Personal laws that govern matters related to marriage, divorce, custody of children and inheritance have been an issue of great concern and debate in Pakistan. There have been demands for decades now for new legislation because personal laws did not exist for some religious minorities, whereas for others they were outdated and incompatible with standards of gender equality and justice.
The UN Committee of Independent Experts, which monitors the implementation of the Convention on the Elimination of all forms of Discrimination against Women (Cedaw) reviewed the situation in Pakistan in March 2013. The Cedaw Committee specifically recommended that the impending legislation regarding the Hindu Marriage Act and the Christian Marriage Act should be adopted as early as possible. Pakistan’s National Commission on the Status of Women had prepared drafts on these laws after a consultative process involving legal experts from their respective communities in 2011.
Now that the bill concerning Hindu marriages – introduced by Dr Darshan Ramesh Lal – is being reviewed by the Standing Committee on Law, Justice and Human Rights of the National Assembly, it is important to ensure that it satisfies international standards of human rights. Although the bill primarily concerns one religious community yet it deserves broader consultation for technical and professional input due to its national importance and commitments under international human rights law.
The move is appreciable on the whole and the bill covers some important features like establishing a minimum age (18) for marriage, free consent for marriage and a ground for divorce and procedures for registration of marriage. However some parts of the bill need more attention to avoid criticism or complications that might come if the bill is passed in the present form.
For instance, Section 5, on conditions for marriage, bars marriage of a wife who “cannot conceive (a child) and medically declared to be so.” The proviso is objectionable, because one’s capacity to reproduce should not be a bar for contracting marriage. That would be a clear violation of the rights of individuals under Article 16 of the Universal Declaration of Human Rights, which states; “Men and women of full age, without any limitation due to race, nationality, or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.”
The use of the word ‘wife’ places the intention of law in jeopardy because it implies that husbands suffering from impotency can be allowed to marry or remarry while women will be married only if they are fit for procreation. The proviso not only undermines the fundamental concept of marriage as a marital union of entitled and freely consenting parties but also has misplaced emphasis on procreation as the primary purpose of marriage. The choice of the term ‘wife’ together with mention of the word ‘conceive’ also suggests that it can be grounds for ineligibility for second marriage of women only.
Parts 3 and 4 (vii) of the Shaadi Pattar or marriage certificate given in the bill have four options to record the marital status of the bride and the bridegroom – single, married, widow/ widower or divorced. Allowing a married person remarriage is likely to attract complications if the first marriage is yet to be dissolved, therefore permissibility of a ‘married’ person’s marriage would mean allowing bigamy or polygamy, which I believe is not the intention of the law.
Another questionable proviso is about making “mental illness and virulent disease” as one of the grounds of dissolution of marriage. This proviso is not only susceptible to abuse but also portrays the bond of marriage as merely a utilitarian union undermining the profound meaning of marriage in human, religious and social ethos. Terms with such a broad application are exactly the deadwood that new legislation should avoid.
It would be useful to look at laws on this subject in other countries as well. In an amendment bill on Hindu marriage in India that has been passed by Rajya Sabha and is under review in the Lok Sabha, a liberal procedure for divorce is being considered – but with condition of guarantees for the protection of children, women and dependents who could be affected by the divorce irreparably.
Second, even though there can be separate laws for protecting the rights of divorced women and custody of children, yet it would be advisable to use the bill under consideration to include basic protections on these matters.
Moreover, the Qanoon-e-Shihadat (1984) law is a part of the basic law and the Islamic provisos of this law might create complication for non-Muslim litigants. Therefore, the procedures for evidence should be religiously neutral as far as their application on marriage laws for minorities is concerned.
On the whole the Standing Committee needs to ensure that community specific legislation meets international standards of human rights and gender equality and provide a just solution to marital issues. In a context that is marred by discrimination and marginalisation on the basis of sex, religion and class, the new legislation must add to the protection of rights, especially for women and children.