In a significant judgement, the Madras High Court has asserted that a wife who has contributed towards acquiring family assets by performing household chores, and taking care of the household and children is entitled to an equal share in the properties.
Justice Krishnan Ramasamy, in recognising the wife’s non-financial contributions towards the household, observed: “In generality of marriages, the wife bears and rears children and minds the home. She thereby frees her husband for his economic activities.
Since it is her performance of her function which enables the husband to perform his, she is in justice, entitled to a share in its fruits.“ It stressed that there was no legislation currently in place that recognised such contribution and added that the court had the discretion to recognise the same.
While the progressive jurisprudence emerging from the courts’ ruling has paved the way for women’s property and ownership rights in India, it is equally significant for women in Pakistan, who are repeatedly denied their right to property and ownership, notwithstanding the constitutional, statutory and judicial protections in place.
Article 23 of the Constitution explicitly provides for the “right to acquire, hold, and dispose of property” guaranteeing the right to property and equality of citizens as fundamental rights.
As part of its international obligations, Pakistan is bound by the Convention on the Elimination of All Forms of Discrimination Against Women, which pursuant to Article 15, mandates all parties to secure women’s right to property.
According to the Global Gender Gap Index of 2022 published by the World Economic Forum, Pakistan ranks 145 out of the 146 countries — the second worst position globally.
The perception of women’s place in society and the prevailing social structures that perpetuate patriarchal norms, ie, unequal relationships prevent them from obtaining any share of matrimonial assets at the time of divorce, contributing further to their economic vulnerability and greater dependence on their male counterparts.
At the same time, what is often overlooked is the state’s failure to enforce women’s legal rights to property and in particular, women’s right to inheritance. This is reflected in the Ghulam Qasim vs Razia Begum case where the Supreme Court of Pakistan recognised the infirmities in the enforcement of women’s right to inheritance despite constitutional provisions specifically protecting property rights and mandating the making of “special provisions for the protection of women and children”.
Subsequently, the Enforcement of Women’s Property Rights Act, 2020, was enacted to protect and secure the rights of ownership and possession of property owned by women, providing them with a separate forum for redressal of their grievances.
The said act provides a mechanism to agitate complaints before an ombudsperson provided no proceedings in a court of law are pending regarding that property.
The “pure-separate” property regime is followed in Pakistan whereby the husband and wife own property independently. In the absence of any legal framework that recognises the concept of “joint matrimonial property”, any property or asset acquired during the course of a marriage is treated as belonging to the individual in whose name the title has been registered.
No piece of legislation provides for any rights or interest of a spouse, whether a husband or wife, over such property, regardless of their financial or non-financial contributions.
The concept of “joint matrimonial property” has been recognised by several Muslim countries including Turkiye and Malaysia as well as other states such as Singapore. For instance, Section 52 of the Administration of Muslim Law Act in Singapore mandates the court to order any matrimonial assets to be divided between the parties or any such asset to be sold and the proceeds of any such sale to be divided between the parties.
Countries such as Turkiye have implemented matrimonial regimes in compliance with their constitutionally guaranteed fundamental rights, and other international human rights principles and existing obligations. The legal framework in Brunei explicitly recognises the contribution of unpaid care work of women in supporting their spouses to accumulate and/ or maintain matrimonial property and assets.
The Madras court’s judgement is a ray of hope in the darkness of the patriarchal culture that prevails globally; it is even more significant in the context of the fragile economic status of the women of Pakistan.
At a time when Pakistan envisages equality for all, it needs to ensure that the right of women to “joint matrimonial property” is guaranteed in legislation and practice. This is not only an international obligation, it is also a constitutional duty.
The writer is a lawyer from Sargodha and currently based in Lahore.
This article was first published on Dawn.com.