(Nov. 15, 2016) On September 26, 2016, the Hindu Marriage Bill was unanimously passed in Pakistan’s National Assembly, after three previous failed attempts to pass the bill in 2008, 2011, and 2012. (Kalbe Ali, NA Finally Passes Hindu Marriage Bill, DAWN (Sept. 27, 2016); Hamza Ameer, Why Is Pakistan Afraid of Passing the Hindu Marriage Bill? QUINT (July 13, 2015).) The bill had been tabled by Human Rights Minister Kamran Michael and was approved unanimously, despite “minor objections” from the Pakistan Tehreek-i-Insaf (PTI) Party Member of the National Assembly Lal Chand Malhi. (NA Finally Passes Hindu Marriage Bill, supra.)
Background
The Hindu minority in Pakistan is estimated to be about 1.6% of the population, and they are mostly concentrated in Sindh Province. (Kaleem Dean, The Long Awaited Hindu Marriage Act, DAILY TIMES (Oct. 4, 2016).) After the adoption of the eighteenth amendment to the Constitution in April 2010, it is now within the jurisdiction of provincial assemblies to pass legislation regarding marriage and minority affairs in their respective provinces. (Id.; The Constitution of the Islamic Republic of Pakistan (as amended up to Feb. 28, 2012), as amended by Constitution (Eighteenth Amendment) Act, 2010, Section 101(3), National Assembly website.) The National Assembly can still pass such legislation within the constitutionally defined territories of the federal government or within the provinces with their consent. (Id. arts. 142(d), 144.)
The Supreme Court of Pakistan has taken note of the absence of a Hindu marriage registration law more than once. (Nasir Iqbal, SC Wants Draft of Hindu Marriage Bill Approved in 2 Weeks, DAWN (Jan. 14, 2015).) In 2012, a bench headed by then-Chief Justice Iftikhar Mohammad Chaudhry took suo moto (“on its own motion”) notice of a similar issue mentioned in a newspaper column that highlighted problems Pakistani Hindus faced in obtaining passports and Computerized National Identity Cards (CNICs). (Id.) A report entitled “Religious Minorities and Marriage Laws in Pakistan,” compiled by Tahir Mehdi and published by the Community World Service, highlights the problems related to marriage and divorce procedures for Hindus, Sikhs, Christians, Ahmadis, Bahai, and Parsis in Pakistan, as well as cross-religion marriages and conversions. (Kalbe Ali, ‘Absence of Marriage Laws for Minorities Denies Them Many Rights,’ DAWN (Dec. 8, 2014).) It also touches upon the issues and hardships faced by different communities due to the lack of a centralized legal framework and absence of any provisions of divorce in the Hindu and Christian faiths. (Id.)
The National Assembly bill seeks to protect and safeguard the rights of Pakistani Hindus, the majority of whom reportedly face neglect and unfair and biased treatment. Hindu women are said to be subjected to a high rate of forced religious conversions, rape, and forced marriages in Sindh, as well as hurdles in matters of inheritance, adoption, legality of heirs, and even claiming the bodies of their deceased husbands. (Ameer, supra).
Sindh was the first province to pass legislation for the registration of Hindu and other non-Muslim marriages, namely, the Sindh Hindu Marriage Bill, later enacted as the Sindh Hindu Marriage Registration Act 2016. (‘Absence of Marriage Laws for Minorities Denies Them Many Rights,’ supra; Tariq Ahmad, Pakistan: Hindu Marriage Bill Passed in Sindh Legislature, GLOBAL LEGAL MONITOR (Feb. 25, 2016).)
Amendments to the Bill at Committee Stage
The final draft of the Hindu Marriage Bill was approved on February 8, 2016, by the National Assembly Standing Committee on Law and Justice. (Ali, supra.) The draft law, which was supported by the ruling Pakistan Muslim League-Nawaz (PML-N), was originally introduced by minority lawmakers Asiya Nasir of the Jamiat Ulema-e-Islam (JUI-F) Party and Ramesh Lal of the Pakistan People’s Party (PPP). (Relief in Sight for Hindus in Pakistan as Its National Assembly Passes Hindu Marriage Bill, INDIA TV (Sept. 27, 2016).)
Five Hindu lawmakers were also specially invited to attend the February 8th Standing Committee meeting, among them ruling PML-N lawmaker Dr. Ramesh Kumar Vankwani. (Ali, supra.). Vankwani sought to have dropped from the bill a clause that terminated a marriage if any of the partners converted to Islam. (Id.) The clause had been inserted by the Council of Islamic Ideology six months previously when the bill was sent for “Sharia vetting.” (Id.) The suggestion to drop the clause was met with staunch resistance from Ali Mohammad Khan of PTI and Shagufta Jumani of the Pakistan People’s Party (PPP), after which the Committee Chairman, Chaudhry Mahmood Bashir Virk, had to stop the discussion to avoid a “total collapse” of the meeting. (Pakistan Approves Hindu Marriage Bill, HINDU, (Feb. 9, 2016).) Under section 12(1)(iii) of the bill, it is possible for either party to dissolve the marriage through a decree of divorce if “the other party renounced the Hindu religion and adopted another one.” (A Bill to Provide for Solemnization of Marriages by Hindu Families and for Matters Ancillary and Incidental Thereto (Hindu Marriage Bill 2016), § 12(1)(iii), National Assembly website.) Also, judicial separation under section 8 allows for either spouse to present a decree of judicial separation if (i) “the other party renounced the Hindu religion and adopted another one.” (Id. § 8.)
Khan and Jumani had also raised concerns on the minimum age for a Hindu girl to be married, as well as the status of the marriage if either of the parties converted to Islam. (Pakistan Approves Hindu Marriage Bill, supra.) As a result of their queries, two amendments were made to change the minimum age of marriage to 18 and to grant the law nationwide application. (Id.)
Features of the Finalized Bill
In accordance with article 144 of the Constitution of the Islamic Republic of Pakistan, the Provincial Assemblies of Balochistan, Khyber Pakhtunkhwa, and Punjab adopted resolutions that allow Pakistan’s Federal Parliament to regulate matters that are not under the federal legislative list in the Constitution, thereby allowing application of the bill throughout the country; the bill also extends to the Islamabad Capital Territory. (Hindu Marriage Bill 2016, § 1(2).) The bill covers the conditions for Hindu marriages in section 5, stating that “a marriage shall be solemnized” if both parties are at least 18 years old (id. § 5(i)), there is free consent of both parties (id. § 5(ii)), “the parties are not within the prohibited degrees of relationship” (id. § 5(iii)), and neither party has a living spouse at the time of the marriage (id. § 5(iv).) The bill also states that the marriage “may be solemnized in a manner prevalent within the customary rights and ceremonies of either party.” (Id. § 6.)
A marriage certificate called “Shadi Parat,” similar to the Nikahnama of Muslims, will be issued for all Hindu marriages. (Id. § 2(i).) The Shadi Parat also proves instrumental in reducing the risk of forced second marriages, as the Hindu woman can give documentary proof of her first marriage, without which she would be unable to protect herself from an illegal and forced second marriage. Although either spouse may petition for divorce due to desertion, if a Hindu wife is the recipient of a petition for divorce from which she will suffer grave financial hardship, she may oppose the grant of the decree before a court. (Id. § 13.)
Under section 17 of the bill, a Hindu widow “shall have the right to re-marry of her own will and consent after the death of her husband provided a period of six months has lapsed after the husband’s death.” (Id. § 17.) The bill also gives separated Hindu widows the right to remarry. (Id. § 16.) If a Hindu woman is deprived of her marital rights, she may contest the marriage in a court of law. (Id. § 12(2).) Under section 4(d), two concurrent marriages are unlawful, and any violation of the Hindu Marriage Act would result in prosecution for the offense of bigamy as per sections 494 and 495 of the Pakistan Penal Code. (Id. § 20; Pakistan Penal Code (Act XLV of 1860), PAKISTANI.ORG.) The first wife in such cases also has the right to terminate her marriage on the grounds of bigamy. (Hindu Marriage Bill 2016, § 12(2)(a).) However, the bill also provides that the only exception to the ban on a polygamous or concurrent marriage is if a female spouse is medically declared to be unable to conceive children. (Id. § 4(d).)
The bill provides for penalties for violating any of its provisions. (Id. § 23.) The official recognition of a Hindu marriage quells issues of legitimacy and inheritance by recognizing that all children born to the marriage are legitimate and establishes a clear line of succession to inheritance. The draft legislation also ensures that children who were born prior to the passage of the bill are legitimate. (Id. § 18.)
Reactions to the Bill
Vankwani, who has sought adoption of the legislation for three years, saw the passage of the bill as a laudable and bold step, commenting, “(t)here was no Hindu marriage law in the country for 66 years … the country’s leadership and all the political parties in the parliament have done a commendable job.” (NA Finally Passes Hindu Marriage Bill, supra.) Committee Chairman Virk described it as “… a complete bill and it relates to the lives of our fellow citizens, therefore all segments including the Council of Islamic Ideology (CII) was [sic] consulted during the course of discussions, so that there are no complaints from anybody after the law is enforced.” (Id.)
Civil rights activists have criticized the delay in forming the Hindu marriage law, pointing out that a portion of the population was being deprived of legal benefits enjoyed by other Pakistani citizens in the interim. (‘Delay in Hindu Marriage Laws a Denial of Basic Rights,’ DAWN (Jan. 29, 2016).) Prominent human rights activist I.A. Rehman said, “[t]he system is excluding Hindus and other non-Muslims from playing a role for the state.” (Id.) He condemned the decades-long delay in the formulation of Hindu personal family laws, and asserted that such delays were detrimental to Muslim family laws as well. (Id.)
Activists hailing from the Hindu community noted that the matter has been pending since 1976 and that delays have been frequent, due to a lack of enactment of legislation by various governments under various pretexts. (Id.). M. Prakash, a Sindhi lawyer, said that he believes there was no reason for the delay in the bill’s approval other than the PML-N and PPP’s political tussle. (Id.)
The bill is now awaiting approval from Pakistan’s upper house, the Senate. Many Hindu communities and organizations, including the Hindu American Foundation (HAF) in Washington, D.C., are eager for its passage. (Hindu Community in US Lauds Pakistan’s Passing of Hindu Marriage Bill, FIRST POST (updated Sept. 28, 2016).) Senior Director of HAF Samir Kalra said he hopes the bill will be passed by the Senate and enforced by the government to “curb discrimination and forced conversions of Hindu women.” (Id.)
Prepared by Sahar Saqib, Law Library Intern, under the supervision of Tariq Ahmad, Foreign Law Specialist.