P L D 1997 Supreme Court (AJ&K) 1 (PLP)

Provided that these nationals of the Jammu and Kashmir State shall not be entitled to claim the internal rights granted to Subjects of this State by the laws and rules for the time being in force in this State unless they fulfil the conditions laid down by those laws and rules for the specific purposes mentioned therein. (2) The foreign nationals residing in the State of Jammu and Kashmir shall not acquire the nationality of the Jammu and Kashmir State until after the age of 18 on purchasing immovable property under permission of an Ijazatnama and on obtaining a Rayatnama after ten years' continuous residence in the Jammu and Kashmir State as laid down in Notification No. l ‑L of 1984, dated 20th April, 1927. (3) Certificates of nationality of Jammu and Kashmir State may, on application, be granted by the Minister‑in‑Charge of the Political Department in accordance with the provisions of section 1 of this Notification.

9. In effect this provision lays down that not only the emigrants from the State to a foreign territory but even their descendants born abroad shall have the C status of State Subject after two generations they would lose that status. In Azad Jammu and Kashmir the Definition Notification enjoys Constitutional status. In section 2 of the Azad Jammu and Kashmir Interim Constitution Act the terl: "State Subject" has been defined as follows:‑‑ " 'State Subject' means a person for the time being residing in Azad Jammu and Kashmir or Pakistan who is a 'State Subject' as defined in the late Government of the State of Jammu and Kashmir Notification No. l‑L/84, dated the 20th April, 1927, as amended from time to time." It may be observed that according to definition of "State Subject" it is no longer necessary in order to continuously enjoy the status of State Subject, that a State Subject must continue to reside in Azad Jammu and Kashmir. The definition lays down that a State Subject who resides in Pakistan shall also continue to be a State Subject. This provision seems to have been incorporated in order to cater to the situation which was created at the time of War of Liberation and thereafter, when a large number of State Subjects had to take shelter in Pakistan in order to save themselves from genocide and persecution let loose in the State.

10. In the Definition Notification, as amended subsequently, there was a provision contained in Note III that a wife or window of a State Subject shall also acquire the status of a State Subject but a condition was also attached to acquisition of this status. The condition was that this status was only available to her as long as she resided in the State and did not leave the State for permanent residence outside the State. It follows that the status of State Subject was not permanently granted to a non‑State Subject woman who married a State Subject. If she, after marriage, settled in the State she was to be a State Subject but if she, even after the death of her husband, was to leave the State for permanent residence outside the State she was to lose the status. However, there is a subsequent provision of law which appears to have superseded Note III. In 1980 the Azad Jammu and Kashmir State Subject Act was enacted. In pursuance of section 9 of the Act, Azad Jammu and Kashmir State Subject Rules, 1980 were framed on 8th of July, 1980. Rule 5 is relevant and may be reproduced: "Married woman.‑‑A woman who is a citizen of Pakistan and is married to any State Subject shall be entitled to have the same status as her husband." This provision needs to be analysed along side Note III of the Definition Notification. Under Note III any woman upon her marriage to a State Subject acquires the status enjoyed by husband. Under rule 5 of the State Subject Rules only a woman who was a citizen of Pakistan before being married to a State Subject has been given the right to acquire status as a Subject. Another important aspect of Rule 5 is that it does not provide that such a woman would lose the status as a State Subject if she leaves the State, whether during lifetime of her husband or after his death. Examination of the questions forming part of the Presidential Reference must begin with the observation that in the laws in force in the State there is no provision that if a State Subject woman marries a non‑State Subject she will lose her status. It follows that a woman after her marriage can continue to enjoy that status. The reason for preserving the rights of a woman who marries a non‑State Subject is the peculiar position in which women are placed in the whole world. Although it. is for the municipal law of a country to determine who is or who is not a citizen of a State but it is common feature in most of the countries that marriage is one of the important modes by which a woman can acquire the citizenship of another country. It is significant, however, that vice a versa is not generally in vogue and husbands do not become entitled to acquire the citizenship of their wives, although some countries do give some limited rights to a non‑citizen husband. As noticed earlier, women upon marriage to foreigners are generally entitled to acquire nationality of their foreign husbands but under municipal laws of some countries the acquisition is not automatic and takes place after certain conditions are fulfilled which may consume considerable. time. At the same time in some States the laws provide that woman would lose her citizenship upon marriage to foreigner. It, therefore, happens some times that woman, upon marriage to a foreigner, loses her citizenship but is not conferred citizenship by her husband's country and she is thus rendered stateless. This practical problem was dealt with in the Hague Convention relating to the Conformity of Nationality Laws, 1930 when it was provided in Article 8 that if the national law of the wife "causes her to lose her nationality on marriage with a foreigner this consequence shall be conditional on her acquiring the nationality of the husband". In the British Nationality Act, 1948 a provision has subsequently been made that a woman after marriage to a foreigner retains citizenship until she acquires her husband's nationality and makes a declaration renouncing the citizenship of U.K.

11. With this background we now advert to the questions formulated in the reference: Question No. l : Whether those women who settle outside the State after marrying a non -State Subject continue to enjoy the right to be called State Subject, and whether children of such women can be recognised as State Subject? This question has two parts. Examination of the relevant laws shows that there is no provision in any of the State laws that a woman who marries a non‑State Subject and leaves the State shall forfeit her rights as a Subject. No law provides that a woman ceases to be a Subject if she marries a non‑State Subject. Similarly there is no provision that a Subject would lose his or her F status as such on leaving the State. In fact the notification of 27th of June, 1932/ 14th of Harr, 1989, which has been reproduced above, protects status as Subject even after leaving the State and also confers the status of a Subject to children born out of Jammu and Kashmir. Therefore, the answer to the first part of question No. l is in the affirmative. However, there is another important aspect of the matter, to which we have already briefly referred, which must be noted. Municipal laws of most of the countries give a right to a foreign woman to acquire citizenship or nationality of husband belonging to that State. Our State laws do not provide for dual nationality. Therefore, if a State Subject F woman marries a non‑State Subject and acquires nationality of her husband she would cease to. be a State Subject. However, if she does not take any other nationality there is nothing in law to deprive her from her status as State Subject.

12. The second part of question No. l relates to the status of children of a State Subject woman who leaves the State after marrying a non‑State Subject husband. It is provided in the Notification of 20th of April, 1927 that descendants of the persons who have secured the status of a State Subject will be entitled to become State Subjects. The descendants contemplated by this provision are those children who are born out of the wedlock of the State Subjects. It is not provided therein that if one of the parents is a State Subject the children will also become State Subjects. If nationals of two different countries are married to each other it gives birth to the question of the nationality of their children. On this point the recognised principle is that the nationality of the father is decisive. We may quote from D.W Greig's Book on "International Law", 1970 Edition under the heading 'Acquisition of Nationality' (page 290): "It is reasonable enough rule that State should be entitled to bestow its nationality upon children born of parents who are themselves nationals. In practice, municipal legislation tends to adopt the nationality of the father as decisive ' in the case of a legitimate child (partly at least because marriage does not in all States automatically bestow the husband's nationality on the wife)."

13. Nationality of the father assumes greater importance in Jammu and Kashmir because of the fact that our laws do not allow dual nationality and a child has to be given either the nationality of the father or of the mother Even otherwise we are not aware that a legal provision exists anywhere in the world that children of parents having different nationalities may be given two nationalities. We are also not aware of any law which provides that to such a H situation the child may be given the nationality of the mother rather than the father. We may observe that in Pakistan Citizenship by descent is only through the father. Section 5 of the Pakistan Citizenship Act provides that a person shall be a citizen of Pakistan by descent if his father is a citizen of Pakistan at tile time of his birth. Therefore, the conclusion is that a child would follow the nationality of the father. Thus, answer to second part of question No. l is that it a State Subject woman marries a non‑State Subject man a child born out of the wedlock is not recognised as State Subject whether or not she remains settled in the State or leaves it after marriage. Question No. 2: Whether the husbands of those women who after their marriage with non‑State Subjects continue to reside in Azad Kashmir also acquire the status as State Subjects and whether their children can be recognised as State Subjects?

14. It also consists of two parts. The first part raises the issue whether husbands of those women who after their marriage with non‑State Subjects continue to reside in Azad Kashmir also acquire the status as State Subject. It may be noticed that in this question it is not stated whether the .husbands mentioned in this question also settled in the State or not but, as will be presently seen, it is not significant.

15. The answer to the first part of this question has to be in negative because there is no provision in the State Subject Laws that a non‑State Subject man shall acquire the status of a State Subject upon his marriage with a State Subject woman. The only provision in the laws is that a non‑State Subject woman can acquire this status upon her marriage with a State Subject. Note III of the Definition Notification lays down that wife or widow of State Subject shall be a State Subject as long as she resides in the State and does not leave it for permanent residence outside the State. The provision about married women is continued in rule 5 of the Azad Jammu and Kashmir State Subject Rules, 1980, which has already been reproduced above, lays down that a woman who is citizen of Pakistan and is married to a State Subject shall be entitled to have the same status as of her husband. This provision is only about non‑State Subject woman marrying State Subject man. There is no provision that non‑State Subject man may acquire the status of a State Subject even if he settles in the State. As already analysed a non‑State Subject can acquire the status of a Subject only by going through the process of naturalization provided for in the Definition Notification, namely, by acquiring immovable property under a "Ijazatnama" and subsequently by executing a "Rayatnama" after ten years' continuous residence in the State.

16. In light of the legal provisions noticed above answer to second part of question is also in the negative. Children born out of a wedlock of a non‑State Subject man and a State Subject woman do not acquire the status as State Subject and it makes no difference whether the State Subject mother of those children continues to reside in the State after her marriage. Question No. 3: If immovable property devolves by inheritance on a woman who has left the State after her marriage with a non‑State Subject, how, will she be able to get her share when land in the State cannot be transferred to a non‑State Subject?

17. This question relates to the immovable property which devolves by inheritance on a State Subject woman who has left the State after marriage with a non‑State Subject. The question is as to how she will be able to get her share when the land in the State cannot be transferred to a non‑State Subject. We have already formulated the opinion that a State Subject woman continues to enjoy her status even after her marriage with a non‑State Subject, We have also expresssed the opinion that she continues to enjoy her status as a State Subject even if, after her marriage with a non‑State Subject, she leaves the State unless she adopts any other nationality. Therefore, it is clear that there is no legal hindrance for a woman who has left the State after marriage with a non‑State Subject in getting her share from inheritance, as long as she does not adopt any other nationality. However, if she adopts another nationality she will be ceased to be a State Subject and then a question would arise whether she will be able to get her share which devolves on her by inheritance. The answer to this question lies in the interpretation of the legal provision which bars transfer of land to a non‑State Subject. The ban is contained in section 4 of the Jammu and Kashmir Alienation of Land Act, 1995 Bikirmi (Act No. V of 1995). It runs as follows:‑‑ "

4. Transfer of land in favour of non‑State Subjects prohibited.‑ Transfer of land in favour of any person who is non‑State Subject, is prohibited. Note.‑‑The term 'State Subject' has the same meaning assigned to it in the Judicial Department Notification No. l‑L/84, dated 20th April, 1927."

18. The question which arises is whether "transfer of land" which is prohibited by the provision extracted above includes devolution of land by inheritance or not? Before interpreting the word "transfer" as used in section 4 reproduced above it may be noticed that when the Jammu and Kashmir Alienation of Land Act, 1995 Bikirmi was enacted there already stood enacted a law which provided that questions, inter alia, regarding succession and inheritance shall be governed by Muhammadan Law in cases where the parties are Muslim. This provision was contained in the Sri Pratap Jammu and Kashmir Laws (Consolidation) Act, 1977 Bikirmi (Act No.IV of 1977). The relevant section is section 4 of the Act which may be partly reproduced :‑‑ "

4. Laws in force.‑‑(1) The Laws administered and to be administered by the Civil and Criminal Courts of the State of Jammu and Kashmir are and shall be as follows:‑‑ (a) The Acts for the time being in force in the Jammu and Kashmir State (b) Proclamation and Ordinances made and passed by His Highness (c) The rules having the force of law ... ... ... ... ... ... ... ... ... ... ... ... (d) In questions regarding, succession, inheritance, special property of females, betrothals, marriage, divorce, dower, adaptation, guardianship, minority, bastardy, family relations, wills, legacies, gifts, Waqf, partitions, castes or any religious usage or institution, the rule of decision is and shall be‑‑ the Mohammedan Law in cases where the parties are Mohammedans and the Hindu Law in case where the parties are Hindus, except in so far as such law has been, by this or any other enactment altered or abolished or has been modified by any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience and has not been by this or any other enactment altered or abolished, and has not been declared to be void by competent Authority; (e) ... ..... .... .. ... ... .. . ... ... ... ... ... ... .... (2) In cases not otherwise specially provided for, the Courts shall follow, as far as practicable, the British Indian Law."

19. It follows that in matters of succession and inheritance it is the personal law which was to prevail and not other laws made by the Maharaja. Section 4 of the Land Alienation Act falls under other laws made by Maharaja and, therefore, does not override devolution of property by inheritance. Apart, from that the word "transfer" is an act of the parties or of the law by which title of property is conveyed by one person to another and, although it may include the act of giving property' by will, it does not include devolution of property by inheritance. The term "devolve" has always been found to be particularly appropriate to the passing of an estate from a person dying to a person living. Therefore, section 4 does not lay' down that a non‑State Subject will not get property if it devolves on him by inheritance. It may be pointed out that in section.4 of the Sri Pratap Jammu and Kashmir Laws Consolidation Act, 1977, reproduced earlier, it has been laid down on two places that the justice, equity and good conscience is the test of validity of laws and custom. It cannot, therefore, be accepted that in enacting section 4 ‑of the Land Alienation Act the intention was to deprive a non‑State Subject from inheriting property to which he/she was entitled under the personal law. Thus, answer to question No.3 is that even if a State Subject woman adopts any other nationality and ceases to be a non‑State Subject she will get her share in immovable property if it devolves on her by inheritance. Question No.4. If necessary amendments are made in the State Subject Rules whether it would create any adverse effect on the Kashmir Issue?

20. The answer to question No.4 is that if necessary amendments are made in the State Subject Laws it would not create any effect on Kashmir Issue. it is universally recognised that questions of citizenship and nationality are to be determined by the municipal laws and every State is free to confer or take away rights of citizenship or nationality. If this power is exercised by Legislature of Jammu and Kashmir, it would have no adverse effect on our principled position on the future of the Jammu and Kashmir State. To sum up the answer to four questions forming part of the Presidential Reference are as follows:‑‑ Question No. l: (a) Those women who settle outside the State after marrying a non State Subject continue to enjoy the right to be called State Subject, but they cease to be State Subjects if they acquire any other nationality. (b) Children of the category of the women mentioned above cannot be recognised as State Subjects. Question No.2: (a) The husbands of those women who after their marriage with non‑State Subjects continue to reside in Azad Jammu and Kashmir do not acquire, on the ground of marriage, the status as State Subjects. (b) The children of such women cannot be recognised as State Subjects. Question No. 3: If immovable property devolves on a State Subject woman who has left the State after her marriage with non‑State Subject it will be her lawful property and there is nothing in law to deprive her from her share in inheritance. Question No.4: . If necessary amendments are made in the State Subject Rules it would create no adverse effect on the Kashmir Issue. As a measure of abundant caution we add that the opinions given above, being advisory in nature, do not bind any one and, in particular, do not affect any past and closed transaction. M.B.A./170/SC(AJ&K) Reference answered.