The Anti – Daughter position in Jammu & Kashmir

Posted on December 02, 2013, No Comments admin

Yesterday Shri Narendra Modi and Shri Rajnath Singh addressed a huge rally in Jammu & Kashmir.
Jammu & Kashmir’s integration with India is an essential part of the ideology of Bhartiya Jana Sangh and now the BJP.
The BJP believes that Dr. Shyama Prasad Mukherjee’s vision of complete integration of Jammu & Kashmir was the correct vision for India.
The Nehruvian vision of a separate status has given rise to aspirations for the pre-1953 status, self-rule and even Azadi. The desire of proponents of these three ideas has weakened the constitutional and political relationship between Jammu & Kashmir and the rest of the country. The journey of separate status has been towards separatism and not towards integration. It would be incorrect for anyone to interpret BJP’s challenge for a debate on this issue as a softening of stand on Article 370.

The Anti daughter position in Jammu & Kashmir –

The State laws in Jammu & Kashmir were consistently interpreted for over five decades to mean that a daughter in Jammu & Kashmir would lose her status as a permanent resident of the State as also special rights and privileges available to her if she married outside the State. This was based on an erroneous belief that a wife followed the domicile of the husband. A large number of women in Jammu & Kashmir questioned the constitutional validity of this provision. A Full Bench of the High Court of Jammu & Kashmir by a judgement dated 7th October, 2002 re-interpreted the law and by a majority judgement held that a daughter marrying outside the State would not lose her status as a permanent resident. The National Conference government which was in power in the State was represented in this case by its Advocate General Mr. MA Goni who vehemently opposed the plea of the daughters.

The judgement records—
“Ld. Advocate General, Mr. MA Goni contended that a female descendent of a permanent resident of the state on marriage to a non-permanent resident of the state would lose the status of a permanent resident of the state and would not be permanent resident of the State as defined under section 6 of the State Constitution. He submitted that by marrying a non-permanent resident, a female descendent of a permanent resident of the State will not only lose the property which she may have acquired in the State before marriage as permanent resident of the state but she would also lose all special rights and privileges like employment in the State Government, right to scholarship or any other such privileges as the government may provide. He further submitted that the status of the wife or the widow depends on the status of the husband and in case she ceases to reside in the state and takes permanent residence outside the state she would lose the status acquired by marriage with a permanent resident of the State.”

This was the categorical position of the government of Shri Omar Abdullah’s party, the National Conference. Dissatisfied with this judgement, the National Conference government filed an SLP in the Supreme Government.
In the year 2003, the PDP Government in alliance with Congress Party was formed in the state. The PDP Government followed an alternative strategy. They withdrew the SLP and introduced ‘The Jammu and Kashmir Resident (Disqualification) Bill 2004’, which attempted to statutorily nullify the progressive majority view taken by the High Court. The Bill was enthusiastically supported by the PDP and the National Conference. It sought to withdraw the status of a permanent resident from a daughter who married outside the State. The Bill was passed by the Legislative Assembly.
Shri Atal Bihari Vajpayee, the then Prime Minister in March 2004, suggested that the State Government should find a solution to this problem. The PDP and the National Conference linked it to the upholding the special status of the State guaranteed under Article 370 of the Constitution.
After being passed by the legislative assembly, this Bill was taken to the Legislative Council. It ran into some trouble with the Chairman of the Legislative Council adjourning the House without voting and referring it back to the Assembly where it again got stuck. Recently, again moves have been made to re-enact the Bill.
In 2010, a PDP member again introduced this Bill as a Private Member’s Bill in the Legislative Council. Competitive statements have been made by leaders of the National Conference that they are committed to bring this Bill. Special status and Kashmiri identity have been pitted against Women’ rights.
Can the Chief Minister Shri Omar Abdullah ignore a dubious track record of his Party on this issue and indulge in discourteous tweets on the subject ?
It must be accepted by one and all that such discriminatory provisions which also compromise on the right to live with dignity have no place in Indian law.

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