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The Constitution
of Pakistan and Fundamental Rights
What to do if your Rights have been Violated
Rights in a Muslim Marriage
Dissolution of a Muslim Marriage
Christian Hindu and Parsi Marriages
Custody of Children
Crimes Against Women
Christian,
Hindu and Parsi Marriages
Unfortunately,
unlike the reforms such as the Muslim Family Laws Ordinance of 1961 which
have benefitted Muslim women, there has been no development since colonial
times of the personal laws relating to these three communities. The Hindu
community in particular do not have any specific codified laws relating
to family matters which are instead governed by custom.
Members
of minority communities can and do approach the country’s regular
Family Courts since the Family Courts Act of 1964 does not restrict its
jurisdiction to Muslims alone.
Christian
Marriage & Dissolution
Christian
marriage is a voluntary union for life between a man and a woman, to the
exclusion of all others. Family matters among the Christian community
are dealt with by the Christian Marriages Act of 1872 and the Divorce
Act of 1869. One of the problems facing the community is the contradiction
between the Christian Marriage Act and the Child Marriage Restraint Act
of 1929 which sets the minimum age for marriage.
| Essentials |
Who
can Solemnise Marriage |
Penalties
for Violation |
- Minimum
age: girl: exceeding 13 years boy: exceeding 16 years
-
either party to be Christian (in practice priests do not solemnise
marriages unless both parties are Christian)
- free
consent of both in public before 2 witnesses* see note below
- notice
of marriage three consecutive calendar months before marriage
- registration
of marriage with Registrar
-
certificate of marriage
- solemnised
in church, or with special permission, at private residence.
- Prohibited:
certain marriages between relatives (related by blood and by affinity)
are prohibited but these are not clearly defined in the Act
|
- any
person who has received Episcopal ordination provided the marriage
is solemnised in accordance with rules, rites, ceremonies, customs
of the church of which he is a Minister
-
any clergy of the Church of Scotland * see note below
- any
minister of religion holding a licence under the Christian Marriages
Act
- a
Marriage Registrar appointed under the Act
- any
person appointed under the Act to grant certificate of marriage
to native Christians
|
- There
are strong penalties of fine and imprisonment (in some instances
up to 10 years) for violation of the . provisions in the Christian
Marriages Act by the parties and/or the Registrar. However implementation
is very rare.
|
| Note: |
- according
to the Act (Sec.19 & 60), if either of the spouses has not
exceeded 18 years of age the certificate of marriage will not
be issued unless the consent of the father/guardian/mother has
been given.
- there
is now no Church of England or Scotland in Pakistan. It is known
as the Church of Pakistan
- polygamy
is strictly prohibited among Christians
|
Dissolution
of Christian Marriage,
Since
marriage among Christians is regarded as a holy union, the primary concept
of dissolution of marriage is through the death of one of the spouses
and divorce during their lifetime is permitted only on very restricted
grounds for both husband and wife. There is no concept of unilateral divorce
and the courts have to be approached (although in practice, the Church
does also grant dissolution of marriage).
| Procedure
for Divorce |
Grounds’ |
| by
husband underSec.10 of the DivorceAct 1869 in the FamilyCourt |
wife
guilty of adultery |
| by
wife under Sec.10 of the Divorce Act 1869
in the Family Court |
husband
guilty of adultery and
since solemnisation of marriage husband converts to another religion;
or
husband is guilty of incestuous adultery; or
husband is guilty of bigamy with adultery; or
husband is guilty of marriage with another woman with adultery; or
husband is guilty of rape, sodomy or bestiality; or
husband is guilty of adultery coupled with cruelty
husband is guilty of adultery coupled with desertion without reasonable
cause for 2 years or more |
Nullity
of Marriage & Judicial Separation
Nullity
of Marriage: Any wife or husband can approach
the courts to have her/his marriage declared null and void on any of the
following grounds under Sec 18 & 19 of the Divorce Act 1869 (the children
of an annulled marriage however are legitimate and can inherit):
husband was impotent at the time of marriage and remains so
husband
and wife fall within the prohibited degrees of consanguinity (natural
& legal) or affinity
husband
or wife was a lunatic or idiot at the time of marriage
former
husband or wife of spouse is living and former marriage was still in tact
consent
of husband or wife for marriage was taken by force or fraud
Judicial
Separation: The wife or the husband can approach the courts to
seek a judicial separation onthe grounds of adultery or cruelty or desertion
without reasonable cause for 2 years or more.
Hindu
Family Matters
Hindu
family matters in Pakistan are primarily governed by custom and the essentials
of a valid custom are that it should be ancient, certain, reasonable and
not opposed to public policy.
Very
few family matters among the Hindu community go to courts and most issues
are settled through community forums. However, the scheduled castes, as
opposed to the caste Hindus, do take their cases to the Family Courts.
In general, there is no concept of divorce among Hindus, although some
file divorce suits in the Family Courts pleading the existence of the
custom in their community.
A
Hindu widow can legally remarry under the Hindu Widow’s Marriage
Act of 1856.
In
the event of remarriage, if she is a minor and the previous marriage was
not consummated, her father’s consent for remarriage is a must;
however, if the widow is adult or the previous marriage was consummated,
she can consent on her own.
On
remarriage a Hindu widow loses her rights over her deceased husband’s
property
A
Hindu widow can be a guardian if this was expressed in the deceased husband’s
will or she can approach the court to appoint a guardian if no other male
was named as a guardian in the will.
Married
Hindu Woman’s Right to Separate Residence & Maintenance
According
to the Act of 1946, a married Hindu woman can claim separate residence
and maintenance on
- one or
more of the following grounds:
- husband
suffering from any loathsome disease not contracted from wife
- cruelty
by husband and it is not safe for wife to live with husband
- desertion
or abandonment against her consent
- husband
has remarried
- husband
converts to another religion
- husband
keeps concubine
- any other
justifiable cause
- The wife
can be denied her claim if
- she converts
to another religion
- becomes
immoral
- fails
to comply with decree for restitution of conjugal rights without sufficient
cause
Parsi
Marriage
| Requisites
of a Valid Marriage |
Penalties
for Violation |
Parsi
Marriage & Divorce Act of 1936:
Minimum
age:
21 for both girls & boys; otherwise prior consent of father
of whichever party is under age
intending
spouses are not related by consanguinity or affinity
to
be solemnised in Parsi form (‘Ashirvad’) by a priest
in
presence of 2 Parsi witnesses
marriage
to be certified and signed by officiating priest
certificate
to be signed by contracting parties and 2 witnesses
certificate
to be registered with Registrar
copy
of certificate to be given to Registrar General
|
all
parties required for a valid marriage (i.e. spouses, witnesses,
priest, Registrar, parent of minor) can be punished for violations
for
priest neglecting responsibility of certifying marriage:
on conviction, imprisonment of up to 3 months and/or fine
for
person required to attest certificate:
on omission or neglect, fine
for
making a false certificate or knowingly making incorrect statements:
on conviction, imprisonment for up to 3 months and/or fine
for
Registrar failing to enter certificate in entry register:
on conviction, imprisonment of up to one year and/or fine
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| Comments: |
bigamy
is strictly prohibited and carries heavy penalties:
whoever contracts a bigamous marriage: imprisonment of up to seven
years with fine
whoever hides his/her existing marriage: imprisonment of up to ten
years with fine
for priest knowingly or willfully solemnising a bigamous marriage:
imprisonment of up to 6 months and/or fine under Sec.494 & 495
of PPC |
Dissolution
of Parsi Marriage
| Form |
Grounds |
Divorce:
can be initiated by wife or husband through the Family Court
|
marriage
not consummated for one year after marriage because of willful refusal
by spouse
spouse
was of unsound mind and is still so
provided: this was not known to the other spouse at time of marriage.
Such suit can only be filed after 3 years of marriage
desertion
for at least 3 years; if desertion by wife, requires decree for
conjugal rights against her; if desertion by husband, requires separate
maintenance suit decreed in wife’s favour and no marital relations
for 3 years or more
spouse
jailed for 7 years or more and already 1 year of imprisonment has
passed
spouse
fails to comply with decree for conjugal rights for 1 year or more
spouse
ceases to be Parsi
husband
can file if wife pregnant by another man at time of marriage and
fact not known to husband at time of marriage; has to file suit
within 2 years of marriage spouse involved in adultery, fornication,
bigamy or rape or unnatural offence since marriage and spouse filing
suit stopped conjugal relations on discovering fact; has to file
suit within 2 years of marriage
grievous hurt caused by spouse }
infected with venereal disease by spouse } has to file suit within
2 years of act
husband compels wife to prostitution }
|
| Suit
for Dissolution: can be initiated by wife or husband through
the Family Court |
continuous
absence of spouse for 7 years and during this period not heard of
by his/her known ones who would ordinarily know about him/her in the
event of his/her being alive |
| Nullity
Suit can be initiated by wife or husband through the Family
Court |
consummation
of marriage not possible due to natural causes |
| Judicial
Separation can be initiated by wife or husband through the
Family Court |
on
grounds as above for divorce
cruelty
to his/her children
spouse
guilty of violence such court finds it improper to compel other
spouse to live with violent spouse |
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