FAMILY LAW AND CUSTOM IN PAKISTAN
The Gender Gap between Policy and Practice
The State shall protect the marriage, the family, the mother and child. –Article 35 of the Constitution of Pakistan
To understand the condition of women in a society, it is important to examine their status both within the domain of the family as well as within the larger cultural and sociopolitical context, which structures their opportunities and defines their capacity for action. 2.2
This chapter examines ways in which the rights of women are articulated in law and the manner in which customary practices interact with such legal provisions. A major focus of the chapter is on family law, since familial attachments and networks define many aspects of individual status and rights in much of Pakistan and the interaction between custom and law within the domain of the family essentially defines the de facto set of opportunities available to women as well as the barriers they confront in fulfilling even basic needs such as education and health. An important message of this chapter is that customary practices in Pakistan play a complex and not entirely detrimental role in the lives of women, so understanding these institutions and their interaction with the law is an essential first step to improving the status of women in Pakistan.
In the context of family law, the chapter examines legal rights around marriage and the intergenerational transmission of wealth to women. Even when laws are modified and passed by government, perceptions about these legal arrangements and their enforceability are likely to significantly impact the welfare of women and can tell us much about their options and choices in other spheres. It is also precisely in these areas that customary practices exert tremendous force. Many practices are flagrant violations of state as well as official Islamic law and are clearly detrimental to women’s welfare. However, some cultural practices protect women in an environment where legal protections are either absent or unenforceable. This is well known in many other contexts where traditional institutions “step into the breach” left vacant by absent or unenforceable legal protections. We examine practices that appear to play this role in rural Pakistan. This is not to suggest that such customary practices yield optimal outcomes for women, but that given the lacunae in written laws and enforcement capacity some customary practices may actually enhance women’s welfare.
The chapter is organized as follows. Section I reviews women’s legal entitlements in family property and examines patterns of inheritance in the quantitative data and reviews alternative explanations for the patterns observed. Section II describes important customs in Pakistan’s marital practices, providing an overview of women’s rights in marriage and divorce. Both sections also review relevant developments in family law. Section III presents recommendations regarding legal reform and enforcement of legal provisions that have been suggested by civil society organizations (CSOs) and legal scholars in Pakistan and contextualizes these recommendations in terms of the chapter’s broader themes. 2.4.
The chapter relies on three broad sources of information: for law, publications of Pakistani experts, some of whom have written background papers for this Assessment; new survey data36; and a qualitative study (described in Box 1.3) in five villages in rural Sindh and Punjab.37 The survey includes 36
The data used here are from the second round of the Pakistan Rural Household Survey (PRHS II), 2004. The survey covers 94 villages in Punjab and Sindh (the sample is broadly representative of the provinces) and was designed by Hanan Jacoby and Ghazala Mansuri of the World Bank’s Development Research Group (DECRG). The Pakistan Institute of Development Economics, Islamabad collected the data, collaborating with DECRG. The chapter uses early results from...
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