Monday
15 April | 2024

Lahore, Pakistan

Landmark decision in case of women’s foreign national spouses

Sindh High Court’s two-member division bench sees no rational basis for assuming that a foreign wife of a Pakistani man would be more loyal to Pakistan than a foreign husband of a Pakistani woman

The Sindh High Court in Karachi observed that a provision in Citizenship Act 1951 that gave a preferential treatment to the foreign national wives of Pakistani men and deprived the same right for Pakistani women’s foreign nationality holder husbands is a clear discrimination.

The division bench ruled that the concept which now emerged through international jurisprudence was to enable Pakistanis married to foreigners to be able to live together and acquire nationality for their spouses and live a family life in Pakistan and the Citizenship Act of 1951 should now be read and tamed accordingly.

“Restricting the benefit of Section 10(2) to Pakistani men only is a clear discrimination to Pakistani women,” the court ruled, as the ruling came on five petitions filed by as many women seeking Pakistani citizenship for their foreign national husbands on account of being married to them. Three women had approached the court in 1996, fourth in 2014 and the last one moved the court in 2021.

‘Restricting benefit of Section 10(2) to Pakistani men only is a clear discrimination to Pakistani women’

Allowing their petitions, a two-judge bench headed by Justice Muhammad Shafi Siddiqui said that the Lahore and Peshawar high courts had already declared Section 10(2) of Citizenship Act 1951 ibid to be violative of Article 25 while directing grant of citizenship to the foreign husband of a Pakistan citizen. The Federal Shariat Court already asked the legislature to amend the law that is violation of the Islamic injunctions.

“Section 10(2) of the Citizen Act gives a preferential treatment to the spouse of Pakistani man vis-à-vis a Pakistani woman and thus infringes constitutional guarantees. Indifferent treatment under the law to different classes is permitted if based on a reasonable classification made in accordance with intelligible criteria having a rational nexus to the object of the law,” the high court bench stated in its verdict.

“As far as security risk is concerned, in today’s world, there is nothing which a woman cannot do to invade security. This is being done since several hundred years and several states claimed to have collapsed due to their successful invasion. So transmitting citizenship, to women only, considering security issue, is as bad as it is in granting citizenship to foreign men,” the court ruled. “There is no rational basis for assuming that a foreign wife of a Pakistani man would be more loyal to Pakistan than a foreign husband of a Pakistani woman.”

The court stated that a federal law officer fairly conceded to the discriminatory nature of the challenged provision, but conceded to the extent of an appropriate amendment to the law by the legislators. “Indeed the country’s jurisprudence, as developed, does not require the court to transport itself decades or centuries back in time and adopt the mindset of legislature as it may have been on the date of promulgation of the statute as it now requires interpretation in line with constitution,” it said.

AFGHAN SPOUSES OF PAKISTANI CITIZENS

In December 2023, a two-member bench of the Peshawar High Court provided major relief to Afghan spouses of Pakistani citizens, seeking grant of the Pakistan Origin Card (POC) by declaring requirement of foreign passport and Pakistan’s visa to them as illegal. Consisting of Justice Syed Arshad Ali and Justice Wiqar Ahmad, the court ruled that the requirement of valid passport of a foreign country and visa for getting the card was not mandatory under NADRA (POC) Rules, 2002.

The bench ruled that requirement of possessing a passport of foreign country along with valid visa of Pakistan was not harsh in rest of the cases but as far as Afghan refugees were concerned, it was found harsher for the reason of their extraordinary long stay in Pakistan, in most of the cases. The court gave its findings in a 33-page detailed judgment delivered in 109 petitions wherein the court had partially allowed pleas of petitioners seeking POC for Afghan spouses of Pakistani nationals.

“All these writ petitions are partially allowed to the effect that requirement of valid passport with valid visa shall not be considered mandatory in case one of the spouses is Pakistani and another claims to be a foreigner.” The bench declared that that NADRA authorities would be fully competent to ask for further proofs and details and after satisfying themselves regarding the fact that the person fulfilled mandatory eligibility requirements of Rule 4 of POC Rules, and that he or she was actually an Afghan citizen, having security clearance, the POC should be issued, otherwise the request should be rejected.

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