LAW OF Divorce of Christian In Pakistan
Compiled By
Sahaibzada Ashraf Asmi
Advocate High Court
LLM,MBA,MS Eco. MS Edu.
Chairman Human Rights Committee (Punjab )
Lahore High Court Bar
LLM,MBA,MS Eco. MS Edu.
Chairman Human Rights Committee (Punjab )
Lahore High Court Bar
In
1981, Section 10 was introduced by General Zia-ul-Haq, which annulled section 7
of the Christian Divorce Act 1869. Section 7 was omitted on the plea that the
Biblical teachings did not allow Christian couples to part ways on grounds
other than charges of “Adultery.”It was argued that Section 7 of the “Christian
Divorce Act 1869” should be restored according to which “the traditions of the
England courts would apply as far as family/divorce issues of Christians are
concerned.”, At present, there is only one ground available under Section 10 of
the Divorce Act 1869 and that is the charge of adultery only, which is in
conflict with the dignity of a woman.”It is fact that not allowing Christian
couple’ to part ways on mutual consent was violation of Article 9 and 14 of the
Constitution. He argued that Christian in the country should have same rights
as anywhere else in the world, “where a Christian man and his wife can part
their ways on reasonable grounds, rather leveling false allegations of adultery
on each other.”Lahore High Court during hearing petition case regarding change
in Christian Family Laws; remarked that the court wants to facilitate the
Pakistani Christian women in the matters of family laws. In this regard,
Punjab’s Minister for Religious and Minorities Affairs Khalil Tahir Sindhu was
directed by the court to submit a reply on the issue.During the court
proceeding, the court said that knowing the viewpoints of all the stake holders
involved in this case was necessary. In this regard, the court while hearing
the petition case regarding Christian Divorce law directed provincial minister
Khalil Tahir to submit a reply in connection to this case.The court remarked
that Christian women are enjoying up-to-date divorce laws. The court stated
that Pakistani Christian women must also enjoy up to date family laws as well.
Provincial Minister Khalil Tahir Sandhu told the court that Christianity has
very clear guidelines in matters of divorce. He said that Pakistani Christians
also want to secure the rights of Christian women, but the laws laid down by
the Bible must be upheld at any cost.Chief Justice of Lahore High Court Justice
Mansoor Ali Shah remarked that constitution of Pakistan must be imposed in the
country. He said that no law is greater than the constitution. He ensured that
the viewpoints of all the stake holders will be considered before pronouncing
judgment in this case. It was stated that the court is not seeking popularity
of any particular viewpoint but a solid viewpoint in this regard. The court was
adjourned till January 20, Friday.The petitioner Ilayas Bhatti, a Christian had
filed a petition seeking a change in the Christian Divorce Laws in the country.
The defense counsel of the petitioner had maintained that Ilayas Bhatti wished
to divorce his wife however; he does not wish to bring charges of adultery
against her. He maintained that the petitioner wants to divorce his wife
without humiliating her.Federal Minister for Human Rights Kamran Michael, while
presenting his point of view on the matter of divorce in Christianity in front
of the court stated that divine laws could not be changed in the name of
fundamental rights. He was present during the court proceedings at the Lahore
High Court on January 20, Friday. He was also accompanied by Christian scholars
who also presented their point of view on the matter.Federal Minister recited
Biblical verses related to the subject, and maintained that divine laws cannot
be altered on the grounds of human rights. He maintained before the court that
alteration in the divine law merely on the grounds of fundamental rights would
be a desecration of principles laid down by Bible. He asserted that the
conditions for divorce of a Christian couple have been clearly stated in the
Bible.At this occasion, Punjab’s Minister for Human Rights and Minorities’
Affairs Khalil Tahir Sandhu also upheld the Federal Minister’s point of view
before the court. At this occasion, clergymen from different denominations also
presented their point of view before the court. Consequently, Lahore High Court
Chief Justice Syed Mansoor Ali Shah has reserved verdict in a case demanding
amendment to section 10 of Christian Divorce Act, 1869.Followed by court
proceedings, Federal Minister Kamran Michael while talking to the media personnel
stated that the man-made laws could are always subject to change but not the
divine ones. He asserted that the laws prevalent in the European countries
could not be enforced in Pakistan on the pretext of human rights. This case
hearing was also attended by other Christian church and political leaders
including MPA Shahzad Munshi , MPA Tariq Masih Gill, Asif Bhatti and
others.During the previous hearing, Justice Syed Mansoor Ali Shah had directed
the Provincial Minister for Human Rights and Minorities’ Affairs Khalil Tahir
Sandhu to submit a reply on the matter. On January 20, Khalil Tahir submitted a
reply related to the matter. While talking to the media, Khalil Tahir stated
that there are no biblical grounds for divorce of Christian couples other than
adultery. Christian couples in the country should only be allowed to part ways
on conditions as prescribed in the Holy Bible, says Pastor Samuel Khokhar. He
went on to slam judiciary saying that no judge exercises right to rule contrary
to the Biblical teachings. He said that recently the LHC judge has ruled
against the Christian concept of divorce by allowing Pakistani Christians to
divorce their spouses on mutual consent.Pastor Samuel Khokhar strongly
condemned the decision of LHC; saying that United Bishop Council of Pakistan
and Supreme Council of Bishops should take stance against this decision and
issue a decree against the provocative ruling. “LHC’s ruling goes against the
teachings of Lord Jesus Christ, and the Christian beliefs,” he said. He further
added that the Petitioner who himself is a Christian should be considered a
pervert from the Christian belief. He said that the petitioner had filed a
petition which negates the teachings of Lord Jesus Christ.He urged the Chief
Justice of Pakistan to take note of the divisive ruling, and insisted that
necessary amendments should be made in the Christian Divorce Act which fall in
line with the Holy Bible and the Christian concept of divorce. He said that if
this ruling is not revoked, country’ Christians will be left with no other
option but to protest against LHC’ ruling.Previously, Justice Mansoor Ali Shah
had of LHC had pronounced Section 7 of the Christian Divorce Act of 1869, at
the same time annulling Section 10 of the Christian Divorce Act of 1981. According
to Section 7 of Christian Divorce Act 1869; Christian couples were permitted,
seek divorce according to procedures implemented by British Christian culture
and laws.Christian couples are allowed to file for divorce even without the
ground of adultery. On the other hand, Section 10 of the Christian Marriage Act
1971, which was introduced by General Zia-ul-Haq, followed by a plea that
Christian couples should only be allowed to part ways on the grounds of
adultery.
Now
come up to the land mark judgment made by The Honourable Lahore High court.Petitioner
is a Christian, who wishes to divorce his wife because unfortunately his
marriage has broken down irretrievably. He, however, cannot do so under the
Divorce Act, 18691 (“Act”), as it stands today, because he can only get a
divorce if he alleges and proves that his wife has been guilty of adultery (see
Section 10 of the Act). 1 Law applicable to Christians only W.P. No.623/2016 3
He does not wish to do so as this is not true but wants a divorce on the basis
of the fact that he has a dead marriage and 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 Act, grounds of divorce under UK Matrimonial
Causes Act, 1973 (“UK Act”), 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 (XXVII of 1981) (“Ordinance”). He prays that item 7 (2) of the
Second Schedule to the Ordinance, whereby Section 7 of the Act was repealed, be
declared to be unconstitutional and violative of the fundamental rights of the
petitioner. 2. He contends that Christians in Pakistan are a minority and under
the Constitution, the State is bound to protect the legitimate interests of the
Christians, over and above the fundamental rights, which are guaranteed to him
as a citizen of Pakistan under the Constitution. He prays that grounds of
divorce available to a Christian under the UK Act be made available to the
petitioner. He contends that repeal of section 7 by the Ordinance is violative
of the fundamental rights of the petitioner including right to profess and
practice his religion, right to life, right to dignity and right to
non-discrimination. 3. He argued that Section 7 of the Act was omitted during
the undemocratic era of General Zia-ul-Haq, without any deliberations or
consultations 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 submits that in order to go around W.P.
No.623/2016 4 section 10 of the Act, many Christians have, over the years,
carried out fake conversions, in order to divorce their spouses. He prays that
legitimate interests of the minority and the fundamental rights of the
petitioner be protected and item no. 7(2) of Second Schedule to the Ordinance
be declared unconstitutional and section 7 be restored to its original
position. 4. Ms. Hina Hafeezullah Ishaq, learned Assistant Attorney General for
Pakistan in response to notice under Order 27A CPC submitted that the Pakistan
has ratified the Convention on the Elimination of all Forms of Discrimination Against
Women (CEDAW) thus committing to end discrimination against women. Article 25
of the Constitution empowers the State to make special provisions for women and
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 and
14 to support the rights of women. She submitted that Divorce Act, 1869 is a
pre-constitutional legislation almost 147 years old and inspite of several
attempts to introduce amendments, the State has not been successful. She
submits that even though the Federal Law (Revision & Declaration)
Ordinance, 1981 stands validated under Article 270-A of the Constitution, but
as it fails to pass the test of fundamental rights, the validation does not
hold. Placed reliance on Sindh High Court Bar Association through its Secretary
and another v. Federation of Pakistan through Secretary, Ministry of Law and
Justice, Islamabad and others (PLD 2009 SC 879), Miss Asma Jilani v. The
government of the Punjab and another (PLD 1972 SC 139), Wattan Party through
President v. Federation of Pakistan through Cabinet Committee of Privatization,
Islamabad and others (PLD 2006 W.P. No.623/2016 5 SC 697), Al-Jehad Trust
through Raeesul Mujahideen Habibul-Wahabb-ul-Khairi and others v. Federation of
Pakistan and others (PLD 1996 SC 324) and Chief Justice of Pakistan Iftikhar
Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD
2010 SC 61). 5. She argued that under Article 227 of the Constitution all
existing laws shall be brought in conformity with the injunctions of Islam and
no law can be enacted which is repugnant to such injunctions. No such
corresponding or similar provision is available to the laws of the other
faiths, which would then have to be judged and examined on the touchstone of
fundamental rights and the Constitution. When Divorce Act, 1869 was prevalent,
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 is submitted that Divorce Act, 1869 has to come
in line with the developments in the Christian world and Christians in Pakistan
be extended the same relief. 6. Mr. Anwaar Hussain, Additional Advocate
General, Punjab in response to notice under Order 27A CPC submits that the
Government has made efforts to amend the Act and for this purpose meetings were
held under the Chairmanship of the Minister for Human Rights and Minorities
Affairs Department in order to include other grounds for divorce besides
adultery. However, consensus could not be reached because the representatives
of Catholic Church, Presbyterian Church and Church of Pakistan expressed reservations
and contended that amendment in Section 10 of the Act would be in contravention
W.P. No.623/2016 6 of the Holy Scriptures. He further submits that by efflux of
time in countries where Christians are in majority, law of divorce has
undergone a sea change. Christians all over the world can divorce their spouse
on grounds other than adultery. He argued that No Fault Divorce was introduced
way back in the year 1918 in Russia. In the United Kingdom, Matrimonial Causes
Act, 1973, confers right on a person to divorce his or her spouse on the
grounds other than adultery. Similarly, in United States in 1969, State of
California first recognized No Fault Divorce. Family Law Act, 1975 in Australia
and Divorce Act, 1968 in Canada were amended to set such a separation for one
year with the requirement to prove fault by either spouse. In China, divorce is
granted if one party can present evidence of incompatibility. Learned Law
Officer 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
by applying the principle of harmonious construction/ interpretation of
statute. 7. Ms. Hina Jillani, Advocate/learned amicus curiae, fully supports
the contention of the petitioner and submits that deletion of Section 7 by the
Ordinance is violative of Articles 9, 14 and 25 of the Constitution. In order
to protect the rights of the minorities in the country their interests should
be safeguarded in a manner that the grounds of divorce available to Christians
all over the world be made available to the Christian minority in Pakistan. 8.
Ms. Fauzia Viqar, Chairperson, Punjab Commission on the Status of Women,
invited as an amicus, fully supports the contention of the petitioner and
submits that Christians in the country have tried hard for several years to
bring about W.P. No.623/2016 7 amendment in Section 10 of the Act so that
grounds other than adultery are available to them to dissolve marriage. She
prays that fundamental rights of the Christians be restored and this legitimate
interest of the minorities be safeguarded. 9. Ms. Shunila Ruth, MPA
representing Christians in the Provincial Assembly in Punjab fully supports the
contention of the petitioner and vehemently submits that amendment brought
about in section 7 of the Act be struck down as unconstitutional so that
grounds other than adultery are available to the Christians in Pakistan which
will be in line with human dignity guaranteed to every citizen of Pakistan
under the Constitution. 10. Rt. Rev. Dr. Alexander John Malik, Bishop Emeritus
of Lahore in his written comments dated 14.02.2016 states as follows:-
“Zial-ul-Haq removed Section 7 of the Christian Divorce Act 1869 without taking
the Christian religious leaders in confidence. I was very much the Bishop of
Lahore in 1981 and to the best of my knowledge he did not consult us. It looks
[that] Ziaul-Haq was used to doing such things quietly as he did by removing
the word “freely” pertaining to the minorities from the Objective Resolution
while making the resolution a substantive part of the constitution as Article
2A. Later the Supreme Court took notice of it and the worked “freely” was put
back in the Resolution and the Constitution. Similarly, Section 7 of the
Christian Divorce Act of 1869 needs to be put back in the said Act. Removal of
Section 7 has changed the original spirit of the said Act and made it
restrictive and violative of Human Rights. I, therefore admit/agree to the
prayer sought for in the writ petition.” 11. In order to reach out to the
Christian community and to ensure maximum participation, public notices dated
25.04.2016 were published in National Dailies i.e., “The News” and
“Nawa-i-Waqt”, in addition, notices were issued to Sebastain W.P. No.623/2016 8
Francis Shaw, Archbishop, Archdiocese of Lahore, 73-FCC, Canal Bank Road
Gulberg-IV, Lahore, Bishop Azad Marshal, Church of Pakistan, Raiwind DIOCESE
Saint Thomas, Centre near Lahore Safari Park, Raiwind Road, Lahore, Dr. Majeed
Abel, Moderate Presbyterian, Church of Pakistan, Naulakha Church Empress Road,
Lahore, Senator Kamran Michael, Federal Minister for Human Rights, Government
of Pakistan, 133-A, Model Town, Lahore and Mr. Khalil Tahir Sindhu, Provincial
Minister for Human Rights, 1-Upper Mall, Lahore. 12. On 20.01.2017, Mr. Khalil
Tahir Sandhu, Minister for Human Rights & Minorities Affairs, Punjab has
tendered appearance and submitted his written comments dated 20.01.2017 which
primarily relies on the verses of the Bible and places reliance on Mst. Nazir Yasin
v. Yasin Farhat (PLD 2000 Lahore 594). 13. Rt. Rev. Sebastian Francis Shaw,
Archbishop of Roman Catholic Church, Lahore, Rt. Rev. Irfan Jamil, Bishop of
Lahore and Rev. Dr. Majid Abel, Moderator Presbyterian Church of Pakistan,
Lahore have also submitted their written position, where in they state that “no
one can change any verse or order of the Holy Bible.” 14. Bishop Azad Marshall,
Co-Adjutor Bishop of Raiwind Diocese Church of Pakistan and President National
Council of Churches in Pakistan has also submitted written position dated
19.01.2017 which states that biblical injunctions be kept intact. 15. Senator
Kamran Michael, Federal Minister, Ministry of Human Rights, Islamabad also
supported the view expressed by the persons mentioned above. He has also submitted
his written W.P. No.623/2016 9 position, which states that being divine law of
Christianity, no one can change any verse or order of the Holy Bible. 16.
Father Emanuel Yousaf Mani, Sr. Catholic Priest, St. Anthony Church, Lahore
submitted that there is a difference between nullity and dissolution of
marriage. He submitted that as far as nullity of the marriage is concerned, it
means that marriage never took place and therefore parties can re-marry,
whereas dissolution of marriage means that marriage has validly taken place and
is now being dissolved. 17. On the other hand, Ms. Marry Gill, MPA
(representing Christian community) has tendered appearance and supports the
contention of the petitioner and submits that all over the world “No Fault
Divorce” has been introduced and it must also be available to the Christians in
Pakistan. She submitted that provisions of section 10 of the Divorce Act, 1869
as they stand are discriminatory and against the dignity of women and required
to be re-visited and contextualized with the norms of modern society. She
submitted that section 7 of the Act was deleted from the law in order to force
Christians to convert and this has been the practice since. 18. Mr. Ijaz
Farhat, Advocate/President of the Christians District Lawyers Association,
submitted that under the Act there are three different regimes, which are as
follows:- (i) Section 10 of the Act provide for dissolution of marriage; (ii)
Sections 18 & 19 provides for declaring a marriage a nullity; and (iii)
Section 22 provides for judicial separation. W.P. No.623/2016 10 He submitted
that nullity and dissolution of marriage are two separate concepts and have
separate legal consequences. 19. 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 and International
Covenant on Civil and Political Rights. 20. I have heard the learned counsel
for the parties, as well as, the various members of the Church, Christian
parliamentarians and freelance journalist and have gone through the law and
other materials presented before the Court. OPINION OF THE COURT Law and
judicial review 21. This is a Constitutional Court empowered to judicially
review legislation on the touchstone of fundamental rights. Judges of this
Court have sworn an oath to discharge their duties and perform their functions,
honestly, to the best of their ability, and faithfully, in accordance with the
Constitution of the Islamic Republic of Pakistan and the law….to preserve,
protect and defend the Constitution…and in all circumstances, do right to all
manner of people, according to law, without fear or favour, affection or ill
will. This Court is, therefore, to adjudicate matters in accordance with the
Constitution and the law and there is no room for personal interest, belief,
passion or inclinations. 22. In the present case, this Court is to examine the
constitutionality and legality of the repeal of section 7 of the W.P.
No.623/2016 11 Divorce Act, 1869 through Federal Laws (Revision &
Declaration) Ordinance, 1981 (XXVII of 1981) on the touchstone of the minority
rights guaranteed under the Constitution. 23. The submissions of the Christian
ecclesiastical and political leadership revolved around their understanding and
interpretation of the canonical law. Their singular argument was that divorce
other than on the ground of adultery is not permitted in the Holy Bible and viewed
the judicial examination of the impugned Ordinance by this Court, to amount to
sitting in judgment over the personal/biblical law of Christians. They
submitted that biblical law or Christian personal law fell outside the
jurisdiction of this Court and any judicial interference by this Court would be
a direct affront to the religious sensibilities of the Christians. This line of
thinking, with respect, is totally misconceived. Biblical Law or Christian
personal law is not under discussion in this case. It is the State law i.e.,
Federal Laws (Revision & Declaration) Ordinance, 1981 which is under
review, whereby section 7 of the Act was deleted. 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 (reproduced hereunder) already provides for
divorce on grounds of (a) change in religion (b) second marriage (c) rape (d)
sodomy and (e) bestiality (f) adultery with bigamy, (g) incestuous adultery,
(h) adultery coupled with cruelty or (i) adultery coupled with desertion. The
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. The distinctiveness of State law and personal law has to be
borne in mind in order to understand the scope of this judgment. W.P.
No.623/2016 12 Sections 10, 18, 19 and 22 of Divorce Act, 1869 are reproduced
hereunder for reference:- Section 10. When husband may petition for
dissolution: Any husband may present a petition to the Court of Civil Judge
praying that his marriage may be dissolved on the ground that his wife has,
since the solemnization thereof, been guilty of adultery. When wife may
petition for dissolution: Any wife may present a petition to the Court of Civil
Judge praying that her marriage may be dissolved on the ground that, since the
solemnization thereof, her husband has exchanged his profession of Christianity
for the profession of some other religion, and gone through a form of marriage
with another woman; or has been guilty of incestuous adultery. or of bigamy
with adultery or of marriage with another woman with adultery. or of rape,
sodomy or bestiality. or of adultery coupled with such cruelty as without
adultery would have entitled her to a divorce a mensa et toro. or of adultery
coupled with desertion, without reasonable excuse, for two years or upwards.
Contents of petition: Every such petition shall state, as distinctly as the
nature of the case permits, the facts on which the claim to have such marriage
dissolved is founded.” Section 18. Petition for decree of nullity. Any husband
or wife may present a petition to the court of Civil Judge, praying that his or
her marriage may be declared null and void. Section 19. Grounds of decrees
.Such decree may be made on any of the following grounds: (1) that the
respondent was impotent at the time of the marriage and at the time of the
institution of the suit; (2) that the parties are within the prohibited degrees
of consanguinity (whether natural or legal) or affinity; W.P. No.623/2016 13
(3) that either party was a lunatic or idiot at the time of the marriage; (4)
that the former husband or wife of either party was living at the time of the
marriage, and the marriage with such former husband or wife was then in force.
Nothing in this section shall affect the [jurisdiction of the District Court]
to make decrees of nullity of marriage on the ground that the consent of either
party was obtained by force or fraud. Section 22. Bar to decree for divorce a
mensa et toro; but judicial separation obtainable by husband or wife. No decree
shall hereafter be made for a divorce a mensa for at toro, but the husband or
wife may obtain a decree of judicial separation, on the ground of adultery, or
cruelty, or desertion but: without reasonable excuse for two years or upwards,
and such decree shall have the effect of a divorce a mensa et toro under the
existing law, and such other legal effect as hereinafter mentioned. 24. This
Court is only to judicially review the existing State law on the yardstick of
constitutional values and fundamental rights guaranteed to the
minorities-cum-citizens of this country under the Constitution. Nothing else.
The apprehension of the clergy that this Court is deciding against the
teachings of the Holy Bible, is unfounded, as this court is doing no such
thing. This Court is simply examining the constitutionality of the provision of
the impugned Ordinance whereby section 7 of the Act has been deleted. If the
Christian clergy are unhappy with the law, they can approach the Parliament for
its revision. Therefore, this case is not about examining the canonical or
biblical law but about assessing the legality and constitutionality of item
7(2) of the Second Schedule of Federal Laws (Revision and Declaration)
Ordinance, 1981. Having dispelled this unfounded apprehension of the political
and ecclesiastical leadership, I proceed further. W.P. No.623/2016 14 25.
Section 7 of the Divorce Act, 1869 before its repeal by the Federal Laws
(Revision & Declaration) Ordinance, 1981 and as amended by Divorce
(Amendment) Act, 1975 read as follows:- Section 7: Court to act on principles
of English Divorce Court. Subject to the provisions contained in this Act, the
Courts shall, in all suits and proceedings hereunder, act and give relief on
principles and rules which, in the opinion of the 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.
(emphasis supplied) Section 7 provided that Courts shall give relief to
Christians on principles and rules, which are conformable with the divorce law
in UK. Section 7 was deleted through item 7(2) of the Second Schedule read with
section 3 of Federal Laws (Revision & Declaration) Ordinance, 1981 (XXVII
of 1981) promulgated on 08.07.1981. The Ordinance (item 7(2) of the Second
Schedule) simply provided that section 7 of the Act shall be omitted. With
section 7 repealed by the Ordinance, the only grounds left for divorce or
dissolution of marriage are provided under Section 10 of the Act, reproduced
above. 26. Before reviewing the constitutional vires of the impugned Ordinance
to the extent of repeal of section 7 of the Act, it is essential to have an
overview of the concept of Christian Divorce and its liberalization over the
years in Christian majority countries. The term “Divorce” as a verb means “to
separate.” When the word “divorce” is confined to its strict legal sense, it
means the legal dissolution of a lawful union for a cause arising after
marriage. 2 Divorces under Christian law are generally of two distinct types:
Absolute divorce, or divorce 2 Corpus Juris Secondum, Volume 27A. p.16
Thomson/West. Ed 2008 W.P. No.623/2016 15 “a vinculo matrimonii" is a
judicial dissolution of the marriage ordered as a result of marital misconduct
or other statutory cause arising after the marriage ceremony, whereas limited
divorce, sometimes referred to as divorce “a mensa et thoro,” “divorce from bed
and board,” or legal separation is a change in status by which the parties are
separated and are precluded from cohabitation, but the actual marriage is not
affected3 . Limited divorce is sometimes termed a judicial separation, which
suspends the marriage relation and modifies its duties and obligations, leaving
the bond in full force. 4 27. In Christian majority countries, although it is
public policy to discourage divorce, and not to favour or encourage it, public
policy does not discourage divorce where the relations between husband and wife
are such that the legitimate objects of matrimony have been utterly destroyed.
The State is not interested in perpetuating a marriage after all possibilities
of accomplishing a desirable purpose of such relationship is gone, or out of
which no good can come and from which harm may result, Accordingly, it is the
public policy to terminate dead marriages.5 28. In this connection,
non-culpatory or so-called “no fault” laws have been enacted in many
jurisdictions in order to enable persons to extricate themselves from a dead
marriage more easily. 6 Most states now have statutes which allow for no-fault
divorce, or divorce by consent, in which the parties are not required to prove
fault or grounds for divorce other than a 3 Corpus Juris Secondum, Volume 24
p.228 Thomson/West. Ed 2008 4 Corpus Juris Secondum Volume 27A p.18
Thomson/West. Ed 2008 5 Ibid p.30 6 ibid p.31 W.P. No.623/2016 16 showing of
irreconcilable differences or an irretrievable breakdown of the marriage.7 29.
Primary purpose of such a statute is to remove from domestic relations
litigation the issue of marital fault as a determining factor, to abolish the
necessity of presenting sordid and ugly details of conduct by either party to
obtain a dissolution of marriage and to replace the concept of fault by
substituting marriage failure or “irretrievable breakdown” as a basis for a
decree dissolving a marriage. It has also been observed that the purposes of a
no-fault divorce statute are: to strengthen and preserve the integrity of
marriage and safeguard family relationships; to promote the amicable settlement
of disputes that have arisen between parties to a marriage; to mitigate the
potential harm to the spouses and their children caused by the process of legal
dissolution of marriage; to make reasonable provision for the spouse and minor
children during and after litigation; and to make the law of legal dissolution
of marriage effective for dealing with the realities of matrimonial experience
by making irretrievable breakdown of the marriage relationship the sole basis
of its dissolution. 8 These no fault statutes were enacted based on the
theories that a divorce should be granted when a marriage has broken down, so
that parties may be free to form other alliances, to keep pace with
contemporary social realities, and to reduce guilt and conflict as incidents of
divorce, as well as to minimize bitterness resulting from attempts to place
blame for an unsuccessful marriage with either the husband or the wife. Most
no-fault divorce statutes provide for dissolution of marriage upon a showing
that the marriage is “irretrievably broken” or similar variations of such 7
Corpus Juris Secondum, Volume 24 p.229 Thomson/West. Ed 2008 8 ibid p.230 W.P.
No.623/2016 17 language. A marriage is “irretrievably broken” as a basis for
divorce, where either or both parties are unable or refuse to cohabit and there
are no prospects for a reconciliation. 9 30. The Family Law Act of California
has been enthusiastically received throughout that state by judges, lawyers,
sociologists, psychologists, partners to broken marriages and the public at
large. Judge Everett M. Porter applauds the action taken by the California
Legislature and says: 10 “…The new act recognizes that a man and wife cannot be
compelled to live together in the marital relation. It recognizes that the
right to support, both temporary and permanent, should depend on relevant need
and the circumstances of the parties. It decrees that when divorce and
separation are inevitable, neither spouse shall be permitted to use the law or
the court as an instrument for revenge… It empowers the court to do whatever is
necessary to protect the vital interest of minor children. There isn’t a state
in the union that shouldn’t be using the provisions in the New Family Law Act
of California.” 31. The so-called “no-fault” revolution started in the 1970s,
when many countries introduced grounds for divorce in addition to fault,
typically the “irretrievable breakdown” of the marriage. The table below shows
the global change in the Christian divorce law in some of the majority
Christian countries: 9 ibid p. 251 10 John D. Cannell - Abolish Fault-Oriented
Divorce in Ohio- As a service to society and to restore dignity to the domestic
relations courts. W.P. No.623/2016 18 No Fault Divorce in the Christian World11
Sr. No Country Year when Divorce allowed No-fault Divorce allowed % Christian %
Catholic % protestant/ Orthodox/ other 1 Austria Pre-1950 Pre-1950 70% 59.9%
10% 2 Belgium Pre-1950 Pre-1950 65% 58% 7% 3 Denmark Pre-1950 Pre-1950 79% 1%
77.8% 4 Finland Pre-1950 Pre-1950 74.9% 0 74.9% 5 France Pre-1950 1976 63-66%
53-63% 4% 6 Germany Pre-1950 Pre-1950 60% 29% 31% 7 Greece Pre-1950 1979 89.5%
1.2% 88.3% 8 Iceland Pre-1950 Pre-1950 85.3% 3.6% 81.7% 9 Ireland 1997 1997 87%
84% 3% 10 Italy 1971 1975 83% 81.2% 2% 11 Luxembourg Pre-1950 Pre-1950 72.4%
68.7% 3.7% 12 Netherlands Pre-1950 1971 34%- 44% 22.0%- 23% 10.2%- 22.0% 13
Norway Pre-1950 Pre-1950 76.7% 2.4% 74.3% 14 Portugal 1977 1977 84.3% 81% 3.3%
15 Spain 1981 1981 71% 68% 2% 16 Sweden Pre-1950 Pre-1950 65% 2% 63% 17
Switzerland Pre-1950 Pre-1950 69.1-78% 37.9-40.0 31.2-39% 18 UK Pre-1950 1971
59.3% 8.9% 50% 19 Australia 1975 61.1% 25.3% 35.8% 20 Canada 1986 67.3% 38.7%
29% 21 South Africa 1979 80% 5% 75% 22 United States 1970s 1970s 71% 20.8%
49.8% The above shows that the countries with majority Christian population,
irrespective of being catholic or protestant, have introduced the no-fault
divorce based on the concept of irretrievable breakdown of marriage. 32. 90th
Report of the Law Commission of India on THE GROUNDS OF DIVORCE AMONGST
CHRISTIANS IN INDIA: SECTION 10 OF INDIAN DIVORCE ACT, 1969 states as under:
1.1. The Law Commission of India has taken up for consideration on the question
whether the law relating to the grounds of divorce applicable to Christians in
India under section 10 of the Indian Divorce Act, 1869 should be reformed, and
if so, on what lines. The inadequacies of the present law have been stressed 11
The Effect of Divorce Laws on Divorce rates in Europe- Libertad Gonzalez. March
2006 (IZA DP no. 2023) and Sovereign States and defendant territories –
Christianity by Country. W.P. No.623/2016 19 from time to time by individuals
and social organisations. The Law Commission of India itself had, a few years
ago, made detailed recommendations for reform12 of the law on the subject, in a
comprehensive Report dealing with the entire law of marriage and divorce
amongst Christians in India, supplemented by another Report13 dealing with
certain matters arising out of the Bill prepared by Government on the subject.
While legislation for removing the defects in the law on the subject has not
been introduced, it appears to the Commission that it is urgently necessary in
the interest of social justice to take up some issues, even if a comprehensive
legislation by way of revision of the enactments on the subject cannot be
undertaken by Government. 1.2. In a letter recently addressed to the Chairman
of the Law Commission14 there have been narrated certain actual cases of
Christian women who were treated with severe cruelty by their respective
husbands, as a consequence of which the women had to undergo a lot of
suffering, resulting in their mental breakdown. The letter also mentions many
other cases of cruelty by Christian husbands (even of husbands putting their
wives into prostitution), and of long continuing desertion by the husbands,
who, notwithstanding their own past misconduct, nevertheless expect their wives
to accept them back. Because of the difficulty of getting a divorce in such
cases, these women, it is stated, have no hope of redeeming their lives and
finding happiness for themselves and their children. 1.3. It has also been
emphasized in the letter mentioned above that the recent proposal to amend the
Special Marriage Act and the Hindu Marriage Act by way of introducing
“irretrievable breakdown” as a ground for divorce (in the two Acts) is the
first step towards the liberation of unfortunate Indian women and that the same
should be extended to Christians also Towards the end of the letter, the need
for a uniform divorce law covering every community has also been stressed,
“thereby enabling the Christian woman 12 Law Commission of India, 15th Report
(Law relating to marriage and divorce amongst Christian in India). 13 Law
Commission of India, 22nd Report (Christian Marriage etc. Bill). 14 Letter
addressed to the Law Commission by Ms. Aud Sonia Reberts, New Delhi, dated 15th
September, 1981. W.P. No.623/2016 20 especially, to break away completely from
an unhappy union and start a new life while she is still young and sane enough
to do so.” (emphasis supplied) 33. Thereafter, India brought about the Indian
Amendment Act, 2001 (51 of 2001) which expanded the scope of divorce in
sections 10 and 10A of their Act: 10. Grounds for dissolution of marriage “(1)
Any marriage solemnized, whether before or after the commencement of the Indian
Divorce (Amendment) Act, 2001, may, on a petition presented to the District
Court either by the husband or the wife, be dissolved on the ground that since
the solemnization of the marriage, the respondent (i) has committed adultery;
or (ii) has ceased to be Christian by conversion to another religion; or (iii)
has been incurably of unsound mind for a continuous period of not less than two
years immediately preceding the presentation of the petition; or (iv) has, for
a period of not less than two years immediately preceding the presentation of
the petition, been suffering from a virulent and incurable form of leprosy; or
(v) has, for a period of not less than two years immediately preceding the
presentation of the petition, been suffering from venereal disease in a
communicable form; or (vi) has not been heard of as being alive for a period of
seven years or more by those persons who would naturally have heard of the
respondent if the respondent had been alive; or (vii) has willfully refused to
consummate the marriage and the marriage has not therefore been consummated; or
(viii) has failed to comply with a decree for restitution of conjugal rights
for a period of two years W.P. No.623/2016 21 or upwards after the passing of
the decree against the respondent; or (ix) has deserted the petitioner for at
least two years immediately preceding the presentation of the petition; or (x)
has treated the petitioner with such cruelty as to cause a reasonable
apprehension in the mind of the petitioner that it would be harmful or
injurious for the petitioner to live with the respondent. (2) A wife may also
present a petition for the dissolution of her marriage on the ground that the
husband has, since the solemnization of the marriage, been guilty of rape,
sodomy or bestiality.” 10-A. Dissolution of marriage by mutual consent (1)
Subject to the provisions of this Act and the rules made thereunder, a petition
for dissolution of marriage may be presented to the District Court by both the
parties to a marriage together, whether such marriage was solemnized before or
after the commencement of the Indian Divorce (Amendment) Act, 2001, on the
ground that they have been living separately for a period of two years or more,
that they have not been able to live together and they have mutually agreed
that the marriage should be dissolved. (2) On the motion of both the parties
made not earlier than six months after the date of presentation of the petition
referred to in sub-section (1) and not later than eighteen months after the
said date, if the petition is not withdrawn by both the parties in the
meantime, the Court shall, on being satisfied, after hearing the parties and
making such inquiry, as it thinks fit, that a marriage has been solemnized and
that the averments in the petition are true, pass a decree declaring the
marriage to be dissolved with effect from the date of decree. UK Matrimonial
Causes Act, 1973 34. Repealed Section 7 of the Act provides that the Courts in
W.P. No.623/2016 22 Pakistan shall, in all suits and proceedings hereunder, act
and give relief on principles and rules which, in the opinion of the 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. The UK law referred to in (repealed) section 7 is the UK
Matrimonial Causes Act, 1973. Section 1 of Part 1 of Chapter 18 of UK law
provides as follows: 1.- (l) Subject to section 3 below, a petition for divorce
may be presented to the court by either party to a marriage on the ground that
the marriage has broken down irretrievably. (2) The court hearing a petition
for divorce shall not hold the marriage to have broken down irretrievably
unless the petitioner satisfies the court of one or more of the following
facts, that is to say- (a) that the respondent has committed adultery and the
petitioner finds it intolerable to live with the respondent; (b) that the
respondent has behaved in such a way that the petitioner cannot reasonably be
expected to live with the respondent ; (c) that the respondent has deserted the
petitioner for a continuous period of at least two years immediately preceding
the presentation of the petition ; (d) that the parties to the marriage have
lived apart for a continuous period of at least two years immediately preceding
the presentation of the petition (hereafter in this Act referred to as "
two years' separation ") and the respondent consents to a decree being
granted ; (e) that the parties to the marriage have lived apart for a
continuous period of at least five years immediately preceding the presentation
of the petition (hereafter in this Act referred to as " five years'
separation "). W.P. No.623/2016 23 (3) On a petition for divorce it shall
be the duty of the court to inquire, so far as it reasonably can, into the
facts alleged by the petitioner and into any facts alleged by the respondent.
(4) If the court is satisfied on the evidence of any such fact as is mentioned
in subsection (2) above, then, unless it is satisfied on all the evidence that
the marriage has not broken down irretrievably, it shall, subject to sections
3(3) and 5 below, grant a decree of divorce. (5) Every decree of divorce shall
in the first instance be a decree nisi and shall not be made absolute before
the expiration of six months from its grant unless the High Court by general
order from time to time fixes a shorter period, or unless in any particular
case the court in which the proceedings are for the time being pending from
time to time by special order fixes a shorter period than the period otherwise
applicable for the time being by virtue of this subsection. UK law and other
international material show that no-fault divorce or irretrievable breakdown of
marriage is an established ground of divorce in Christian majority countries of
the world. Pakistan & Christian Minority 35. Pakistan’s population is estimated
at nearly 188.9 million with a Christian population of 2.5 million. The white
rectangle on the left side of the Pakistani flag symbolizes the nation’s
minority community. Religious minority in Pakistan includes Christians, Hindus,
Sikhs, Parsis, Zikris, Bahais, Buddists and Kalasha. Government statistics show
that 96.28% of Pakistan’s population is Muslim and 1.6% is Christian. 15 15 A
Question of Faith – A Report on the Status of Religious Minorities in Pakistan.
Jinnah Institute Research Report. 2011 p.14 W.P. No.623/2016 24 Minority Rights
36. In 1948, the Universal Declaration of Human Rights (UDHR) was adopted by
the UN General Assembly and provided in Article 1 that, “All human beings are
born free and equal in dignity and rights. They are endowed with reason and
conscience and should act towards one another in a spirit of brotherhood.” It
is within this international framework of human rights and the indicators of
equality and nondiscrimination that a dialogue on the protection of minorities
finds its roots. 16 37. In 1992 the General Assembly adopted the United Nations
Minorities Declaration by consensus (resolution 47/135). It is the main
reference document for minority rights. It grants to persons belonging to
minorities17 : i. Protection, by States, of their existence and their national
or ethnic, cultural, religious and linguistic identity (art. 1); The right to
enjoy their own culture, to profess and practise their own religion, and to use
their own language in private and in public (art. 2 (1)); ii. The right to
participate effectively in cultural, religious, social, economic and public
life (art. 2 (2)); iii. The right to participate effectively in decisions which
affect them on the national and regional levels (art. 2 (3)); iv. The right to
establish and maintain their own associations (art. 2 (4)); v. The right to
establish and maintain peaceful contacts with other members of their group and
with persons belonging to other minorities, both within their own country and
across State borders (art. 2 (5)); and 16 ibid p.19 17 Minority Rights –
International Standards & Guidance for implementation - 2010. UN Human
Rights- Office of the High Commissioner W.P. No.623/2016 25 vi. The freedom to
exercise their rights, individually as well as in community with other members
of their group, without discrimination (art. 3). vii. States are to protect and
promote the rights of persons belonging to minorities by taking measures to:
viii. Ensure that they may exercise fully and effectively all their human rights
and fundamental freedoms without any discrimination and in full equality before
the law (art. 4 (1)); ix. Create favourable conditions to enable them to
express their characteristics and to develop their culture, language, religion,
traditions and customs (art. 4 (2)); x. Allow them adequate opportunities to
learn their mother tongue or to have instruction in their mother tongue (art. 4
(3)); xi. Encourage knowledge of the history, traditions, language and culture
of minorities existing within their territory and ensure that members of such
minorities have adequate opportunities to gain knowledge of the society as a
whole (art. 4 (4)); xii. Allow their participation in economic progress and
development (art. 4 (5)); xiii. Consider the legitimate interests of minorities
in developing and implementing national policies and programmes, and
international programmes of cooperation and assistance (art. 5); xiv. Cooperate
with other States on questions relating to minorities, including exchanging
information and experiences, to promote mutual understanding and confidence
(art. 6); xv. Promote respect for the rights set forth in the Declaration (art.
7); xvi. Fulfill the obligations and commitments States have assumed under
international treaties and agreements to which they are parties. xv. Finally,
the specialized agencies and other organizations of the United Nations system
shall also contribute to the realization of the rights set forth in the
Declaration (art. 9). W.P. No.623/2016 26 38. The International Covenant on
Civil and Political Rights (ICCPR) and, in particular, article 27 inspired the
contents of the United Nations Minorities Declaration. It states that: In those
States in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community with
the other members of their group, to enjoy their own culture, to profess and
practise their own religion, or to use their own language. This article
protects the rights of persons belonging to minorities to their national,
ethnic, religious or linguistic identity or a combination thereof, and to
preserve the characteristics which they wish to maintain and develop. Although
it refers to the rights of minorities in those States in which they exist, its
applicability is not subject to official recognition of a minority by a State.
States that have ratified the Covenant are obliged to ensure that all
individuals under their jurisdiction enjoy their rights; this may require
specific action to correct inequalities to which minorities are subjected. 39.
The Human Rights Committee’s General Comment No. 23 (1994) on the rights of
minorities provides an authoritative interpretation of article 27. The
Committee stated that “this article establishes and recognizes a right which is
conferred on individuals belonging to minority groups and which is distinct
from, and additional to, all the other rights which, as individuals in common
with everyone else, they are already entitled to enjoy under the Covenant.” The
right under article 27 is an autonomous one within the Covenant. The
interpretation of its scope of application by the Human Rights Committee has
had the effect of ensuring recognition of the existence of diverse groups
within a State and of the fact that decisions on such recognition are not the
province of the State alone, and that W.P. No.623/2016 27 positive measures by
States may be “necessary to protect the identity of a minority and the rights
of its members to enjoy and develop their culture and language and to practice
their religion, in community with the other members of the group.18” Minority
rights and our Constitution 40. The preamble of the Constitution, as well as,
the Objectives Resolution, which forms substantive part of the Constitution
under Article 2A of the Constitution, provide that adequate provisions shall be
made for the minorities to freely profess and practice their religion and
develop their culture. And adequate provision shall be made to safeguard the
legitimate interests of the minorities. Article 20 of the Constitution, as a
fundamental right, provides that every citizen shall have the right to profess,
practice and propagate his religion subject to law, public order and morality.
Principle of Policy under Article 36 provides that State shall safeguard the
legitimate rights and interest of minorities. Under Article 29 of the
Constitution, it is the responsibility of the State, and of each person
performing functions on behalf of an organ or authority of the State, to act in
accordance with those Principles. Members of the minority also enjoy
fundamental rights guaranteed to every citizen under the Constitution.
Therefore, inter alia, right to life, liberty, dignity and non-discrimination
are also available to the minorities of this country being citizen of Pakistan.
Minority rights are, therefore, a basket of fundamental rights, constitutional
values, State obligations under the Principles of Policy, international
conventions like ICCPR (duly ratified by Pakistan) and the rich jurisprudence
developed over the years. Reliance is placed on: Mumtaz Oad and 2 others v.
Sindh Public Service Commission through 18 ibid. W.P. No.623/2016 28 Secretary
and 2 others (2015 CLC 1605), District Bar Association, Rawalpindi and others
v. Federation of Pakistan and others (PLD 2015 SC 401) and Suo Motu Case No.1
of 2014 etc. (PLD 2014 SC 699). The impugned amendment (deletion of section 7)
in Divorce Act, 1869 is to be reviewed and examined on the touchstone of these
minority rights available to the petitioner and for the minorities reflected in
the table below: Population by Religion in Pakistan19 Muslims Christian Hindu
Qadiani Scheduled castes Others 96.28 1.59 1.60 0.22 0.25 0.07 41. In this
case, the petitioner has argued that the impugned amendment in the Act through
the impugned Ordinance whereby section 7 of the Act was deleted is
unconstitutional, in as much as, it abridges and limits the minority rights of
the petitioner and the Christian community at large. Undisputed international
material referred to above show that there has been liberalization in the
grounds of divorce all over the Christian world. The UK Matrimonial Causes Act,
1973 also provides for irretrievable breakdown of marriage. This freedom would
have been automatically available to the Christian minority in Pakistan had
section 7 been available on the statute book. The wisdom and experience behind
the liberalization and emancipation of the Christian Divorce law around the
world has been the protection of the right to a happy family life and right to
dignity of a human being, who cannot be left chained to a dead marriage forever
or forced to convert to another religion just to be released of the bondage of
an unhappy marriage. “Right to family life is a daughter-right of 19 website of
the Pakistan Bureau of Statistics. W.P. No.623/2016 29 human dignity. It has
been said of this daughter-right that it “is one of the fundamentals of human
existence…. Among human rights, the human right to family stands on the highest
level. It takes precedence over the right to property, to freedom of occupation
and even to privacy and intimacy…. Human dignity dictates that the state must
create a system of laws that recognizes the right of every person to create a
familial relationship as he desires. The right to family life thus includes the
right of the individual to choose his partner and to establish a family with
him. The basic human right to choose a spouse and to establish a family unit
with that spouse ...is part of a person’s dignity. Thus a statute requiring a
person to enter into a familial relationship against his will limits the
constitutional right to human dignity.20” Human dignity is based on the
individual’s free will and his ability to develop his personality and fulfill
his life.21 The dignity of a human being is his free will: the freedom to shape
his life and fulfill himself. It is a person’s freedom to write his life
story.22 “Human dignity is therefore the freedom of the individual to shape an
individual identity. It is the autonomy of the individual will. It is the
freedom of choice. Human dignity regards a human being as an end, not as a
means to achieve the ends of others23.” 42. Right to life and liberty is a
separate fundamental right under our Constitution. The impugned amendment
limits the choice of a person to divorce and forces a person to lead an unhappy
and an oppressive life unless he or she can prove the charge of adultery
against the spouse. This limitation 20 Aharon Barak- Human Dignity- The
Constitutional Value and the Constitutional Right – Cambridge 2015. Pp 292-293
21 ibid at p126 (or see Ackermann, Human Dignity at 23) 22 ibid p. 144. 23
Aharon Barak – The Judge in a Democracy. Princeton. p 86. W.P. No.623/2016 30
perpetuates a dead marriage and impairs the quality of life and curtails the
liberty of a person by forcing him to live through an unhappy family life
against his free choice. Right to liberty means “the state of being free within
society from oppressive restrictions imposed by authority on one's behaviour.
24” Impugned amendment has a deep impact on the behaviour of the petitioner and
restricts his choice to lead his life. The impugned amendment by limiting the
grounds of divorce stunts the growth and freedom of minority rights in
Pakistan. The amendment has deprived the Christians to fashion their divorce
law with the same freedom, emancipation and liberation as have the Christians
around the world. The limited grounds of divorce under the State divorce law
when compared with the rights enjoyed by the Christians in the world, amounts
to discriminating the Christian minority in Pakistan. This gap and deprivation
in State law, can best be abridged by extending the same rights enjoyed by
Christians in majority countries to the Christians in Pakistan. This can be
easily achieved by restoring section 7 of the Act, as was the case prior to the
impugned amendment. The only ground agitated by the clergy is that the revival
of the amendment is against the Biblical teachings. As pointed out earlier in
the judgment, it is the State law that is under consideration and not the
personal canonical law of the Christians, hence the Act can be examined on the
touchstone of the fundamental rights read with the other penumbral rights and
values under the Constitution. It is nobody’s case that the revival of section
7 is against public order or morality as provided under Article 20 of the
Constitution. I, therefore, see no better way to protect and strengthen the
minority rights of the Christians in our country than to extend the same rights
to 24 Oxford Dictionary of English. W.P. No.623/2016 31 them that are available
to Christians in all the majority Christian countries of the world,
irrespective of catholic or protestant majority within them. The impugned
amendment does not pass the test of minority rights (above) and in particular
the fundamental rights to life, liberty, dignity and non-discrimination.
Reliance is placed on: Alleged Corruption in Rental Power Plants etc.: in the
matter of (2012 SCMR 773), Wattan Party and others v. Federation of Pakistan
and others (PLD 2012 SC 292), All Pakistan Newspapers Society and others v.
Federation of Pakistan and others (PLD 2012 SC 1), Watan Party and another v.
Federation of Pakistan and others (PLD 2011 SC 997), Ms. Shehla Zia and others
v. WAPDA (PLD 1994 SC 693), The Employees of the Pakistan Law Commission,
Islamabad v. Ministry of Works and 2 others (1994 SCMR 1548), Dr. Mehmood
Nayyar Azam v. State of Chhattisgarh and others (2013 SCMR 66), Arshad Mehmood
v. Commissioner/Delimitation Authority, Gujranwala and others (PLD 2014 Lahore
221), Liaqat Ali Chughtai v. Federation of Pakistan through Secretary Railways
and 6 others (PLD 2013 Lahore 413), Raja Rab Nawaz v. Federation of Pakistan
and others (2014 SCMR 101), N.W.F.P. Public Service Commission and others v.
Muhammad Arif and others (2011 SCMR 848), Pakcom Limited and others v.
Federation of Pakistan and others (PLD 2011 SC 44), Pakistan International
Airlines Corporation through Chairman and others v. Samina Masood and others
(PLD 2005 SC 831), Mst. Attiyya Bibi Khan and others v. Federation of Pakistan
through Secretary of Education (Ministry of Education), Civil Secretariat,
Islamabad and others (2001 SCMR 1161), I.A. Sharwani and others v. Government
of Pakistan through Secretary, Finance Division, Islamabad and others (1991
W.P. No.623/2016 32 SCMR 1041), Shrin Munir and others v. Government of Punjab
through Secretary Health, Lahore and another (PLD 1990 SC 295). 43. It is
important to underline that historically the impugned amendment was introduced
not through a democratic and participatory constitutional legislative process
but was more of a surgical intrusion during the dark undemocratic period of our
Constitutional history. The Christian political and ecclesiastical leadership
had never opposed section 7 when it was on the statute book prior to 1981. They
also had no role to play in its deletion. This regressive amendment, driven by
oblique ends by the undemocratic regime of the past, not only obstructed and
frustrated the minority rights but also went against the grain of international
obligations entered by the State by ratifying International Covenant on Civil
and Political Rights and the Principles of Policy under the Constitution. The
impugned deletion is therefore repugnant to constitutionalism. 44. Article
29(1) & (2) of the Constitution states as follows: (1) The Principles set
out in this Chapter shall be known as the Principles of Policy, and it is the
responsibility of each organ and authority of the State, and of each person
performing functions on behalf of an organ or authority of the State, to act in
accordance with those Principles in so far as they relate to the functions of
the organ or authority. (2) In so far as the observance of any particular Principle
of Policy may be dependent upon resources being available for the purpose, the
Principle shall be regarded as being subject to the availability of resources.
Principles of Policy provide the constitutional aspirations, goals and mission
statement for the State of Pakistan. It is a constitutional obligation of the
State and its organs and authorities to synchronize with and promote these
Principles. W.P. No.623/2016 33 These Principles nourish the roots of our
democracy and help actualize and fertilize our constitutional values. They are
our roadmap to democracy and ensure that the State remains on course to achieve
social, economic and political justice. The State or any authority may take
time to achieve the said constitutional aspirations due to the non-availability
of resources but they cannot at any stage or at any cost go against the
Principles of Policy. In this case the impugned amendment goes against the
fabric and texture of Article 36 that envisions that the legitimate interests
of the minorities shall be safeguarded. Article 30 (2) of the Constitution
protects a law which is not in accordance with the Principles of Policy i.e.,
where the law has not yet fully actualized the Principles of Policy but does
not protect a law that is inconsistent with the Principles of Policy. Reliance
is placed on Minerva Mills Ltd. and others v. Union of India and others (AIR
1980 SC 1789), Miss Farhat Jaleel and others v. Province of Sindh and others
(PLD 1990 KAR 342), Shirin Munir and others v. Government of Punjab through
Secretary Health, Lahore and another (PLD 1990 SC 295). 45. The impugned
amendment is an affront to minority rights of the petitioner including the
constitutional values, fundamental rights, Principles of policy and
international obligations. Hence, the impugned amendment does not enjoy the
constitutional immunity under Article 270A. Reliance is placed on Miss Benazir
Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416) and Federation
of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26), Sindh
High Court Bar Association through its Secretary and another v. Federation of
Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others
(PLD 2009 SC 879), W.P. No.623/2016 34 Miss Asma Jilani v. The Government of
the Punjab and another (PLD 1972 SC 139), Wattan Party through President v.
Federation of Pakistan through Cabinet Committee of Privatization, Islamabad
and others (PLD 2006 SC 697), AlJehad Trust through Raeesul Mujahideen
Habib-ul-Wahabb-ulKhairi and others v. Federation of Pakistan and others (PLD
1996 SC 324) and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v.
President of Pakistan through Secretary and others (PLD 2010 SC 61). 46. For
the above reasons, item 7(2) of the Second Schedule to Federal Laws (Revision
& Declaration) Ordinance, 1981 (XXVII of 1981) promulgated on 08-7-1981 is
declared to be unconstitutional and illegal being in violation of the minority
rights guaranteed under the constitution to the petitioner and the Christians
in Pakistan. As a result, section 7 of Divorce Act, 1869 is restored, in the
manner it stood in the year 1981, making available to the Christians of
Pakistan the relief based on the principles and rules of divorce under UK
Matrimonial Causes Act, 1973. Reliance is placed on Dr. Mobashir Hassan and
others v. Federation of Pakistan and others (PLD 2010 SC 265) and Baz Muhammad
Kakar v. Federation of Pakistan through Ministry of Law and Justice, Islamabad
and others (PLD 2012 SC 870). Restored Section 7 of the Act 47. Restored
section 7 is to be read harmoniously with Section 10 of the Act. This means
that grounds of divorce on the basis of adultery are available and anyone who
wishes to invoke them is free to do so, but for those who wish to seek divorce
on the ground of irretrievable breakdown of marriage, they can rely on section
7 of the Act and avail of the additional W.P. No.623/2016 35 grounds of divorce
available under the Matrimonial Causes Act, 1973 (UK), which will be available
to the Christians in Pakistan and will be enforceable in Pakistan. Reliance is
placed with advantage on Mrs. Marie Palmer v. O.R.J. Palmer (PLD 1963 (W.P.)
Lahore 200) where Manzoor Qadir CJ (as he then was) held: “This is where
section 7 comes in. As I understand it, it makes it incumbent on the Courts in
Pakistan that whenever the Act makes no specific provision, they must ask
themselves the question whether the Divorce Court in England would, in
corresponding conditions, give or refuse relief and act accordingly. It further
requires the Courts in Pakistan to remain in step with the English Court all
the times, and to alter their course from time to time if need be so as no to
get out of step with that Court.” The term subject to the provisions of the Act
in Section 7 is read down in order to make sections 7 and 10 work together and
to make them constitutionally compliant. On reading down, reliance is placed on
Messrs Chenone Stores Ltd. Through Executive Director (Finance Accounts) v.
Federal Board of Revenue through Chairman and 2 others (2012 PTD 1815) and
Nadeem Asghar Nadeem and others v. Province of the Punjab and others (2015 CLC
1509). 48. For the above reasons this petition is allowed with no order as to
costs.
