Christian marriage : LHC allows use of principles endorsed by English courts

LAHORE: Lahore High Court on Monday declared as illegal and unconstitutional a section in the Christian Divorce Act of 1869 that allowed annulment of marriage of a Christian couple if the husband accused the wife of involvement in adultery.

Allowing the petition of Amin Masih, Justice Syed Mansoor Ali Shah said the Federal Law Revision and Declaration Ordinance of 1981 (enacted by then president General Ziaul Haq to insert the section into the Christian Divorce Act of 1869) was in violation of the Constitution. He also restored Section 7 of the CDA (omitted through the 1981 Ordinance) that allowed application of principles accepted by the courts of England to deal with family and marriage disputes of the Christian community.

In England, the Matrimonial Clauses Act of 1973 had expanded the criteria for annulment of Christian marriages. Besides suspected involvement of a partner in an adulterous relationship, the law had allowed unreasonable behaviour of a partner, desertion by a partner for up to two years and separation (agreed divorce after two years or contested divorce after five years) as legitimate grounds for annulment of marriage.

On Monday, Advocate Hina Jilani, assisting the court as an amicus curie, submitted that Christian women and men had to suffer unpleasant and insulting situations in the presence of the section. She said in most instances Christian women seeking to end their marriages had been left with no choice but to convert to Islam. Assistant Advocate General Anwar Hussain said the provincial government had tried to amend the law but the matter got delayed because no consensus could be reached on the issue.

PTI MPA Shunila Ruth submitted that the federal government had not consulted anyone from the Christian community over the matter. Justice Shah remarked that the lawmakers should not have given greater weight to the difference of opinion on the matter than the basic rights of the citizens. In his written reply on the matter, a former Lahore bishop, Alexander John Malik, had submitted that he was also not consulted by the government.

In his petition, Amin Masih had submitted that he wanted to seek a divorce but the only way he could do so was by raising a false accusation of adultery against his wife.

His counsel had submitted that the existing law was detrimental to the dignity of Christian women.

Published in The Express Tribune, May 24^th, 2016.