Written by: Rida Tahir
Fawad Ishaq v. Mehreen Mansoor: Supreme Court of Pakistan confirms that a woman is entitled to her property and it cannot be disposed of without her consent
Across Pakistan, only 4 percent of the female population have ownership over land compared to 31 percent of men despite contributing 72.7 percent towards the agricultural labor force.Women and girls in Pakistan are often subjected to cruel customs and traditions in order to exclude them from the ownership and control of land. This, coupled with a lack of knowledge and access to legal facilities hinders women from obtaining ownership of their rightful properties and inheritance. Cases where women have knocked the doors of Courts for enforcement of their legal rights to property have been rare and few. On 7 February 2020, the Supreme Court of Pakistan (“SC”) delivered its landmark judgment in Fawad Ishaq v. Mehreen Mansoor which held that women are entitled to their property and that it cannot be disposed of without their consent. This article will analyze the judgement of the SC and present laws in the back drop of the local customs and traditions that hinder women from the right to ownership of property.
Fawad Ishaq v. Mehreen Mansoor
The brief facts of the case are as follows: Ms. Khurshida owned land. Her husband promised the land to his daughter-in-law (Mehreen) as part of her dower in the Nikahnama (Islamic contract of marriage) upon marriage to his son. Ms. Khurshida was not a signatory to the Nikahnama nor did she execute any other document agreeing to transfer the Property. She also did not grant a power of attorney or otherwise to authorize her husband in making any commitments on her behalf regarding the Property. The daughter-in-law filed a suit to claim the house without making her husband liable whilst still being married to him.
Mehreen had first filed a lawsuit for claim of the land in a Family Court against her father-in-law and mother-in-law. The suit was decreed by the Family Judge on 3 May 2014. The father-in-law and mother-in-law filed separate appeals but they were dismissed. Thereafter, two separate petitions were filed before the Peshawar High Court but these were also dismissed. Finally, a petition against the three judgements were filed to the SC.
In coming to its judgement, the SC made references to the Holy Quran and the Constitution of Pakistan (“the Constitution”).
The SC outlined that Surah An-Nisa states that, “Men shall have the benefit of what they earn and women shall have the benefit of what they earn” and “Do not eat up (or consume) one another’s property”. Shariah (Islamic religious law) is enforceable in Pakistan. The Constitution stipulates that all existing laws are to conform to the injunctions of Islam as laid down in the Holy Qur’an and Sunnah of the Holy Prophet (P.B.U.H). Therefore, the SC held that Ms. Khurshida’s husband could not deprive her of the Property as it is against shariah. Moreover, the Court held that a woman’s inheritance is hers alone and no male relative (including her husband, father, brother or son) has any entitlement to it. The SC also held that a woman does not need permission to dispose of her property or to acquire property. Additionally, it was held that local traditions (if they deprive a lady of her property without her consent) will not prevail over the law of the land.
While Article 23 of the Constitution stipulates that,’’ Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan…’’, Article 24 (1) stipulates that, ‘’No person shall be compulsorily deprived of his property save in accordance with law.’’ The SC held that the abovementioned provisions in the Constitution do not distinguish between men and women. Therefore, unless a married woman elects to gift, sell or otherwise dispose of her property neither her husband nor any male relative can claim any right over it.
The SC outlined that Mehreen had a valid claim against her husband with regard to the dower promised by him at the time of marriage, as mentioned in the Nikahnama, and could claim the value of the Property from him. However, she had elected not to do.
Local Customs and traditions in Pakistan
Women are often excluded from their share in the ownership and inheritance of the land by subjecting them to cruel customs, traditions and practices. This includes, ‘haq bakhshwana’, a practice where women are either never married or married to the Holy Quran to retain property within the family. Similarly, cousin marriages and ‘watta satta’ marriages, whereby one set of a brother and sister are married to another set, are also used to prevent the breakup of land inheritance.
The Prevention of Anti-Women Practices [Criminal Law Amendment] Act 2011 was enacted by the Federal Government in order to stop the harmful and discriminatory customary practices committed against women and girls that deprive them from their inheritance. The Act amended the Pakistan Penal Code 1860 and the Code of Criminal Procedure 1898. Three new provisions were added: section 498A, 489B and 498C. The Act criminalizes depriving woman from inheriting property by deceitful or illegal means, forced marriages carried out in the name of custom, such as cousin marriages and ‘watta satta’ marriages (see above), and compelling, arranging or facilitating a woman or a girl’s marriage with the Holy Quran, such as haq bakhshwana’, described above. The Act stipulates penalties, including imprisonment and fines for the offences.
However, in Pakistan, patriarchal values are embedded in local traditions and culture, which predetermine the social value of gender. The role of women is considered to be reproduction whereas men are view as breadwinners in a productive role. As a result, the family and the State allocates a low level of resource investment in women and girls. For example, the education of male members of the family is prioritized over the female members. Therefore, their lack of education and knowledge is attributed towards removing them from their rightful inheritance and ownership of land. Due to this, women and girls remain unaware about their legal rights and the process of enforcing them. Therefore, the crimes committed against women mostly go unchecked and unpunished by the State.
Exclusion from their right to land entitlement contributes to the marginalization of women as it ensures their dependence on male relatives for sustenance and creates a cycle of poverty and exploitation that continues for generations. Ownership of land can provide women with lifelong security as it is one of the most important sources of income and status in the agricultural economy.
Conclusion
The SC’s judgement in Fawad Ishaq v. Mehreen Mansoor was celebrated across Pakistan. However, women and girls are unable to enforce their rights as they lack the requisite knowledge and access to legal facilities. Furthermore, the above mentioned customs and traditions are utilized in order to reserve the ownership of land within the natal family. Despite being unlawful, these detrimental customs and tradition are practiced due to the non-implementation of the law.
In view of the above, Pakistan should adopt additional policies to ensure women are knowledgeable and able to maintain their property rights. This includes, providing trainings to women and girls on managing and controlling land, establishing educational programs and mass awareness campaigns to educate women and girls on their property rights and human rights, making it easier to navigate the legal system for enforcement of their rights and to seek protection from discriminatory practices. Moreover, gender sensitivity training is the need of the hour in order to put an end to the patriarchal values that are the root cause of the marginalization faced by women and girls. Lastly, the government must allocate a fund to provide free legal aid and rehabilitation to women who have been subjected to the above-mentioned customs and traditions.
Rida Tahir is a UK qualified Barrister-at-law, an Advocate of the High Courts of Pakistan and a human rights activist.
Bibliography:
Primary Sources:
The Holy Quran
Fawad Ishaq & others v Mst. Mehreen Mansoor & others (2020 PLD 269 Supreme Court) Available at [https://www.supremecourt.gov.pk/downloads_judgements/c.p._154_2019.pdf] <accessed 3/22/2021>
The Constitution of the Islamic Republic of Pakistan, 1973. Available at [http://www.na.gov.pk/uploads/documents/1549886415_632.pdf] <accessed 3/22/2021>
The Prevention of Anti-Women Practices [Criminal Law Amendment] Act 2011
The Pakistan Penal Code 1860
The Code of Criminal Procedure 1898
Secondary Sources:
Asian Development Bank, ‘’Country Briefing Paper: Women in Pakistan’’, (Programs Department (West) and Office of Environment and Social Development, July 2000) Available at <https://www.adb.org/sites/default/files/institutional-document/32562/women-pakistan.pdf>
United States Agency for International Development, Country Profile Property Rights and Resource Governance, ‘Pakistan’ (Land Links, September 2016) <https://www.land-links.org/wp-content/uploads/2016/09/USAID_Land_Tenure_Pakistan_Profile_0.pdf> (accessed 22 March 2021)
Iswa Wasif, “Women and land in Pakistan.” (Social Enterprise Development Centre, Lahore University of Management Sciences 2017)
United Nations Women, ‘’Rural Women in Pakistan Status Report 2018’’. Available at [https://ncsw.gov.pk/SiteImage/Downloads/Rural%20Women%20in%20Pakistan%20Status%20Report%202018.pdf]
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