Bridal gift remains wife’s property: SC

Says Islam gave unprecedented legal rights to fair sex

The Supreme Court has reiterated that the bridal gifts given at the time of marriage are the wife’s property, and remains hers. These gifts can be added to but not taken away, according to the Sharia law.

"Radical awakening was brought about by the Holy Quran and hitherto before unfamiliar women’s rights were established for the first time in the [Muslim] scripture,” said a 12-page judgment authored by Justice Qazi Faez Isa after hearing a property matter.

“[The Sharia highlights] a woman’s right to own and dispose of her property; her right to retain – both before and after her marriage – her income and property; her ability to do business without permission of her father or husband and keep and spend what she earns," it stated.

It said men shall have the benefit of what they earn and women shall have the benefit of what they earn. Her entitlement to inherit from her parents and husband, the verdict said, is also precisely ordained in the fourth chapter – Surah Al-Nisa – of the Holy Quran.

“A woman also does not need permission to acquire or dispose of property; what she inherits is hers and hers alone; neither her husband, father, brother or son has any entitlement to it: [The Quran says] ‘Do not eat up (consume) one another’s property’," said the judgment.

The court also recommended that husbands make wills to provide for their wives. The Holy Quran has mentioned in great detail the woman’s right to enter into contracts and to witness contracts.

The verdict noted with concern that in the Islamic Republic of Pakistan, the injunctions of the Quran are at times relegated in favour of retrogressive practices.

The court said it has already noted that a chasm existed between a woman’s status in Islam to what prevailed in Europe and America eve less than a century ago. In the West, it said, a woman stood deprived upon marriage of her property, which became that of her husband.

The court reproduced a few paragraphs of its one-year old judgment, highlighting the deplorable state of women rights in Europe and American even less than a century ago. It said in the west, 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. “

The verdict said 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.

“[The Supreme Court of Illinois said: ‘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, ‘[T]he 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 passes out of legal existence’.

The verdict said 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.

It said professions were also barred to women. 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 US Supreme Court held that denying Bradwell the right to practice law violated no provision of the federal Constitution.

“The US court said: ‘God designed the sexes to occupy different spheres of action, and that it belongs to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth’. "