Appeal 2488 of the LHC (Reinstatement of Divorce Act, sec.7)

Petitioner Ameen Masih filed a case against Federation of Pakistan, etc. before Syed Mansoor Ali Shah, CJ of the Lahore High Court. The provision 7 of Divorce Act, 1869 is in question. The brief facts of case are stated below:
Petitioner is a Christian, who wishes to divorce his wife because his marriage has broken down irreparably. He, however, cannot do so under the Divorce Act, 1869, which allows a divorce only if he alleges and proves that his wife has been guilty of adultery under section 10 of the Act. He does not want to do so as this is not true and he wants a divorce solely because he has an unhappy union and wishes to move on and restart his life by dissolving the existing marriage.

He prays that under repealed section 7 of the said Act, grounds of divorce under UK Matrimonial Causes Act, 1973, (including the ground that the marriage has broken down irretrievably) were available to him in the courts in Pakistan, but section 7 was omitted through the Federal Laws (Revision & Declaration) Ordinance, 1981. He prays that the repeal of section of Divorce act be declared to be unconstitutional and violative of fundamental rights of the petitioner.

He argued that Section 7 of the Act was omitted during the undemocratic era of General Zia-ul-Haq, without any consultation with the Christian community. He submits that the repeal was adverse to the interests of the Christian minority and was to pressurize Christians into forced conversion of faith. He prays that legitimate interest of the minority and the fundamental rights of the petitioner be protected and the relief sought be granted.

Ms. Hina Hafeezullah Ishaq Assistant Attorney General for Pakistan in response to notice under Order 27A CPC submitted that Pakistan has ratified the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) thus committing to end discrimination against women. Article 8 provides that any law or custom or usage inconsistent with fundamental rights will have no force of law. She also relied on Articles 9, 14 and 25 to support the rights of women. She further submitted that when the Divorce Act, 1869 was active law, the English law of the time was Matrimonial Act, 1857, which had limited grounds of divorce. Then came Matrimonial Causes Act, 1923 and finally Matrimonial Causes Act, 1973 which allows for divorce if the marriage has irretrievably broken down. It was therefore submitted that the Divorce Act, 1869 has to come in line with the developments in the Christian world to extend similar reliefs to Christians in Pakistan.

Mr. Anwaar Hussain, Additional Advocate General, Punjab in response to notice under Order 27A CPC submits that the Government had made efforts to amend the Act to include other grounds for divorce besides adultery but representatives of Christian community contended that amendment in Section 10 of the Act would be in contravention of Holy Scriptures. He argued that in countries where Christians are in majority, law of divorce has undergone a plethora of change and this has led to the introduction of the ‘No Fault Divorce’. He argued that if this Court declares the impugned repeal ultra vires the Constitution, restored Section 7 can easily co-exist with Section 10 of the Act.

Ms. Fauzia Viqar, chairperson, Punjab Commission on the Status of Women and Ms. Shunila Ruth, MPA representing Christians in the Provincial Assembly in Punjab fully supported the contention of the Petitioner. Rt. Rev. Dr. Alexander John Malik, Bishop Emeritus of Lahore in his written statement stated that Zia-ul-Haq removed section 7 of the Christian Divorce Act 1869 without taking the Christian religious leaders in confidence. Section 7 of the Christian Divorce Act, 1869 needs to be put back as the removal has changed the true spirit of this Act.

Whereas, Mr. Ijaz Farhat, Advocate/President of the Christians District Lawyers Association, submitted that nullity and dissolution of marriage are two separate concepts and have separate legal consequences and under the Act there are three different regimes which are;
(i) Section 10 of the Act provide for Dissolution of marriage;
(ii) Section 18 and 19 provides for declaring a marriage nullity; and
(iii) Section 22 provides for judicial separation.

Mr. Asif Aqeel, a human rights activist and journalist (belonging to the Christian community) submitted that the current legal position is in violation of the conventions signed by the Government of Pakistan, namely Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights.

The Court stated that this case is not about examining the canonical or biblical law but about assessing the legality and constitutionality of provision repealed. It is pointed out for reference that Divorce Act, 1869 is the State law for divorce of Christians in Pakistan. Section 10 of the Act already provides for divorce on grounds of change in religion, second marriage, rape, sodomy, and bestiality, adultery with bigamy, incestuous adultery, adultery coupled with cruelty or adultery coupled with desertion. This Act also provides for annulment of marriage and judicial separation. Therefore, the existing State law provides for grounds of divorce other than the sole ground of adultery.

Section 7 permitted Courts to grant reliefs to Christians on principles and rules, which conform to divorce law in UK. For the recorded reasons, item 7(2) of the second schedule to Federal Laws (Revision & Declaration) Ordinance, 1981 promulgated on 08-07-1981 was declared to be unconstitutional and illegal as it was in violation of fundamental rights of minorities. As a result, section 7 of Divorce Act, 1869 was restored, in the manner it stood in the year 1981, allowing the Christians of Pakistan to access rules and reliefs permitted by the UK Matrimonial Causes Act, 1973.

The restored Section 7 is to be read harmoniously with section 10 of the Act. This means that divorce on the basis of adultery is still permissible but it does not interfere with the rights of those for those who wish to seek divorce on the grounds of their marriage breaking down ‘irretrievably’. They can rely on section 7 of the Act and avail additional grounds available under the Matrimonial Causes Act, 1973. The petition was allowed.