• LHC removes colonial-era law requirement to prove adultery or cruelty
• Judge cites constitutional protection of religious freedom in verdict

ISLAMABAD: In a landmark judgement that promises to ease the process of divorce for the Christian community in Pakistan, the Lahore High Court has ruled that Christian couples can now seek dissolution of marriage on the ground of ‘desertion’ if they have been living separately for two years, removing the earlier requirement of having to prove adultery or cruelty.

Justice Jawad Hassan issued the ruling while accepting a constitutional petition filed by a Christian husband, Shahroz, who had been entangled in litigation since 2022 after his petition for judicial separation was dismissed by the trial and appellate courts for failure to prove allegations of adultery and cruelty against his wife, Tareeza.

The court observed that the couple had been living separately for over two years, and the wife herself admitted to the separation during the proceedings. The judge set aside the earlier judgements and remanded the case to the trial court with directions to frame appropriate issues, including the ground of ‘desertion’ under Section 22 of the Christian Divorce Act 1869.

The judgement took note of the unique difficulties faced by Christian litigants in Pakistan’s family courts. Unlike Mus­lim family law, where divorce provisions are relatively straightforward, the Chris­tian Divorce Act 1869 — a colonial-era law — provides limited grounds for men to seek divorce.

Under Section 10 of the Act, a husband can only seek dissolution of marriage on the ground that his wife has been guilty of adultery since the solemnisation of the marriage.

Section 11 makes it mandatory for the husband to implead the alleged adulterer as a co-respondent, a requirement that of­­ten proves impossible to fulfil and results in the dismissal of divorce petitions.

In the present case, the petitioner had to go through two rounds of litigation — first on the ground of adultery, which he failed to prove, and then on the ground of cruelty, which also remained unsubstantiated for want of evidence.

The trial court dismissed the petition primarily on technical grounds, observing that the husband had failed to name the adulterer or provide any documentary proof that his wife was leading an immoral life.

The appellate court upheld the dismissal, noting that the petitioner had “hopelessly failed to prove alleged acts and deeds of the respondent” and had admitted in cross-examination that no witness accompanied him to support his version of the wife’s abusive behaviour.

Religious freedom

Justice Jawad Hassan observed that both courts had failed to examine the petitioner’s claim in light of the constitutional mandate protecting religious freedom.

The court relied on Article 20 of the Constitution, which guarantees every citizen the right to profess, practice and propagate their religion, subject to law, public order and morality.

The LHC undertook a detailed examination of the statutory scheme of the Divorce Act and held that desertion was a legally cognisable matrimonial wrong under the statute. Section 3(9) of the Act defines desertion as “an abandonment against the wish of the person charging it”, while Section 22 enables either husband or wife to obtain a decree of judicial separation on the ground of “desertion without reasonable excuse for two years or upwards”.

Justice Hassan laid down the essential constituents of desertion: the fact of separation (factum deserendi), the intention to permanently abandon the matrimonial union (animus deserendi), absence of consent of the other spouse, absence of reasonable cause for such withdrawal, and completion of the statutory period of two years.

In the present case, the court noted that the respondent wife, while appearing as a defence witness, did not controvert the petitioner’s assertion that the parties had been living separately.

During the proceedings before the high court, she acknowledged that they had been living apart, though maintaining limited telephonic contact.

The petitioner also stated that he had since become engaged to another person and was seeking formal separation through these proceedings.

The court issued directions to the Punjab district judiciary director general to circulate copies of the verdict to all district and sessions judges with instructions to sensitise the subordinate judiciary to strictly observe the procedural discipline prescribed under the Divorce Act and the constitutional protections guaranteed under Article 20.

A copy of the judgement has also been ordered to be transmitted to the Punjab Judicial Academy director general to start appropriate training and workshops for the subordinate judiciary on the interpretation and application of the Christian Divorce Act and the constitutional principles discussed in the verdict.

Published in Dawn, March 7th, 2026