Per Muhammad Aqil Mirza, J.(a) Constitution of Pakistan (1973) Art. 8, 25
r/w Prospectus of the University of Engineering and Technology, Lahore—Para 43.3—
The legal controversy can be looked from another angle also. The interpretation or the construction of the word father as occurring in para. 43.3. of the Prospectus referred to above if used in restricted sense by not including mother in it, would make it violative of Article 25 of the Constitution. This Article provides as follows:-
“1- All citizens are equal before law and are entitled to equal protection of law.
2- There shall be no discrimination on the basis of sex alone.
3- Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.”
In the context, of the controversy involved in this case, it may be stated that father and mother both are entitled for the care and well-being of their children. The mother is equally to see that her child gets the best possible education, subject to merit. Similarly the child is also entitled to utilize the benefit of the status of either of his parents. There cannot be discrimination in the exercise of these rights on the basis of sex alone. Recognition of father’s domicile status to the exclusion of that of the mother will be a case of clear discrimination based on sex, which is not permitted by Article 25 of the Constitution. Provisions of the Prospectus which are inconsistent with the fundamental right governed by Article 25 (ibid) will have to be declared void by virtue of Article 8 of the Constitution which provides that any law, or any custom or usage having the force of law, in so far as it is inconsistent with the Fundamental Rights to the extent of inconsistency shall be void.[p 602]D
All efforts are to be made to interpret the provisions of law including rules and instructions in such a way that they harmonise with the fundamental rights guaranteed by the Constitution. I have already held that father as occurring in para. 43(b) of the Prospectus includes mother. In view of this interpretation there is no need to declare that the said provisions of the Prospectus are void. The result is that a mother can get his child admitted in an educational institution on her own independent domicile. This can be done even where the wife is living with the husband, if no account of independent factors she has a distinct and separate place of domicile. For example, a male resident of Karachi may have married a lady from the Punjab. The spouses may be having their separate vocations and even owning property separately in their respective Provinces. The spouses in such circumstances may be differently domiciled. The child is entitled to seek admission in any of the two Provinces by getting benefit or the domicile of either of the parents. If he wants to get admission in a college in Punjab he can get the benefit of the domicile of his mother and if he wants to get admission in Sindh he can get the benefit of the domicile of his father.[p. 603]E.
Independent of the facts of the present case, I find that the requirement to produce documentary proof of the factum of registration proof of the factum of registration of the father as a voter cannot be a compulsory condition. It may be pointed out that out that no law provides that if a person is not registered as a voter then his children shall not be considered to be domicile of the place of residence of their father (including mother). If a person is not registered as a voter, then the only consequence under the relevant election laws is that he is deprived of casting his vote and to contest election. There is no law, which disentitles the child or children of such a person who is not registered as a voter to seek admission in Colleges and Universities. Article 4 of the Constitution provides as follows:-
“(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular—
Right to get admission in colleges and higher seats of learning is a valuable right, which is relatable to the life of a citizen. If a person who is otherwise eligible is prevented from receiving higher education, then it will amount to affect quality of his life. Under Article 4 reproduced above no such detrimental action can be taken unless specifically permitted by law. Therefore, in the absence of any law providing that a person who does not get himself registered as a voter in an electoral roll shall have the effect of depriving his/her children to obtain admission in colleges, it cannot be held that insistence on production of proof with regard to the registration of as parent of an applicant as a voter has any validity in law. Clauses (ii) and (iii) of Para.(b) (ibid) which relate to the proof of registration of the father as a voter would be violative of Article 4 the Constitution if these provisions are considered compulsory. Resultantly, I declare that clause (ii) and (iii) of para 43.2(b) are not compulsory. If an applicant produces these documents, well and good, and the same can be considered to determine the bona of residence of the applicant, but if an applicant fails to produce such documents then this application cannot be refused to be entertained or admission refused merely for non-production of these documents. The question of bona fides of residence/domicile of the applicant shall be determined on the basis of other material produced by the applicant. [p. 603, 604]F,G
It may be pointed out that right to knowledge or right to receive education, subject to eligibility and availability of accommodation in educational institutions is a basic right of every citizen. This is the right of the individual who seeks admission in an institution or seat of learning. This is not the right of his parents or anybody else. Therefore, any lapse on the part of a parent should not be allowed to come in the way of the individual desiring to get education, provided will be relevant for determining the domicile of the applicant and for nothing else.[p. 604]H.