LAW
RELATING TO DIVORCE AMONGST CHRISTANS IN PAKISTAN: A CRITICAL APPRAISAL
By:
ZEESHAN MANZOOR
Civil/Family Judge
Karachi South
Christian
marriage is a sacrament unlike Muslim marriages which are purely civil contract
between the parties; and, at the time of marriage, both parties vow to stand
together in sorrow and happiness till death would depart them. There is a
fundamental difference between a Muslim marriage and a Christian marriage. The
latter is a union for life while the former is but a contract liable to be
dissolved by the husband unilaterally and by the wife by the intervention of a
Court.
Concept
of divorce was invented to facilitate women, especially, and men in general in
situations of hateful relations. It has been held that the Christian maxim
"Let not man separate those whom God has joined" should be kept in
view by the Courts before they separate married persons for ever, and the
Courts will not extend the law of divorce to make dissolution earlier.[1]
The
law relating to divorce amongst Christians in Pakistan is contained in the
Divorce Act, 1869. Its enactment is based on the law as it then stood in
England. Since then, considerable changes have taken place in Pakistan. In
order to adjust the law to those changes, it needs to be revisited.
The
Divorce Act, 1869 applies to all persons who profess Christian faith and are
domiciled in Pakistan at the time of presenting a petition under it. It speaks
of not only issues concerning divorce and judicial separation among the
Christians but also matters relating to protection of property of wife,
restitution of conjugal rights, petition for alimony and settlement of wife's
property etc. However, for the purpose of this article, I will restrict myself
to the issues concerning divorce and judicial separation among the Christians
only.
1. Not a good legislation:
The Divorce Act, 1869
does not seem a good legislation on the face of it. It discriminates Christian
women as against not only their husbands but also women belonging to other
communities in Pakistan. It does not come at par with the constitutional
guarantees of equality and human dignity.
2. No provision for reconciliation efforts:
The Act does not contain
any provision for taking conciliation efforts among a couple that approaches
the Court of law for dissolution of their marriage or judicial separation; it
implies no efforts are taken to save the marriage.
On the contrary, West
Pakistan Family Courts Act, 1964 provides under Section 10 of the Act a
provision for pre-trial proceedings whereby the Court is required to ascertain
the points at issue between the parties and attempt to effect a compromise or
reconciliation between the parties, if it be possible.
While,
the Matrimonial Causes Act, 1973, the latest law on divorce in United Kingdom,
under Section 03 places a bar on filing petition for divorce to the Court
before the expiration of the period of three years from the date of marriage;
the exception shall be where the case is of exceptional hardship suffered by
the petitioner or of exceptional depravity on the part of the respondent, and
again, in determining such application, then judge shall be required to have
regard to the interest of any child of the family and to the question whether
there is reasonable probability of a reconciliation between the parties during
the period. It further provides under Section 6 that provisions shall be made
by rules of Court for requiring the solicitor acting for a petitioner for
divorce to certify whether he has discussed with the petitioner the possibility
of a reconciliation and given him the names and addresses of persons qualified
to help effect a reconciliation between parties to a marriage who have become
estranged; and, if at any stage of proceedings it appears to the Court that
there is a reasonable possibility of a reconciliation between the parties to
the marriage, the Court may adjourn the proceedings for such period as it
thinks fit to enable attempts to be made to effect such a reconciliation.
3. Grounds for divorce: a discriminatory
provision
The
law of divorce is contained in Section 10 of the Act. It makes a distinction
between the husband and the wife in the matter of grounds on which they could
obtain divorce. A Christian husband may file a petition to the Court of Civil
Judge for dissolution of marriage solely on the ground that his wife was guilty
of adultery since solemnization of marriage. The wife on the contrary, could
file a petition for divorce on the ground of the husband's exchange of
profession of Christianity for the profession of some other religion, in
addition to other elements such as that he should have 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.
Apparently, there is no
justification for maintaining the distinction between the husband and the wife
for the purposes of grounds of divorce. The neighbouring country, India,
examined the law in 2001 in accordance with the needs of modern Indian society
and not only amended the section by providing equal grounds to the husband and
wife for filing petition of divorce but also introduced a new provision under Section
10-A and paved way for divorce by consent. [2]
Clearly, the law in our
country has become out of date. Modern legislations allow divorce on several
grounds. We are mindful of the fact that the law of the Dissolution of Muslim
Marriages Act, 1939 provides for as many as eight grounds excepting other
grounds recognised under Muslim law, for the dissolution of marriage by way of Khula.
The
Parsi Marriage and Divorce Act, 1936, the law relating to marriage and divorce
among Parsis in Pakistan also makes no distinction between the husband and the
wife in matters of nullity of marriage, dissolution of marriage, divorce and
judicial separation. The words used in Sections 30 and 31 of the Act providing
for nullity of marriage and dissolution of marriage, respectively, "at the
instance of either party"; and, the words used in Sections 32 and 34 of
the Act providing for divorce and judicial separation, respectively, "any
married person may sue" speak of grounds on equal footing for the husband
and the wife. Again, the Act provides for several grounds on one or more of
which divorce can be sought.
The
English Matrimonial Causes Act, 1857 had been amended in 1923 bringing the
husband and the wife on equal footing by making adultery an independent ground
of divorce for both the parties. Then three new independent grounds were, i.e.
desertion, cruelty and insanity, for seeking divorce, in The Matrimonial Causes
Act, 1937. And, this was followed by Divorce Reform Act, 1969 which made
irretrievable breakdown of marriage to be the sole ground of divorce. It was
however, replaced by The Matrimonial Causes Act, 1973 which under section (1)(2)
provides for several grounds for divorce inclusive of adultery, desertion,
separation, and cruelty.
Interestingly,
the Divorce Act, 1869 does not discriminate between the husband and the wife
when either of the two applies under Section 23 of the Act for judicial
separation to the Court. Either of the two may apply for judicial separation on
the ground of adultery, or cruelty, or desertion without reasonable excuse for
two years or upwards, as given under Section 22 of the same Act.
Again,
a petition under Section 18 of the Act may be filed by any husband or wife
praying that his or her marriage may be declared null and void. The law does
not discriminate between husband and wife with respect to grounds for this
purpose even. Section 19 of the Act provides for grounds of decree to declare a
marriage null and void as impotency of the respondent at the time of marriage
and at the institution of suit, or the parties being within prohibited degrees
of consanguinity or affinity, or one of the parties being a lunatic or idiot at
the time of the marriage, or if the former husband or wife of either party
having been living at the time of the marriage and the marriage with such
former husband or wife being in force then.
4. Adulterer, but not adulteress, to be
co-respondent
The
law under discussion requires under Section 11 that where a petition for
divorce is filed by the husband, the petitioner shall make the alleged
adulterer a co-respondent to the said petition, unless he is excused from so
doing on one of the grounds to be allowed by the Court: the respondent is
leading the life of a prostitute and it is practically impossible for the
petitioner to name a person with whom she had committed adultery, or that the
name of the alleged adulterer remains unknown to the petitioner despite his
having taken due efforts, or that the alleged adulterer is dead.
The
law also provides a compensatory provision in this regard. Under Section 34 of
the Act, a husband may, either in a petition for dissolution of marriage or for
judicial separation or even merely for damages without any such relief, claim
damages from the adulterer on the ground of his having committed adultery with
the his wife.
In
case an adulterer has been made co-respondent and adultery has been
established, the Court may under Section 35 of the Act order to pay in the
whole or in part of the cost of the proceedings save in two situations: One,
where the respondent was, at the time of adultery, living apart from her
husband and leading the life of a prostitute, and, two, where the co-respondent
had not, at the time of adultery, reason to believe the respondent to be a
married woman.
Then
there is Section 39 in the Act which provides that when a Court pronounces a
decree for dissolution of marriage or judicial separation on the ground of
adultery of the wife and it appears to the Court that the wife has the
properties of her own, the Court may order for the settlement of such
properties as it deems reasonable, for the benefit of the husband, or the
children of the marriage, or of both.
It
is observed from practical point of view that, in usual circumstances, neither
the provisions of Section 11 are complied with nor the Presiding Officers of
the Family Courts bother to require the same for the reasons best known to
them. The object of Section 11 (supra) was the prevention of any form of
collusion and it was held that it was not a mere formality to dispense with the
presence of the co-respondent. [3]
Where
in a petition, the husband alleged that his wife was leading a life of
prostitute, and adulterer though known to the plaintiff was not made
respondent, the suit was held to be not maintainable.
[4]
Coming
to defining position of law, it again seems discriminatory on the face of it
that only the husband should be making the alleged adulterer a co-respondent.
If from strict view of jurisprudence of the law under discussion, it is
necessary that the alleged adulterer should be made co-respondent, the case
where wife is the petitioner should be placed on same footing. Wife, being petitioner,
should be required to make the alleged adulteress co-respondent and comply with
the provisions of Section 11.
Almost similar is the
issue of claiming damages from adulterer by husband in terms of Sections 34 and
35 of the Act. However, to be more specific, we are required to visualize the
social consequences of the provision from the perspective of Pakistani society.
There may be no two views on the opinion of an Indian Report[5]
wherein it was observed, "A self-respecting husband who is aggrieved by a
person committing adultery with his wife shall seek to get the marriage
dissolved and not to make a profit out of the wrong."There is no cavil at
saying that the observation has same application for our society.
Having regard to this
observation, the presence of Sections 34, 35 and 39 of the Act is not
justified, and, hence, may be omitted. Needless to mention, law does not even
require that the alleged adulterer be made co-respondent in a suit for judicial
separation.
5. Judicial Separation
Section 22 of the Act
provides for a decree of judicial separation upon application from either the
husband or the wife on the ground of adultery, or cruelty, or desertion without
reasonable excuse for two years or upwards. It further says that such decree of
separation shall have the effect of divorce a mensa et toro under the
existing law.
Herein, it comes to
observation that the period required for desertion without reasonable excuse as
being for two years or upwards is itself too long. It may be minimized as to bring
it down to one year to facilitate the parties to suit. It must not be out of
place to mention that the Court may grant a decree for judicial separation in a
suit for dissolution of marriage, if the petitioner fails to prove facts which
would entitle him, or her, for the relief asked for.
6. Absence of collusion
Section 12 of the Act
requires the Court to satisfy itself for the dissolution of marriage, so far as
it reasonably can, not only to the facts alleged, but also whether or not the
petitioner has been in any manner accessory to, or conniving at, the going
through the said form of marriage, or the adultery, or has condoned the same.
The Court shall also inquire into any counter charge which may be made against
the petitioner.
In
case the Court, on the evidence in relation to any such petition is satisfied
that the petitioner's case has not been proved, or is not satisfied that the
alleged adultery has been committed, or finds that the petitioner has, during
the marriage, been accessory to or conniving at, the going through of the said
form of marriage, or the adultery of the other party to the marriage, or has
condoned the adultery complained of, or that the petition is presented or
prosecuted in collusion with either of the respondents, the Court shall dismiss
the petition under Section 13 of the Act.
A petition filed for the
purpose of dissolution of marriage or of nullity of marriage, or of judicial
separation must state about non-existence of collusion or connivance between
the parties, and such statement is to be verified by the petitioner or some
other competent person in manner required by law for the verification of
plaints, as required under Section 47 of the Act; this is not the course of
practice in Courts however. It is the significance of this provision that the
law requires that in divorce cases, the petitioner must come to the witness box
and prove his case on oath so that the Judge may satisfy himself as to
non-existence of collusion between the parties.
Collusion
was adequately defined by the Honourable High Court of Sindh vide PLD 1976 Karachi 565; "A
collusive is one with a corrupt intention. It is an agreement under which a
party to the suit for valuable consideration has agreed either to institute it
or conduct it in a certain way; for example, the reluctant petitioner induced
by the offer of some benefit to take proceedings against an eager respondent or
... a co-respondent induced by a promise of some benefit not to defend a charge
of adultery, or stronger still, to provide evidence or to bear witness at the
trial against the respondent. If, upon a fair consideration of the provision of
some benefit to the party instituting or in that aspect conducting the suit,
here is, in my opinion, collusion."
7. Pronouncement of decree for dissolution of
marriage
Section 14 of the
Divorce Act, 1869 provides for grounds of decree for dissolution of marriage.
Where the Court is satisfied upon the evidence before it that the case has been
proved, it shall pass a decree for dissolution of marriage, provided that:
(a) The Court does not find that the
petitioner has been in any manner accessory to, or conniving at, the going
through of the said form of marriage, or the adultery of the other party to the
marriage, or has condoned the adultery complained of,
(b) The petition is presented or prosecuted in
collusion with either of the respondent.
However,
the Court shall still not be bound to pronounce a decree declaring such
marriage to be dissolved if it finds that;
(a) The petitioner has, during the marriage,
been guilty of adultery, or,
(b) The petitioner has been guilty of
unreasonable delay in presenting or prosecuting such petition, or,
(c) Of cruelty towards the other party to the
marriage, or,
(d) Of having deserted or wilfully separated
himself or herself from the other party before the adultery complained of, and
without reasonable cause, or,
(e) Of such wilful neglect or misconduct of or
towards the other party as has conduced to the adultery.
8. Bar of suit for criminal conversation
The
law under Section 61 of the Act bars persons competent to present a petition as
entitled under Section 2 of the Act, and, of dissolution of marriage under Section
10 of the Act from maintenance of a suit for criminal conversation with his
wife.
However,
Section 61 simply precludes civil suit for damages while it does not forbid
State to prosecute and punish adulterer under penal code. A person can
certainly move the State for proceedings under penal code against a person who
has committed adultery with his wife. It goes without saying that the standard
of proof for matrimonial offences is as stringent as in criminal cases, that is
the case must be proved "beyond reasonable doubt" and not the one
required in a civil suit, i.e. "preponderance of probability". The
language of Section 14, in particular the words "satisfied on the
evidence" and further the word "proved" make it abundantly plain
that the proof in matrimonial offences must be at par with the one required in
criminal offences, i.e. beyond reasonable doubt, for if it were not so the
words "satisfied" and "proved" would not have been used in Section
14.[6]
9. Conclusion
The
law of divorce amongst Christians in
[1]. AIR 1953 Mad. 858
[2]. Refer The Indian Divorce (Amendment) Act,
2001
[3]. AIR 1976 Kar. 89(FB)
[4]. AIR 1942 All. 23
[5]. Law commission of India, Fifteenth report
on `Law relating to marriage and divorce amongst Christians in India’ (August
18, 1960), pg. 33.
[6]. PLD 1966 (W.P.)