60 years on Hindus in Pakistan still do not have a Marriage Bill

16-07-2015

“Now, if we want to make this great State of Pakistan happy and prosperous, we should wholly and solely concentrate on the well-being of the people, and especially of the masses and the poor… If you change your past and work together in a spirit that every one of you, no matter to what community he belongs, no matter what relations he had with you in the past, no matter what is his colour, caste or creed, is first, second and last a citizen of this State with equal rights, privileges, and obligations, there will be no end to the progress you will make” - Muhammad Ali Jinnah, founder of Pakistan

History

The Pakistani constitution proclaims all citizens as equal before the law and entitled to equal protection of the law[1]. Global Human Rights Defence closesly monitors the violations and discriminations that minorities endure in Pakistan. One blatant constitutional violation, re-emerging time and again, is the lack of legal framework for Hindu couples to register their marriage. In Pakistan family affairs such as marriage, inheritance and adoption, among others, are handles by religious, rather than civil law. As such, the law is in practice skewed towards the Muslim population, thereby ignoring the right of religious minorities.  Unlike another minority group in Pakistan, the Christians, that have legal protection under the Christian Marriages Act of 1872 and the Divorce Act of 1869, the Hindus cannot legally register their marriages because until today there is no law that recognises Hindu marriages’ validity. While the legal protection of the Christian community comes with a set of several issues, if allows them to avoid the discrimination that the Hindus face ona daily basis.

Since 1955, when the Hindu marriage Bill was enacted in India[2], Hindus have been demanding legislation to allow them to legally register their marriages in Pakistan. However, even today Hindus in Pakistan still can't claim their constitutional rights to do so[3]. Through a legal registration of their marriages, Hindus would be, to a certain degree, relieved from particular socio-economic and political discrimination, such as the inability to inherit property, remarry and divorce. 

The importance of the Hindu Marriage Bill

The passing of the Hindu Marriage Bill is extremely important for the Pakistani Hindu community as it will relieve them from the terrible socio-economic, political and domestic marginalisation they face on a daily basis. With the passing of the Bill, and thus the legal acknowledgment of the Hindu marriage, Hindu couples will no longer be subjected to discrimination when it comes to family affairs. The Bill will, moreover, secure women’s position in marital disputes, such as child support or inheritance after death of one of the partners. The Bill features instituting a minimum age (18) and free consent for marriage[4], as well as the grounds for divorce[5] and procedures for marriage registration[6]. The proof of marriage is an extremely powerful tool to protect Hindu women against forced conversions and  marriages. Through the provision of legal proof of marriage during the trial, women force judges to acknowledge the marriage as legitimate and thus review the case accordingly. Unfortunately, forced conversions and marriages are a common practice in Pakistan, and since there is no legal documentation of the Hindu marriage, it is virtually impossible to take any legal action against the criminals should a forced marriage take place.

Hindu couples in Pakistan face humiliating situations daily simply due to not being able to prove their marriage: such proof is required at checkpoints, when trying to book a room, or even while traveling. Widowed Hindu women are at the mercy of the institutions in relation to granting the inheritance claims from their deceased husbands. Obtaining documents, such as a National ID cards, passports and other is particularly difficult, if not impossible, for the married Hindu women who have no legal document to prove their marital status. Such treatment subsequently limits their freedom of movement, which is yet another infringement of their basic rights.[7] All aforementioned problems will be eradicated with the passing of the long awaited Hindu Marriage Bill. Aside from being important for the Hindu community, the passing of the Bill is vital for the country if Pakistan aspires to be a true democracy.

Why it takes so long to establish the Hindu Marriage Bill

Ever since India adopted the Hindu Marriage Act in 1955, there have been demands to pass a similar Bill in Pakistan. In 2008, on behalf of the Scheduled Cast Hindu Rights Movement (SCRM), several activists lobbied and advocated to pass the Hindu Marriage Bill.[8] They organised seminars, sent out press releases and spread awareness in various other ways. In October 2008  the chairman of the Scheduled Right Cast Movement filed a case at the Bahawalpur Bench of the Lahore High court to insist that provincial and federal Governments pass the Hindu Marriage Bill, instead of constantly delaying it.[9] Legislators on both provincial and national levels, as well as the Ministry of Human Rights and the Ministry of Minority Affairs, have been approached and encouraged to take the matter more seriously. In December 2008, a Human Rights advocate and member of the SCRM, Amer Nadeem, in collaboration with the Hindu clergy and in consultation of the Hindu community, drafted a Pakistani Hindu Marriages Registration Bill 2009[10] and submitted the draft of the Bill to the Ministry of Human Rights and the Ministry of Minority Affairs. For over a year no action has been taken and the topic of the Hindu Marriage Bill seemed to slightly idle until 2009.  In 2009  the attention was again drawn to the absence of a Hindu Marriage Bill when a Hindu woman sought to request a Computerised National Identity Card (CNIC). Due to not being able to present any legal document proving her marital status, the request was denied[11]. Because of the rejection, the issue was raised at the national level and led to a suo moto [12]from the Supreme Court. In the suo moto action the Chief Justice Istifkhar Mohammad Chaudry ordered the Federal Government to provide legislation on the Hindu Marriage rights so as to provide a legal framework for the Hindu marriages to be legally registered.

There have been several attempts over the years, the latest being the Supreme Court ordering the federal government to ensure a draft bill to be laid before the cabinet for final approval. The federal government was given two weeks with the deadline set at February 2015, but no progress has been made so far.[13] Unfortunately defying court orders and violating human rights seems common practice in today’s Pakistan.

Conclusion

The Pakistani Government, as the state, has a legal and moral obligation to protect its citizens and ensure they are able to exercise their fundamental rights, including the right to marriage and family. Since the independence in 1947, Pakistan effectively denies Hindu married couples their marriages on the basis of their religion. The absence of recognition and registration also leads to administrative difficulties for Hindu women, including difficulties concerning the application for national ID cards and visas, pursuing inheritance procedures, and in separation/divorce and adoption situations. The Government largely fails to take effective measures that could prevent social intolerance and violence against these minorities.

The Pakistani constitution states that the State shall protect the marriage, the family, the mother and the child.[14] Despite these Constitutional guarantees of protection of the family the truth unfortunately proves to be a grim reality. The lack of legal marriage status constitutes a violation of fundamental rights – and is a facet of institutionalised discrimination. Pakistan, having ratified numerous international conventions, including the International Covenant on Civil and Political (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESR), continues to violate the right to marry and to found a family, the right to enter into a marriage without force and with the free and full consent of the intending spouses, and the right to protection of the family by both “society and state”.

Article 23 ICCPR

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

3. No marriage shall be entered into without the free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

 Article 10 ICESCR

The States Parties to the present Covenant recognize that:

1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.        

 


[1] Article 25 -1 of the Constitution of Pakistan

[2] The Hindu Marriage Act, 1955

[3] Article16 Universal Declaration of Human Rights

[4] Article 5 of The Hindu Marriage Bill (http://www.na.gov.pk/uploads/documents/1393931873_197.pdf)

[5] Article 11-15 of The Hindu Marriage Bill (http://www.na.gov.pk/uploads/documents/1393931873_197.pdf)

[6] Article 19 of The Hindu Marriage Bill (http://www.na.gov.pk/uploads/documents/1393931873_197.pdf)

[9] Interview with chairman of the Scheduled Cast Rights Movement Ramesh Jaipal 21-06-2015

[12] A motion taken by the courts own initiative

[13] Scheduled Caste Rights Movement Pakistan (SCRM) Chairman Ramesh Jaipal in The Express Tribune of 23-12-2014

[14] Article 35 of the Constitution of Pakistan

Subscribe to our newsletter

Subscribe to our newsletter