Sindh Hindu Marriage Act — relief or restraint?

On June 19, 2014, a Supreme Court’s special bench headed by then chief justice Tassaduq Jillani gave a landmark judgment, directing the federal and provincial governments to safeguard the constitutional and legal rights of the country’s religious minorities. Responding to this ruling and also to the decades-old demand of the Hindu community, two different laws with a similar name were enacted — the Sindh Hindu Marriage Act of 2016 enforceable in Sindh province and the Hindu Marriage Act of 2017, which extends to the Islamabad Capital Territory, Balochistan, Khyber-Pakhtunkhwa and Punjab provinces.

After the 18^th amendment, all laws related to religious minorities became the responsibility of the provinces until the provinces themselves choose to relegate those powers to the federal authorities under Article 144 of the Constitution. Hindus constitute 1.6 per cent of the country’s population and a majority of them live in the province of Sindh. Unlike other three provinces, Sindh exercised its power to legislate for its substantial Hindu population and decided not to refer to the federal government for a uniform Hindu marriage act.

Perhaps the ruling party in the province, PPP, views the Hindu community as its political constituency and is unprepared to allow the PML-N government at the centre to take credit for legislation on Sindh’s Hindu minority as that would jeopardise its vote bank in the province. This is understandable in the wake of the PPP’s dwindling popularity which has confined it to just one province in the country.

The law passed by the Sindh Assembly for the Hindu community was technically the first legislative initiative in the parliamentary history of Pakistan. Nevertheless, paradoxical to its title, the Sindh Hindu Marriage Act of 2016 is mere a registration act. The Sindh Assembly passed this law in a hurry to principally restrict the federal law, if enacted that time, was to be implemented in Sindh as well in the absence of the provincial law of Sindh until Sindh Assembly passed a resolution to abandon it. The act indeed provides some relief to the Hindu community, especially in establishing marital relationships, acquiring of official documents such as CNICs, passports and also succession certificates. However, the Sindh Hindu Marriage Act of 2016 is incomplete, somewhat faulty and cannot fulfill the marriage and post-marriage arrangements.

Article 25 of 1973 Constitution stipulates ‘all citizens are equal before [the] law and are entitled to equal protection of [the] law’. Further, Article 35 provides constitutional guarantees for the ‘protection of the marriage, family, woman and the child’. Though the federally enacted law ensures these constitutional rights of Hindu citizens of Pakistan but Sindh Hindu Marriage Act of 2016 failed to promise these rights. According to section 10 of the act, the government had to constitute the rules within three months of commencement of the act; however, even after more than a year, the rules have not been framed yet.

In fact, the current Sindh Hindu Marriage Act of 2016 deals only with the registration of Hindu marriages. The act also provides Hindu citizens the criteria to marry and register their marriages but unfortunately it does not satisfy the other post-marriage rights of Hindu people living in Sindh. For instance, the law does not cover the right to protect the dignity of one’s family, the right to dissolve marriages, the right to fight against cruelty, and the right of the financial security of woman and children. It further means, the act does not provide for the restitution of conjugal rights, judicial separation, and termination of marriage, marriage termination by mutual consent, alternative relief during termination procedure, and procedure of remarriages for couples and widows, and legitimacy and acknowledgment of children born out of void and voidable Hindu marriages.

For instance, though the federal law also provides for ‘termination of marriage’ rather than the word ‘divorce’; however, it provides some respite to suffering Hindu citizens if they wish to dissolve their marriage and to remarry again. In Sindh law, there is no such provision available if the married couples are unable to live with each other due to various problems. Nonetheless, it happens in some cases that a husband leaves his wife without fulfilling his marital duties, especially the maintenance of wife and bearing of child expenses. This also creates hindrance in the way of re-marrying, as in the absence of divorce certificates, remarrying is a legal issue.

Additionally, there are also some technical errors in the Sindh Hindu Marriage Act. The certificate of marriage annexed as Schedule A of ‘The Sindh Hindu Marriage Act of 2016’ provide the “Matrimonial Status” as Single, Married, Divorced and Widower. Nonetheless, the section 4 (e) of this act prohibits the marriage if either party in the marriage have a spouse living at the time of marriage. In this case, there is no point to mention ‘married’ in the said column. Secondly, in Sindh there is no law for a male or female to get a divorce or a verdict of divorce, so the question remains unattended how a divorced person may register his or her second marriage.

Furthermore, the section 7 (4) of act stipulates that: All the entries in the Marriage Register shall bear the official stamp of the officer concerned and shall be signed by (i) the person solemnising the marriage. Whereas the section 11 of this act maintains the status of act as having retrospective effect, which means all Hindu marriages solemnised before commencement of this act should also be registered according to same procedure provided in Section 7. However, the law does not provide the alternative in cases where the persons solemnising the marriages (for instance, Pandit, Mahraj), is no more alive.

Last but not least, since Hindu citizens live across Pakistan in all four provinces, Hindu couples are likely to marry at the inter-provincial level as well. If this happens then under which law should the marriage be registered and in case of post-marriage arrangements, which law would be referred in the courts. On the one hand, the federal government, along with the three provinces, is in the process of framing rules of business to implement the law. It is sad then by Sindh still has an incomplete law. Despite the existence of two marriage laws, there is no respite especially for women folk in the community.

Published in The Express Tribune, June 8^th, 2017.

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