Minority rights: A tale of two divorces

Published: August 30, 2011
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It is the middle of the year 2004; two young married ladies, Parveen Amanual and Asia Tabassam, who reside in the same locality of Rahim Yar Khan, come to the court. They are both hard done by their husbands, and want to get a divorce.

Their divorce cases were, thus, duly filed against their husbands. By the end of 2004, within a period of four months, Asia Tabassam was able to get her divorce, and she is now re-married living with her second husband and three kids. Parveen Amanual, however, did not have the same luck. It is 2011, and she still spends a copious amount of time in the corridors of the court.

Why does her ordeal continue while Asia Tabassam’s ended six years ago?

It is for no other reason, other than the fact that she is a Christian. Her divorce case is hence treated as a civil case with no time limit. It may take years on years to culminate. Even if she were able to get a divorce, the same will hangs on unless confirmed by High Court. The process takes decades.

Why was Asia Tabassam able to get her divorce within 4 months?

The reason is simple; she is a Muslim. The Muslims divorce cases are treated as family cases by family judge. Thus, these cases are settled between 4 to 6 months, as the law requires.

The government may be blamed, as the Christian divorce law was passed 142 years ago. However, Christian representatives are more accountable towards the fact that this law still stands even though it was passed in 1869. Another reason, moreover, may be male chauvinism, as Christian women have less say in law-making and politics.

Family cases of the citizens of Pakistan are dealt with by the Family Courts Ordinance of 1964. These cases may be pertaining to divorce, jactitation of marriage, maintenance of the wife or minor children, dower, dowry articles, and other prescribed family cases. This ordinance is applicable to all Pakistanis, irrespective of their religion, caste or the area/region they live in. If one is Pakistani, one can claim his or her family rights under the law. Exceptional measures have been taken in the ordinance of 1964 to speed up family cases.

The Family Courts are duty bound to process all family cases within a period of four to six months. Family cases are, thus, treated in a speedy fashion. Procedural laws, like Civil Procedure Code, Qanoon-e-Shahadat Order and other laws, are not applicable to family cases. In short, family cases are not treated as civil suits or cases. In family cases, a number of procedural bottlenecks are avoided. For example: summoning of other party, submitting of a written statement, evidence and examination of witnesses, and other procedural stages in family cases are conducted in a speedy manner.

However, Christian divorce cases are an exception under the Divorce Act of 1869 – the Family Courts Ordinance of 1964 is not applicable to Christian divorce cases.

The act of 1869 is only applicable to Christians. Although this act was amended in 1949 with some minor changes, a number of clauses of the act are obsolete and outdated. Here is an apt example:

  1.  the dealing of divorce cases as civil suits
  2. Confirmation of divorce by the High Court

It is shocking to note that Christian divorce cases are filed and processed as civil suits, according to the divorce act. The civil procedure may take many years, and even decades to settle. Normally a civil suit takes four years to ten years, or even further time to be settled. All the procedural laws and rules are applicable to the divorce cases; Article 45 of the Divorce Act of 1869 states that Civil Procedure Code would be applicable on Christian divorce cases. Similarly other procedural and evidence recording laws are also applicable to divorce cases.

Furthermore, as outlined above, the divorce decree is subject to the confirmation of the High Court. Meaning thereby, that if one is able to get a divorce judgment from the lower court then that divorce would be in place only after confirmation from the High Court. This process is highly difficult, costly and time consuming.

Thus, given the above stated laws, a Christian woman faces a lot of miseries and problems. It is sheer discrimination and injustice towards Christians that they have to wait somewhere between four and six years to get a divorce, whereas their Muslim counterparts can get one in six months.

It is, thus, recommended that the Divorce Act of 1869 be amended as follows:

  1.  The Christian divorce cases should be treated as family cases under the Family Courts Ordinance of 1964, and not as a civil suit.
  2. The Christian divorce family cases should be decided within a period of six months.
  3. The procedural laws and rules like Civil Procedure Code; Qanoon-e-Shahadat Order etc. should not be applicable to Christian divorce cases. The cases ought to be processed and decided in summary and speedy manners.
  4. The confirmation of the Christian divorce decree should not be mandatory by the High Court, however right of appeal may be given to the aggrieved party.
  5. A number of clauses of the divorce act should be amended to bring the Christians divorce matters in line with the communities of Pakistan, and to weed out the injustice towards the depressed community.

I can remember Parveen Ammaual, after years of her case, she said:

Wouldn’t it be better for me to convert Islam? At least I would not have to suffer the terrible ordeal of being in a courtroom for six years.

It is time to finally weed out this injustice and discrimination. Let us bring equality in to Pakistani courtrooms, as a courtroom is the only place in the world where one can hope for justice.

Amer Nadeem

Amer Nadeem

A High Court Advocate in Rahim Yar Khan, who is a human rights activist and the • legal consultant on minorities with ActionAid Pakistan. He is also a member of the advisory board of The Jurists, an international human rights NGO.

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