A gap between what the law grants and what families allow
A woman has three acres of orchards in a village outside Gujranwala, all in her name. It happened to her just like it does to most daughters in Pakistan; her father passed away, and Islamic law is very clear about the rights of daughters. Yet the land has never been hers in practice. Kaneez signed a document that gave her three brothers three-quarters of her inheritance and herself the remaining one-fourth, just one month after her father’s death, outside a local office. She was not forced in any way she could see; she was thirty-one years old and recently widowed.
“There’s no one who put a gun to my head,” she says. They didn’t have to, my mother cried; my brothers stopped calling; one of my sisters-in-law told my son in front of me, ‘Your mother is trying to break your family apart over “a few trees”. How was I supposed to go to court against my brothers and then go home to them for Eid?
This is the softer, more hazy mechanism of women’s disinheritance in Pakistan, not the outright theft of land, though this does also often occur, but a system where women are legally allotted land and then are “voluntarily” deprived of it regularly. Attorneys specialising in inheritance disputes call it one of the trickiest ways to prove a case of dispossession, since the papers appear so clean. A signature is present. There is often a registered iqrarnama (deed of relinquishment) or a haq-e-mahfooz waiver, notarised and stamped, that a court will treat as valid unless proven otherwise. The coercion is 100% in the here and now.
A right that is largely hypothetical
The problem is not the Pakistani inheritance law. Daughters, wives, mothers and sisters are clearly entitled to a fixed portion of the property in the event of the death of the father, husband or brother, and such entitlement is not denied by any mainstream religious groups in the country. In pursuit of filling in the enforcement loopholes, successive governments have also introduced measures such as the Punjab Land Revenue (Amendment) Act, which allowed women to have their names recorded on the land register (intiqal) in a shorter time, while Section 498-A of the Pakistan Penal Code (PPC) was added in 2011 to specifically criminalise the deprivation of a woman’s inheritance through deceit or coercion.
A family law practitioner who had served in the district courts of Lahore for more than a decade and requested not to be named, but who has pending cases against family networks in the same city, stated that the law is far ahead of the society it seeks to control. We have criminal provisions, we have expedited mutation processes, we have Supreme Court judgments from decades ago that say, in the strongest terms possible, that women have the right to inherit. None of that helps a woman if her case is never a case because she never comes in to seek it.
The root of the problem is the failure to file this. Based on information gathered at legal aid organisations in land rights cases in Punjab and Sindh, not on a nationwide survey, which is not available, the vast majority of rural and semi-urban women who are entitled to inherited land do not take formal title to it, and a large proportion of those who do take formal title then sign it away. There are seldom single reasons.
Voluntary surrender – how it works
When families share no other similarities, legal aid counsellors say there’s a fairly consistent pattern across cases.
The very statement of the claim is an aggression first. If a woman requests her portion, or just asks a question about the estate, she is not treated as having exercised a right but rather as having provoked a conflict, being “greedy,” “led astray by her husband’s family,” or “ungrateful” for any support her family may have given her at her wedding. Independently, several lawyers said something very similar to what women were told; a dowry was her share. It is a widespread practice and a common informal reason, though neither is grounded in statutory or Islamic law, as dowry and inheritance are two distinct concepts in legal and theological terms.
Second is the leverage of the ongoing relationship. Unlike a business dispute between strangers, an inheritance dispute is a dispute between people who will or should continue to live together: relatives who host family gatherings, parents, in-laws who mediate a woman’s marriage. A few of the women interviewed for this report spoke of a particular worry: that a legal case would not only make a relationship difficult, but destroy it, leaving them without a home, without siblings to support them during marriage or when a spouse dies, without the social support that on which many women rely day-to-day, more than they do on a piece of land they might never see or till.
Third, and most structurally important, is the design of the relinquishment instrument itself. Women are not being forced to go to a lawyer’s office. She can be taken there by a loving brother, informed that the document is a routine procedure “so the intiqal can go through,” and handed a document she has not read carefully and has not had someone explain to her. This is one of the most frequent ways disinheritance happens in practice, says legal aid workers: not a dramatic confrontation but a 5-minute signature under information asymmetry that looks like a piece of paper.
By the time a woman realises what she signed, the mutation in the land record is complete”, says one of the legal aid coordinators in Karachi. “You can’t undo a registered intiqal, but it may take years, and by the time it happens, she’s been told by everyone, including sometimes her own mother, that she’s already caused enough damage by asking.”
Where religion is called upon, and where it is misapplied
One of the less pleasant facts across the kind of cases cited here is the use of religious language, sometimes quite rightly but more often wrongly, on both sides. Religion is a common basis for families to deny their daughters an inheritance, even though the inheritance of a woman is one of the more clearly stated and least controversial rulings in Islamic law according to all schools of thought. When directly questioned, clerics interviewed by legal aid groups have generally been clear on this issue, but the distortion occurs at the extended-family custom level, not at the formal level of religious instruction, where local practice unobtrusively infiltrates the doctrine and is then argued doctrinally.
A woman who truly and generously releases her rights to a share, whether because she wishes to do so, as part of her personal religious beliefs, or because of a family belief she does not wish to impose, is also a valid and legal transaction under the law. The problem with the phenomenon that makes it hard to outlaw is that you can’t distinguish between true surrender and fake consent in a notary’s document. It can only be seen in the texture of the pressure present before the signature, a pressure that not many courts are equipped or willing to investigate.
The nature of the resistance and its price
Not all of the women sign. The ones that do make it to court, lawyers say, and there has been a slow but definite rise in the last ten years, in part because of increased legal literacy and provincial ombudsperson offices, have a common theme: The woman seeking the lawsuit lost, or was prepared to risk, relationship capital that made others sit tight-lipped. Renting the house, which no child of the widow occupies. Women who had separated from their birth families for other reasons. Women who had husbands who were involved in and paid for the litigation, when their husbands were unusually involved and the cause of expense, rather than discouraging it as “not worth the trouble with your family.
A woman in Faisalabad who recently won her share of her father’s land through the courts, but who requested anonymity and to be identified only by her first initial, R, says it took her four years to do so. But I have to be honest: what winning cost: My mother, before she died, asked me twice to take the case away. She said, “I can’t stand the family being divided”, and I have one brother who still talks to me; I got my land, I lost nearly the rest of what I had to protect.
According to almost all those who spoke with the author for this report, that is the true operating ground where disinheritance against females is taking place in Pakistan: the cost of winning. The statutory right is rarely denied outright anymore, at least not in language anyone will defend openly. What remains is a social economy in which a woman’s right to inheritance is considered a debt owed to her belonging, payable only individually.
A slight but genuine gap
Legal aid groups have come to pay more attention to what happens at the time of signing, educating women before they are offered any iqrarnama about what signing entails and that there is no religious or legal duty for them to sign it. The provincial Land Record Offices have added extra verification procedures for relinquishment deeds because of the frequency of later challenges to these deeds. All of that is not to say it is even a little bit of an answer to the calculus that the woman was going through at her father’s funeral, that is, the calculus of inheritance versus belonging, but it does narrow, somewhat, the space between where a signature can be obtained and when a woman realises what she is losing and what she is being asked to lose in exchange.