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Petitioner: Ameen Masih VS Respondent: Federation of Pakistan, etc
Court Name: Lahore High Court Judge(s): Syed Mansoor Ali Shah Title: Ameen Masih vs Federation of Pakistan, etc Case No.: Writ Petition No, 623 of 2016 Date of Judgment:2017-06-19 Reported As: K.L.R. 2017 Civil Cases 195 Result: Petition Allowed
JUDGMENT
JUDGMENT SYED MANSOOR ALI SHAH, CJ. --- Petitioner is a Christian, who wishes to divorce his wife because unfortunately his marriage has broken down. He, however, cannot do so under the Divorce Act 1869 ("Act"), as it stands today, because he can only get a divorcee if he alleges and proves that his wife has been guilty of adultery (see Section 10 of the Act) 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 He prays that under repealed section 7 of the Act, grounds of divorce under UK Matrimonial Causes Act. 1973 ("UK Act"), including the ground that the marriage has broken down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) "Ordina nce") 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 whereby Section 7 of the Act was repealed, be declared to be unconstitutional and violative- of the fundamental rights of the petitioner: 2.He contends that Christians in Pakistan are a minority and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 nondiscrimination. 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 the1
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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 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 inspire 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 1391, Wattan Patty 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-ul-Khairi and others v. Federation of Pakistan and others (PLD 1996 SC 324) and Chief Justice of Pakistan lftikhar 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 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 <u>No Fault Divorce</u> was introduced way back in the year 1918 in Russia. In the United Kingdom, <u>Matrimonial Causes Act, 1973,</u> 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 <u>Divorce. Family Law Act, 1975 in Australia and Divorce Act, 1968 </u> 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
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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 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:- "Zia-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] ul-Haq was used to doing such things the sly 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. 1, 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 Seba-stain Francis Shaw, Archbishop, Archdiocese of Lahore, 73- FCC, Canal Bank Road GulbergIV, 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 Rk-,hts, 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 IPLD 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.
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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 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 Ad was deleted from the law in order to force Christians to convert and this has been the practice since. 18.Mr. ljaz 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 theAct provide for dissolution of marriage; (ii)Sections 18 & 19 provides for declaring marriage a nullity; and (iii)Section 22 provides for judicial separation. 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 aw....to preserve, protect and defend the Constitution and in all circumstances, do right to all manner of people, <u>according to law</u> 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 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
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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. 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; (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 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
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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. 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 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 Iibgralization 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. Divorces under Christian law are generally of two distinct types: Absolute divorce, or divorce "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 Moro," "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 affected. 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. 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. 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. 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 showing of irreconcilable differences or an irretrievable breakdown of the marriage. 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 details2 3 4 5 6 7
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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 settle risen 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. 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 language. A marriage is "irretrievably broken" as' a basis for divorce, where either or both parties are unable or refuse to co- habit and there are no prospects for a reconciliation. 30. The Family Law Act of…
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