On January 18, 2018 a division bench of the Lahore High Court (LHC) held the hearing of an appeal that challenged the order of a single bench, which restored section 7 of the Christian Divorce Act 1869. While, the court proceedings would continue on this matter it is simultaneously important to look into the rationale of the said section.
The Section 7 provides that courts (in Pakistan) could act on the principles and rules, which are conformable with the divorce law in the UK. This section was omitted through an Ordinance in 1981, by the then dictator General Ziaul-Haq. Repeal of section 7 left the Pakistani Christian community with the only option of Section 10, for divorce or dissolution of marriage on the basis of adultery. However, if a Christian woman is the petitioner, then she has to submit the petition on the ground of her husband’s conversion and marriage with another woman; or on the basis of adultery coupled with other cruel charges, for instance, rape, sodomy or bestiality. However, if she files the petition under the charges other than adultery, she would be entitled to a divorce a mensa et thoro, which means that the spouses may legally live apart, but they are still legally married. This hampers the possibility of both persons to start a new life, conversely, bound them forcefully to continue a relationship that no more exists in its practical sense and purposes.
Since the repeal of Section 7, Christian couples seeking to dissolve their marriage on ‘no-fault’ grounds, without harming the modesty and dignity of each other, have started facing a number of complications. An increase in conversions has been also observed after this amendment, as the couples are forced to convert to another religion just to end the bondage of an irretrievable marriage.
Christian women suffer more than men after divorce under section 10, as they face discriminatory behaviours and social taboos on the pretext of adultery, and this undermines their right to human dignity. Besides jeopardising the very basic right of human dignity, this phenomenon also hampers the probabilities for her to restart her life in a dignified manner because of the stigma of adultery. The woman and her family suffer from enormous psychological, emotional pressure and trauma, sometimes not recoverable. Thus, divorce under Section 10 enhances the social marginalisation of a Christian woman, who is already marginalised being a woman in a patriarchal society.
It is of utmost importance that the Christian community, legislators and rights-based organisations facilitate a broader discussion on the subject of Christians’ marriages and divorces in Pakistan to enhance understanding and build consensus at a large scale
It is important to note that the policies of countries with majority Christian population discourage divorce, yet the governments do not try to prevent divorce when the legitimate objects of the marriage have been destroyed. In several European countries the ‘no-fault’ divorce based on the concept of ‘irretrievable breakdown of marriage’ has been allowed before 1950s and in several other countries with majority Christian population since 1970s, including UK, USA, Canada and Australia. Even India included no-fault divorce through an amendment in the Divorce Act in 2001. The above-mentioned facts show that in the Christian world, ‘no-fault’ divorce or irretrievable breakdown of marriage is an established ground for divorce. Conversely, the Pakistani Christian couples are deprived of this right to part their ways in case of irretrievable breakdown of marriage, in a dignified manner keeping their human dignity intact.
The Divorce Act 1869 is the state law for the divorce of Christian couples in Pakistan and the state has the obligation to establish equality among the citizens, without any discrimination and suppose to conform its laws to the international human rights law, which is based on the principles of equality and non-discrimination. The Constitution of Pakistan specially guarantees equality and non-discrimination for women in its Article 25 and 26, respectively. The Universal Declaration of Human Rights also emphasised on human dignity. Pakistan ratified the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) thus committed to end all forms of discrimination against women and as a state party to the International Covenants of Human Rights have the obligation to ensure the equal rights of men and women to enjoy all economic, social, cultural, civil and political rights.
In fact, the Christian personal law, specially the Divorce Act 1869 and the Marriage Act, 1872 needs reforms to make them compatible with contemporary social needs and realities. For instance, more than 145 years old law that allows marriage of 13 and 16 years old girl and boy, respectively, does not conform to the existing state law and the international obligations of Pakistan. In addition, nowadays most of the marriages are solemnised after sunset, which is contrary to the Christian Marriage law in its current form.
Therefore, it is of utmost importance that the Christian community, legislators and rights-based organisations facilitate a broader discussion on the subject to enhance the understanding and build consensus at a large scale. While pondering on the subject, the Christian community must keep the principles of social justice and equality in purview, for which the Pakistani Christians along other important stakeholders have been struggling since decades. The discourse must involve different schools of thought among the Christian community, representation from social, political and religious sectors and most importantly Christian women from different walks of life.
The writer is a human rights professional, researcher and trainer, working with Centre For Social Justice (www.csjpak.org). She can be reached at [email protected] and tweets @NaumanaSuleman
Published in Daily Times, January 26th 2018.