Human RightsNational

Minority laws in Pakistan: Still a long way to go

PESHAWAR: Father of the nation, Quaid-e-Azam Muhammad Ali Jinnah, had no ambiguity in his mind about the rights for religious minorities in Pakistan. It is evident from an excerpt of his speech he delivered at the Constituent Assembly on August 11, 1947: “You are free; you are free to go to your temples. You are free to go to your mosques or to any other places of worship in this State of Pakistan. You may belong to any religion, caste or creed—that has nothing to do with the business of the state.”

But it is a harsh reality that predecessors of the Quaid did not follow his ideology on religious minorities which is evident from the fact that their population in Pakistan remained on a constant nosedive. They were 15 per cent of the country’s population in 1947, presently diminished to three per cent. The family laws, besides others, are perhaps a contributing factor behind the minorities’ readiness to prefer other countries on Pakistan.

In Christianity, only way to get divorce to prove that either spouse committed adultery or changes his or her religion

Reena* got married with one Joseph some 10 years back under the Christian marriage law existing in Pakistan. After four years for her marriage she gave birth to a baby girl. A year later they developed differences which finally led to moving a local court for divorce by her spouse.
But the only way to get divorce to prove that she committed adultery which Reena says she didn’t or only in case either spouse changes his or her religion.

Her counsel, Shaukat Ghulam, says that under Section 10 of the Divorce Act, 1869 a Christian man can divorce his wife only if she is found involved in adultery. “This is something the men will not stoop to as in the case of Reena in which her husband levelled allegation that his wife has relations with a Hindu boy, said Shaukat. He said that the Church does not allow them to seek a divorce, and the Christian family laws in Pakistan make it impossible as well.
Demanding for dignified way out of marriages, Reena says she doesn’t want to be divorced by getting certificate of characterless being those deeds she didn’t commit.

In Pakistan Divorce Act, 1869 deals with the divorce of Christians. However, instead of family courts, civil courts are empowered to decide these cases. It merits a mention here that mandatory period to decide divorce case in a family court is six months while in civil courts it takes two to five years.

In 1961, then government made certain changes in to the Muslim Family Law Ordinance, but it did not bother to update the laws relating to the marriages of religious minorities, especially those dealing with the nikah registration, minimum marriage age, maintenance, inheritance, will, adoption etc.

A Hindu girl in Peshawar Maria Kumari’s case is even more disturbing. She was divorced by her husband three years ago. She also moved the court, challenging the decision of her spouse. But her husband’s conversion to Islam and marrying a Muslim girl put an end to her case. Because, after converting to Islam, the law applicable to Hindu minority could not be applied on him.

Haroon Sarbdiyal, a Hindu who works on minorities’ rights in Pakistan, is hopeful that the new legislation—Hindu Marriage Act, 2017—would go a long way in addressing the problems of Hindu community. The new law has made it mandatory to register the marriages besides minimum marriage age has been set as 18 years. Moreover, the new legislation also provides that if a Hindu couple is not living together for a year and want to dissolve their marriage, they can do that. A Hindu widow has also been allowed to re-marry after six months of her husband’s death. It has also put a ban on polygamy.

Radesh Singh Tony, also a rights activist hailing from Sikh community, says that the problems to a Sikh in Pakistan start from the very day he/she is born. “We’ve no law regarding the birth registration of our newborns. Besides, Sikh marriages can be registered at only six Sikh temples: five in Punjab while one in Peshawar.”

He adds that lack of laws regarding re-marriage of Sikh widows is also a big issue their women are confronted with. The militancy in Khyber Agency rendered a number of Sikh women widowed who have no legal option of re-marriage. He voices his concern over inclusion of Sikh community in the Hindu Marriage Act. “We’re two different religions and we’ve different religious injunction regarding marriages.”

Shaukat Ghulam says that different laws were made for religious minorities such as Christians Marriage Act, 1872, Divorce Act, 1869, Succession Act of 1925, Births, Deaths and Marriages Registration Act of 1886, Anand Marriage Act 1909 (for Sikhs); Parsi Marriage Act, Hindu Marriage Act, but most of these laws are outdated which needs massive amendments. “A Hindu cannot prove his wife as her legal spouse due to the absence of law relating to marriage registration.”

Sarbdiyal is of the view that the Hindu Marriage Act, 2017—which is federal legislation—has solved a number of problems especially those dealing with Hindu marriages and birth registration. But, he hastens to add, the provinces should implement these law in the letter and spirit. “The provinces have yet to frame rules of business for this law so that it becomes fully functional.”

He points out that the new legislation has not addressed the issues of forced conversions, the maintenance of the wife and children of a Christian who converts to Islam, inheritance and adoption of children.

Hashim Raza, a senior lawyer at the Peshawar High Court who keenly follows legislation on the rights of religious minorities, tells Peshawar Today that minorities are never made part of the consultations done for proposing new laws and amendments to the existing ones. “This leads to number of problems.” For instance, he adds, Sikh community has been included in the Hindu Marriage Act, while they say that they are different religions which cannot be incorporated in a single law.

On the other hand, Advisor to Chief Minister on Minority Affairs Ravi Kumar the Pakistan Tehrik-e-Insaf (PTI)-led coalition government in Khyber Pakhtunkhwa has recently raised the quota of minorities from 0.5 per cent to 5 per cent. In addition, 100 million rupees have been set aside in the current development budget for worship places and graveyards of minorities.

Kumar adds that the government has decided to officially celebrate the religious festivals of the minorities. “Recently, we officially celebrated the Hindu festival of Devali in Peshawar.”

Responding a question on legislation for minorities, he says that under Article 144 of the Constitution, the three provinces (which ones) willingly surrender their powers to the Federation to legislate on minority issues. “This is why we cannot legislate on these issues.”

National Commission for Justice and Peace Coordinator Arifa Shakeel has highlighted her recently-done research on legal issues of religious minorities that Khyber Pakhtunkhwa legislature has not made any legislation for the minorities. “It is, indeed, an alarming situation. Apart from lack of laws on marriage registration, freedom to profess religion, construction and security of worship places, some minorities, such as Kelash and Behai, are facing the problems of their identity. ”
Talking to Peshawar Today, she says that while surrendering their powers on legislation to the federal government, the provinces should have given it a time limit for legislation. Besides, she adds, the provinces should have ensured that representatives of the religious minorities from all the federating units be made part of the legislation process. “The Centre’s performance in this regard is not up to the mark,” she concludes.

*Name changed to protect her identity.

Islam Gul Afridi

He is a senior Journalist covering FATA and Khyber Pakhtunkhwa for national and international media. He is also reporting for Peshawar Today. He can be reached at islam.gul.afridi@gmail.com

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2 Comments

  1. Pathetic…… how such laws like you can’t depend and prove your wife as your life partner even in court without her acceptance? Such laws need to be modified.

  2. The govt either extended power of the family courts to minority family issues or need to constitute special laws.

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