dynamic at home and in society. This translates into low prioritization of her needs, excessive dependence and vulnerability, both financial and physical.
While low female literacy and labor participation contribute to women’s inferior economic status in Pakistan, one of the primary reasons for women’s inaccessibility to assets is the state’s failure to enforce women’s legal right to property and in particular, women’s right to inheritance.
In September 2018, the Ministry of Human Rights initiated an awareness campaign regarding women’s right to inheritance under Islam, and set in place a helpline to provide free legal advice in inheritance-related matters. A few years earlier, in 2012, the Pakistan Penal Code was amended to criminalize the act of depriving a woman of her inheritance. Even so, the age-old practice of having women renounce their right to inheritance in favor of male kin is widely known and experienced.
With limited proprietary and financial assets, and therefore a lower economic and social standing, the average Pakistani woman is at the receiving end of an unfavorable power dynamic at home and in society.
Sahar Zareen Bandial
There is no legal protection of women’s ownership rights in marriage, and this is also a primary reason for their economic vulnerability. There exists in fact, no concept of joint matrimonial assets in Pakistan. The legal Islamic concept of ‘maintenance’ paid by husbands to wives during marriage and for three months in the event of divorce, simply does not accord her sufficient protection particularly if the marriage is dissolved. Having devoted her entire life to home-making, she is left with no independent source of income.
The law provides for a separate proprietary right system with a husband and wife separately entitled to the ownership of any property and possessions that they individually bring into a marriage. Any property or asset bought or acquired during the course of a marriage is treated as belonging to the individual in whose name its title has been registered. The law makes no provision for any rights or interest of a spouse — husband or wife — over such property, regardless of their financial or other contributions.
Several Muslim countries have developed the legal concept of joint marital property. In Indonesia, the marriage law No. 1, 1974 recognizes a wife’s share in the property and assets acquired by the husband during the course of their marriage, notwithstanding the absence of any direct financial contribution by her.
However, property owned by either spouse before the marriage or later acquired independently as a gift or inheritance, is treated as each one’s separate property. The Indonesian law conceptualizes marriage as a partnership, and applies the Islamic law governing shirkah to the assets acquired during a marriage. Interestingly, under the Malaysian Islamic Family Law Act of 1984, when determining the share of a spouse in an asset for which she/he did not contribute financially, a court must take account of the interests of minor children and the spouse’s contribution to the family’s welfare (for instance through care-giving). Such an approach quite rightly assigns value to home-making and nurturing roles performed mostly by women in households. Morocco, Turkey, Kazakhstan and Iran have variants of such law in place. Some of these legal regimes permit contracting out of joint property sharing regimes in marriage.
Pakistan must take account of such progressive reforms in other countries and consider instituting changes to the law. Such is not only the mandate of our international commitment to the economic empowerment of women but also to the constitutional rights to property and gender equality guaranteed under the Constitution of Pakistan.
– Sahar Zareen Bandial is an Advocate of the High Courts and a member of the Adjunct Faculty at the Shaikh Ahmad Hassan School of Law, LUMs. She has a keen interest in gender issues and has worked extensively in the area of legislative drafting.