In Islam, women and men have equivalent rights but in the case of inheritance. Islam allows half a share to women as compared to men in the estate of their father. And as per the interpretation of religious scholars’ reason for half share of women is as follows.
Islam has differentiated between men and women because of their realistic perception and financial obligation because men bear all expenses of their wives and children. Men also give dower to their wives and work diligently to provide for all living expenses. Women are not required to work and pay for such living expenses. A female is not required to spend the wealth she has, on her family.
On the death of a Muslim succession of an estate left by him immediately opens and the property is transferred to the legal heirs without any intervention by the state functionaries. All the persons who are entitled to inheritance immediately and automatically become co-sharers of the estate left by the deceased.
But unfortunately, most of the time female heirs relinquished their property rights in favour of male heirs on the touchstone of the principle of mutual contract. But all agreements without consideration are void as per section 25 of the contract Act. A male co-heir has rarely relinquished his right of inheritance in favour of a female heir. Relinquishment of property by the female heir in favour of the male heir is void, against morality and illegal and a major sin among all worldly sins. It is also very astonishing that parents also deprive their daughters of inheritance and transfer the property to their sons through gift mutations at the cost of facing consequences on the day of judgement. such types of gifts and mutations are not permissible in Islam and are void and can be challenged at any time.
The transfer and gift of the property by the parents in favour of some heir at the expense of other heirs cause heartburning and enmity among them. It was held by the August Supreme court of Pakistan in the reported judgement (2015 SCMR 1704) that the court have to look into the surrounding circumstances to ascertain the true intent behind the gift to determine its validity and to ensure that women were not deprived of their property through frivolous or fraudulent means by taking advantage of their literacy, weak social background and other compelling circumstances to which they might be easily exposed.
Depriving children of inheritance is an injustice and Islam’s emphasis on justice and justice in Islam is considered to be an attribute of Allah Almighty. The administration of justice is the performance of religious duty and has been placed next to piety. A legal heir can be deprived of inheritance under section 317 of the Pakistan penal 1860 code If the person committing murder is an heir. Depriving females of inheritance is a common phenomenon in Pakistan and with time, the number of cases filed by females for the right to inheritance has increased in civil courts.
The parliament through the 3rd criminal law amendment Act 2011 inserted section 498A In Pakistan penal code 1860 and protected women’s rights of inheritance. The said section is read as follows. “Prohibition of depriving women of inheriting property. Whoever by deceitful or illegal means deprive any women of inheriting any movable or immovable property at the time of opening succession shall be punished with imprisonment for either description for a term which may extend to 10 years but shall not be less than 5 years or with fine of 1 million or with both.”
But astonishingly no proper heed was paid to this section of law in Inheritance cases and very rare FIRs are registered under this section. Due to fear of jail and ultimate conviction on conclusion of trial a male heir would easily transfer and hand over a share of their sisters in inheritance and thus the female would also be safeguarded from the agonies of prolonging trial and settlement of the issue without considerable delay.
The govt is required to give wide publication to the said section through print, electronic and social media for the information of the general public. It is the fundamental right of every citizen of Pakistan under article 23 of the constitution of Pakistan to acquire, hold and dispose of property subject to exceptions imposed by law or constitution.
All citizens are entitled to equal protection of the law and are equal before the law as per article 25 of the constitution and there shall be no discrimination based on sex, cast, creed, education or status but with one exception provided by Article 25 (3) of the Constitution that the state can make special laws for the protection of women and children. Govt of Khyber Pakhtunkhwa because of specific authorization provided by Article 25(3) of the constitution of the Islamic Republic of Pakistan promulgated a special Act for the protection of women’s rights known as the “Khyber Pakhtunkhwa enforcement of women’s property rights Act 2019, And Under section 4 of the said Act if any complaint is filed by any woman deprived of her ownership or possession and if no proceeding is pending regarding it in any court then the complaint shall be decided within 60 days by the ombudsperson.
The decision shall be implemented within 7 days under section 5 of the Act. In case of involvement of complicated questions of law and facts, the ombudsperson shall refer the complaint to the civil court for decision and the civil court shall treat it as a civil suit and decide it. And Under section 7 even if any proceeding is pending in any court about the ownership or possession of any property claimed by women the ombudsperson even than can proceed and decide the matter. But sections 4 and 7 of the said Act are contradictory to each other and in case of the contradictory provision, the same are to be harmoniously interpreted so that one may not yield the other by applying the principles of harmonious interpretation.
Appeal against the decision of the ombudsperson lies to the high court within 45 days. The ombudsperson on its own or in the complaint of an NGO can also initiate action about the ownership or possession of a woman deprived of her property. Immunity is also granted to the action, order and decision of the ombudsperson and cannot be questioned in any court.
There is no limitation for filing a complaint under the said Act. A woman can also file a complaint for the property mentioned in the Nikahnama to the ombudsperson. In addition to it under the married women property Act 187,4, a woman has the legal right to separate her property and take legal action for her property in her name.
The present Act provides support, justice, protection and remedies to the women deprived of their properties, several females have benefited and their shares in inheritance were transferred and handed over to them through the complaint filed before the ombudsperson under the newly promulgated Act.