Sunil R P Sethi
The statement made by Mr. Narinder Modi, Prime-Ministerial candidate of Bhartiya Janta Party in Lalkar Rally at Jammu the other day about the different treatment being given to Umar Abdullah and his sister by the State laws raises a valid and important point about the rights of the daughters of the State so far as it pertains to law pertaining the State-Subject. The right to government employment and right to property and other privileges are restricted to state subjects which have been defined by Section 6 of the Constitution of J&K. initially the notification issued by the State of J&K directed for losing the State Subject by the daughters of the State marrying to Non-State Subject but their position was protected by the Full Bench judgment of Hon’ble High court of J&K in Dr. Shusheela Sawhney case wherein it was provided that the women State subject merely marrying a non-State subject will not loss her right of being State Subject. So at the first look right of being a permanent resident of J&K is vested with sister of Umar Abdullah after marrying Non-state subject as it exists in favour of Umar Abdullah after marrying a non-state subject, but in essence a marked difference between two situations as the off springs of Umar Abdullah are state subjects by birth whereas the off springs of his sister are not state subjects and are barred under law to owner immovable property of their mother and also to claim any public position in the State of J&K.
This raises a very important question as to whether it is constitutionally permissible to have discrimination on the basis of sex of a person only so far as bestowing upon the state subject is concerned. Whether it is permissible for the State to restrict grant of state subject to the children of the daughters of the State marrying Non state subject whereas male state subjects marrying non-state subjects does not suffer such disability and rather in their cases non-state subject women who marry State subject become the State subject of the State. This has given rise to very anomalous situation and discrimination which is of the worst kind but unfortunately the situation has not been commented upon politically so far. Even so called Women Organizations which are working for the protection of the women right have also not shown any concern or indulgence to this vital issue. The State Government has even gone to the introduction of a Bill in the State Legislature which intended to take away the rights of women to maintain her State subject after marrying a State subject to nullify the judgment of Full Bench of High Court of J&K. However, the Bill so introduced could not be cleared because of massive public protest. Only to save the situation for the day so far as the protection of the right of women to the State subject after marrying a non-state subject but their rights and rights of their children have not been protected nor sought for. The situation may rise where the daughters of the State marrying non-State subject in view of her position to have continued as a State subject, owns landed property but after her death the property has to be given to her parental relations or has to be escheated to the state as neither husband nor her children will be in a position to own the property.
The crucial point in this regard is pending before the Hon’ble High court of J&K in writ petition titled Dr. Prabhjit Kour vs. State of J&K where the Single Judge after looking to the gravity of the matter has referred the same to the Larger/Full Bench.
The Full Bench of this Hon’ble Court answered the important question of law by majority that the daughter of a Permanent Resident of the State of J&K will continue to hold the status of being Permanent Resident even after her marriage with a person who is non-Permanent Resident of the State of Jammu and Kashmir. As a natural corollary emerging out of the aforesaid judgment, the daughters of Permanent Residents of the States who are married to Non-Permanent Residents of the State of J&K get the status of permanent resident of the State of J&K post their marriage and are enjoying all the privileges and benefits of permanent residents of the State of J&K However, another following important question of law still undecided are Whether it is legally permissible to make classification between off-springs of Male Non-Permanent Residents of the state of J&K vis-à-vis female Permanent Residents of the state of J&K.”
In view of the law laid down by the Full Bench of this Hon’ble Court supra, there are two conceivable categories of Permanent Residents of the State of J&K based upon their sex:-
(i) Male Permanent Residents of the State of J&K married to Female Non-Residents of the State of J&K and Female Permanent Residents of the State of J&K married to Male Permanent Residents of the State of J&K;
(ii) Female permanent Residents married to male non-Permanent Residents of the State of J&K.
There is no confusion so far as first category is concerned, but the problem comes up while bestowing the right and status of Permanent Resident on the off springs of category (ii). Whereas sons and daughters of category (i) above are given the status of Permanent Residents because of birth, the same is denied to category (ii). This denial of status of permanent resident of State of J&K to the off springs of category (ii) viz.; female permanent residents married to non-permanent residents, is violative of Article 14 of the Constitution of India as it is purely on the basis of sex that the constitutional right is denied to a citizen.
the situation in certain cases is more grave where female Permanent Resident of the State of J&K who has married to a Non-Permanent Resident of the State of J&K has to come back to permanently reside in the State of J&K for the reasons of :-
(i) Divorce;
(ii) Widowhood;
(iii) Permanent settlement for any other reason;
In any of the aforesaid situations though the female continues to hold the status of Permanent Resident but the same does not go to her lineage and as such situations arise where grave injustice is done to the off springs of female permanent residents of the State of J&K who have married Non-Permanent Resident of the State.
The Constitution of India does not recognize discrimination on the basis of sex and as in this case, the only reason for discrimination is based upon sex of the parent of the beneficiary, the same may not hold good in the eyes of law and is legally not sustainable.
Non-bestowing upon the right and status of permanent residents of the State of J&K on the off-springs of a female permanent residents of the State of J&K married to Non-permanent residents, another situation also arises where the immovable property of female State subject has to necessarily gets escheated as her off-springs have no right to own the immovable property in the State of Jammu and Kashmir. Thus the fundamental rights of such persons guaranteed under the Constitution of India as also under the Constitution of the State of Jammu and Kashmir get sufficiently defeated.
Section 6 of the Constitution of Jammu and Kashmir prima-facie operates harshly against the female permanent residents of the State married to non-residents of the State and their off-springs.
If a female has all along been living in the State of J&K right since her birth and even after her marriage with a Non-Resident of the State of J&K and her son or daughter has also born in the State of J&K and is living since his/her birth in the State of J&K. Denial of right of citizenship of the State of J&K by way of grant of Permanent Resident Certificate to the offspring of the female permanent resident of the State of J&K married to a non-permanent resident is per-se illegal, arbitrary, discriminatory and violative of Article 14 of the Constitution of India and ultra-vires.
Even after the judgment passed by full Bench of the Hon’ble High Court of J&K, the female permanent residents of the State of J&K married to non-permanent residents of the State of J&K are not in a position to effectively and bonafidely own immovable property in the State of J&K. The off springs of such female permanent residents of the State of J&K are neither given the status of permanent residents of the State of J&K nor have they been in a position to own the property of their mother nor are they entitled to seek admission in the professional courses in view of such admissions being restricted to the permanent residents of the State of J&K.
The theme and architecture of relevant provision of the Constitution of Jammu and Kashmir as also the laws/Rules/ Regulations framed thereunder pertaining to grant of Permanent Resident Certificates are being interpreted by the State in a manner just to defeat the fundamental rights guaranteed under the Constitution of India. It is a settled position of law which is also the basic theme of Article 14 of the Constitution of India that discrimination on the basis of sex of a person is violative of Right to Equality.
(The author is Senior Advocate)
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