Minority marriages

The laws regulating minority marriages in Pakistan are inadequate, outdated and discriminatory. Last year, Ameen Masih approached the Lahore High Court (LHC) to challenge the repeal of Section 7 of the Christian Divorce Act of 1869, which thereby limited the provision of divorce to restrictive and unreasonable grounds. The LHC’s seminal decision in the case may have restored a degree of rationality and fairness to the law.

The Divorce Act of 1869 is a remnant of our colonial legal history and stands largely in its original enacted form. Pursuant to Section 10 of the Act, a Christian man may only seek dissolution of marriage through divorce upon proof of adultery committed by his wife. A Christian woman’s ability to obtain divorce is arguably more restricted. She must prove: bigamy with adultery; adultery with desertion; adultery with cruelty; or religious conversion coupled with marriage to another woman. Without proof to such effect, our law can forever bind a Christian couple to an unhappy union. Ameen Masih was aggrieved of this very absurdity in the law. The LHC’s decision to revive Section 7 of the Divorce Act of 1869, repealed through an ordinance in 1981, is significant. The erstwhile Section 7 permitted courts exercising jurisdiction under the 1989 Act to treat English law as precedent and provide relief in accordance with rules and principles adopted by the Court for Divorce and Matrimonial Causes in England. English law has moved on from its initial legalisation of divorce in 1857. The ultimate criterion for the grant of a divorce decree under the English Matrimonial Causes Act of 1973 is the “irretrievable breakdown of the marriage” demonstrable upon proof of adultery, desertion, consensual and non-consensual separation for a certain period of time or such unreasonable behaviour on part of a spouse that the parties cannot be expected to live together. According to commentators, “unreasonable behaviour” may include instances of violence, refusal to provide maintenance, drug abuse, religious differences and even frivolous spending. The revival of Section 7, and the possible adoption of English legal principles by our courts, may ease the predicament of many Christian couples who are currently compelled to resort to false accusations of adultery or religious conversion in order to opt out of a bad or unhappy marriage.

Promise of progressive judicial interpretation of the revived provision does not, however, absolve the state of its responsibility to amend the 1989 Act. The grounds of divorce laid out in the Act are archaic, discriminate against women and violate an individual’s dignity and his/her legally recognised right to marry. In 2001, the Indian legislature amended an identical colonial statute, granting both Christian men and women an undifferentiated and equal right to seek dissolution of marriage on wider grounds. The amended Indian Divorce Act also makes provision for divorce by mutual consent. Past efforts to amend the Divorce Act of 1869 in Pakistan have not borne fruit. In 2012, the National Commission on the Status of Women submitted a draft of the Christian Divorce Amendment Bill to the Ministry of Human Rights for presentation before the National Assembly. The LHC last year told the Punjab law ministry to make necessary amendments to the Act.

Even where the state has undertaken legislative action on the subject of minority marriages, it has been far from adequate. The Sindh Hindu Marriage Act of 2016 introduced a much-needed scheme of registration of Hindu marriages, but left entirely untouched the issue of divorce. A more holistic bill on the subject, introduced at the federal level, remains pending before the National Assembly. India recognised and granted Hindus, Buddhists, Sikhs and Jains the right to dissolve their marriages as far back as 1955. The Indian Hindu Marriage Act makes provision for divorce by mutual consent, and in the instance of disputed pleas, upon proof of cruelty, desertion, adultery or religious conversion. Pakistan has failed to secure the safety and religious freedoms of its minorities. It has also failed to provide them a rational and just system of law according to which they may regulate their personal lives. The LHC’s decision is a very welcome step in this regard. However, it is imperative that both federal and provincial legislatures execute and keep pace with international legal developments and engage in needed legal reform.

Published in The Express Tribune, June 22^nd, 2016.

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