(1) This application under Article 226 of the Indian Constitution is filed for issue of certain writs against the Stats Government, respondent No. 1, and the Union Government, respondent No. 2, directing them not to order the petitioner to leave India against her wish.
(2) Petitioner Karimun Nisa was born and brought up at Nagpur and her parents are citizens of India. She was married to Abdul Rahim who elected to be a citizen of Pakistan and went to Quetta on 28-12-1947. The petitioner went with him to Pakistan and remained there till, after the death of her husband, she returned to India [(Nagpur) on 17-12-1952 on a Pakistan passport No. 079685, dated Karachi, 21-11-1952, with a category 'C Indian visa No. 4192, dated 8-12-1952, granted by the High Commissioner for India in Pakistan.
It is her case that she did not intend to leave India permanently and never lost her citizenship of tills Country. At any rate her domicile of origin, viz., India, was revived when she came back to this country and she is entitled to remain here at Nagpur according to her will.
(3) The visa with which she came to India was valid only for 45 days. As it was to expire on 30-1-1953, she made an application to the State Government on 22-1-1953 for extension of her stay in this Country for 45 days. An extension of 15 days was granted to her, which expired on 14-2-1953. In the meantime she made an application to the High Commissioner for India in Pakistan for grant of a permit for permanent return to India, which was received in his office on 17-2-1953.
Prior to this she had sent an application to the Secretary, Foreign Affairs, to the Government Of India, through the State Government for being admitted to the rights of citizenship of India. These applications appear to be still under consideration.
(4) Petitioner alleges that along with the application addressed to the High Commissioner for India in Pakistan for a permit for permanent return to India, she had made another application to him, through the State Government, for extension of her stay in India until her application for a permit for permanent return to India was decided.
According to the State Government, the application received by it was not for extension of the petitioner's stay in India but for a permit for permanent return to India, which, under the rules, should have been made to the High Commissioner for India in Pakistan directly. This application was, therefore, returned to the petitioner by the Deputy Commissioner, Nagpur, vide his Memorandum No. 23-B/ADM, dated 21-2-1953.
Under this Memorandum the Deputy Commissioner, Nagpur, conveyed to the petitioner sanction of the State Government to a further extension of her stay in India for a period of 15 days, that is from 15-2-1953 to 1-3-1953, to enable her to return to Pakistan. This extension was granted on the petitioner's application to the State Government, dated 11-2-1953, for extension of her stay in India by 45 days,
(5) According to the petitioner, she received the Deputy Commissioner's memorandum on 26-2-1053 when there was no time left for her to return to Pakistan before 1-3-1953. She, therefore, made the present application on 28-2-1953 so that she might not be prosecuted for overstaying in India without lawful authority.
Her contention is two-fold:
(1) That she is a citizen of India, or, at any rate, has acquired the right of citizenship since her return to this country, and. is consequently entitled to remain in India; and
(2) That at any rate the State Government should have forwarded her application to the High Commissioner for India in Pakistan and should have allowed her time for stay in India until the necessary orders on her application were passed.
She accordingly prays that the State Government and the Union Government be prohibited from ordering her to leave India against her wish and the State Government should be directed to forward her application to the High Commissioner For India In Pakistan for extending her stay in this country until she is granted a permit for permanent return to India.
(6) The main contention of the respondents is that the petitioner is a citizen of Pakistan and not of India, and, at any rate, as she came to India on a Pakistan passport with an Indian visa, she has no right to remain in this country after the expiry of the period for which the visa was granted or extended.
(7) The question of 'citizenship' is dealt with in Part II of the Constitution in Articles 5 to 10. Article 5 speaks of 'domicile' in this connection. Dicey has dealt with the question of domicile in Chapter 2 of his book Conflict of Laws. Edn. 6. The term 'domicile' is defined in Rule 1 on page 77 of the book as 'the country which is considered by English law to be his permanent home'.
On page 78 he defines the term 'home' thus:
A person's home is that country, either
(i) in which he, in fact, resides with the intention of residence (animus mahendi), or (ii) in which, having so resided, ho continues actually to reside, though no longer retaining the intention of residence (animus manendi),
or (ii) with regard to which, having so resided there, he retains the intention of residence (animus manendi), though he in fact no longer resides there.
It was contended that instant case is covered by Clause (iii) above, for although the petitioner had to leave India because her husband opted for Pakistan, she never intended personally to make Pakistan her home and anticipated early return to this country. Reliance was, in this connection, placed on - 'Moorhouse v. Lord', (1863) 10 HLC 272 (A), in which it has been held that in order to lose a domicile, a man must intend, 'quatenus in illo exuere patriam'.
(8) The above applies to the case of a person I who can exercise an independent volition so as I to lose or acquire domicile. It is well settled that In the case of a dependant his domicile
Is the same as, and changes (if at all) with, the domicile of the person on whom he is, as regards his domicile, legally dependent.' (See Rule 9 of Dicey, page 101).
The domicile of a legitimate infant is determined by, and changes with, that of his father (sub-rule 1), while that of a married woman is the same as, and changes with, that of her husband (sub-rule 2). Rule 10 postulates that a domicile cannot be acquired by a dependent person through his own act. There is, therefore, no doubt that the petitioner lost her domicile in India when she left with her husband for Pakistan. The case of her minor children is no better.
(9) Rule 11 enunciates the law that
the last domicile which a person receives while he is a dependent person continues, on his becoming an independent person, unchanged until it is changed by his own act.
Sub-rules 1 and 2 lay down that
a person on attaining his majority retains the last domicile which he had during his infancy until he changes it
and that 'a widow retains her late husband's last domicile until she changes it'. While, therefore, the petitioner could change her own domicile after she became a widow, she cannot change that of her minor children. Clause (2) of Sub-rule 1,|; Rule 9, which provides for the change of a minor's domicile with that of his mother, deals with the case of an Illegitimate infant and not with that of legitimate children such as those of the petitioner.
(10) While the petitioner is at liberty to select a domicile of her choice after her husband's death, she cannot force her entry into any country or reside there against its laws. The instant case-is governed by Indian Passport Rules, 1950, framed Under Section 3 of the Indian Passport Act, 1920 (34 of k 1920).
Prior to the changes introduced by Notification No. S. R. O. 1712, dated 14-10-1952, published in the Extraordinary Gazette of India, dated 14-10-1952, in Part II of Section 3, persons domiciled in Pakistan proceeding from Pakistan, were, under Rule 4(1) (e), exempt from the provisions of Rule 31 which is reproduced below:
3 Save as provided in Rule 4, no person, proceeding from any place outside India, shall enter, or attempt to enter, India by water, land or air unless he is in possession of a valid passport conforming to the conditions prescribed in Rule 5.
Since 14-10-1952, Rule 4 (1) (e) is amended as under:
4 (1) The following classes of persons shall b& exempted from the provisions of Rule 3:
X X X X(e) Persons domiciled in Pakistan proceeding from Pakistan who are in possession of migration certificates duly issued by an India diplomatic mission in Pakistan.
The petitioner was not in possession of the-necessary migration certificates, and, therefore, her entry into India was governed by Rule 3. Rule 5, as amended by Notification No. S. R. O. 1712, dated 14-10-1952, prescribes the conditions of a valid passport. The petitioner was given the passport with a single journey visa, under Clause (iv-A), Sub-Clause (c) of Rule 5. Her stay in India, under the visa, was limited to 45 days and was terminable on 30-1-1953. This period was later extended upto 1-3-1953 after which her stay in India became unlawful and liable to be punished, under Rule 6 (a). This result cannot be avoided even when the petitioner intends to make India her permanent domicile, unless she can succeed in showing that her case is covered by any of the Articles 5 to 10 of the Constitution, entitling.] her to the right of citizenship of this country.
(11) The case is not covered by Article 5 of the-Constitution as even though the petitioner and| her parents were born in the territory of India, she did not have her domicile in this country on the commencement of the Const' tution. Article 6, Is also not applicable as the petitioner has not been registered as a citizen of India for which purpose she did not, as required by Clause (b) (ii) of the Article which governs the case, make an application to the Government of India before the 'commencement of the Constitution.
As regards Article 7, it was contended that as the petitioner did not migrate to Pakistan in the sense that she intended to make that country her permanent home, she retains her citizenship of this country. This Article, however, is applicable to a person who migrates to Pakistan, in whose case his citizenship is not affected only if he comes back to India under a permit of resettlement or permanent return. This Article also is not, therefore, applicable to this case, if the petitioner's contention be true.
Likewise Article 8 is not applicable as the petitioner was not residing in any country outside India as defined in Section 311 (1) of the Government of India Act, 1935, which included the territory now comprised in Pakistan. Article 9 is a disabling provision and Article 10 cannot be called in aid as the petitioner cannot be deemed to be a citizen of India under any of the foregoing provisions.
(12) We regret, therefore, that we cannot help the petitioner. We can only emphasise for the consideration of the authorities concerned that this is a hard and unfortunate case where a young and helpless woman is suffering for the act of another and deserves to be treated with that sympathy which is characteristic of the best traditions of Indian chivalry. This country has never been known to refuse an asylum to any person who, driven by circumstances, supplicated her protection. The case of a helpless widow, ho has young children to maintain and cannot live an independent existence without the support of her relatives in India, deserves all the greater consideration.
(13) The application is dismissed bub, in the circumstances of the case, without costs. The outstanding amount of the security be returned to the petitioner.