By Asif Aqeel
25 July 2016
It was on May 29, 2016, that Safia Bibi’s husband, Safdar Masih, hit her the last time. She died on the same day. Saleem Bhatti, her brother, was present along with his other siblings in her house that day when Safdar started abusing her and hitting her with a club. They intervened, stopped him from beating her, but soon left for their own houses. Safdar then pinned Safia down on the floor, sat on her chest and strangulated her. When Bhatti and the others returned, alarmed by the noise coming from Safia’s house, she was struggling to break free. Before they could do anything, she breathed her last.
These details are mentioned in the First Information Report (FIR) that Bhatti got registered at Baghdadul Jadid Police Station in Bahawalpur. Safia, a mother of five, had lacerations on her forehead, chin and left cheek, reads an autopsy report prepared by the doctors at Bahawalpur’s Quaid-e-Azam Medical College. The report also mentions several semi-healed and healed wounds on her face, neck, shoulders, chest, shins and knees — proof that her husband had been violent towards her for years.
Safia’s neighbours claim Safdar burnt her leg with a hot iron a few months before her death, but he blamed the injury on the police. The police had raided Safdar’s house to arrest him on charges of illegally selling liquor, but he accused them of burning his wife’s leg in order to save his own skin, the neighbours add, without wanting to be named.
Safia tried to protect herself from the abuse. Lazar Allah Rakha, a lawyer working in Bahawalpur, says she asked him thrice if she could file for a divorce before she was killed. The law, at the time, did not give her that option. She could obtain divorce only if she could prove that her husband had committed adultery or had converted to another faith or remarried. None of these reasons applied in her case.
The amended law allowed only a few limited reasons for divorce; adultery, conversion or second marriage.
Christian matrimonial issues are governed by colonial-era laws such as the Christian Marriage Act 1872, the Christian Divorce Act 1869 and the Succession Act 1925. In 1981, General Ziaul Haq amended the Christian Divorce Act through a presidential decree, making divorce difficult – almost impossible – to obtain. The changed law was a step back to the days when the religious canon superseded civil law.
Traditionally, Catholic Christians believe that marriage is an indissoluble and lifelong union “for better or for worse”, as stated in their marriage vows. The Matrimonial Causes Act, 1857 – enacted in England but also applied in British India – took marriage out of the jurisdiction of the church and gave civil courts the authority to adjudicate on all disputes related to it.
For over a hundred years since, this separation of religion and state treated marriage as a civil contract rather than a religious one. That is, until Zia came along and deleted Section 7 of the Christian Divorce Act, barring couples from filing for divorce in accordance with British custom and practice. The amended law allowed only a few limited reasons for divorce; adultery, conversion or second marriage.
Hampered by this stringent divorce law, thousands of Christian women have converted to Islam in order to secure their right to divorce, Pakistani Christian community leaders claim. “The safest bet for them to get a divorce is to convert to Islam,” says Bishop Emeritus Alexander John Malik.
On May 23 this year, the Lahore High Court reinstated Section 7 of the Christian Divorce Act — only a week prior to Safia’s death. She either did not know about the change or had already given up trying to get out of her marriage.
The court made the decision on a petition filed by one Amin Masih in January 2016. The petitioner wanted to divorce his wife, but did not want to humiliate her by accusing her of adultery, which she had not committed. “[In the United Kingdom], the Matrimonial Causes Act is now interpreted in a liberal manner, providing both Christian men and women the right to part ways if their marriage is irretrievably broken down,” Amin Masih’s counsel, Sheraz Zaka, argued in court. “But this right is not available to Christians in Pakistan.”
A month after the petition was filed, Justice Syed Mansoor Ali Shah of the Lahore High Court issued notices to Bishop Malik and Bishop Irfan Jamil of the Church of Pakistan, seeking their advice. Bishop Malik, who was then working as the bishop of Lahore (the largest Christian dioceses in Pakistan), tells the Herald that no Christian clergy was consulted before Section 7 was deleted.
Shunila Ruth, a member of the Punjab Assembly affiliated with the Pakistan Tehreek-e-Insaf (PTI), confirms this. Her father was the Methodist Bishop of Raiwind when the section was deleted but no one from the government sought his opinion concerning the matter.
“Zia had no right to touch personal laws of a community without having consultations with [the community members],” says Supreme Court lawyer Hina Jilani, whom Justice Shah appointed as amicus curiae (a friend of the court) in the case to explain the constitutional position. “Zia violated the Christians’ right to freedom of religion,” she says.
Arguing before the court, Jilani said: “The Supreme Court of Pakistan, in 2009, decided in [the case of] Sindh High Court Bar Association versus the Federation that if any protections provided to a law made by a dictator are in conflict with fundamental human rights then those protections were not applicable. Hence, the court in the current case has the power to restore Section 7.”
“Zia had no right to touch personal laws of a community without having consultations with [the community members],” — Supreme Court lawyer Hina Jilani.
While the proceedings in the case were still going on, Ruth tabled a bill in the Punjab Assembly. It sought to provide multiple grounds for divorce: if either of the two in a married couple is a child; if the marriage is contracted without the consent of either of the two spouses; if the husband intentionally does not fulfil any of his financial, emotional or physical obligations.
When the court came to know about the bill, it sought Ruth’s opinion on the matter too. “I informed the court that Christianity advocated equality of men and women, but taking out Section 7 has altered this balance in favour of men,” she says. Another person summoned by the court was Fauzia Viqar, chairperson of the Punjab Commission on the Status of Women. She told the court that the “conditions prescribed for dissolution of marriage in the Christian Divorce Act do not treat men and women on equal grounds”. This, she said, was a “violation of Article 25 of the Constitution of Pakistan, which clearly states [that] all citizens are equal before the law … [and] there shall be no discrimination on the basis of sex”.
Viqar pointed to another constitutional provision too. “The [divorce] law also violates Article 14 of the Constitution, which discusses the inviolability of the dignity of mankind. It is an insult to a woman if her husband has to accuse her of adultery or prostitution in order to give her a divorce,” she argued.
Viqar told the court that Christian women converted to Islam in order to escape abusive marriages and domestic violence. “Under the current law, a woman whose drug addict husband is forcing her into prostitution cannot go to court for divorce because she has to prove that he is adulterous too,” she explained. “In the rest of the world, where Christianity has been the predominant faith since centuries, divorce laws have been modified to reflect the changing times.”
After hearing these arguments, Justice Shah annulled the deletion of Section 7. But that came too late for Safia.
Though Section 7 has been restored, it has done little to remove the stigma attached to divorce. Misogyny, after all, is far older than Zia. On grounds both religious and patriarchal, a large number of Christians are demanding that the section be deleted again. Among them are two human rights ministers — both representing the ruling Pakistan Muslim League–Nawaz (PMLN) government?
Addressing a meeting of the Punjab government’s Minority Advisory Council held on June 2, 2016, to discuss the bill tabled by Ruth, Punjab Human Rights and Minorities Affairs Minister Khalil Tahir Sindhu said he believed marriage to be a religious contract and, therefore, did not believe in divorce. “Can a court touch the law ordained by our faith?” he asked the Christian clergy present at the meeting. Bishop Jamil and several other clerics responded that the biblical framework did not allow divorce.
Some members of the Christian clergy argued that the restoration of Section 7 was an infringement of their right to practice their belief. The reason, according to the Church of Pakistan, is that “marriage is a lifelong and indissoluble union for better or for worse”.
The Vatican’s official website on the catechism of the Catholic Church states a similar view. “The Lord Jesus insisted on the original intention of the Creator who willed that marriage be indissoluble,” states the web page. It adds: “Divorce is a grave offense against the natural law … contracting a new union, even if it is recognised by civil law, adds to the gravity of the rupture; the remarried spouse is then in a situation of public and permanent adultery.”
Federal Human Rights Minister Kamran Michael endorses this point of view and calls for further consultations before a final decision is made on whether or not to sustain the restoration of Section 7. “A conference of religious leaders is being called. Their views will be publicised so that the masses also know the religious teachings regarding divorce. If the clergy permits, only then can Section 7 be implemented again.”
Many political and religious leaders of the Christian community believe there is an urgent and strong need to reform the divorce law in any case. Bishop Malik points out that the presence of the Hudood Ordinance makes it extremely complicated to restrict the grounds for divorce to adultery. “Who is going to testify to committing adultery knowing the punishment for it under the Hudood Ordinance [is flogging]?”
Denominational differences among Pakistani Christians are another factor that prohibits the application of a uniform religious law in matrimonial affairs. For several Protestant denominations, marriage is not a sacred, religious contract. “Marriage is an expression of love, respect and companionship in Protestantism,” says Church of Pakistan moderator Bishop Samuel Azariah. He also believes that the state rather than the church has the right to adjudicate on matrimonial affairs. “The registration of marriage and divorce involves the state. We cannot say these are purely religious issues.”
Others argue that the restoration of Section 7 is not sufficient for reforming the Christian marriage and divorce laws in Pakistan. Mary Gill, a lawyer and a member of the Punjab Assembly affiliated with the PMLN, is one of them. The law does not reflect the times, she says, and adds that the religious and legal arguments being made by English clergymen and the Church of England on the subject of marriage and divorce have no relevance to Pakistan, where marriage and divorce laws for the Christian community are incompatible with some other laws.
“Marriageable age in the Christian Divorce Act is 16 years for boys and 13 years for girls, which is in contradiction with the Child Marriage Restraint Act of 1929,” says Gill.
Knowing that there are many glaring flaws in the existing laws, she is working on tabling a draft law of her own. “There is need for a more contextualised divorce law to combat inadequate safeguards and remove ambiguities, incorrect and biased interpretations of legal provisions and lengthy litigation processes,” she says.
This was originally published in the Herald's July 2016 issue under the headline "Till death do us part". To read more subscribe to the Herald in print.
Asif Aqeel is a journalist based in Lahore.