This article is written by Aprajita Mishra, from Symbiosis Law School, Hyderabad.
Table of Contents
Introduction
In the year 1947, Pakistan got independence.[i] Being the minor population, the Hindu community has been subject to discrimination ever since the independence of Pakistan.[ii] Especially, the Hindu women, who have been facing discrimination, forced conversions and crimes like rape. “According to a report released by the Movement of Solidarity and Peace in Pakistan, up to 300 Hindu women are forced to convert and marry Muslim men every year in Pakistan.”[iii] The Hindu community being a minority population had faced a lot of discrimination and injustice due to lack of a proper law or legislation[iv]. According to the patron-in-chief of the Pakistan Hindu Council, Ramesh Kumar Vankwani, -“It is the responsibility of the state to provide all sorts of protection to the country’s minority groups including Hindus from all sorts of atrocities meted out to them, and ensuring they enjoy the same rights as any other person in the country”.[v]
Countries like, Pakistan, Israel, India have different marriage laws for different religious groups.[vi] Pakistan observed the need for reform so that the Hindus will now be able to legalize their marriage. While Pakistan already had marriage laws for Muslim and Christian, it is now moving towards making a reform by implementing Hindu Marriage Laws to give Hindu Marriages a legal Status.[vii] These laws are expected to overcome a lot of issues like, transfers of property, visas, proof for their marriage.[viii] There was a long discussion going on about this matter for a very long time. But it was delayed due to procrastination in Pakistan’s National Assembly.[ix] Due to the delay caused by the National Assembly, the committee’s chairman Mr. Chaudhary Mahmood Bashir Virk[x] said that “It was unbecoming of us Muslims in general and the political leaders in particular. We were required to facilitate the legislation, not obstruct it. If we 99 percent of the population are afraid of one percent, we need to look deep inside what we claim to be and what we are.”[xi]
Approval and Applicability of the bill
The bill before it was passed by the committees, had several controversies regarding some of its elements.[xii] And these controversies led to delay of this bill. This bill was the first step to implement personal laws for the Hindus living in Pakistan. The major element on which there was disagreement was due to the clause in the bill, which stated that the Hindu /marriage would be declared as to be invalid as soon as one of the persons converts its religion to Islam.[xiii]
The bill was made applicable to the Hindu community of Pakistan, in the areas of Punjab, Balochistan and Khyber Pakhtunkhwa provinces.[xiv]
Problems aroused because of the absence of proper legislation
Earlier there was an absence of a structured law in order to register a Hindu marriage. The registration of Hindu marriage was made in accordance to the guidelines of the ‘Special Marriage Act-1872: the local panchayat, the Pakistan Hindu Council, and the local union council.’ The Hindus from Bheel and Meghwar groups used to make registration of their marriage in National Database and Registration Authority (‘NADRA’),[xv] but this practice still had a lot of loopholes. For example, instead of the term shaadi, nikaah was used, instead of pandit the term nikkahkhwan was used.[xvi] On the other hand, registering a marriage with the maharaj’s or the pandit’s[xvii] did not provide a substantial ground in order to give a proof for the marriage.
There was not only the absence of Hindu Marriage Law but also there was an absence of legislation for divorce. As there was a lack of proper legislation, there was a problem regarding the documents (identity documents, documents which are requisite for travelling purposes etc.) The Hindu women suffered the most due to lack of proper legislation. Husbands generally used to enter into a second marriage even though they had a spouse living and due to lack of documentation the aggrieved wife failed to prove the validity of their existing marriage.[xviii] Another problem which was being faced due to lack of legislation for Hindu marriages was that Hindu women were used to being disowned from their matrimonial houses. There were cases where the Husband would deny to accept the marriage with his wife and which would eventually leave the wife without any security or maintenance.[xix]
Due to such weak legislation, the wife and children from that marriage resulted in suffering a lot. If the wife and son failed to prove the existence of marriage then the court would declare such marriage as void and the child from that marriage as illegitimate.[xx] This problem first came into consideration in the 1970s but no such law was formulated.[xxi]
There were instances of bigamy as well, as there was a lack of concrete proof and there was no other option that the aggrieved can proof the validation of its marriage, and however, “the spouse who is an aggrieved had no way to establish the bigamous nature of the second marriage contracted by the other spouse.”[xxii] There was even a gradual increase in the number of child marriages. The preparators could not be punished as there was no proper documentation so that the marriage can be proved. The major problems can be highlighted as follows-
- Due to the absence of proper legal documents, it depicted that the wife does not have any other alternative against her spouse.
- “The lack of proof of marital documents was the constant distress faced by Hindu women of being thrown out of their matrimonial homes. As Hindu men could deny their first marriage due to the absence of evidence; the unfortunate wife would be left with no maintenance and no financial security”.[xxiii]
- The necessity was observed as due to absence of proper legislation there was an inadequacy in order to provide the rights of property to the family of the husband after his death.[xxiv]
- “The lack of legislation on this matter meant that young Hindu girls were in greater danger of being forced into marriage”.[xxv]
These problems gave rise to the need of a proper legislation for registration of Hindu Marriage.
Hindu Marriage Laws in Pakistan
The Sindh Hindu Marriage Registration Act, 2016
Sindh, the home for the majority of the Hindu Population was the first region which passed legislation for the registration of Hindu marriages as well as other marriages which was not of the Muslim community through the Sindh Hindu Marriage Bill. Later the Sindh Hindu Marriage Bill was enacted as the “Sindh Hindu Marriage Registration Act, 2016”[xxvi]. It was realized that the Sindh Hindu Marriage Registration Act would provide a platform to the Hindus for registering their marriages and obtaining a validation for their marriage, this Act was appreciated and was given much importance as it was a step forward in the protection of the minority community of Pakistan.
This act has a requirement of age limit to be of 18 years and the witnesses should be present for the completion of a valid Hindu marriage. “The bill moved in the assembly by Parliamentary Affairs Minister Nisar Khuhro is applicable to the entire province of Sindh and helps observe how the Eighteenth Amendment has allowed for provinces to take up marriage and minority affairs under their jurisdiction and make laws.”[xxvii]
This Act was declared valid for the whole Sindh region.
The Hindu Marriage Act, 2017
On 9th March, 2017 the Hindu Marriage Bill[xxviii] was passed by Pakistan’s parliament. “Kamran Michael who is Pakistan Muslim League – Nawaz (PML-N’s) Christian lawmaker and the Minister of the Human Rights, reiterated that there was no law to regulate the registration of Hindu marriages and ancillary matters; and hence, it was a constitutional obligation to legitimately safeguard rights and interests of minorities”.[xxix] Being the largest minor population of Pakistan, it was a great reform for the Hindu Community and it was in favour of their interest as they can now register their marriage and get a legal validation to their marriage. The bill was officially termed as Hindu Marriage Act, 2017 after being signed by the then President Mamnoon Hussain. This act is implemented with the basic motive to safeguard the women who were being violated, one of the members in the committee stated that “the Ministry of Human Rights also took the initiative to protect the rights of the minorities after obtaining a no-objection certificate from the Ministry of Religious Affairs”.[xxx]
It acts as a milestone as it empowers the Hindu woman and also helps the Hindu husband and wife to have a record of the documents for the purpose of validation of the marriage in the eyes of law. It is of utmost importance because it provides for the terms in which one can enter into the marriage, it also states about the judicial proceedings for divorce and for the grounds of divorce on which one can seek divorce. “The Act also provides for judicial separation which entails keeping the marriage intact, but both the parties no longer being obliged to cohabit with each other”.[xxxi] “The union of Hindu male and Hindu female solemnized under this Act and includes the marriage solemnized before commencement of this Act in accordance with the law, religion and customs having force of law relating to Hindu persons”[xxxii].
Aim of the act
This act was implemented to protect the rights of the Hindu community which includes the women rights and the rights of the minorities. The notion is that women in Pakistan will now have evident proof in order to prove the validation of their marriage.[xxxiii] The Ministry of Human Rights also ‘took the initiative to protect the rights of the minorities after obtaining a no-objection certificate from the Ministry of Religious Affairs’.[xxxiv] Most importantly, this act aims to help the parties to give a valid proof for their marriage in case of bigamy, property inheritance, in court/police stations, for travelling purpose or for business deals etc.
It aims to provide a legal document through which the party has the validation of registration of their marriage. This will help the aggrieved women to prove their validation of marriage and claim for maintenance and financial security. The act provides for the provision of divorce as well. The provision of divorce speaks about the process through which a marriage can be dissolved.[xxxv] This provision gives the women a sense of security and freedom so that she can step out of the marriage on the grounds which are mentioned in the said act. The Hindu Marriage Act, 2017 also provides for the option of judicial separation in which the parties are still married but they are not obligated to live together under the same roof.[xxxvi] “Any tradition which is not unlawful and the same has been continuously and uniformly observed for a long time among Hindus in any local area, tribe, community, group or family”.[xxxvii]
Conditions and registrations for a valid Hindu marriage under the act
Section 6 states that, “the registration of the marriage must be done in accordance with the provisions of this Act and every marriage must be registered within fifteen days of solemnization of Hindu Marriage”[xxxviii] Whereas, the clause 2 states that “sub-section (2) of Section 6 mentions that the marriage register shall be open for inspection and shall be admissible as evidence of the contents contained therein or certified extracts there from shall, on application, be given by the marriage registrar on payment of such fee, as may be prescribed.”[xxxix] After all the requirements are fulfilled the pastries receive Shaadiparat i.e., the certificate for validation of their marriage.
Whereas, Sec.4 of the Act specifies the condition for a valid Hindu Marriage in Pakistan. The conditions are that the parties should not be declared to be unsound by the competent court of law,[xl] should be competent for consent, both the parties must be 18 or above years of age.[xli]
Analysis of the act
The customs and rituals of Hindus are something which has been given much importance in the Hindu community. In Ramayana, the wife is referred to as the better half of the husband. The wife is called “dharmapatni: which means a friend and advisor to be associated by the husband in all religious rites and ceremonies”[xlii] Marriage is considered to be a life-long bonding among the husband and wife. A Hindu Marriage has been defined as – “The union of Hindu male and Hindu female solemnized under this Act and includes the marriage solemnized before commencement of this Act in accordance with the law, religion and customs having force of law relating to Hindu persons.”[xliii] The act is only valid among the marriage between two Hindus. The Constitution of Pakistan abides and follows Shariah, the Hindu Marriage Act obeys the religion, and abides by the law compressed within Hinduism. The Act states about Shaadiparaat[xliv] which is the certificate that the parties will obtain as the proof of their marriage. It is a document which is similar to the Nikahnama.[xlv] The act speaks about the conditions for a valid Hindu marriage, procedure for registrations, provision for divorce, divorce by mutual consent, legitimacy of the child in case of a void/voidable marriage also about the punishment which will be given when the conditions for Hindu marriage has been contravened.[xlvi]
Differences and Similarities between Hindu Marriage Act, 2017 and the Sindh Hindu Marriage Registration Act, 2016
Difference- Both the acts differ in the number of days in which the marriage should be registered. In Sindh, the stipulated time period for the registration of the marriage is given as 45 days, and if the party fails to register the marriage within the stipulated time period, they have to pay a fine of Rs. 1000.[xlvii]
There is a provision given for divorce in the Hindu Marriage Act, 2017. No such provision for divorce is mentioned in the Sindh Hindu Marriage Registration Act, 2016.[xlviii]
Similarities- The Hindu Marriage Act, 2017 consists of the clause which is similar to the Sindh Hindu Marriage Registration Act, 2016 i.e., the marriage would be terminated as soon as one of the parties (either the husband or the wife) converts to a different religion. Both the parties should be of 18 years or above. In both the acts, there is a requirement for witnesses to be present at the time of solemnization of marriage.[xlix]
It was a great disagreement that as the act is applicable to all the Hindus, but it won’t be applicable in the Sindh region because the Sindh Registration Act prevails in that area. But 96% of the Hindu population resides in that region.
Comparative Study Between Hindu Marriage Act, 1955 of India and Hindu Marriage Act, 2017 of Pakistan
The new law is considered very important in view of the minority interests in Pakistan. The new ‘Hindu Marriage Act 2017’ in Pakistan aims to protect the legitimate rights and interests of Hindu families, as well as their marriages, families, mothers and children. The question now arises is what is the difference between the Act prevailing in India and the Act prevailing in Pakistan. Some of the differences are pointed below–
Hindu Marriage Act, 1955 (India)
- “A Hindu man or a Hindu woman can marry a Hindu irrespective of their caste (the person can be Buddhist, Jain or Sikhs.”[l]
- “Bigamy have been declared to be invalid.”[li]
- “A provision for judicial separation, separation of marriage and decree of marriage nullity has been made.”[lii]
- “The court has the power to resolve the disputes in case of any dispute regarding marriages or divorce.”[liii]
- “The courts have also been empowered to decide on the matter of maintenance or the guardianship of the child from the marriage which has been declared void.”[liv]
- “The minimum age for the girl has been fixed to be 18 yrs. Whereas, the minimum age for the boy has been fixed to be 21 yrs.”[lv]
- “The Hindu Marriage Act, 1955 also defines the concept of ‘full blood’ ‘half-blood’ and ‘uterine blood’.” [lvi]
- “It speaks about conditions of marriage which covers the ambit of insanity/epilepsy, unsoundness of mind and being incapable of giving a valid consent.”[lvii]
- The provision of when can a divorce person can remarry again – “When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”[lviii]
Hindu Marriage Act, 2017 (Pakistan)
- This is the first personal law for the Hindu community in Pakistan.
- Earlier, this act was applicable in the province of Sindh, Pakistan. Now, it has been enforced in the states of Punjab, Khyber Pakhtunkhwa and Balochistan.[lix]
- It will stop forced conversion of Hindu women.
- The marriage certificate obtained by the marriage registrar is known as “shaadiparat”.[lx]
- Both the parties should be of 18 years or above 18 years of age.[lxi]
- “Registration of Hindu marriages. –(l) The solemnization of every Hindu marriage shall be registered in accordance with the provisions of this Act. Such registration shall take place within a period of fifteen days of solemnization of Hindu marriage.”[lxii]
- It also speaks about the financial security of the wife and the children.
- “Separated person may marry again-When a Hindu marriage has been annulled or terminated by a decree of nullity or decree of termination, as the case may be and the time for appeal has expired, it shall be lawful for either party to the marriage so terminated to marry again after expiry of six months from final decision.”[lxiii]
- “The punishment for the contravention of the conditions given for a Hindu marriage are subject to simple imprisonment which may extend to six months but not less than three months, or with fine which may extend to five thousand rupees or with both.”[lxiv]
- One of the very important sections is, which states that the termination of marriage was instituted.[lxv]
Reforms Required
There is still a long way to go in order to achieve proper legislation which would provide complete justice to the Hindu community in Pakistan. Still there are cases in which people have suffered from discrimination. No proper steps have been taken as to enforce the laws. The government of Pakistan should take steps and should be accountable for the barriers which are still a hindrance in the development of Hindu community in Pakistan. The President should ensure that the Pakistan Hindus are given more personal laws to regulate their marriages. Laws should have the motive to protect the family, individual while safeguarding the legitimate rights of the families who are Hindu. Hindu women must be ensured that they get the document validation for their marriage. All the aforementioned reforms should not be violative of Human rights. There should be more flexible laws implemented to safeguard the minor Hindu population in Pakistan.
Conclusion
From the above study, we can conclude that the Act which was implemented, has resulted to be of great significance. Now the Hindu citizens will be able to register their marriage in accordance with the law. This act also resulted in development of a sense of security for the marriages amongst the Hindu citizens. From the time Pakistan got independence, the minor population was subject to discrimination and there was a lack of proper legislation as to safeguard their personal laws.
This act now makes a great reform in the present scenario as the government has now started giving the minor population a lot of consideration as to improve their situation. As the country is taking a step forward for development, the interest of the minorities will be safeguarded. With this new act a hope has been aroused that the condition of the minority Hindu group will improve, the document which now will be provided, will help the Hindus to prove their marriage and will act as an evidence. And the discriminations like, forced conversion, forced marriages etc. which previously used to take place will now come to a halt.
“Whether it be, a small amendment or a big amendment, the act has motivated Hindus to raise their voice, as the society is moving towards better and fair lawfulness”. The act has been proved to be useful but there’s still a long way to go as to achieve a proper legislation for the security of the minor population of Hindus in Pakistan.
References
[i]Dr. Iftikhar H Malik, Religious Minorities in Pakistan ‘(2002) Minorities Rights Group International 22.
[ii]Salim Shaikh, Pakistan ‘s Hindu Women Hope New Marriage Law Will Protect Them from Abduction, Forced Conversions ‘(Scroll, 2017), (See here: https://scroll.in/article/834440/pakistans-hindu-women-hope-new-marriage-law-willprotect-them-from-abductionforced-conversions. ), {accessed 29 December 2017}.
[iii]Anwar Iqbal, 1,000 Minority Girls Forced in Marriage Every Year: Report ‘(Dawn, 2017), (See here: https://www.dawn.com/news/1098452.) {accessed 8 September 2017}.
[iv]Kidnapping, Forced Marriage: Pakistan’s Hindu Women Hope for Protection in New Law ‘(Reuters, 2017), (See here: https://www.reuters.com/article/us-pakistan-women-marriage/kidnappingforced-marriage-pakistans-hindu-women-hope-forprotection-in-new-lawidUSKBN17E11J){accessed 19 October 2017}.
[v]‘There were forced conversion of the girls who were minor’ World Sindhi Congress. 5 (UNPA, 2017) (See here: http://unpo.org/downloads/2075.pdf.) {accessed 29 December, 2017}.
[vi]Akhilesh Pillalmarri, Hindu Marriages will be legitimized in Pakistan, The Diplomat, {last retrieved February 12, 2016}.
[vii]Ibid.
[viii]‘Salient Feature of The Hindu Marriage Act, 1955’ (Legal Services India, 2017), (See here: http://www.legalservicesindia.com/article/article/salient-features-of-the-hindu-marriageact-1955-558-1.html.) {last accessed 1 December, 2017}
[ix]Supra note 6.
[x]Hamza Ameer, why is Pakistan Afraid of Passing the Hindu Marriage Bill?, (See here: https://www.thequint.com/news/world/why-ispakistan-afraid-of-passing-the-hindu-marriage-bill.) {last accessed 14th July, 2015}.
[xi]Ibid.
[xii]Supra note 6.
[xiii]Pakistan Senate passes landmark Hindu marriage bill, the Hindu, (See here: https://www.thehindu.com/news/international/PakistanSenate-passes-landmark-Hindu-marriage-bill/article17324249.ece.) , {last retrieved February 18, 2011, 11:32 am}.
[xiv] Ibid.
[xv]Law of marriages and divorce, by Paras Diwan, Published by Universal Law Co., 2002.
[xvi]Muhammad Bilal, ‘The National Assembly approves the amendment of Hindu Marriage Bill’ in the year of 2017.
[xvii]Zarmina Haq, paper on ‘The Sindh Marriage Bill (Hindu), 2016, and the concern about the other population of Pakistan’, 2017, (See here: https://courtingthelaw.com/2016/06/07/commentary/the-sindh-hindu-marriage-bill-2016- what-about-hindu-pakistanis-of-otherprovinces.com.) , {accessed July 27, 2017}.
[xviii]The Marriage of Hindus: Untying the Knots’ by Tahir Mehdi, 2017.
[xix]Ibid.
[xx]Qasim Ali, Titled, ‘Protections which could be achieved by the Hindu Marriage Bill, 2016’ (LEAP, 2017), (See here: https://www.leappakistan.com/756-2/.) , {last accessed on 29th December, 2017}
[xxi]Supra note 18.
[xxii]Article on Hindus: Proof of marriage, published by the Hindu, 2017, (See here: http://www.thehindu.com/2003/09/05/stories/2003090500551000.htm.) , {last accessed on 1st of December, 2019}.
[xxiii]Supra note 20.
[xxiv]Supra note 8.
[xxv]Article on child marriages happening in Pakistan, in the Institute for Social Justice, (See here: http://www.isj.org.pk/child-marriages-inpakistan/.) , {last accessed on 29th December, 2017}.
[xxvi]The Sindh Hindu Marriage Registration Act, 2016.
[xxvii]‘Sindh being the first Pak Province to adopt Hindu marriage bill’ , (by NDTV in the year of 2017), (See here: http://www.ndtv.com/indiaews/sindh-becomes-first-pak-province-to-adopt-hindu-marriage-bill-127763.) , {last accessed on 19th of July, 2017}.
[xxviii]Muhammmad Bilal, ‘NA Passes Amended Hindu Marriage Bill’ , published by the Indian Express, 2017, (See here: https://www.dawn.com/news/1319432.) , {last retrieved on 19th of July,2017}.
[xxix]Ibid.
[xxx]‘Pakistan Parliament Passes Landmark Hindu Marriage Bill’ (The Indian Express, 2017), (See here: http://indianexpress.com/article/world/pakistan-parliament-passes-landmark-hindu-marriage-bill-4563476/.) {last retrieved on 19th of July, 2017}.
[xxxi]Sec.9 of the Hindu Marriage Act, 2019.
[xxxii]Sec. 2(2)(e) of the Hindu Marriage Act, 2017.
[xxxiii]Supra note 30.
[xxxiv]Ibid.
[xxxv]The Hindu Marriage Act, 2017 (Pakistan)
[xxxvi]Sec.9 of The Hindu Marriage Act, 2019.
[xxxvii]Sec. 2(2)(b) of the Hindu Marriage Act, 2017.
[xxxviii]The Hindu Marriage Act 2017, Sec. 6(1).
[xxxix]The Hindu Marriage Act 2017, Sec. 6(2).
[xl]The Hindu Marriage Act, 2017, Sec. 4(a).
[xli]The Hindu Marriage Act, Sec. 4(b).
[xlii]Havalkumar Makwana and M. Sreedevi Xavier, ‗Hindu Marriage: A Study of Changes from Vedic Period to Modern Times ‘(2016) 5 (3) Global Journal for Research Analysis 427.
[xliii]Schedule a of the Hindu Marriage Act, 2017.
[xliv]Supra note 29.
[xlv]The Hindu Marriage Act 2017, Schedule A.
[xlvi]The Hindu Marriage Act 2017, Sec. 2(2)(i).
[xlvii]The Sindh Hindu Marriage Registration Act, 2016.
[xlviii]The Hindu Marriage Act, 2017, Sec. 9.
[xlix]Id. Sec. 4.
[l]Id., Sec.2.
[li]Id., Sec.17.
[lii]Id., Sec. 9.
[liii]Id., Sec. 3.
[liv]Id., Sec.6.
[lv]Id., Sec.5.
[lvi]Supra note 53.
[lvii]Supra note 55.
[lviii]Supra note 53.
[lix]The Hindu Marriage Act 2017, Sec.2.
[lx]Id., Sec.2(2)(i).
[lxi]Id., Sec.4.
[lxii]Id., Sec.6.
[lxiii]Id., Sec. 16.
[lxiv]Id., Sec. 21.
[lxv]Id., Sec. 12.
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