In the upcoming session of the National Assembly, the Minister for Human Rights Shireen Mazari is supposed to present a proposed Christian Marriage and Divorce Act, 2019 for adoption. If passed, this bill will repeal and replace the Christian Divorce Act, 1869 and the Christian Marriage Act, 1872.
After nearly 150 years, the laws governing Christians in Pakistan might be revised. Christians may make a mere 5% of the population of Pakistan, but these two laws deeply affected the lives of almost all of the four million strong Christian population in the country and it is high time that they are updated.
Ameen Masih case
The impetus for a change in the law started when in late 2016, a Christian by the name of Ameen Masih approached the Lahore High Court for relief. His prayer was not related to any discrimination by the majority community, or lack of basic rights, or even a plea for protection against an often-misused law. He approached the court in order to be able to seek a divorce from his wife without accusing her of adultery.
In his petition, Masih contented that while his marriage had broken down, he did not want to allege that his wife had committed adultery to obtain a divorce. He prayed that Section 7 of the Christian Divorce Act, which stipulated that the then Indian courts follow the position of the English Divorce courts, should be made available to him, under which the provisions of the English Matrimonial Causes Act 1973 would apply, permitting him to get a divorce from his wife on the grounds of the breakdown of marriage.
Section 7, however, had been omitted from the Act by the Federal Laws Ordinance, 1981 under General Ziaul Haq and since then the main grounds for divorce for Christian men remained very limited and largely involved an allegation of adultery or conversion.
Thus, the petitioner argued that such a situation was not only against fundamental rights but also forced the petitioners to lie. Masih’s petition brought to the fore critical issues related to the Christian Divorce Act and the Christian Marriage Act, those nearly 150-year-old statutes that had continued almost untouched in Pakistan despite independence.
The British law
These two laws were the result of British legislation during the Raj. When the British came to India, they saw it as a set of different religious communities, ignoring other distinctions of caste, region, ethnicity.
Problematic as this ordering was, it gave rise to the notion of personal law in India. This meant that in personal matters – marriage, divorce, custody, inheritance – the religious law of a particular community would be followed, while in other matters, common law would prevail.
This was, of course, a major limitation for well-formulated codes like the Sharia, but short of picking the law of a certain religious community wholesale and imposing it on the rest of India, the British thought that this was the most suitable manner in which religious sensibilities could be assuaged and also a common code devised for civil and criminal matters that do not come under the purview of personal law.
Thus, in the years following, the British enacted several personal laws which governed different aspects for Parsis, Hindus, Muslims and also Christians. While these were religious pronouncements in a certain sense in that they regulated affairs according to religious principles, they were not religious laws per se.
In other words, these laws did not obliterate the different emphasises and interpretations of various sects within a religion, but created a general parameter within which interpretation of law could occur for members of a particular religious community. Case law was then supposed to further fine-tune these provisions and also allow for different interpretations between sects.
In terms of Christian personal law, the two major statutes introduced in India by the British were the Christian Divorce Act, 1869 and the Christian Marriage Act, 1872. Even though Christians were still a very small number in the British Indian Empire at that time, their growing numbers through mass conversions, and issue of irregularities, led to the enaction of these two laws.
Previously, English law directly applied to Christians in India. These new laws also largely followed the then British law but created a provision for changes to be made if locally desired. The law on marriage recognised the clergy of the Church of England, Church of Scotland and the Catholic Church, while allowing other ministers and even laypeople to apply for a licence to solemnise marriages.
The divorce law, again, reflected contemporary England and only allowed it in the case of adultery, bigamy, rape, sodomy, bestiality or a combination thereof with desertion. A section also allowed for a petition for divorce in case of conversion to another religion by a spouse, recognising the local reality in India.
2017 Lahore judgment
Returning to the case of Ameen Masih, Justice Mansoor Ali Shah, the then Chief Justice of the Lahore High Court, in his judgment declared that since the 1981 law was under an undemocratic regime, and since no consultations were ever held with the Christian churches or leaders before its omission, the deletion of Section 7 from the Christian Divorce Act, 1869 was unconstitutional.
Therefore, he allowed the petition and permitted Masih to divorce his wife relying on the British law, which permitted it under the irretrievable breakdown of marriage provision.
More significantly, Justice Shah noted that while he had taken the views of the Christian churches in the matter, this law was a state – that is, a civil – law that regulated the affairs of a religious community. Hence, it was in no way changing Biblical law – as some were alleging – or forcing any church to accept divorce under its provisions.
In fact, the Catholic Church does not recognise divorce at all and neither this petition nor even the whole Act of 1869 has ever compelled it to accept the concept of divorce. Hence, purely religious law within denominations was not at all affected by this judgement and only the civil aspect was being changed.
While the judgement of Justice Shah gave relief to the petitioner and made life easier for numerous others, it raised an important point: how could Pakistan, as an independent country, allow the law of another country to be followed with respect to the personal law of a certain community of its own citizens?
Christians in Pakistan are Pakistani citizens and almost 100% of them are of local origin. The small percentage of Anglo-Indians and Goans is also almost wholly Pakistani born and so there is no reason for an alien connection for their personal law.
Where there are still connections between churches in Pakistan and the United Kingdom, the fact that Pakistani Christians were to be governed by English law in matters of divorce was not only an affront to their Pakistani identity, but also infringed upon their fundamental rights where they, as citizens, should have their laws enacted by their own parliament.
A new law
In the wake of the Masih case, serious attempts were made by the then government of the Pakistan Muslim League-Nawaz to formulate revisions.
Led by Senator Kamran Michael, who was also a minister in the Pakistan Muslim League-Nawaz government, several rounds of consultations were held with Christians. These meetings started in earnest with a large consultation in Islamabad on August 10, 2016 where 38 people participated in the discussion. This was followed by another large discussion forum in Lahore on April 4, 2017 where 56 people participated.
Thereafter, due to the increasingly unstable government and the looming elections, nothing concrete was achieved until the Pakistan Tehreek-i-Insaf government took office.
When the new minister for human rights, Shireen Mazari, came to the helm of affairs, she seriously took up the mantle of finally bringing the changes to light. She restarted the process of consultations and within a period of just about a year, held several consultations with Christian leaders over the Act.
Thus in total, the Ministry of Human Rights held nine such consultative meetings between 2016 and 2019 with members of the Christian community. In all of these meetings, several issues were raised, many revisions suggested and a number of amendments noted to the two Acts.
Simultaneously, several church leaders and Christian civil society organisations also began to hold their own consultations. The National Commission for Justice and Peace formed in 1985 by the Pakistan Catholic Bishops’ Conference, the Church of Pakistan and the Presbyterian Church in Pakistan led the way in creating a group of clerics and others, while organisations like the Centre for Social Justice and others brought together civil society leaders and human rights advocates together with religious leaders.
Thus, by the autumn of this year, it was clear that a lot of work and thought had been given to the issue and a new draft for the Christian Marriage and Divorce Act, 2019 was prepared by the Ministry of Human Rights, keeping in view the several rounds of consultations and suggestions received from Christian leaders and activists throughout Pakistan.
While the consultative process was indeed commendable and the efforts of the Ministry of Human Rights and Minister Mazari laudable, several issues also came to the fore during the consultation process which exhibited its fraught nature.
First, usually, an act of this type is shepherded by some members of parliament who either hail from the particular religious community, or represent it, or have a keen knowledge, either academic or practical, about it.
In this case, the parliamentary leadership fell mainly on the shoulders of the Christian members of parliament who had been appointed to their seats by party leaderships. Since these parliamentarians were never actually elected and got their positions through a party list, from the outset their legitimacy was under question.
While they were Christian by religious profession, this was their sole claim to representation. Almost all of them had no background in either social, educational or charity work that would make them stand out as natural leaders. Nearly all of them had risen in the ranks of a party due to patronage rather than support of the grassroots.
MNA Shunila Ruth herself pointed out this problem at a consultation and noted that the only way she can advocate for Christian and minority rights is when she is fully supported by the community. Such support and therefore representation still needs to be worked on.
Moreover, almost all these Christian parliamentarians were unable to understand the nuances of both the Acts and failed to clarify and emphasise the actual nature of the old Acts and the reasons behind the proposed changes. Of course, this has to do with the fact that there are only a handful of Christian members of either the National Assembly or the Senate and so it would be unfair to expect them to understand the intricacies of a law which is civil but has religious implications.
Secondly, a major flaw in the process is that it is seen as primarily a religious issue and so the consultations have focused heavily on Christian religious leaders. While it is true that the law will mainly deal with people professing the Christian faith, yet, as explained above, and very clearly in the judgment of Justice Shah, these laws are civil laws, not religious ones.
Therefore, while consultations with Christian religious leaders are fine, depending on their acquiescence for the proposed changes is not correct. This is because the proposed changes neither affect the particular law of churches and nor do these leaders need to accept these changes.
For example, the Catholic Church, worldwide and also in Pakistan, does not accept divorce. Hence, it has never accepted the provisions of the Christian Divorce Act, 1869 either and nor will it accept any version of it in the future. This is because Catholics around the world and in Pakistan are governed by the Canon Law of the Catholic Church. The same is true for most mainline churches, like the Church of Pakistan and the Presbyterian Church, both of which have their own canon law that regulates such matters.
Furthermore, as has become apparent, any attempt to get a consensus among various Christian religious leaders over marriage and divorce is simply futile. This is because different denominations have very divergent views on the issues of marriage and divorce.
For example, the Catholic Church, as noted above, does not accept the concept of divorce under any circumstances. Instead, it uses the concept of annulment which, after due process, ends the marriage as if it never happened. On the issue of marriage, the Catholic Church sees it as a sacrament ordained by God, which can only be dissolved by death.
The Church of Pakistan, which largely follows the Church of England, also sees marriage as a sacrament but allows for divorce under certain circumstances. However, the Church of Pakistan does not allow for a divorcee to remarry as long as their earlier spouse is still alive. Some Protestant churches also see marriage as an indissoluble covenant and only allow divorce on the basis of adultery. There are also divergent views on remarriage.
Moreover, while the Ministry of Human Rights wholeheartedly invited a very broad cross-section of the Christian community for consultation, the reality was that very few of the religious leaders had any real claim of representation and even among those who did, their numbers varied widely.
For example, the Catholic Church in Pakistan is the largest Christian church in the country, with over 50% of the Christian population adhering to it. They are followed by the Church of Pakistan which claims another 25%, while the Presbyterian Church of Pakistan counts another 10%-15% of the Christian population of the country. The rest of the 15%-20% of the Christian population is spread over numerous, perhaps even thousands, of small denominations and house churches, which are almost impossible to count.
Therefore, bringing all of these religious leaders on the same platform and treating them the same cannot work as they do not represent a commensurate group of people and differ greatly in terms of numbers, organisation and stability.
Thirdly, the involvement of NGOs in the process is certainly welcome and essential, but there are severe limitations as to their ability in helping the process. This is largely because most NGOs which either focus on Christians in Pakistan or are Christian-led, focus on issues of human rights.
Almost all such NGOs are ill-equipped to aid in the process of the revision of laws on marriage and divorce. Very few of them have any lawyers associated with them, and even then very few legal experts have an understanding of the development of Christian marriage and divorce laws both in Pakistan and abroad.
Among the few who have an understanding of such issues are Jennifer Jivan of the Christian Study Centre in Rawalpindi, Joseph Francis of Centre for Legal Aid Assistance and Settlement and Peter Jacob of the Centre for Social Justice. Besides them, and a few others, there are hardly any people in the NGO sector who have any competence to comment on such issues.
Furthermore, each of the three groups – political leaders, church leaders and the NGOs – had an expectation that their views would prevail solely, but the job of the ministry was and is to listen to everyone, propose a law that takes into consideration all the recommendations instead of allowing one section to dominate the other, as well as to ensure that the law corresponds well with Pakistan’s other laws and human rights regulations.
Therefore, while consultations were and are essential, the ministry has the final say in the version of the bill that will be presented in parliament. The ministry, of course, has to explain its position and perhaps a position paper is due in this regard but needs to also ensure that a law is indeed presented in parliament and enacted.
The proposed Act
The current draft of the Act brings to the fore some needed changes after revisions. Major among them is the raising of the marriage age for both men and women to 18 years. While the determination of marriage age is of some controversy in Islamic legal circles, Christian thought and theology are unanimous about the age of consent.
Furthermore, it proposes that both the husband and wife have the same grounds for divorce. Previously, the husband could only petition the court for divorce when the wife had committed adultery. Now, there is an allowance for both the husband and the wife to petition the court for divorce for a larger number of reasons.
At first, there were several critical issues that remained unaddressed. However, once revisions were suggested to the Minister of Human Rights, she immediately examined them and incorporated the changes in the proposed Act.
Personally speaking, I was amazed at the level of personal interest, keenness and receptivity the minister showed in this regard. The legislation has certainly come this far due to the personal efforts of the minster and she must be commended for it.
Since I was deeply involved in these new revisions, let me explain a few of them, all of which have been accepted by the ministry and incorporated in the proposed Act.
First, a major revision in the proposed Act was the removal of the definition of a Christian. While it might be possible to come up with a definition that most churches accept, the view was that it was not a civil issue and therefore best left to the individual churches and the conscience of the people.
With having seen the experience of the majority community in this country in defining who belongs to a religion, it was important that such fissures are not introduced into a small community, where such issues could end up being equally explosive.
Secondly, the revision allowed for the solemnisation of Christian marriages in places other than a church or chapel. This was added to recognise the present reality where marriages take place not only in churches but marriage halls, houses and even in destination weddings.
Thirdly, the proposed Act has removed all references to the Registrar General of Births, Marriages and Deaths. While this office has historical significance and the office still remains, the law in force in the country stipulates that marriage be first registered at the local Union Council and then at the National Database and Registration Authority offices.
Harmonising the registration of Christian marriages, something which the Bishop Emeritus of Lahore Alexander John Malik had even taken to the Supreme Court, has to be in accordance with the prevailing law and in consonance with how marriages of other communities are registered by the state.
Fourthly, in the provision for divorce, the revision introduced the notion of violence as understood in the modern sense. This was a major human rights intervention in making the law more equitable and women friendly. There are several instances where violence is not just physical but psychological, economic and otherwise, and the recognition of its grave nature is an essential human right.
Thus, the definition of violence was introduced in this Act as grounds for divorce, to include “any offence committed against the human body of the aggrieved person including abetment of an offence, domestic violence, sexual violence, psychological abuse, economic abuse, stalking or a cybercrime”.
Fifthly, in the provision for divorce, the revision added that a lack of understanding of matrimonial rights and obligations could also lead to dissolution of marriage. Reflecting the provision in Catholic Canon Law, which is also present in Anglican Canon Law and in the law of other churches, this provision notes that a lack of understanding of what marriage actually entails, the responsibilities towards the spouse, children and the family, could also lead to an end of the marriage. The proposed Act, therefore, not only reflects similar provisions in the Canon Law but, for the first time, provides it to Christians in the civil law of Pakistan.
Sixthly, the revision improved the language of the proposed Act and brought it in line with current terminologies. It removed words like idiot and lunatic as grounds for an annulment and replaced it with mental disorder to cover a wide range of mental and psychological issues. This is a recognised ground for annulment both in the Catholic and Anglican Churches as well as most other mainline Christian churches throughout the world.
Seventhly, the revision focused on the issue of alimony the woman receives as part of the interim or final settlement. In the earlier draft, it was fixed at one-fifth, which was thought to be too less. Raising it to “at least one-fourth”, the revision ensured that, at the very least, one-fourth of the husband’s income should go for the upkeep of the former wife and children and that the court, keeping in view the reality of the situation, might even increase it as it sees fit.
And finally, the revision removed the remnant of Article 7 of the Christian Divorce Act, 1869 that had survived as Article 49 in the proposed Act, stipulating that the provisions of this proposed Act were to be read in conformity with the principles and rules of the Divorce and Matrimonial Causes Court in England. Since Pakistan is now an independent country with its own laws and also because such a reference infers that the Pakistani Christian community is in some ways foreign, the whole article was deleted.
These and some other changes accepted by the ministry in the proposed Act made it modern, comprehensive and women friendly. This revision was led by an expert team which included, besides me, Bishop Emeritus of Lahore Alexander John Malik and Peter Jacob. Several others also gave their input in the process, including lawyer Jamshed Rahmatullah, Vicar General of Rawalpindi-Islamabad Diocese Asif John, Fahmida Saleem of the Christian Study Centre, NCJP’s executive director Cecil Shane Chaudhry and Jennifer Bennette.
The strength of this group was that it was a mixed group of religious leaders, scholars, legal experts and activists who had the expertise and experience to comment on such proposed legislation. The revision proposed by this group was not church- or activist/NGO-led. They were led by a deep understanding of Christian thought, a knowledge of the laws of various churches, decades of pastoral experience and an ability to work with the ministry to make the proposed law more comprehensive.
No more delay
The openness with which the Ministry of Human Rights embraced these revisions certainly shows their eagerness to ensure that a holistic and good law is presented before parliament.
All laws in a country are a work in progress and that is why we have the parliament. All legislation is proposed and passed with good intentions, but time, more knowledge and experience mandates its improvement.
The proposed Act might still have some minor issues, but those small things should not keep it from being presented in parliament and passed into law. If there are critical issues that come up later, amendments can certainly be brought in at a later stage.
This is certainly a historic and much-needed legislation and directly affects the lives of over four million citizens of Pakistan. Any more delay in the presentation of the bill will only lead to more suffering.
Yaqoob Khan Bangash is a Chevening Fellow at the Oxford Centre for Islamic Studies. He is the author of A Princely Affair: The Accession and Integration of the Princely States of Pakistan, 1947-55.
This article first appeared on Dawn.