Christian minority in ‘pursuit of happiness’: A Christian man seeks permission to divorce his wife: A riddle before the Honourable Lahore High Court
On 13 January 2016, I argued at length before the honourable Lahore High Court and thereafter notices were issued to the Federation of Pakistan, Government of Punjab and Bishop of Pakistan, regarding a petition, which has now become a public-interest issue after the honourable judge appointed human rights activist Miss Hina Jillani as amicus curie. The issue is tricky. Trust me.
Normally we read in the newspapers that women in Pakistan are subjected to ill treatment and human rights abuse against the dominant will of man in a patriarchy. For the first time in the history of Pakistan, we are faced with a situation that a poor man named Ameen Masih, who works in a hospital as a sweeper, belonging to Christianity faith, wants to divorce his wife and get rid of her as he no longer wants to live with her, but he cannot divorce her until he accuses his wife of the charge of adultery and proves it, which is the only ground as explained in section 10 of the Divorce Act 1869 . He is a dignified man and does not want to accuse his wife of adultery as it is despicable and a shameful act but at the same time he no longer wants to live a life of agony and constant pain.
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 Mr 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 have become an impediment to the reforms in Christian minorities’ family laws. Some of the people belonging to ecclesiastical class are in favour of the availability of only one ground in section 10 to remain intact.They are those people belonging to Christianity faith who want to regulate the affairs of 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, Amin 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 Mr. Zia-ul-Haq to suppress the rights of minority Christians. It was a measure of forcible conversion by the military dictator Zia ul Haq, so that the grounds available for a Christian man to divorce his wife, in Matrimonial Causes Act in England remain barred.
Before the omission, Christians were being treated in a similar manner as anywhere else where Christians were living in majority and the family matters of Christians regarding divorce matters would be adjudicated on the basis of the principles of England’s 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 now has only one ground to divorce his wife and that is provided under section 10 of the Divorce Act which states that in order to divorce a wife a Christian man has to impute against his wife, a charge of adultery and to prove it as well before the courts of justice. If not proved then divorce cannot take place between a Christian man and woman. Both would have to live together for rest of their lives if the charge of adultery is not proved. Now I ask one question to the reader: Is it possible for a woman to live with her husband for the rest of her life after facing the accusation of the charge of adultery? Obviously, not at all.
There is also a question which involves the interpretation of Article 9, which covers every aspect of life.The sole essence of Article 9 of our Constitution lies in the achievement of one objective and that is: pursuit of happiness as explained in PLD 1993 SC 341.Then 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 man and woman to part their ways if the marriage is irretrievably broken down or with mutual consent, but this ground is not available in Pakistan for Christians. The only ground available is to prove the charge of adultery by a man to divorce his wife which is deplorable for a 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 forcibly convert and then divorce his wife because proving the charge of adultery is impossible and imputing it requires 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 is being administered in a manner which is discriminatory with those countries where Christians are living in majority. This situation should be compared with a analogy that Muslim women in France should be allowed to wear a head-scarf and exercise their rights in a similar manner as anywhere else 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 be 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 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, 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 heed no attention towards 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 took place between a Christian man and woman in this country.
All these issues are now before the honourable Lahore High Court which is faced with a situation to exercise its judicial review powers and declare the Ordinance 1981, issued by the dictator, unconstitutional and also to issue directions to the government of Punjab as well as Federation regarding registration of Christian marriages. The court has also issued notices to Mr Alexander John Malik (Bishop) and Mr Irfan Jamil, who belong to the clergy, to seek their opinion. Now the question arises whether the opinion of the clergy is binding on the court and the petitioner who has impugned the Ordinance.
The Supreme Court in its landmark judgment, PLD 2014 SC 699, has held that an individual is neither bound by the opinion of the majority sect nor by the view of the minority sect. It is the individual’s own conscience that will determine his or her religious point of view on faith, not the clergy’s.
All in all, I can say, at this juncture, that this is a riddle which is now before the honourable Lahore High Court. I hope the honourable Lahore High Court takes initiative to resolve this conundrum, by the exercise of judicial review powers under Article 199 of the Constitution, rather passing the buck on to the legislature. Let see what Ameen Masih achieves in the end, the pursuit of happiness or ending up living with the same woman, which would be akin to living a life of agony and constant pain.
The writer is appearing as counsel in this case titled Ameen Masih versus Federation of Pakistan etc, on behalf of the petitioner.
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