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Succession & Inheritance Disputes in Pakistan | Inheritance Law in PakistanExperienced Inheritance Disputes Lawyer for Overseas Pakistanis

Inheritance Law in Pakistan

Inheritance law in Pakistan is being governed by the Succession Act of 1925 and the Letter of Administration and Succession Certificates Act of 2021.

The Succession Act of 1925 is a significant legislation in Pakistan that governs the inheritance and succession of property including Muslims, Christians, Hindu and other religions. It provides guidelines and procedures for the transfer of property to legal heirs after the death of the property owner.

Under this act, the property of a deceased person is distributed among the legal heirs according to the principles of Islamic law (if the deceased was a Muslim) or the personal law applicable to their religion (if they belonged to a non-Muslim minority).

Whereas, the Letter of Administration and Succession Certificates Act of 2021 is a more recent legislation that aims to streamline and simplify the process of obtaining a succession certificate or a letter of administration. It provides a framework for the application, issuance, and revocation of these certificates.

A succession certificate is obtained from the NADRA or the court, in the case may be, and establishes the legal right of the heirs to inherit and transfer the property.

Succession Certificate Procedure in Pakistan

In Pakistan, claiming inheritance both including letter of administration for immoveable properties and succession certificate for moveable properties has been entrusted to the NADRA. But if NADRA refuses to proceed with the application due to any reason, then it will issue a Decline Certificate and the process will be filed in the civil court where any of the property or asset is located. Here is a step-by-step process for claiming succession certificate and letter of administration from NADRA and Civil Court from start to end.

  • Step 1
  • Step 2
  • Step 3
  • Step 4

Required Documents for Inheritance Claim

First step is to collect all the necessary documents related to the deceased, such as;

  • Death Certificate
  • Family Registration Certificate
  • CNIC of Applicant
  • Death certificate of legal heir (if any legal heir died)
  • Property Documents
  • Bank Account Details
  • Special Power of Attorney (if required)
  • And any other related documents including will etc.

Filing Application in NADRA

Second step is to file an application in NADRA by following the below mentioned steps;

  • The applicant will need to prepare an application by providing his/her National Identity number, deceased person’s death certificate. The applicant will also provide the relevant details of legal heirs, and information pertaining to the moveable and immovable assets of deceased.
  • All legal heirs and applicant will visit NADRA’s Registration Center for biometric verification and details provided by applicant will be verified.
  • Afterwards, NADRA will publish the notice to the public at large in a newspaper for ascertaining if there are any objections on the particular application.
  • If there are no objections after 14 days of publication of the notice in newspaper, a Succession Certificate/Letter of Administration will be printed and given to the applicant.

But in case of any objection due to non-appearance of any legal heir or incomplete information, lack of details etc. the NADRA will decline to proceed and issue a Decline Certificate.

Filing a lawsuit in Civil Court

After receiving a Decline Certificate the process needs to be filed in the Civil Court having jurisdiction. Following steps needs to be followed if the process is to be filed in court.

  • Filing a petition in the civil court by attaching all the necessary documents.
  • The court will issue notice to the public at large in the newspaper and to the defendant (if any).
  • Thereafter court will pass direction to the claimants for recording of their statements on oath and exhibits the documents on the judicial record.
  • If the court satisfy with the evidence, then the court will direct the claimants to submit a surety bond of equivalent amount of assets.
  • After submission of surety bonds, the court will issue a succession certificate/letter of administration in favor of legal heirs.

Distribution of Assets

Once the succession certificate/letter of administration is issued by the court, the assets can be distributed among the legal heirs according to their respective shares.

  • In case of bank accounts, all the legal heirs will visit the relevant branch of bank and file request for transfer of their respective shares.
  • In case of immoveable properties, legal heirs have to visit the office of property registrar for transfer of share on their name by sanctioning mutation of inheritance.

Succession and Inheritance Disputes in Pakistan

When it comes to succession and inheritance in Pakistan for overseas Pakistanis, there can be several family conflicts over inheritance of property that may arise.

  1. Disputes over Property Distribution: One common dispute involves disagreements among family members regarding the division of property and assets left behind by the deceased. This can be especially challenging when the deceased owned properties in different locations or when there are multiple beneficiaries involved.
  2. Disputes over Inheritance Rights: Inheritance rights can be a reason of dispute, particularly when there are conflicting interpretations of laws.
  3. Disputes over Guardianship: In cases where minors are involved, disputes can arise over the appointment of guardianship etc.
  4. Disputes over Overseas Assets: Overseas Pakistanis may have assets located outside of Pakistan, such as bank accounts, properties, or investments. Disputes can arise when determining how these assets should be distributed, especially if there are conflicting laws and regulations between Pakistan and the country where the assets are located.
  5. Disputes over Property Ownership: Dispute between legal heirs may arise over the ownership of specific properties, especially when there are multiple claimants.
  6. Disputes over Validity of Wills: If there is a will in place, disputes may arise regarding its validity. Family members may question the authenticity of the will or challenge that it was created undue influence.
  7. Disputes over Share of Inheritance: Legal heirs might disagree on the rightful share each individual should receive from the estate left behind. This can be due to differing interpretations of Islamic law or personal laws, or disagreements over the deceased’s intentions.
  8. Disputes over Valuation of Assets: Determining the value of assets, such as real estate, businesses, or investments, can be a reason of inheritance dispute. Legal heirs may have differing opinions on the fair market value which leads to disputes over the distribution of assets.
  9. Disputes over Debts and Liabilities: If the deceased had outstanding debts or liabilities, legal heirs may disagree on who should be responsible for settling them. This can lead to disputes over the allocation of funds from the estate to cover these obligations.
  10. Disputes over Undisclosed Assets: In some cases, legal heirs may discover the existence of undisclosed assets or accounts, which may lead to disputes over their addition in the estate and how they should be distributed.
  11. Disputes over Personal Belongings: Personal belongings such as jewelry etc. can be a cause of dispute among legal heirs. Disputes may arise over who should receive these items.
  12. Disputes over Succession Laws: Pakistan has different succession laws for different religions, such as Islamic law, Hindu law, Christian law, etc. Disputes can arise when family members have differing interpretations or beliefs regarding the applicable succession laws, leading to conflicts over the distribution of assets.
  13. Disputes over Business Succession: If the deceased owned a business, conflicts may arise over the succession plan. Legal heirs may have differing opinions on who should take over the management and ownership of the business, leading to disputes over its future.
  14. Disputes over Personal Loans and Gifts: If the deceased had provided personal loans or made significant gifts to family members during their lifetime, disputes can arise over whether these should be considered part of the inheritance or if they should be treated separately.

TABLE OF SHARERS IN SUNNI LAW

Sl.

No.

Sharers Normal Share of One Normal Share of two or more

collectively

Conditions under which the normal share is inherited This Column sets out:

(A) Shares of Sharers as varied by special circumstances

(B)  Conditions under which sharers succeed as Residuaries.

1 FATHER 1/6 When there is an agnatic descendant When there is no agnatic descendant the father inherits as a residuary.
2 TRUE GRANDFATHER 1/6 When there is an agnatic descendant & no father or nearer true grandfather When there is an agnatic descendant the true grand father inherits as a residuary, provided there is no father or nearer true grandfather.
3 HUSBAND 1/4 When there is an agnatic descendant ½ When no agnatic descendant
4 WIFE 1/8 1/8 When there is an agnatic descendant ¼ When no agnatic descendant
5 MOTHER 1/6 (a)  When there is an agnatic descendant or

(b)      When there are two or more siblings, whether full, consanguine or uterine.

1/3 When no agnatic descendant and not more than one sibling (if any); but if there is a combination of mother with wife or husband and the father then only 1/3 of what remains after deducting the spouse’s share.
6 TRUE                  GRAND MOTHER 1/6 1/6 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.

7 DAUGHTER 1/2 2/3 When no Son With the son she becomes a residuary
8 SONS DAUGHTER

h.l.s

1/2 2/3 When no (1) Son, (2) Daughter (3) Higher Son’s Son, (4) Higher Son’s daughter, or (5) Equal Son’s son When there is only one daughter, or higher son’s daughter but no (1) Son, (2) Higher Son’s Son, or (3) Equal Son’s Son, the daughter or higher son’s daughter will take ½ and the son’s daughter h.l.s., (whether one or more) will take 1/6, 2/3,1/2 (with and equal son’s son the becomes a residuary.
(i)  Son’s Daughter

 

 

 

 

(ii)         Son’s         Son’s Daughter

1/2

 

 

 

 

1/2

2/3

 

 

 

 

2/3

When no (1) Son, (2) Daughter or (3) Son’s son

 

 

When no (1) Son, (2) Daughter (3) Son’s Son,

(4) Son’s daughter, or (5) Son’s son’s son.

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.

 

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 (1) Son (2) Son’s son (3) Son’s son’s son. With the Son’s son’s, she becomes a residuary.

9 UTERINE

BROTHER                          OR SISTER

1/6 1/3 When no (1) Child, (2) Child of a son h.l.s.,

(3) Father of (4) True Grandfather.

10 FULL SISTER 1/2 2/3 When no (1) Child, (2) Child of a son h.l.s., (3) Father (4) True Grandfather, or (5) Full Brother. With the full brother she becomes a residuary
11 CONSANGUINE SISTER 1/2 2/3 When no (1) Child, (2) Child of a son h.l.s., (3) Father (4) True Grandfather (5) Full Brother (6) Full Sister, or (7) Consanguine 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 excluded from inheritance. With the consanguine brother she becomes a residuary.

Muslim Inheritance Law in Pakistan

The registration and sanctioning of mutation of inheritance is mere formality to update the official record whereas all legal heirs of a deceased become owners of the property to the extent of their respective share until and unless they themselves legally alienate their said share/right further and they also become joint owners in the estate having constructive possession over their share and no limitation runs against the inheritance matters.

The Constitution of the Islamic Republic of Pakistan safeguards property (including inherited property) under Article 24(1) of the Constitution and protection of women and children is guaranteed by Article 25(3) of the Constitution.

The Constitution sets out the goals which the people of Pakistan have set out for themselves in the “Principles of Policy”, which include the protection of mother and the child (Article 35) and require the “promotion of social justice and eradication of social evils” (Article 37).

Depriving a mother and her child from their inheritance does not protect them but preys on them. Such conduct is a prevalent social evil and inherently unjust.

It is expected that the organ and authority of the State will act in accordance with the Principles of Policy as provided by Article 29(1) of the Constitution and the claims by orphans and widows alleging that they have been deprived of their inheritance must be expeditiously decided by the concerned organ and authority of the State including the courts.

The revenue authorities must also be extra vigilant when purported gifts are made to deprive daughters and widows from what would have constituted their shares in the inheritance of an estate.

The concerned officers must fully satisfy themselves as to the identity of the purported donor/transferee and strict compliance must be ensured with the applicable laws.

Purported gifts and other tools used to deprive female family members, including daughters and widows, are contrary to law (shariah in such cases), the Constitution and public policy.

Often male members of a family deprive their female relatives of their legal entitlement to inheritance and in doing so shariah and law is violated. Vulnerable women are also sometimes compelled to relinquish their entitlement to inheritance in favour of their male relations. “Relinquishment” by female members of the family was contrary to public policy and contrary to shariah.

It would be useful to reproduce the following portion from the decision of the Honorable Supreme Court of Pakistan:
“Here in the light of the Islamic point of view, the so-called “relinquishment” by a woman of her inheritance has taken place, is undoubtedly opposed to “public policy” as understood in the Islamic sense with reference to Islamic jurisprudence. In addition it may be mentioned that Islam visualised many modes of circulation of wealth of certain types under certain strict conditions. And when commenting on one of the many methods of achieving this object, almost all commentators on Islamic System agree with variance of degree only, that the strict enforcement of laws of inheritance is an important accepted method in Islam for achieving circulation of wealth. That being so, it is an additional object of public policy. In other words, the disputed relinquishment of the right of inheritance, relied upon from the petitioner’s side, even if proved against the respondent, has to be found against public policy.

Accordingly, the respondent’s action in agreeing to the relinquishment (though denied by her) being against public policy the very act of agreement and contract constituting the relinquishment, was void.”

As per Article 227 the Constitution of the Islamic Republic of Pakistan, 1973, the principles of Quran and Sunnah are declared as supreme law of this country and all provisions, rules, regulations are to be legislated and framed within the precincts of Islamic principles. For reference Article 227 of the Constitution of Islamic Republic of Pakistan is reproduced as under:-
227. Provisions relating to the Holy Quran and Sunnah:

(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions.
[Explanation.-In the application of this clause to the personal law of any Muslim sect, the expression “Quran and Sunnah” shall mean the Quran and Sunnah as interpreted by that sect.]
(2) Effect shall be given to the provisions of clause (I) only in the manner provided in this Part
(3) Nothing in this Part shall affect the personal law of non-Muslim citizens or their status as citizens.

Allah Almighty has ordained the Muslims to decide their disputes according to the principles of Quran (Shariah). The rights or shares of each and every Muslim inheritor in the estate of his/her
deceased propositus is absolutely, conclusively and finally described /determined in the Holy Quran which shares are definite in nature.
In this regard it is expedient to take guidance from the Holy Quran, particularly from Surah al-Nisa Ayat Nos. 7 to 11, English and Urdu translation whereof (by Marmaduke Pickthall) is reproduced as under:

Verse 7: Unto the men (of a family) belongeth a share of that which parents and near kindred leave, and unto the women a share of that which parents and near kindred leave, whether it be little or much. A legal share.

Verse 8: And when kinsfolk and orphans and the needy are present at the division (of the heritage), bestow on them therefrom and speak kindly unto them.

Verse 9: And let those fear (in their behaviour toward orphans)\ who if they left behind them weak offspring would be afraid for them. So let them mind their duty to Allah, and speak justly.

Verse 10: Lo! Those who devour the wealth of orphans wrongfully, they do but swallow fire into their bellies. And they will be exposed to burning flame.

Verse 11: Allah commands you concerning (the provision for) your children; to the male the equivalent of the portion of two females, and if there be only women more than two, then theirs is two-thirds of the inheritance, and if there be one (only) then for her is the half. And to each of his parents a sixth of the inheritance, if he have a son; and if he have no son and his parents are his heirs, then to his mother appertaineth the third; but if he have brethren, then to his mother appertaineth the sixth, after any legacy he may have bequeathed, or debt (hath been paid). Your parents and your children: Ye know not which of them is nearer unto you in usefulness. It is an injunction from Allah. Lo! Allah is knower, Wise.

Almighty Allah also commands:
“And come not nigh [near] to the orphan’s property, except to improve it”.
(Verse 152 of surah (6) Al-Anam of the Holy Qur’an, translation by Abdullah Yusuf Ali, ‘The Holy Qur’an Translation and Commentary’.)

For ready reference, Section 5 of the Punjab Laws Act, 1872 is reproduced-as under:
Section 5: Decision in certain cases to be according to Native law:

In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption guardianship, minority, bastardy, family relations, wills, legacies, gifts partitions, or any religious usage or institution, the rule of decision shall be-
(a) any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority;
(b) the Muhammadan law, in cases where the parties are Muhammadans and the Hindu law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to.”

Moreover according to Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, the Shariat Laws were made applicable where the parties were Muslims. Section 2 of the Act ibid is reproduced as under:

Section 2: Application of Personal Law to Muslim:

—Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubarat maintenance, dower, guardianship, gills, trusts and trust properties, and wakfs other than charities and charitable institutions and charitable and religious endowments the rule of decisions in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)

Section of 3 of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948 in this regard is also reproduced “as under:

Section 3: In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of any such person before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat);

Provided that the share, which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last owner, shall devolve on her if she loses her limited interest in the property on account of her marriage or re-marriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death.”

It is settled law that the beneficiary of any transaction involving parda nasheen and illiterate women has to prove that it is executed with free consent and will of the lady; she was aware of the meaning, scope and implications of the document that she was executing. She was made to understand the implications and consequences of the same and had independent and objective advice either of a lawyer or a male member of her immediate family available to her.

Frequently Asked Questions

What are the requirements for obtaining a succession certificate in Pakistan?

Requirements for obtaining a succession certificate

To obtain a succession certificate in Pakistan, you generally need to fulfill the following requirements:

  • Filing Application: Submit an application for a succession certificate to the relevant NADRA or civil court. This application should include details such as the deceased person’s name, date of death, and the names and addresses of the legal heirs, details of the assets etc.
  • Death certificate: Provide a copy of the death certificate of the deceased property owner duly issued by the Union Council.
  • Legal heirship documents: Submit documents to establish the relationship of the legal heirs with the deceased, such as birth certificates, marriage certificates, and any other relevant documents.
  • Affidavits: Prepare and submit affidavits from the legal heirs stating their relationship with the deceased and their right to inherit the property.
  • Newspaper publication: Publish a notice in a local newspaper to inform any potential claimants or creditors about the application for the succession certificate.
What is a procedure for transfer of property to legal heirs in Pakistan?

Procedure for transfer of property to legal heirs in Pakistan

The procedure for transferring property to legal heirs in Pakistan involves the following steps:

  1. Obtain a death certificate: The first step is to obtain a death certificate of the deceased property owner from the Union Council.
  2. Identify legal heirs: Determine who are the legal heirs according to the applicable inheritance laws. This may involve obtaining legal documents such as birth certificates, marriage certificates, and other supporting evidence.
  3. File an application for succession certificate: The legal heirs need to file an application for a succession certificate in NADRA or the relevant court. This certificate establishes the legal right of the heirs to inherit and transfer the property.
  4. Provide necessary documents: Along with the application, you’ll need to submit various documents such as the death certificate, identity proof of the legal heirs, details of the assets, and any other relevant documents as required by the court.
  5. Attend court hearings: The court will review the application and may schedule hearings to verify the claims of the legal heirs.
  6. Obtain the succession certificate: If the court is satisfied with the claims of the legal heirs, they will issue a succession certificate. This certificate allows the transfer of the property to the legal heirs.
  7. Transfer of property: With the succession certificate in hand, the legal heirs can proceed with the transfer of the property. This may involve executing a transfer deed, paying any applicable taxes or fees, and updating the property records with the relevant authorities.
What is the share of daughters on father's property in Pakistan?

Inheritance law for daughters in Pakistan

In Pakistan, the inheritance law for daughters is governed by the Succession Act, 1925 as well as Letter of Administration and Succession Certificates Act of 2021. According to these laws, daughters have the right to inherit from their parent’s property, including land, houses, and other assets. The share of inheritance for daughters is determined based on the concept of “sharers” and “residuaries”.

Daughters are considered “sharers” and are entitled to receive a specific share of the inheritance, usually half of what a son would receive. Share of daughter of deceased is 2/3 when there is also a son(s) and 1/2 when there is no male child (son).

Can unmarried daughter claim father's property?

Yes, unmarried daughters in Pakistan can claim their father’s property. The inheritance laws grant inheritance rights to daughters regardless of their marital status. Unmarried daughters are considered “sharers” and have the right to inherit a specific portion of their father’s property, typically half of what a son would receive.

What is the share of son in father's property in Pakistan?

According to Islamic law, a son is entitled to a share in his father’s property after his father’s death. The specific proportion of the son’s share depends on various factors, including the presence of other legal heirs, such as daughters, wives, and siblings. If the father has only sons, each son is entitled to an equal share of the property. However, if the father has both sons and daughters, the son’s share may vary. In other words, son(s) will receive two shares for every one share that a daughter will have.

Who are the legal heirs of a deceased person in Pakistan?

In Pakistan, the legal heirs of a deceased person can include sons/daughters, husband/wife, parents, siblings, and grandparents etc. but in view of the sharers and residuary, the legal heirs of a deceased person in Pakistan can be categorized as follows:

Sharers:

  • Sons and daughters
  • Husband or wife

Residuary:

  • Parents
  • Brothers and sisters
  • Paternal or maternal grandparents
  • Paternal or maternal uncles or aunts
Can grandchildren claim inheritance in Pakistan?

Yes, grandchildren can claim inheritance in Pakistan. Under the inheritance laws, grandchildren are considered legal heirs and may have a share in the deceased person’s estate.

Is inheritance taxable in Pakistan?

No, inheritance is not taxable in Pakistan. The reason is that Pakistan follows an Islamic legal system, where inheritance is governed by Islamic principles. In Islam, inheritance is considered a right therefore is not subject to taxation.

Property Owned by Woman

Historical discrimination faced by married women with respect to ownership of property in Europe and United States of America.
The old European and American concepts at times permeate into the thinking even of judges in Pakistan.
The doctrine of ‘coverture’ subsumed a married woman’s identity. Sir William Blackstone described the doctrine of coverture:
“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-French a feme covert”.
In her comprehensively researched book Amy Louise Erickson writes,
“Under common law a woman’s legal identity during marriage was eclipsed, literally covered by her husband. As a ‘feme covert’, she could not contract, neither could she sue nor be sued independently of her husband. The property a woman brought to marriage – her dowry or portion – all came under the immediate control of her husband”.
It was only on the passing of the Married Women’s Property Act, 1882 that in England a married woman became, “capable of acquiring, holding, and disposing by will or otherwise, of any real or personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee”
The situation in the United States of America of married women was no better, they had no legal existence apart from their husbands. The reason for a married woman’s servile status was sought to be explained by the Supreme Court of Illinois,
“It is simply impossible that a married woman should be able to control and enjoy her property as if she were sole, without practically leaving her at liberty to annul the marriage”.
The unjustness of the laws was severely criticized. Elizabeth Cady Stanton listed in the Declaration of Sentiments;
“the injuries and usurpations on the part of man toward woman”- “He has made her, if married, in the eye of the law, civilly dead. He has taken from her all right in property, even to the wages she earns the law, in all cases, going upon a false supposition of the supremacy of a man, and giving all power into his hands”.
Harriet Beecher Stowe was another campaigner for women’s rights, observing that,
“The position of a married woman is, in many respects, precisely similar to that of the negro slave. She can make no contract and hold no property; whatever she inherits or earns becomes at that moment the property of her husband. In English common law a married woman is nothing at all. She passed out of legal existence.”
Discrimination against women pervaded in other areas too. It was only in 1960 that women in America could open bank accounts without their husband’s permission and this right was acquired by women in the United Kingdom as late as 1975.
The professions were also barred to women. Mrs. Myra Colby Bradwell had passed the bar examinations but was not allowed to practice law; she asserted her right to practice but in 1873 the United States Supreme Court held that;
“denying Mrs. Bradwell the right to practice law violated no provision of the federal Constitution” and added, “That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth”
The position of women in Islam is different.
“Men shall have the benefit of what they earn and women shall have the benefit of what they earn”.
The Holy Qur’an also prohibits taking another’s property –
“Do not eat up (or consume) one another’s property”.
Women’s share in inheritance are also precisely ordained. What a woman inherits is hers and hers alone; neither her husband, father, brother or son has any entitlement to it; a woman also does not need permission to dispose of her property or to acquire property.
The bridal gifts given at the time of marriage are also the wife’s property, these can be added to but not subtracted by the husband. It is also recommended that husbands make wills to provide for their wives.
A husband and wife, who were both Government servants, had challenged an office memorandum of the Government which did not treat husband and wife alike. The Federal Shariat Court comprehensively attended to the question of discrimination and the status of a married woman in Islam and after referring to a number of verses of the Holy Qur’an held:
“These Verses clearly confirm the right of earning, owning and possessing by male and female – all in the like manner – and emphasizes again and again that no one can be deprived of his/her due share for any reason. Both are equally entitled to their own individual shares on the basis of their services, duties and functions performed by each one. Each one is at par with the other in this respect, without any discrimination. The rights of each one accrued thus in no manner could be infringed, curtailed or diminished.”
The Federal Shariat Court held that,
“one of the principles which is the hallmark of Islamic injunctions is the principle of equality before law and equal protection of law for all people, irrespective of their gender, colour or creed”34.
Elaborating further the Court observed that,
“This fraternity and equality is all pervading and is not only a matter of form but is indeed a matter of substance. It emphasizes equality before law and equal protection of law. In this respect, Sharia does not make any distinction between the citizens of an Islamic State. Here we find no concept of discrimination in the administration of justice between one person and another on any basis. In social and legal perspectives, no human being can be denied or deprived of any fundamental right, nor any juridical right can be reserved for any particular group on the external consideration of his wealth, status, caste or colour or any other ground. It clearly shows that equality before law and equal protection of law is the cardinal principle which runs like a golden chord in all Injunctions of Islam.”
A chasm existed between a woman’s position in Islam to that which prevailed till a century ago in Europe and America where upon marriage a wife stood deprived of her property, which became that of her husband to do with it as he pleased.
However, in the Muslim world the situation was altogether different and this has been the position since over fourteen hundred years. Prophet Muhammad (peace be upon him) was employed by lady Khadijah bint Khuwaylid (may Allah be pleased with her), the first convert to Islam, who spent abundantly from her personal wealth in the cause of Islam; she retained her properties and wealth after her marriage to the Prophet (peace be upon him).
In Islamic societies Muslim ladies not only retained their properties but also their identities after marriage.
The noble lady Ayesha (may Allah be pleased with her) on becoming a widow on the death of the Prophet (peace be upon him) was not cloistered but became one the greatest narrators of hadith and between three to four thousand recorded in the six main hadith collections cite her as their source; she was also a teacher, a great scholar and made her presence felt on the battlefield.
British rule and Colonization of the subcontinent disrupted Muslim society’s links with the past but without completely severing ties with shariah.
To restore the privileges and status of women in Islam a number of laws were enacted, including the Dissolution of Muslim Marriages Act, 1939.
The importance of a Muslim married woman’s right to property can be gauged from the fact that, if her husband, “disposes of her property or prevents her from exercising her legal rights over it”, she could obtain dissolution of her marriage because it constituted “cruelty”.
The Fundamental Rights in the Constitution include the “right to acquire, hold and dispose of property” and “no person shall be compulsorily deprived of his property save in accordance with law”; these provisions 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 has any right over it.

Inheritance in Hanafi School of Thought

Under the Hanafi Law of inheritance, heirs can be divided into seven classes, three principal and four subsidiary classes.
The three principal classes are
● Sharers or Qur’anic heirs who are those heirs who have been named in the Holy Qur’an and have been assigned specific shares viz., husband, wife, father, true grandfather h.h.s., mother, true grandmother h.h.s., daughter, son’s daughter, his full sister, consanguine sister, uterine brother, and uterine sister,
● Residuaries or agnatic heirs who are all those persons for whom there are no specified shares and who take the residue after sharers have been satisfied or they take the whole estate if there is no sharer, and
● Distant Kindred or uterine heirs who are entitled to succeed only when there is no sharer or residuary.
The four subsidiary classes of heirs are
● successor by contract,
● acknowledged kinsman,
● universal legatee and
● the State.
According to Hanafi Law, in the first instance the property of the deceased goes to sharers, and if the estate is not exhausted by sharers, it goes to residuaries and if there is no sharer and/or residuary, the property is distributed amongst the distant kindred. It is to be noted that heirs nearer in degree excluded the more remote.
When there are Quranic heir or sharers and a residue of estate is left after allotting them their shares, or when there are no Quranic heir or sharers, then whatever is left in the former case, and the entire estate in the latter case, goes to the Agnatic heir or residuries.”
The Agnatic heirs may be classified into
(i) Agnatic Descendants,
(ii) Agnatic Ascendant and
(iii) Agnatic Collaterals (Father’s Agnatic descendants).
They may be depicted in tabular form, where full brother is at Serial No.5, as
Collateral Descendants of the father.

Full brother
(a) When there co-exists a full sister, he takes double portion (b) In absence of the sister, he takes the entire Residue.

Whereas, the consanguine brother is at Serial No.7, and as per rules of succession, the nearer in degree excludes the more remote.

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