Personal laws for religious minorities in Pakistan

Last month, Pakistan became the first country in the world to have a law that governs Sikh marriage. I drafted the law working closely with MPA Ramesh Arora in consultation with the Sikh community from Punjab and Khyber Pakhtunkhwa (KP) and the Punjab Assembly Parliamentary Human Rights Committee.

There are an estimated 20,000 Sikhs now left in Pakistan but many in the 30-million strong religion around the world see the country as the place where their religion was born, near the eastern city of Lahore.

In India, where a majority of the world’s Sikhs live, they have to register their marriages under Hindu law as there is still no separate law for them. Pakistan has also passed two Hindu Marriage laws. Sindh has a law titled the Hindu Marriage Act, passed by the Sindh Assembly in 2016. In 2017, the National Assembly passed a Hindu Marriage Law applicable to all the remaining provinces. Despite a federal system where personal laws are a devolved provincial subject, the constitution, under Article 144, allows for provinces to pass a resolution which allows the National Assembly to enact legislation on behalf of the provinces.

Christian personal laws, unfortunately, have had a bumpy ride, still governed under the hierarchic British era law of 1872. This law requires amendments, if not a complete overhaul, to keep up with present times, particularly in terms of divorce and rights of women – for example, the law still requires men accuse their wives of adultery to activate divorce. The only welcomed development in Christian marriage laws has been the recent assent by the President of Pakistan, in which marriageable age for both women and men has increased to 18 years. This aligns with the Sikh Marriage law where marriage is only lawful at age 18 and above. This also complies with the Convention on the Rights of the Child, where a child is defined as anyone under the age of 18 years, to which Pakistan is a signatory.

In this regard, it’s Muslim laws that lag. Except Sindh, which has successfully increased the marriageable age for both men and women to 18 years, all other provinces maintain that girls can marry at 16 years, but men must be 18 and above for a marriage to be lawful. This provision has the potential of allowing child marriages to take place unchecked. It also sits in direct contrast to Article 25 of the Constitution, which requires equality before the law and non-discrimination based on sex. Increasing the marriageable age for women from 16 years to 18 years would create instant barriers in solemnizing child marriages, one being that ID cards are sought from both parties before a nikkah is formalized and registered.

In comparison to other countries in the region, Pakistan has its fair share of legislation.

Benazir Jatoi

In comparison to other countries in the region, Pakistan has its fair share of legislation. In Bangladesh, there are few to no acts of parliament governing marriages, but a constitutional provision allowing Hindu and Christian marriages to be solemnized by religious rituals. Only Muslim personal laws are governed by a comprehensive set of legislation. A Hindu marriage registration act makes the registration of marriage optional, leaving room to situations of discrimination and arbitrary decision making on legal protections due to respective parties, most likely impacting women negatively in terms of financial relief and custody of children. This is a similar problem to Pakistan, where marriages among religious minorities are often not registered, neither with a Union Council nor with NADRA. In India, Muslim personal laws are not comprehensively codified and the same problems occur in situations where relief from legal institutions is sought.

Particularly for religious minorities, institutional and financial barriers hinder the effective implementation of the law. This applies to most countries in the region, with the barriers being gendered – meaning more women are likely to encounter problems when seeking legal relief in comparison to men. The lack of codified and clear legislation leads to discrimination and further barriers for women particularly as the law is silent on practices such as child marriage and polygamy, and even the right of divorce for Hindu women in Bangladesh.

In Bangladesh, women’s rights groups and progressive civil society have long demanded a universal marriage register for all religious denominations, Muslims and other religious monitories, alike. This demand holds at its core the principle that the state is responsible for all citizens and the rights and obligations under the law extends to all persons, regardless of their religion, ethnicity or gender. It is the recognition that all marriages are valid and during matters of inheritance, maintenance and custody, the protection of the law is afforded to all registered persons.

Pakistan’s civil society must recognize the importance of a universal registry as well and begin to make demands toward this. It is vital that the state acknowledge that universality, non-discrimination and obligations toward citizens can begin with an effective, compulsory civil registry that is blind to religion and ethnicity. It will send a strong message: of equality and a step in the right direction toward implementing the large body of laws that require movement beyond just the law books.

- Benazir Jatoi is a barrister, working in Islamabad, whose work focuses on women and minority rights. She is a regular contributor to the op-ed pages in various Pakistani newspapers.