Wednesday July 24, 2024

The Hindu marriage bill

By Peter Jacob
February 27, 2016

Notwithstanding the positives, the Hindu Marriage Bill, 2016 approved by the National Assembly’s Standing Committee on Law and Justice leaves some serious gaps.

Section 12 (iii) of the bill has implications for the constitutional guarantee of protection of family (Article 35) as well as protective measures ordered by the Supreme Court on June 19, 2014 for the Hindu minority. The clause intrudes upon an area that other family laws dare not tread – changing religion while in a marriage bond.

If parliament chooses to pass the bill in the present form, this clause – which makes change of religion a ground for dissolution of marriage – will lead to serious legal, social and political implications.

First, it implies that the law in Pakistan prohibits diversity of belief for cohabitation or marriage. So the proviso poses a challenge to the concept of interfaith marriages. Secondly, making conversion of faith an issue for merely Hindu couples would be discriminatory; personal laws for other communities will also have to be revisited.

Forced conversions, alleged or proven, often involve sexual harassment, rape and/or abduction. In these circumstances the influence of the perpetrators, the positive bias of the justice system on the majority religion etc play out in favour of the manipulation of legal procedures.

The person who has reportedly converted is separated from her family, making the element of coercion difficult to prove. A statement on oath by the newly converted and married stratifies the court requirement. Therefore, the local magistrate orders the case shut.

Politically, this clause will only lead to lowering the confidence the Hindu community has in the legal system. The Hindu community has been rightly alarmed because clause 12 (iii) is likely to facilitate the forced conversion of Hindu women. No wonder activists Kishan Shamra, Pooja Rajput and Deepak Kumar reacted promptly, terming this clause of the draft bill “unacceptable”. MNA Dr Ramesh Kumar, who should have exercised his muscle in the National Assembly in the first place, has expressed his apprehensions regarding the clause too.

The draft law that was originally prepared by the National Commission on Status of Women in 2011 did not have this clause. Reportedly, someone in the National Assembly sent the Hindu Marriage Bill to the Council of Islamic Ideology for an opinion.

The CII added two clauses, one about reducing the age for marriage and the second this conversion clause. The NA standing committee bowed down to the conversion clause (section 12 (iii)) without even considering whether the CII had any mandate on this.

The standing committee seems to have disregarded the jurisprudence regarding cases involving minority men and women in connection with conversion and marriage. For instance, the courts held that conversion of faith does not dissolve a marriage automatically in Ms Kundani v The State (PLD 1988 FSC 89) and more recently in Ms Fatima Bibi v SHO Ichchra Police Station Lahore (PLD 2005, Lahore 128).

The Supreme Court of Pakistan exercising its ‘parental jurisdiction’ in Misri Ludhani v Amjad Shahzad, etc (Crml.Misc.P.No. 2k, 2006) ordered submission of surety bonds to the tune of Rs1.5 million as a guarantee that Neelum Ludhai, a Hindu girl who was reported to have married a Muslim man out of free will, would be treated humanely. The court had further ordered that the respondent would make sure that the girl could meet her parents freely.

Hence, the courts have tried to repair the damage caused by lack of legal and administrative protections, though in other cases the Supreme Court also failed to check the injustice. For instance, it overlooked the issue of age verification in the Rinkle Kumari case.

Sensing the situation, the Pakistan Hindu Council had filed a petition in the Supreme Court (CP 130, 2007), asking for binding orders to the government for legislation to curb forced conversion; this remains to be heard unfortunately.

Making conversion a ground for dissolution of marriage, in the absence of safeguards against forced conversion, is more a travesty of justice. The Special Marriage Act 1872 is strict and obsolete, and therefore a weak remedy for couples opting for unconventional marriages. Therefore, besides the personal laws of each community, a common civil code governing such marriages becomes necessary.

The Hindu Marriage Act of Sindh 2016 managed to stay out of this pitfall. The federal legislation on matrimonial laws will have to safeguard several interests – citizenship rights, freedom of choice of marriage, founding a family and freedom of religion and belief. Parliament has a duty to protect the institution of the family from unnecessary and illegal breakups as well.

The standing committee has in a way made the business of forced conversion easier – unless parliament rectifies this mistake.