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.”

Daily Times

‘Plight of women in public buses’

THIS is apropos of Squadron Leader S. Ausaf Hussain’s letter ‘Plight of women in public buses’ (March 30) in which he says that the state of our public transport is an indicator of poor governance.

I agree with the point that women’s section in buses should be enhanced (as seen in the now defunct city buses launched some time back which had much larger sections for both genders).

He said that men upon not finding vacant seats in the back of the bus occupy seats in the women’s compartment where women passengers are left with no choice but to keep standing.

He also stated that men in our country do not know any etiquette while entering the women’s compartment.

First, I would like to say that since the ratio of working men is much greater than that of working women, the seating distribution is, therefore, correct. However, due to overloaded buses some passengers in both compartments have to keep standing while travelling.

Secondly, being a regular bus passenger I have observed that while men do sit in the women’s compartment, as soon as women get on the bus, men leave their seats for them and never argue.

You will never find men occupying seats in the women’s compartment at the same time when women are standing.

The writer also believed that we should get rid of the separate sections reserved for women commuters in buses as there are no separate sections in buses in India and also in other countries of the world.

We should keep in mind that this is not possible in our situation If we get rid of the separate sections in buses, then seats would be occupied on a first-come-first-served basis like in other countries where in the same bus women are found standing in front of seated men and no one offers them a seat while we have separate sections for women as their basic right.

RIAZ AHMED
Karachi

Dawn

Police helpless to arrest acid thrower

ISLAMABAD: Sindh police told the National Assembly’s Standing Committee on Human Rights on Thursday that they could not take action against Malik Bilal Mustafa Khar for throwing acid on his deceased wife Fakhra Yunus after the complainant witnesses to the incident changed their testimonies in the court.

Additional Inspector General (AIG) Police Sindh Falak Khurshid contended before the committee, which met here with MNA Riaz Fatyana in the chair, that “witnesses, who identified the acid thrower as Malik Bilal Mustafa Khar while registering the FIR, changed their statements in the court.

Even Fakhra’s brother, who himself was burnt in the incident, changed his testimony. The court could not hand down a sentence and Malik Bilal Mustafa Khar walked free,” Mr Falak said.

He informed the meeting that Fakhra was living in an apartment with a relative after she left her husband. “Bilal Khar traced Fakhra and went to take her with him. At resistance, he threw acid on her face. Her brother Irfan Malik also received burn injuries,” AIG Sindh said.

The committee members, taking exception to the poor investigation into the case, recommended that government should take it up again so that prerequisites of justice might be fulfilled.

“It should be revisited so that the perpetrator of the heinous crime may be brought to book and the crime of acid throwing may be prevented,” said MNA Dr Attiya Inayatullah speaking on behalf of women parliamentarians of the committee.

MNAs observed that the tragic incident did not just give the country a bad name worldwide but spread fear among the Pakistani women.

In 2001, the court declared Bilal Khar as an absconder. Later, he was arrested from Muzafargarh. However, he could not be prosecuted as it appeared that the two sides had reached a settlement.

Riaz Fatyana got perturbed to know that neither an appeal against the acquittal was filed nor the culprit was brought to justice. He remarked that life and property was not safe in Pakistan.

“Police lack sense of responsibility, will and capacity. From top to bottom anyone can be bought. The situation points to a total anarchy in the country and loss of people’s faith in the institutions,” Riaz Fatyana said directing Ministry of Law to make amendments where necessary to provide protection to witnesses and complainants.

Meanwhile, the committee gave ten days to DPO Sheikhupura Haider Ashraf to submit a report on the gang rape of a student by the police officials.

The DPO said that a first-year student was picked up by the police officials when she left her academy for home. He said more than 200 constables were interrogated. During the process, constable Saqib confessed to the crime identifying two civilians, Irfan and Khursheed, as his accomplices who were in police custody and yet to be identified by the victim.

The committee observed that it had taken up several cases in past meetings on issues of human rights violations by police.

“Police portray an impression of enemies and not friends of the people especially Punjab and Sindh police,” said Riaz Fatyana.The members suggested that Council of Islamic Ideology (CII) should revisit the doctrine of blood money and reconsider it in the light of Ijtehad.

Taking into account deteriorating law and order situation and failure of law enforcement agencies to apprehend the criminals, the committee summoned interior minister Rehman Malik and secretary Interior in the next meeting.

Dawn

Gang rape of students confirmed

ISLAMABAD: Medical examination on Thursday confirmed that two students who were abducted on Wednesday were gang raped and tortured, sources told Dawn.

They also said one of the accused had been arrested and police were hunting for the other five men.

Police sources on Wednesday had said K.B. S.B., and A.B., students of a local school, were abducted by some people and taken to a property office at Jhang Syedan and subjected to gang rape. However, the police in their FIR on Thursday mentioned the names of only two students.

The sources quoted the medical report as suggesting that S.B. and K.B. were gang raped, and the former was subjected to rape several time besides being tortured. The sources said her condition was critical and she was still in hospital under doctors’ observation.

Meanwhile, the police arrested a man from near the property office for his alleged involvement in the case. Four persons, including the property dealer whose office was allegedly used for the crime, were also detained. Over 30 other persons were also rounded up for interrogation. The victims have nominated six persons for subjecting them to gang rape. The police said the victims were abducted at gunpoint by two car riders who brought them to the three-room property office.

They were subjected to rape by the five friends and the property dealer for hours.

Meanwhile, the deputy commissioner Islamabad, who was asked by the interior minister to conduct a judicial inquiry into the incident, submitted his report to the minister.

Dawn

Acid attack girl jailed for 34 years

FAISALABAD: Anti-Terrorism Court judge Ishtiaq Ahmed sentenced on Thursday a girl to 34-year imprisonment and Rs115,000 fine for throwing acid on the father of her former fiancé.

The girl had thrown acid on Razzaq Ahmed, father of Shehzad, in Asif Sitara colony area of the city on Nov 20, 2010.

She believed that Razzaq was responsible for his son’s refusal to marry her.

The girl came from her home in Chishtian and attacked the man when the henna ceremony of Shahzad with another girl was under way.

The acid caused serious injuries to Razzaq and damaged his one eye.The girl also attacked Shehzad with a knife and injured his chin.

She was caught and handed over to police.

The court handed out the sentence after convicting the girl under various sections of the Anti-Terrorism Act and PPC.

Dawn