Judgment On Christian Divorce Act
The Honorable Chief Justice of Lahore High Court has given a landmark judgment on the interpretation of Christian Divorce Act 1869. The judgment has been approved for reporting in a law journal and is available on the website of Lahore High Court.
The Honorable Chief Justice has delineated the principle that the court is a constitutional court and is not supposed to interpret the Bible or canonical law. Instead, the court is supposed to enforce fundamental rights of Christian minorities through the interpretation of the Constitution of Pakistan.
The court has further added that in countries with a Christian majority, such as the USA and UK, a Christian couple can seek divorce on reasonable grounds if they do not want to live together. There is no need for a Christian husband to prove the charge of adultery in order to separate or seek divorce. Unfortunately, in Pakistan, there was only one ground for a man under Section 10 of the Divorce Act to do so, and that was to prove the charge of adultery.
Therefore, the court restored Section 7 of the Divorce Act 1869 which had been removed by General Zia Ul Haq through the Federal Declaration Revision Ordinance 1981. After the restoration of this provision, other grounds will also be available to Christian couples seeking divorce without resorting to alleged mudslinging. These grounds are also available in the courts of England and Wales under the UK Matrimonial Causes Act 1973.
A Christian couple can now seek divorce without being forced to prove adultery. They can seek divorce on reasonable grounds or based on mutual consent if they do not want to live together or if they think that their marriage is ‘irretrievably broken’. The Honorable Chief Justice also mentioned the amendment by Indian courts in their Divorce Act facilitating the divorce of Christian couples based on mutual consent.
The court further elaborated that Pakistan has ratified the International Covenant on Civil and Political Rights which states that minorities can freely exercise their religious and cultural rights. Reliance was also placed on the Convention on Elimination of Discrimination Against Women as imputing a charge of adultery on a woman is against her dignity and such imputation is deplorable and against the fundamental right to life which also includes the pursuit of happiness. The Honorable Chief Justice further relied on the comments of Mr. Manzoor Qadir (former Chief Justice High Court) in his judgment from 1963 in which he supported the availability of other reasonable grounds like those in England and Wales.
The court further relied on the judgment of Supreme Court (citation PLD 2014 SC 699) which stated that the right to practise a religious belief depended upon an individual’s conscience. Therefore, no one belonging to any majority or minority denomination could impose his or her belief on another individual. The democratic norms of a country should fully support the individual’s free will and conscience.
I had the privilege to appear as lead counsel on behalf of the petitioner, Amin Masih. I also had to face a lot of opposition from parliamentarians reluctant to amend the Divorce Act 1869.
Amin Masih was a janitor in a private hospital with absolutely no money to bear the expenses of the case. I could have easily refused to help him but my conscience did not allow me to do so. Young lawyers should learn from this experience and must always be ready to help the underprivileged subjected to injustice and unable to afford a lawyer to seek justice. The reason for entering into the legal profession should not only be to earn but to also be kind and good towards people in need.
The case was referred to me by my mother and after a painstaking struggle of one and a half year, I was able to bring change, by the grace of God, in the lives of Christian women living in Pakistan. Hundreds of Christian divorce cases pending in family courts will now be adjudicated on just and reasonable grounds. The Honorable Chief Justice has given a landmark judgment and we should all be grateful. Moreover, it can be seen that public interest litigation under Article 199 of the Constitution 1973 can transform the lives of innocent people.
The writer appeared as lead counsel in this case.
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