Hindu Marriage Law: Need, Impediments and Policy Guidelines

Author(s): Syed Nadeem Farhat

Source: Policy Perspectives , Vol. 12, No. 2 (2015), pp. 131-146
Published by: Pluto Journals
Stable URL: https://www.jstor.org/stable/10.13169/polipers.12.2.0131

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 Hindu Marriage Law
Need, Impediments and Policy
Guidelines
Syed Nadeem Farhat
Abstract

[Pakistan does not have a marriage law for Hindus. Customary law has been practiced to
address issues among the community members. Law is needed to provide necessary
documentation, standardization and provision of rights to every individual. Successive
efforts for legislating upon Hindu marriages have been marred by intra-community
differences on issues like divorce. An enduring change in mindset and recognition of the
law among Hindu community asks for a comprehensive intra-community dialogue but
mechanism for marriage registration needs to be devised through legislation without further
delay. – Author.]

The relationship of minorities with the majority population and the state
is of very complex nature. In most cases around the world, a working
relationship exists, but the association is generally based on
‘expectations’ and ‘apprehensions’ rather than trust and confidence.

People living in fewer number among a huge population of varied

identity become more sensitive to their identity and hold tight to their
values, ways of life and norms. In many cases, they keep themselves
aloof from formal and informal association on their own choice in order
to preserve their cultural identity1. The members of minority community
may be offended easily by any particular initiative by the majority
(society or the government) and take it as an intervention into personal
realm of their lives.

Majority population and the government dominated by them, on

the other hand, tend to avoid any initiative with respect to minority
unless it finds all the segments of such minority on the same page on the
issue under consideration. Many a times, a decision on the basis of one
segment of minority would cause censure and denunciation from another
segment of the same group and give a negative message to the world
about the treatment of minorities in that state. In most cases
international community and rights groups get involved in one way or
other, and further complicate the situation.

To an extent, this may explain why Pakistan could not enact a

Hindu marriage law until now. This paper looks into the issue and will
attempt to understand the need for a Hindu marriage law, survey the
attempts for such legislation, underscore the obstacles and suggest way


Syed Nadeem Farhat is a Research Coordinator at the Institute of Policy Studies,
Islamabad.
1
Zaman, Hasan. 1980. The Concept of Minority. London: Research and Documentation.
p. 24.

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 Policy Perspectives

forward with an aim of protecting the community’s rights and ensure

better inter-community relations within Pakistani society.

Minority Demography and Laws

Pakistan is home to Christians (1.59 per cent), Hindus (1.60 per cent
Jati2 and 0.25 per cent scheduled castes), Qadianis (0.22 per cent) and
others (0.07 per cent), along with large Muslim population (96.28 per
cent)3. Among minority
communities, personal lives of
Absence of a Christians are regulated by
comprehensive Hindu Christian Marriage Act, 1872
and Divorce Act, 1869; Parsis
marriage law does not Marriage and Divorce Act, 1932
mean that there is no law deals with the personal law of
dealing with marriage Parsi community while Sikh
Anand Marriage Act, 2007 has
affairs or personal lives of recently been enacted for Sikh
Hindus in Pakistan. community. The Special
Marriage Act, 1872 provides
recognition and registration to
marriages of religious groups other than Muslims, Christians and Hindus
like Baha’is. Most laws, as is evident, were inherited from the British but
even British rulers had not legislated upon personal affairs of Hindus.

Despite being the largest minority, Hindus do not have a marriage

law in Pakistan. Currently a draft Hindu marriage law 4, introduced in the
National Assembly by Hindu legislators Dr. Darshan of PML-N and
Ramesh Lal of PPP on March 4, 2014, is being deliberated upon and is
the main stimulant of this paper.

Absence of a comprehensive Hindu marriage law, however, does

not mean that there is no law dealing with marriage affairs or personal
lives of Hindus in Pakistan. There are a number of specific legislations
governing various aspects of personal and public lives of Hindus in
Pakistan. Among them Hindu Widows’ Marriage Act, 1856 and Hindu
Marriage Disabilities Removal Act, 1946 are directly related to Hindu
marriages, while Hindu Woman’s Right to Separate Residence and
Maintenance Act, 1946 opens a window for separation of those couples

2
Hindu jati or caste communities include upper castes Brahmans, Kshatriyas, and
Vaishyas.
3
According to 1998 Census, religious minorities (Non-Muslim) are 3.72 per cent of total
population of Pakistan.
Pakistan Bureau of Statistics. PBS. 1998. 1998 Census: religious minorities.
Islamabad: Pakistan Bureau of Statistics. Accessed September 25, 2014.
http://www.pbs.gov.pk/sites/default/files/tables/POPULATION%20BY%20RELIGION.
pdf
4
Assembly, National. 2014. Hindu Marriage Bill, 2014. Government of Pakistan.
Accessed March 10,
2015. http://www.na.gov.pk/uploads/documents/1393931873_197.pdf
132

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 Hindu Marriage Law Need, Impediments and Policy Guidelines

who cannot live in normal relationship of marriage any longer. Other such
laws include Hindu law of inheritance, 1929; Hindu Inheritance (Removal
of Disabilities) Act, 1928; Hindu Disposition of Property Act, 1916; and
Hindu Gains of Learning Act, 1930. Apart from these specific laws, almost
all domestic enactments related to business, land and agriculture contain
specific provisions about Hindus.

National Legislative Scheme and the Significance of Personal

Law

The Constitution of Pakistan holds that “the protection of law and to be

treated in accordance with law is the inalienable right of every citizen,
wherever he may be, and of every other
person for the time being within
Pakistan”.5 This significant provision of A notable feature of
the Constitution is the acknowledgement
of the fact that the rule of law is a shield Pakistani community
against tyranny, arbitrariness, whims regardless of
and caprice.6 This also means that there
should be a specific law to regulate
religious differences
human conduct wherever necessary. At is the prominence of
times, the custom or usage based on a family institution.
religious verdict or cultural norm may
serve the purpose of law as is the case
of Muslim law of inheritance7 in Pakistan but the moment this setting
would seem to fail in safeguarding the rights of the concerned, the law
should fill in the vacuum.

A notable feature of Pakistani community regardless of religious

differences is the prominence of family institution which is not only the
primary building block of the society but a major reason of its strength
and resilience. The Constitution of Pakistan accords so much significance
to the protection of the marriage, the family, the mother and the child
that it counts it among the principles of policy, 8 compliance to which is
the responsibility of every organ or authority of the State or of the person
concerned.9

The constitutional guarantees to be governed in accordance with

law, to enjoy protection of the marriage and the family obviously extends
to every citizen including the non-Muslim citizens of Pakistan. What is
termed as the personal life of a person involves a number of very

5
Article 4 of the Constitution of Pakistan, 1973.
6
1999 CLC 607.
7
Inheritance shares among Muslims in Pakistan are calculated in accordance with
Islamic law under the
mandate of the Muslim Personal Law (Shariat) Application Act, 1937 and are
administered through Civil and
Revenue Courts.
8
Article 35 of the Constitution of the Islamic Republic of Pakistan, 1973.
9
Article 30 of the Constitution of the Islamic Republic of Pakistan, 1973.
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 Policy Perspectives

important actions and stages of life which are apparently personal in

nature but actually have a strong bearing on public spheres. A
comprehensive personal law is expected to cover aspects ranging from
selection of spouse to inheritance shares. Defining valid marriage,
underlining its essentials like
dower and witnesses etc, granting
Personal affairs of a recognition, devising registration
community have to be mechanism are considered one
part of such law which is related to
governed under the formation of a new family unit. At
personal law of the the same time, issues like
community itself but the maintenance, legitimacy
children, custody of the children,
of

legal system has to give it adoption, dissolution of marriage,

a cover. divorce, succession and
inheritance need to be addressed
to cater for any unpleasant
likelihood. This means that in absence of personal law for a community
there is a whole range of vital issues that are not standardized and
regulated by law.

Apart from this requirement of law on its own merit, a marriage

law would facilitate acquisition of CNIC, passport and other civic services
and ensure property rights of women10. Hindu leaders and rights groups
allege that in absence of registration of marriage, Hindu females are
prone to abduction and subsequent forced conversion of faith and feel
that a law would help reduce such incidents11. Though this allegation has
not been proven yet,12 current state of affairs provides a basis for

10
Rediff. 2012. "Pakistan to finally introduce Hindu marriage law." Rediff.. July 2.
Accessed March 3, 2015. http://www.rediff.com/news/report/pakistan-to-finally-
introduce-hindu-marriage-law/20120702.htm
11
PTI. 2014. "Pakistani Hindu lawmaker Dr Ramesh Kumar Vankwani demands law
against forced conversion." The Economic Times. May 21. Accessed May 12, 2015.
http://articles.economictimes.indiatimes.com/2014-05-
21/news/50002415_1_pakistanhindu-council-hindu-marriage-act-forced-conversion
12
The issue of forced conversion is complicated and asks for detailed research and
analysis. It has been discussed in the box, separately at the end. According to the
Article 20 of the Constitution of Pakistan, every citizen enjoys the “right to profess,
practice and propagate his religion” and on the basis of this fundamental right “if there
is forced conversion, the law always takes its own course”. (PLD 2012 SC 679). A
conversion from one religion to another is result of several push and pull factors. In
the specific context of this paper, an important push factor for Hindu females is non-
availability of divorce clause within their personal law.
The Community World Service’s report on religious Minorities and Marriage Laws in
Pakistan has talked about the dissolution of Hindu marriage and has noted that, “this
incoherence does persuade spouses to convert to Islam for ending marriages”. (Maroof
Mitha, supra, p. 19) Though Indian law provides mechanisms for dissolution of
marriage but the Law Commission of India had recorded in one of its report that “the
Muslim, Christian and Parsee marriage laws allow divorce more easily than the Hindu
law and it is only the Hindus who are put under severe restrictions and have to resort
to conversion in several cases”. LCI. 1978. "71st report on the Hindu Marriage Act,
1955." Law Commission of India. Accessed March 10, 2015.
134

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 Hindu Marriage Law Need, Impediments and Policy Guidelines

propagation of the argument that attitude of successive governments of

Pakistan towards Hindus is based on discrimination.13

Personal affairs of a community have to be governed under the

personal law of the community itself but the legal system has to give it
a cover that legitimizes it, documents and acknowledges the rights and
duties so created and executes them wherever necessary. The only
conclusion to this analysis is that Hindus living in Pakistan should have a
specific marriage law.

Initiatives for Hindu Marriage Law

Hindus can be socially or theologically categorized as Caste Hindus (with

Brahmins topping the order) and Scheduled Caste Hindus, mostly
considered ‘untouchable’. The Scheduled Caste Hindus in Pakistan
include Meghwars, Bheels and Kohlis. These classes have varied customs
and usages regulating marriage and divorce and their personal laws differ
from each other14. Though India had enacted the Hindu marriage law in
1955, Hindus living in Pakistan do not seem to have been tempted to
demand for a similar legislation and if such demand was ever made, it
did not get considerable momentum.

Traditionally, the issues related to Hindu community are settled

through panchayats, which are presided over by elders in accordance
with local customs and traditions15. The government too did not feel it

http://indiankanoon.org/doc/18314230/
In a society with governance issues, the possibility of forced conversion cannot be
ruled out but no convincing evidence proves the allegation. The above-mentioned
survey of 1000 Christian and Hindu women does not even have a mention of this
problem despite the fact that it covers almost every important aspect of the lives of
respondents including health, water, hygiene, sanitation, socio-economic
conditions, education, autonomy, political participation, discrimination on the basis
of religion or gender, sexual harassment and legal protection.
According to a factsheet on forced conversions and marriages in Pakistan, NCJP had
recorded 762 cases of non-Muslims converting to Islam between 1999 and 2004 but
no specific number of incidents of forced conversions was quoted. (I.A. Rehman, supra)
There are, however, five specific examples in the factsheet, each of which would
require an independent assessment. These include the mention of the famous case of
Rinkle Kumari, Dr. Lata and Asha Kumari who had been given personal hearing at the
Supreme Court of Pakistan and all the three girls had chosen to live with their husbands
as Muslims. Khan, Web Desk / Azam. 2012. "Azam Khan, Rinkle, Dr Lata, Asha choose
to live with husbands." The Express Tribune, April 18, 2012. Accessed March 12, 2015.
http://tribune.com.pk/story/366399/scallows-rinkle-dr-lata-todecide-their-future-
themselves/
13
See I.A. Rehman, Forced Conversions and Marriages: Situation in Pakistan, National
Commission for Justice and Peace, Lahore 2014.
14
Mitha, Maroof. 2004. Religious Minorities and Marriage Laws in Pakistan. Karachi:
Community
World Service, 14.
15
Shahbazi, Ammar. 2013. "In Pakistan, family law means Hindu couples can’t divorce."
The News, October 06, 2013. Accessed March 06, 2015.
http://www.thenews.com.pk/Todays-News-4-206435-In-Pakistan-family-law-means-
Hindu-couples-cantdivorce
135

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 Policy Perspectives

necessary to take initiative to change it with an alternate system. The

government inaction also approval of at least a section of the community
as a Hindu priest Ali Maharaj was reported to have thanked the
Government of Pakistan on behalf of his community for not interfering
with their religious laws. He maintained that the community liked it this
way and did not want ‘any sort of meddling’ with the established
practice16.

Nonetheless, there are other voices from within the community,

which feel the need for Hindu marriage law on two counts; firstly to
reform certain Hindu social practices in order to safeguard the rights of
individuals17 and secondly to provide them with easy access to civic
facilities through proper registration of marriages.

During recent years, demand of Hindu community for personal

law initially resonated at national level in 2009, when the Supreme Court
of Pakistan took suo moto notice of an incident reported in media in which
a Hindu woman had failed to obtain the national identity card (CNIC) and
hence passport on the ground that her marriage was not registered and
no documentary proof of her marriage could be presented. The Court
directed the National Database and Registration Authority (NADRA) to
devise mechanism for issuance of identity cards to members of Hindu
community and at the same time desired the government to consider
legislation in this behalf.18

In February 2010, the then Minister for Minority Affairs (late)

Shahbaz Bhatti informed the National Assembly about consultations
being underway for a Hindu marriage law and vowed to present a draft
within following three months19. The government effort however did not

16
Ibid
17
Ibid
18
On the directive of the Supreme Court of Pakistan (2012 SCMR 1147) the National
Database and Registration Authority (NADRA) has devised a mechanism to the
satisfaction of the apex court and issues CNIC to every eligible member of Hindu
community.
In February 2012, the National Commission for Justice and Peace (NCJP), which
is an organ of the Catholic Bishops’ Conference in Pakistan, published a report
titled, “Life on the Margins: A Study on the Minority Women in Pakistan”. The report
is based on an undated (probably somewhere in 2011) survey of 1000 Hindu
and Christian women in Punjab and Sindh. Among the respondents, 79 per cent were
reported to have a computerized national identity card (CNIC). Among remaining 21
per cent, one percent were below the age of 18 years and were not entitled to CNIC,
eight per cent had not applied for it, nine per cent did not respond to the question, two
per cent could not avail the facility because it was not available nearby. The report
says that these persons may be living in far-off places or may have been unaware of
mobile units in the area, which issue CNIC (page 40). One respondent had been
restricted by her family from acquiring one. (page 40) Not even a single person had
been denied issuance of CNIC on any pretext including the non-registration of
marriage.
19
Ghumman, Khawar. 2010. "Consultations being held for Hindu marriage law." The
Dawn. February 27. Accessed March 03, 2015.
http://www.dawn.com/news/522478/consultations-beingheld-for-hindu-marriage-law
136

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 Hindu Marriage Law Need, Impediments and Policy Guidelines

yield any results. Hindu Marriage Bill, 2011 was, however, introduced by
a Hindu legislator Kishan Chand Parwani (PML-Q) in the National
Assembly. This bill had heavily relied upon ‘The Hindu Marriage Act, 1955’
of India. Following deliberations and responses transpired that the Hindu
community in Pakistan, being a minority, had different dynamics and
approaches than the Hindu majority population in India. The provisions
of this bill regarding divorce had caused serious differences among Hindu
community, hampering the passage of bill20.

Meanwhile on April 23, 2012, the Supreme Court of Pakistan,

while disposing off its 2009 suo moto notice, reproduced its order given
in November 2009 and gave a new
impetus to the dialogue on national
level. The then advisor to the Prime The Supreme Court
Minister on human rights, Mustafa surveyed a number of
Nawaz Khokhar said that the
Government had decided to issues including non-
introduce a new bill for Hindu registration of Hindu
marriage as the Hindu community
had failed to develop a consensus on
marriages and found it
some contentious clauses of the being satisfactorily dealt
Hindu Marriage Bill, 2012.21 with by NADRA.
Nonetheless, the government bill
could not be introduced and the
above-mentioned private bill too lapsed without progress when the
National Assembly stood dissolved on completion of its term in March
2013.

On 4th March 2014, a new Hindu Marriage Bill was introduced as

a private member bill by Dr. Darshan and Mr. Ramesh Lal. This is being
currently deliberated upon at various forums including parliamentary
committees22, ministries of law, justice, human rights and religious
affairs, National Commission on Status of Women, and the Council of
Islamic Ideology23.

In another suo moto case, the Supreme Court surveyed a number

of issues including non-registration of Hindu marriages and found it being
satisfactorily dealt by NADRA. The judgment of the Court suggests that
the issue of a marriage law for Hindus was not raised during proceedings

20
Rediff. 2012. "Pakistan to finally introduce Hindu marriage law." Rediff. July 2.
Accessed March 3, 2015. http://www.rediff.com/news/report/pakistan-to-finally-
introduce-hindu-marriagelaw/20120702.htm
21
Rediff, supra.
22
Tanveer, Rana. 2014. "Hope for minorities: Making and breaking of family laws." The
Express Tribune, June 07. Accessed March 05, 2015.
http://tribune.com.pk/story/718558/hope-forminorities-making-and-breaking-of-
family-laws/
23
Haider, Irfan. 2014. "Draft bill seeks end to forced marriages of Hindu girls." Dawn,
June 27. Accessed March 05, 2015. http://www.dawn.com/news/1115507.
137

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 Policy Perspectives

of this case. Through this judgment,24 the apex court constituted a three-
member bench to ensure implementation of its directions ‘in letter and
spirit’ and to entertain any complaints or petitions ‘relatable to
fundamental rights of minorities in the country’. This three-member
bench of the Supreme Court had asked the government in January this
year to lay the Hindu marriage bill before the cabinet for approval within
two weeks25. No significant progress, however, has yet been reported.

The Bone of Contention

The above survey of events shows that the law could not yet been passed
despite presence of important pre-requisites like the need, apparent
political will, consultation and engagement – though intermittent – of all
concerned quarters including parliament, government, judiciary,
advisory bodies, civil society and Hindu representatives.

It has been indicated above that certain segments of Hindu

society do not like the idea of such legislation and consider it an
unwanted intervention. Even
among those who feel the need
Courts in Pakistan have for a law, there are people who
been settling the issues of are not comfortable with certain
proposed provisions. The issue of
marriage and divorce of divorce in this regard has been
Hindu community in the most contentious.
accordance with their
Courts in Pakistan have
personal laws. been settling the issues of
marriage and divorce of Hindu
community in accordance with
their personal laws, which may be at variance with each other on the
basis of various schools of thought observed by different communities. A
look at case law reveals that Meghwar, Kohli and Bheel communities
living in Pakistan have different approaches and practices with respect to
divorce. In Ramji Kohli versus Shrimati Badi Kohli, 26 the Sindh High Court
had confirmed judicial separation on request of the wife within Kohli
community. The Court had further held that “West Pakistan Family Courts
Act, 1964 fully took note of all customs practiced in any religion, which
included Hindu Religion” and maintained that “Proposition that in
Pakistan, Family Courts should be abolished and authority be given to
the Punchayat of Hindu Community to decide matrimonial disputes
between parties, who were Hindus, could not be accepted” adding that
“Parties could easily approach a Court of Law rather than to persuade a
Punchayat for decision”.27

24
Dated June 19, 2014 and reported at PLD 2014 SC 699.
25
Iqbal, Nasir. 2015. "SC wants draft of Hindu marriage bill approved in 2 weeks."
Dawn, January 14. Accessed March 05, 2015. http://www.dawn.com/news/1156940
26
2004 YLR 1666.
27
2004 YLR 1666.
138

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 Hindu Marriage Law Need, Impediments and Policy Guidelines

In Jagsi versus Shr. Marwan28 the Sindh High Court had

acknowledged the custom of divorce in Meghwar community and held
that “Family Court constituted under West Pakistan Family Courts Act,
1964, was competent to adjudicate upon the matters pertaining to
divorce claimed on the strength of customs”.

Another significant case related to a Bheel family came before the

Lahore High Court as an appeal. In this case the trial court had dismissed
the suit for dissolution on the ground that dissolution of marriage was
not allowed under Hindu law. But on appeal, the appellate court at district
level and later the High Court maintained that since marriage could not
be resolved under Hindu law, the wife was only entitled to separate
residence and maintenance from her husband in accordance with the
Hindu Married Women's Right to Separate Residence and Maintenance
Act, 1946 and not to dissolution of marriage. 29

These three cases mean that the superior courts of Pakistan have
acknowledged the practice of divorce or dissolution of marriage for Kohli
and Meghwar communities but have not found it among Bheels. There is
no precedent available on practice of divorce in Jati Hindu community.
Permissibility or prohibition of divorce is not the only issue considered to
be the actual bone of contention but there are certain other provisions
which have split opinion in Hindu community; for example, whether or
not polygamy be allowed,30 degrees of prohibited relationship etc.

One major factor that hampers the debate is the distrust that
prevails within various Hindu communities on the basis of Hindu caste
system. Sadhumal Surendar Valasai, who is the president of Scheduled
Castes Federation of Pakistan has been alleging maltreatment,
discrimination and even violence against Dalits by upper caste Hindus in
Pakistan31. According to him, not only the Dalits in Pakistan continue to
be subjected to considerable discrimination by 'upper' caste Hindus 32,
their political rights too are being undermined by Hindu landlords and
merchants who also dominate the ‘Pakistani Hindu politics’.33

Reaching a Consensus Law

The government of Pakistan seems to have decided to let the community

come up with a solution as it did with the Sikh community. In that case,

28
PLD 2005 Karachi 337.
29
2006 MLD 1568 LHC.
30
Hindu Marriage Act, 1955 of India declares polygamy an illegal and punishable offence
(section 17), while the draft Hindu Marriage Bill, 2014 proposes that a man should be
allowed to take another wife if his wife cannot conceive a child and [is] medically
declared to be so (clause 5).
31
Shah, Zulfiqar. 2007. Long behind Schedule. Indian Institute of Dalit Studies.
32
Sikand, Yogi. "Plight of Dalits in Pakistan.". Accessed March 22, 2015.
http://aannaim.law.emory.edu/ihr/yogi.html
33
Ibid.
139

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 Policy Perspectives

a draft law was proposed by the World Muslim Sikh Federation 34 and the
government had enacted the Anand Marriage Act, 2007 on its basis.

This approach is flawed on two accounts: Firstly because the Sikh

marriage law is very brief and deals only with the validation and
registration of Sikh marriages while the rest of the affairs that fall under
the realm of personal law have been left unattended. There is nothing in
this law that could have provoked a debate within Sikh community. In
case of Hindu law, various draft bills and reports suggest that it would
deal with almost all issues related to family. Secondly, Hindu society is
considered to be the most diverse in almost all accounts; composed of a
number of major and minor sects and each sect has a founder, a cult, a
body of doctrine, and a social organization of its own35 Manu, whose
treatise is a major source for modern
Hindus in matters connected with
Hindu society is religion and social observance,36 has
counted following as sources of Hindu
considered to be the law: the whole Veda, tradition and
most diverse in almost virtuous conduct of those who know
all accounts; composed the Veda, the custom of holy men
and the self-satisfaction.37 This
of a number of major means that for each Hindu sect, the
and minor sects. religious laws may be different.

Does this mean, a consensus

or near consensus law is impossible to have in this case. A study of Indian
experience may offer some help.

The Indian Experience

India has the largest population of Hindus in the world and its experience
with Hindu marriage law is worth considering. India had adopted the
Hindu Marriage Act in 1955. This law deviated from customary Hindu
practice on many counts. First and foremost, it swept away two ‘chief
characteristics’38 of Hindu marriage by not only disallowing polygamy but
also declaring it an offence, and making divorce available to all Hindus.
Out of eight forms of marriage recognized by Hinduism39, the Act allowed

34
WMSF. 2007. "Pak to allow Sikh wedding under Anand Marriage Act." Press release
by World Muslim Sikh Federation. Nov 28. Accessed March 12, 2015.
http://www.sikhiwiki.org/index.php/Pak_to_allow_Sikh_weddings_under_Anand_Mar
riage_Act
35
Shah, M.N. Srinawas and A.M. 1972. Hinduism, International Encyclopedia of the
Social Sciences. Vol. 6. New York: The Macmillan Co. and the Free Press.
36
Crooke, W. Hinduism, Encyclopedia of Religion and Ethics, Vol. 6. New York: Charles
Scribner’s Sons. p. 696.
37
Ibid, p. 699.
38
Diwan, Paras. 1957. "The Hindu Marriage Act, 1955." International and Comparative
Law Quarterly 6 (2): 263. Accessed March 25, 2015.
http://journals.cambridge.org/ILQ
39
Zahid, Hafiz M. 2012. Mazahib-e-‘Alam main shadi biyah ki taleemat. Lahore: Dar al-
Nawqadir.
140

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 Hindu Marriage Law Need, Impediments and Policy Guidelines

one single form, i.e. sacramental form of marriage. 40 All restrictions of

caste, gotra,41 religion, and sub-religion were wiped away. 42

One wonders how such radical changes could be made in a

conservative society with a strong and passionate affiliation with the
religion and religious, customs yet this is exactly what Pakistan needs to
do. No doubt, there had been other factors that had led to passage of
this law including the support for the bill by the first and popular Prime
Minister Nehru and an overall resolve to shape the country as a secular
republic, yet the proponents of the law had to face severe criticism. 43
More interestingly for Pakistan, the most vigorously criticized provision
of the law were the ones that made the marriage dissoluble.44

The first and foremost factor that needs to be kept in mind is the
fact that in case of India it were mainly the Hindus who were making a
decision for themselves. This means that all the process had taken place
in an atmosphere of trust and mutual confidence. Apart from that the
waves of reform in the Hindu
social order had been there for
a long time. More particularly, In case of India, it were
the ideas of Hindu social reform mainly the Hindus who were
grew from the nineteenth
century onward in response to making a decision for
European critique of some themselves. This means that
Hindu norms and practices.
Influenced by the Western
the process had taken place
models and ideas, the Hindu in an atmosphere of trust
Law Committee had proposed and mutual confidence.
to ban bigamy and provide
divorce rights as early as in
1940s.45 Simultaneously, a
Hindu Code Bill was proposed in 1941 that became a subject of extensive
public consultation through the 1940s and early 1950s.46
Despite this background, when the bill to ‘amend and codify the
law relating to marriage among Hindus’47 was introduced in the
Parliament, it provoked ‘unanimous and vociferous’ opposition by Hindu
nationalist parties in the Parliament and on the streets.48 Traditional
Hindu opinion resisted the idea and termed it an invasion against the

40
Paras Diwan, supra p.264.
41
Marriage had formerly to be within the same caste and not between persons in the
same gotra (extended family lineage).
42
Paras Diwan, supra p. 265.
43
Ibid.
44
Paras Diwan, supra p. 266.
45
Subramanian, Narendra. 2010. Making Family and Nation: Hindu Marriage Law in
Early Postcolonial India. Vol. 69. 3 vols. The Journal of Asian Studies.
46
Narendra Subramanian, supra p. 782.
47
Preamble of the Hindu Marriage Act, 1955 (Act 25 of 1955).
48
Narendra Subramanian, supra p. 787.
141

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 Policy Perspectives

religious law that had remained unchanged since it was handed down in
the holy books49.

The proponents of the bill contested the opposition mainly by

insisting that they had not deviated from the Hindu law and were in fact
looking to correct the society in accordance with the Hindu teachings.
They presented some shastras in which divorce was supported under
certain circumstances. They claimed that divorce rights would ensure the
sanctity of marriage associated to it by shastras.50 Simultaneously, they
claimed that contrary to popular belief, Hindu law had not remained static
and had been changing with the time and space.51 It is also significant to
note that divorce right was mainly contended by those parliamentarians
who belonged to specific castes – Brahmans, Kshatriyas, and Vaishyas –
who did not apparently want to give weightage to the customs of lower
castes. On the contrary, many other parliamentarians were motivated by
the cause of developing a uniform code for the whole community. 52

What Pakistan Should Do

In most cases, law follows the customs and in many cases, law
spearheads a social change. Later is challenging and forbearing in the
sense that it aims at diverting from age-old practices that in many cases
have earned sanctity. Same had happened in case of Hindu Marriage Act,
1955 in India that took about one and half decade of debate across the
Hindu society until they came to a point where majority could understand
the rationale. More importantly, even the proponents of change
approached the critics through the argument that they (the critics)
valued the most and brought their arguments from the same sources on
the basis of which the change was being contested. As has been noted
above, there are indications that certain castes within Hindu community
have some sort of recognition for dissolution of marriage and divorce.
The fact that there is already a law (The Hindu Married Women’s Right
to Separate Residence and Maintenance Act, 1946) in place should add
to the ease of those who would be pursuing a progressive law close to
Indian model. The said law of 1946 entitles a married woman for separate
residence and maintenance from her husband on the grounds of
loathsome disease, cruelty, desertion, bigamy, conversion, keeping
concubine or any other justifiable cause.

The process of legislation of Hindu marriage law is being

spearheaded by the Hindu legislators while various government bodies
and organs of state have been relying on the community leaders to come
up with an agreed draft. This approach is only partially correct. It is true

49
LCI. 1974. "59th report on Hindu Marriage Act, 1955 and Special Marriage Act, 1954."
Law Commission of India. Accessed March 22, 2015.
http://lawcommissionofindia.nic.in/51-100/Report59.pdf
50
Narendra Subramanian, supra p. 791.
51
Law Commission of India, supra.
52
Narendra Subramanian, supra p. 791.
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 Hindu Marriage Law Need, Impediments and Policy Guidelines

that the government is apprehensive of any domestic and international

backlash but this should not restrain her from taking lead in taking a step
forward for the welfare of an important segment of society in Pakistan.

In leading the debate on Hindu marriage law, the government

must take care of opinions and sentiments of the Scheduled Castes and
honor the pledge that the father of the nation Quaid-i-Azam Muhammad
Ali Jinnah had made to them in a press conference on August 5, 1944.
He had said, “I can tell my friends of the Scheduled Castes that at no
time have I overlooked their interests and position and I may claim that
in the past, I have done all I could do to help them and I shall always
stand for their protection and safeguard in any future scheme of
constitution, for I think that the wrongs and injustices inflicted on them
for centuries should not be allowed to continue under any civilized form
of government”53.

Currently, the process The government is

of this legislation is faced with apprehensive of any
two-faceted challenge. The
proponents of the law are
domestic and international
looking for a progressive backlash but this should not
draft,54 and the government restrain her from taking a
has to legislate without much
delay. step forward for the welfare
of an important segment of
Enacting a progressive
law, initially needs a broad-
society.
based consultation with
intellectuals, lawyers, researchers and Hindu priests with a view to draft
a law in consistence with the human rights and fundamentals of Hindu
society and to equip its advocates with the right and convincing
arguments. In the second phase, a campaign is required to reach out to
the cross-section of Hindu society including various castes and segments
of Hindu community to convince them on the draft. A law made after
such homework is bound to bring enduring change, enjoy respect and
following and more importantly to allay fears that the majority wanted
to intervene in the personal affairs of the Hindu minority. It is expected
that rights organizations and Hindu civil society will help the community
to initiate an introspective process and intra-society dialogue.

It seems that the deliberations taking place for last few years
have already started yielding fruits and improvements are being made in
bringing the diverse Hindu opinions closer. One evident example is of Dr.

53
Yusufi, Khurshid Ahmad. 1996. Speeches, Statements & Messages of the Quaid-i-
Azam. First. Vol. III. IV vols. Lahore, Punjab: Bazm-i-Iqbal Lahore. p. 1932.
54
The Hindu Marriage Bill, 2014 presented by Dr. Darshan and Ramesh Lal in the
National Assembly has generally followed the scheme of Indian law and proposes
judicial separation, decree of nullity, decree of divorce on petition of either party, and
decree of divorce on the basis of mutual consent of parties, as modes of dissolution of
marriage.
143

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 Policy Perspectives

Ramesh Kumar, who is the Chief Patron of Pakistan Hindu Council and
Member of National Assembly from ruling PML-N. He was reported to
have said in 2011, “We will never allow the government to have a divorce
clause in the Hindu Marriage Act. We have no concept of divorce in our
religion”55. Currently, he too is fighting for a legislation in which he has
proposed various modes of dissolution of marriage of Hindu couples
through judicial separation, decree of annulment, and divorce decree on
petition of wife or by mutual consent. 56 It may be hoped that further
debate and consultations
would take us to a near-
Enacting a comprehensive consensus point.
marriage law without winning The time constraint
the confidence of a community involved, however, would
is very much likely to create not allow the long route of
social campaign and across
misunderstandings, undermine the board consultation and
national harmony and convey would demand for a shorter
way. But enacting a
a negative message. comprehensive marriage
law without winning the
confidence of community is
very much likely to create misunderstandings, undermine national
harmony and convey a negative message at local and international
levels. The government should however not waste any further moment
to legislate on ‘Hindu marriage registration law’ while continuing its
efforts for a comprehensive Hindu marriage law. This would provide
mechanism for important documentation, allay many fears and address
allegations of discrimination. It would also fulfil the stated objectives of
the Constitution of Pakistan by affording protection of law and protection
of the family and marriage institution, which provides basis of a strong
and progressive society.

55
Gishkori, Zahid. 2011. "Divorce remains sticking point in Hindu Marriage Act." The
Express Tribune.
October 12. Accessed March 10, 2015.
http://tribune.com.pk/story/272193/divorceremains-sticking-point-in-hindu-
marriage-act/.
56
Mitha, Maroof. 2004. Religious Minorities and Marriage Laws in Pakistan. Karachi:
Community
World Service, p. 16.
144

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 Hindu Marriage Law Need, Impediments and Policy Guidelines

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