SC to consider plea on property rights in J&K

The Supreme Court today agreed to hear a plea by a Jammu and Kashmir woman challenging certain provisions of the Constitution which denied property right to a woman who marries a person from outside the state.

The provision which makes such woman from state lose property right also applies to her son the right to acquire immovable property.

A bench comprising justices Dipak Misra and A M Khanwilkar directed Additional Solicitor General P S Narasimha, appearing for the Centre, to verify whether this matter involved a similar issue in which the chief justice has referred the case to a larger bench.

The bench was referring to a July 17 order passed by a bench headed by the Chief Justice J S Khehar which has referred to the larger bench of three judges, the issue of challenge to Article 35 A of the Constitution, dealing with special rights and privileges to the citizens of the Jammu and Kashmir.
The top court today directed the counsel appearing for the petitioner to serve the copies of the petition to the Centre and other parties in the case and posted the matter for hearing to August 14.

The apex court was hearing a plea filed by one Dr Charu Wali Khanna challenging Article 35 A of the Constitution and Section 6 of the Jammu and Kashmir Constitution which dealt with "permanent residents" of the state.

Article 35A, added to the Constitution by a Presidential Order in 1954, accords special rights and privileges to the citizens of the Jammu and Kashmir, and empower the state's legislature to frame any law without attracting a challenge on grounds of violating the Right to Equality of people from other states or any other right under the Indian Constitution.

"Section 6 of the Jammu and Kashmir Constitution restricts the basic right of women to marry a man of their choice by not giving the heirs any right to property if the woman marries a man not holding the Permanent Resident Certificate.

"Her children are denied a permanent resident certificate thereby considering them illegitimate -- not given any right to such a woman's property even if she is a permanent resident of Jammu and Kashmir," the plea, filed through advocate Bimal Roy Jad, said.

According to the petitioner, as per the provisions if a woman marries a person outside Jammu and Kashmir then she loses property rights as well as employment opportunities in the state.

While Jammu and Kashmir's Non-Permanent Resident Certificate holders can vote in Lok Sabha elections, the same individual is barred to vote in local elections in the state.

"The petition challenges blatant gender discrimination in the state of Jammu and Kashmir, violative of fundamental Right of Equality as enshrined in the Constitution of India.

"The petitioner being a Kashmiri Pandit woman by ancestry desires to build a home in Jammu and Kashmir in order to rediscover her roots but due to the peculiar discriminatory laws is unable to purchase property in the state being a non- permanent resident and further married out of caste," it said.

"Despite being a Kashmiri Pandit by origin, the state does not recognise the petitioner as a citizen. Further in total violation of the cherished constitutional ideal of gender equality, the women of Jammu and Kashmir do not have equalrights as men when it comes to citizenship rights for spouses and their children," the petition said.

In a related matter filed by Delhi-based NGO 'We The Citizens' challenging Article 35A of the Constitution, a bench headed by the Chief Justice had referred the case to a larger bench.