A Look Through The Mist (Part-II)
The woman folk that was in the category of ‘State Subject of Jammu & Kashmir’ during the times of Maharaja Hari Singh and has been the later designated as Permanent Resident of J&K under Section-6 of the Constitution of J&K is facing the most humiliating and agonizing discrimination as well as violation of fundamental rights that a citizen can have in a democratic non theocratic state.
In a way half of the population of Jammu & Kashmir, the women ‘subjects’ of J&K, are denied (constitutionally ) even the right to freely chose a life partner since under the present prevailing procedural and legal practices a descendent female permanent resident of J&K in case marries a non- permanent resident of J&K Indian citizen belonging to some other Indian state though she retains the permanent resident status worth right to immovable property / right to state services / right to be part of state legislature / right to aids provided by state but her husband and their children will not have the status of Permanent Resident of J&K/ descendent of permanent resident of J&K. This way a State Subject girl of J&K is denied the right to chose her life partner from a state other than J&K ( what to talk of from US or UK) , and in case she dares to do so her husband & descendent children would not qualify for services under the state government, acquiring owning property in their own name, entering government run professional institutions and even for entering J&K Legislature. Such violation of fundamental / human rights of the Female subjects of J&K has been regularly brought to the notice of the ruling elite of J&K but the administrative as well as legislative corrections have not been made even after 60 years of having written the constitution of J&K although in the constitution of J&K the authors have provided specific provisions in Section-8 Section-9 of J&K Constitution in that regard for making legitimate corrections / changes where ever felt necessary.
Not only that up to 2002 under the prevailing administrative practices the female permanent resident of J&K was even stripped off her all rights on local property / remaining in government service for her own self as well in case she marries a non- permanent resident of J&K and female unmarried daughters of J&K state subjects (males) were issue permanent resident certificates labelled as ” valid only till marriage” and after marriage fresh PRC was issued where ever applicable.
“Whether the daughter of a permanent resident of State of Jammu & Kashmir losses her status as a permanent resident of the state of Jammu & Kashmir on her marriage with a person, who is not a permanent resident of the State of Jammu & Kashmir ? ” was the question before a constitution bench of the J&K High Court in LPA (sw) No. 27/79 C/w LPA (ow) No. 24/79, State of Jammu & Kashmir Vs. Dr. Susheela Sawhney and Dr. Ravinder Maadan Vs. State of Jammu & Kashmir & anrs and it was on 7 October, 2002 that a Bench: Justice V Jhanji, Justice T Doabia, Justice.M Jan had held. “In view of the majority opinion, we hold that a daughter of a permanent resident marrying a non permanent resident will not lose the status of permanent resident of the state of Jammu and Kashmir”. The question had arisen since the J&K state administration was relying on its faulty understanding of the contents of Note-III appended with notification No. 1L/84 dated 20th April 1927 of pre-1947 days that in a way formed part of the Constitution of J&K in terms of the contents of Section-6 defining the ‘permanent resident of J&K’ taking the status the wife or widow as acquired only from the husband as far as the status as’ state subject’ was concerned whereas Note-III was in fact to deal with the wife or widow who never had this status of “state subject of J&K’ but had acquired the same by entering into a matrimonial alliance with a person who is a state subject where as the wife or widow who is originally a descendent daughter of a State Subject had to be viewed differently in terms of Note-II appended to notification No. 1L/84 dated 20th April 1927 which entitled the descendants of the persons who have clear status of state subject of class I or class II to become state subjects of the same class i.e status as inherited and as acquired. In an illustration to Note II it has been said that, for example if ‘A’ is declared a state subject of class II, his sons and grandsons will also acquire the status of the same Class (II) and not Class I and this qualification had to be taken only as illustrative because the descendant may be male descendant or a female descendant whereas up to October 2002 AD judgement of J&K HC the State had been allowed to take the descendent only as “He” and was hence linking the state subject / permanent resident status only with the ‘male’ child of the state subject / permanent resident of J&K. Hence a son or a daughter born to a state subject of class I of class II shall ipso facto acquires the status of State Subject of Class I or of Class II provided he or she is a citizen of India Hence the court had maintained that a female state subject would not lose her rights as Permanent Resident of J&K / state subject of J&K in case she marries a non state subject.
But as regards the descendants of female permanent resident of J&K married to a non- permanent resident of J&K / non-state subject of J&K even after 2002 AD still the state is carrying on with the understanding that for the purposes of the deciding the descendent of a ‘state subject’ the ‘deciding’ parent to be taken as parent state subject / permanent resident of J&K has to be only the ‘male’ parent and hence still even in 2018 the state subject rights are denied to the children and husband of the female descendent state subject / female permanent resident of J&K in case she marries a non permanent resident of J&K.
To be continued
(* Daya Sagar is a Sr Journalist & a social activist can be reached at [email protected])