Kavita Suri

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Disowned daughters of Kashmir ultimately get justice…. Not to lose State subjects on marrying outside J&K

Historic landmark Full Bench HC judgment in J&K Women’s State Subject Case
Shabir Shah’s JKDFP, Kashmir Bar Association however opposes the landmark judgement

Life for Tsering Angmo Shano was full of promises. This small town girl from tribal region of Leh (Ladakh) was quite popular in the area and was involved in all major social and political activities. And then she fell in love with Major Didhwal who hailed from Utter Pradesh. Life was a fairy tale come true. Everything was so good until their relationship turned sour and Angmo had to return to her native Ladakh- with her three young children after getting a divorce from her husband.

Today Angmo, the station director of All India Radio, Leh who had inspired an entire generation of Ladakhi women, but seemed to have lost her own battle for the restoration of her basic right of citizenship, has every reason to be happy as in a landmark judgment of far-reaching public importance concerning women-folk of Jammu and Kashmir, the Full Bench of the State High Court, with a majority view,  recently held that a daughter of a permanent resident of J&K, on marrying a non-permanent resident, would not loose the status of permanent residence of the state.. Though its too late for her, but she is relieved as she believes this landmark judgment would help hundreds and thousands of girls from Jammu and Kashmir.

An archaic law sanctified by the Jammu and Kashmir Constitution called as “State Subject Law” which deprived a woman citizen of the state of her basic citizenship rights in case she married a non-state subject, which came Angmo’s way, and was challenged by many women of the state, has finally been scrapped. 

Angmo  is one among the hundreds of women of this strategically important state who had been deprived of the basic right of citizenship by denying them the mandatory State Subject Certificate
(SSC).Women who married a non state subject were barred from owing property or seeking admission to professional courses and employment. 

The State Subject certificate deprived a women citizen of the undivided Jammu and Kashmir state, of her basic citizenship rights in case she married a non-state subject. Most of the women have suffered due to this draconian law. Some had to quite the jobs, some had to drop the idea of serving in the parental state, some were awaiting justice for years until last month when the full bench of the state High Court where this case was pending for the past 14 years, ultimately delivered a landmark judgment saying "a daughter of a permanent resident, marrying a non-permanent resident, will not loose the status of a permanent resident of the state of Jammu and Kashmir". 
 

The importance of this vital issue can well be judged from the fact that this judgment itself is based on 94 pages.

By this landmark judgment, the fate of 12 petitions pending in the Court, was also decided, wherein the State Subject/ Government jobs of married women of the State, have been treated to be canceled in view of their getting married with a person not belonging to the State of J&K. 

The law was first challenged in the Jammu and Kashmir High Court by Dr Rubina Malhotra, grand-daughter of the former Prime Minister of Jammu and Kashmir Bakshi Ghulam Mohammed and daughter-in-law of former Punjab Governor Surinder Nath Malhotra(who died in an air crash). Rubina took up the cudgels on behalf of Kashmiri women when she was debarred from joining post-graduation in medicine on the grounds that she had married an “outsider”. She moved heaven and earth in the early 80’s for this but all her efforts failed. Her fault was that she too, like Angmo Shano, had married Ranjeet Malhotra, a non-state subject. Convinced that the rulers in Srinagar will not scrap anti-women State-Subject laws on their own, Rubina ultimately challenged their constitutional validity in the J&K High Court.

Amarjeet Kaur of Baramullah in Kashmir had also filed a similar case when her relatives tried to deprive her of ancestral property since she had married a Punjabi. Her petition, like several other similar cases, including that of Rubina Malhotra , remained pending in the high court for over 14 years.

However, after a long wait, the women of the state are quite happy,as the gender-discrimination has been removed. However the separatist leader Shabir Shah and Kashmir Bar Association which is not happy with the judgement, are planning to challenge it in the court.

Dr Girija Dhar ,chairperson, State Commission for Women (SCW) feels that this was a long awaited historical judgment which has removed disparity and discrimination to a great extent. Infact, the Commission had made recommendations in this regard many times and had also tried to bring several women pressure groups on a single platform. 

Even on International Women's day on 8 March this year, SCW submitted a memorandum to the then chief minister Dr Farooq Abdullah when the women of the state had formed a human chain to assert their rights. ''It is good that the disparity has finally been removed. Paradoxically it was not only bias between two genders but with in the gender itself. A woman who comes from outside, is entitled to all the benefits after being married to a permanent resident but the one who has been born and brought up here in J&K , used to lose her rights. My perception is that the same law should be there for all the citizens and this judgment has restored the parity,'' adds Dr Dhar.

Dr Nirmal Kamal, professor in Economics department of Jammu University and noted social activist, who champions the cause of their empowerment and had highlighted the issue many times feels elated that the daughters of the state have ultimately got justice. She feels that it was quite humiliating that women of the state were bound to renew their state-subject certificate as testimony to their being married to a state subject only. The “Permanent Resident Certificate” (PRC) of a woman citizen was valid only till marriage- after that she needed to acquire a fresh certificate. Each resident of J&K is supposed to possess the PRC, a mandatory document for acquiring property or getting jobs in the government.

“I want to ask the people like Shabir Shah or the Kashmir Bar Association who have been opposing the judgment that why there was no such bindings on the male state subject?” Argues Professor Kamal. “Dr Abdullah has married a British national, his son Omar has a Sikh wife from Punjab, Dr Karan Singh’s wife Yasho Raje Lakshmi is from Nepal, so are his two daughters in laws. Vikramaditya is married to Madhao Rao Scindia’s daughter and younger Ajatshatru has married a Delhi girl. All of them have acquired state-subjects automatically as their husbands are state subjects,” She further adds that “Valid Till Marriage” was a derogatory inscription on the state subject certificate.

The recent landmark 94-page judgment which says that the concept of domicile has nothing to do with the concept of citizenship and the concept of state subject has favoured daughters of Kashmir fully stating : “Domicile has something to do with the residents but residents and citizenship are not synonymous. State subject status is nearer the concept of citizenship and one can loose this status in the same manner as in the case of citizenship.” It further reads that wife or widow so long as she resides in the state and does not leave the state for a permanent residence outside the state would continue to enjoy the status of state subject.

“The daughter of a permanent resident of the state of Jammu and Kashmir will not loose 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 Jammu and Kashmir”, the full bench. With this, the fate of 12 petitions wherein the state subject/Govt. jobs of married woman of a state subject have been treated to be canceled in view of their getting married outside the state of J&K.

Seema Shekhar Khajuria, leading advocate of J&K High Court and a member of both State Social Welfare Board and Consultative Committee of State Commission for Women describes the judgment as a gigantic step undoing gender bias.

'Though there was no law or provision in J&K constitution or anywhere depriving a permanent resident of his/her this status after marriage. But over the years such position had emerged that the daughter of the soil was stripped of all her rights. She could not vote, contest, acquire family property, get government job, retain government job or seek admission in educational institutions once she married to a person from outside the state. It was virtually like a civil death for her. Ironically as per regulations a male permanent resident, even if he immigrates to a foreign territory, would be considered as a permanent resident as per part-I of notification June 27, 1932 and his descendants born abroad will be considered state subjects for two generations. Here lies the discrimination which has finally been undone with this judgment wherein the rights of female descendants of a permanent resident of the state have been kept intact. And now, the daughters of the soil marrying outside the state will not lose their status of permanent resident,'' she states adding the judgment will certainly have wide repercussions as far as women empowerment is concerned. 

Echoing the similar sentiments a renowned educationist and social worker Prof Rita Jitendra asserts that finally the ice has been broken with the restoration of a separate individual status to the women upgrading them from mere appendages of men as wives and daughters by the judiciary.

''Any sane person, who believes in the concept of human rights, can not oppose the women rights. It is welcome that the women have finally got what have been deprived to them for years. This discriminatory clause had clogged the future of the women. Now they will have a wider choice to decide their future. 

Nari Jagran Manch, a organization which was also fighting for the rights of women who get married outside the state, comes down heavily on JKDFP and Kashmir Bar Association for planning to challenge the landmark judgement.

The Manch Convenor Mrs Sneh Bali believes that it is the chauvinistic attitude of these petty people who are feeling  uncomfortable by this judgement. “Many clergy men from outside J&K have been settled in Kashmir and provided the fake state subjects while the basic citizens (women) are deprived of their rights. Have they every spoken about such fake persons who have settled in Kashmir and are hand in gloves with militants?” Asks Bali who has the full support of organizations like Vishva Hindu Parishad and BJP on the issue.

Though the mainstream political parties are too conscious over the issue and have not reacted to the judgment, the fact remains that the Law certainly gave a gender colouring to the Article itself favouring men only. 
 
 
THE HISTORY OF DRACONIAN STATE SUBJECT LAWS

The concept of the State Subjectship devised by the Dogra rulers has its provisions enumerated in Part III of the J&K Constitution enforced on 26 January 1957. It is based on the State notification No I-L/84 or the State Subject Laws (SSLs) promulgated by Maharaja Hari Singh on 20 April 1927 to appease those advocating the “son of the soil” theory and debar the “ non-state subjects” from acquiring any immovable property in the J&K territories or getting jobs in the state government. Since them, the state subjectship, however, remained all along  a matter of vital importance to the people living in the state, The leadership at the highest level in the country preserved sufficiently this inalienable right by making adequate provisions in the Constitution of India and that of the state of Jammu and Kashmir.

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