Christian Personal Law

2017 PLD 610 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

"Divorce"Meaning ofMeaning of the term "divorce" in the context of Chirstian personal lawTwo distinct types of divorces under Christian lawScope

Term "divorce" as a verb meant "to separate" and the word "divorce" confined to its strict legal sense, meant legal dissolution of a lawful union for a cause arising after marriage

Divorces under Christian law were generally of two distinct types: Absolute divorce, or divorce "a vinculo matrimonii" was a judicial dissolution of the marriage ordered as a result of marital misconduct or other statutory cause arising after the marriage ceremony, whereas limited divorce, sometimes referred to as divorce "a mensa et thoro," "divorce from bed and board," or legal separation was a change in status by which the parties were separated and were precluded from cohabitation, but actual marriage was not affected

Limited divorce was sometimes termed as judicial separation, which suspended the marriage relation and modified its duties and obligations, leaving the bond in full force.

2017 PLD 610 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Dissolution of marriage under Christian personal lawConcept of "no fault" divorce and "irretrievable breakdown of marriage" in Christian personal lawLegislation to incorporate concept of "no fault" divorce in various jurisdictionsLiberalization and emancipation of Christian Divorce Law across the world, particularly in Christian-majority countriesStatutory introduction of grounds other than adultery for dissolution of marriage/divorceRight to human dignity and right to a happy family life as basis for liberalization of Christian divorce laws

Concept and various aspects of Christian divorce law in various jurisdictions, extensively examined.

2017 PLD 610 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 7 & 10Federal Laws (Revision and Declaration) Ordinance (XXVII of 1981), Item 7(2) of the Second Sched.United Kingdom Matrimonial Causes Act 1973, Section 1 of Part I of Chapter 18Constitution of Pakistan, Arts. 2A, 9, 14, 25, 20, 29, 36, 270A & 199Christian personal lawDissolution of marriage in Christian personal lawGrounds for dissolution of marriage other than adulteryIrretrievable breakdown of marriage/no-fault divorce

Constitutionality of the repeal of S. 7 of the Divorce Act, 1869 which provided Pakistani Christians grounds for divorce under the United Kingdom Matrimonial Causes Act 1973

Minority Rights

Safeguard of legitimate interest of religious minorities under the Constitution

Freedom of Religion

Scope

Petitioner, who was a Christian, impugned repeal of S. 7 of the Divorce Act, 1869, vide Federal Laws (Revision and Declaration) Ordinance, 1981

Contention of petitioner, inter alia, was that the repealed S. 7 of the Divorce Act, 1869 made available grounds for divorce under the United Kingdom Matrimonial Causes Act, 1973 , other than adultery, and the repeal of the same was unconstitutional

Validity

Impugned amendment (deletion of S.7 of the Divorce Act, 1869) was to be reviewed and examined on the touchstone of the minority rights under the Constitution available to the petitioner and minorities in Pakistan

There existed liberalization in the grounds of divorce all over the Christian world and the UK Matrimonial Causes Act, 1973 also provided for irretrievable breakdown of marriage, which freedom would have been automatically available to the Christian minority in Pakistan had S.7 of the Divorce Act, 1869 been available on the statute book

Right to life and liberty were separate Fundamental Rights under the Constitution and impugned amendment limited the choice of a person to divorce and forced a person to lead an unhappy and an oppressive life unless he or she could prove charge of adultery against a spouse

Such limitation perpetuated a dead marriage and impaired quality of life and curtailed the liberty of a person by forcing him to live through an unhappy family life against his free choice

Impugned amendment by limiting grounds of divorce stunted growth and freedom of minority rights in Pakistan and deprived Christians from fashioning their divorce law with the same freedom, emancipation and liberation as Christians around the world

Limited grounds of divorce under the State divorce law when compared with the rights enjoyed by the Christians in the world, amounted to discriminating against the Christian minority in Pakistan and such gap and deprivation in State law, could best be abridged by extending the same rights enjoyed by Christians in majority countries to the Christians in Pakistan which could be easily achieved by restoring S.7 of the Divorce Act,1869 as was the case prior to the impugned amendment/repeal

High Court observed that impugned amendment did not pass the test of minority rights and in particular the Fundamental Rights to life, liberty, dignity and non-discrimination and therefore Item 7(2) of the Second Schedule to Federal Laws (Revision and Declaration) Ordinance,1981 was declared to be unconstitutional

High Court held that S.7 of the Divorce Act, 1869 stood restored, in the manner it stood in the year 1981, making available to the Christians of Pakistan the relief based on the principles and rules of divorce under United Kingdom Matrimonial Causes Act, 1973 and that the term "subject to the provisions of the Act" used in S. 7 of the Divorce Act, 1869 was to be read down in order to make Ss.7 & 10 of the same work together and to make them Constitutionally compliant

Constitutional petition was allowed, accordingly.