Time to deliver on minority rights

If the state has to deliver on the issue of minority rights, it must pay more attention to their personal laws

Shahid Jatoi September 13, 2017
The writer works for governance and rule of law with a national organisation

If the state has to deliver on the issue of minority rights, it must start paying more attention to their personal laws for marriage and post-marriage arrangements. Christians who constitute approximately 1.6 per cent of the population suffer because of discriminate and somewhat obsolete marriage and divorce laws. For far too long the state has ignored its citizens’ demand for dignified solemnising of marriages and various other post-marriage rights and responsibilities. The family laws of Christians are administered by four colonial-era acts such as the Christian Marriage Act of 1872, Divorce Act of 1869, Succession Act of 1925 and Births, Deaths and Marriages Registration Act of 1886.

Throughout history, however, the issue of solemnising marriages has been the exclusive domain of religious leaders and clergymen. However, the modern state is believed to have intensified its role in regulating marital relations mainly based on issues concerning succession of monarchs that later expanded it to matters of succession of legal heirs of all citizens. With this historical development, the dominant role of clergy has been reduced to performing religious rituals of marriages.

Successive governments in Pakistan amended laws enacted by colonial predecessors to meet the current governance needs of its citizens. These amended laws also included the marriage laws regulating marital relations. In this background, Muslim Personal Laws were widely reviewed in 1961 and changes were brought to The Muslim Family Law Ordinance, 1961 and The West Pakistan Family Courts Act of 1964, however only limited progress was made to update or provide for marriage laws relating to religious minorities. The Christian Personal Laws also met the same fate. In 1949, the Indian Divorce Act of 1869 was enforced in Pakistan for Christians after omitting the word ‘Indian’ by an amendment and the law stood as the Divorce Act of 1869 (Act IV of 1869).

This law regulating the divorce of Christian couples was primarily based on the theological position and interpretation of the Church that divorce is not permissible in Christianity except on the ground of adultery or only in case either spouse changes his or her religion. Several amendments were made during Zulfikar Ali Bhutto’s government through the Divorce (Amendment) Act of 1975 (4 of 1976), which got rid of several derogatory terms like “native” Christians. Similarly, the role of the high court as was the case before, was done away with. The jurisdiction to adjudicate issues relating to divorce and matrimonial issues was originally vested in district courts and the high courts. The Amendment Act omitted the former section 17 and conferred exclusive jurisdiction over the matters of this Act to the Civil Courts. The Divorce Act of 1869 also states the Code of Civil Procedure, 1908 to apply on proceedings mentioned in the Act.

In a similar amendment, the deletion of sections 16, 17, 17A and 20 from the act led to consequent amendments to sections 18 and 19 as well as section 57 to make a clear provision for either party to the marriage to marry again after a decree for dissolution or nullity of their marriage has been passed and time for appeal has expired or an appeal being presented has been dismissed.

However, the matter related with divorce grounds remained unattended. In Pakistan the situation was further worsened during 1981, when the then president, General Ziaul Haq, removed section 7 from the Divorce Act of 1869 through an ordinance called the federal laws (Revision & Declaration) ordinance 1981. This section provides Christian couples the right of divorce under the UK Matrimonial Causes Act of 1973. Currently, under the act, Christian marriage can be dissolved absolutely by divorce (Divortium Perfectum). It can also be dissolved by seeking decree of annulment of marriage that has consequence of marriage being void ab initio. The divorce law also provides for judicial separation which is not absolute divorce. Married couples are parted under it nonetheless the bond of marriage remains intact and the separated spouses cannot remarry.

Nevertheless, the existing grounds for seeking divorce provides unequal grounds of divorce to a husband and wife. For that reason, a husband can pursue divorce by accusing his wife of adultery and then also prove it. The wife can also seek divorce through a petition on the grounds of change of religion by her husband or if the husband has contracted another marriage under some other law. She can also supplicate for divorce on the grounds of adultery by her husband coupled with incest, or bigamy, or marriage with another woman, or of rape, sodomy or bestiality, or of cruelty, or of desertion. It is important to note that a wife cannot petition for divorce on the ground of her husband’s adultery alone. She cannot make a plea for divorce on the ground of cruel behaviour of her husband.

The other forms of dissolution, meaning nullity of marriage or divortium imperfectum, stipulate invalidating the marriage on grounds of impotency, prohibited decree relationship, lunacy and idiocy, existence of former marriage and vitiated consent. The decree of dissolution is in fact based on the declaration by a court that a marriage was void ab initio. Legally, the parties in wedlock are entitled to remarry when a marriage is annulled by a district judge.

Additionally, the spouses may look for judicial separation on the grounds of adultery, cruelty and desertion. This judicial separation shall have the effect of the ecclesiastical divorce and can be reversed. The spouses are not allowed to remarry any other individual.

In order to get separation, the parties in wedlock usually level false accusations of adultery to assert divorce and that too is often succeeded to get decree ex-parte. In 2015, a writ petition was filed by Amin Masih before the Lahore High Court wherein the he challenged the law of divorce for being “offensive and insulting” to women and requested the court to provide him and his wife a dignified way of separation without levelling adultery charges and change in religion. After due deliberation and seeking legal and citizens’ views, the LHC decided in the petitioner’s favour and restored section 7 of the Divorce Act of 1869 providing relief to Christian married couples to part ways, if they desire by invoking the UK Matrimonial Causes Act of 1973.

Many other marriage and post-marriage arrangements still need to be considered by the state through amendments to existing laws. The Christian Marriage Act permits marriages where either of the parties is minor (a person who has not attained the age of 21 years) with the consent of a father, mother or guardian. However, in case of marriage of a native Christian, the age at marriage was fixed to exceed 13 years for females and exceeding 16 years for males with the consent of a guardian. If the parties are getting married without the consent of a guardian, they must have attained 18 years of age. On the other hand, the Child Marriage Restraint Act of 1929 applicable in Punjab and The Child Marriage Restraint Act of 2013 applicable in Sindh set the minimum age of marriage for females and males at 16 and 18 years, respectively.

Another important issue is the absence of appropriate measures to register marriages of Christians. At the moment, due to the order of Supreme Court, the union councils are under duty of registering marriages, but there are still issues being observed in registrations. There should be some mechanism for registration on the part of a state department with clear rules. Likewise, the churches should also be bound to deposit marriage registers and marriage records in relevant union councils by bringing a legislative amendment.

On the occasion of International Women Day on March 8, 2017, the Punjab government took the initiative to include amending Christian Personal Laws into women empowerment package for the year 2017. In this background, the government mandated the Strategic Reforms Unit, the Punjab Human Rights and Minorities Affairs Department and the Women’s Development Department to consult stakeholders and make all-inclusive amendments to the centuries-old personal laws enacted by the British. However, there seems no significant development in this regard. A similar exercise is going on at the centre where the human rights ministry is holding a consultative process with community members, clergy and rights organisations to propose amendments to the said acts.

Published in The Express Tribune, September 13th, 2017.

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