South Asia, in general, and Pakistan, in particular, is generally classified as legally pluralistic society where more than one legal systems exist in parallel. Many rules and regulations may be unwritten and informal while others can be codified as law or legislation. Citizens of Pakistan have a veritable plethora of options when it comes to conflict resolution and dispute mediation; ranging from informal to formal, based on secular, customary, religious, communal or tribal understandings.
In spite of considerable progress in legal reforms and pro-women legislation related to land ownership and inheritance in Pakistan in the recent past, the mechanisms to ensure that such legal rights translate into true ownership and meaningful control over land by women remain relatively underdeveloped and constitute the key constraint on the success of any pro-women legal reforms. This means that there still exist many social and procedural barriers for women when it comes to claiming any property they inherit. To address these problems many amendments to the inheritance law for women have been made over the years. Most recently, the Punjab government has made some amendments in the procedural aspects of the law in order to make the process of claiming inheritance rights easier and to guarantee those rights for women.
The 1973 Constitution upholds women’s rights in all spheres of public and private life. It guarantees equality and fundamental rights of women in accordance with human rights instruments adopted by the UN and many of its provisions reiterate the norm of non-discrimination in the chapter on fundamental rights, as well as in the policy principles. Article 25 is the main constitutional provision that ensures equality before the law and equal protection under the law. But the fact remains that while Article 25 has been successfully invoked in areas that fall within the public sphere, such as rights to education and employment, women’s equality within the private sphere is more difficult to achieve.
Access to and ownership of land are considered to be part of the private sphere, in which customary laws and practices still find room to flourish. Thus, gender based practices of land access and ownership continue, resulting in an unequal and legally pluralistic situation.
Taking an overview of the legal aspect of the constitution, civil laws specify gender equality in terms of access to and ownership of land and property. For example, Article 23 grants equal rights to both men and women to hold, own, use and dispose of property in any part of the country. Thus, under the Pakistani constitution, adult women have the right to hold, use, transfer, sell or dispose of property, either for consideration or as a gift, and can contract in any manner, just as men can. Furthermore, Article 24 of the constitution enables the state to intervene in individual property rights if they are seen to be damaging the rights of marginalized groups in a particular area.
According to inheritance laws, land is considered immovable property, therefore, in order to inherit land one must go to the revenue office and see the tehseeldar or the patwari to get the title of the land changed to one’s name. The new owner gets a succession certificate that gives them all legal rights to that piece of land. In practice, this process can be cumbersome at best and downright discriminatory towards women at worst.
According to the statistics generated using the Gender Management Information System (GMIS), launched by the Punjab Commission on the Status of Women and Urban Unit in March 2016, in 2012, women were allotted land by the Government of Punjab in 27 out of 36 districts of Punjab.
Women’s Land Rights in Islam
As a mother:
1. If deceased has no children, and has no brother but has more than one sisters then mother will inherit 1/3.
2. If deceased has mother, a son/daughter, grandson/granddaughter, or more than one brother/sister then mother will inherit 1/6.
As a daughter:
1. If deceased has only one daughter, then she will inherit half of the property.
2. If deceased has more than 2 daughters and no son, then both of them will inherit 1/3 of the total property.
3. If deceased has daughters and sons, then daughters will inherit half the share that sons get.
As a wife:
1. Widow will inherit 1/8 of the property.
2. If deceased has more than one wife, then 1/8 will be distributed among all the wives.
3. If the deceased is issueless the wife/wives will inherit 1/4.
Current Legal Reforms
The Government of Punjab centralized powers for revenue collection with the Board of Revenue in 2011. The Board of Revenue is now solely responsible for recovery of Government Dues/Agricultural Income Tax, Land Revenue, Water Rate, Ushr, Mutation Fees, Stamp Duty, Registration Fee, Copying Fee, Arrears relating to Banks, Agricultural Development Bank of Pakistan and Cooperative Societies. It is also empowered to frame Laws/Rules/Policies relating to the revenue matters and to provide guidelines for maintenance and updating of Record of Rights, Periodical Record for use of the Right-holders/Revenue Department. Beyond this, the Board of Revenue also notifies new administrative units such as divisions, districts, subdivisions and Kanungo/Patwar Circles.
It is also important to understand the structure of the Board of Revenue in order to contextualize these findings with regards to the duties and responsibilities of the revenue officer. The organizational structure is presented below:
Legal Reforms Pertaining to This Issue (in chronological order)
1. Transfer of Property Act 1882 sub section 6 (1)
Muslim women or men cannot withdraw their right of inheritance.
2. Amendments in Miscellaneous Notifications, 1908
Under section 9 (a) of the Stamp act, 1899 (II of 1899) and section 78 of the Registration act, 1908, GOP is pleased to exempt the following instruments from the payment of stamp duty and Registration fee.
• Partition deed in respect of agricultural land in rural areas.
• Tamleek (gift in favor of legal heirs) of agricultural land in rural areas.
3. According to Muslim Family Laws Ordinance 1961, Section 6
In the presence of son and daughter, grandson and granddaughter are also legal heirs.
4. Amendment in the Punjab Land Revenue Act, 1967 Section 135-A
After the inheritance Mutation has been sanctioned and without any application, the Revenue Officer shall issue notice on all joint land-owners of the holding to submit, within thirty days, a scheme of joint holding.
5. Amendment in the Punjab Revenue Rules, 1968 (Attestation of Inheritance Mutation)
The Revenue Officer shall:
• Record the statements of at least two respectable persons, preferably Lambardars or members of the Local Government.
• Will obtain their signatures or/thumb impressions on the Register of Mutation.
• Will receive copies of Computerized National
Identity Card and Form-B or other similar documents of the deceased and his legal heirs.
6. Amendment in the Punjab Pension Rules, 2009
The Punjab government, on the directions of the Punjab Ombudsman, has amended the Punjab Pension Rules, which provide that divorced daughter and unmarried sister of a deceased government employee will also be entitled to family pension till life after his widow, infants and unmarried daughters.
7. Punjab Partition of Immovable Property Act 2012
Has been enacted for expeditious partition of immovable property and alleviate the suffering of joint owners, specially women, due to protracted litigation. An owner of the immoveable property may file a suit for partition giving details of property, citing all other co-owners as defendants, attaching all relevant documents in his reach or possession.
8. Waiver of Registration Fee on Documents (Pertaining to Inheritance Property, 2012)
Registration fee on documents pertaining to partition of inherited property has been waived off vide notification No. 1823-2012/1202-ST (I) Dated 13-08-2012.
9. Waiver of Fee on Inheritance Property
Fee waived for inheritance property through partition, only Token charges amounting to Rs.500 per mutation.
10. Suit for Declaration
For being declared as legal heir Suit for Declaration can be filed in Civil Court.
11. 498A PPC. Prohibition of Depriving Woman from Inheriting Property
Whoever, by deceitful or 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 either description for a term, which may extend to ten years but not be less than five years or with a fine of one million rupees or both.
Process of Mutation – Amended
The Land Revenue Management Information System (LRMIS) has the potential of revolutionizing the process of keeping and maintaining land records in Punjab. The benefits of a computerized system of land recordkeeping can offer numerous advantages over the older manual system. There are fewer delays in the processing of mutation cases, less scope for corruption, no risk of battered or missing records and the ability to assess meta-trends using data analytics to help address future policy. The new process for mutation is considerably simpler for citizens than the older process. There are fewer steps and far fewer delays involved. The process has been streamlined as explained below:
1. After the death of a land owner, a succession certificate is issued by the Union Council. The heirs can bring this succession certificate to any Service Centre of the LRMIS.
2. The SCO receives the succession certificate and deploys a field team to verify the rightful heirs.
3. The field team has 15 days to complete their verification. Without verification, the process cannot move forward.
4. Once the legal heirs have been verified, the SCO office calls the rightful heirs to their office to transfer the land and record their thumbprints and CNIC numbers.
While these legal amendments are generally positive for women and their empowerment, the underlying issue remains rooted in the implementation and practice of law. Widespread corruption at the lower courts and the exploitative practices of opportunistic lawyers who string along clients for long durations and rack up staggering billable hours end up limiting the gains from such legal reforms. As a vulnerable group, women fighting for inheritance are particularly susceptible to malpractice by lawyers in a predominantly patriarchal society like Pakistan.
Furthermore, while a review of the law and subsequent amendments reveals that many avenues for legal recourse are available to women, we find that many women remain unwilling, or are forced by familial pressures, to ask for their fair share of inheritance. The socially constructed rationale for this behavior by men implies that their sisters have been given their fair share as dowry and hence, no longer hold a valid claim to their father’s assets. Hence, any reform targeting legal and bureaucratic procedures alone may be insufficient for bringing about meaningful change, so long as women remain unwilling to pursue their legal rights due to social norms and institutional pressures. This implies that any such reforms must also be coupled with strategies for bringing about changes in social attitudes and for overturning centuries of patriarchal programming in the larger context of Pakistani society.HH
The writer is an expert in gender and race based discrimination. She has led legislation and policy reform with government and non-governmental organizations. Currently she leads the Punjab Commission on the Status of Women, as Chairperson since 2014.
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