The last colony

Published December 6, 2020
The writer is a board member, AGHS Legal Aid Cell, an advocate of the high courts, Pakistan, and a solicitor of the senior courts of England and Wales.
The writer is a board member, AGHS Legal Aid Cell, an advocate of the high courts, Pakistan, and a solicitor of the senior courts of England and Wales.

THE Indian and Pakistani constitutions provide equality for all, yet the rights of citizens from different religious groups in matters such as marriage, divorce, maintenance and succession, depend on religious identity. A Muslim man can practise polygamy but this is denied to men from other faiths. Muslim women in India are unable to claim substantive maintenance from their former husbands after divorce whereas women from other religions do. In Pakistan, it is more difficult for Hindu and Christian couples to divorce than Muslim couples.

Post Zia, there has been slow but steady progress on improving women’s rights in the domestic sphere through legislation, but this has left out women from religious minorities. Successive governments have either ignored the matter or attempted to appease members of the ruling male elite from religious minorities, who have wanted to hang on to patriarchal rules on religious pretexts. Hence, women from religious minorities face the patriarchal standards of their own religious leaders as well as exploitation from right-wing elements in the majority community.

In 2017, in a landmark judgement, then Lahore High Court Chief Justice Mansoor Ali Shah, observed that the Christian Divorce Act 1869 fell foul of the fundamental rights guaranteed to minorities under the Constitution. The law prescribed strict fault-based rules including proving adultery for Christian couples to obtain a divorce. The judge stated: “The limited grounds of divorce under the state divorce law when compared with the rights enjoyed by Christians in the world, amounts to discriminating against the Christian minority in Pakistan.” Perhaps one did not need to look outside the country — the law for Muslim couples in Pakistan to obtain a divorce has been amended a few times so that fault no longer remains relevant. Regrettably, the matter did not become a judicial precedent as the case was appealed and is pending adjudication.

Laws have left out women from religious minorities.

Hindus in Pakistan have fared no better. Until recently, there was no law providing for registration of Hindu marriages. Hence, the legal and social consequences of marriage were denied to Hindu families. Women were more often the victims and could not pursue claims to inheritance or maintenance for themselves or their children if they could not prove the marriage. According to the Pakistan Hindu Council, lack of official recognition of marriage also made it easy for miscreants to forcibly marry Hindu girls. Hindu marriage, divorce, remarriage and right to maintenance are now regulated by the Sindh Hindu Marriage Registration Act, 2016, and the Hindu Marriage Act, 2017. While the law was hailed as a positive step by most, for others it was too little too late. As with Christians, divorce could only be obtained on narrow fault-based grounds requiring evidence.

Not only do laws applicable to Hindu and Christian marriages make it difficult to divorce they also do not provide for interfaith marriages. If a spouse converts to another religion the marriage is considered void. Unsurprisingly, this has led to several Christian and Hindu women converting to Islam. Ironically, in 1939, the Dissolution of Muslim Marriages Act was the first statutory law providing the right to Muslim women in India to divorce their husbands. The intent of the law, as stated in its preamble, was to discourage married Muslim women from converting to other faiths to escape abusive marriages. Almost a century later, non-Muslim women in Pakistan face the same humiliation of having to choose between mistreatment and faith. Unlike the majority of women, they have to stand in court to satisfy a particular judge’s notion of cruelty or neglect.

India and Pakistan are often at loggerheads but have much in common in the treatment of their religious minorities. After an era of colonial domination, the founders of both countries firmly endorsed non-discrimination, but since then, the fundamental rights of an ‘under-class’ have been frequently abandoned for political expediency.

In 1986, the Congress rulers in India rushed in legislation to appease Muslim religious leaders who opposed the supreme court’s decision in the Shah Bano case to grant a paltry sum of spousal maintenance to an indigent Muslim woman. For the Congress government in 1986, the Muslim vote bank counted and Muslim religious leaders felt that a man had no obligation to provide even basic sustenance to his former wife of 30 years. In contrast, in 2017, the BJP government hailed the decision of the supreme court which outlawed an unregistered triple talaq for Muslim women. For them, the right-wing Hindu vote bank counted more. What does not count in both countries are the lives of millions of women from religious minorities who are already at the bottom of the socioeconomic ladder; they will always remain the last colony.

The writer is a board member, AGHS Legal Aid Cell, an advocate of the high courts, Pakistan, and a solicitor of the senior courts of England and Wales.

Published in Dawn, December 6th, 2020

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