“In our society, women are considered weak as they don’t have any property rights,” laments a 69-year-old Sajda Bibi of the Mardan district of Khyber Pakhtunkhwa.

She had approached the civil court in 2009 to get five kanal of land as her inheritance, but due to various legal complications and challenges her case is yet to be decided.

“If I ask for a share in the property, they [brothers] will kill me or they will die themselves,” says Gul Rukh Bibi, whose identity was changed to maintain privacy, from the Regi area of Peshawar.

Bibi, 47, has three brothers and one sister, whose father died three years ago, but she and her sister have not received any share in the property because neither had they ever demanded nor their brothers thought of giving a share.

Similarly, Tahira Begum, 50, a resident of Peshawar’s Nothia area, is also deprived of a share in inheritance. When Tahira’s husband died in 2021, a decision was made in the favour of her after approaching the provincial ombudsperson. But the execution of the decision is yet to be ensured even after a year.

Senior lawyer Saifullah Kakakhel believes that such a problem is not only faced by Sajda, Gul Rukh, and Tahira as “over 90 per cent of women in KP are deprived of their share in inheritance.”

Women population in KP

The total population of KP is 35,501,964, out of which 17,503,443 are women, which is 49.30% of the total population, according to the 2017 census available on the Pakistan Bureau of Statistics website.

Cases for inheritance by women

At least 975 cases – out of the 1,430 complaints for getting a share in inheritance – are still pending, according to the document obtained from the Provincial Ombudsperson for Protection of Inheritance Rights of Women through the KP Right to Information Act (RTI) 2013,

The number of complaints has increased over the years as 97 were filed in 2020, followed by 281 in 2021, 619 in 2022, and 433 so far this year.

At least 94 cases have been sent to the courts concerned, 42 women have withdrawn their cases, and 17 cases have been closed due to non-compliance while 25 cases have been challenged before the Peshawar High Court (PHC).

Similarly, the number of cases for inheritance by women in the civil courts of KP is more than 5,000.

Reasons for denial of women’s inheritance

In a survey by Mushtaq Ahmad Jadoon and Rashid Khan for the Pakistan Journal of Criminology on ‘Practices of Depriving Women of Inheritance in KP’, 70% of respondents said that they don’t know about their inheritance rights while 45% of the women said that their names have been removed from the list of heirs whereas 52 per cent of the women reported that brothers put their thumbprints on inheritance papers or “power of attorney” was taken from women.

In the same survey, women were asked why they do not want to get a share of the inheritance, to which 71% of the women answered that the legal procedure for obtaining inheritance is complicated and expensive while 10% of women have no knowledge of the legal procedure.

Research on ‘Attitude of Head of Household towards Women’s Rights in Inheritance’ by PhD scholar Ambrin Bibi from the Journal of Economics and Business revealed that 86% of the heads of the family do not want to give a share in the movable property to women while 91% of the heads of the family want that even if the women get a share, they should not have control over the property.

Seventy per cent of women do not ask for a share of inheritance because they fear isolation from their parents’ family or consider dowry as a substitute for inheritance, said an Awaz Foundation Pakistan report.

Difference between dower, dowry and inheritance

Muhammad Abdullah Advocate, an expert in civil cases, says that inheritance, dowry and dower are three different things.

“Inheritance or legacy can be received by a woman from her parents, siblings or husband and children in case of marriage, but the heir must leave something in inheritance after their death. Dowry in daughter’s marriage consists of property given by parents which is a traditional or cultural practice, and dower is given to a woman by her husband or in-laws in case of marriage or Nikah,” he explained.

Global gender gap index

Lawyer Mewish Mohib Kakakhel is of the view that the denial of women’s share in inheritance is based on gender discrimination because every man gets a share in inheritance, but women are not considered to have inheritance rights.

According to the Global Gender Gap Index 2023 by the World Economic Forum, no country has achieved full gender equality so far, but Iceland tops the list of 146 countries in terms of gender equality with 91%, while Afghanistan stands at the last.

Pakistan is ranked at 142, 18 points below India, in the list.

Ruling of Islam regarding women’s inheritance

Maulana Tayyab Qureshi, KP’s chief khatib, told Aaj News that women’s share in inheritance is clearly proven by the Quran and Hadiths and denial of women’s inheritance is “forbidden and illegal”.

“In the Quran, inheritance is called fard [obligatory], so no man can refuse to give a share of inheritance to a woman because details of prayer have not been described as much as inheritance, which emphasises the importance of inheritance,” says Maulana Qureshi.

Laws for protection of women’s inheritance

Pakistani laws give the right to citizens acquire land and punish those who deprive women of inheriting any property.

“Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest,” states Article 23 of the Constitution.

Section 498A of the Pakistan Penal Code says that “whoever by deceitful or illegal means deprives any woman of 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.”

According to Section 3 of the KP Enforcement of Women’s Ownership Rights Act 2012, no person shall destroy, violate, diminish, or obstruct the property or right of ownership of a woman.

Reasons for pendency before civil courts

A Peshawar civil judge, on the condition of anonymity, says that civil cases must be disposed of within one year after framing the issue (determining the actual legal issue or dispute between the parties).

He laments that it is not the case due to complicated legal procedures. The civil judge explains that it takes a lot of time to frame the issue in a case related to property or in case of ex parte proceeding as the defendant comes forward as soon as the decision is reached due to which the process has to be started afresh.

“In many cases, the parties obtain a stay from the courts against each notice or order and then the actual case cannot be heard until the decision is made”, clarifies the civil judge.

The civil judge also points out the shortage of judges to hear cases while also highlighting the non-cooperation and lawyers’ strike.

Shortage of judges in KP

According to the information obtained from the Peshawar High Court, 125 civil judges’ posts – out of the total 398 – are vacant in KP.

The number of judges in the province is very low in terms of population, according to PHC’s Judicial Reforms Strategy report.

The document reveals that there are 107 judges in the United States, 75 in Canada, 51 in the United Kingdom, 41 in Australia, and 18 judges in India for 1 million populations, but Khyber Pakhtunkhwa has 13 judges for every one million population.

What are the solutions?

Uzma Sattar, a practicing lawyer at the PHC, believes that awareness about inheritance rights among women is very important as there has been effective legislation regarding that.

“Until women have enough knowledge about their own rights, it is not possible to stop the violation of women’s rights.”

Saifullah Kakakhel describes the lack of registration of women with NADRA as the “biggest problem” in inheritance. He urges the government to ensure the registration of women by going door to door under a programme as it will end the practice of putting fake thumbprints on documents.

“Most of the time the ombudsperson or court decisions are not implemented which should be regularly monitored to assess the reasons for non-implementation,” suggests Kakakhel.

Advocate Mehwish Muhib Kakakhel states that empowering the provincial ombudsperson to hear the complaints related to women’s inheritance is a welcome step, but only one ombudsperson for the entire province is not enough. “Inheritance is not only legal but is also a command of Islam, so the religious scholars have to play their role in the awareness.”

Mehwish also advises the government to launch an awareness campaign through dial tone for a period similar to a campaign during the coronavirus pandemic. “There is a need to provide free legal aid to women in inheritance cases as civil cases take years and often women cannot pursue cases due to lack of money,” she adds.

The advocate also stated that the teaching of gender equality in educational institutions is the need of the hour, which will not only help in creating awareness but the problem of inheritance will also be solved in the future.

Aisha Khurshid, the legal adviser of “Da Hawwa Lur” organisation that works for women’s rights, tells Aaj News that the protection of women’s inheritance is not an individual responsibility of any organisation or person but everyone from every sector has to play a role.

Khurshid also suggests the establishment of ombudsperson’s offices in regions and districts so that women in far-flung areas also have easy access to justice.

Government to initiate criminal proceedings against hinderers

Caretaker Law Minister in KP Justice (retd) Syed Arshad Hussain tells Aaj News that the provincial government is serious about ending property cases including inheritance as they lead to criminal cases. For this purpose, he adds digitisation of property records is a requisite for which the government is working.

“To make the provincial ombudsperson more efficient, not only necessary staff is to be provided, but the government has also decided to initiate criminal proceedings against the patwari or any official or officer in case of non-submission of records or any other obstruction,” says the interim law minister.

The law minister further states steps are being taken to implement the KP Alternative Dispute Resolution (ADR) Act, 2020 – under which the parties can settle cases outside the courts by mutual consent – to reduce the burden of cases on the courts.

“There is a delay in the appointment of civil judges due to the difficult procedure through the Public Service Commission, consequently, the judiciary is burdened with cases, but, separate meetings with the chief justice of Peshawar High Court and the chief justice of Pakistan are scheduled and a final decision will be possible after the meetings,” he hopes.