PESHAWAR: The Peshawar High Court (PHC) has ordered the Ministry of Interior to decide the issue of citizenship being sought by the Afghan spouse of a Pakistani woman as per the law.
The petition was filed by Zeenat Begum, who married Mohammad Tahir, an Afghan national, a few years ago.
Advocate Saifullah Muhib Kakakhel, the petitioner’s counsel, argued that the ministry had rejected Ms Zeenat’s application for her husband’s citizenship without going through it.
The couple has children who are facing problems as the National Database and Registration Authority (Nadra) did not issue Form-B or birth certificates since their father didn’t have the National Identity Card (NIC), as per the counsel.
Assistant Attorney General Malik Danyal Khan and Nadra’s law officer Shahid Imran Gigyani informed the court that Mr Tahir was not entitled to an NIC unless he obtained the citizenship certificate under section 10(2) of the Pakistan Citizenship Act, 1951, after applying to the federal government through the interior secretary.
However, there is a legal lacuna as the said section allows foreign wives of Pakistani nationals to become citizen, but the same was denied to foreign husbands of Pakistani women.
Advocate Kakakhel contended that Section 10(2) of the Pakistan Citizenship Act, 1951, was “discriminatory” and didn’t treat men and women equally.
He referred to a 2008 judgement of the Federal Shariat Court (FSC), which declared Section 10 of the Citizenship Act unconstitutional and against Islam.
The court found the said provision “repugnant to the injunctions of the Holy Quran and Sunnah” and called it discriminatory on the basis of gender and a violation of articles 2(a) and 25 of the Constitution.
As per Article 203(GG) of the Constitution, the decision of the FSC was binding on high courts and courts subordinate to it, the advocate argued.
The PHC bench comprising Justice Abdul Shakoor and Justice Syed Arshad Ali observed that the petitioners didn’t follow proper procedure by approaching the Ministry of Interior for the citizenship certificate and directly invoked the court’s jurisdiction by filing the petition.
The bench then disposed of the plea and directed the petitioners to approach the ministry.
“[The] Ministry of Interior is expected to decide the matter of the petitioner in respect of the issue raised in the petition, in case the petitioner(s) approached it for the said purpose, at the earliest, strictly in accordance with law,” the bench ordered.
The court ruled that after obtaining the requisite citizenship certificate, Mr Tahir would be entitled to an NIC.
This is not the first time the provision dealing with the citizenship of a foreign spouse has been challenged.
In October 2022, the PHC declared that a Pakistani woman’s Afghan husband was entitled to the Pakistan Origin Card. A two-member bench passed the order on the petition of a Pakistani woman, Sameena Roohi, who had sought citizenship for her Afghan husband, Naseer Mohammad.
In December last year, a US national moved the court seeking orders for the government to grant him nationality for marrying a local woman two years ago.
The petition, filed jointly by the man and his wife, had challenged the Citizenship Act’s provision, which allowed citizenship for foreign wives of Pakistani men but not foreign husbands of Pakistani women.
Published in Dawn, October 15th, 2023
