Part II: In ‘Pursuit Of Happiness’ – Hats Off To His Lordship!

Part II: In ‘Pursuit Of Happiness’ – Hats Off To His Lordship!

On 23rd February 2016, the honourable Lahore High Court judge, Justice Syed Mansoor Ali Shah declared the Federal Law Revision and Declaration Ordinance 1981 unconstitutional, null and void ab initio and further restored section 7 of Divorce Act 1869 in order to provide a cushion to the Christians of Pakistan, in case a Christian man and woman wanted to part ways from their marriage or seek divorce, thereby ensuring that there could be reasonable grounds to do so (other than just the proof of charge of adultery), as the same is applicable in courts of England too when dealing with matrimonial issues.

We often read in newspapers that women in Pakistan are subjected to ill treatment and human rights abuses against the dominant will of man in a patriarchal society. For the first time in the history of Pakistan, we were faced with a situation where a poor man named Ameen Masih, who worked in a hospital as a sweeper, belonging to the Christianity faith, wanted to divorce his wife as he no longer wanted to live with her, but he could not divorce her unless he accused his wife of the charge of adultery and proved it, which was the only ground for divorce as enshrined in section 10 of the Divorce Act 1869. Being a dignified man he did not want to accuse his wife of adultery as it would have been despicable and shameful, but at the same time he no longer wanted to live his life in agony.

The origin of this issue can be traced back to the era when Christians in Pakistan were bogged down by the Federal Laws (Revision and Declaration) Regulation Ordinance 1981 issued by the then President Zia ul Haq; and furthermore the negligence of legislature towards minorities, coupled with the reason that the conflict of opinions amongst the Bishops belonging to different sects and beliefs in Pakistan had become an impediment to the reforms in Christian minorities’ family laws. Some of the people belonging to ecclesiastical (clergy) class are in favour of the availability of only one ground in section 10 to remain intact. They are those people belonging to the Christian faith who want to regulate the affairs of the Christian minority so that a poor Christian man and woman live in subjugation.

On the contrary there are also those people in Pakistan, belonging to clergy who want other grounds available for a Christian man similar to those mentioned in Matrimonial Causes Act in England which will be discussed later in this article.

In this constitutional petition, the petitioner, Ameen Masih is challenging the omission of Section 7 of Divorce Act 1869. The omission of Section 7 of Divorce Act 1869 ensued upon  through Federal Laws (Revision & Declaration) Ordinance 1981.The omitted Section 7 of Divorce Act 1869 is as follows:-

7. Subject to the provisions contained in this Act, the High Courts and District Courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules which, in the opinion of the said Courts, are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief.

[provided that nothing in this section shall deprive the said Courts of jurisdiction in  a case where the parties to a marriage professed the Christian religion at the time of the occurrence of the facts on which the claim to relief is founded.]”

Appearing on behalf of the petitioner, I argued that the omission of section 7 of Divorce Act 1869, occurred through Federal Laws (Revision & Declaration) Ordinance, 1981 (XXVII of 1981) during the dark era of the then President Zia ul Haq to suppress the rights of Christian minorities. It was a measure of forcible conversion by the military dictator Zia ul Haq, so that the grounds for a Christian man to divorce his wife, like in England’s Matrimonial Causes Act remain unavailable in Pakistan.

Before the omission, Christians were being treated in a similar manner as other places where Christians live in majority and the family matters of Christians regarding divorce matters were being adjudicated on the basis of the principles of English courts.

After the omission of section 7 the principles of English Divorce Court have been overshadowed and neglected, which has placed the entire statute to be administered in such a manner that a Christian man only had one ground to divorce his wife and that was provided under section 10 of the Divorce Act which stated that in order to divorce, a Christian man would have to impute against his wife, a charge of adultery and also prove it before the courts of justice. If not proved then divorce could not take place between a Christian man and woman. Both would have to live together for the rest of their lives if the charge of adultery was not proved. Now I ask one question from the reader: Is it possible for a woman to live with her husband for the rest of her life after facing the accusation of adultery? Obviously, not at all.

There is also a question which involves the interpretation of Article 9 of the Constitution of Pakistan, which covers every aspect of life. The sole essence of Article 9 lies in the achievement of one objective and that is: the pursuit of happiness as explained in PLD 1993 SC 341. Why should a man be compelled or forced to live with a woman when he does not want to?

In the UK the Matrimonial Causes Act is now interpreted in a liberal manner providing a cushion to both Christian men and women to part ways if the marriage is irretrievably broken or otherwise with mutual consent, but this ground was not available in Pakistan for Christians. The only ground available was for a man to prove the charge of adultery to divorce his wife, which is deplorable for the dignity of both man and woman. So I argued before the honourable Lahore High Court there should be other similar grounds available as mentioned in Matrimonial Causes Act applicable in England. This will be possible only when the omitted section 7 of the Divorce Act is restituted and the impugned Ordinance of 1981 declared ultra vires. The dictator removed section 7 of the Divorce Act 1869 through the impugned Ordinance in 1981, in order to compel a Christian man to be forcibly convert and then divorce his wife because proving the charge of adultery would be impossible and imputing it would require impunity and callousness.

I further argued at the first hearing scheduled for 13 January, 2016, before the honourable High Court that after omission of Section 7 through Federal Laws (Revision & Declaration), Ordinance 1981, the statute of Divorce Act 1869 was being administered in a manner which is discriminatory with those countries where Christians were living in majority. This situation could be compared with an analogy of Muslim women in France being allowed to wear a head scarf and exercising their rights in a similar manner as elsewhere in the world, where Muslims are living in majority.

Since the protection of minorities is one of the grundnorm/ salient features of our Constitution as explained in PLD 2015 SC 401, therefore the omission of section 7 of Divorce Act 1869 through Federal Laws (Revision & Declaration), Ordinance 1981 should have been declared unconstitutional as well as null and void ab initio. Therefore the omitted section 7 of Divorce Act 1869 should be revived.

It is a debacle that for the past more than 30 years not a single law has been passed for the protection of minorities/Christians and it has been over more than 145 years that the Divorce Act 1869 has not been reformed whereas in other countries like India, the Divorce Act 1869 has been reformed by relying on Section 7. Unfortunately we live in a country where parliamentarians are more concerned about their perks and privileges and pay no heed  towards the common man’s issue. It is also notable that there is no regulatory mechanism with respect to the registration of marriages as well as divorces that take place between a Christian man and woman in this country.

Mr Alexander John Malik who had acted as a Bishop during General Zia’s era, also conceded to the fact that Section 7 of the Divorce Act 1869 should be restored and there must be other reasonable grounds, at par with other countries where Christians are living in majority, available to a Christian man and woman to part ways. Similarly Assistant Advocate General Anwar Hussain also agreed that in all other countries where Christians are living in majority, apart from the proof of adultery, there are other grounds available as well in order to seek divorce. For instance in United States of America, Russia and Australia, there is a concept of no-fault divorce, according to which a Christian man and woman can part ways if they think that their marriage is irretrievably broken and they cannot live together. Miss Hina Hafeez Ullah, the standing counsel, and Miss Hina Jillani who appeared as amicus curiae, also supported the petitioner’s case that giving just one ground – the proof of adultery – to Christians to seek divorce  is unjust, discriminatory and against the dignity of a woman keeping in consideration that Pakistan has ratified the Convention on the Elimination of Discrimination Against Women (CEDAW) and also the fact that Christians of Pakistan should be treated in a similar way as elsewhere in the country where they are living in majority.

I further submitted that this issue also relates to an individual’s religious conscience.The Supreme Court in its landmark judgment, PLD 2014 SC 699 has held that an individual is neither bound by the opinion of a majority sect nor by the minority sect. It is the individual’s own conscience that will determine his religious point of view on faith, not the clergy’s.

Hats off to honourable Lahore High Court’s Justice Syed Mansoor Ali Shah for taking initiative to resolve this conundrum, by the exercise of judicial review powers under Article 199 of the Constitution, rather than passing the buck on to the legislature, which mostly acts averse to legislate on issues of public importance.

 

The writer appeared as counsel on behalf of the petitioner in this case titled Ameen Masih versus Federation of Pakistan etc.

Part 1 of this article was previously published here: http://courtingthelaw.com/2016/01/19/commentary/in-pursuit-of-happiness-christian-man-seeks-permission-to-divorce-wife/

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Sheraz Zaka

The writer is a practising lawyer and holds degrees in BA-LLB, LLM (UK) and ACCA (UK). He can be reached at sheraz.zaka@gmail.com



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