OVER a month ago, the Supreme Court passed an order on a petition filed by Justice Qazi Faez Isa challenging an inquiry against him motivated by his failure to disclose properties owned by his wife and adult children in his income tax returns and wealth statements.

One of the grounds put forth in the petition to challenge the inquiry is worthy of attention for the light it sheds on patriarchal and outmoded notions of family relations that unfortunately continue to undermine the independent status of women in our legal system. Justice Isa should only be expected to account for his wife’s assets if it is assumed that she has no autonomy and is very unlikely to have acquired wealth independently. The allegation against Justice Isa is premised entirely on this assumption rooted in stereotypes about the dependency of women on male ‘heads of households’ and their inability to exercise free agency.

That ascribing any degree of credibility to the allegation against Justice Isa requires prescribing to sexist ideas was even acknowledged by some Supreme Court judges during a hearing when they asked the counsel for the government how the allegation could be reconciled with women’s independent status under our laws. The government’s counsel responded by asserting that the complete dependence of women is recognised across religions, even referring to the practice of sati as an example.

Unfortunately, an outmoded legal concept commonly used in Pakistan contributes to the perpetuation of these sexist assumptions. ‘Benami’, a legal convention with roots in the colonial era is often deployed to challenge women’s ownership of property. A person can be deemed a ‘benami’ (as opposed to ‘real’) owner of property to which she has legal title if she did not finance the purchase of the asset and it was never intended for her benefit. The recognition of benami ownership is the result of the common practice of giving legal title to someone else on the understanding that the beneficial interest in the asset will go to the person who used his own financial means to purchase the asset. The purpose behind this practice is often to shield oneself from tax consequences or to hide ‘ill-gotten’ wealth.

Women are placed in the unjust position of having to defend their legal title against spurious allegations.

While the media is more likely to report on benami transactions in the context of high-profile political cases (the benami bank account allegations against former president Asif Ali Zardari, for example) the overlooked consequence of the benami principle is its common use to challenge ownership of property by women. So-called benami suits are often filed in relation to disputes at the time of marital separation, divorce or inheritance denying women their right to property on the basis that they are not ‘real’ owners.

Men may also be considered benami owners; however, given the patriarchal notions of women’s dependency on men, courts are more likely to entertain benami suits against women and even pass temporary stay orders preventing women from claiming possession of their property. Although the burden of proof required to declare that the legal title holder is not the real owner of property is high, the resolution of these cases can take several years in our notoriously slow judicial system. The consequence of this is that women are placed in the unjust position of having to defend their legal title against spurious allegations.

Just one example is a 2010 judgement of the Supreme Court in the case Ghulam Murtaza vs Asia Bibi, where the court rejected the appellant’s claim that his former wife was a benami co-owner of the property to which she had legal title as there was no evidence that at the time of the asset’s purchase the wife was meant to be merely a benami rather than a real owner. The decision, while fair and reasonable, was reached after almost 17 years of litigation during which a trial court declared that the wife was a benami owner and had no legal rights to the property.

By creating a distinction between real and benami ownership, courts are effectively giving cover to those planting their assets in somebody else’s name to escape tax consequences or hide ill-gotten wealth while at the same time enabling frivolous litigation challenging valid property ownership. In recognition of this, a law was passed in 2017 prohibiting benami transactions. Assets in the name of spouse and children are specifically excluded from the definition of ‘benami’, which means that they must be deemed to be owned by the person who has the legal title. In other words, the law entails that a person can no longer claim to be the ‘real’ owner of property owned by his spouse or adult children.

In spite of the passage of the law, however, the presumption that women and children are not real owners of property persists. Suits remain pending in our courts whereby women are denied their right to occupy and enjoy property to which they have legal title. Although there was no direct allegation in the references against Justice Isa that his wife is a benami owner, the continuation of the inquiry against his wife reflects an assumption that she is no more than an extension of her husband. Even while quashing the reference against Justice Isa, the Supreme Court directed the Federal Board of Revenue to investigate Justice Isa’s wife’s and adult children’s income tax filings and submit a report to the Supreme Judicial Council.

An archaic legal concept combined with stereotypical notions of gender not only creates a great deal of unnecessary confusion, but also destabilises women’s property rights while reinforcing outdated ideas about female dependency. Such anachronistic concepts have no place in a legal system that recognises the independent agency of women and equality between the sexes.

The writer is a lawyer.

Published in Dawn, August 16th, 2020