5-judge bench may hear Art. 35A plea

Article links J&K women’s property rights to marriage

The Supreme Court on Monday indicated that a five-judge Constitution bench will hear petitions challenging the legality and constitutional validity of Article 35A, which confers a special status on Jammu and Kashmir.

A bench of Justices Dipak Misra and A.M. Khanwilkar gave this indication to counsel for petitioner Charu Wali Khanna, a Kashmiri Pandit woman challenging the Article as unconstitutional.

Counsel Bimal Roy Jad argued that the petitioner who married outside her caste and settled outside Jammu & Kashmir was not entitled to property and even her children did not get any share.

Giving examples of Farooq Abdullah and Omar Abdullah, counsel said though they married women from outside J&K, they are entitled to have property. However, only women of the state are denied this privilege.

“Gender bias is writ large on this provision, which is also violative of the Article 14 of the Constitution,” counsel said. She challenged the notification dated April 20, 1927, issued by Maharaja Bahadur of Kashmir, which takes away the right of a wife or widow otherwise available to them as state subject unless she resides in that state and does not leave it for permanent residence.

The same was given the constitutional sanction by Article 35A of Constitution of India read with Section 6 of the Constitution of J&K.

It is the petitioner’s case that two provisions are violative of Articles 14, 15 and 16 of the Constitution.

When additional solicitorgeneral P.S. Narasimha, appearing for the Centre, pointed out a similar petition filed in 2014 by NGO ‘We the Citizens’ has been referred to a three-judge bench, Justice Misra observed, “Ultimately it will have to go before a fivejudge Constitution bench to decide whether the Article violates basic structure or there is procedural violation.” The bench directed the matter to be tagged with this petition and listed for hearing on August 29.

In July, attorney-general K.K. Venugopal told a bench of CJI J.S. Khehar that it was a “very sensitive” matter and that this would require a “larger debate”.