he question of the inheritance rights of Muslim women has been at the intersection of religious sources, the law and a patriarchal tradition. The fiqh rulings on women’s share in inheritance have been unevenly enforced in Pakistan. Too often, customary practices, social exertion and procedural barriers deny women the right to succeed to property.

Some recent provisions on legal interpretation have raised fresh intellectual and normative controversies. Notably these include the Supreme Court of Pakistan’s ruling of September 23, 2021, which holds that a woman must publicly assert her right to inheritance during her lifetime and that her heirs cannot claim it after her death. A three-judge bench of the apex court — led by Umar Ata Bandial — had heard the leave to appeal against the Peshawar High Court’s judgment wherein it had dismissed the plea filed by the children of two deceased women, claiming their inheritance.

The ruling poses significant questions with regard to gender equality, both regarding legal coherence and the interaction of Islamic legal principles with the constitutional obligations.

According to this ruling of the Supreme Court, a claim to inheritance by a female will lapse on her passing.

According to Islamic jurisprudence, the right to inheritance passes automatically on the death of a propositus to the heirs. The effect of a vested property right that becomes, in effect, a contingent personal claim before the court is to limit its validity to a woman’s lifetime and to jeopardise its transferability. This premise leads to theological problems because it arbitrarily restricts women’s right to inheritance.

This violates the constitutional provision for equal treatment by introducing a gender skewing. The heirs of a woman are thus barred from asserting her (and their) rights whereas the heirs of a male counterpart can still do so. This ruling introduces a clear disparity between sexes on the pretext of clarifying procedural requirements. This imbalance runs counter to both the constitutional provisions on equality and the Islamic jurisprudence.

If the right to inheritance is treated as non-transferable and personal, the interpretation will undermine the law of succession, which is the passing of property from one generation to the next. The right to inheritance is a right to a property interest, both in Islamic law and statutory law. Once vested, it becomes part of the estate of the heir. The discriminatory exclusion of transmission on a female heir’s side lacks a legal foundation. It is rather a sign of gender bias. The court’s argument is unreasonable.

This imbalance runs counter to both the constitutional provisions on equality and the Islamic jurisprudence, which, in the case of the right to inherit, constitutes a constituent part of a person’s property, regardless of gender.

The judgment has to be seen in the light of the socio-legal context. Women are already grossly disadvantaged in the pursuit of their inheritance rights. Empirical evidence shows that women frequently lose their property rights because of family pressure and lack of awareness. Litigation is typically costly and time-consuming. This, too, deters many women from suing their oppressive male relatives, sometimes throughout their lifetimes. The judgment is a crushing blow to those who cannot break down these structural barriers. The apparent attempt at procedural reform is no solution as it disregards the reality of women’s lives in a patriarchal society. It is bound to lead to an increase in the level of inequality.

The ruling raises the question of all laws aligning with the ideals of non-discrimination and equality. The courts must pay attention to the impact of such interpretations. A gender-sensitive approach would require the court to apply laws in a manner that they empower women to assert their rights to property rather than hinder them. This could involve an appreciation of the infectious nature of claims of inheritance and the barriers posed by minimisation procedures that hamper women’s participation in asserting their rights.

Women’s right to receive inherited property is frequently compromised informally. They are often coerced into either give it away as a gift to male relatives or by verbal renunciation. The fact that the court refused to grant posthumous claims implicitly condones the injustice, since it denies a useful tool for achieving it. The children of the women deprived of their legal rights now lack a remedy. The evil of the past will thus be propagated through the next generation. The judgment cannot be reconciled with the Islamic precepts of justice or the current law.

To conclude, the Supreme Court ruling that a woman must claim her inheritance in her lifetime does not align with the ideas of Islamic law and the law of property in general. The gendered connotations render it vulnerable to discrimination and oppression. The decision limits the portability of women’s inheritance rights and worsens the situation of the already existing imbalance in Pakistan.

Mazhar Abbas, author of The Aftermath of the Bangladesh Liberation War of 1971: Enduring Impact (Routledge, 2024), has a PhD in history from Shanghai University. He is a lecturer at GCU, Faisalabad, and a research fellow at PIDE, Islamabad. He can be contacted at [email protected]. His X-handle is @MazharGondal87.