The concept of women’s legal rights pertaining to property is always called into question in countries like Pakistan. Both Muslim majority and minority countries recognize the rights of women, yet their implementation remains abysmal. Family law practices and cultures unfortunately deprive women of the opportunities to which they are both Islamically and legally entitled. Article 23 of the 1973 Constitution states that,
“…every citizen shall have the right to acquire, hold, and dispose of property in any part of Pakistan.”
The focus of this article is on the Punjab Enforcement of Women’s Property Rights Act, 2021 (enacted on 17th May, 2021) which provides a simple procedure to file a complaint before the Ombudsperson who will preferably decide the case within 60 days and help dispense speedy justice to all deprived women. Being a traditionally marginalized and impoverished group, women are often denied control over their legal property which can actually represent their economic status in the larger scheme of things. The denial of property rights also creates hindrance to their financial empowerment and inclusion, inevitably causing the cycle of poverty to continue for generations.
Practices taking away women’s rights through unlawful means disempower women. Such malpractices make them completely dependent on their husbands and other male relatives while maintaining patriarchal strcutures even in the 21st century. In rural areas, practices like haq bakhshwana and watta satta are still very common under which pairs of men and women are reciprocated in marriage merely to prevent the breakup of property. The practice of haq bakhshawana (where women defer the right to their property either willingly or forcefully) has been strictly condemned by the Prevention of Anti Women Practices Act, 2011 which prescribes a punishment of fine and imprisonment of up to 7 years, though the Act has failed to address intrinsic cultural biases.
The focus of this article, however, is on the deprivation of women’s property rights which are recognized by Shariah and the Constitution but not customary and tribal laws. Even in the more urban areas, women’s rights to property are often denied by brothers and male relatives while the law fails to address these issues. One can try to elaborate the matter by shedding light on various perspectives around khula, divorce, inheritance and marital property rights.
If we didn’t know any better, most of us would hold the view that when a woman files for khula she is forced to return what she has received from the husband in the form of dower. Similarly, if a woman has children and decides to remarry, the former husband often threatens to not pay the maintenance/allowance to children on the basis determined and ordered by the court. This makes women’s lives even more difficult in extreme financial conditions, leaving them helpless most of the time. As far as inheritance is concerned, women face the worst parental attitudes. Once married off, they are not considered part of the family anymore under patriarchal customs and not entitled to their inheritance. Both Shariah and the law of the land have otherwise entitled women to property through inheritance.
Some new reforms have been introduced through the Punjab Enforcement of Women’s Property Act, 2021 bringing a glimmer of hope to the lives of underprivileged women. The said Act has conferred the same powers upon the Ombudsperson as that of her or his counterpart under the Protection Against Harassment of Women at the Workplace Act, 2010. An Act similar in nature is the Khyber Pakhtunkhwa Enforcement of Women’s Property Rights Act, 2019 which gives powers to the Ombudsperson to dispense speedy justice, prevent litigation proceedings from lingering on, provide speedy and effective redressal of grievances and prevent the violation of rights through unlawful means.
The Punjab Enforcement of Women’s Property Act, 2021 has wide application. It is applicable where proceedings have already been initiated in the courts and vice versa (S.4) or even without prior court proceedings.
The timeline for proceedings under the 2021 Act is not extraordinarily long as the Act aims to dispense speedy justice to the aggrieved women who are not able to acquire the rights conferred upon them by inheritance, will or gift and where such rights have been brutally taken from them by undue pressure, duress or coercion. Since many women are unable to earn a livelihood owing to several disempowering factors, the further deprivation of property rights makes them suffer even more. The 2021 Act aims to be expeditious so that women are not dragged into longer court proceedings pertaining to property rights and civil cases which, as we are all aware, can take a lot of time to get resolved.
Let’s take a look at the procedure under the 2021 Act in the absence of prior court proceedings:
- The Ombudsperson, to her or his own satisfaction, first conducts a preliminary assessment of the complaint under section 4 of the Act.
- If further investigation is required, the Ombudsperson may seek record from the Deputy Commissioner within 15 days.
- After receiving a report from the Deputy Commissioner and notifying both parties (the complainant and the adversaries), the Ombudsperson has to pass a decision within 60 days.
- On the other hand, if further investigation into the matter is not required, the Ombudsperson passes a decision under section 5 of the Act notifying the police in charge and the Deputy Commissioner to help give possession and ownership to the aggrieved woman and submit a compliance report to the Ombudsperson within 7 days.
- Under Section 6 of the Act, if a matter requires in-depth inquiry, it is referred to the court for further investigation which is to be completed within 60 days of the receipt of the complaint.
The prescribed time periods indicate that expeditious relief shall be provided to women.
In matters where court proceedings have already been instituted, the 2021 Act still curtails the powers of the Ombudsperson to not outrightly reject a complaint and redirect the complainant to court proceedings:
- Under Section 7, where court proceedings have already been instituted, the Ombudsperson may, if deems further investigation necessary, refer the matter to the courts.
- However, before doing so, the Ombudsperson must herself or himself conduct an inquiry and notify both parties (including the complainant and the adversaries) to submit their objections, after which the Ombudsperson shall prepare a report within 30 days and submit that report to the court before dismissing the complaint.
The most enlightened part of the 2021 Act is Section 8 which retrospectively gives to women the rights unlawfully taken from them in the past:
- Under Section 8, if it is proved that a property belonged to a woman and she was wrongly deprived of her right, the one who is adversely possessing her property shall pay her the amount equivalent to rent at current market value for the whole past period.
- In the meantime, the Ombudsperson may direct the relevant authorities and the Deputy Commissioner to carry out the Ombudsperson’s orders.
The Act can be said to be promising in actually restoring the property rights of the women of Pakistan and reducing their plight to some extent.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.