Two laws but no solution written by Tahir Mehdi

Tahir Mehdi

RANA Chandra Singh, chief of the Rajput clan, was probably the last prominent Sindhi leader belonging to the traditional, upper-caste Hindu elite. He was elected to the Hindu seat of the National Assembly for four consecutive terms under the separate electorate system practised in the 1990s. He had ample opportunities to advocate for his community’s

demand for a Hindu marriage law — which he not only evaded but opposed. The reason for his resistance was the divorce clause, without which no marriage law could, ostensibly, be enacted in this age.

But Singh considered it against his dharma and the much-revered patriarchal traditions, according to which marriage is a sacred trust and divorce is sacrilegious. He infamously said, on the floor of the house, that a marriage law containing a divorce clause would only be enacted over his dead body.

Singh passed away in 2009, and the country’s legislatures have recently enacted two laws regarding Hindu marriage: one passed by the National Assembly, the other by the Sindh Assembly. However, not only do they both fall short of expectations, they are likely to further complicate matters.

Not everybody in Pakistan’s Hindu community endorses the Brahmin position on marriage.

The law passed by the National Assembly amply addresses the need for marriage registrations of Hindu couples. But when it comes to divorce, it seems the intention of the law is to make it impossible. The law does not use the term ‘divorce’, which is both a legal and social construct. Instead, it prefers the (strictly legal) term ‘decree of termination of marriage’, which is reflective of the involved parties’ disdain for the very concept of divorce. This, however, is not merely psychological; under this law, any party seeking termination of marriage can only do so by filing a petition in the court.

Even if both parties wish to end their marriage with mutual consent, the court is asked to make “such inquiry as it thinks fit that […] the averments in the petition are true”. The couple must have been living separately for one year before filing the petition, and the court is required to make a decision within six to 18 months. The parties then have to wait six more months before they are able to marry again. This means that it will take a couple who have mutually decided to part ways two to three years to obtain the legal freedom to remarry if the court follows the prescribed timelines, which we know rarely happens.

In case only one party seeks to terminate a marriage, the matter becomes even more complicated. Foremost is the fact that divorce can only take place under conditions prescribed in the law; the onus of providing evidence to fulfil one or more conditions lies, obviously, on the party seeking termination. For example, they might have to prove that the other party is cruel, mentally ill or suffering from an incurable communicable disease — and this is where our justice system favours wealthy and powerful men.

This section of the law is a bad copy of the divorce law for Pakistani Christians. The innumerable problems that it has created for Christian women are well documented. They have to accuse their husbands of adultery, which is considered the strongest grounds for divorce under this law. But proving it, in strictly legal terms, is almost impossible. In practice, divorces among Christian couples tend to occur only in cases where one party fails to appear in court, allowing for an ex parte judgement.

What is truly absurd is that the law applies to all of Pakistan except Sindh, where a whopping 96pc of Pakistan’s roughly five million Hindu citizens actually reside!

Under our Constitution, personal laws are a provincial subject — a federal law could extend to a province only if it so desires. The federal PML-N government took this legislation up some two years ago and sought the provinces’ consent. But Sindh’s PPP government did not want the PML-N championing a cause dear to Hindus, whom it considers its political constituency. So, every province with the exception of Sindh agreed to accept the federal law. The PPP, however, could not afford to be seen doing nothing while the federal legislature actively pursued this initiative. Just as it became evident that the federal law was weeks away from enactment, the provincial assembly sprung into action and quickly passed its own law.

Sadly, The Sindh Hindu Marriage Act of 2016 belies its title; it is not about marriage, it is merely about the registration of marriage. It reads more like an administrative rule, whereby an official is authorised to affix a seal on the marriage paper issued by a priest. The law completely avoids the question of divorce. It does not even bother to state how or when the legal paper issued under it could be revoked. Does this mean that a Hindu marriage certificate will be forever?

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This, in fact, is the Brahmin position on marriage — that it is indissoluble. Not everybody in the Hindu community endorses this position. The community’s educated middle class acknowledges the need to adapt the millennia-old personal codes to suit current mores. There is also the huge Dalit (or scheduled caste) population, counted under the broader category of Hindus, for whom Brahminical codes are completely alien. These codes are neither a part of their belief system nor their traditional practices. For them, an irrevocable marriage certificate is bound to create more problems than it will solve. Neither of these Hindu classes have much say among the parties ruling Sindh and from Islamabad.

For their part, the two parties have earned accolades for fulfilling this long-standing demand of Pakistani Hindus. Come elections, it makes for good sloganeering. But in reality — even though Rana Chandra Singh is long dead — neither dared to transgress the patriarchal Hindu elite’s position on marriage and divorce.

The writer works with Punjab Lok Sujag, a research and advocacy group that has a primary interest in understanding governance and democracy.