Women and Justice: Keywords

Domestic Case Law

Lehdeaho v. SHO, PS Chung, Lahore and others Supreme Court of Pakistan (2017)

Divorce and dissolution of marriage

The petitioner was a mother who moved with her husband, the respondent, to Canada with their three minor children in 2009. The respondent moved back to Lahore, Pakistan and the children stayed with the petitioner in Canada. The respondent wanted the entire family to move back to Lahore. To this end, he approached the Guardian Court in Lahore and declared himself as the guardian of the person and property of his children.  When they came to visit him, he refused to let the children go back to Canada. Under the Guardians & Wards Act of 1890, the Guardian Court is any lower court that can hear an application for custody and guardianship of children. The respondent proceeded to file an application for custody of the children before the Guardian Court. The petitioner was in Canada when she received the notice of the proceedings for custody and unable to immediately enter Pakistan as her visa had expired. In her absence, the Guardian Court passed an order giving the custody of the children to the respondent until the petitioner could appear before the Guardian Court. The petitioner filed an application to the High Court for custody of her children, which was dismissed as the matter was still pending before the Guardian Court. The High Court’s reasoning was that because the Guardian Court is where the evidence and witnesses are evaluated, it is the appropriate forum for the case to be heard for custody of children. The Supreme Court of Pakistan considered whether the High Court had jurisdiction to hear the petition on custody matters pending a final decision by the Guardian Court. The Supreme Court observed from previous case law that the Guardian Court is the final arbiter on questions of custody of a child. However, this should not disadvantage a person illegally deprived of custody of a minor child from a remedy to regain custody pending adjudication by the Guardian Court. On this basis, the Supreme Court held that the High Court has the right to pass orders where it would be in the best interest and welfare of the minor. The Supreme Court also held that the High Court has jurisdiction to restore custody to the person lawfully holding such custody while the Guardian Court gives its final orders. After considering that the children wanted to move back to Canada with their mother, the order was passed in her favor.



周某与杨某1离婚纠纷,江苏省无锡市中级人民法院 (In re Zhou & Yang Divorce Litigation) Intermediate People's Court of Wuxi Municipality (2017)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The appellant-wife appealed to the Intermediate People’s Court of Wuxi Municipality, Jiangsu Province in relation to the lower court’s refusal to grant a divorce. The appellant alleged that her marriage with the appellee was irreparably broken and that he had committed domestic violence against her. The appellant alleged that the domestic violence was corroborated by their daughter’s testimony and photographic evidence. The court held that even though the appellee might have beaten the appellant on at least one occasion, under the legal definition, domestic violence must constitute continuous multiple-time battery rather than [one occasional][1] conduct. Since the evidence submitted by the appellant was insufficient to demonstrate that the appellee’s conduct caused harmful consequences to the appellant, the court refused to grant their divorce. The court also admonished the appellee to fulfill his responsibility as a husband and to stop his "bad habits."

离婚、家庭暴力

上诉人周某因与被上诉人杨某1离婚纠纷一案,不服无锡市惠山区不准予双方离婚的判决,向江苏省无锡市中级人民法院提起上诉。周某称双方感情确已破裂,并且杨某1对其存在家暴行为。上诉人称双方女儿的证言与照片证据证明了家暴行为的存在。法院认为,根据证据,虽然不排除杨某1有打过周某的可能性,但家庭暴力不只是一次偶然性的行为,而是持续性多次施暴的行为。因为周某提交的证据不足以证明被上诉人的行为对周某造成了伤害,法院拒绝了周某的上诉请求。法院同时要求杨某1作为丈夫有所担当,戒除生活中的不良习惯。

[1] Note to draft: This concept is unclear.  The exact translation of the Mandarin phrase would be “one occasional conduct.” From the context of the opinion, it appears that this means that occasional conduct, even if more than once, may not be sufficient if it is not indicative of a pattern of abuse.



Legislation

23 Pa. C.S.A. § 3301, Domestic Relations - Grounds for Divorce (1990)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Under Pennsylvania law, a divorce can be either “fault-based” or “no-fault.” Grounds for a “fault-based” divorce include the following: abandonment (unmoving spouse has left the home) without a reasonable cause for a period of one or more years; adultery; cruel and barbarous treatment (unmoving spouse has treated movant in a way that puts his/her life or health at risk); bigamy (movant’s spouse married movant without first divorcing his/her spouse); imprisonment for two or more years; or movant’s spouse has acted in a way that made movant’s life unbearable or extremely difficult. Grounds for a “no-fault” divorce include the following: insanity or a serious mental disorder that resulted in confinement in a mental institution for at least 18 months immediately before the commencement of a divorce action; or where a complaint has been filed alleging that the marriage is “irretrievably broken.” When the grounds for divorce is that the marriage is “irretrievably broken,” the court may find that there is a “reasonable prospect of reconciliation.” If the court makes such a finding, it will continue the matter for up to 120 days, but not less than 90 days, unless the parties agree to a longer period. During this continuation period, if either party requests it, the court will require up to a maximum of three counseling sessions.



International Case Law

Meera Dhungana v Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2007)

Gender discrimination, Property and inheritance rights

The petitioner filed to amend a provision in pension payments by the Nepalese Army that withheld payments from married daughters. The Court ruled to invalidate this measure based on the grounds that pension payments to children were stopped at 18 years, before the legal age of marriage, making it obsolete. However, the Court also acknowledged that this provision was contrary to Article 11 of the Constitution of the Kingdom of Nepal which guarantees equal rights to all, in particular highlighting that equality is meant in practical terms sometimes necessitating positive discrimination. By interpreting Article 11 of the Constitution to include positive discrimination, this case opens the door to proactive human rights defense measures.