Minorities rights enforcement

The move by the Chief Justice means that hundreds of cases pending in family courts regarding Christian divorce matters will now be adjudicated on just and reasonable grounds rather than on proving the charge of adultery

Minorities rights enforcement


On 19 June 2017, the honourable Chief Justice of Lahore Justice Syed Mansoor Ali Shah gave a landmark judgement regarding the interpretation of Christian divorce Act 1869. The judgement was recently reported in a law journal called the Pakistan Law Digest August edition on page 610.

The honourable chief justice delineated that the court is a constitutional court and it was not supposed to interpret the Bible or canonical law. Instead the court is supposed to enforce fundamental rights of Christian minorities by the interpretation of the constitution.

The court further elaborated that across the world in countries where Christians are living in majority, a Christian couple can seek divorce on reasonable grounds if they do not want to live together. Christian couples do not need to prove the charge of adultery in order to separate or seek divorce.

Unfortunately in Pakistan there was only one ground for a man to seek divorce under section 10 of the divorce act. The act stated that a man had to prove a charge of adultery and then divorce his wife.

Therefore the court restored Section 7 of the Divorce Act of1869 which was removed by President Ziaul Haq through a federal declaration revision ordinance in 1981. Through the restoration of section 7 all other grounds will be available to seek divorce which are available in courts of England and Wales under UK matrimonial causes act 1973.

As a result, a Christian couple in Pakistan does not need to prove evidence of adultery to seek divorce. They can seek divorce on reasonable grounds or on mutual consent if they do not want to live together or they think the marriage ‘irretrievably broken’. The court also mentioned that there are no-fault divorce laws in countries where Christians are living in majority. The honourable chief justice further mentioned that in 2001 the Indian Parliament passed an amendment in the divorce act by giving cushion to Christians that they can separate on mutual consent rather than prove a charge of adultery.

The court further elaborated that Pakistan has ratified the international covenant on civil and political rights which states that minorities can freely exercise their religious and cultural rights.

The court elaborated by relying on convention on elimination of discrimination against women that imputing a charge of adultery on a woman is against her dignity and such imputation is deplorable and against fundamental rights. The Honourable Chief Justice has further relied on the comments of former High Court Chief Justice Mr Manzoor Qadir in his Judgement in 1963 in which he supported the possibility of availability of other reasonable grounds such as those available in England and Wales apart from accusing one’s wife of adultery which is a deplorable and disgusting act.

The court further relied on the Supreme Court’s Judgements which stated that right to practise religious beliefs depends upon an individual’s conscience; so no one, belonging to any majority or minority denomination can impose his will or point of view upon others.

The court relied on the Supreme Court’s judgements which stated that the right to practise religious beliefs depends upon an individual's conscience; so no one, belonging to any majority or minority denomination, can impose his will or point of view upon others

The judgement further delineated that the democratic norms of a country fully support the individual’s free will and conscience.

I had the privilege to appear as a leading counsel on behalf of petitioner Amin Masih to represent his case. I had to face a lot of opposition from parliamentarians who were not willing to amend the 1869 Divorce Act.

Amin Masih worked as a sweeper in a private hospital and he had no penny to bear the expenses of the case. I could have refused him but my conscience did not allow me as I realized and also appreciated that he did not want to impute falsely the charge of adultery on his wife. Young lawyers should learn from this experience that they should help such needy and poor people, in a genuine cause, who are subjected to injustice and cannot afford to pay a lawyer to seek justice. Entering the legal profession is not meant for economic purposes alone but also to help those in need.

Anyhow my mother referred me his case and somehow through painstaking struggle spanning a year and a half, I have been able to bring about change in the lives of Christian women living in Pakistan. Hundreds of cases pending in family courts regarding divorce matters of Christians will now be adjudicated on just and reasonable grounds rather than proving the charge of adultery. The Honourable Chief Justice has given a landmark judgement and this is the first judgement of the Lahore High Court regarding the enforcement of fundamental rights of Christians in its 150-year history. This nuanced move by the Chief Justice is appreciated and demonstrates how effective public interest litigation under Article 199 of the 1973 Constitution can transform lives of people and save the innocent.

 

The writer has a BA LLB LLM(UK) and ACCA (UK) and has appeared as a leading counsel in this case. He can be reached at sheraz.zaka@gmail.com

 

 

Published in Daily Times, September 14th 2017.