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September 13, 2019

An insufficient promise

Opinion

September 13, 2019

The existing legal regime governing Christian marriage and divorce in Pakistan, under a near century-and-a-half old Christian Marriage Act, 1872 and the Divorce Act, 1869, has been criticized as being out-dated and discriminatory, often binding Christian couples in unwanted and unhappy marriages, escapable only through conversion to another faith.

The much anticipated ‘Christian Marriage and Divorce Bill, 2019’ approved by the federal cabinet a few weeks back, promises some respite for such couples. Drafted with the support and input of the clergy, the 2019 bill seeks to modernize and regularize Christian marriage law in Pakistan, in particular the mode of registration of marriages and available grounds for dissolution.

As noted by the Supreme Court of Pakistan in 2014 and more recently in 2019, several Christian marriages solemnized in Pakistan remain un-registered and therefore unrecognized by the state, causing grave inconvenience and injustice to parties to a marriage. Union councils entrusted under local government laws with the responsibility of registration of marriages have often refused to register Christian marriages on account of lack of proof of proper solemnization.

To resolve this issue, the 2019 bill brings union councils within the existing scheme of registration of Christian marriages. While (largely) maintaining the complex scheme of multiple levels of registration provided under the existing law with the relevant churches, and government-appointed marriage registrars and registrars of births, deaths and marriages, the 2019 bill stipulates that all persons solemnizing a Christian marriage must also provide a record of the registration directly to the union council.

The proposed law, however, does not fully address the predicament of several Christian men and women bound in unhappy relationships on account of the restrictive grounds of divorce provided under the existing law. Section 10 of Divorce Act 1869 provides that a Christian man may only seek dissolution of marriage through divorce upon proof of adultery committed by his wife, thereby necessitating, in all circumstances, an attack on her moral character.

A Christian woman seeking to divorce her husband, on the other hand, must prove one of the following: incestuous adultery; bigamy coupled with adultery; adultery coupled with desertion; adultery coupled with cruelty; rape, sodomy or bestiality; or religious conversion coupled with marriage to another woman. Without proof to such effect, the law can forever bind a Christian couple to an unhappy union.

Section 48 of the proposed bill is significant in that it does away with the arbitrary distinction drawn in the law with respect to the grounds on which a Christian man and woman may seek divorce, granting both an undifferentiated and equal right to seek dissolution of marriage. While adhering to the prevalent legal concept of fault-based divorce, section 48 broadens the basis on which Christian couples may seek divorce. It removes the necessity to allege adultery in all instances, and more significantly stipulates “brutality” as an independent and sufficient ground for divorce, a much-needed relief for women suffering abusive marriages.

This continued adherence to the concept of fault-based divorce sets the proposed law far behind several jurisdictions across the world that have promulgated more progressive and emancipated divorce regimes which, as noted by the Lahore High Court last year in its Ameen Masih judgment, do not necessitate the “present[ation]of sordid and ugly details of conduct by either party to obtain a dissolution of marriage.” For instance, under the English Matrimonial Causes Act, 1973 the ultimate criterion for the grant of a divorce decree is the ‘irretrievable breakdown of the marriage’ demonstrable upon proof of, among other grounds, 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.

In 2001 the Indian legislature also amended the Indian Divorce Act, 1869 to allow divorce by mutual consent after a two-year period of separation of a Christian couple.

Following the Lahore High Court’s judgment in the Ameen Masih case, a more radical amendment in the Divorce Act, 1869 was to be expected. The judgment strongly criticized the restrictive grounds for Christian divorce provided in our law as violating the rights to life and dignity. The court resurrected section 7 of the Divorce Act, 1869 (repealed in 1981), which permits Pakistani courts to treat English law as precedent when deciding cases of Christian divorce, and read into our law the principle of ‘irretrievable breakdown of marriage’ as a ground of Christian divorce.

The proposed bill includes a provision identical to section 7, and could, relying on the high court’s judgment, permit dissolution of Christian marriages on the basis of the principle of irretrievable breakdown of marriage. This judgment, however, is under challenge in appeal, and it cannot be said with any amount of certainty whether the progressive approach adopted by the Lahore High Court will be maintained.

The writer is a high court advocate, and a member of the adjunct faculty at the Shaikh Ahmad Hassan School of Law, LUMS.