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September 12, 2019

Updating Christian personal law

Opinion

September 12, 2019

In 2016 a Christian man, Ameen Masih, wanted to divorce his wife. However, much to his dismay he found out that he could not do so under the 1869 Divorce Act unless he accused her of adultery.

Not wanting to bring a false charge, he petitioned the Lahore High Court for a restoration of Article 7 of the said act which stipulated that this law would follow developments in England, but which had been omitted under General Ziaul Haq in 1981. Justice Mansoor Ali Shah gave Ameen Masih relief by restoring Article 7, but his judgment also gave the necessary impetus for the wholesale revision of this law as well as the Christian Marriage Act 1872.

Since 2016, the government has held nine consultations with Christian religious leaders, politicians, civil society activists, lawyers, academics and others. Since the law was about Christians, the government (both the previous and current one) thought that the community should lead the charge in the revisions. The government wanted very little direct involvement. However, what became clear through these consultations and the various other ‘committees’ formed by churches, NGOs and others was that there was a clear lack of understanding as to what was being attempted and to what end.

As a result of these consultations, a draft bill was finalised by the Ministry of Human Rights, keeping in view recommendations of a wide range: from suggestions by a joint committee of Catholic and Church of Pakistan bishops, to drafts submitted by lawyer Jamshed Rehmatullah, to several other suggestions received from various organisations and people. However, when the draft was studied by me and several others, we found it wanting in several respects.

The August 2019 draft of the Christian Marriage and Divorce Act certainly had some positives, but did not nearly go far enough in making it a comprehensive and modern law. The raising of the age of marriage to eighteen and the allowance for husbands to also divorce on grounds other than adultery were certainly achievements of the early drafters, yet they did not cover a host of other issues which were in dire need of correction and updating in the act.

Therefore an ad-hoc expert group which consisted of Bishop Emeritus of Lahore Dr Alexander John Malik, Peter Jacob from the Centre for Social Concerns, a few others, and this writer, was formed to suggest changes to the draft. Let me enumerate a few of those critical changes.

First, we suggested that the definition of a Christian should be omitted. This addition served no purpose except to mire the Christian community in a discourse over who is Christian. The majority community had already gone through this exercise, and there was no need to inflict this on a small minority.

Second, we suggested the complete removal of the role of the registrar general. The role of registration of marriages is now with the Union Councils and Nadra, and we suggested that the act should reflect this reality.

Third, we introduced the notion of ‘violence’ in petitions for divorce. Violence, be it domestic, sexual, physiological or economic, is a sad reality in today’s world and so must be recognised as a reason for divorce. Several pieces of legislation in Pakistan already recognise this principle, as do the laws of several churches, and so it was essential to include it. This gave further protection to women, who often bear the brunt of such acts.

Fourth, we advocated that one of the grounds for divorce (or even annulment) should be a lack of understanding or unwillingness to fulfil matrimonial rights. This provision was lifted from the Code of Canon Law of the Catholic Church (the majority church in Pakistan), which has long recognised that a real marriage does not exist if a spouse refuses to fulfil essential matrimonial and familial duties. Since this provision is available to Catholics (and people of some other denominations) worldwide, we saw no reason to keep it from Pakistani Christians.

Fifth, we revised the language of the draft law and removed references to someone being a ‘lunatic’ or ‘idiot.’ Using the modern terminology of ‘mental disorder’, this revision aimed to recognise the several mental health issues people have in the present world.

Sixth, we intervened to improve the alimony for the ex-wife and children from one-fifth as proposed in the draft law to ‘at least one-fourth’ of the ex-husband’s income. This was primarily done to give those women who are usually saddled with the responsibility for raising children after divorce some financial stability. Of course the actual amount should be higher, and at times even beyond 50 percent, but we left it to the court to decide on a case-by-case basis.

Seventh, we strongly argued for the deletion of Article 49 of the proposed act which again linked the act with the English courts. This we thought was an affront to the sovereignty of Pakistan, as after independence we should be self-sufficient in our law making. Linking Pakistani Christians’ law to another country was also deemed to be denigrating the status of Pakistani Christians as citizens.

When we presented these suggestions to Minister of Human Rights Dr Shireen Mazari, she was very receptive to these changes and readily accepted them. This clearly showed the openness and willingness of the government to make a good new law concerning Christian personal law.

Now the proposed law is to be presented in the National Assembly. As it stands, it is a now a very good piece of legislation and should be supported by all Christians. Of course, like any law it can always improve, which can be done through amendments later on, but even as it is, it is a very comprehensive and modern law which takes into consideration Christian principles without making this civil law into a religious law.

In fact, it must be understood that this law does not change any church law or infringe upon the Bible or upon church tradition. This law simply covers the civil aspects of marriage and divorce among Christians and has no bearing on the theological precepts held by different churches.

I look forward to this law being passed by both houses of parliament and promulgated soon, and I again commend Dr Mazari for being so proactive and diligent in this regard.

The writer is a legal historian, and director of the Centre for Governance and Policy, ITU Lahore.

Email: [email protected] com

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