Minority Rights and Divorce Act 1869: Public Interest Litigation

On 19 June 2017, the then honourable Chief Justice of Lahore, Justice Syed Mansoor Ali Shah gave a landmark judgement regarding the interpretation of Christian Divorce Act 1869. The judgement was reported in Pakistan Legal Digest (PLD) in 2017 as Ameen Masih vs Federation of Pakistan.[1] The facts were as follows:  A poor Christian man, Ameen Masih, wanted to divorce his wife on just and reasonable grounds but under section 10 of the Divorce Act 1869, there was only one ground available for Christians for divorce. This ground was to assert and prove the charge of adultery.  Without this ground, divorce could not take place between a Christian man and woman. According to Section 10 of the Divorce Act 1869:

“ When husband may petition for dissolution: Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.”

 Ameen Masih filed a constitutional petition in which he pleaded that there should be other reasonable grounds available for a Christian man to divorce his wife as are available in other countries. It was further argued by Ameen Masih’s counsel, that Pakistan was the only country in the world, where there was only one ground available for a Christian man to divorce his wife and that was to impute the charge of adultery, which should be declared a violation to the dignity of women.[2]

The objection raised by the respondents was that the petition was not sustainable and should be dismissed outrightly as the court had no jurisdiction to interpret the Bible. The Honourable Chief Justice Syed Mansoor Ali Shah ruled out the objection by stating that the court was a constitutional court and it was not interpreting the Bible nor canonical law. Rather the court was supposed to enforce fundamental rights of Christian minorities by the interpretation of the Constitution.[3]

The court further elaborated that across the world in countries with Christian majority, a Christian couple can seek divorce on reasonable grounds if they do not want to live together. They do not need to prove the charge of adultery in order to separate or seek divorce.[4]

Hitherto, as a result of this judgement, a Christian man in Pakistan does not need to prove evidence of adultery to seek divorce. He can seek divorce on reasonable grounds or on mutual consent if the couple do not want to live together or they think the marriage has ‘irretrievably broken’.[5] The court also mentioned that there are no-fault divorce laws in countries where Christians are living in majority. The Honourable Chief Justice further mentioned that in 2001 the Indian Parliament passed an amendment in The Divorce Act by giving support to Christians that they can separate on mutual consent rather than prove a charge of adultery.[6]The Honourable Chief Justice of Lahore High Court explained that in California, the legislature has provided reasonable grounds for a couple to part ways and the courts are also empowered to decide the family cases keeping in view the welfare of the children:

“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: “… 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.” [7]

The Chief Justice further elaborated that Pakistan has ratified the International Covenant On Civil And Political Rights which states that minorities of which Christian community comprise of [1.6% of the entire population][8] can freely exercise their religious and cultural rights.[9] He then further explained that minority rights are not only enshrined as a part of Article 20 of Pakistan’s Constitution but also been made a substantive part of Objective Resolution, wherein lies the essence of the Constitution. The relevant para is reproduced as follows:

“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… 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.”[10]

The court elaborated that imputing a charge of adultery on a woman is against her dignity and such imputation is deplorable and against fundamental rights. [11] The court justified its opinion by stating that 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/her partner and to establish a family with them. 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 a familial relationship against his will limits the constitutional right to human dignity. The court further elaborated that human dignity is based on the individual’s free will and their ability to develop personality. The dignity of a human being is their free will means that they have the freedom to shape their life. It is a person’s freedom to write t life story. Human dignity is therefore the freedom of the individual to shape an individual’s 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 to achieve the ends of others.[12]

The Honourable Chief Justice also defined the principle by linking the concepts of right of human dignity with right to life and liberty. It was further laid emphasis that right to life and liberty is a separate fundamental right under our Constitution. The restriction of availability of one ground to seek divorce 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 perpetuates a dead marriage and impairs the quality of life and curtails the liberty of a person by forcing them to live through an unhappy family life against their free choice. Right to liberty means “the state of being free within society from oppressive restrictions imposed by authority on one’s behaviour.”[13]

The Chief Justice further relied on the comments of former High Court Chief Justice Mr Manzoor Qadir’s judgement  reported in Marie Palmer v O.R.J Palmer 1963 [14] in which he supported the possibility of availability of other reasonable grounds such as those available in England and Wales apart from accusing one’s wife of adultery which is a deplorable act.[15]

The Lahore High Court further relied on the 2014 Supreme Court Judgements [16] which state that right to practice religious beliefs depends upon an individual’s conscience; so no one, belonging to any majority or minority denomination can impose his will or point of view upon others. Chief Justice Syed Mansoor Ali Shah further explained that the democratic norms of a country fully supports the safeguarding of minority rights, individual’s free will and conscience.[17]

The lesson to be drawn from Ameen Masih’s case is that there should not be any compulsion for a man or a woman to entangle oneself in an unhappy marriage for the rest of one’s life because it is [the pursuit of happiness wherein lies the real essence of life][18]; and this essence has been espoused by the superior courts of Pakistan, because in every religion life is sacred and one should make it worth living. The then Honourable Chief Justice Syed Mansoor Ali Shah, with a revolutionary sense of truth, has given a landmark judgement and this is the first judgement of the Lahore High Court regarding the interpretation of Divorce Act 1869 and enforcement of fundamental rights of Christians in its 150-year history. This case demonstrated how effectively public interest litigation under Article 199 of the 1973 Constitution can transform lives of people and save the innocent from losing their dignity and innocence. The Ameen Masih’s case, last but not least, also draws our attention toward the fact that the successive governments, which profess to be governments of the people, for the people and by the people, have not fulfilled their responsibility to bring reforms or amendments in the laws regarding minorities, which is a stark failure of our parliamentary democracy.

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[1] Ameen Masih vs Federation of Pakistan; 2017, PLD Lahore

[2] ibid paras 1 and 2

[3]ibid  para 21

[4]Ibid,  para 42

[5] Ibid,  para 47

[6]ibid  , paras 30 and 31

[7] Ibid, paras 30 and 31

[8] Ibid, para 35

[9] Ibid, para 38

[10] Ibid  paras 38,39 and 40

[11]ibid paras 41 and 42

[12] ibid

[13]ibid

[14]ibid. Original citation is Marie Palmer v O.R.J Palmer PLD 1963 PLD Lahore (West Pakistan) 200

[15] ibid para 47

[16] Suo Moto Case Regarding Suicide Attacks on Church in Chitral And Peshawar, 2014 PLD Sc 699 And Rawalpindi Bar Vs Federation  2015 PLD Sc 401

[17] supra 1 para 41

[18] Government of Balochistan vs Aziz ullah Memon, 1993 PLD SC   para 5