Under Pakistani law, which integrates principles of Islamic law, a daughter’s inheritance rights are well-defined, yet their practical application often faces challenges. Here’s a detailed analysis:
Basic Principles under Islamic Law:
In Pakistan, inheritance is primarily governed by Muslim Personal Law (Shariat), which dictates specific shares for various family members. For daughters, these shares are typically:
- If the deceased has no sons, the daughter receives one-half (1/2) of the estate. If there are multiple daughters, they collectively receive two-thirds (2/3) of the estate.
- If there are sons, the daughters inherit as residuaries, where each son receives double the share of each daughter. This is based on the principle of ’ asaba (agnatic kinship).
Relevant Legal Provisions and Statutes:
While specific statutes like the West Pakistan Muslim Personal Law (Shariat) Application Act guide the application of Shariat in inheritance matters, practical aspects are also influenced by the Muslim Family Laws Ordinance, 1961.
Section 4 of the Muslim Family Laws Ordinance, 1961 addresses the inheritance rights of grandchildren if their parents (the children of the deceased) pre-deceased the grandfather/grandmother.
Challenges and Legal Issues Faced by Daughters:
- Customary Practices:
- In certain regions, customary laws (Riwaj) that deny or diminish daughters’ inheritance rights still prevail, despite being legally subservient to Islamic law.
- Allah Wasaya and others v. Atta Muhammad and others, 2007 SCMR 1850, reinforces that Islamic law takes precedence over customary law in cases involving self-acquired property, ensuring the inheritance rights of female heirs.
- In Mst. ZARGOON and others Versus Mst. SHADANA and others, 2002 CLC 1539, the Peshawar High Court favored Islamic law of inheritance over local customs (Riwaj) because the defendants failed to prove the customs.
- Fraudulent Transfers:
- Male family members may use fraudulent means, such as obtaining thumb impressions on blank papers or forging documents, to transfer property solely in their names, depriving daughters of their rightful inheritance.
- Benami transactions may be used to deprive rightful owners.
- Collusion with Revenue Officials:
- Patwaris and other revenue officials may collude with male family members to manipulate land records and inheritance mutations, excluding daughters.
- " Hiba " (Gift) Disputes:
- Often, male family members claim that the deceased owner gifted the property to them during their lifetime, a claim that can be difficult for daughters to disprove.
- In Muhammad Bakhsh and another versus Mst. Zainab Bibi and 6 others, 1991 SCMR 2397, the court examined the validity of a gift made by a female owner and clarified how Muslim Personal Law and colonization laws interact regarding land ownership and inheritance.
- Waivers and Surrenders:
- Daughters may be pressured to waive their inheritance rights in favor of their brothers, often without understanding the implications or receiving fair compensation. Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others, 2005 SCMR 1447, underscores that the right of inheritance, especially for females, cannot be easily denied based on oral assertions of surrender.
- Limited Knowledge and Access:
- Lack of awareness about legal rights and the complex legal procedures involved can prevent daughters from claiming their inheritance.
- Societal and Family Pressures:
- Social stigma and fear of damaging familial relationships often deter daughters from pursuing their legal rights.
- Legal Loopholes:
- Mst. FARISHTA Versus THE FEDERATION OF PAKISTAN, PLD 1980 Peshawar 47, the court declared Section 4 of the Muslim Family Laws Ordinance, 1961, as repugnant to the Injunctions of Islam
- Although, the judgment was criticized in later judgments such as Rashida Bibi and others v. Maqbool Bagum and others, 2006 MLD 1138, which reinforces the principle that decisions of the Federal Shariat Court regarding the repugnancy of laws do not take effect until the Supreme Court has disposed of any appeals.
Case Law Examples:
- Mst. Jannat Bibi through L.Rs. Versus Aslam Khan and 13 others, 2017 CLC 436, highlights that Islamic law governs inheritance matters, even if the death occurred before the enactment of the relevant law, and custom cannot override Islamic dictates.
- Mst. Ghulam Janat and others Versus Ghulam Janat through Legal Heirs and others, 2003 SCMR 362, reinforces the retrospective effect of Section 2-A of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, ensuring daughters are not excluded from their rightful inheritance.
- Sajjad Munir v. Mst. Murad Khatoon and others, 2002 CLC 733, reaffirms the primacy of Muslim Personal Law in inheritance matters due to the retrospective effect of Section 2-A, emphasizing that strong evidence is needed to prove any custom overriding personal law.
Addressing the Challenges:
- Legal Awareness Programs: Conducting widespread awareness campaigns to educate women about their inheritance rights under Islamic law.
- Streamlining Legal Procedures: Simplifying the processes for inheritance mutation and property transfer to reduce opportunities for manipulation.
- Protection Against Coercion: Enacting laws to protect women from being coerced into relinquishing their inheritance rights.
- Empowering Female Revenue Officers: Increasing the number of female revenue officials to ensure fair and unbiased handling of inheritance matters related to women.
- Strict Penalties: Imposing strict penalties for fraudulent activities related to property transfers and inheritance.
Conclusion: While Pakistani law, grounded in Islamic principles, provides a framework for protecting daughters’ inheritance rights, the societal and procedural challenges often hinder their actualization. Addressing these challenges through legal awareness, streamlined processes, and strict enforcement is crucial to ensuring that daughters receive their rightful inheritance shares. By applying the law correctly and equitably, Pakistan can move towards greater justice and equality in inheritance matters.