The marriage and family laws of the Christian community in Pakistan, especially those on divorce, have been under discussion for quite some time. There have been calls to revise divorce laws by certain members of the community and human rights activists while there are others who say these cannot be touched as these are divine injunctions.
Divorce among Christian couples in Pakistan takes place according to the terms of Christian Divorce Act 1869. Under this law, it is almost impossible for the husband to divorce his wife without leveling allegation of adultery against her as they cannot opt for separation like in the case of a civil marriage. Furthermore, in such a case, the adulterer has to be a co-respondent and expected to appear in the court with the woman accused of adultery. Another option for them is to change their religion and get out of the ambit of this law.
The law was not like this until the removal of its Section 7 through a personal decree by none other than President Gen Zia-ul-Haq in 1981. This section would authorise the Court to act on principles of English Divorce Court in conformity with “the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief.” This means that if this section had not been removed, the divorce laws in practice in England would have been applicable on the Christians living in Pakistan.
Right now, the situation is that a writ petition filed by a Christian man Amin Masih is being heard by the Chief Justice Syed Mansoor Ali Shah of the Lahore High Court (LHC). In the petition, Masih has prayed that the omission/repeal/amendment of Section 7 of Divorce Act 1869 through Federal Laws (Revision & Declaration), Ordinance 1981 be declared unconstitutional and ultravires. The petitioner wants to divorce his wife but does not want to level a false allegation of adultery against her for this purpose. He says his wife is morally sound and he does not want her to live with a stigma for the rest of her life.
During the hearing, the CJ LHC did rule about the restoration of Section 7 but this was met with severe criticism from the Christians belonging to different sects for being against Biblical teachings. The CJ LHC even observed that the court was not supposed to interpret the Bible or the Old Testament but to implement the Constitution. At this, comments from the clergymen and the federal and the provincial human rights ministers were also sought by the court, which were duly submitted.
What surprised many was that both the human rights ministers who are Christians by faith declared it was impossible to change something solemnised by the divine word. While decision is awaited, the debate among different stakeholders is getting louder by the day.
Asif Aqeel, a writer and rights activist in support of restoration of Section 7, tells TNS the clergymen and ministers of human rights and minority affairs were of the view that there is only one ground for divorce and that was all they discussed in the court. “My view in the court was that Apostle Paul alludes to one more possibility for divorce and that is conversion of the spouse and deserting. Based on that reference, I submitted that declaring any section of divorce act as divine was not accurate to say.”
He says he submitted reports that he had written for the media and stated that he had gone through the plight of women and was convinced that the current law should be amended. However, he says, his personal view about Section 7 is that a new law shall be enacted by the parliament because Section 7 is about the British law. “We should make a law that is in accordance with our own needs.”
Under Section 10 of the same law, the wife may file a petition for divorce but on the ground that, since the solemnisation thereof, her husband has converted to another religion, has been guilty of incestuous adultery, or of bigamy with adultery, or of marriage with another woman with adultery, or of rape, sodomy or bestiality, adultery coupled with desertion, without reasonable excuse, for two years or upwards. Human rights defenders believe this makes the task even tougher for women as it is hard to establish that the men are involved in multiple moral crimes at a time.
Punjab Minister for Human Rights and Minority Affairs Tahir Khalil Sindhu tells TNS that he is quite clear that Biblical injunctions cannot be changed whatever the case and this exactly what that he has submitted in the court. He says, “The Christian marriage is solemnised in conformity with the provisions of personal law. It is a sacrament which is defined as a Christian rite that is believed to have been ordained by the Christ and that is held to be a means of divine grace or to be a sign or symbol of a religious reality.”
Sindhu says marriage according to Holy Bible is a sacrament and not a social contract and cannot be broken by any human force, except under certain grave conditions. He says even in Islam talaq (divorce) has been declared as an act extremely disliked by God. He is not convinced that Christians in Pakistan shall follow the laws in England. “There are Christian countries that accept cohabitation, gay marriages etc. Can we follow them in this context?” he questions.
“In case of an abusive marriage, there is a provision of legal separation for a certain period after which the couple can live together. But divorce in such case is not possible as those brought together by God cannot be separated by mortals,” Sindhu adds.
However, a Christian clergyman belonging to another sect, points out that Gen Ziaul Haq deleted Section 7 without consulting the clergy. He says not all the Christian sects believe that adultery is the only ground for divorce to take effect. “A large number of Christians have changed their faith to Islam for this reason. May be Gen Zia intended to promote these conversions through deletion of this clause.”
Fauzia Viqar, Chairperson, Punjab Commission on the Status of Women (PCSW), who was appointed amicus curiae by the court in this case finds the present law on Christian divorce discriminatory and violative of the dignity of women. Talking to TNS, she says the Commission believes in and upholds the equality of all citizens before law as enunciated in Article 25 of the Constitution of Pakistan.
She says many women are left in a marriage where they may be suffering from severe cruelty by husbands without possibility of relief. Pakistan adheres to multiple international conventions on promoting equality and empowerment of women.
Convention on Elimination of all forms of Discrimination Against Women (CEDAW), which Pakistan has ratified and reports on, clearly imposes the responsibility on states to remove discrimination against women.
Viqar says insistence on accusation of adultery and on producing the man accused of adultery with a woman is tantamount to denial of exit from a torturous marriage. She adds various countries including the UK and Russia that have amended legislation to expand grounds for divorce while India is also actively considering amendment to Section 10 of the legislation to provide for expanded grounds.
“The Commission also advocates for restoration of Section 7 of the Christian Divorce Act. It restores to all Christian women fundamental rights enshrined in Articles 9 and 14 of the Constitution of Pakistan which grant liberty and dignity to all,” she concludes.
Talking to TNS, Mary Gill, PML-N MPA in Punjab Assembly, says difference of opinion is everybody’s right and if there are those supporting Christian divorce laws there is nothing unusual. She says in her opinion, “the clauses under the head of dissolution of marriage are against human dignity.”
Besides, she says, “Section 7 must be restored and Section 10 amended as the latter does not uphold the principle of equality between men and women seeking divorce. Gill also objects to the marriageable age of boys and girls fixed at 16 and 13 respectively under this law.”
Furthermore, she says, “There is no effectiveness of a decree issued in such cases and there is no procedure in place to get a Christian divorce registered. All we are asking for is removal of lacunae and unjust provisions of this law and nothing else.”