ISLAMABAD: The Supreme Court has declared that a husband has no “right” over his wife’s property without her consent.
“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,” states a judgment authored by Justice Qazi Faez Isa on a petition of a mother-in-law whose husband guaranteed their daughter-in-law one kanal land with a fully constructed house in dowry.
The apex court’s division bench, headed by Justice Isa, also noted that a husband cannot ‘guarantee’ or encumber his wife’s property without her permission.
The court noted that 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 judgment narrated the position of married women in west and Islam.
Firstly, the court says that 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”.
It also noted that the situation in the United States of America of married women was no better; they had no legal existence apart from their husbands.
Even 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, read the judgment.
The court further stated that professions were also barred to women. Even 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.
On the other hand, Justice Isa stated that 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 Quran also prohibits taking another’s property – “Do not eat up (or consume) one another’s property”.
“Women’s share in inheritance is 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,” read the judgment, referring to the property rights of married women in Islam.
The court also notes that 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 1,400 years.
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“Prophet Muhammad Mustafa (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 (PBUH).
In Islamic societies, Muslim ladies not only retained their properties but also their identities after marriage. The noble lady Ayesha, on becoming a widow on the death of the Prophet (PBUH), 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,” read the ruling.
The court noted that the British rule and colonisation of the subcontinent disrupted Muslim society’s links with the past but without completely severing ties with Shariah.
Mehreen and Mansoor were married on May 15, 1995. Sixteen years after their marriage, on June 30, 2011, Mehreen filed a suit claiming a house, measuring 1 kanal or its prevailing market value of Rs33 million, which she said constituted part of her dowry (mehr) and as mentioned in Clause 16 of the Nikahnama.
The suit was filed in Family Court-II, Peshawar. Mehreen arrayed Haji Muhammad Ishaq Jan and Khurshida Ishaq, respectively her father-in-law and mother-in-law, as the only defendants in the suit. The suit was decreed by the learned family judge on May 3, 2014.
Both the father-in-law and the mother-in-law filed separate appeals but both were dismissed; vide consolidated judgment dated February 15, 2017 of the learned Additional District Judge-X, Peshawar.
Thereafter, they filed two separate writ petitions before the Peshawar High Court but these too were dismissed. Later, a petition was filed by the mother-in-law through renowned lawyer Sardar Muhammad Aslam in the apex court.
The court noted that Khurshida was not a signatory to the Nikahnama nor had she, at any stage, agreed to transfer the property to Mehreen.
“Khurshida’s husband could not have made a commitment on her behalf with regard to the property.
Mehreen also did not array her husband as a party to the suit even though he was a necessary party thereto. Mehreen undoubtedly had a valid claim against her husband with regard to the dower promised by him at the time of marriage, as mentioned in the Nikahnama, and could claim the value of the property from him; however, she elected not to do so but instead lay claim to the property. Be that as it may, Mehreen could still claim from her husband any part of her dower which remains unpaid,” read the judgment.
It is also stated that Khurshida acquired land in the year 1964 on which subsequently a house was constructed.
As regards, the reason that Khurshida’s husband was a guarantor of the property it has no legal basis since a husband has no right to his wife’s property nor can he “guarantee” or encumber it without her permission.