The law governing the divorce of Christians in Pakistan was enacted through the Divorce Act 1869 during the British colonial period in India. To ensure incremental changes in this law, section 7 of the Act provided that the local courts will apply English divorce law for Christians. In 1981, however, this section was repealed under the regime of Zia ul-Haq through an Ordinance. In 2017, a member of the Christian community challenged this repeal on the ground that it violated constitutionally guaranteed fundamental rights of minorities in Pakistan. The Lahore High Court accepted the petition and declared the repeal of section 7 as unconstitutional. The revival of section 7 has a significant impact on Christian divorce law in Pakistan by providing, inter alia, irretrievable breakdown of marriage as a ground for divorce. However, it has led to the anomaly of English divorce law applying to Christian citizens in Pakistan. To remove this anomaly, the Pakistani parliament will have to reform Christian divorce law.
See Full PDF See Full PDFThis paper highlights the contribution of the Lahore High Court (LHC) towards the development of principles of Islamic family law in Pakistan. To this end, we have conducted a comprehensive analysis of relevant case law relating to various aspects of Islamic family law including marriage, dower, dowry, maintenance of wife and children, triple talaq, khula and its compensation, legitimacy and paternity, guardianship and custody, and inheritance law. Our analysis shows that the judges of the LHC frequently refer to the injunctions of the Qur‟an and Sunnah to: i) cultivate a distinct Islamic identity for Pakistani legal regime; and ii) to incorporate the right oriented approach informed by the principles of human rights in Pakistani legal consciousness. However, in this process, the LHC has to maneuver through the structural formalities of Pakistan‟s legal system shaped by procedures and precedents of Anglo-Muhammadan law which is an articulation of Islamic law by colonial judicial system. In order to circumvent the structural inhibitions, the LHC employs a progressive approach towards the Qur‟an and Sunnah along with inculcation of right based approach for underprivileged and less advantageous segment of the society. Such an approach inventively aligns the colonial past, the classical Islamic family law, and the demands of post-colonial circumstances which is indeed a unique contribution of the LHC. This analysis demonstrates how a post-colonial judicial regime can cultivate a distinct legal identity without being disloyal to its past.
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Deliberations on Law (Being a collection of legal articles on issues important to Sri Lanka) - Volume 2
‘This article is a revised and expanded version of my article "BEYOND CONVERTING INTO UNHOLY DEADLOCK, WHAT WAS ONCE AND IS NO LONGER HOLY WEDLOCK : A CASE FOR OBTAINING A DECLARATION OF NULLITY OF MARRIAGE, FOR THOSE PARTIES IN THE STATE OF AN IRRETRIEVABLY BROKEN MARRIAGE". The original version of this article was first uploaded on www.academia.edu, on 19th February 2019. On the same day, the link to this article was also shared on Facebook. In response to this, I received a number of questions, on the proposed application that I have mentioned in this article. The questions and my answers to them have been incorporated into the second version (the present version), which is now published in the second volume of the booklet 'Deliberations on Law'. The second version of the first article has also addressed certain typographical errors that were found in the original version. None of these revisions have, in anyway, affected the original position or argument of the proposed application that was sought to be introduced by the original article, of 19th February 2019. Rather, the amendments and additions to the original version have more or less sought to clarify the original article, in more detail. This article seeks to introduce a legal framework for the dissolution of marriage, on the basis of marital breakdown. It also attempts to expand the rights of litigants, of general law marriages, who are victims of wrongs such as non-consummation, fraud and coercion due to the conduct of the spouse. In pursuance to these objectives, it highlights the legal position that section 19 of the Judicature Act, No.2 of 1978 stands independent to section 19 of the Marriage Registration Ordinance, No. 19 of 1907. The article also discusses the law applicable to declaratory judgments in general and the concept of nullity of marriage.
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INTRODUCTION Sometimes, parties to the marriage find their marriage turned out to be a bad bargain. This make it difficult for both of them to pull on together or to live together harmoniously. The reason may be any like fraud, force, adultery, cruelty or any other kind of guilt on the part of one party or they simply find that they are not suitable match to each other. Now the question comes as to what is the solution of such problem? The answer can be given by a single word i.e. DIVORCE. Divorce means dissolution of marriage or putting an end to the marriage by some legal or customary mode. But this is not so simple as it seems to be. Hindu Law has an age old history. From the Shastric times to the contemporary world, it has seen different phases. It changed in some aspects but the sacramental character of marriage remained the same. In the Shastric period, under Shastric law marriage was treated as holy and indissoluble union. It stressed on continuing the relation, come what may. There was no room for matrimonial remedies because marriage was treated as permanent and indissoluble union. However in some texts, we find that some sort of divorce or at least the power of abandonment of one spouse by the other was recognized. For instance, a text of Vashistha runs, " A damsel betrothed to one devoid of character and good family or afflicted by impotency, blindness and the like or an outcasted or an epileptic or an infidel or incurably diseased …. Should be taken away from him and married to another. " But this text deals with betrothal. Regarding marriage, the often cited text of Narada provides: " Another husband is ordained for women in five calamities namely, if the husband be unheard of, or be dead, or adopts another religious order, or be impotent, or becomes an outcast. " Similarly, some texts give permission of renunciation of wife by husband in some cases. Manu laid down: " A husband could abandon his wife who was blemished, afflicted with disease, or previously defiled or given to him fraudulently. " But that did not mean that divorce could be granted as rule. It was permitted in very exceptional circumstances. Marriage was a rule and divorce was an exception and this was strictly adhered to. EVOLUTION OF CONCEPT OF DIVORCE Hindu society kept on changing with the passage of time. It observed other cultures carefully, and then tried to assimilate their best of ideas or ideals. This change from time to time reshaped it. Though its exposure to Islamic culture in India was not so useful but with the advent of Britishers in India, it got acquainted with Christian cultural pattern. With this Hindu society got an opportunity for the comparison between the two. During British rule, there was an introduction of English language. It was not merely studied but widely used by Indians. This resulted in the opening of the wide windows for Indians upon the West, its mind and life. The doctrines of equality and liberty also being adopted widely. Educated Indians started favouring the fresh Western ideas and became impatient to introduce these in the traditional norms and attitudes. But nothing much could be done. Though in the later part of the 19 th century, divorce was introduced by statute for two classes of persons: (i) those who converted to Christianity and consequent there of their spouses refused to live with them, and (ii) those who were Christians and performed Christian marriage. With regard to high caste Hindus, the position remained the same. Although among them, some of those who had the impact of the western education worked for the social reforms and advocated for introduction of divorce in Hindu Law also. Their attempts did not succeed at All-India level but these
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