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Wednesday, July 4th, 2018    Gull Hassan Khan

SC allows govt to decide citizenship of Indian spouse

ISLAMABAD: The Supreme Court on Tuesday asked the interior ministry to hand down a speaking order about the acceptance or rejection of Pakistani citizenship to an Indian Muslim, who had married a Pakistani woman some 14 years ago, and their three children.

Taking up an appeal instituted by the interior ministry against the grant of citizenship on the Lahore High Court’s order, a three-judge SC bench, headed by Chief Justice Mian Saqib Nisar, directed the ministry to hand down a speaking order about the acceptance or rejection of Pakistani citizenship while keeping in view the fundamental rights as enshrined in the Constitution.

The apex court waived the requirement of depositing Rs5 million to get the nationality under the Pakistani Citizenship Act, 1951.

The SC issued the order when Attorney General Khalid Jawed Khan said his opinion that no clog could be put for the grant of citizenship was at variance with the stand taken by the federal government.

Senior counsel Salman Aslam Butt, who assisted the court as amicus curiae, said that in his view denial of citizenship and the requirement of depositing Rs5m in the national kitty were against the fundamental rights.

On May 15, 2016, the LHC had ordered the federal government to grant citizenship to Hassan Asghar Zaidi — husband of Pakistani woman Rukhsana — with a declaration that denying citizenship to Hassan Zaidi under Section 10(2) of the Citizenship Act, 1951 was discriminatory and violation of Article 25 of the Constitution.

Section 10(2) of the Citizenship Act allows a woman of different national to get Pakistani citizenship if she is married to a Pakistani husband. But the same law is absent about the husband of different nationality if married to a Pakistani woman.

The Supreme Court, however, observed that it would separately examine the Pakistani Citizenship Act, 1951 under which a foreigner is required to deposit Rs5m in the national kitty. Wondering if this requirement is a reasonable policy, the chief justice observed how the government could impose such a condition in this peculiar circumstance.

Mr Zaidi entered into wedlock with Ms Rukhsana on Feb 16, 2004 and subsequently applied for the citizenship of Pakistan on the basis of their marriage. The interior ministry asked Mr Zaidi to deposit Rs5m under Section 20 of the Pakistani Citizenship Act, 1951. But instead of depositing the foreign exchange as required by the law, he instituted a writ petition before the high court, seeking an order for the grant of citizenship. During this period, Mr Zaidai fathered two girls, though when he came to Pakistan he also had a minor son. His son has now grown up.

In its appeal, the interior ministry argued that the LHC judgement was not sustainable in the eyes of the law. It further argued that the LHC had no jurisdiction to pass such an order for the grant of nationality.

Under the Pakistani law, it is mandatory to deposit foreign exchange equivalent to Rs5m to process the case for citizenship.

All the legal remedies have not been availed in this case before invoking the jurisdiction of the high court, the appeal argued, adding that granting nationality to a foreign woman married to a Pakistani national could not be treated on a par with a foreigner married to a Pakistani woman.

The appeal argued that the husband of foreign origin after marrying the Pakistani woman and obtaining Pakistani nationality would be free to divorce and move freely in Pakistan.

It further said the high court had not taken into consideration the Pakistan-India relations. The impugned judgement could cause the inflow of Indian male citizens into Pakistan, resulting in ‘threat to the national security’, it said.

The LHC order, the appeal argued, had not correctly appreciated material on record and the impugned judgement was the result of misreading and non-reading of the material on record that resulted in a gross miscarriage of justice.

Published in Dawn, July 4th, 2018

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