REPORT ON 02-DAY CONFERENCE ON WOMEN'S RIGHT TO INHERITANCE October 28-29, 2016 Prepared by Dr. Qazi Ataullah
Khyber Pakhtunkhwa Judicial Academy, Old Sessions Court Building, Jail Road, Peshawar, Khyber Pakhtunkhwa, Pakistan. www.kpja.edu.pk, email:
[email protected] 1
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“Do treat your women well and be kind to them for they are your partners and committed helpers.” (Prophet Muhammad (PBUH) on women rights at his Last Address)
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Contents Abstract ................................................................................................................................................... 4 PART I ...................................................................................................................................................... 5 INTRODUCTION ....................................................................................................................................... 5 CONCEPT NOTE ................................................................................................................................... 6 PART II ................................................................................................................................................... 12 PROCEEDINGS AND PRESENTATIONS ................................................................................................... 12 Opening Remarks .............................................................................................................................. 13 Views of the Project Manager SRLP - UNDP ..................................................................................... 19 Proceedings ....................................................................................................................................... 20 Day One ......................................................................................................................................... 20 Day Two......................................................................................................................................... 22 Presentations .................................................................................................................................... 24 Women Rights in Islam Vis a Vis Other Religions with focus on inheritance ............................... 24 Inheritance Suits: Management Skills with Focus on Proper and Expeditious Disposal .............. 43 Inheritance of Women: Constitutional, Religious and Moral Obligations .................................... 50 The Relevant Legal Provisions (Islamic Jurisprudence) Mandating the Shares of Women in Inheritance .................................................................................................................................... 59 Women Rights (General) Under Islamic Jurisprudence .................................................................... 65 Consolidated Recommendations ...................................................................................................... 66 Annexure ............................................................................................................................................... 69 Annex- A ............................................................................................................................................ 70 List of Participants............................................................................................................................. 70 Annex-B ............................................................................................................................................. 72 Agenda .............................................................................................................................................. 72 Annex- C ............................................................................................................................................ 74 Group Photo and Pictures of various Sessions ................................................................................. 74 Annex-D............................................................................................................................................. 83 Resource Person Profiles .................................................................................................................. 83 Annex-E ............................................................................................................................................. 85 Table of Shares .................................................................................................................................. 85
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Abstract KP Judicial Academy mainly imparts trainings in two areas; “the Substantive and Adjective Laws” and “the Court and Case Management”. The trainings are aimed to equip the participants with three outcomes; updated competence, efficiency and effectiveness. The Academy also, at times, keeping in view the warranting circumstances, arranges and conducts other short-spanned activities on some specialized subjects and hence the present conference on “women’s right to inheritance”. The objectives of the activity were to create awareness on the issue, and to prepare recommendations for the expeditious disposal of the inheritance cases. A number of thirty stakeholders including members of civil society participated in the conference. Topics of lectures and presentations were wisely and carefully selected. Here, it is essential to explain that, while reading this report, the learned readers shall keep in mind the confinement of the conference to its subject as it is evident from the title. The conference, therefore, does not touch the technical details of the law of inheritance. The report in hand documents the activities of the conference, conducted by the Academy in collaboration with UNDP. It has been divided into three main parts: Introduction, Proceedings and Annexure. The introduction comprises of the Concept Note. The proceeding part covers the Sessions, Presentations and Consolidated Recommendations. The annex part contains the list of participants as annex- A, Agenda of the Activity as annex- B, Photographs and pictures of the various sessions as annex-C, profiles of the resource persons as annex-D and inheritance table as annex-E.
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PART I INTRODUCTION
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CONCEPT NOTE Dr. Qazi Ataullah
Background Humans are born with their rights. Every right carries an interest for its holder. In civilized and cultured societies, these rights are self- bindingly recognized, respected and enforced. The self-centered nature of man, sometimes rather most of the times, leads him to the caring of his benefits at the cost of the others. This mostly occurs between the mightier and weaker amongst them. From here, the privileged and marginalized classes emerge. This emergence is the very first element that challenges the peace and tranquility of human society. When the self-binding and moral feature of a society towards recognition and respect of fundamental and human rights breaths it last, no way is left out to coup with the situation except the protection of these rights through binding legislations. In the Khyber Pakhtunkhwa Province, Muhammadan Laws are applicable to all kinds of family issues including inheritance. It is worth mentioning that out of twelve sharers under shariah, nine sharers are women. Thus the law is available and enforce but the problem lies in its required comprehension and implementation. The customary deprivation of women from inheritance in our society also adds to the problem. The women folk is the most exploited and deprived specie of the marginalized class, as far as their monetary rights are concerned, right to inheritance being on the top. To answer this challenge, the first step that could be taken is the financial empowerment of women.
Introduction Rights and life are inseparable. Everyone in the world, whether man or woman, hankers after his interests. This interest, when recognized, protected and enforced by law, is known as right. A specialized, specified and particularly legislated right is then called a privilege. Of course, people are always equal in their fundamental rights; nevertheless, a group of people may deserve some privileges with the exclusion of the others. The issue could not be confined to the concept of right only, there must be equal opportunity of enjoying the rights for all citizens irrespective of religion, culture, color and language is a necessary component for the smooth and peaceful functioning of human society. What is extremely necessary in
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this connection is that, the phrases “equal rights”, “same rights” and “equal opportunity of enjoying the rights” must not be confused. Equality should not be understood in the meaning of sameness. The above rights may be social, economic and political. Social rights include right to education, right to health, right to accept or reject marriage, right to dignity and respect, right to secrecy, right to entertainment and many more. Political and legal rights take account of right to be equal before law, right to fair trial, right to defense, right to vote, right to hold public office, political positions and the like. Economic rights include right to ownership, right to conduct business, right to employment, right to maintenance, dower and right to inheritance. We claim that all humans are equally entitled to these rights. But this is what we read theoretically, hear half-heartedly and preach falsely. Ground realties do not support it. Humans are greedy by nature. The mighty amongst them always try to devour the rights of the weaker. They develop a habit of benefitting themselves at the cost of the other fellows. Thus we not only lack equality in rights but also not let the others to enjoy their rights they deserve. This deprived category is currently known as marginalized class of the society. Within this class, the apparently weaker, the deadly suppressed and the most exposed to deprivation are the women folk. The marriage tie is considered as a string of slavery in their neck that renders them to limitless subjugation and absolute submission. Biological differences are considered the sole criterion for every opportunity and priority. Invalid and ill-based cultural traditions have blemished every value and each virtue. Might and ignorance are the evils of all societies and ours is no exception to it. Practically speaking, women are denied almost all kinds of rights: social, legal, political and most importantly fiscal. In case of entitlement to inheritance, the situation becomes further uglier and gravely intensified. Resultantly, more than half of our population cannot perform properly and the productivity of the nation gets adversely affected. Apparently, there are two responsible for this dilemma: First the unawareness of women about their rights, secondly, the unwilling attitude of men towards financial rights of women, particularly inheritance. To coup with these two factors, arranging of awareness programs for civil society becomes necessary on one hand, and designing training courses for the judges and other concerned stake holders becomes indispensible on the other.
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Religious and Legal Status Shariah has placed great emphasis on financial rights of women, particularly their entitlement to inheritance. It is probably for this reason that one of the lengthiest chapters of the Holy Quran has been named as “Al-Nisa” (The Women). Women have been declared to inherit both as Shares and Residuary class. Sharers are the heirs that receive pre-fixed shares even nothing is left for the remaining classes of heirs. The total number of Sharers is thirteen (13) out of which nine are women and only four are males. Under Islamic Law and Jurisprudence, a female inherit almost in all categories and degrees of relationship; as a mother daughter, sister, wife, niece and others so many, as per rules of the law of inheritance. Divorcing of wife by a husband during “maraz-ul-maut” (being on death bed) has no legal effect as far as her share in husband’s estate is concerned. There is no room in Islamic Law for the principle of “Primogeniture”. The laws of the land including the Constitution of the Islamic Republic of Pakistan 1973 ensure equal protection of rights to all citizens; men and women. Pakistan has also ratified so many international conventions, instruments and covenants on the subject. Despite all these national and international instruments and efforts, we are still waiting for the achievement of the aimed objectives. In addition to the above there is misconception in the society that women rights are scanty under the Islamic Law. This is obviously false and needs clarification. To cope with the prevailing situation, the KP Judicial Academy, in collaboration with UNDP, intends to arrange and conduct a conference on “Women right to inheritance”. The targeted area is the members of the civil society, judges and other personnel connected to justice sector. The objectives, outcomes, composition, methodology and thematic areas break up are as below:
Objectives The prime objectives are to:
Create awareness on the subject in the public in general and in women folk in particular
Sensitize the members of the civil society to the need and significance of the subject
Enhance the competence and capacity of judges as to prompt actions and proper implementation of the relevant laws.
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Discover the flaws of the laws on the subject and to explore the ways for its removal and further improvement.
Build ethical standards in respect of women’s dignity, modesty, and concessions.
Encourage dialogue on women’s right of inheritance under Islamic and Pakistani Laws.
Outcomes On the completion of this conference, the followings outcomes shall emerge:
Consciousness of women about their rights, privileges and immunities with particular reference to their right of inheritance.
The members of the civil society shall focus their attention on the subject.
Efficacy of the relevant laws shall improve.
Prompt, just and expeditious response of all concerned particularly the judges to the issues of women’s financial rights with particular focus on their entitlement to inheritance.
Suggestions and proposals for legislation of new laws on inheritance. Recommendations of amendments in the existing laws on the subject, particularly in the area of implementation.
Methodology To achieve the above objectives fully and to have the intended outcomes properly, participatory and interactive approach will be applied/employed during all sessions. At the outset, the Academy will arrange an introductory session for the apprised of participants tothe background, aims and objectives of the conference. Experts will deliver presentations and share talks and experiences on thematic areas of the subject. This will be followed by study circles and group discussions and deliberations. For the purpose, the participants will be divided into four groups and each group will come forward with findings, collective opinions and suggestions in the shape of group presentations. Proper time will be allocated after each activity for deliberations, exchange of views and answering of questions. The Academy would welcome and encourage the Juristic opinions and constructive interpretations, and productive ideas and will expect avoidance of unfounded, meaningless and time-wasting
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controversies. The Academy expects active and purposeful participation from all learned participating guests.
Composition Members of various institutions and disciplines (both serving and retired) and other walks of life associated directly or indirectly with the administration of justice, and having a profound knowledge, updated information, vast and rich experience in adjudication, legislation, law enforcement, academics or legal research will be invited to participate in the conference. Focus in this regard will, however, remain on legal scholarship.
Activities Break up Name/Topic
Subject assignment
Purpose /outcome
Lectures, Talks &
(A) Explaining the Jurisprudence of
Brainstorming & Intro of the
Presentations
women’s rights under Islamic
subject
law and Jurisprudence; 1. Meaning 2. History 3. Scope and significance 4. Social rights 5. Fiscal rights (area of focus) 6. Legal rights 7. Provisions of Quran and Sunnah on the subject (B) Recognition and protection of women’s rights in International Conventions 1. International conventions on the subject 2. International instruments on the subject 3. Laws
of
the
Land
including constitution
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4. Legal
provisions
pertaining to the fiscal empowerment of women and
their
inheritance
right
to
(area
of
focus) 5. Liabilities
of
States
member towards
International Conventions and Instruments 6. Problems
in
implementation
of
relevant laws
Deliberations
Conferencing on women’s right to
Detection of grey areas and
inheritance with particular focus on
identification of
proper and in-time implementation of
challenges.
laws
with
further
focus
problems,
on Exploring solutions.
expeditious hearing of cases on the subject, prompt announcement of judgments and execution of decrees. Recommendations
Group-wise Framing of proposals
Accumulated suggestions and
and
proposals
suggestions
recognition,
for
proper
implementation
of
women’s right to inheritance.
Dr. Qazi Ataullah Director Instructions/Focal Person
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PART II
PROCEEDINGS AND PRESENTATIONS
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Opening Remarks Mr. Zia-ud-Din Khattak Director General I feel highly honoured to inaugurate this 02-day conference on ‘Women’s Rights to Inheritance’. I on behalf of KPJA and its partner UNDP extend warm welcome to all the learned participants for taking time out of their busy schedule for participation in the conference. At the outset, I am thankful to the organizers of the conference for selecting such an important subject to deliberate upon, which has really crucial nexus to the problem; our society is confronted with i.e. the legal status of women and their position in Pakistani society with special focus on their right to inheritance, and seriously overlooked anomaly in legal system. I am also thankful to the worthy guest speaker, learned resource persons as well as distinguished guests who have travelled long and have come here to this historical city of Peshawar for sharing their knowledge and expertise with the participants of this National moot. The participants of the conference, I hope would contribute and share their experience with us in these two eventful days. Learned Participants: The legal status of women and their position in Pakistani society with focus on their right to inheritance, has been the subject of considerable debate and it would be of interest to deliberate on this issue in this conference in the light of its historic background. As the history goes, before the advent of Islam women themselves were objects of inheritance and they were considered part of the belongings of the man. At such a critical juncture of history, Shariah came to their rescue. It has placed great emphasis on financial rights of women, particularly their entitlement to inheritance. It is probably for this reason that one of the 13
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lengthiest chapters of the Holy Quran has been named as “Al-Nisa” (The Women). Women have been declared to inherit both as Shares and Residuary class. Sharers are the heirs who receive pre-stated shares even if nothing is left for the remaining classes of heirs. The table of sharers given in the Muhammadan Law by D.F. Mulla is Annex-E. We can see that the total numbers of Sharers are twelve (12) out of which eight (8) are women and only four (4) are males. Under Islamic Law and Jurisprudence, a female inherit almost in all categories and degrees of relationship; as a mother daughter, sister, wife, niece and others so many, as per rules of the law of inheritance. In this way Islam brought about a revolution in the domain of human thought and outlook towards women and established their right to inheritance and has distributed the inheritance in a very upright way. This determined system of shares has been fixed by ALLAH ALMIGHTY Himself and no one can interfere in it. Thus the inheritance system of Shariah is incapable of any change or amendment on the basis of human wisdom. Thus, Islam by clearly stating in the Holy Quran that women have the right to inherit for themselves changed the status of women in an unprecedented fashion. According to verse number 7 of Chapter IV (Al-Nisa):
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This injunction would be rightfully understood if the background in this behalf is kept in view. According to “Khutbat-e-Rasool” by Muhammad Mian Siddique Research Fellow Islamic Research Institute of International Islamic University Islamabad: ""اسالم سے پہلے عرب اور عجم کی قوموں میں انسان کی صنف ضعیف یعنی عورت اور بچے ہمیشہ ظم و ستم کا شکار رہے ۔ اول تو ان کا کوئی حق تسلیم ہی نہیں کیا جاتا تھا اور اگر تسلیم کر لیا جاتا تو مردوں سے اس کا وصول کرنا عملی طور پر ممکن نہ تھا۔ اسالم نے معاشرے کے کمزور طبقے کو حقوق دالئے اور ان کی حفاظت کا مکمل انتظام کیا۔"" ""عربوں کے ہاں یہ اصول تھا کہ وراثت کا حقدار صرف وہ ہے جو گھوڑے پر سوار ہو سکتا ہے اور دشمنوں کا مقابلہ کرکے ان کے مال و متاع چھین سکتا ہے۔ اس اصول کے تحت صرف جوان لڑکا ہی وارث ہو سکتا تھا ،لڑکی مطالقا وارث نہیں سمجھی جاتی تھی ۔ اسالم نے اس اصول اور نظریئے کی بیخ کنی کی ۔ لڑکیوں ،یتیموں اور بچوں کو بھی وراثت میں حق دالیا ""۔
Here I would not enter into the thematic areas and minute details of the subject, for it would amount to encroachment in the domain of the learned resource persons. I would, however, simply quote the two celebrated Ahadith –e- Mubaraka (saying) of the Holy Prophet Muhammad (SAW) which are sufficient proof for the need, scope and significance of the subject. These are: 1. Learn the laws of inheritance and teach them to the people, for these are one-half of the useful knowledge. 2. The best among you is the one who is best (in treatment) to his women folk. Learned Participants: The Holy Prophet (SAW) in his address at Hajjat-ul widah, which contains several injunctions, most of them of juridical import, has declared some important rights of female vis-à-vis male. He said, ""اے لوگو! تمھاری عورتوں پر تمھارے کچھ حقوق ہیں ،اور اسی طرح تم پر تمھارے عورتوں کے حقوق ہیں )(1۔۔۔۔۔۔۔۔۔۔۔۔ "" )"(2لوگو! ہللا تعالی نے (میراث کا قانون نازل کرکے) ہر حقدار کو اس کا حق دے دیا ہے۔۔۔۔۔۔۔۔۔ ۔۔۔۔۔۔۔۔۔۔۔۔۔"" خبردار ۔۔۔۔۔۔عورتوں کے ساتھ اچھا برتاو کرنے کے ہمیشہ پابند رہو ،کیونکہ وہ تمہاری زیر نگرانی ہیں،اور اس حیثیت میں نہیں کہ اپنے معامالت خود چال سکیں،عورتوں کے معاملے میں ہللا سے ڈرتے رہو ،تم نے ان کو ہللا کی امانت کی طور پرحاصل کیا ہے۔۔۔۔۔۔۔"" 15
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Learned Participants: The doctrine of succession is one of the sources to prevent accumulation of wealth in the Muslim society. In the Holy Quran, in Surah Nisa, shares have been prefixed according to the degree of relationship of the heirs with the propositus. Right to inheritance relates to those injunctions of Islam which has been expressly laid down in the Quran itself. It falls within obligations (faraiz); and that the shares of heirs have been ordained by ALLAH ALMIGHY Himself. The question remains regarding obtaining of such share, for which laws have already been promulgated in this country. The Constitution of the Islamic republic of Pakistan including the laws ensures equal protection of rights to all citizens; men and women. Pakistan has also ratified so many international conventions such as the Universal Declaration of Human Rights, the convention on the elimination of all forms of discrimination against women and the declaration of the elimination of violence against women on the subject. Despite all these national and international instruments and efforts, we are still waiting for the achievement of the aimed objectives. In addition, there is misconception in the society that women`s rights are scanty under the Islamic law. This would be debated upon in this conference. Learned Participants: As I said above, relevant laws on the subject are available and are in force. Despite this, the objectives are yet to be achieved. What is important, is to explore the problem area. The available research studies reveal that the problem lies with the required comprehension of the laws on the subject and their proper and prompt implementation. The deprivation of womenfolk from inheritance under the pretext of pukhtoon customs and traditions has further
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intensified the situation. All these facts have really necessitated attention of stakeholders to the subject, and hence this conference.
Its main purpose is:
First, to create awareness on the subject in the public in general and in women folk in particular
Second, to sensitize the members of the civil society to the need and significance of the subject
Third, to enhance the competence and capacity of judges as to prompt actions and proper implementation of the relevant laws.
Fourth, to discover the flaws of the laws on the subject and to explore the ways for its removal and further improvement.
Fifth, to build ethical standards in respect of women’s dignity, modesty, and concessions.
Sixth, to encourage dialogue on women’s right of inheritance under Islamic and Pakistani Laws.
Learned Participants: The direct and primary beneficiaries of the activity are female folk themselves. Judicial officers and the revenue staff are integral part of the legal system. So it is must for them to know, how to redress the grievance. The expected recommendations that would form basis for the guidelines on women`s right to inheritance will prove a permanent source of knowledge, research and inspiration for all members of legal fraternity and equip them with the basics and techniques of dispute resolution regarding inheritance. Learned participants: We have invited best of the best resource persons having interest and expertise in the law of inheritance for the working group comprising learned members of Bar and Bench, senior concerned officers of Government and respectable members of civil society, having interest in the subject. Your task for these two days is: 17
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To deliberate upon the measures that are required to be taken so as to ensure that women folk may get their due right in inheritance on time; and
To come up with concrete and implementable recommendations for the conference which could then be translated into viable guidelines for all the stakeholders.
The recommendations of this conference will help us to further strengthen the justice sector qua women`s right to inheritance. I am confident that your stay with us during these two days would be comfortable and present moot will be of great benefit to all. In the end, let us pray. May ALLAH ALMIGHY help and guide us. (Ameen). Thank you ladies & gentlemen.
ZIA-UD-DIN KHATTAK DIRECTOR GENERAL
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Views of the Project Manager SRLP - UNDP
It is a matter of great honor for UNDP to be a partner with KP Judicial Academy in the promoting of judicial education in the KP Province. Our institution has supported KPJA in numerous trainings on various subjects pertaining to administration of justice. These subjects include Substantive and Adjective Laws, Management and other specialized areas. The present conference comes within the ambit of the specialized areas. I am thankful to the Academy for properly arranging and conducting this conference. I have gone through the Concept Note of the Activity, the list of the participants, and more particularly the profiles of the resource persons. I have found all of them up to the mark. I hope that the participants would provide us useful and practicable recommendations on the issue. I on the behalf of UNDP pay thanks to all of you. Jakhongir Khaydarov Project Manager SRLP UNDP
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Proceedings Day One Professor Dr. Dost Muhammad, Director Sheikh Zaid Islamic Center University of Peshawar was the first learned resource person. He shared quite comprehensive talk on the status of women and their rights in Shariah. At the very outset, he enlightened the participants on the status of women in the pre Islamic Era and in other civilizations existing in the past. He referred to the ancient civilization of Egypt, where they used to throw a young lady in the river Nile under the belief that, by the virtue of this sacrifice, the river Nile will continue the flow. It was Islam when the second Caliph Hazrat Umar (RA) issued special directions on the abolition of this custom. The learned resource person also discussed the cruelty of Arabs in the period of ignorance in respect of custom of burial of their newborn daughters. He also referred to the cruelty, being done to a Hindu widow under the custom of Satti. While highlighting the philosophy behind the custom, he explained that the Hindu religion believes that since the wife was not having good fortune and thus she was a witch and has, therefore, caused her husband death. The resource person went ahead and explained that Islam gave respect to the Women under various degrees of relationship such as mother, sister, daughter, wife and many more. He brought wonderful examples from the life of Holy Prophet Muhammad (S.A.W) about the treatment with mother, sister and daughter. The learned resource person particularly focused on the treatment of Prophet Muhammad (S.A.) with his wives (Ummahat ul Momineen----the mothers of the believers). The leaned resource person referred to the general rights of women in Shairah, such as their right to ownership of property, right to education, health, choice of profession, right to choose husband, right to hold an office and particularly their right to clothing, feeding, sheltering
and more
particularly their right to obtain the respective shares in the inheritance.
Professor Dr. Mushtaq Ahmad of Department of law at International Islamic University Islamabad, delivered highly informative lecture on the topic “Inheritance of Women, Constitutional, Religious and Moral Obligations.” He mainly focused on the operative function of Article 2A of the constitution of Pakistan and explained that the August Supreme Court of Pakistan has overturned its previous famous judgment commonly known as Hakeem Khan Case, and has reaffirmed the overriding status of article 2A, in its famous judgment on 20
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21st Amendment. He also referred to the Enforcement of Shariah Act, 1991, and concluded that all the organs of the state particularly the judges of the judiciary are bound to interpret and construct the laws in accordance with the principles of Islamic Jurisprudence. Thus, they are at full liberty to apply inheritance laws of the land to all pending cases and to interpret all the provisions of law of inheritance in the light of Quran and Sunnah. Referring to the Enforcement of Shariah Act, 1991, he categorically clarified that all practices based on customs, traditions and usages------which are repugnant to the Shariah and deprive the women folk from their share in the inheritance shall necessarily be discarded. Clarifying the confusion about the jurisdiction of Federal Shariat Court, he explained that there is difference between declaration of some legal provision as un-Islamic and deviation from the said provision as un-Islamic. No doubt, the declaration is the domain of the Federal Shariat Court but the deviation can be exercised by all judicial officers and judges of other Pakistani courts. Under the above doctrine of difference between declaration and deviation, the judges are bound to deviate from any provision of law if it appears to him repugnant with the injunctions of Quran and Sunnah.
The last Lecture was of Assistant Professor Dr. Mudassirah Sabreen. Her topic was “The relevant legal provision (Islamic jurisprudence) mandating the shares of women in inheritance.” She highlighted that real beneficiary class in the inheritance system is the sharers. The total numbers of the Sharers are twelve, out of which 9 are female and only 3 are male. The learned resource person told that the distribution of inheritance in Islam is based on the basis of equity and not on the basis of Equality. Shares are distributed according to the quantum of attached financial responsibilities. She further explained that, under Islamic law and its jurisprudence, laws of inheritance fall in the category of Hudood where Ijtihad and interference of human intellect have been prohibited to the last extent. She further stated that the problem in our society does not lie in the quantum of the share, rather the big problem is the deprivation of the women folk from their pre-stated share which has already being fixed by Allah the Almighty Himself.
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Day Two Professor Dr. Anis Ahmad, founding vice chancellor of the Riphah International University Islamabad, shared a concise but comprehensive talk on the subject. His topic was “Women’s rights in Islam vis a vis other Religions and System of the World: Focus on inheritance.” The learned resource person presented a number of points of debate on the subject. At the very outset, he explained that all principles and rules of Shariah are based on social justice and family protection as a whole. Shariah does not believe in the benefit of any individual when it becomes in the way of the benefit of the whole community. He said that priority of care of the whole community in the law making process is the main difference between Shariah and other conventional laws. The laws of inheritance in Islam are no exception to this general rule. If this rule is comprehended properly, then no question would arise about the proportionate distribution of shares in the discipline of inheritance. The worthy resource person also referred another substantial and fundamental difference between Shariah and other legal systems of the world and maintained that Shariah has its roots in the divine revelation whereas other systems have their roots in traditions, usages and customs prevailing in the society for a considerably long period, whatsoever these customs, usages and traditions might create injustice and absurdity. The learned resource person also drew demarcation between the legal justice and equitable justice and emphasized that, in Shariah, moral values and principles of ethics govern all fields of human activities, and dispensation of justice could be no exceptions to it. Thus, Shariah does not recognize justice short of moral values and ethics, which are commonly known as principles of equity. In case of clash between apparent equality and principles of equity, Shariah prefers the later over the former. No doubt, fairness is highly valued in Shariah and it does encourage it, but all the judges are to remember that they are not allowed under Shariah to take care for fairness at the cost of justness. The key note should not be the legal provisions; rather the key note ought to be the arrival of a judge to the right an equitable conclusion of the case. Justice (Rtd:) Abdul Lateef, Senior Advocate Supreme Court of Pakistan, apprised the participants on the procedural areas of the subject. His topic was “Inheritance suit: Management skills with Focus on Proper and Expeditious Disposal.” He highlighted the different causes of delay in cases of inheritance. He also discussed other aspects and factors 22
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that cause deprivation of women from inheritance. In this connection, he presented the following points: I.
Why the customs are still working despite their abolition by regular laws.
II.
The adverse effect of the wrong concept of modesty in Pakistani society.
III.
The intentional disobedience of males from the Quranic verses mandating share of women in inheritance.
IV.
The moral decline of the Pakistani society in respect of recognition of women rights.
He proposed the following points for improvement:
Comparatively short and simple procedure should be introduced for hearing cases of inheritance as it has already been done for family cases.
Separate courts should be established for inheritance cases.
Judges should be trained on the subject in order not to entertain inheritance cases as ordinary declaratory suits.
Members of the Bar should also be trained on the significance of the subject.
Training should also be arranged for Revenue Officers.
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Presentations Women Rights in Islam Vis a Vis Other Religions with focus on inheritance Prof. Dr. Anees Ahmad 3
Historical background
• The history of movement for Human Rights in the West is traced back to the British Parliament’s approval of Bill of Rights in 1689 (which happens to be the same year when John Locke wrote Treaties on Civil Government) • J.J. Rousseaue wrote his Social Contract in 1762. This was followed by the American Declaration of Liberty proclaiming equality of man and protection of life on July 12, 1776. • Similarly French National Assembly approved declaration of Rights of Man in 1789. • Thomas Paine wrote the Rights of Man in 1792. • U.S. congress approved rights of the individual to life, liberty and ownership, in each state of the Federation through 14th amendment in 1868. • Universal Islamic Declaration of Human Rights, Paris, Sept 1981,(Signed by Salim Azzam, Sect.Gen. Islamic Council .UK. documents Islamic view. • Cairo Declaration of Human Rights in Islam, 19th Conference of Foreign Muslims of Islamic Countries, Cairo, July 31-Augast 9, 1990. presents Islamic position.
3.1 In recent history the Universal Declaration of Human Rights (resolution of general assembly 217 A (III) of December 10, 1948) or the International Covenant on Economic, social and cultural rights (General Assembly resolution
no
2200
A
(XXI)
December
16,
1966)
are
considered
a
landmark in the history of realization of Human Rights. A resolution of the general assembly of the U.N or a declaration does carry a moral force, however it falls short of legal authority, to enforce and implement it as a law.
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Islamic Ethico–Legal approach Islam goes beyond the
language of “resolution”, “declaration” and
“convention”. It takes an ethico-legal approach. Using a legal language it bifurcates concept of rights into rights of Allah (huquq Allah) and rights
of Allah’s servants (huquq al‘ibad). In pre Islamic period the Jewish, Christian as well as other traditions did
not allow girls any share in inheritance. The elder male child was the major beneficiary.
Islamic human sights are equally applicable to men and women.
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The Islamic Paradigm
Islamic approach to human rights is founded on the statement of fact that all humans are constitutionally equal, they come from one single origin.
“Among His signs is that he created you from dust (earth), and you are now human beings dispersed every where” al-Rum 30-20
“O mankind be careful of your duty to your Rabb (Lord) who created you from a single soul and from it created its mate, and from them twain spread abroad a multitude of men and women” an-Nisa 4:1
5.1
Right to Life
“And slay not the life (an-nafs) which (harramallahu) save with right (illa-bi-al-haqq)”
Allah
has
forbidden
Bani Isra’il 17:33 The general principle based on which the Qur’an prohibits loss or harm to life is given in surah al-Ma’idah:
“That whosoever kills a human being (nafsan) for other than manslaughteror corruption (fasadin) in the earth, it shall be as if he had killed all mankind, and whosoever saves the life of one, it shall be as if he has saved the life of all mankind”. al-Ma’idah 5:32
5.2 “O people verily your blood, your property and your honor are sacred and
inviolable
until
you
appear
before
your
Rabb,
as
the
sacred
inviolability of this day of yours, this month of yours and this very town
.Verily
you
will
soon
meet
your
Lord
and
you
will
be
held
accountable for your deeds.
S.F.H.Faizi, Sermons of the Prophet, (Lahore: Islamic Book Foundation, 1987).p146.
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Right to live rationally (‘aql) and consistently “It is He who gives you life and death, and He is the alternative of might and day, don’t you use your reason (afala ta’qilun)” al-Mu’unim 23:80
“O you who believe! Do not perform your prayer (salat) when you are intoxicated, until you are sure of what you are saying” an-Nisa 4:43
7
Right to practice Din, religious and cultural freedom
“There is no compulsion in din (religious matters)” al-Baqarah 2:256
“To you, your religion, to me, my way of life” al-Kafarim 109:6
8
Right to live with dignity and honor (nasl)
“And
who
(captives)
guard
that
their
their
modesty.
right
hands
Save
from
possess,
for
their then
wives they
or
the
are
not
blameworthy”. al-Mu’minun 23:5-6
9
Right to property (mal)
“O you who believe! Squander not your wealth among yourselves in vanity, except it be a trade by mutual consent, and kill not one another. Lo! Allah is ever merciful unto you”. an-Nisa 4:29 “All debts must be repaid, all borrowed property must be returned, gifts should be reciprocated and a surety must make good the loss to the assured. Nothing of his brother is lawful for a Muslim except what he himself gives willingly. So do not wrong yourselves”. S.F.H.Faizi, Sermons of the Prophet, (Lahore: Islamic Book Foundation, 1987).p.146.
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Right to Social and Legal Equality and Rejection of Racism and Ethnic Discrimination
“O you People! Allah says: “O people We created you from one male and female and made you into tribes and nations, s that you are known to one another. Verily in the sight of Allah, the most honored amongst you is the one who is the most Allah-fearing”. There is no superiority for an non-Arab over an Arab, nor for the white over the black nor for the black over the white except in piety. All mankind is the progeny of Adam and Adam was fashioned out of clay. Behold! Every claim of privilege whether that of blood or property, is under my feet”. S.F.H.Faizi, Sermons of the Prophet, (Lahore:Islamic Book Foundation, 1987).p.145.
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Right to basic needs of life
“And in their wealth the poor and the deprived have due share”. al-Dhariyat 51:19
“Give the kinsman his due, and the needy, and the wayfarer, and squander not (thy wealth) in wantonness” Bani Isra'il 17:26
12
Right to fair justice
“O you who believe! Be steadfast witnesses for Allah in equity, and let not hatred of any people seduce you that you deal not justly. Deal justly, that is nearer to your duty. Observe your duty to Allah. Lo! Allah is Informed of what you do”. al-Ma’idah 5:8
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13 Right to association
“And there may spring from you a nation who invite to goodness, and enjoin right conduct and forbid indecency. Such are they who are successful”. al-’Imran 3:104
14 Right to political power sharing
“Allah has promised those of you who believe and do righteous deeds that He will surely make them to succeed layastakhlifannahum (the present rulers) in the land even as He bestowed power on those that preceded them and that He will surely establish in authority their din which He has been pleased to choose for them, and He will replace with security the state of fear that they are in. Let them serve Me and associate non with Me (in My Divinity )”. al-Nur 24:55
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15 Right to struggle for just social order “And the believers, men and women, are protecting friends one of another; they enjoin the right and forbid the wrong, and they establish worship and they pay the poor-due, they obey Allah and His messenger. As for these, Allah will have mercy on them. Lo! Allah is Mighty, Wise”. al-Tawbah 9:71
“You are the best community that has been raised up for mankind. you enjoin right conduct and forbid indecency; and you believe in Allah. And if the People of the Scripture had believed it had been better; but most of them are transgressors”. al-i-’Imran 3:110
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Right to public protest
“Allah loves not the utterance of harsh speech save by one who has been wronged. Allah is ever Hearer, knower”. an-Nisa 4:148
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17 Right to privacy
“O you who believe! Enter not houses other than your own houses until you have obtained the permission of the inmates of those houses and have greeted them with peace. That is better for you, that you may be heedful”. an-Nur 24:27
18 Right to protection of goodwill and reputation
“O you who believe! Let not a folk deride a folk who may be better than they (are), nor let women (deride) women who may be better than they are; neither defame one another, nor insult one another by nicknames. Bad is the name of lewdness after faith. And whoso turns not in repentance, such are evil-doers. O you who believe! Shun much suspicion; For lo! Some suspicion is a sin. And spy not, neither backbite one another. Would one of you love to eat the flesh of his dead brother? Ye abhor that (so abhor the other)! And keep your duty (to Allah). Lo! Allah is Relenting, Merciful”. al-Hujurat 49: 11-12
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19 Right to identity for child “The child belongs to the marriage-bed and the violator of the wedlock shall be stoned. And reckoning of hteir deeds rests with
Allah. He, who attributes his ancestry to other than his father or claims his
client ship to other than his master, the curse of Allah is upon him” S.F.H.Faizi, Sermons of the Prophet, (Lahore: Islamic Book Foundation, 1987).p146.
20 The right to life for child to be born
“Certainly your Rabb makes plentiful the provision of whosoever He wills and strains it for whomsoever He wills, He is well aware and is fully observant of all that relates to His servants. Do not kill your children for fear of resources, We will provide for them and for you . Surly killing them is a great sin”. Bani Isra'il 17:30-31
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21 Right to brotherly protection “The believers are but A single Brotherhood: So make peace and Reconciliation between your Two (contending) brothers; And fear Allah, that you May receive Mercy”. al-Hujarat 49:10 “O people! Every Muslim is the brother of other Muslim, and all the Muslims form one brotherhood”. S.F.H.Faizi, Sermons of the Prophet, (Lahore: Islamic Book Foundation, 1987).p147.
22 Right to establish ethical order and remove indecency and immodesty
“Those who if We give them power in the land, establish (system of) salat and zakah and enjoin ethical good and forbid indecency, and Allah
is the sequel of events” al-Hajj 22:41
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23 Right to refuse obedience to oppressive rulers
“But fear Allah and obey me; “And follow not the biddings of those who go to excesses and spread, mischief in the land, And mend not (their way).”
al-Shu‘ara 26: 150-153
24 Right to co-operate in good and virtue and dissociate from evil
“Help you one another in virtue and piety but do not help one another in sin and transgression”.
al-Ma’idah 5:2
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Guiding principle in inheritance 1. Family as the basic unit (Ashab al-faraid) • Children of the deceased • Wife/husband of the deceased
• Parents of the deceased
26 ‘Adl, obligations and responsibilities o A male child is morally and legally responsible (qawwam) for taking care of his brothers, sisters and mother. oA female child is not obliged /responsible to take care of near relations.
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27 Right to inheritance for both women & men
“Just as there is a share for men in what their parents and kinsfolk leave behind, so there is share for women in what their parents and kinsfolk leave behind-be it little or much- a share ordained by Allah. And if other near of kin orphans and are needy are present at the time of division of inheritance, give them some thing of it and speak to them kindly”.
an-Nisa 4:7-8
28 Proportion fixed by Divine Law
“Allah directs you concerning (the provision for) your children; to the male the equivalent of the portion of two females, and if there be women more than two, then theirs is two-thirds of the inheritance, and if there be one (only) then the half. And to his parents a sixth of the inheritance if he have a son; and if have no son and his parents are his heirs, then to his mother appertaineth the third; and if he have brethren, then to his mother appertaineth the sixth, after any legacy he may have bequeathed, or debt (hath been paid). Your parent or your children: You know not which of them is nearer unto you in usefulness. It is an injunction from Allah. Lo! Allah is Knower, Wise” al-Nisa 4:11
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29 Divine guidance : A daughter's share as the basic unit If survivors are one daughter and one son 1/3 to go to daughter and 2/3 to son.
If 02 daughters and one son 2/4 to girls and 2/4 to son. If no male child only two or more girls 2/3 goes to them. If only one daughter 1/2 goes to her. It is not correct to say that a male child always gets more or a female child always gets less. • A husband gets 1/2 of wife’s left over, if they have no children. if they have children he gets 1/4th. • A wife gets 1/4 if she has no children from husband. If she has children from husband she gets 1/8th.
30 • Parents of deceased get 1/6th each if deceased has children. • If the deceased has no children they get 1/3.
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31 • The Qur’an does not permit any change in the proportions fixed by Allah s.w.t. He knows best the reason for these proportions. • Limitations: A person who has slain Murith has no right to
inherence.
32 Conventional approach of equality
Son 1/4
Widow 1/4
Daughter 1/4
Daughter 1/4
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34 Conclusion 1. Islam looks on human rights from an Ethico–Legal perspective, ‘Adl and not equality is the principle. 2. Difference in proportion is not based on gender, in some cases a daughter gets more them her mother. 3. Proportion of share in inheritance is linked with finical responsibility for taking care of his parents, sisters and brothers.
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Women rights to Inheritance : Hindu Law • It can be easily concluded that during the women had been denied their right to inheritance since traditional Hindu law has been recorded. Under traditional Hindu law, they were not considered to be appropriate to inherit the property of their father or their husbands. It was thought that if women would be given charge of any property than they will neglect all the duties accorded to them under traditional law. Dayabhaga seemed like providing some respite to the women but Mitakshara was very much biased against the women. Though, some changes were introduced by the Britishers by enacting some hard hitting legislations but they didn’t prove to be far-reaching. Under British rule, women were provided with a right to inherit and also, they were considered to be of equal level as that of co-parcener in certain situations regarding inheritance. But still these laws didn’t confer too many rights on the women and in certain situations they were still governed by Mitakshara and Dayabhaga. It was only after the passage of The Hindu Succession Act, 1956 and its amendment in 2005 that women were given equal rights as son and their share was recognised. But it was these laws which paved way for the Hindu Succession Act and all other progressive acts. It was only after the Britishers dared to encroach upon this forbidden field of personal law that the rights of women were recognised.
Women rights to Inheritance : Christianity • The British Indian Government enacted the Indian Succession Act, 1865 which was to apply in the case of Christians. This Act was later replaced by the Indian Succession Act, 1925 (hereinafter referred to as “ISA”), which currently governs the inheritance in case of Christians. Certain customary practices also influence the principles of inheritance in case of Christians and have also been considered by the courts in India.
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Women rights to Inheritance : Christianity • The laws of inheritance applicable to Christians are same for both genders.
The property of a person dying intestate is bequeathed to the spouse of the deceased , or upon those who are kindred of the person deceased. Chapter II of the ISA provides for the order and the concerned rules for the devolution of the estate and the share to be allotted to the heirs. The ISA provides that a widow is not entitled to the property if by a valid contract
made before the marriage she has been explicitly excluded from the distributive share of her husband’s estate.
Women rights to Inheritance : Christianity • The term ‘lineal descendants’, as described under the ISA, includes children or children’s children and only those born out of a lawful marriage, thereby excluding relations such as daughter’s illegitimate son or a son’s illegitimate daughter or any other illegitimate issue as such illegitimate children are not considered children by the provisions of ISA. If an intestate has left a widow and also lineal descendants, 1/3rd of the estate shall devolve upon the widow and the remaining 2/3rd shall go to the lineal descendants. If the intestate has left behind a widow and does not have any lineal descendants, but has left behind persons who are kindred to him, the property would be divided into halves, one would divulge to the widow of the intestate and the other half would divulge to the kindred. However, in case the intestate has left no kindred, the whole property would be inherited by the widow.
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Women rights to Inheritance : Judaism • 8 “Say to the Israelites, ‘If a man dies and leaves no son, turn his inheritance over to his daughter. 9 If he has no daughter, give his inheritance to his brothers. 10 If he has no brothers, give his inheritance to his father’s brothers. 11 If his father has no brothers, give his inheritance to the nearest male relative in his clan, that he may possess it. This is to be a legal requirement for the Israelites, as the LORD commanded Moses.’” • • Thus, their holy book gives all the inheritance to male children. If the deceased leaves no male children, only then his female children can inherit him.
Women rights to Inheritance : Judaism • The Book of Deuteronomy [25: 5-7] reads: • 5 If brothers are living together and one of them dies without a son, his widow must not marry outside the family. Her husband’s brother shall take her and marry her and fulfill the duty of a brother-in-law to her. 6 The first son she bears shall carry on the name of the dead brother so that his name will not be blotted out from Israel. 7 However, if a man does not want to marry his brother’s wife, she shall go to the elders at the town gate and say, “My husband’s brother refuses to carry on his brother’s name in Israel. He will not fulfill the duty of a brother-in-law to me.”
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General view on inheritance
In the Western tradition, women generally, and married women in particular,l had little or no place in the order of intestate succession. Until the end of the sixteenth century, women were basically denied the right to inherit property.
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Inheritance Suits: Management Skills with Focus on Proper and Expeditious Disposal
By Justice (R) Abdul Latif Khan.
A. Background of the Law of Inheritance in Pakistan. 1. This paper gives an overview of the Islamic Law of inheritance and the suits filed by the descendants of Muslim deceased before the civil courts. In pre- Islamic society, the system of inheritance was confined to male descendants. Women did not have any share of inheritance, and they themselves were inheritable too. Siblings from the mother’s side, like half-brothers or half- sister, were completely excluded. 2. We remained part of Hindu Society, Wherein no concept of share of women in inheritance existed. Women were not given any share. This concept to deprive women from inheritance became part of our own law of inheritance commonly known as “Riwaj”. Shariat Application Act was promulgated in the year 1935, however it took time to be implemented in letter and spirit. In the meanwhile MLR (Marshal law regulation)1959 to 1964 were introduced whereby ban imposed on partition of small holdings, created great hurdles in implementation of shariat application Act 1935 in real sense, which caused inconvenience to the small land owners and they gradually abandoned their efforts to claim their right. Even today in most of the areas of Pakistan women are made fool by giving them fake respect of being more noble and pious if they do not claim their right in inheritance otherwise they are considered and treated inhumanly. 3. It was a custom that the women folks were deprived of the their right to inheritance and even their names were not mentioned in the mutations of inheritance, however now if their names are entered in the mutation and attested , even then brothers/sons deny their right of ownership as well as possession. The female descendants do not claim their right due to customary obligations. Strange enough that daughters/Sisters openly surrender their right of inheritance. Many people die every day and leave property behind them and their legal heirs, despite having a right of share in the legacy , avoid to claim their right for variety of reasons. 43
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4. The women do not claim their rights due to fear of afraid of customary obligations. They are afraid of the fact that who would be their protectors and where they would go on religious festivals i.e. Edain etc and who will let them lay to rest in the graves on their death as it is an established norm in our society that only brothers and sons are to bury their sisters and daughters and if these male descendants avoid to do so , due to demand of share by female descendants, then they would be deprived of this honor, privilege, love and care. This is the main concern in their mind which prohibits them from coming forward with the claim of their share out of the legacy of their predecessors. 5. In the most of the cases daughters and sisters avoid to claim their rights and their legal heirs, claim inheritance but, such suits become time barred as an embargo of limitation comes in their way. 6. According to Islamic law, legal heirs that are blood relations have a right to a share in property after the death of a person. There are specific verses in Surah-Al-Nisa which mentioned the exact formula that must be followed to determine the shares in inheritance. 7. Islam, by clearly stating in the Quran that women have the right to inherit for themselves, changed the status of women in an unprecedented fashion. The Quran states: “Men shall have a share in what parents and kinsfolk leave behind, and women shall have a share in what parents and kinsfolk leave behind.”(Quran 4:7) 8. The above mentioned specific Quranic verses in Surah Al-Nisa gives exact formula, to be followed , to determine the shares of women in inheritance but unfortunately, this injunction is being overlooked in our legal system as a matter of routine. The women are deprived of their rights of inheritance at the time of death of a Muslim deceased and this is common in all the classes of society including feudal class. 9. The amalgamation of old customary law and Quranic law has caused variety of problems despite the fact that Quran has introduced complete legal system and those, who were deprived of the inheritance previously were allotted their shares including women. 10. Since the Quran and Sunnah has already declared the shares of legal heirs of Muslim deceased, therefore , there is no question of declaration to this extent, however, the only problem to be resolved is the denial of the right of female descendants by the 44
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male descendants and for that the lengthy civil procedure is not required. Female usually inherits ½ share of that of the male counterpart. For instance, daughter is entitled for ½ Share of son's share, wife for 1/8 and husband for ¼ . if the deceased has no children but some inherits same share or more than male , if deceased left no ascendant or descendant and left uterine brothers and sisters, each would inherit 1/6 and if deceased has left children both parents would get equal share of 1/6. If deceased is a women and left no children, brothers or sister and survived by her husband, her husband inherits ½ share while mother inherit 1/3 share and father 1/6 share and as such mother in this case inherits double of the father. Some people say that why the women’s share is ½ of the male counterpart, the answer is very simple because the woman has no financial obligation. Prior to Islam, only male owners were entitled to get share, it is the Islamic Law i.e. Quran and Sunnah which allotted share to female descendant too. Before marriage father or brother and after marriage husband or son usually fulfill the need of the female. Male may have to spend the entire or most of the inherited property/ amounts and his share may reduce to that of the female as her share remains intact because she has neither to face financial obligation nor look after any of the members of the family. This leads to the conclusion, that they are not deprived of their rights , however, it is the womenfolk, who, on their own, surrendered their rights by not claiming their share out of the inheritance, despite the fact that it is their declared right in terms of Quran and Sunnah and the prevailing law in the country. Claiming share from their brothers is considered as a sin in our society and those sisters, who claimed are not respected and are treated as rebellious, they are deprived of the love of their father and brothers for the whole life. This is more common in upper class than the lower class . It is a matter of common knowledge that women of lower middle class on denial of their shares put their claim by filing inheritance suits whereas women belonging to upper class hardly go against the decision of their father, brother and husband or they accept their decision and surrender everything instead of filing suit in the court of law. 11. The main achievement of the modern system is codification of the inheritance laws. Inheritance is the integral part of Sharia law and its application in Islamic society is to be encouraged though not mandatory. As per Quran, Ahadiths and Fiqqa only relative with legitimate blood relations are entitled to inheritance. Islamic inheritance law has a role in the development of Islamic mathematic, which has developed the
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modern symbolic mathematical notation for fraction where nominators and denominator are separated. In this paper I have tried to share the problems faced by the female descendants as their rights are denied despite clear direction of Quran and Sunnah. The Suits filed by the female descendants can be disposed of expeditiously by following the suggestions given below B. Suggestions for Expeditious Disposal
1. Inheritance suit like other suits , is initiated with plaint wherein technically speaking form prevails instead of substance. It is suggested that in inheritance matters/suits instead of plaint, a proforma be introduced like redemption, succession and Guardianship matters with details of name of parties/ legal heirs, predecessor, description of property, inheritance mutation and relief. Unnecessary persons shall not be allowed to be joined as defendants. Simple and short procedure be opted to ensure early disposal of matter. The Court under Order 1 rule 2 CPC has the power to separate the trial, when it appears that any grievance of the plaintiff may cause delay or require any of plaintiff carry on the suit. Under Or 1 rule 10(2) the court may strike or add party. Provisions should be strictly followed in order to ensure early disposals. 2. Inheritance suit has two parts i.e. the entry of name as owners in the revenue record along with the correct and exact share and secondly the possession of landed property in the light of allotted shares. First part referred above falls within the jurisdiction of Civil Court (if not carried out by Revenue authorities), whereas the later part comes within the domain of Revenue hierarchy by way of partition proceeding, which are one of the most difficult and lengthy litigations in the system. Decades are required to get decree for declaration in terms of first part, as more than century old procedure (CPC-1908 Act V) is only available with us, which has literally become redundant, impracticable, with special reference to suit for inheritance, resulting into great hardship and inconvenience faced by the parties to the matter. 46
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3. Inheritance suits are treated as ordinarily declaratory suits. The urgency in matter is always overlooked causing delay for indefinite period. It is proposed that inheritance suits be bifurcated from ordinary declaratory suit by drawing a line of demarcation in both kind of suits, placing the inheritance suits on top priority. Procedure summary in nature, like suits under Order 37 C.P.C regarding fiscal matters, be introduced. 4. Special summons for summary trial like Order 37 C.P.C be introduced with specific time of 10 days for filing written statement, however defendant shall be not be permitted to file it unless he obtains leave from court and leave shall not be granted leniently. 5. The inheritance cases be treated like Rent and Family matters, with directions for disposal within four (4) months positively. Special judges be deputed for disposal of
inheritance case and be held
responsible for delay if caused. 6. Process serving agency be made effective as it is not functioning properly and in accordance with law. The process serving is one of the fundamental part of dispensation of justice which is badly overlooked , resulting into miscarriage of justice. Defective service on the basis of century old procedure cannot meet the requirement of the present time. It should be brought at par with needs of the day. Fax, Cell phone, internet and other modern devices be introduced for proper and quick service to ensure speedy disposal of the cases. Process servers be held responsible for frivolous and fake service if any or even defective service. Disciplinary action and severe punishments be imposed in case of willful act of negligence. 7. Once ex-parte order/decree is passed, after proper service shall not be set aside in routine. Ex-parte decrees are set aside without any reasons after years and years. None bothered for the proceedings conducted and leniently reverse the same, which is to be curtailed as defendants intentionally let the ex-parte decree passed, with the impression that it can be easily reversed after 4/6 years due to lack of any valid and proper mechanism. Needless to mention that opportunity must be given to applicant/defendant to prove that service was not made upon 47
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him/them properly and if found so, process server be punished and expelled from the job through disciplinary action. 8. Order 14(2) CPC empowers the court to dispose of the case on issue of law only. The cases of inheritance mostly do not involve issue of fact, as the right to get inheritance has been declared by the Quran and Sunnah. Preliminary issue be framed in this regard so long as there exists no controversy regarding relationship. In case of dispute of the relation too, preliminary issue be framed and like rent matters, on establishment of relation, the suit be decided expeditiously. The embargo to give findings on each issue shall be relaxed in inheritance suits. The Presiding officer shall be
held responsible if matter is
delayed and be answerable also in case of wrong decision. 9. Like other declaratory suits, inheritance matter is also dealt with in the normal course for the purpose of recording of evidence, which usually takes years to conclude. Patwari avoids putting appearance for recording evidence despite repeated summons issued. Here again the defective service matters and process servers are responsible for the delay at this stage too. Necessary amendments are required to be made directing patwari to appear on- first call and his statement be recorded positively. No adjournments be given. Presiding Officer shall be vigilant enough and unnecessary demand for irrelevant documents by the parties/counsels shall not be allowed. Only current extract from jamabandi, inheritance mutation and pedigree table are the relevant documents, apart from these no other document be permitted to be demanded and produced or in alternative , it is suggested that plaintiff shall annex the relevant revenue document with plaint and patwari shall not be produced as witness as this would help the proper and early disposal of the case. 10. At the stage of arguments numerous adjournments are normally sought by the parties for delaying the matter. The presiding officer shall perform the duty and pay attention to expedite the disposal, adjournment, if at all allowed for any un avoidable reason, shall not be for more than one weak in any case.
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11. In inheritance suits, copy of judgment and decree be provided by the trial court at the time of announcement of judgment, with direction to appear before appellate court, if so advised. The appellate court on first date or on adjourned date can decide the appeal after necessary queries from the parties. The entire process of service and remaining record shall be available in court of appeal. Thereafter the appellate court shall send the record to trial court for execution and to induct the decree holder in possession of property using revenue agency immediately. 12. It is at the time of death of an ancestor that inheritance mutation be attested only by the revenue authorities after proper investigation. Section 42 Land Revenue Act 1967 authorizes the revenue officer to attest the mutation on the attestation of two elders of the locality which is not sufficient. Proper investigation is to be made through police as well as NADRA, which is having the whole family tree to ascertain the existence of the legal heirs with special reference to the female descendants, and that the right holder be given proper share at the time of attestation of mutation. It is also suggested that a punishment for furnishing false information be proposed through legislation and necessary amendment be introduced in criminal law authorizing police to eliminate fraud and concealment of the female descendants at the time of attestation of inheritance mutation. 13. It is further suggested that ADR be introduced for inheritance matter as it does not strictly fall in the ambit of declaratory suits and arbitration and reconciliation system is to be introduced though legislation where former judges be entrusted with the task to provide services as independent arbitrators/ mediators. This would help the expeditious disposal of the cases and in reducing the backlogs pending in the civil courts.
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Inheritance of Women: Constitutional, Religious and Moral Obligations By Dr. Muhammad Mushtaq Ahmad
These are the limits [set by] Allah , and whoever obeys Allah and His Messenger will be admitted by Him to gardens [in Paradise] under which rivers flow, abiding eternally therein; and that is the great attainment.
And whoever disobeys Allah and His Messenger and transgresses His limits - He will put him into the Fire to abide eternally therein, and he will have a humiliating punishment.
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Islamic Law and Our Legal System
What is the place of Islamic law in our legal system? ◦ Is our legal system based on common law?
How the so-called “Anglo-Muhammadan Law” Came into Existence? ◦ Before the Company’s Rule: Muslim Qadis ◦ The First Stage: English Judges and Muslim Muftis ◦ The Second Stage: Translation of the Fiqh Manuals ◦ The Third Stage: English Judges Interpreting the Fiqh Manuals
◦ The Fourth Stage: Law Reporters
Islamic Law and Our Legal System
Development of Anglo-Muhammadan Law ◦ Legislation
◦ ‘Judge-made law’ ◦ Custom?
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Muslim Personal Law (Shariat) Application Act, 1962 ◦ Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages or institutions, including waqfs trusts and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim personal Law (Shariat) in cases where the parties are Muslims. ◦ The limited estates in respect of immovable property held by Muslim females under the Customary Law are hereby terminated.
Legislation and ‘Muslim Personal Law’
Meaning of ‘Muslim Personal Law’ ◦ In the 1962 Act ◦ In the Constitution?
Section 4 of the Muslim Family Laws Ordinance, 1961 ◦ Farishta v The Federation of Pakistan, PLD 1980 Pesh 47 ◦ Federation of Pakistan v Farishta, PLD 1981 SC 120 ◦ Allah Rakha v The Federation of Pakistan, PLD 2000 FSC 1
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‘Muslim Personal Law’ and the Constitution of Pakistan, 1973
Shariat Benches in High Courts in 1979
Abolition of the Shariat Benches
Establishment of the Federal Shariat Court in 1980
Laws Excluded from the Jurisdiction of the FSC ◦ Constitution
◦ Procedural Laws ◦ Muslim Personal Law ◦ Fiscal Laws (for ten years)
‘Muslim Personal Law’ and the Constitution of Pakistan, 1973
Defining ‘Muslim Personal Law’ ◦ Farishta Case ◦ Consequences
Re-defining ‘Muslim Personal Law’ ◦ Dr. Mahmoodurrahman Faisal v Government of Pakistan, PLD 1994 SC 607 ◦ Consequences
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‘Muslim Personal Law’ and Constitutional Issues
Section 7 of MFLO ◦ Ali Nawaz Gardezi v Muhammad Yusuf, PLD 1963 SC 51 ◦ Mirza Qamar Raza v Tahira Begum, PLD 1988, Kar. 169 ◦ Kaneez Fatima v Wali Muhammad, PLD 1993 SC 901
Status of the ‘Objectives Resolution’
Status of the Objectives Resolution
First Constitutional Document ◦ Asma Jilani v The Government of the Punjab, PLD 1972 SC 139 ◦ State v Ziaurrahman, PLD 1973 SC 49
Article 2-A of the Constitution ◦ Mirza Qamar Raza Case ◦ Bank of Oman Case ◦ Hakim Khan v The State, PLD 1992 SC 95 ◦ Al-Jihad Trust v The Federation of Pakistan, PLD 1996 SC 324
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How Far Is Our System Islamic?
Enforcement of the Shariat Act, 1991 ◦ For the purpose of this Act— (a) while interpreting the statute-law, if more than one interpretation is possible, the one consistent with the Islamic principles and jurisprudence shall be adopted by the Court ; and (b) where two or more interpretations are equally possible the interpretation which advances the Principles of Policy and Islamic provisions in the Constitution shall be adopted by the Court.
Re-legislated in KP in 2003!
Shar`i Nizam-i-`Adl Regulations, 2009
Important Tools in Our Hands
Article 2-A of the Constitution
Section 2 of the Muslim Personal Law (Shariat) Application Act, 1962
Section 4 of the Enforcement of the Shariat Act, 1991
Para
4
of
the
Shar`i
Nizam-i-`Adl
Regulations, 2009 (for Malakand Division)
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‘Interpreting’ the Fundamental Rights
Repugnancy or Interpretation? ◦ Exclusive Role of the FSC ◦ Duty of All Courts
The Power of Interpretation ◦ The Right to Life and Shehla Zia v WAPDA, PLD 1994 SC 693
‘Subject to law, public order and morality…’
‘Interpreting’ the Fundamental Rights
Article 23 of the Constitution ◦ “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.”
◦ Rights given by the Almighty ◦ Restrictions Imposed by the Almighty
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And whoever disobeys Allah and His Messenger and transgresses His limits - He will put him into the Fire to abide eternally therein, and he will have a humiliating punishment.
Enforcement of Women Ownership Right Act, 2012
Definition of “Ownership”
◦ “the right of ownership in the property both movable and immovable which is devolved upon and vested in women by way of inheritance, gift, purchase, mehr or acquired by her by way of any other legal and Shari means”
Prohibition of Depriving Women
◦ “No person shall abridge, violate, curtail or obstruct the right of ownership or possession of a woman, nor shall he dispossess any woman of her property save in accordance with law.”
Punishment
◦ 5 years imprisonment or/and Rs. 50,000 fine
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Enforcement of Women Ownership Right Act, 2012
Handing Over the Property to the Rightful Owner
Time Limit ◦ Decision in 6 Months ◦ Implementation in 1 Month
Abetment ◦ Punishment for the Police Officer
Loopholes in the Law
Poorly Drafted Law ◦ Just 5 Sections
Which Court?
Can Only the Deprived Woman File the Suit?
Will She be Able to File the Suit?
Moral Values of the Society
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The Relevant Legal Provisions (Islamic Jurisprudence) Mandating the Shares of Women in Inheritance By Dr. Mudasra Sabreen
In pre-Islamic Arabia women were denied any inheritance rights as they were unable to fight and defend their tribe in a society with the culture of warfare. They were themselves treated as a property.
Islamic law and Rights of Women Islam gave women inheritance rights. In Quran a whole chapter is named after ‘the Women’ i.e. Al-Nisa. This chapter gives details of shares for legal heirs both males and females.
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Quran 4:11 and 4:176 ‘ … a male receives a share equal to that of two females.’ ‘….and if they are both brothers and sisters, a male receives the share of two females …’
There are several other verses and ahadith related to inheritance as well.
Half share for women? Division of share is based on the following principle: ‘benefits in accordance with the scale of responsibility’. A man has much more financial responsibilities according to Islamic law.
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Half share for women? Division of share is based on the following principle: ‘benefits in accordance with the scale of responsibility’. A man has much more financial responsibilities according to Islamic law.
Contd. A woman is not responsible for any other person’s maintenance.
She is entitled to dower as well. So she receives wealth from two ways: inheritance and dower. A women does not share her property with any one
including her father, brother and husband. She has full authority to dispose it off.
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It is not always that her share is half! In situations where the responsibility is not the key factor she might have equal share with the man: Equal share of mother and father of a deceased child. If a deceased has neither children nor his parents are alive then his siblings (male and female) will have equal share. Maternal sisters and brothers will have equal share.
Status of Legitimacy and Inheritance A legitimate child inherits from both parents and vice versa.
According to Islamic law an illegitimate child will be a legal heir of the mother and vice versa but not of the father as an illegitimate child does not belong to the biological father it only belongs to the mother.
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Rules of inheritance in Islamic law: Sunni Schools The share of each of the Sharer is specifically provided in
the Qur’an. Therefore, they are also called Qur’anic heirs. They include four male and nine female relatives:
Males: Father 1/6, Grandfather 1/6 (in the absence of a father), Husband 1/4 (in the absence of children and 1/8 otherwise), and Uterine brother (in the absence of a father 1/6, and 1/3 if more than one).
Females:
Mother 1/6 (in the presence of children), Paternal grandmother 1/6 (in the absence of a mother), Maternal grandmother 1/6 (in the absence of a mother), Wife 1/8 (in the presence of children) or 1/4 (in the absence of children), Daughter 1/2 (in the absence of a son and alone) or 2/3 (two or more than two), Son’s daughter 1/2 (in the absence of a daughter and alone) or 2/3 (two or more than two), Full sister 1/2 (in the absence of a father and children, and alone) or 2/3 (two or more than two), Consanguine sister 1/2 (in the absence of a full sister and alone) or 2/3 (two or more than two), and Uterine sister 1/6 (in the absence of a father and alone) or 1/3 (two or more than two)
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Shi‘ah Schools: Nine Sharers as against thirteen sharers under Sunni law.
All legal heirs are classified in three main classes: 1. Class 1: a. Parents, and b. Children (male and female) and children of male and female
descendants how low so ever.
2. Class 2: a. Grandparents (true or false) how high so ever, and b. Brothers and sisters (full, consanguine, and uterine) and their
descendants how low so ever irrespective of their gender.
Contd. 3. Class 3: a. Paternal uncles and aunts, b. Maternal uncles and aunts, and c. Their children how low so ever irrespective of their gender. A female legal heir located in the Class 1 will exclude a male heir situated in the Classes 2 and 3. For example, a daughter deprives grandfather, brothers, and uncles. A female legal heir nearer in degree of relationship with a deceased excludes male legal heir who is remote in degree of relationship (eg daughter excludes son’s son though the both belong to the same class and full sister excludes consanguine brother).
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Women Rights (General) Under Islamic Jurisprudence Prof. Dr. Dost Muhammad Khan حقوق نسواں اسالم سے پہلے مختلف معاشروں اور تہذىبوں مىں عورت کى حىثىت اور مقام ہندومت ،ساسانى تہذىب۔
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تخلىق مرد وزن: َّ ْ ً َ ْ َ َّ ُ ُ ْ ْ َّ َ َ زَ َ َ سًاَ َواتَّقًُواْ اَ الًَّذِي ن و ا یًر ث ك ال ا ج ر ا م ھ ن م ث ب و ا ھ ج و ا ھ ن م ل خ و ة د اح و س ف ن ن م م ك ق ل خ ِي ذ ل ا م ك ب ر ا قَ ِ َیا أ َ ُّی َھا النَّ ُ ِ ً َ ِ َ ِ َ ْ َ َ َ َ ِ َُ ِ َ اس اتَّقُو َ َّ ُ ٍ َ ِ ٍَ َ ام ِإ َّن اَ َكانَ َعلَ ْی ُك ْم َرقِیبًا تَ َ ساَلُونَ ِب ِه َواأل َ ْر َح َ ْ اس خانداني حیثیت میں مرد اور عورت دونوں برابر ہىں۔ فرمان رسول ہللا ﷺ :اِ َّن ال ْم ْر ََةَ ُخ ِلقَ ْ ضًلٍٍ (مسًلم) ت ِم ْن ِ (حضرت حوا علىہا السالم) پسلى سے پىدا ہوئى ہىں۔ ْ َ َ ُ ْ ْ َ اس إِنَّا َخلَ ْقنَا ُكم ِمن ذَك ٍَر َوأُنثى َو َجعَلنَا ُك ْم ُ ارفوا إِ َّن أك َر َم ُك ْم ِعندَ َّ اِ أتقَا ُك ْم . ارشاد ربانى ہىں :یَا أَیُّ َھا النَّ ُ شعُوبًا َوقَبَائِ َل ِلتَعَ َ َ و ِم ْن آیَاتِ ِه أ َ ْن َخلَقَ لَ ُكم ِم ْن أَنفُ ِس ُك ْم أ َ ْز َوا ًجا ِلت َ ْس ُكنُوا ِإلَ ْی َھا َو َجعَ َل بَ ْینَ ُكم َّم َودَّة ً َو َرحْ َمةً وف َ ولَ ُھ َّن ِمثْ ُل الَّذِي َعلَ ْی ِھ َّن بِا ْل َم ْع ُر ِ اس لَّ ُھ َّن اس لَّ ُك ْم َوأَنت ُ ْم ِلبَ ٌ ه َُّن ِلبَ ٌ ت عورت :خلقت کے اعتبار سے عورت شىشًہ سًے نًازر تًر ہًے۔ اس لًئے اسًالم نًے اس کًى دلجًوئى کًى خلق ِ تعًالي ہًےَ ’’ :و َعا ِش ًُروهُنَّ تعلىم دى ہے۔ اور ہر قسم کے ظلم وتعدى اور مارپىٹ سے منٍ کىا گىا ہے۔ ارشاد بًارى ہ وف ‘‘ عورت کے ساتھ اچھا برتاؤ کرو۔ عورتوں کے بارے مىں اسالم کى سب سے بڑى خوبى ىہ ہے! کہ بِ ْال َم ْع ُر ِ معاشرت ،حسن سلور محبًت مًتدت ،روادارى وہمًدردى ،مىًل جًول اور دىگًر تعلقًات دونًوں مسًاوات وبرابًرى ہے۔ وخیر متاعھا المرأة ُ صالحا. ع الدنیا متا ٌ ُ ْ َّ ْ َ َ َّ َّ ُ وف ر ع م ال ب ن ھ ی ل ع ِي ذ ل ا ل ث م ن ھ ل و * : حق پر عورتوں كا مردوں ْ َ ِ ِ َ ُْ ِ َ ُ ِ وف * َو َعا ِش ُروه َُّن ِب ْال َم ْع ُر ِ ساَ خیرا فاخیرا فانھن خلقن من ضلٍ وان اعوج شيَ في الضلٍ أعالہ فإن ذهبت تقیمه كسًرته وأن صوا بالن ِ * استو َ تركته لم یزل أعوج فاستوضوا بالنساَ خیرا ً فرمان رسول :بابت معامالت مٍ النساَ :خیركم خیركم ألهله وأنا خیركم ألهلي .ولزوجك علیك حقا ً خوراك ولباس كا حق:أال وحقھن علیكم أن تحسنوا إلیھن فى كسوتھن وطعامھن (ابن ماجه) ؓ ابوسفىان کا واقعہ :خذی ما یکفیك وولدك بالمعروف ہندہ بنت عتبہ زوجہ مکان ،خورار اور لباس/بىوى کا ناقابل تردىد حق ہے۔ طالق کى صورت مىں وہ مکان جس مىًں عًورت رہًائ پذىر تھى۔ جدىد قانون کے مطابق خاتون کو ملے گا۔ شادى بىاہ (نکاح) مىں عورت کى رضا پوچھنا اس کا حق ہے۔ مہر کا تعىن اور ادائىگى عورت کا حق ہے۔ نظرىہ مساوات اور مغربى نظرىہ مساوات کا فرق ت مرد وزن /اسالمى نظرىہ مساوا ِ ٴ ٴ َ َ ض َو ِب َما أنفَقُواْ ِم ْن أ ْم َوا ِل ِھ ْم ‘‘ . ساَ ِب َما فَ َّ ض ُھ ْم َعلَى بَ ْع ٍ ض َل اُ بَ ْع َ الر َجا ُل قَ َّوا ُمونَ َعلَى النِ َ ’’ ِ وراثت میں مرد-عورت كا حصه مرد كو گنا ملنے کى حکمت( :نان نفقہ مرد کى ذمہ دارى) ًُ األُنثَیًَی ِْن ‘‘ تًركے مىًں عًورت کًو ُوصًی ُك ُم اُ فًِي أَ ْوالَ ِد ُكً ْم ِللًذَّك َِر ِمثًْ ُل َح ِ طالق مىں مرد اور عورت کا حق’’ :ی ِ طالق کا حق دىا گىا ہے۔ لىکن اسالم مىں ىہ نہىں ہے۔ اسًالم نًے عًورت کًو مًرد کًى چىًرہ دسًتىوں سًے بچًانے کے لئے ضرورى تحفظات ضرور رکھے ہىں۔ لىکن خاندان کًے نظًام کًو مسًتحکم رکھًنے کًے لًئے نکًاح کًى ع ْقدَة ُ النِكَاحِ َوأَن تَ ْعفُواْ أَ ْق َربُ ِللت َّ ْق َوى. بست وکشاد کا حق صرف مرد کو ىا گىا۔ أ َ ْو یَ ْعفُ َو الَّذِي ِبیَ ِد ِہ ُ حق ملکىت)Right to ownership
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Consolidated Recommendations The last activity as per agenda of the conference was deliberations amongst the participants. The objective of this session remained twofold; (a) to explore the grey areas of the issue under investigation, flaws in the system, hurdles in the society and all other factors that adversely affect the right of women to inheritance, and (b) to come up with practicable suggestions for improvement of the situation. For the purpose, participants were randomly divided into three groups. Each group was provided with a faculty member of the Academy as facilitator. Keeping in view the crux of the presentations of the learned resource persons, the highly interactive environment they resulted in during the various sessions, and the areas that attracted the scholarship of the conference most, the Research Wing of the Academy framed the following titles were for deliberations session:
Socio-economic changes required for proper implementation of women’s right to inheritance
Hurdles in the way of recognizing women’s right of inheritance
Legal barriers in implementation of law claims of women’s right of inheritance
At the end of the session, each group presented its suggestions and recommendations. In order to keep the required brevity at this place, the separate mention of the presentation of each group is avoided. The consolidated recommendations on religious, social, academic, and legal aspects of the issue are as under: 1. Provisions of the Surah ‘Nissa’ of the Holy Quran mandating the right of women to the pre-fixed shares in inheritance should be included in the syllabi of law schools, colleges and universities having law faculties. 2. The religious scholarship should be encouraged for enlightening the general masses on the significance of the issue and its fragile nature under Shariah. The issue should be, off and on, discussed with the required zeal in various religious ceremonies and addresses. 3. The religious scholarship should also encourage the participation of females in religious ceremonies as it had be ensured in the lifetime of the Holy Prophet Muhammad (S.A.W). 4. For claims of inheritance, special separate law should be framed both on substantive and adjective sides, as it has been done in cases of family issues. By this way, a 66
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possible and practicable mechanism for getting rid of the lengthy, cumbersome and complicated hearing procedure could be achieved. 5. Following the example of consumer courts, separate courts with permanent separate presiding officers should be established for hearings claims of inheritance. The jurisdiction of the ordinary civil courts ought to be ousted. 6. Specialized trainings on the subject are highly essential for all concerned; law and policy makers, judges, lawyers, revenue officers, staff of the financial institutions (banks being on the top), religious scholars and members of the civil society, particularly the females. 7.
To achieve the objective above, judicial academies of the country should prepare purpose-based courses for such trainings.
Services of the competent resource
persons should be hired, for it has been noticed that the lack of interest of lawyers and judges in the inheritance suits, inter alia, owes to the want of requite expertise in the subject. 8. The prevailing practice in the revenue offices regarding mutations of inheritance is passive to a disappointing extent. Necessary and urgent administrative directives should be issued to all revenue officers at Tehsil levels to ensure a suo moto and expeditious registration of inheritance mutations. 9. Immovability of the women folk under the customary concept of modesty ought to be minimized to the possible extent. NGO’s should not interfere here, for it would be counter-productive. The objective should rather be achieved through religious scholars who would be in a better position to convince the masses that that movability of women within the prescribed limits of Shariah is not only permissible but recommended as well. 10. The women usually do not possess the required expenses for litigation. The governments should provide for all the needful in this regard. 11. Shariah itself recognizes ADR mechanism in inheritance. ADR mandating (not mere enabling provision should be introduced in the expected separate legislation on the issue. 12. Presently, all energies are consumed rather wasted in unwanted, illogic and selfinvented controversies in the shares distribution system of Shariah. This practice consecutively takes us away from the objective. According to Islamic Law and its Jurisprudence, the subject falls within the area where the interference of human intellect is expressly barred. The system provided by Shariah is quite 67
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comprehensive, just and equitable, all concerned should, therefore, divert their energies to the issue of deprivation of women from their pre-prescribed shares in inheritance, for this is the problem that a woman is literally facing in Pakistani society. 13. Procedure for obtaining succession certificate should be simplified and made easy. Powers for its free of cost issuance should be granted to the representatives of the local governments at village levels. 14. Apart from inheritance, mother being a female, too aged and enough infirm is deprived from other monetary legacies of the deceased under the ordinary definition of family. She should be included in the family members of the deceased. 15. Whenever there is a talk on the rights of women, the phrase women is usually taken to mean ‘wife’. It is certainly a wrong and narrow comprehension of the phrase. Emphasis should be placed to remove of this misconception and it ought to be believed that the phrase ‘women’ is aimed to include mothers, grandmothers, sisters, daughters, nieces, aunts, and of course wives. 16. While dealing inheritance claims, the learned judges should utilize their own skills and knowledge. The use of inheritance calculators available on the internet should be restricted to cross- check purposes only. Blind reliance on these gadgets, at times, may prove fatal and may not be fully identical to the facts of case in hand.
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Annexure
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Annex- A List of Participants CONFERENCE ON WOMEN’S RIGHT TO INHERITANCE Dated October 28-29, 2016 S.No Name Designation Station Department Mr. Jawad Ali Noor Bar President Shangla Bar Council 1 Advocate Mr. Muhammad Ismail Bar President Dir Upper Bar Council 2 Advocate Mr. Ubaidullah Khan Finance Secretary Swat Bar Council 3 Advocate Mr. Gulam Hazrat Bar President Chitral Bar Council 4 Inqilabi Advocate Mr. Noshad Advocate Bar President Buner Bar Council 5 Mr. Abid Hayat General Secretary Timergera Bar Council 6 Advocate Mr. Kanwal Kareem Cabinet Member Peshawar Bar Council 7 Advocate Mr. Umar Zaman Bar President Malakand Bar Council 8 Advocate Mr. Nazamin Deputy Secretary- Peshawar Board of Revenue 9 II Mr. Muhammad Ibrar Tehsildar Babuzai Board of Revenue 10 (Swat) Mr. Sikandar Tehsildar Chamla Board of Revenue 11 (Buner) Mr. Habibullah Wazir Tehsildar Samarbagh Board of Revenue 12 (Dir Lower) Ms. Rozina Rehman Judge, Consumer Charsadda District Judiciary 13 Court Ms. Muneera Abbasi Judge, Consumer Haripur District Judiciary 14 Court Ms. Shagufta Naveed Legal Draft Person Peshawar Law Department 15 Dr. Bakht Naz District councilor Swat Nazi m Ala Swat 16 Ms. Farida District councilor Swat Nazi m Ala Swat 17 Bibi Hawa Legal Advisor Peshawar NGO 18 (Blue veins) Ms. Wadeeya Mushtaq Senior Civil Judge Mardan District Judiciary 19 Malik Ms. Sadia Arshad Additional District Peshawar District Judiciary 20 & Sessions Judge Ms. Saima Asim Senior Civil Judge Haripur District Judiciary 21 Ms. Shabana Mehsood Senior Civil Judge Dir Upper District Judiciary 22 Ms. Saadia Andaleeb Senior Civil Judge Lakki District Judiciary 23 Marwat Ms. Nusrat Naz Senior Civil Judge Nowshera District Judiciary 24 Ms. Shah Sultan Civil Judge/JM Chitral District Judiciary 25 Ms. Saeeda Akhtar Civil Judge/JM Swat District Judiciary 26 70
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Ms. Hina Mehwish Ms. Sidra Azmat Ms. Surriya Jabeen Mr. Attaullah
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Dr. Muhmmad Asif Khan
[
] Civil Judge/JM Civil Judge/JM Advocate Assistant Professor Assistant Professor
Peshawar Mardan Peshawar University Of Malakand University Of Malakand
District Judiciary District Judiciary Bar Council Department Of Law Department Of Law
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Annex-B Agenda FRIDAY, OCTOBER 28, 2016
8:30
Arrival of Participants and Registration
09:00-9:10
Recitation from the Holy Quran
09:10- 9:30
Welcome Addresses Zia ud Din Khattak, Director General KP Judicial Academy
9:30-10:00
Concept & Methodology of the Workshop Sofia Waqar Khattak, Senior Director Administration
10:00-10:30 10:30-11:30
11:30-12:00
Tea Break Women’s Rights (General) under Islamic law and its Jurisprudence Dr Dost Muhammad Director Sheikh Zaid Islamic Centre University of Peshawar Questions Answers Session Lunch and Juma Prayer Break 12:00-1:30
1:30-2:30
2:30-2:50 2:50-3:50
3:50-4:10 4:10
Inheritance of Women: Constitutional, Religious and Moral Obligations Associate Prof. Dr. Mushtaq Ahmad Dept. of Law- International Islamic University, Islamabad.
Questions Answers Session The Relevant Legal Provisions (Islamic Jurisprudence) Mandating the Shares of Women in Inheritance Asst:Prof.Dr. Muddassirah Sabreen Faculty of Shariah & Law IIUI
Open house discussion inclusive of Questions Answers Session Tea Break and Prayer
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] End of Day 1
Saturday, October 29, 2016
08:50
Recitation from the Holy Quran
9:00-10:00
Women’s Rights in Islam vis a vis other Religions and Systems of the world: Focus on Inheritance Prof. Dr. Anees Ahmad, Vice Chancellor, Rifah University, Islamabad.
10:00-10:30
Questions Answers Session
10:30-11:00
Tea Break
11:00-11:45
Inheritance Suits: Management Skills with Focus on Proper and Expeditious Disposal. Justice (Rtd) Abdul Latif
11:45-12:30
Deliberations for Recommending Suggestions and Proposals
12:30-1:30
Prayer and Lunch Break
1:30-1:50
Presentation/Recommendations - Group 1
1:50-2:10
Presentation/Recommendation- Group 2
2:10-2:30
Presentation /Recommendation- Group 3
2:30-2:50
Presentation/Recommendation- Group 4
2:50
Wrap up Mrs. Sofia Waqar Khattak
3:10
Certificate Distribution and closing
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Annex- C Group Photo and Pictures of various Sessions
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Annex-D Resource Person Profiles Prof. Dr. Anis Ahmad
Prof. Dr. Anis Ahmad is founder Vice Chancellor of Riphah International University, Islamabad, Pakistan. He served as Dean, Faculty of Islamic Revealed Knowledge & Human Sciences, International Islamic University, Malaysia, and as Vice President, International Islamic University, Islamabad. He is meritorious Professor of Comparative Religion. As a social scientist he specializes in Contemporary Social Issues in the Muslim World. He has taught at national and international Universities including The Appalachian State University, North Carolina, U.S.A. Lanzho University, China and International Islamic University Malaysia. He received a Special Award as University Fellow (1969-1971), Temple University, Philadelphia. He has also been a Key-note speaker at International conferences, Seminars and Workshops in: Australia, Bahrain, Canada, Guyana, Hungary, Iran, Japan, Malaysia, Mauritius, Nepal, New Zealand, Saudi Arabia, South Africa, Sri Lanka, Turkey, Trinidad and Tobago, United Arab Emirates, United Kingdom and the USA among Others. He writes on social and educational issues. He has also contributed articles in The Oxford Encyclopedia of Islamic World; Encyclopedia of Islamic Economics, London UK; and Encyclopedia of Islam, Turkey; The Muslim World Book Review, Leicester UK. He is also Editor In-Chief Islam and the West, Islamabad. He can be contacted at
[email protected] or
[email protected]
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Professor Dr. Dost Muhammad Khan Professor Dr. Dost Muhammad Khan is an eminent educationist whose professional and academic teaching experience spans more than two and half decades. He has done his PhD in Islamic Studies in 2000 from Peshawar University. He has organized and participated in numerous Conferences, Workshops and seminars on religious issues including the rights of women in Islam. Besides holding important memberships and positions of academic, cultural and religious committees/boards and syndicates in Peshawar, currently he is the Director of Shaikh Zayed Islamic Centre.
Dr. Muhammad Mushtaq Ahmad Dr. Muhammad Mushtaq Ahmad is Ph.D in Islamic Law & Jurisprudence. Currently he is Associate Professor of Law at International Islamic University Islamabad Pakistan. His research Interests includes Islamic Jurisprudence, Islamic International Law, Islamic Criminal Law, Islamic Family law, International Humanitarian Law, Human Rights law, Jurisprudence & Legal Theories. He regularly assists the Supreme Court of Pakistan and the Federal Shariat Court as amicus curiae. Has authored 3 books and more than 30 papers. He has also supervised more than 30 dissertations of LLM in International Law and Human Rights Law.
Dr. Mudasra Sabreen Assistant Professor (Shariah and Law), International Islamic University, Islamabad, Pakistan. She is teaching subjects of Islamic Jurisprudence, Islamic Family Law, Islamic Criminal Law, Legal Study of Quran and courses of Pakistani Law. She did her PhD Law from School of Oriental and African Studies (SOAS) University of London, UK. Her Research Topic was: ‘Rights of a Minor in the case of Separation between Parents’,
(A Comparative Study of
Islamic law and Pakistani Law). She have wrote numerous aritcles in national and international journels.
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Annex-E
Table of Shares
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Sharers
FATHER .
2
TRUE GRANDFATHER..
3
HUSBAND.
Annex-E
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TABLE OF SHARES
(2)
(Hanafi Law) (3)
Normal Share of one
Sharers
1
[
of two or more collectively (b)
1/6
When there is a child or child of a son h.l.s.
1/6
When there is a child or child of a son h.l.s. and no father or nearer true grandfather.
1/4
4 WIFE
I/8
5
1/6
MOTHER.
6 TRUE
GRANDMOTHER
1/6
When there is a child or child of a son h.l.s.
1/8
When there is a child or child of a son h.l.s. (a) When there is a child or child of a son h.l.s., or (b) when there are two or more brothers or sisters, or even one brother and one sister, whether full, consanguine or uterine. A. Maternal—when no mother, and no nearer true grandmother either paternal or maternal. B. Paternal—when no mother, no father, no nearer true grandmother either paternal or maternal, and no intermediate true grandfather. When no son.
1/6
7 DAUGHTER
1/2
2/3
8 SON'S DAUGHTER h.l.s.
1/2
2/3
When no (x) son, (2) daughter, (3) higher son's son, (4) higher son's duaghter, or (5) equal son's son (d).
e.g
When no (i) son, (2) daughter, or (3) son's son.
(i) Son's Daughter (ii)Son's Son's
1/2
2/3.
1/2
2/3
When no (I) son, (a) daughter, (3) son's son, (4) son's daughter, or (5) son's son's son.
Daughter 9 UTERINE BROTHE R
or
10 SISTER
11 FULL SISTER
1/6
1/3
1/2
2/3
..
12
Conditions under which the normal share is inherited
CONSANGUINE
SISTER
1/2
SISTER
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This column sets out— (A) Shares of Sharers Nos. 3, 4, 5, 8 and 12 as varied by special circumstances; (B) Conditions under which Sharers Nos. I, 2, 7, 8, is and 12 succeed as R.esiduaries.
[When there is no child or child of a on his., the father inherits as a residuary: see Tab. of Res., No. 3.] (When there is no child or child of a son h.l.s. the Tr. G.F. inherits as a residuary, provided there is no father or nearer Tr. G. F.: see Tab. of Res., No. 4.] 1/2 when no child or child of a son h.l.s. 5/4 when no child or child of a son h.l.s. 1/3 when no child or child of a son h.l.s., and not more than one brother or sister (if any); but if there is also wife or husband and the father, then only 1/3 of what remains after deducting the wife's or husband's share. [With the son she becomes a residuary: see Tab. of Res., No. I.] When there is only one daughter, or higher son's daughter but no (x) son, (2) higher son's son, or (3) equal son's son, the daughter or higher son's daughter will take I/2 and the son's daughter h.l.s. (whether one or more) will take x/6, [i.e., 2/3-1/2] [With an equal son's son she becomes a residuary: see Tab. of Res., No. 2]. When there is only one daughter the son's daughter (whether one or more) will take 1/6, if there be no son or son's son. [With the son's son she becomes a residuary: see Tab. of Res., No. a.] When there is only one daughter or son's daughter, the son's son's daughter (whether one or more) will take 1'6, if there be no (x) son, (2) son's son or (3) son's son's son. [With the son's son's son she becomes a residuary: see Tab. of Res., No. 2.]
When no (i) child, (a) child of a son h.l.s., (3) father or (4) true grandfather.
[With the full brother she becomes a residuary: see Tab. of Res., No. 5.]
When no (1) child, (2) child of a son h.l.s., ' (3) father, (4) true grandfather, or (5) full brother.
But if there is only one full sister and she succeeds as a sharer, the consanguine sister (whether one or more) will take 1/6, provided she is not otherwise excludecl from inheritance. [With the consanguine brother she becomes a residuary: see Tab. of Res., No. 71
When no (I) child, (2) child of a son h.l.s., (3) father, (4) true grandfather, (5) full brother, (6) full sister, or (7) consanguine brother. ,
2/3
(4)
