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Journey to legal rights

Despite the presence of comprehensive laws, the deceased husband’s wife has to go through many ordeals to claim her rightful share

Journey to legal rights

Two years ago, Khalida Shamim Akhtar appealed in the Lahore High Court for a share in the land inherited by her deceased husband. Her case was complicated as she was a Shia Muslim and she feared that having no children would mean having no share in the property.

The brothers of the deceased were of the view that under the Shia law of inheritance, “an issueless widow is not entitled to claim her share from the inheritance of her deceased husband.” Lawyers had explained that as there is a possibility that the childless widow may get married a second time, the Ahl-e-Tasheeh community in particular believes that she is not entitled to the share in the inherited land. However, Shia scholar and member of the Council of Islamic Ideology (CII), Allama Syed Iftikhar Hussain Naqvi Najafi, had then declared that the issueless widow is entitled to inherit one fourth share from the leftover estate of her deceased husband.

The state of widowhood itself restricts some women from pursuing legal matters, since as Muslims, they are obligated to fulfill Iddat, a waiting period of four months and ten days. Mostly housebound, widows are faced with multiple issues.

Deciding the petition in favour of Khalida Shamim Akhtar, the Lahore High Court (LHC) Rawalpindi bench granted her the right. In its judgment the LHC expected that ‘the Ministry of Law and Justice would take legislative measures to promulgate a codified law in this regard in order to protect the rights of childless widow from Ahl-e-Tasheeh.’

The case in question seemed to have been solved, since not being challenged meant that it paved way for future litigation. But the case was one of many which showed the vulnerability of a Muslim widow in Pakistan, where she is forced to appeal and make efforts to secure her future financially.

The Surah Al Nisa of Quran – the source to which Allama Najafi had referred in 2016 – is the basis for Muslim laws of inheritance for men and women. “In case of no children, a widow gets one fourth share and the remaining is to be distributed among the man’s siblings. If there are children, then the widow gets one eighth share and the siblings do not get a share unless a will is made in their favour,” says Dr. Shehzad Saleem, Vice President of Al-Mawrid, a foundation for Islamic research and education.

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These Quranic injunctions have been incorporated in Muslim Family Laws Ordinance 1961 in Pakistan. They provide ground for inheritance for a widow even in the case of an ailing husband. “If a Muslim man marries during illness and subsequently dies of that medical condition without consummating the marriage, his widow has no right to inheritance. But if her ailing husband divorces her and afterwards, dies from that illness, the widow’s right to a share of inheritance continues until she is remarried,” says Abru Bukhari Sohail, an advocate and former Professor of Law.

Despite the presence of comprehensive laws, a deceased husband’s wife has to go through many ordeals to claim her rightful share. “If the deceased man and his family were living in a joint family system, a case of partition has to be filed sometimes by the wife in order for her to claim her right in property,” informs Saif ul Mulook, a Supreme Court advocate. “Sometimes there is a second marriage of which the family has no knowledge. In that case, a declaration has to be filed by family members to make the situation clearer. In any case, be it a widow or any other citizen, court hearing sessions are so prolonged that it sometimes becomes next to impossible to settle a matter through suit,” he laments.

Red tapism and corruption also prove to be major hurdles. In 2016 – the year in which Khalida Shamim Akhtar filed a case for inheritance of share in husband’s property – when a widow from Narowal applied for pension at the District Accounts Office, the accounts clerk demanded undue bribes and misbehaved with her and her daughter. She was able to complain at the Pakistan Commission for Status of Women (PCSW) Helpline after which the Chairperson PCSW, Fauzia Viqar, wrote to the concerned authorities to investigate. Within 10 days, district offices confirmed that the complainant had received her first installment of pension, including arrears.

This, however, may be a rare success story. Most women, especially in the rural areas, may not even be aware that such a helpline exists, let alone finding a resource and opportunity to use it. And in both rural and urban areas of Pakistan, social norms and cultural constraints usually play a deterministic role in the well-being of women. In researches and discussions conducted by the PCSW, women mentioned that legal documents had been kept hidden from them for their entire lifetime. Only the rich or the utterly destitute appeared to pursue legal avenues for land inheritance, demonstrating the differentially higher transaction costs that such recourse poses for women.

The state of widowhood itself restricts some women from pursuing legal matters, since as Muslims, they are obligated to fulfill Iddat, a waiting period of four months and ten days. Mostly housebound, widows are faced with multiple issues, from having to rely on other relatives for legal and financial matters to being unable to seek advice or help. They are sometimes pressurised on important issues or victimised by fraudulent activities, with her deceased husband’s relatives taking advantage of her traumatised situation. Widows are also often forced to re- marry since in some cases their in-laws deprive them of their rightful share of inheritance and they require some source of livelihood to sustain themselves.

For immediate sustenance, a deceased wife turns to financial institutions to claim immovable property, such as cash, stocks, investment certificates and security lockers. This could also be a testing experience. “When an account holder dies, his account is marked ‘deceased’ by the bank and its contents are safeguarded by the institution,” informs Muhammad Khalid Siddiqui, Area Operations Manager at Askari Bank. “In case of assets of value less than Rs150,000, a bond of indemnity is given to the legal heirs (as per Shariah law) after receiving a written guarantee from a close relative.

“For assets of a higher value, a succession certificate has to be obtained from the court. The court determines the heirs through its own procedures, like giving a print advertisement. It also states that in case of any other legal heir emerging after the case, the original recipients would be responsible for a rightful dispersal of assets. Moreover, in the case of minor legal heirs, their shares either remain intact until maturity or the court usually grants a certificate of guardianship to the mother, i.e, the widow. These procedures normally complete in a period of up to six months or more,” Siddiqui adds.

But these lengthy procedures could all be reduced to a mere formality, if the deceased had mentioned his spouse as an ‘either survivor’ in his bank records. “In that case, the assets are directly claimed by the survivor,” says Khalid Siddiqui. This, however, may not always be the case since the practice is not common owing to lack of knowledge or societal pressures to tilt more towards blood relatives rather than the life partner.

In the end, it all boils down to the fact that the well-being of a married Muslim woman in Pakistan depends on whether her opinion was sought before filling her marriage contract, which on paper can provide rights and privileges during married life or even after divorce, but in practice, the concept is mostly non-existent. Her financial future is dependent on another fact which is how sincere and far sighted her husband was when he was maintaining his assets. His wife may live a secure life after his death, if he would have named her a property or ‘either survivor’ in bank papers. Or she maybe forced to struggle to survive and also maintain her pride, just to be able to make ends meet.

“It is not uncommon that a widow may face prejudice or may be forced to surrender her rights,” says Saif ul Mulook. “In our patriarchal society, widows are judged simply as women rather than human beings, which is why their lives are difficult.”

Shabana Mahfooz

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A Freelance Journalist based in Lahore. She has keen interest in and writes on issues related to women, religion, history and society. Can be reached at [email protected]

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