Inheritance Laws of Pakistan: Through The Lens of Feminist Theory Of Simon De Beauvoir
Author: Tanya Agarwal ,
Student: 4th Year, B.A.L.L.B. (Hons.),
O.P. Jindal Global University, Sonipat, Haryana.
This paper aims.to look at the right of inheritance of women in Pakistan through the lens of the feminist theory put forward by Simon de Beauvoir in ‘The Second Sex’. It discusses her eminent theory of “One is not born, but rather becomes, a woman”[1] and highlights the objectification of women as a Doll and Hegel’s ‘master-slave’ approach. It then analyses the laws of inheritance in Pakistan and the inequalities undergone by the women due to the amount of share, which is half as compared to their brothers and denial of rights in reference to the societal norms, inefficient legal system and their active relinquishment of inheritance rights in favor of their brothers. Towards the end, it draws a parallel between the theory and the existing rights and argues the significance of applicability of the theory to direct Pakistan’s women to the path of equality.
Simon De Beauvoir’s, The Second Sex (1949), theorizes femininity as a social and male-dominated construct rather than inherited and natural one[2]. “One is not born, but rather becomes, a woman” is one of its most prevalent theories.[3] The theory tries to demolish the inherent principle, which emphasizes on the concept of women being born with the characteristic of femininity and builds up on the contrasting fact that it is socially constructed.[4] While asserting that “man is defined as a human being and woman as a female”, she objectifies woman as a ‘Doll’[5] and explains the inferiority, which she experiences. She draws a link between the submissive characteristic of a doll, its roll of getting dressed up, listening to its owner’s secrets and comforting the owner if lonely and woman’s role being that of fulfilling man’s needs.[6] Where a doll does not have any agency of her own, it is discussed that a grown-up girl finds herself in the shoes of her doll where she is deprived of her ‘can do’ structure[7] and has too little public influence than a man. While stating that, “the most potent weapon of the oppressor is the mind of the oppressed”, she attempts to bring in light that how men are not the ones who are depriving women of their freedom and rights and turning them into ‘objects’ but the role of women, which cannot be held as absolutely innocent in their subjection.[8] She explains this view by using Hegel’s ‘master-slave’ approach and used the terms ‘subject’ and ‘other’ rather than ‘master and ‘slave’. She identified a man as the ‘subject’, which is ‘absolute’ human type and ‘other’ as a woman, which is ‘inessential’ and inferior.[9] She outlines how the social construction has led to women being perceived as the “other” which is second to man, which by default makes man as the “first” sex.[10] And claims that the absence of demand by a woman for herself to be on the position of ‘subject’ due to her satisfaction from the role of ‘other’ and due to lack of means has led to her own oppression[11]. Additionally, she mentions the historical and existential nature of this oppression which calls out for women’s own responsibility of finding a remedy and liberation by the way of solidari
ty and dismissal of their comfort zone rather than being a matter of men giving them freedom.[12]
ty and dismissal of their comfort zone rather than being a matter of men giving them freedom.[12]
A parallel can be drawn between the aforesaid theory and status of women’s inheritance rights in Pakistan. In order to examine this parallel, there is a need to look at the existing inheritance laws in Pakistan.
Inheritance, which is one of the most significant branches of Family Law, usually refers to the property, “which is received from an ancestor under the laws of inheritance or a property that a person receives by bequest or devise”[13] or in other words it can be considered to be a simple matter in which legal possession of the deceased person’s property is transferred to the person’s descendants.[14] Pakistan at first, acknowledged the classical Arabic customs and traditions, which excluded them from the lineage of inheritance.[15]The state did not guarantee them the right to inheritance. But Islam’s arrival deviated the people of Pakistan to the way of resistance of the classical Arabic customs and amended the law to favor the women.[16] Contrary to the customs, it codified the personal laws and recognized women’s right to inheritance by the way of The.Muslim.Personal.Law (Shariat) Application.Act, 1937 and The.Muslim.Personal.Law (Shariat) Application.Act, 1961. These provided the Muslim women limited rights to inherit the property with a stipulation of the daughter’s share being half the share as that of their brothers. [17]Pakistan’s Constitution (1973) and The Prevention of Anti-Women Practices (Criminal Law Amendment) Act, 2011 also protect the women’s right to inheritance where the latter’s Section 498 A and 498 C prohibits the disinheritance of women[18]. It cannot be denied that women’s rights have progressed after the intervention of Islam, but it is also true that the rights given to them with respect to inheritance are inherently unequal. The element of being gender just is absent majorly because of the difference in the amount of the shares given to males and females (half of the males to females). I can confer the existence of three fundamental reasons as to because of which inequality prevails. Firstly, the prevailing societal norms concerning the women, which aren’t just limited to women in Pakistan, secondly the inefficient legal system and thirdly the relinquishment of the property by women themselves in favor of.their brothers in order to protect their social.relations the native.family[19].
In the matter of societal norms, Roy R. Anderson while discussing the developments in privileges and rights of the women justified the difference in the amount of shares with the reasoning of difference in the responsibilities on the shoulders of males and females where males have responsibilities of preparing for dowry, fulfilling financial obligations of the family, etc. and females have no such responsibilities.[20] In addition to this, consideration is given to the fact that a female’s native family provides her with dowry and gifts at the instance of her marriage[21]. Apart from this, in order to deny the inheritance rights to the females, age-old notions are followed like women having lack of information regarding their political or economic or property rights, limited understanding about the systems of registration of land, lack of means to protect the assets because of vulnerability, having restricted mobility resulting in obstruction in accessing the property and ability to manage it, lack of information about the expensive and complicated legal system,[22] lack of socialization to face the legal system and also the need of a male member (husband or son) in order to go through court’s affairs.[23] Even if the ownership of the property is transferred in the name of the women, the son or the male mem
ber of the family manages the whole property as she is only considered as a signature holder[24]. Therefore the sense of dependence still prevails. Adherence to all these traditional norms leads to the widening of gender disparity, thus leading to the predomination of the patriarchal system. While looking at the justifications provided under all these circumstances it can be easily held that the personal laws of Pakistan have conveniently ignored the bread-winning women of the family and the prevalent societal norms have succeeded in not considering those who have all the necessary information and means to access the property. Exercising these dominant societal norms also succeeds in trumping those women who put their knowledge of existing inheritance rights into the course of action. This can be illustrated by the case of Nimrah Begum (1991), who tried to claim.the property, which was transferred to her upon the death of her father and was meanwhile in use of her brother[25]. Even after two appeals by her brother (2005), the case was decided in her favor.[26] But the case was stuck till 2011 because of the inefficiency of execution of the decree and while the files were closely examined it was somehow held that she had transferred the property.in her brother’s name at the land revenue office.[27] This was concluded based on a fake entry of donation done in the land revenue office.[28] The case was ultimately held in favor of her brother, which shows the normalized behavior of women of transferring their rights of property to their brothers.[29] In other words, it can be contended that a case, which was strong enough to be held in favor the woman even after two appeals, was decreed in favor of her brother just on the basis of a fake evidence and without much argument because of the assertive customs of active relinquishment of inheritance rights by the women in.favor of their.brothers so as to avoid any social issues with their.native families.[30] Along with this, the case also depicts the lack of proper execution on the part of the legal system, especially when the issue is concerned with the matter of inheritance rights of women. It can, therefore, be held that the shift to personal laws from the customary laws has played a very minor role so as to overcome the “agnatic constraints that legitimized women’s disinheritance.”[31] However, the legal system can’t be solely blamed for the half amount of share of the property they get or their position of ending up with zero amount of share as the major reason behind this is the women themselves, who under the societal pressure surrender their rights in favor of their family members. It can also be said that where on one hand the constitution of Pakistan provides the women with the right to property, on the other hand, they are denied this right when it comes to actual practice i.e. the guarantee given to the women to inherit property by Pakistani National Law and the Islamic law is taken away by the customs and societal norms.[32] These customs which favor the denial of any property rights to women lead them to operate in the fear of desertion by the native family if the inheritance rights guaranteed by the personal law are not foregone. And are justified on the account of the preservation of the inherited source of income and also to showcase the symbol of power.[33] Further, the absence of favorable protective measures convinces them to abandon their shares so that they can rely on their parental home during the unforeseen contingencies like illness, bad marriage, economic pressure, etc. [34] Also, the social pressure makes them comply with the understanding of their brother’s right to take up the land and their own rights of taking up just the harvests or the gifts.[35] Exercising the rights in such a way have molded their mind set to an extent that now they have accepted their status to be that, which is limited to acquire just gifts instead of their property rights and where only their brothers have the right to enjoy all the assets of their parents.[36]
ber of the family manages the whole property as she is only considered as a signature holder[24]. Therefore the sense of dependence still prevails. Adherence to all these traditional norms leads to the widening of gender disparity, thus leading to the predomination of the patriarchal system. While looking at the justifications provided under all these circumstances it can be easily held that the personal laws of Pakistan have conveniently ignored the bread-winning women of the family and the prevalent societal norms have succeeded in not considering those who have all the necessary information and means to access the property. Exercising these dominant societal norms also succeeds in trumping those women who put their knowledge of existing inheritance rights into the course of action. This can be illustrated by the case of Nimrah Begum (1991), who tried to claim.the property, which was transferred to her upon the death of her father and was meanwhile in use of her brother[25]. Even after two appeals by her brother (2005), the case was decided in her favor.[26] But the case was stuck till 2011 because of the inefficiency of execution of the decree and while the files were closely examined it was somehow held that she had transferred the property.in her brother’s name at the land revenue office.[27] This was concluded based on a fake entry of donation done in the land revenue office.[28] The case was ultimately held in favor of her brother, which shows the normalized behavior of women of transferring their rights of property to their brothers.[29] In other words, it can be contended that a case, which was strong enough to be held in favor the woman even after two appeals, was decreed in favor of her brother just on the basis of a fake evidence and without much argument because of the assertive customs of active relinquishment of inheritance rights by the women in.favor of their.brothers so as to avoid any social issues with their.native families.[30] Along with this, the case also depicts the lack of proper execution on the part of the legal system, especially when the issue is concerned with the matter of inheritance rights of women. It can, therefore, be held that the shift to personal laws from the customary laws has played a very minor role so as to overcome the “agnatic constraints that legitimized women’s disinheritance.”[31] However, the legal system can’t be solely blamed for the half amount of share of the property they get or their position of ending up with zero amount of share as the major reason behind this is the women themselves, who under the societal pressure surrender their rights in favor of their family members. It can also be said that where on one hand the constitution of Pakistan provides the women with the right to property, on the other hand, they are denied this right when it comes to actual practice i.e. the guarantee given to the women to inherit property by Pakistani National Law and the Islamic law is taken away by the customs and societal norms.[32] These customs which favor the denial of any property rights to women lead them to operate in the fear of desertion by the native family if the inheritance rights guaranteed by the personal law are not foregone. And are justified on the account of the preservation of the inherited source of income and also to showcase the symbol of power.[33] Further, the absence of favorable protective measures convinces them to abandon their shares so that they can rely on their parental home during the unforeseen contingencies like illness, bad marriage, economic pressure, etc. [34] Also, the social pressure makes them comply with the understanding of their brother’s right to take up the land and their own rights of taking up just the harvests or the gifts.[35] Exercising the rights in such a way have molded their mind set to an extent that now they have accepted their status to be that, which is limited to acquire just gifts instead of their property rights and where only their brothers have the right to enjoy all the assets of their parents.[36]
A parallel can now be drawn between the feminist theory of Simon de Beauvoir and the inheritance laws in the country of Pakistan. Beginning with the primary theory of Beauvoir where she emphasizes upon non-inherent nature of femininity and it being the one acquired by the social construction, it can be inferred that the position of women with regard to their rights of inheritance laws is similar as the justification
given for the limited share and even denial of property to the women is solely based on the social constructs and nothing else, which can be termed as inherent. To be precise, women are not born as a person, who would possess limited information, would be vulnerable, whose mobility will be restricted or who will lack the power of socialization. But it is the society’s pre-conceived notions relating to confined roles of women (e.g. Only household work) that exclude them from the sphere of higher and formal education and also the psychological and social punishments that awaits them if they try to enter this sphere, which makes them ‘become’ a woman and not the one ‘born’ with the characteristics of femininity. The objectification of women as a doll can also be witnessed without a hitch in the terms of women’s inheritance rights in Pakistan as they also have ‘no agency’ as they are considered to be irrational beings when it comes to making any property-related decisions. They abide by whatever their family decides for them like in the case of the owner and his/her doll. The women are also deprived of the ‘can do’ structure, which is evident in the denial of the function of the property’s management to them and recognizing them just as a signature holder. This deprivation is also visible in the area of legal affairs where women are seen as those who ‘cannot’ understand the complexities of the system and the ones who have less public influence to get any work done. Likewise, Hegel’s ‘master-slave’ model, here the ‘subject-other’ approach can also be fitted in the context of inheritance rights of women as they are given half the share in comparison to their brothers and are thus second to men. Extending on this thought, they do not refute the argument of the unforeseen contingencies and have also accepted their status as that of the ones who only have to receive the gifts. Thus, it can be affirmed that they are not interested in demanding the position of the ‘subject’ and are comfortable in the shoes of the ‘other’. Corresponding to the argument of the historical and existential nature of the oppression faced by the women leading to the emergence of their own responsibility of finding a remedy,[37] the women of Pakistan have to liberate themselves by following the path of solidarity and by dismissing their comfort zones. Furthermore, Beauvoir’s statement, “the most potent weapon of the oppressor is the mind of the oppressed”, explains that the women are themselves consenting to the oppression and it is not the men’s responsibility to provide them with their rights to inheritance, they need to fight for their own rights as they are fundamentally free to reject male’s supremacy and “become more equal as a result”.[38]
given for the limited share and even denial of property to the women is solely based on the social constructs and nothing else, which can be termed as inherent. To be precise, women are not born as a person, who would possess limited information, would be vulnerable, whose mobility will be restricted or who will lack the power of socialization. But it is the society’s pre-conceived notions relating to confined roles of women (e.g. Only household work) that exclude them from the sphere of higher and formal education and also the psychological and social punishments that awaits them if they try to enter this sphere, which makes them ‘become’ a woman and not the one ‘born’ with the characteristics of femininity. The objectification of women as a doll can also be witnessed without a hitch in the terms of women’s inheritance rights in Pakistan as they also have ‘no agency’ as they are considered to be irrational beings when it comes to making any property-related decisions. They abide by whatever their family decides for them like in the case of the owner and his/her doll. The women are also deprived of the ‘can do’ structure, which is evident in the denial of the function of the property’s management to them and recognizing them just as a signature holder. This deprivation is also visible in the area of legal affairs where women are seen as those who ‘cannot’ understand the complexities of the system and the ones who have less public influence to get any work done. Likewise, Hegel’s ‘master-slave’ model, here the ‘subject-other’ approach can also be fitted in the context of inheritance rights of women as they are given half the share in comparison to their brothers and are thus second to men. Extending on this thought, they do not refute the argument of the unforeseen contingencies and have also accepted their status as that of the ones who only have to receive the gifts. Thus, it can be affirmed that they are not interested in demanding the position of the ‘subject’ and are comfortable in the shoes of the ‘other’. Corresponding to the argument of the historical and existential nature of the oppression faced by the women leading to the emergence of their own responsibility of finding a remedy,[37] the women of Pakistan have to liberate themselves by following the path of solidarity and by dismissing their comfort zones. Furthermore, Beauvoir’s statement, “the most potent weapon of the oppressor is the mind of the oppressed”, explains that the women are themselves consenting to the oppression and it is not the men’s responsibility to provide them with their rights to inheritance, they need to fight for their own rights as they are fundamentally free to reject male’s supremacy and “become more equal as a result”.[38]
While culminating with another dictum, “Society, being codified by man, decrees that woman is inferior; she can do away with this inferiority only by destroying the male’s superiority”[39]it can be concluded that the correspondence of aforesaid Beauvoir’s theories with that of inheritance rights of women in Pakistan, can be utilized by them to walk on the path of equality.
BIBLIOGRAPHY
1. (Ncsw.gov.pk) <http://www.ncsw.gov.pk/previewpublication/3>
2. Sulong D, ‘Inheritance Law For Women: Islamic Feminism And Social Justice1’ (2015) 3 Journal of Islamic Studies and Culture
3. Ahmad E, A BibiT Mahmood, ‘Attitudes Towards Women’s Rights To Inheritance In District Lakki Marwat, Pakistan On JSTOR’ (Jstor.org) <http://www.jstor.org/stable/24397947>
4. Butt BA Asad, ‘Refutation, Relinquishment And Inheritance: Exploring Women’S Inheritance Rights In Pakistan’ (2016) 36 Pakistan Journal of Social Sciences (PJSS)
5. Holden LA Chaudhary, ‘Daughters’ Inheritance, Legal Pluralism, And Governance In Pakistan’ (2013) 45 The Journal of Legal Pluralism and Unofficial Law
6. ‘Beauvoir, Simone De | Internet Encyclopedia Of Philosophy’ (Iep.utm.edu) <https://www.iep.utm.edu/beauvoir/>
7. Bergoffen D, ‘Simone De Beauvoir’ (Plato.stanford.edu) <https://plato.stanford.edu/entries/beauvoir/>
8. (Nmu.edu) <http://www.nmu.edu/english/sites/DrupalEnglish/files/UserFiles/WritingAwards/Cohodas/Submitted_1206am_3-14_Gender_Identity_and_Expression_and_Simone_de_Beauvoir.pdf>
[1] Debra Bergoffen, ‘Simone De Beauvoir’ (Plato.stanford.edu) <https://plato.stanford.edu/entries/beauvoir/>
[2] ibid
[3] ibid
[4] ‘Beauvoir, Simone De | Internet Encyclopedia Of Philosophy’ (Iep.utm.edu) <https://www.iep.utm.edu/beauvoir/>
[5] (Nmu.edu) <http://www.nmu.edu/english/sites/DrupalEnglish/files/UserFiles/WritingAwards/Cohodas/Submitted_1206am_3-14_Gender_Identity_and_Expression_and_Simone_de_Beauvoir.pdf>
[6] ibid
[7] Debra Bergoffen, ‘Simone De Beauvoir’ (Plato.stanford.edu) <https://plato.stanford.edu/entries/beauvoir/>
[8] ibid
[9] Debra Bergoffen, ‘Simone De Beauvoir’ (Plato.stanford.edu) <https://plato.stanford.edu/entries/beauvoir/>
[10] ibid
[11] ibid
[12] ibid
[13] (Ncsw.gov.pk) <http://www.ncsw.gov.pk/previewpublication/3> accessed 26 March 2018.
[14] Eatzaz Ahmad, Anbereen Bibi and Tahir Mahmood, ‘Attitudes Towards Women’s Rights To Inheritance In District Lakki Marwat, Pakistan On JSTOR’ (Jstor.org) <http://www.jstor.org/stable/24397947>
[15] Livia Holden and Azam Chaudhary, ‘Daughters’ Inheritance, Legal Pluralism, And Governance In Pakistan’ (2013) 45 The Journal of Legal Pluralism and Unofficial Law.
[16] ibid
[17] ibid
[18] ibid
[19] Dr. Jasni bin Sulong, ‘Inheritance Law For Women: Islamic Feminism And Social Justice1’ (2015) 3 Journal of Islamic Studies and Culture.
[20] ibid
[21] Beenish Ijaz Butt and Amir Zada Asad, ‘Refutation, Relinquishment And Inheritance: Exploring Women’S Inheritance Rights In Pakistan’ (2016) 36 Pakistan Journal of Social Sciences (PJSS).
[22] Eatzaz Ahmad, Anbereen Bibi and Tahir Mahmood, ‘Attitudes Towards Women’s Rights To Inheritance In District Lakki Marwat, Pakistan On JSTOR’ (Jstor.org) <http://www.jstor.org/stable/24397947>
[23] Beenish Ijaz Butt and Amir Zada Asad, ‘Refutation, Relinquishment And Inheritance: Exploring Women’S Inheritance Rights In Pakistan’ (2016) 36 Pakistan Journal of Social Sciences (PJSS).
[24] ibid
[25] Livia Holden and Azam Chaudhary, ‘Daughters’ Inheritance, Legal Pluralism, And Governance In Pakistan’ (2013) 45 The Journal of Legal Pluralism and Unofficial Law.
[26] ibid
[27] ibid
[28] Livia Holden and Azam Chaudhary, ‘Daughters’ Inheritance, Legal Pluralism, And Governance In Pakistan’ (2013) 45 The Journal of Legal Pluralism and Unofficial Law.
[29] ibid
[30] ibid
[31] ibid
[32] ibid
[33] Eatzaz Ahmad, Anbereen Bibi and Tahir Mahmood, ‘Attitudes Towards Women’s Rights To Inheritance In District Lakki Marwat, Pakistan On JSTOR’ (Jstor.org) <http://www.jstor.org/stable/24397947>
[34] ibid
[35] ibid
[36] Beenish Ijaz Butt and Amir Zada Asad, ‘Refutation, Relinquishment And Inheritance: Exploring Women’S Inheritance Rights In Pakistan’ (2016) 36 Pakistan Journal of Social Sciences (PJSS).
[37] Debra Bergoffen, ‘Simone De Beauvoir’ (Plato.stanford.edu) <https://plato.stanford.edu/entries/beauvoir/>
[38] (Nmu.edu) <http://www.nmu.edu/english/sites/DrupalEnglish/files/UserFiles/WritingAwards/Cohodas/Submitted_1206am_3-14_Gender_Identity_and_Expression_and_Simone_de_Beauvoir.pdf>
[39] Debra Bergoffen, ‘Simone De Beauvoir’ (Plato.stanford.edu) <https://plato.stanford.edu/entries/beauvoir/>