1. Through this Constitutional Petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners seek direction to the respondents to prevent discrimination and grant citizenship to petitioner No.2, husband of petitioner No.1, enabling them to live together in Pakistan with the further direction to register petitioner No.2 as citizen of Pakistan and restrain the respondents from the extradition of the petitioner No.2 from the territory of Pakistan.
2. Precise facts giving rise to the filing of this writ petition are that Mst.Rukhsana/petitioner No.1 is SST teacher serving in the Education Department for the last 26 years. Her husband died in the year 2002 and from him, there was no child. Petitioner No.2 is an Indian National presently residing at Multan who had come to Pakistan on 09.08.2003 along with his son, namely, Danyal Hassan and mother, Khurshid Bano, later died on 16.10.2005 and was buried at .Multan. Sister of petitioner No.2, Mashkoor Bano, was also an Indian National who too migrated in the year 1962 to Pakistan and was married to one Syed Hassan Mian Zaidi and both are living in Multan as husband and wife, as she was already granted a Pakistani nationality.
3. With this background, and with legitimate expectation that he would start his life in this territory created in the name of Islam, on 16.02.2004 petitioner No.1 got married with petitioner No.2 and from their wedlock one daughter namely, Hamyal Zehra was born on 06.06.2005. Petitioner No.2 moved for citizenship of Pakistan but respondent No.2 directed petitioner No.2 to deposit Rs.50,00,000/- for processing the citizenship application. He continued to move for extension of visa and on 19.09.2006 his visa was finally extended for 90 days which was to end on 18.12.2006 hence this writ petition.
4. Syed Sajjad Haider Naqvi, Advocate, learned counsel for the petitioners contends that the state of Pakistan is bound to amend all discriminatory provisions available in the statue and law particularly, section 10(2) of the Citizenship Act, 1951. Further contends that a child is not to be separated from her parents but the respondents are forcing deportation of petitioner No.2 back to India which will deprive minor Himayal from the love and affection of her father. Refers to an order passed in Constitutional Petition No.1415 of 2004, “Mst.Najma Bano vs. Government of Pakistan, etc.” passed by Sindh High Court at Karachi. Also submits that when the sister of petitioner No.2 had been conferred the Pakistani Nationality on the basis of marriage with a Pakistani male, refusal on the part of the respondents to grant nationality to petitioner No.2 being married with a Pakistani woman/petitioner No.1 is discriminatory. Refers to the judgment on the same question given by the Federal Shariat Court in Suo Moto case No.1/K of 2006 (GENDER EQUALIY) [PLD 2008 Federal Shariat Court 1] and prays for relief.
5. Mr.Wajid Nawaz Bhatti, learned Standing Counsel assisted by Mian Riaz Hussain, Assistant Director, Passport Office, Multan, contends that the petitioner No.2 has no locus standi to file the writ petition as he is not the citizen of this country. Further contends that the act of the respondents is not discriminatory but is in accordance with the prevalent law. Adds, that the stay of petitioner No.2 in Pakistan is illegal, as his visa was not extended after 18.12.2006. Submits that if the petitioner No.2 is interested in Pakistani citizenship he can initiate the process and deposit a sum of five millions rupees as required under circular dated 16.01.1997 issued by the Ministry of Interior. Places reliance on [PLD 1998 Lahore 59] and [PLD 2015 Baluchistan 115] and prays for dismissal of this petition. Arguments heard. Record perused.
6. At the very outset ,it is noted the petitioner no ;2 is an alien male who has not been recognized as the one who could invoke the constitutional jurisdiction of this court , therefor to his extent , this writ petition is dismissed as not maintainable. However, the case of the petitioner no;1 is examined also with reference to the human right and discrimination aspects.
7. After hearing the learned counsel for the parties and perusing the available file, it is observed that said provision of section 10(2) of The Pakistan Citizenship Act, 1951 have been made the topic of discussion they be reproduced below for ready reference:
“S;10(2)……… Subject to the provisions of sub-section (1) and sub-section (4) a woman who has been married to a citizen of Pakistan or to a person who, but for his death would have been a citizen of Pakistan ,under section 3,4 or 5 shall be entitled, on making application therefore, to the Federal Government in the prescribed manner, add, if she is an alien, on obtaining a certificate of domicile and taking the oath of allegiance in the form set out in the Schedule to this Act, to be registered as a citizen of Pakistan whether or not she has completed twenty one year of her age and is of full capacity.”
A perusal of the said section reveals that alien female has been given the right to acquire the Pakistan nationality on her marriage with a man of Pakistani nationality but an alien male migrated to Pakistan and married a Pakistani woman is not granted a right to acquire Pakistani Nationality.
8. This section was discussed in Suo Motu Case No.1/K of 2006 in re (Gender Equality) [PLD 2008 Federal Shariat Court-1] where it was held by the Federal Shariat Court on 12.12.2007 that suitable steps for amendment of S.10(2) of Pakistan Citizenship Act, 1951 be taken for the grant Pakistani nationality to a foreign husband married to a Pakistani woman. However, Civil Shariat Appeal No.1 of 2008 has been filed against the said judgment before the Hon’ble Supreme Court of Pakistan (Shariat Appellate Bench) and on 23.12.2014 notices have been issued. It was held as follows:
“In view of the above, we are of the view that section 10 of the Citizenship Act, 1951 is discriminatory, negates gender quality and is in violation of Article 2(a) & 25 of the Constitution of Islamic Republic of Pakistan and also against International commitments of Pakistan and, most importantly is repugnant to Holy Qur’an and Sunnah.”
9. The discrimination under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 has also been discussed in various judgments of the Hon’ble Supreme Court. Before referring to some of the relevant case law, it is appropriate to reproduce Article 25 of the Constitution of Islamic Republic of Pakistan, 1973:
“Article 25 Equality of citizens (1) All citizens are equal before law and are entitled to equal protection of law.”
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