Christian divorce law in pakistan

  DIVORCE IN CHRISTIAN LAW

Divorce under Christian law is generally of two distinct types: Absolute divorce, also called “a vinculo matrimony” is 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, which is referred as  “a mensa et thoro,”  is a judicial separation, a change in status by which the parties are separated and are precluded from cohabitation, but the actual marriage remains intact. Limited divorce is sometimes termed a judicial separation, which suspends the marriage relation and modifies its duties and obligations, leaving the bond in full force. 

CHRISTIAN DIVORCE LAW IN PAKISTAN

Divorce Act 1869 deals with the divorce of Christians in Pakistan. The Act provides specific grounds on which divorce can be sought. Divorce Act 1869 deals with Absolute Divorce under the heads of Dissolution of marriage  and Nullity of Marriage while Limited divorce is dealt under the title of  Judicial Separation. 

CHRISTAIN DIVORCE PROCEDURE IN PAKISTAN

Following three types of divorces are available to Christians under Pakistani law:

1. Dissolution of marriage
2. Nullity of marriage
3. Judicial Separation 

DISSOLUTION OF MARRIAGE

A Christian husband may file petition to the Court of Civil Judge for dissolution of marriage on the ground that his wife has been guilty of adultery. A Christian wife can also file a petition to the Court of Civil Judge for dissolutionof marriage on the following grounds:

1. That her husband exchanged his religion of Christianity for some other religion and has married another woman or 
2. That her husband has been guilty of incestuous adultery or
3. That her husband has been guilty of bigamy with adultery. 
4. That her husband has been guilty of marriage with another woman with adultery or
5. That her husband has been guilty of rape, sodomy or bestiality. 
6. That her husband has been guilty of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro.
7.  That her husband has been guilty of adultery coupled with desertion, without reasonable excuse, for two years or upwards. 

Every such petition shall state the facts on which the claim to have such marriage dissolved is founded. In petition for dissolution of marriage filed by the husband, the  alleged adulterer  is to be  made co­respondent

NULLITY OF MARRIAGE

A Christain husband or wife may present a petition to the Court of Civil Judge, praying that the marriage may be declared null and void on any of the following grounds :

1. that her husband of is impotent 
2. that the parties are within the prohibited degrees of consanguinity i.e decendant from the same ancestor  or affinity
3. that either party was a lunatic or idiot at the time of the marriage 
4. that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then inforce. 
5. that the consent of either party was obtained by force or fraud. 

JUDICIAL SEPRATIAON

A Christian husband or wife may obtain a decree of judicial separation on any one of the following ground:

1. adultery, 
2.  cruelty, 
3. or desertion without reasonable excuse for two years or upwards.

DIVORCE OF PAKISTANI CHRISTIANS UNDER  UK’S LAW “MATRIMONIAL CAUSES ACT, 1973”

Pakistani Christians, apart from the afore-mentioned grounds for divorce, can seek divorce on the grounds available under  UK’s  Matrimonial Causes Act, 1973. Section 7 of the Divorce Act 1869 enables Pakisani Christians to seek divorce on basis of additional grounds provided under Matrimonial Causes Act, 1973. Section 7 provides that Courts shall give relief to Christians on principles and rules, which are conformable with the divorce law in UK. Section 7 was omitted through item 7(2) of the Second Schedule read with section 3 of Federal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of 1981) promulgated on 08.07.1981. With section 7 repealed by the Ordinance, the only grounds left for divorce or dissolution of marriage are provided under Section 10 of the Act, reproduced above. But Lahore High Court in a land mark judgment Ameen Masih vs Federation of Pakistan and others (P L D 2017 Lahore 610) has restored Section 7 of Divorce Act, 1869. 

So Pakistani Christians can seek divorce on the ground of irretrievable breakdown of marriage provided under  Matrimonial Causes Act, 1973 (UK). Section 1 of Part 1 of Chapter 18 of UK law provides as follows: 

(1) Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably. 

(2) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say 

(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; 

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent ; 

(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition ; 

(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as ” two years’ separation “) and the respondent consents to a decree being granted ; 

(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as ” five years’ separation “). 

(3) On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent. 

(4) If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to sections 3(3) and 5 below, grant a decree of divorce. 

(5) Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of six months from its grant unless the High Court by general order from time to time fixes a shorter period, or unless in any particular case the court in which the proceedings are for the time being pending from time to time by special order fixes a shorter period than the period otherwise applicable for the time being by virtue of this subsection. 

SUMMARY

Pakistani Christians can seek divorce on the grounds available inPakistan law i.e. THE DIVORCE ACT 1869 as well as on the grounds available in UK’s law i.e. “MATRIMONIAL CAUSES ACT, 1973”.