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الصفحة الأولى > قاعدة بيانات الجنسين والحقوق في الأراضي التابعة لمنظمة الأغذية والزراعة > ملامح قطرية > قائمة البلدان > Customary law
قاعدة بيانات الجنسين والحقوق في الأراضي التابعة لمنظمة الأغذية والزراعة

Pakistan

Customary norms, religious beliefs and social practices that influence gender-differentiated land rights

Traditionally, women have usufructuary rights over land, that is, “the right to the use, and to take the fruits of land for life only.” Furthermore, women, as members of the village community, have grazing rights and the right to collect firewood and fodder on communal lands. Access to water sources for domestic use, drinking and livestock is also a customary right available to women. Such rights have been established through practice over time (14).

However, most women are subject to the restrictions of purdah –seclusion – and have to get permission to leave the house and to physically get to the land (14).

Although usufructory rights are not explicitly regulated by the law, they are recognized in all four provinces, especially the right of residence in fathers’ or husbands’ land for single, widowed, or divorced women, as well as the right to protection during a woman’s lifetime. In this regard, elderly women are ensured protection and security in their son’s home. If the father is dead, the responsibility to protect an unmarried woman devolves upon the brothers (14).

In the North West Frontier Province, usufructuary rights are recognized not only in the natal family but also at the husband’s house. Women can also own land as rawaji malika, when a groom transfers some property to the woman as part of the marriage contract that he either has or is due to inherit. In these cases, men manage and decide about the land but cannot sell it. However, often this is a transaction on paper only (14).

In Punjab, women have customary access right to village common land - shamlat dah - for cultivation and pasture. This land includes uncultivated lands, the inhabited village site, and the goradeh - vacant space - reserved for expansion of the village (14).

In the region of Sindh, women may manage land only through an agent, kamdar, and only on behalf of a very young son, if there is no male member in the family (14). Here, a woman’s dowry is considered to be a compensation for her inheritance. Women’s lack of knowledge is often used to deny their rights by saying that Quran does not give women the right to own land. Women work on the land and look after livestock; in many instances, payment for wage work is received by men (14).

he practice of haq bakhshwana, that is giving up rights, whereby girls are either never married, or married to the Quran, is used in the southern parts of Punjab and of Sindh in order to prevent property going out of the family. Similarly, cousin marriages and watta satta marriages, whereby one set of brother and sister are married to one another, are also used to prevent break up of property (14).

Traditional authorities and customary institutions

- There are a number of customary institutions which are mainly responsible for the reconciliation and arbitration of community disputes. Women have a limited role or no role at all in traditional forums (19).

- Jirga is the tribal assembly of elders which takes decisions by consensus, among the Pashtun but also in other ethnic groups near them. In a jirga, all the tribes are given equal representation through their elders, called maliks, tribal chieftains, and the decisions are always made by a majority vote. Tribes still elect the maliks as their representatives for the National Assembly and senate with a limited right to vote (19).

- Within the agrarian Sindhi society, the landlords and tribal chieftains have the ultimate authority and make decisions on behalf of their followers. Selected heads of the tribes take part in the kachery or Goth Kath, village assembly which are responsible for settling disputes. The decision-making part of the kachery is also known as jirga in Sindh (19).

- In Punjab, representatives from communities take part in the Punchayat, a form of collective decision-making with a mandate of reconciliation (19).

- In Northern Pakistan, the Zaitu system is a community-based management system of local issues (19).

Inheritance/succession de facto practices

In general, women do not inherit land if there is a male offspring and widows lose their right to inheritance if they remarry outside the family of the deceased husband. Where there are no males, some tribes like the Hazaras, provide for women’s inheritance though the actual control of the property remains in the hands of the uncles (14).
Often, as soon as a woman’s name has been entered in the transfer papers, a gift is made in favour of the brothers. Therefore, even if women’s names are registered in the property transfer papers, upon succession, the male relatives inherit the land in their stead (14).

In the North West Frontier Province, women do not inherit land in the presence of a male offspring, nor is there a tradition of daughters inheriting immovable property from the father except in some areas, such as Dera Ismail Khan, Mardan and Swabi, where in rare cases, daughters are given a share in moveable and immovable property (14).

In Punjab, women generally may inherit property but they cannot decide anything regarding its usage. Immovable property is very rarely transferred to women except in few more affluent families (14). In some cases, dowry is expected to compensate for landed property which is not given to women. In other cases, daughters may receive a share in property after the mother’s share has been deducted. In general, female control of property is restricted to widows and economic control possible only under specific circumstances, for instance in the presence of minor children or of a disabled household head.

Exceptionally, the practice of benami, transferring property in the names of wife or daughter or even son to avoid taxes is quite established among rich men. In such cases, the person who makes the transfer retains full control over the property and a woman’s chance of controlling property is slim until she actually inherits it. Benami transfers are often used to deprive certain members of the family from inheritance (14).

In Sindh, women do not inherit property. In case of only female offspring, dowry is given to compensate for landed property which is not given to women except in Thar, the remote desert region of Sindh, where some women inherit property (14).

The forfeiture of the inheritance share by women in favour of their brothers or sons, often through force, is a widespread practice. Women fear of putting their family ties at stake, as they generally rely on the parental home and brothers in times of need. A broken relationship with brothers can also lead to ostracisation by the extended family and affect the marriage of children. Divorced women often give up their dower in order to enhance the share of their sons in inheritance (14).

Discrepancies/gaps between statutory and customary laws

- Although the principle of equality is enshrined in Article 25 of the Constitution, customary practices, such women’s seclusion under purdah, foster male domination both within the family and within society (9). 

- Although the Article 23 of the Constitution gives women the legal right to own and dispose of property; however, according to customary practices, women have only usufructuary rights over land. Even when women do own property, it is the husband who manages it (8).

- Although the 1962 West Pakistan Muslim Personal Law Shariat Application Act entitles Muslim women to inherit all property, including agricultural property, under customary law, most women do not inherit property. Social pressures from the family and fear of isolation may lead women to forfeit their share (14). When they do inherit, women often receive far less than their legal inheritance entitlement (15).

- Although the 1939 Dissolution of Muslim Marriage Act guarantees women with the right to divorce, the Act also requires an intervention on the part of the court. As a result, in practice, it is difficult for women to access the right to dissolve the marriage (8). Moreover, upon divorce, husbands rarely provide their former wives with the necessary documentation certifying the actual dissolution of marriage, hampering women from being able to remarry without being accused of adultery (8).


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