On 20th August, the Federal Information Minister announced that the Cabinet had ‘in principle’ approved the draft bill “Christian Marriage and Divorce Act 2019”. Once approved, the bill will replace the more than a century old Christian Marriage Act of 1872 and the Christian Divorce Act of 1869, both adopted during the British Raj.
The Christian community reacted positively to the long-awaited announcement. The government, church committees and civil society organizations have been negotiating for decades to update the laws relating to Christian conjugal conflicts covered by the Christian Marriage Act of 1872 and the Christian Divorce Act of 1869. The first church seminar on Christian family laws and forced conversions was held in 1993 by the Diocese of Multan. The debate intensified in 2016 after Lahore High Court granted Christian couples the right to divorce for reasons outside of adultery.
In 2016 a Christian man, Ameen Masih, wanted to divorce his wife without a false charge of adultery. He filed a petition to the Lahore High Court for the restoration of Article 7 of Christian Divorce Act of 1869 which had been omitted under the Federal Laws Ordinance 1981 by General Zia-ul-Haq. Justice Mansoor Ali Shah relieved Amin Masih by restoring Article 7. Moreover, his judgment gave the necessary push for the revision of matrimonial and divorce laws of Christians.
As a result of the Ameen Masih case, serious attempts were made by the then government of the Pakistan Muslim League-Nawaz (PML-N) to formulate revisions. After general elections in 2018, the new minister for human rights, ShireenMazari, of Pakistan Tehreek-e-Insaf restarted the process of consultations with Christian leaders over the Act.
After a significant period of timeand a lot of work, 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 with Christian leaders and activists throughout Pakistan.
The new draft of the Act adds several benefits. Prior legislation on Christian marriage and divorce had two separate laws, while the current draft consolidates the two for brevity. The new draft enumerates equal reasons for men and women to file for divorce. Both, husband or wife can file a petition to the court for divorce for a larger number of causes. Thus, affords women greater independence and is less discriminatory.
The Christian Marriage Act of 1872 currently validates the marriage of a girl older than 13 and a boy older than 16 years, while in the new draft law the cut-off age for marriage is 18 years for men and women. This provision of the Act will override the Child Marriage Restraint Act 1929 which sets the legal age for marriage at 16 for girls and 18 for men (Sindh; 18 men & women).
The aforesaid draft bill certainly has many positives but serious changes need to be incorporated to make it a comprehensive and modern law. Under the banner of Centre for Social Justice, a Lahore based organization, an expert group including Dr. Alexander John Malik (Bishop Emeritus of Lahore), Dr. Yaqoob Bangash (Legal Historian), Jamshed Rehmatullah (Jurist), Peter Jacob (Executive Director, Centre for Social Justice) and few others submitted suggestions to the Federal Ministry of Human Rights for improving the Act. Some of those are described as following though ministry has promised to accommodate all.
One of the main problems in the bill begins from its preamble, where it mentions the names of several churches and gives them the status of being main churches. In this way, the bill is ignoring the smaller churches or denominations, which may cause rifts within the community. The bill’s preamble should instead give the rationale of why it is being introduced and who it is intended to benefit.
In its introduction the bill provides a definition of who is a Christian, i.e. “A person who professes the Christian faith (Apostle’s Creed)”. The Apostle’s Creed should be omitted from Article 2-C of the bill so as not to create any discord within the Christian community. The omission is aimed at including all Christian denominations irrespective of their agreeing to the text of the Apostles’ Creed. Whoever calls themselves a Christian must be regarded as one.
While Article 4, mentions that both bride and groom be Christian, however, experts agree that this is putting an unnecessary limit on people who want to marry outside their faith. It is discriminatory that in order to marry someone, people must convert. This was not in the Christian Marriage Act 1872 and that should be reinstated.
In Article 9, the place where marriage is solemnized is the Church, and anywhere else would require a special license and seal, which is a very impractical move. It should be amended. Often people like to get married at home or a marriage hall and many cannot even be able to afford travel to church for a wedding.
The recurring mention of the role of Registrar General in Article 2,19, 21, 23, 24, 25, 37, 42 etc. should be omitted, as it creates an extra burden for Christian community to get their marriage registered. It is discriminatory also as no other community is required to do the same.The new Act should provide a simpler mechanism for registration and certification of marriages. The role of registration of marriage is now with the Union Councils and Nadra, which must be continued.
While recommending on the provisions for divorce, the expert group replaced the word brutality with violence, which may entail domestic, sexual, psychological, physiological, economic, stalking or a cyber crime. Several laws in Pakistan already recognize these and this provides further protection to women.
It is also recommended by experts that if the husband or the wife lacks discretionary judgment concerning the essential matrimonial rights and obligations, it can also lead to dissolution of marriage. Not fulfilling the responsibilities towards the spouse, children and the family, could be a reason to an end of the marriage.
The expert group argued for the deletion of Article 49 of the draft bill which links the Act with the Divorce Court in England. Pakistan is not a colony; it should be self-sufficient in law making. Linking a law for Pakistani Christians to another country is demeaning to the status of Pakistani Christians as citizens. The draft bill carries several discrepancies including the provision of the jurisdiction of English courts in matters concerning divorce and penalty of transportation of convicts which needs to be eliminated.
Considering Article 69 of the draft bill the experts proposed to improve the alimony for the ex-wife and children from one-fifth to one-fourth of the ex-husband’s income. Strongly agreeing with all recommendations of the expert group, the writer disagrees here with due respect and proposes the alimony to at least one-third of the income as it to account for the cost of living for the children.
The revision improved the language of the proposed Act and brought it in line with current terminologies. It suggested to avoid use of offensive, derogatory and outdated terms (Lunatic, Idiot, etc.). It is recommended to check for redundancies; and to cater to the realities of the 21st century.
After incorporating the suggestions of the expert group, this draft bill will be introduced in the National Assembly for further debate and deliberations. Some recommendations may need to be inserted when the bill reaches the Standing Committee after its approval from the National Assembly. Hopefully, this law will be passed by both houses of parliament and promulgated soon to reduce the anguish of Pakistani Christians.