Intro: Till date, 12 years after the High Court judgment, on October 7, 2002, the children of a woman married outside Jammu and Kashmir have not been given a Permanent Resident Certificate. The children of the male permanent residents of the state are, on the other hand, day in and day out, being given these coveted documents.
It was on October 7, 2002, that the Jammu and Kashmir (J&K) High Court gave a verdict in favour of the women of the state that truly empowered them. A three-judge Bench headed by Justice V K Jhanji announced that women of the state marrying outside will continue to be “permanent residents” of the state. The other two judges on the Bench were Justice T S Doabia and Justice Muzaffar Jan.
What did the judgment really mean and how did it empower the women of J&K needs to be studied in detail and understood for its implications, as empowerment of women is often no more than a slogan.
For comprehending the issue better, we will have to first understand what it means to be a “permanent resident” of J&K? We also need to see what it means to be a “non-permanent resident” of J&K?
A “permanent resident” of J&K is someone who ordinarily lives in the state and can buy land or property, can get state government jobs, professional education and state scholarships. In contrast, a “non-permanent resident” of the state is someone who lives in the state but cannot get state government employment and is also barred from buying land or getting state scholarships.
Incidentally, both a “permanent resident” and a “non-permanent resident” of J&K are citizens of India but have unequal rights due to a peculiar situation that exists in the state. And this situation of inequality between two sets of Indian citizens prevail because of Article 35-A of the Constitution of India. But then Article 35-A is an altogether different story to be narrated in some detail elsewhere.
Coming back to the question of a “permanent resident”, we will need to travel back to April 20, 1927, when the then ruler of J&K, Maharaja Hari Singh, sanctioned a definition of the term “State Subject” vide No 1/L 84. This definition categorised “State Subject” into Class I, Class II, Class III and Class IV.
After this definition came into being, the “State Subjects” were issued “State Subject Certificates”. Nowadays, the “State Subject Certificates” or “Permanent Resident Certificates (PRCs)” are a very coveted document for any “permanent resident” of J&K as it confers some additional privileges that are not available to ordinary Indian citizens.
Interestingly, the original State Subject definition sanctioned by the Maharaja does not draw any distinction between male and female permanent residents with both of them being treated equally. However, decades later, post-independence, in a conspiracy against the women, some state officials started writing “Valid Till Marriage” on the PRCs or State Subject Certificates issued to women.
This Valid Till Marriage legend was put only on the PRCs issued to the women while the PRCs issued to men carried no such stamp or words. This started a tale of disempowerment of the women of the state as they were deprived of the State Subject or PRC if they got married outside J&K.
The women of the state marrying in neighbouring states like Himachal Pradesh, Punjab, and Haryana or to some far-off place started suffering from serious disabilities. They were barred from getting into state government service, professional education as also from owning or acquiring immovable property. For all practical purposes, these women of the state who got married outside the state lost their rights as “permanent residents”, lost their PRCs and were made persona non grata.
This state of affairs continued for decades till some of the women deprived in this manner challenged it in the J&K High Court. Their cases lasted for decades with no decision this or that way. For years altogether, there were no hearings in several cases.
It bears mention here that the loss or absence of status as a Permanent Resident of the State of J&K dis-entitles a person not only in respect of acquisition of immovable property in the State, but also in respect of employment in the State and the right to scholarship and such other forms of aid as the State government may provide.
The Bench had to determine whether a woman lost her state subject rights on getting married outside or not. And by a majority verdict, it said: “The daughter of a permanent resident of the State of J&K will not lose status as a permanent resident of the State of Jammu and Kashmir on her marriage with a person, who is not a permanent resident of the State of J&K”.
In arriving at this decision, Justice Jhanji quoted Domicile and Matrimonial Proceedings Act, 1973, besides other things. The Act had laid to the abolition of the wife’s dependent domicile (dependent on her husband’s domicile), as also gave mother’s domicile to the children not living with the father.
The J&K High Court Bench had based its decision on the progressive 1973 law which gave parity to genders in terms of the domicile. Under this 1973 law, a woman was free to choose her domicile as she could retain her earlier domicile (if it was not her husband’s domicile as well) or choose to go with the husband’s domicile.
The dependent domicile of a woman was termed as “the most barbarous relic of a wife’s servitude” in another case before being abolished by the 1973 law.
In his concurring judgment, Justice TS Doabia quoted, among other things, Convention on the Nationality of Married Women ratified by the General Assembly of the United Nations (UN). Articles 1 and 2 of the Convention said:
1. Each Contracting State agrees that neither the celebration nor the dissolution of a marriage between one of its nationals and an alien, nor the change of nationality by the husband during the marriage, shall automatically, affect the nationality of the wife.
2. Each Contracting State agrees that neither the voluntary acquisition of the nationality of another State nor the renunciation of its nationality by one of its nationals shall prevent the retention of the nationality of the wife of such national.
This is in consonance with Article 15 of the Universal Declaration of Human Rights meant to give equal rights to the women worldwide. And the Bench gave women of the state equal rights in terms of their continuation as permanent residents of the State of J&K even after marrying outsiders.
The question we need to ask now is whether the court judgment has actually led to equal rights being exercised by the females of J&K as compared to their male counterparts. And the answer is a resounding no, and in that, successive governments from 2002 onwards, have managed to defeat the high court judgment in day to day implementation.
According to Note II, of the notification 1/L 84 of April 20, 1927, sanctioned by Maharaja Hari Singh: The descendants of the persons who have secured the status of any class of the State Subject will be entitled to become the State Subjects of the same class. For example, if A is declared a State Subject of Class II, his sons and grandsons will ipso facto acquire the status of the same Class (II) and not of Class I.
It is on this basis that children of permanent residents automatically (ipso facto) become permanent residents. The high court had given the right of being permanent residents of the state of J&K to the women marrying outside on October 7, 2002. Doesn’t that mean that their children also become permanent residents ipso facto as per Note II?
As already stated, no child of a woman married outside has been given permanent resident certificate (PRC). This has not been done till date in clear violation of all human right laws and laws pertaining to gender equality prevalent worldwide.
The Constitution of India guarantees gender equality but the women in the State of J&K, despite being given equal rights by the high court, continue to be treated unequally. If this is not a violation of the Constitutional guarantee of equality of genders, what is it?
Sant Kumar Sharma (The writer is a freelance journalist based in Jammu and can be contacted on [email protected])