JKJ 2004 (2) J-13

Discrimination To Female On The Basis Of Sex With Special Reference To Permanent Resident Certificate In Jammu & Kashmir

By:- Dr. Ajeet Lal (M.A., LL.M., Ph.D., Formerly Lecturer, Faculty Of Law, University Of Jammu, Jammu)

1. Introduction :

The godfathers of the Indian Constitution while framing the Indian Constitution kept in mind the weak position of the women. So they made some special provisions in favour of the women in the Fundamental Rights Chapter of the Indian Constitution. Article 14 of the Indian Constitution provides equality before law and equal protection of law. Article 15 of Indian Constitution provides that State shall not make any discrimination on the grounds of race, religion, caste, sex or place of birth. Moreover, special provisions may be made in favour of the women according to Article 15(3) of the Indian Constitution.

The preamble of Jammu and Kashmir Constitution, 1956 (herein after referred as State Constitution) provides equality of status and liberty. Sections 6 to 10 of State Constitution deals with the permanent residents. Section 10 of the State Constitution provides that the permanent residents of the State shall have the rights guaranteed to them under the Constitution of India. Article 35-A of the Indian Constitution provides the provisions relating to the permanent residents and their rights. It defines the classes of a persons who are or shall be permanent residents of the State of Jammu and Kashmir. It also says about conferring on such permanent residents any special rights and privileges or imposing upon other persons any restriction as respects (i) employment under the State Government (ii) acquisition of immovable property in the State (iii) settlement in the State, or (iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizen of India by any provisions of this part. While issuing the Permanent Resident Certificate (herein after referred as State Subject) by the Revenue Authorities especially mention a clause “Valid Till Marriage” on the State Subjects of the unmarried females. The theme of this paper is to explore that how far State Subject is discriminating on the basis of sex.

II. Statutory Provisions

The Notification No.1-L/84 dated 20th April, 1927 issued by His Highness the Maharaja Bahadur relating the issue of State Subject. The definition of State Subject has been sanctioned by His Highness the Maharaja Bahadur vide Private Secretary’s letter No.2354 dated 31 January, 1927 to the Revenue Member of Council. It divided persons into four classes which includes persons born, settled, permanently residing and companies registered with the State. Note III says that wife or a widow of the State Subject of any class shall acquire the status of her husband as State Subject of the same class as her husband, so long as she resides in the State and does not leave the State for permanent residence outside the State.(Justice A. S. Anand, The Constitution of Jammu & Kashmir its Development and Comments, 2004, p.198)

Subsequently, His Highness the Maharaja Bahadur issued Notification on 27 June 1932 and 14 March, 1939 published in the Government Gazette No.13-L/1989 dated 24 March 1989 to determine the status of Jammu and Kashmir State Subjects in foreign State as to the position of their nationals in the State, that all the emigrants from the Jammu & Kashmir State to the Foreign territories shall be considered State Subject and also the descendents of these emigrants born abroad for two generations. However, they shall not be entitled to claim the internal rights granted to subjects of this State by laws, unless they fulfill the conditions laid down by those laws and rules for specific purposes mentioned therein.(Justice A. S. Anand, op.cit., p.198).

Recently the State Government of Jammu and Kashmir has unanimously passed Permanent Resident (Disqualification) Bill, 2004 (hereinafter referred as P. R. (D) Bill, 2004). The introduction of the Bill was necessitated by the High Court judgment on the status of females from Jammu and Kashmir marrying outside the State. The P. R. (D) Bill, 2004 provides for disqualification from being a permanent resident of the State on marriage of a female permanent resident with a non-permanent resident. (Daily Excelsior, 6 March 2004, p.1.). However, due to the stiff opposition against the P.R. (D) Bill, 2004 from all the quarters this controversial Bill is deferred by the Legislative Council of the J&K State.

The Jammu & Kashmir High Court in the case of State of Jammu & Kashmir v. Dr. Susheela Sawhney held that there is no provision in the existing law dealing with the status of a female permanent resident who marries a non-permanent resident. The court also held that the State Legislature has powers under Section 8 of the Jammu and Kashmir State Constitution to make such a law. The P.R. (D) Bill, 2004 provides that a female permanent resident of the State on her marriage with a non-permanent resident shall lose the status of the permanent resident after such marriage. (Daily Excelsior, 6 March 2004, p.1).

However, the P.R.(D) Bill, 2004 does not alter the legal position of female descents of permanent residents in the matter inheritance which will continue to be in accordance with personal law applicable. (Daily Excelsior, op.cit., p.1.).

If the P.R.(D) Bill, 2004 is made law then the female is deprived the right to equality especially to those women of Jammu and Kashmir who married to a person who belongs to other States. Moreover, it will be backward step relating to the status of women who married outside the State of Jammu and Kashmir. The women who are given right to equality by the judiciary is going to be taken away by the legislature.

If the P.R. (D) Bill, 2004 is enacted then the females who have been married out side of the Jammu and Kashmir would be deprived of their right to equality. The daughters of the soil married out of the Jammu and Kashmir have to bear all sorts of cruelties of their in-laws because their rights to equality have been taken away at the time of marriage. If a daughter of the soil is divorced by her husband she has to stay with her parents, by suffering a lot because her right to equality including right to employment which has been taken away at the time of marriage to non-State subject. Same would be the case with the widow daughter of the soil who is having desire to stay with her parents in the State of Jammu and Kashmir. Hence, the status of the divorcee and widowed daughters of the soil is yet to considered.

The wife of the non-State subject Ghar Jawai may also be put in the awkward position because as per the P.R. (D) Bill, 2004 her all rights would have been ceased at the time of marriage to non-state subject. Either she has to stay illegally in the State of Jammu and Kashmir or she has to take her old parents to the place of in-laws which may be very difficult for them to adjust in that atmosphere.

On one side son and daughter is to be treated equally on the other side discriminatory P.R.(D) Bill, 2004 is brought forward to enact the law depriving the right to equality to the women who are married outside the State of Jammu and Kashmir. It is not understood why the females are being discriminated right from birth till their death? Inspite of the discriminatory attitudes of the society towards the female they are working in every field equal to men. Even presently the women are defending the country by joining the Army, Navy and Air Force which is tough service for the women. Take the example of Kalpana Chawla who was working at N.A.S.A. and sacrificed her life during the Atlantica’s crash but still the women are discriminated.

III. Judicial Attitude

The Judiciary has shown positive attitude to recognize the right to equality of female in the case of Harjeet Singh v. Amarjeet Kaur, (2003(1) JKJ p.36). The Trial Court held that plaintiff is entitled to inherit the suit property as heir of her father namely Ram Singh. Though the defendants contested that the claim of the plaintiff by pleading that the plaintiff being married to non-permanent resident of the State is debarred from inheriting the property of her father.

In the case of Dr. Abha Jain v. State of Jammu & Kashmir, 2003(1) JKJ 37) she was asked to produce a permanent resident certificate after marriage on or before 20th April, 1985 failing which she could not to be considered for admission in discipline of Gynaecology. She applied to the Deputy Commissioner, Jammu for issuance of permanent resident certificate after marriage. Apprehending that she would not be issued the certificate, she filed writ petition seeking a direction for the communication received after marriage on ground that she is permanent resident of the State of Jammu and Kashmir even though she may have married a non-State subject.

In the case of Anjali Khosla v. State of Jammu and Kashmir (2003 (1) JKJ 36) she applied for issue of permanent resident certificate which was issued to her by the Additional Deputy Commissioner, Jammu, with a condition that the same would remain Valid Till Marriage. She got married to non-State subject. She applied to the Deputy Commissioner, Jammu for deletion of the condition Valid Till Marriage on the ground that the condition imposed was illegal and un-warranted. The application was transferred to Additional Deputy Commissioner, Jammu who has refused to delete the said condition. The petitioner has challenged the order of the Additional Deputy Commissioner.

The Tribunal has shown negative attitude to recognize the right of equality of the women in the case of Kamla Rani v. State of Jammu and Kashmir, 2003 (1) JKJ 38, petitioner is a daughter of Amar Nath, a permanent resident of State of Jammu and Kashmir. It was complained by Kishan Chand before Deputy Commissioner, Udhampur, alleging that she has lost the status of a permanent resident of the State, after having married outside the State of Jammu and Kashmir, and has obtained a permanent resident certificate by concealing her marriage to non-State subject. The Jammu and Kashmir State Special Tribunal cancelled the Permanent Resident Certificate.

In the case of Sunita Sharma v. State of Jammu and Kashmir, 2003 (1) JKJ 38, she obtained a permanent resident certificate from Deputy Commissioner, Jammu with a condition placed on the certificate would be Valid Till Marriage. Petitioner challenged such entry made on her permanent certificate being violative for her fundamental rights guaranteed under the Constitution of India and discriminatory on the basis of sex.

The petitioner in the case of Shabnam Taj v. State of Jammu and Kashmir 2003 (1) JKJ 38-39, passed her M.B.B.S degree in the year 1993. Her parents have been permanent resident of the State. The permanent resident certificate issued to her contained a condition that it would be valid only till marriage. She got married. Subsequently, she applied for the post of Assistant Surgeon. She submitted all the required certificates except the permanent certificate after marriage but the Public Service Commission has refused to accept her application form. She challenged the refusal of the Commission to entertain her application.

In the same way the case of Shruti v. State of Jammu and Kashmir 2003 (1) JKJ p.39, the petitioners salary was withheld by the Regional Research Laboratory due to non-submission of permanent resident certificate after marriage though she has produced permanent resident certificate before marriage. Petitioner challenged this action of the respondent. In the case of Ranju Modi v. State of Jammu and Kashmir, 2003 (1) JKJ pp.39-40 the petitioner passed her M.B.B.S. degree from Jammu University in 1990. Subsequently, petitioner applied for the entrance test for MD/MS/PG/ Diploma courses in Government Medical College of the State for the session 2001-02. Her application has not been accepted on the plea that her permanent resident certificate is valid only till marriage. The petitioner who is married to a non-State subject has challenged the action of the respondents for not accepting her application form for the examination to the post graduate course.

In the landmark judgement delivered by the Jammu and Kashmir High Court after clubbing all the cases relating to the Permanent Resident Certificate in the case of State of Jammu and Kashmir v. Dr.Shusheela Sawhney has shown positive attitude to eradicate discrimination on the basis of sex by holding that the daughter of a permanent resident of the State of Jammu and Kashmir by marrying a non permanent resident does not lose her status as permanent resident of the State of Jammu and Kashmir to hold, inherit and acquire immovable property in the State of Jammu and Kashmir. It was also held that right of employment of a woman who is in employment of the State and at the time of initial appointment is permanent resident of the State can continue to be in employment of the State even after her marriage with the non permanent resident. 2003(1) JKJ p.35.

IV. Conclusion and Suggestions

The Indian as well as State Constitution provides the right to equality to the women. But still in the State of Jammu and Kashmir women are denied the right to equality while issuing Permanent Resident Certificate with a condition thereon as “Valid Till Marriage” in violation of Article 14 and 15 of the Indian Constitution and Section 5 of Jammu and Kashmir Constitution. It is true that Notifications issued by His Highness Maharaja Bahadur regarding issue of State Subject was also discriminatory for the women who married to non-State subject but that was in the Eighteenth Century when India was slave which may be the requirement of that time but now we have entered in the Twenty First Century, so the need of the hour is to relax the law relating to issue of Permanent Resident Certificate to the female members of the Jammu and Kashmir. The good law of the land is that which take care of Social Engineering.

Presently, there is much propaganda regarding to give special privileges, equality, reservation etc. to the women but practically still we are discriminating the women. Though the women are working equally with men even by joining the defence forces which is supposed to be the tough service. On the other hand women in the Jammu and Kashmir are denied the right to equality especially while issuing the Permanent Resident Certificate by putting a condition on it “Valid Till Marriage.” The worse hit by this clause are the women of Jammu and Kashmir who are married outside the State of Jammu and Kashmir. If the P.R.(D) Bill, 2004 isconverted into the enactment then women are deprived the right to equality which they have won after long struggle from the judiciary.

It is suggested that the women married to non-State subject may be given option to retain or relinquish the Permanent Resident Certificate of Jammu and Kashmir. The condition mentioned as “Valid Till Marriage” may be removed to recognize the right to equality of the women. The women married outside the State of Jammu and Kashmir may be allowed to continue their Permanent Resident Certificate for at least two generations.