PESHAWAR: Peshawar High Court has declared that a married woman is entitled to retain her original domicile after marriage unless she voluntarily chooses to adopt that of her husband.
A bench consisting of Justice Sadiq Ali and Justice Syed Mudasser Ameer struck down paragraph 4 (a) of ‘induction policy for FCPS-II training and second fellowship’ and declared it unconstitutional to the extent that it mandated automatic assumption of the husband’s domicile upon marriage of a female candidate.
The bench gave the significant findings while accepting a petition filed by a female candidate of FCPS-II, Dr Laiba Khan, whose application for fellowship training at Postgraduate Medical Institute was rejected under the impugned policy clause, which provided that upon marriage, a female candidate should assume the domicile of her husband and that her own domicile should thereafter not be considered valid.
Petitioner’s counsel Azeemullah Khan Tahirkheli contended that the said rule deprived his client of the opportunity to pursue higher medical education and violated her fundamental rights.
Bench sets aside FCPS-II policy of automatic assumption of husband’s domicile for women candidates
He stated that the petitioner had chosen to retain her Abbottabad domicile and continued to reside there and her husband, a native of Punjab, had himself applied for domicile in Abbottabad, showing their mutual intent to reside permanently in Khyber Pakhtunkhwa.
The bench directed respondents including federal government and PGMI to amend the policy accordingly and to permit the petitioner to resume her FCPS-II fellowship training from the point where she left off.
In its 12-page detailed judgement authored by Justice Syed Mudasser, the bench has discussed in details different provisions of the Constitutions as well as relevant laws and rules.
The impugned paragraph 4 (a) of the policy states: “Female candidates upon marriage shall assume domicile of her husband meaning after marriage domicile of husband will be considered as domicile of the female candidate (post marriage her own domicile will not be considered as valid).”
The bench ruled: “A woman cannot be denied the right to retain her pre-marriage domicile as that would infringe upon her fundamental right to freedom of movement and choice of residence protected under Article 15 of the Constitution.”
Referring to different constitutional guarantees related to right to life, education and to reside and settle in any part of Pakistan etc the bench ruled: “The impugned clause violates each of these guarantees. It discriminates against married women, denies them equal educational opportunity, and restricts their freedom to reside and serve in their province of choice. It enforces a presumption that a woman’s individuality dissolves upon marriage; a notion alien to the Constitution.”
“The impugned provision leaves no room for choice. It compels a married woman to abandon her own domicile and assume that of her husband; whether she wishes it or not. It presumes that marriage erases individuality. The law does not. The Constitution certainly does not,” the bench maintained.
“A woman’s domicile is not a transferable chattel, nor does it change hands upon marriage. It reflects residence, intention, and choice; all attributes of personhood. To impose an ‘alien domicile’ upon her merely because she married is to deny her individuality. This, the Constitution forbids,” it added.
Furthermore, the bench declared: “A female candidate may marry yet wish to continue her education and career in her native province, where she has lived, studied and intends to reside permanently. If her husband, too, chooses to make that province their home, the state has no business to displace that joint decision.”
“Domicile is a question of intention and residence, not gender or marital status. By extinguishing her choice, the policy does not promote administrative order; it enforces gender subordination. It replaces merit with marital dependency. The Constitution knows no such hierarchy,” the bench observed.
The bench said that section 9 of Succession Act, 1925, provided that the domicile of origin prevailed until a new domicile was acquired.
“It is settled law that matters of policy ordinarily fall within the domain of the executive, the courts will intervene where such policy is tainted with illegality, arbitrariness, or constitutional infirmity,” the bench observed.
“A policy can be struck down if it is ultra vires the parent statute, inconsistent with constitutional provisions, discriminatory, irrational, or founded on extraneous considerations. Likewise, if it violates fundamental rights, offends the principle of equality under Article 25, defeats legitimate expectation, or constitutes a colourable exercise of power, it cannot stand judicial scrutiny,” the bench maintained.
Published in Dawn, November 17th, 2025