The Christian Marriage Act 1872 and the Divorce Act 1869 are the principal family laws for Christians in our country. Every church has its precepts but these statutes prevail where there...............

 2024 PCrLJ 2058

The Christian Marriage Act 1872 and the Divorce Act 1869 are the principal family laws for Christians in our country. Every church has its precepts but these statutes prevail where there is a conflict.

This statute consolidated and amended the law relating to solemnizing the marriages of people professing Christianity. It consists of 88 sections. The first three sections are grouped under the heading “Preliminary,” while the remaining sections are divided into eight Parts. Section 3 is the interpretation clause and defines “minor” as a person who has not completed the age of twentyone years and is not a widower or a widow. Parts III, V and VI contain provisions for marriages where one or both parties are minors. In Part III, which bears the heading “Marriages solemnized by Ministers of Religion licensed under this Act”, section 19 enjoins that the father, if alive, or his guardian, if he is dead, and the mother of the minor, if there is no guardian, may give consent to the minor’s marriage. However, such consent is not required if the person authorized to give it does not reside in Pakistan. Sections 20, 21, and 22 describe how the person whose consent to the marriage is required under section 19 can prohibit the issuance of the certificate by the minister and how the latter should proceed when a notice prohibiting the marriage is issued. Part V contains provisions pertaining to marriages performed by or in the presence of a Marriage Registrar. Section 44 stipulates that the provisions of section 19 apply to any marriage under Part V in which either party is a minor. Anyone whose consent is required for such a marriage can enter a protest in the prescribed manner. When such a protest is filed, no certificate will be issued until the Marriage Registrar has examined the case and determined that it should be given. Part VI relates to the marriage of Native Christians, an expression, which as per section 3, includes the Christian descendants of the natives of Indo-Pakistan sub-continent converted to Christianity as well as such converts. Part VII prescribes penalties for various violations and offences under the CMA.

In view of the above, the minimum age for a Native Christian man to enter into a marriage is 16 years and for a woman 13 years in terms of section 60 of the CMA. The consent requirement under section 19 is within the age bracket of 16 to 18 and 13 to 18 years respectively. The marriage can be solemnized in the presence of a person licensed under section 9 in the presence of at least two credible witnesses without the preliminary notice required under Part III. I agree with Mr. Saad Rasool that the CMA does not expressly prohibit the marriage of a minor if it is compliant with section 5 (Persons by whom marriage is solemnized) and does not violate section 88 (Non-validation of marriages within prohibited degrees).

Section 2 of the Majority Act expressly excludes marriage and divorce from its application. A combined reading of this provision and section 11 of the Contract Act would show that they have no bearing on the capacity of a person to act in some matters, including marriage, which are left to be governed by the individual’s personal law – unless the Parliament has enacted a special law in that regard. As a result, the CMA and the Divorce Act of 1869 govern Christian marriage and divorce in Pakistan. The Child Marriage Restraint Act, 1929, does not override them. It is a separate law that punishes those who are responsible for an under-age marriage but does not nulify the marriage.

“Consanguinity” is a relationship by blood while “affinity” is a relationship by marriage. The attitudes of different major world religions towards consanguineous and affinity marriages are diverse. Even in the same religion the practices and beliefs of one community and sect may differ from those of the others. Section 88 of the CMA recognizes that Christians have similar divisions and prohibits validation of any marriage “which the personal law applicable to either of the parties forbids him or her to enter into,” which includes a marriage within the prohibited degree of consanguinity and affinity.

Writ Petition No. 63301/2021 Nasreen Bibi Vs. Station House Officer etc.