ISLAMABAD - The Supreme Court on Tuesday referred the matter of an Indian national, who married a Pakistani woman, to the Ministry of Interior for deciding the case.

The top court while referring the matter directed the interior ministry to pass a speaking order as to whether the Pakistani citizenship be allowed to an Indian national keeping in view the fundamental rights within two-week.

The top court ruled that till the decision of the ministry, the matter shall remain pending adjudication before this court.

The court also suspended the direction of interior ministry’s letter wherein it had asked the Indian national to submit Rs5 million as citizenship fee.

The court ruled that the question whether deposit of citizenship fee Rs5 million was ultra vires or admissible shall also be decided.

The court further ruled that the home department shall decide about the citizenship of Indian citizen’s son as he has attained the age of majority.

On March 30, the Supreme Court while stopping the deportation of an Indian national had issued notices to Attorney General and Advocate Generals of provinces to assist the court in deciding the law regarding grant of citizenship to foreign national husbands.

The court had also appointed Advocate Salman Aslam Butt as an amicus curie (friend of the court) in the case.

The question of law involved in the case is if a person weds a foreign woman she can become a Pakistani citizen but the law is silent pertaining to grant of citizenship to a foreign man who weds a Pakistani woman.

A three-judge bench headed by Chief Justice Mian Saqib Nisar and comprising Justice Umar Ata Bandial and Justice Ijazul Ahsan took up the interior ministry’s appeal for hearing wherein it challenged the Lahore High Court (LHC) Judgment regarding directions to the ministry to grant the citizenship to Indian National.

“The high court has not taken into consideration the Indo-Pak relations and the judgment will cause inflow of Indian male citizen into Pakistan, creating a threat to the national security,” the interior ministry highlighted the point in its appeal.

During the course of hearing, Deputy Attorney General Sajid Ilyas Bhatti recalling the facts of the case informed the top court that Syed Hassan Asghar was an Indian national presently residing at Multan who had come to Pakistan in 2003 along with his son and mother from Delhi, India.

He informed that Ashghar had applied for the citizenship of Pakistan on the basis of his marriage dated February 16 of 2004 with a widow Rukhsana adding that out of this wedlock two daughters were born.

Bhatti contended that after marriage, Asghar had been applying for extension of visa and interior ministry of Pakistan time and again extended his visa.

However, Bhatti said, the ministry asked Asghar to deposit foreign exchange equivalent to Rs5 million under the law of Pakistan Citizenship Act 1951 to award citizenship.

“Instead of depositing the foreign exchange as required by law, Asghar and his wife Rukhsana filed a writ petition for grant of citizenship which was allowed by the LHC on the basis of Article 25 of the Constitution,” he added.

Bhatti then read or the Section 10 (2) of Citizen Act 1951 stating that a foreign woman belonging to a commonwealth country can be granted citizenship if she weds a Pakistani man.

The Chief Justice questioned that whether the fundamental rights of a person who cannot afford to pay money would be infringed. 

Bhatti submitted before the bench that it was mandatory to deposit foreign exchange equivalent to Rs5 million under Section 20 of Citizenship Act 1951 to process the case for Citizenship Certificate.

The CJ observed that as to how can foreign exchange could be tied up with nationality. “Under what authority of law this letter [of the ministry for depositing Rs5 million] is issued,” the CJ questioned.

Attorney General for Pakistan Jawed Khan submitted that he disagreed with the view of federal government in this regard.

The CJ observed that the bench was going to send the matter to the interior ministry to hear Asghar without money and for passing a speaking order keeping in view the fundamental rights so that the ministry’s reply makes the matter clearer.

The appeal of the ministry stated that the high court could only refer the matter to the concerned ministry but it cannot pass a judgment itself, adding the judgment of LHC was against law and facts of the case were not sustainable in the eyes of law.

It further added that LHC had no jurisdiction and cannot pass an order to grant citizenship. “All the legal remedies have not been availed before invoking the constitutional jurisdiction of the high court,” it stated, adding: “Granting citizenship to a foreigner woman married a Pakistani national cannot be treated at par with foreigner man who has married a Pakistani national woman and cannot be said discriminatory and is not in violation of Article 25 of the Constitution.”

The interior ministry also stated that a foreign origin husband after marrying a Pakistani woman and obtaining Pakistani nationality would be free to divorce and can move freely in Pakistan.

In 2016, LHC‘s Justice Ali Baqar Najafi in his judgment had observed that right of a woman to marry of her own choice is the basic human right and to acknowledge this right no discrimination is to be observed against Article 25 of the Constitution.

He further had observed that under Article 232 (2) of Beijing Declaration of 1995, the governments were required to review national laws, including customary laws and legal practices in the areas of family, civil, penal, labour, or commercial law to ensure the implementation of the principles and procedure of all relevant international human rights by means of a national legislation, revoke any remaining laws for discrimination on the basis of sex and removing gender bias in the administration of justice.