Islamabad:
The Supreme Court has ruled that a married woman remains an equal child of her deceased parent like her other children, and to deny her right on the basis of her marriage, it is advisable to refuse her constitutional identity as an equal citizen.
Judge of the Supreme Court Syed Mansoor Ali Shah declared that any presumption that a married woman becomes financially dependent on her husband is not only legally untenable but also unfounded, and contrary to the egalitarian spirit of Islamic law.
A division bench of the Supreme Court, led by Judge Shah, ruled on the petition of a school teacher, Zahida Parveen. Judge Shah wrote a nine pages judgment, which ordered the respondent to restore his appointment with all the advantages of the back.
The petitioner Zahida Parveen was appointed teacher of primary school under the quota of son / daughter who died on March 17, 2023. However, the district education officer (woman), Karak withdrew the appointment of appointment without publishing a deposit.
The petitioner service was terminated due to a “clarification” which stipulated that the benefit of the appointment under the quota of deceased sons was not available for a woman, who had contracted marriage.
“The exclusion of married girls of the compassionate appointment [ ] is declared discriminatory, ultra vires, issued without legal authority and incompatible with the constitutional guarantees of Pakistan and international legal obligations, “tried the court.
“The respondent department is responsible for restoring the appointment of the petitioner with all the rear advantages,” he said. “As constitutional subjects, women have the right to equality not only in the result but also in form, tone and respect with which the law treats them.”
The bench noted that all judicial and administrative authorities brought constitutional responsibility to adopt a gender and neutral language. “The judiciary must give the example, ensuring that the words used to interpret and apply the law do not themselves become instruments of exclusion.”
The judgment said: “It is not a simple formality, but reflects a substantial commitment to the values of dignity, equality and autonomy guaranteed to all citizens under articles 14, 25 and 27 of the Constitution.”
He said that women were independent citizens concerned with full -fledged rights and not because of their relationship with a man, whether father, husband or son. He added that financial independence was not a privilege but a prerequisite for full achievement of citizenship, autonomy and personality.
“A married girl also remains a child of his deceased parent and denying him this right on the basis of marriage is to deny his constitutional identity as an equal citizen. He must mention that the principle of the financial independence of a woman is not only based on the constitutional text but is also firmly integrated into Islamic legal tradition,” said judgment.
“Under Islamic jurisprudence, a woman retains full ownership and control of her property, income and financial affairs, regardless of her matrimonial state. Consequently, any presumption that a married woman becomes financially dependent on her husband is only legally untenable but also religiously infiltrated and contrary to the egalitarian spirit of Islamic law,” the judgment continued.
“This arbitrary classification is therefore not only unreasonable but clearly unconstitutional, offensive the guarantees of equality (article 25), non-discrimination in the public service (article 27) and the right to dignity (article 14).
Consequently, the judgment declared that the challenged clarification and the letter dated April 28, 2023 were likely to be canceled to be ultra -vires, discriminatory and constitutionally repugnant, adding that when the basic order was without legal authority, all the superstructure lifted there automatically.
The court declared that the exclusion of married girls in rule 10 (4) of KHYBER-PAKHTUNKHWA (appointment, promotion and transfer) officials, 1989, was not simply a procedural irregularity, rather than the identity of women and its role in the legal and economic order.
According to the judgment, it was presumed that a woman, on marriage, has renounced her independent legal identity and has become economically dependent on her husband, thus making the rights available for male counterparts located in a similar way.
“Basically, this exclusion constitutes a refusal of the law of a woman to financial and economic independence-of the rights which are not incidental but essential to the exercise of the constitutional personality. The Constitution guarantees the rights to individuals, not to matrimonial units or to prescribed social roles,” he said.
The ordinance also indicated that the justification underlying the disputed clarification represents a constitutionally inadmissible renewal of the discredited doctrine of the coverage of the common law, under which the legal existence of a woman was subsumed in that of her husband.
“Contemporary constitutional jurisprudence has firmly rejected such notions, affirming that marriage does not rule out the legal personality of a woman or limits his rights under the law. Any executive policy or clarification which seeks to reintroduce this logic under the pretext of dependence on adjustment violated the short guarantee of the Court, the Court.
The judgment warned that the exclusion of married girls of the appointment of compassion under rule 10 (4) not only violated the constitutional framework of Pakistan, but also violated its international legal obligations, in particular those of the United Nations Convention on the elimination of all forms of discrimination against women (CEDAW).
Articles 2 and 11 of CEDAW explicitly prohibited discrimination in employment on the basis of sex and matrimonial status, noted the judgment, adding that the CEDAW Committee had repeatedly stressed that the laws and administrative practices rooted in cultural stereotypes or customary standards are incompatible with the duty of the state to secure the substantial equality of sexes.
The Court also expressed its concern about the language used in the judgment attacked, in particular the expression “a married girl becomes a responsibility of her husband”, saying that such a language was not only stereotypes exceeded and legally erroneous, but also deeply patriarchal.
“The use of a biased language by the judicial or administrative bodies does not simply reflect dominant social prejudices, it perpetuates and legitimately the structural discrimination and risks co-organ in the law itself,” warned judgment. “As constitutional subjects, women have the right to equality not only in the result but also in form, tone and respect with which the law treats them.”
In this context, the judgment said, the project of feminist judgments undertaken in several jurisdictions, including Pakistan, had demonstrated how judicial reasoning could be cropped through a feminist lens, applying existing legal principles, while avoiding sexual hypotheses and incorporating inclusive language and affirming equality.
“The main premise is clear: how the law is written is as much as it decides.”
