KARACHI: The Sindh High Court on Tuesday 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 husbands who possessed nationality of other countries “is a clear discrimination”.

“The concept which now emerged through international jurisprudence is 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 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,” ruled a division bench of the SHC.

The ruling came on five petitions filed by as many women seeking Pakistani citizenship for their foreign/Indian husbands on account of being married to them.

Three women had approached the SHC in 1996, one in 2014 and the last one moved the court in 2021.

SHC allows petitions of five women who sought Pakistani citizenship for their foreign national husbands

Allowing their petitions, a two-judge bench headed by Justice Mohammad 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 had also declared the same provision of law to be violative of the Islamic injunctions relating to gender equality and had asked the legislature to amend the law.

The SHC noted that federal authorities concerned had not given any reason for the classification of men and women to be kept in separate baskets apart from a statement that the law was framed “in the larger national interests and security”.

“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 bench stated in its verdict.

About the “larger national interests and security”, the bench said that “indeed, security is the first consideration in forming any policy or to legislate”.

“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”, it added.

“Seemingly, 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 bench noted.

It also 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 of Pakistan,” it said.

“Surprisingly in the year 1973, by Amendment Act (48 of 1973) our Assembly could only recognise a change in Section 10(2) and that is from ‘Central Government’ to ‘Federal Government’. The other change was in Section 5 which caters for children. That is all they could improve up until 1973; no change thereafter despite directions of courts,” the bench observed.

Published in Dawn, March 6th, 2024