' Mst. Sharifan-petitioner No,1 is a Pakistani national. She was married to Abdul Rehman petitioner No,2 (an Indian national) on 10-5-1976 in Pakistan and out of this wedlock, petitioners Nos. 3 to 7 were born in India. In this petition, the grant of citizenship to petitioner No,2, an Indian national has been prayed for.
2. Learned counsel for the petitioners has contended that under the Pakistan Citizenship Act, 1951, read with the Rules framed thereunder, if a foreign female is married to a Pakistani citizen, she is entitled to the citizenship of Pakistan whereas if a Pakistani female is married to a foreign national the husband is not granted citizenship of Pakistan. Learned counsel for the petitioners submits that this is a discrimination which is violative of Article 25 of the Constitution of Islamic Republic of Pakistan and as such the provisions of section 10 of the Pakistan Citizenship Act, 1951, are liable to be struck down being repugnant to Article 8 of the Constitution. It is pointed out that one foreign national namely Shah Nawaz from Middle East was granted Pakistani citizenship on the basis of his marriage with a Pakistani lady namely Mst. Ghazala Akhtar. Learned counsel has submitted that while refusing citizenship to petitioner No,2, the principles of natural justice were blatantly violated.
It is further submitted that in the case of infraction of fundamental rights, the superior Courts are under a Constitutional obligation to grant relief to the petitioner. Reliance is placed on the judgment of Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 in support of his contention that the transgression of fundamental rights would compel the High Court to strike down the impugned action more particularly when such a violation amounts to invidious discrimination.
3. The Constitution-makers have left the matter of citizenship to be determined by law. Article 260 of the Constitution of Islamic Republic of Pakistan, 1973, defines the "citizen" to mean a citizen of Pakistan as defined by law. The Pakistan Citizenship Act, 1951, does not give any definition of the "citizen" but defines the ' "alien" to mean a person who is not a citizen of Pakistan. Or a Commonwealth citizen. Petitioner No,2 is, admittedly, an alien within the meaning of the aforesaid Act. By subsection (2) of section 10 of the Act a woman who has been married to a citizen of Pakistan shall be entitled on making application therefor to the Federal Government in the prescribed manner and if she is an alien, on obtaining a certificate of domicile and taking the oath of allegiance in the form set out in the Schedule to the Act is to be registered as a citizen of Pakistan. Undoubtedly, this special concession is available to the alien women and not to the male aliens like the present one. But no discrimination is spelt out in such a case. Article 25 of the Constitution is available to the citizens only and not to the non-citizens. No claim can, therefore, be laid for the grant of citizenship by or on behalf of petitioner No,2 on the basis of Article 25 of the Constitution. Even otherwise, if the Legislature thought fit to grant a concession of law in favour of women that would not be a discriminatory measure. Even Article 25 of the Constitution envisages a preferred position of a woman whereby a special provision for the protection of women can be made by the State.
4. There appears to be a wisdom in the policy of the Legislature in restricting the right of citizenship only to the married women of an alien country. In the American Journal of International Law, Volume 39, p.523, the "citizenship" is defined as under:-- " 'Citizenship' is a legal status determined by the specific rights and duties of which the status is the condition. Citizen of a State (in contradiction to mere subject) is he who has political rights in, the duty of military service for, and diplomatic protection abroad by the State concerned."
5. The citizenship carries' with it rights and obligations and has to be distinguished from nationality.
The word "national" has a broader significance than the later being applicable to all persons owning permanent allegiance to a State, while the word "citizen" usually signifies the possession of specific rights such as a right of suffrage which is not enjoyed by nationals. A national of a State includes all persons who are political members of the State and who owes allegiance to the State.
It has been held by the Supreme Court of United States in the case of United States v. Cruikshank 92 US 542 that "Citizens are the members of a political community to which they belong. They are the people who compose the community and who, in their associated capacity, have established or submitted themselves to the dominion of the Government for promotion of their. General welfare and protection of their individual as well as their collective rights".
6. The provisions of section 10 of the Pakistan Citizenship Act, 1951, appear to have been enacted keeping in view the position of women under the Private International Law. While the domicile of origin is received by operation of law at birth, the domicile of choice is acquired by the actual removal to another country accompanied by his animus manendi, i,e,, the state of mind having formed a fixed intent to make his place of residence or settlement, a permanent one. Section 16 of the Succession Act also lays down that a woman acquires the domicile of her husband by marriage if she does not have the same domicile before marriage. In the "Conflict of Laws" (6th Edn.
At p.44) by Professor A.V. Dicey, the following statement of law appears:- "A minor or a married woman is said to be a dependent person. Neither of these classes has the legal capacity to make a change of domicile, and both of these classes are liable to have it changed by the act of another person, who, in the case of an infant is generally the father and in the case of a married woman is always the husband."
7. In the case of Harvey v. Farnie (1882) 8 Appeal Cases 43, it has been held that a domicile may be acquired by operation of law and a woman by virtue of her marriage acquires the domicile of her husband. In a latter case of Lord Advocate v. Jaffrey (1921) 1 Appeal Cases 146), it has been held that so long as the marriage subsists, the wife is incapable of acquiring a separate domicile of her own, even though her husband has deserted her. In the Re: Wallach (1950) 1 All ER 199), it was held that nothing short of a marriage tie would enable a married woman to acquire a separate domicile. Even on the death of the husband, the widow retains the domicile of her late husband until she changes it by her own act, e.g., by re-marriage. Similar view was taken by the Indian Supreme Court in the case of Smt. Satya v. Teja Singh AIR 1975 Supreme Court 105).
8. The Indian Parliament had also to make similar provisions of law on account of the problem posed by the influx from Pakistan to India by way of migration during the early years of the independence of the country. It is impossible to allow every foreigner to acquire citizenship of Pakistan just by means of a marriage with a Pakistani lady. It will be difficult to control or regulate the flood and influx of foreigners becoming the citizens of this country in indiscriminate manner.
Even if for the sake of argument there is an element of fundamental right of equality in favour of individual such a fundamental right has to yield to the fundamental rights of the nation at large. In the case of Karachi Building Control Authority and another v. Saleem Akhtar Rajput and 2 others 1993 SCMR 1451, it was held that if there was a conflict between the personal right and environment, the personal right must yield in favour of environment and that the application of Article 25 of the Constitution could not be on the basis of any mathematical calculations or scientific exaction and depended upon the facts and circumstances of each case. Our Courts have also held that a married woman has to follow the domicile of her husband. See the cases of Dr. Mrs. Manawar Zaheen v. The Secretary, Punjab Public Service Commission, Lahore and 2 others PLD 1974 Lahore 36 and Muhammad Bibi and 2 others v. Abdul Ghani and 2 others PLD 1975 Karachi 979. Therefore, I do not find any legal or constitutional defect in enacting the provision of section 10 of the Pakistan Citizenship Act, 1951 which provision is a beneficial to women. There is no violation of any provision of the Constitution in the enactment of the aforesaid provision of the Act. This, however, does not mean that I am laying down any rule of thumb which the Legislature cannot suitably alter according to the changed circumstances of the society. The women are no longer to be treated as a property of the male members of the society. The equal participation of the women in the progress of the country in all walks of life is essential to the very survival and progress of a nation.
Therefore, the Legislature will be well within its right if necessary suitable amendments are made in the law of citizenship by the Parliament itself. However, the mere fact that in one case, the citizenship was granted to a male alien would not confer any Constitutional or legal right to grant such a citizenship to all other foreigners without there being any support of a statute or the Constitution.
9. In this view of the matter, I find no merit in this writ petition which is hereby dismissed in limine.