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Habatullah Haji Fazale HussaIn Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtGujarat High Court
Decided On
Case NumberSpecial Criminal Appln. No. 34 of 1963
Judge
Reported inAIR1964Guj128; 1964CriLJ24; (1964)0GLR273
ActsConstitution of India - Articles 5, 6, 7 and 226; Foreigners Act, 1946 - Sections 2 and 3(2)
AppellantHabatullah Haji Fazale Hussain
RespondentThe State
Appellant Advocate I.M. Nanavaty, Adv.
Respondent Advocate A.D. Desai, Asst. Govt. Pleader
DispositionPetition dismissed
Cases ReferredAhmed Abdulrazak Ismail Khandu v. State of Gujarat. In
Excerpt:
constitution - citizenship - articles 5, 6, 7 and 226 of constitution of india and sections 2 and 3 (2) of foreigners act, 1946 - order deporting petitioner from india challenged - petitioner entered country with passport obtained from pakistan - visa granted to him by high commissioner of india in pakistan - travel documents proved petitioner as national of pakistan - petitioner failed to establish that he was domiciled in india under article 5 - no infirmity in order passed by respondent. - - therefore, it is not in dispute that the petitioner satisfied both the conditions (a) and (b) mentioned in article 5 of the constitution of india, and that, therefore, if the petitioner is able to establish that he had, at the relevant time, his domicile in the indian territory, he would.....miabhoy, j.1. this is a petition under article 226 of the constitution of india by one hebatullah haji fazlehussain of rajpipla. it is directed against the order, dated 2nd of august, 1963, passed by shri n.h. shethna, deputy inspector-general of police, c. i. d., gujarat state, ahmedabad, respondent no. 2 herein, under section 3, sub-section (2), clause (c) of the foreigners act, 1946, directing petitioner not to remain in india after the date on which the order is served on him and calling upon him to leave india immediately thereafter. respondent no. 1 is the state of gujarat. petitioner prays that a writ in the nature of mandamus or writ, direction or other order may be issued against the respondents quashing or setting aside the impugned order, dated the and of august, 1963, and that.....
Judgment:

Miabhoy, J.

1. This is a petition under Article 226 of the Constitution of India by one Hebatullah Haji Fazlehussain of Rajpipla. It is directed against the order, dated 2nd of August, 1963, passed by Shri N.H. Shethna, Deputy Inspector-General of Police, C. I. D., Gujarat State, Ahmedabad, respondent No. 2 herein, under Section 3, Sub-section (2), Clause (c) of the Foreigners Act, 1946, directing petitioner not to remain in India after the date on which the order is served on him and calling upon him to leave India immediately thereafter. Respondent No. 1 is the State of Gujarat. Petitioner prays that a writ in the nature of mandamus or writ, direction or other order may be issued against the respondents quashing or setting aside the impugned order, dated the and of August, 1963, and that the second respondent may be restrained from deporting the petitioner from India.

2. The facts may, at first, be shortly stated. Petitioner was born at Baroda. He was educated at Rajpipla High School and studied upto Standard IV. On 13th February, 1948, petitioner went to Karachi with his father's sister, one Mehranigar. He came to India in April, 1949, on a permit which was valid for one month and went back to Karachi in May, 1949, on the expiration of the period of his permit. Petitioner came back to India in 1951 on a temporary permit and again went back to Karachi, on the expiration of two months from the date of his entry into India. Petitioner again came to India in or about August 1955. On this occasion, he came on a Pakistanni passport and an Indian visa. Both the aforesaid documents were obtained by petitioner on his representation that he was a Pakistani national. The petitioner did not depart from India after the expiration of his period of visa and he continued to stay in India thereafter. In 1958, petitioner was prosecuted in the Court of the learned First Class Magistrate, Rajpipla, under Section 14 of the Foreigners Act, 1946, for remaining in India after the period of his visa was over. However, on 3rst of January, 1959, petitioner was acquitted of that charge on the ground that the petitioner was not a foreigner within the meaning of the Foreigners Act, as it stood at the time when the petitioner entered into Indian territory. Petitioner, however, continued to stay in India, even after 31st of March, 1959. On and of August 1963, respondent No. 2, purporting to act under an authority conferred upon him by the Government of India, Ministry of Home Affairs, Notification No. F.1/41/62-F-III, dated 22nd January, 1963, passed the impugned order deporting petitioner from the limits of India. This order was served on petitioner on 5th of August, 1963, and, on the same day, he was arrested and was being removed to the frontier of India. On the 6th of August, 1963, one Gulamhussain, the younger brother of petitioner, filed a petition, bearing Miscellaneous Application No. 247/1963 under Section 401, Criminal Procedure Code, and obtained an interim order from this Court calling upon respondent No. 2 to produce the petitioner in this Court on a certain date. In accordance with that order of the Court, petitioner was produced before this Court on 8th of August, 1963. Petitioner, thereafter, presented the present petition against respondents Nos. 1 and 2.

3. Petitioner claims that he became the citizen of India under Article 5 of the Constitution of India; that he did not migrate to Pakistan during the period 1st of March, 1947 to 26 of January, 1950; that the Central Government has not, under Section 9, Sub-section (2), of the Indian Citizenship Act, 1955, passed any order that petitioner has lost his citizenship and that, in any case, respondent No. 2 had no authority under the Foreigners Act to pass the impugned order.

4. The and respondent has filed an affidavit in reply. The main contention of the 2nd respondent is that petitioner never became the citizen of India under Article 5 inasmuch as he was not domiciled in India on 26th January, 1950 and that, in any case, he had migrated to Pakistan during the aforesaid relevant period -- 1st of March 1947 to 26th January 1950. The 2nd Respondent has also challenged a number of averments of facts made by petitioner in his petition. It is not necessary for us to mention those facts at the present stage. We propose to do so at a later stage when we consider the rival contentions of the parties on the subject of the alleged migration of petitioner from India during the relevant period. The 2nd respondent alleges that under the notification already refered to, he had authority to pass the impugned order.

5. On the aforesaid facts, Mr. Nanavaty made the following submissions in support of the petition: -

(1) that petitioner became an Indian citizen under Article 5 of the Constitution of India;

(2) that he had not migrated, in law, to Pakistan on or about 13th of February, 1948, although he had physically departed from India in the company of his father's sister, and that, therefore, the case of petitioners did not fall within the purview of Article 7 of the Constitution of India;

(3) that petitioner remains a citizen of India under Article 5 of the Constitution inasmuch as no order, depriving him of his citizenship, has been passed by the Central Government under Section 9, Sub-section (2) of the Indian Citizenship Act of 1955; and,

(4) that the order passed by the and respondent on 2nd of August, 1963, was not a valid order inasmuch as the petitioner, even assuming that he was not a citizen of India, was not a national of Pakistan.

6. Now, so far as the first contention is concerned, it is first necessary to turn to Article 5 of the Constitution. That Article enacts that, at the commencement of the Constitution, any person who has his domicile in the territory of India and who was born in the territory of India or either of whose parents was born in the territory of India shall be a citizen of India. There is one more alternative condition mentioned in Article 5, but, it is not necessary to mention it because it is not relied upon by the petitioner. Therefore, in order to become a citizen of India on the date of the commencement of the Constitution, the petitioner is required to prove.

(i) that he was domiciled in India at the commencement of the Constitution, i.e., 26th January, 1950; and

(ii) either that he was born in the territory of India or that either of his parents was born in the Indian territory.

Now, there is no dispute that the petitioner was born at Baroda, and that the latter was, at the relevant time, a part of the Indian territory. There is also an averment in the petition which has not been denied that both the parents of the petitioner were also born in India. Therefore, it is not in dispute that the petitioner satisfied both the conditions (a) and (b) mentioned in Article 5 of the Constitution of India, and that, therefore, if the petitioner is able to establish that he had, at the relevant time, his domicile in the Indian territory, he would acquire the citizenship of India on the 26th of January, 1950. But, there is a dispute between the parties as to whether the petitioner was or was not a domicile (sic) of India on the 26th of January, 1950. The petitioner avers that he had not lost his domicile on the 13th of February, 1948, when he departed from India and went to Karachi in the company of his father's sister. This averment has been denied by the 2nd respondent. That being a question of fact, it is clear that it will not be proper for us to decide that question in the present petition. Therefore, arguments were addressed on the subject of the petitioner having acquired the citizenship of India under the Constitution on the basis that the petitioner had, in fact, departed from India on the 13th of February, 1948, in such a way that normally he would lose his domicile. But, the contention of the petitioner is that, eyen though he might have departed from India on the 13th of February, 1948, in such a way as to normally lose his domicile, he could not have, in law, acquired a new domicile by such departure by virtue of the fact that he was on the 13th of February, 1948, a minor. His further contention is that, during a major part of the relevant period, he continued to be a minor and that, before the date on which the Constitution came into operation, he had not done anything, apart from his aforesaid physical departure, which would deprive him of the domicile of his origin. The petitioner's case is that he was born on the 8th of October, 1931, and that, therefore, he attained majority only on 8th of October. 1949. The 2nd respondent has denied that the petitioner was born on 8th of October, 1931. The 2nd respondent has, in his affidavit, averred that the petitioner was born on 20th December 1930. This averment is not, however, based upon any personal knowledge of the 2nd respondent. The averment is entirely based upon two previous statements of the petitioner himself made in his applications for visas on the 15th of October 1952 and 12th of August 1955. The petitioner has not disputed the fact that he had mentioned in the two applications 20th December 1930 as the date of his birth. However, the petitioner has given an explanation for the above two previous statements. His explanation is that he tried to give by approximation his birth-date by turning his birth-date according to the Muslim calender into the Gregorian calender and, in the attempt, tripped as he did not take into account that the lunar year is shorter by eleven days than the solar year. Normally, he would not have attempted to decide upon the question of the petitioner's birth-date as it is a disputed question of fact. However, as the dispute raised by the 2nd respondent is entirely based upon the petitioner's previous statements, we think that it will not be fair not to decide that question, if the petitioner can establish by extremely reliable evidence that his previous statements were mistaken. Now, on this subject, in our judgment, there is extremely reliable documentary evidence in the case to show that the petitioner was born on 8th October 1931. There is, first of all, an extract from the birth register of the Baroda Municipality wherein it is stated that a male child was born to one Akhtarbibi Faslehussain Nazarhussain. It is true that the name of the petitioner does not appear in this particular extract. However, it is also a fact that no name of any male child has been mentioned in the extract. There is an affidavit of the father of the petitioner that this particular extract relates to the birth of the petitioner. Now, on his part of the case, the definite case which was set up by the 2nd respondent was that the aforesaid birth extract related to the brother of the petitioner and that it did not relate to that of the petitioner. This case of the and respondent has been countered, in our judgment, by an equally reliable evidence. There is an affidavit of the petitioner's father that he had only one more son and that he was younger to the petitioner and that the younger son was born on 18th January 1940. There is nothing on the side of the 2nd respondent to counter this evidence. Having regard to the fact that there is a difference of about eight or nine years between the ages of the two brothers, it is hardly probable that the aforesaid extract could relate to the younger brother. Moreover, the interval of time between the date 20th December 1930 which has been mentioned in the previous statements of the petitioner as the date of his birth and the date of 8th October 1931 is so short that it is hardly probable that another son could have been born to the petitioner's mother within the short period of about nine months from 20th December 1930. In our judgment, therefore, there is extremely good and reliable evidence in the case to show that the petitioner was born on 8th of October 1931 and that the petitioner has shown that his previous statements were mistaken. On this finding, there is no doubt whatsoever that the petitioner was a minor on 13th February 1948 when he departed from India with his father's sister. On the same finding, there is also no doubt whatsoever that the petitioner attained majority on 8th October 1949.

7. On the aforesaid facts, Mr. Nanavaty submitted that, in law, the petitioner could not have acquired a new domicile until 8th October 1949 except by a change in the domicile of his father. It is not necessary for us to discuss this point further because Mr. A.D. Desai, the learned Assistant Government Pleader, appearing on behalf of the respondents, did not dispute this proposition. We may say that so far as this Court is concerned, the same question arose in a case decided by a Division Bench of this Court consisting of Bhagwati, J. and myself in which the judgment was delivered by Bhagwati, J. on 19th March 1963. The case is Special Criminal Appln. No. 742 of 1962 (Guj). In that case, the Division Bench was dealing with the alleged change of domicile of a minor of twelve years. This Court came to the conclusion that, under the circumstances of that particular case, the minor was not of sufficiently mature age to acquire a new domicile of choice. The question, however, as to whether a minor can or cannot change his domicile by his own act did not come to be decided in that case. But for the concession, the question would have arisen for determination in the present case whether a minor in law can or cannot change his domicile by his own voluntary act. It is not disputed that every person has a domicile of origin as a matter of law and that, actually, the domicile of origin of a person is the domicile of his father at the time of his birth. It is also not disputed that the domicile of a person clings to him until he acquires a new domicile by choice or as a matter of law.

It is also not disputed that, ordinarily, the domicile of a minor is linked up with the domicile of his father and that, if the father happens to change his domicile during the minority of the minor, then, the minor will acquire, except in certain circumstances, the new domicile of his father. Therefore, on the facts of the present case, it is not disputed that, when the petitioner was born at Baroda on 6th of October 1931, he acquired the domicile of his father which was his domicile of origin. Having regard to the averments in the petition and the facts of the present case, no dispute arises that the father, of the petitioner was a domicile of India at the time when the petitioner was born. There is therefore, no doubt whatsoever that the petitioner at the time of his birth became the 'domicilee' of India. Even on the assumption that the petitioner departed from India on 13th of February 1948, the petitioner would still retain his domicile of origin because his father had not changed his (father's) domicile during his minority. However, if the departure amounts to change of domicile, then, the question directly arises whether the petitioner could have done so under the law. But, as already stated, it is not necessary for us to consider this question of law as to whether a minor can or cannot acquire a new domicile of choice during his minority. It is not necessary to do so because, as already mentioned, the point is being conceded by Mr. Desai.

8. Now, between the 8th of October 1949 and the 26th of January 1950, there is only an interval of about four and a half months. If the petitioner retained his domicile upto 7th of October 1949, there is no averment to the effect that, during the interval of the aforesaid four months, the petitioner had done any act which would amount to a change of his domicile by any voluntary act on his part. In this particular connection, we may mention that, according to the petitioner, since at least April 1949, he was making attempts for the purpose of returning to India and that every time he went back from India, it was due to the fact that the permits which were issued to him for return were only for short periods and that, therefore, he was obliged to go back. There is one strong piece of evidence which has been adduced by the petitioner which is relevant on the particular subject, and that is that, on the 26th of April 1949, a certificate that he was a domiciled subject of Rajpipla State was obtained on his behalf from the District and Sessions Judge of Rajpipla. Therefore, the question of petitioner's domicile on 26th January 1950 mainly turns on what the petitioner did on or about the 13th of February 1948 and whether that act led to the change of his domicile. However, having regard to the aforesaid concession, it is not disputed that the petitioner's case would fall directly within the purview of Article 5 of the Constitution of India. Thus, the petitioner satisfies both the conditions laid down in that Article and it is clear that he would become a citizen of India.

9. The main contention of the and respondent is that although the case of the petitioner fell directly within the purview of Article 5 of the Constitution of India, the petitioner still did not acquire citizenship of India because his case, directly fell within the purview of Article 7. That Article is as follows:

'Notwithstanding anything in Articles 5 and 6, a person who has, after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India'.

The contention of the petitioner is that, though he departed from India on 13th of February 1948, in law, he did not migrate within the meaning of the aforesaid Article 7. This contention of the petitioner is very seriously disputed by the and respondent. The petitioner avers in his petition that he left with his father's sister on 13th of February 1948 and that he came back to India for one month in April 1949. According to him, in 1949, he made an application to the High Commissioner for India in Pakistan for permanent return to India; that a certificate, dated 26th of April 1949, already referred to, was obtained from the District and Sessions Judge, Rajpipla, on that date; and that he made another application on or about 19th of January 1950 for a similar permit for permanent return from the High. Commissioner for India in Pakistan. He also averred that he made two more applications for a similar purpose in 1950. The petitioner has made the aforesaid averments with a view to prove that, during the aforesaid period, he was making all possible attempts for the purpose of returning to India, and that this was a clear indication of his mind that he did not want to make Pakistan his permanent home and that he did not want to reside in that particular country permanently or for an indefinite period. According to him, he was stuck up in Pakistan for reasons beyond his control. The 2nd respondent has denied that the petitioner had made all the aforesaid applications -- four in number -- to the High Commissioner for India in Pakistan. These are all disputed questions of facts. In our judgment, it would not be proper in the present petition to enter into those particular questions and decide the same. 'Migration' has not been defined in the Constitution of India. That expression has been used in several Articles in Part II entitled 'Citizenship' in which Articles 5 and 7 occur. The word 'migration' also occurs in Article 6 of the Constitution of India. That word came up for judicial interpretation in Smt. Shanno Devi v. Mangal Sain : [1961]1SCR576 , Their Lordships pose the question for decision as follows:

'This brings us to the important question whether 'migrated to the territory of India' means merely 'come to the territory of India' or it means 'come to the territory of India to remain here' or in other words, 'come to the territory of India with the intention of residing here permanently'. Whilst construing the term 'migrated' as used in Article 6, their Lordships made the following observations : 'There can be no doubt that the word 'migrate' taken by itself is capable of the wider construction 'come from one place to another' whether or not with any intention of permanent residence in the latter place. It is beyond controversy that the word 'migrate' is often used in the narrower connotation of 'coming from one place to another with the intention of residing permanently in the latter place'. Webster's dictionary (Second Edition, 1937) gives the following meaning of the word 'migrate':-- 'To go from one place to another; especially, to move from one country, region, or place of abode or sojourn to another, with a view to residence; to move; as the Moors who migrated from Africa to Spain'. The Corpus Juris Secundum published in 1948, gives the same meaning except that it also gives 'to change one's place of residence' as one of the meanings. The word, 'Immigration' which means 'migrate into a country' and its derivatives 'Immigrant and 'Immigration' have received judicial consideration in several Australian and American cases, in connection with prosecutions for contravention of Immigration Laws'.

Thereafter, their Lordships refer to the interpretation of words like 'immigrant' and 'immigration' by the Australian and American Courts. Ultimately, their Lordships held that:

'There can be no doubt that the word 'migrate' may have in some contexts the wider meaning 'come or remove to a place without an intention to reside permanently' and in some context the narrower meaning 'come or remove to a place with the intention of residing there permanently'. The fact that the Constitution makers did not use the words 'with the intention to reside permanently'' in Article 6 is however no reason to think that the wider meaning was intended. In deciding whether the word 'migrate' was used in the wider or the narrower sense, it is necessary to consider carefully the purpose and scheme of this constitutional legislation'.

Then Their Lordships examine the scheme of the Chapter of citizenship in the Constitution, and, after doing so, their Lordships held as follows:

'When the framers of the Constitution used the words 'migrated to the territory of India' they meant 'come to the territory of India with the intention of residing there permanently'.

10. It is true that the word 'migrate' was construed by their Lordships in the aforesaid case with reference to Article 6 of the Constitution. However, in our judgment, the reasoning, which Their Lordships have adopted whilst construing the word 'migrate' in Article 6 applies with equal force whilst construing the same word 'migrate' used in Article 7. In fact, their Lordships have in para 12 of their judgment considered the scheme of Article 7 also for the purpose of construing the word 'migrate' as used in Article 6. Under the circumstances, in our judgment', the same meaning must be given to the word 'migrate' used, in Article 7 as has been given to it in Article 6. Therefore, for the purpose of deciding the question as to whether a person has migrated from the territory of India to Pakistan, the main question which has got to be considered in each case would be whether the person who went to Pakistan did so with the intention of residing there permanently. Probably, the word 'permanently' includes 'an indefinite stay'. Therefore, in order to decide the aforesaid dispute, one has not merely to consider whether the petitioner actually departed from India, but, he has also to consider as to what the intention of the petitioner was at the relevant time. Now, that question requires investigation into not only the actual factum of departure, but also into the mind of the petitioner at the time when he actually departed. This would also require an investigation into the circumstances surrounding his departure, the circumstances under which he stayed in Pakistan, and also the subsequent conduct of the petitioner during the whole of his stay from 13th February 1948 to at least 26th of January 1950. In our judgment, all these facts are complicated questions of facts which will require evidence to be adduced by both the sides and to be judicially considered. Under the circumstances, in our judgment, it will be improper for us to undertake the task of deciding as to whether, on the facts of the present case, the petitioner had or had not migrated to Pakistan during the aforesaid relevant period. It cannot be disputed that the burden of proving that he is a citizen of India is on the petitioner and that this burden will include the burden of proving that his case does not fall within the purview of Article 7. It is not enough for a person merely to prove that he be came the citizen of India under Article 5. If it is alleged that he had migrated, during the relevant time, from India to Pakistan, and if, as in the present case, it is admitted that the person had actually departed from India to Pakistan, during the relevant period, then, the burden will lie upon that person to establish that he had gone to Pakistan in such circumstances that his departure did not amount to migration within the meaning of Article 7. Under the circumstances, in our judgment, we cannot undertake the task of deciding whether the petitioner did or did not migrate from India during the aforesaid relevant period.

11. However, Mr. Nanavaty contends that, just as a minor cannot, in law, change his domicile by a voluntary act, similarly a minor also cannot, in law, migrate from one place to another within the meaning of Article 7 during the minority. According to him, in law, a minor can only migrate with his father and cannot do so by his own act, even though voluntary. Therefore, the question which arises for determination in the present petition is, whether the submission of Mr. Nanavaty is correct that, in law, a minor cannot migrate from one country to another during him minority by his own voluntary act. Now, taking the definition of the word 'migration' as given by the Supreme Court in the case of AIR 1961 SC 58 already referred to, it is quite clear that it is necessary to determine as to what was the animus with which the petitioner departed from India to Pakistan. Thus, if a person departs from one place to another with the intention of residing in that country permanently, he can be said to have migrated. Now, the contention of Mr. Nanavaty is that this intention, in law, cannot be formed by the minor during his minority. This contention of Mr. Nanavaty is based upon certain observations made by their Lordships in Smt. Shanno Deyi's case, AIR 1961 SC 58 wherein they were considering the submission at the bar that there was a difference between the word 'domicile' and the word 'migration' used in the Constitution. The observations on which Mr. Nanavaty relies are to be found at page 63 of the report and they are as follows:

'But while the primary provisions in the Constitution as regards the citizenship for people born at a place now included in India and people whose parents were born, at a place now in India insist on the requirement of intention to reside here permanently by using the word 'domicile', Article 6 which under the scheme of the Constitution deals with what may he called 'secondary citizenship' and says about some persons that they will be deemed to be citizens of India, does not mention 'domicile' as a requirement. Can it be that the Constitution makers thought that, though in the case of persons born in what has now become India or those any of whose parents was born in what is now India as also in the case of person who had been residing here for not less than five years in what is now India, it was necessary to insist on domicile before conferring citizenship, that was not necessary in the case of persons whose parents or any of whose grand-parents had been born in what was formerly India, but is not now India? In our opinion, the Constitution-makers could not have thought so. They were aware that the general rule in almost all the countries of the world was to insist on birth or domicile as an essential prerequisite for citizenship'.

Still further up, their Lordships observe as follows:

'The only explanation of their not expressly mentioning 'domicile' or the 'intention to reside permanently' in Article 6 seems to be that they were confident that, in the scheme of this Constitution, the word 'migration.' could only be interpreted to mean 'come to the country with the intention of residing there permanently'.

Therefore, the argument of Mr. Nanavaty is that, in this decision, Their Lordships have equated the word 'migration' with the word 'domicile'. Thus, Mr. Nanavaty contends that there is no distinction in law between 'migration' and 'domicile'. From these premises, Mr. Nanavaty further contends that just as a minor cannot in law change his domicile by a voluntary act, similarly a minor also, in law, cannot migrate from one place to another except in the same circumstances in which he can acquire a new domicile by reason of the change in the domicile of the person on whose domicile the minor's domicile depends. We have given our best consideration to this argument of Mr. Nanavaty. The argument is entitled to weight because their Lordships have, in the passage last quoted, observed that the term 'domicile' is equivalent to the term 'migration' as used in the Indian Constitution. However, such, finding will be directly opposed to a decision of their Lordships in State of Bihar v. Kumar Amar Singh : [1955]1SCR1259 , which decision is directly on the topic in hand. ' In that case, one lady went to Karachi in July 1948, leaving her husband in India and the question arose for consideration as to whether she had or had not migrated within the meaning of Article 7 of the Constitution. The argument which was urged on her behalf was that, inasmuch as her husband had remained in India, in law, the lady could not be said to have migrated from the territory of India to Pakistan. This contention was directly negatived and their Lordships held that 'On the facts, there could be no doubt that the lady must be held to have migrated from the territory of India after 1-3-1947 and, therefore, even if Article 5 could be said to be applicable on the assumption that her domicile was that of her husband, the facts brought her case under Article 7'.

12. It is true that in Kumar Amar Singh's case, (S) AIR 1955 SC 282 their Lordships were dealing with the migration of a female and not that of a minor. But, in our judgment, that does not make any difference. According to the international law relating to domicile and change of domicile, for all practical purposes, the case of a married woman stands on the same footing as that of a minor. According to that law, both are dependant persons in the sense that their domicile and its change are dependant upon the domicile and its change of another person. The domicile and the change of domicile of a minor are linked up with the domicile or its change of his father or in the absence of the father, some other independent person. Similarly, the domicile or its change of a married woman is dependent upon the domicile or its change of her husband. Therefore, in our judgment, the principle underlying Kumar Amar Singh's case : [1955]1SCR1259 is more apposite to the facts of the present case: than, the observations relied upon by Mr. Nanavaty from the judgment of their Lordships in : [1961]1SCR576 . In our judgment, the ratio underlying Kumar Amar Singh's case : [1955]1SCR1259 negatives the proposition that the concept of migration is the same as the concept of domicile. From the above judgment of their Lordships of the Supreme Court, it is quite clear that the concept of 'change of domicile' is not the same as the concept of 'migration'.

13. It is true that, in a large majority of cases, the concept of migration is more or less the same as the concept of change of domicile. But, this is not so in all cases. In some cases, migration may take place without changing domicile. In this connection, it is useful to quote a few illustrations given in Dicey's Conflict of Laws, Seventh Edition, at pages 98-99, which bring out the true ambit and scope of the concept of 'domicile' and, incidentally, differentiate it from the concept of 'migration'. They are as follows:

(1) D, whose domicile of orgin is Turkish, resides in England without any intention of residing anywhere else. He is domiciled in England.

(2) D, whose domicile of origin is Scottish, goes as a trader to India. He intends to reside there until he has made his fortune and then to return to Scotland., He retains his Scottish domicile.

(3) D, whose domicile of origin is Scottish, comes to England at the age of thirty, to accept an appointment in England. The appointment is for an indefinite period, subject to a retiring age of sixty-five. D intends to reside in England until he reaches the retiring age and then to return to Scotland. He retains his Scottish domicile.

In our judgment, these illustrations bring out the difference between the two concepts of 'change of domicile' and 'migration'. In the case of 'migration', there is only animus manendi -- the intention to remain in a particular country -- but there is no animus revertendi -- the intention to return to the country of domicile. In the case of change of domicile, however, not merely the animus manendi is present, but also the animus revertendi. Therefore, the crucial distinction is that, in the case of migration, a person leaves the country of his permanent home, but that, at the back of his mind, there is always the intention to return to the country of his domicile; whereas, in the case of a change of domicile, the person not only leaves the country of his home but he does so with the intention of never returning back to the country of his domicile. In the latter case, the Intention is to change his civil status, but not so in the former case. In the first case, he does not sever his tie with the country of his domicile but intends to retain it. He leaves the country of his permanent home for some such purpose as following a profession, or for earning a fortune, or for employment in a job, and it does not make any difference even though he may have to stay away for a long or indefinite period from his home to achieve this object. Thus, the two terms 'migration' and 'change of domicile' cannot be equated together. Therefore, in our judgment, the law relating to the change of domicile cannot be linked to the law relating to migration. The fact that, in some respects, the two concepts of change of domicile and migration coincide does not mean that there is one law governing both the concepts. Under the circumstances, the question raised by Mr. Nanavaty must be answered independently of the law governing the change of domicile.

14. Now, on the above subject, we have a decision of our own High Court which is directly on all fours and which is binding on us. In State v. Abdul Sattar Haji Ibrahim : AIR1963Guj226 , the question directly arose as to whether a minor can migrate within the meaning of Article 7. Mr. Justice Raju, delivering the judgment of the Court, made the following observations at page 232:

'A minor may not be able to contract but there is nothing in the Constitution to show that a minor cannot migrate',

The learned Judge, after quoting from : [1955]1SCR1259 proceeded to make the following further observations:

'But he (minor) was in a position to form an intention. He could have committed an offence. He could also have formed an intention of going to Pakistan permanently'.

The result of the above discussion may be summarised as follows:

15. The proposition that the two concepts of migration and change of domicile are identical is not borne out by the observations of the Supreme Court in Shanno Devi's case : [1961]1SCR576 and is opposed to the decision, of Their; Lordships in Kumar Amar Singh's case : [1955]1SCR1259 . That proposition is also, directly opposed to the decision of this Court in Abdul Sattar Haji Ibrahim Patel's case : AIR1963Guj226 and that decision is not inconsistent with the observations in Shanno Devi's case : [1961]1SCR576 . The two concepts of migration and change of domicile, though common, in several respects, are not identical and the law governing the one is not necessarily the same as the law governing the other.

16. The question whether a minor can or cannot, in law, migrate was left open in two cases decided by this Court. One case is reported in Vrajlal Mohanlal v. Dist. Magistrate, Rajkot, J Guj LR 807. Petitioner in that case was only about ten years old. The second case is Special Criminal Appln. No. 748 of 1962, Ahmed Abdulrazak Ismail Khandu v. State of Gujarat. In that case, the minor concerned was about twelve years old. In both these cases, it was decided that the minors could not have formed the requisite intention to migrate. The decisions were based on the fact that the ages of the minors were such that they were incapable of forming the requisite intention to migrate. Therefore, these two cases cannot be regarded as authorities for the proposition for which Mr. Nanavaty contends, nor can they be regarded as inconsistent with : AIR1963Guj226 , which directly negatives Mr. Nanavaty's contention. The proposition that a minor cannot form a legally effective intention is not true in all branches of law. It is well known that a minor, under his personal law, can enter into a binding marriage. Under the criminal law, a minor can form the requisite mens rea on attaining the age of fourteen. Moreover, the law is not uniform as regards the attainment of the age of majority. If a legal guardian, happens to be appointed, the age of minority is pushed forward by three years. Because of these differences, in our judgment, the question whether a person can or cannot form the requisite intention to migrate is not a pure question of law and must depend upon the facts of each case. In our judgment, it cannot be stated as an absolute proposition of law that in no case a minor below the age of majority can form the requisite intention to migrate from one place to another.

17. Having regard to our aforesaid conclusion, petitioner can succeed in proving his citizenship only if he is able to show that he had not migrated from India during the aforesaid period between the 1st of March 1947 and the 26th of January 1950. Now, on that particular question, as we have already pointed out, there is a serious dispute between the parties. A number of facts on which petitioner relies is either not admitted or seriously denied by the 2nd respondent. Two questions are involved on this aspect of the case. The first is whether, at the time when petitioner actually departed from India on 13th February 1948, petitioner had or had not the requisite intention to migrate. It is quite clear that, if the departure was with that requisite intention, then, in that case, petitioner would come within the mischief of Article 7 and any subsequent change of that particular intention would be totally immaterial. On the other hand, even if we were to proceed on the basis that petitioner did not form the requisite intention at the time of his actual departure, and that, during his minority, he had not formed the requisite intention, even then, the question would arise for consideration as to what the intention of petitioner was when he was residing in Karachi from 8th October 1949 till 26th January 1950. If, during this period, petitioner had formed the requisite intention to migrate, even then, petitioner would come within the mischief of Article 7. Now, on the latter subject, petitioner is relying, as already stated, on a number of facts. His main contention appears to be that his subsequent departures after April 1949 were compelled by the fact that his permits for stay were short-termed, though his intention in coming to India, at all material times, was to stay in it permanently. Petitioner is placing strong reliance upon the fact that, on his behalf, a certificate of domicile was obtained from the requisite authority from the Rajpipla State, in which he was formerly residing. Petitioner is also placing reliance upon a number of applications which he alleges he had made before the High Commissioner for India in Pakistan for obtaining a certificate for permanent return. However, the and respondent has denied the allegations that any such applications were made. Petitioner places reliance upon a statement made by an advocate on his behalf in which a reference was made as far back as in 1958 that petitioner had made such applications. However, having regard to the fact that this notice was addressed by the advocate when a dispute had already arisen as to whether petitioner was or was not a foreigner and that the notice was given after petitioner was prosecuted under the Foreigners Act, much reliance cannot be placed upon the averment made in the aforesaid notice. In our judgment, it is quite clear that a number of facts on which petitioner relies in support of his case that he had not migrated from India during the requisite period are disputed questions of facts, the correctness of which will have to be judicially determined.

18. Mr. Nanavaty made a very strong plea that we should ourselves take evidence to decide the above controversial matters. In this connection, he referred to us Rule 12 in Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, which apply to this Court. Under that rule, this Court may allow oral testimony, of witnesses to be taken and, for that purpose, may adjourn the hearing of the rule to some other date. It is no doubt that this power is there and in suitable cases the Court can, if interests of justice so demand, take oral evidence for the purpose of determining any material question of fact arising even under a writ petition. But, in our judgment, having regard to the fact that questions which arise for determination in the case are intricate, complicated and involve evidence to be taken on a number of them, it is not proper to undertake the task. In our judgment, this task should be undertaken by the regular Civil Court in a properly constituted suit.

19. The third point that Mr. Nanavaty urges is that, no decision has been taken by the Central Government under Section 9(2) of the Indian Citizenship Act. However, this question does not survive in view of our conclusion on the question of migration. If petitioner had succeeded in proving that he had become a citizen of India under the Constitution, the question whether his citizenship has or has not been terminated by the Central Government would have been material.

20. The fourth point raised by Mr. Nanavaty has also no substance. It is true that the power delegated to the 2nd respondent by the Central Government is not an all embracing power and that the power is subject to the conditions mentioned in the Notification No. F-1/41/62-F-III, dated the 22nd of January 1963. One of the conditions is that the foreigner must be a national of Pakistan. Mr. Nanavaty's contention is that, even it petitioner fails to establish that he had become a citizen of India under the Constitution, it does not necessarily follow that he is a national of Pakistan. He says that there is no reasonable ground for belief that petitioner is a Pakistani citizen. He says that petitioner may be even a stateless person, or that he may have acquired the citizenship of some other country. He contends that there is no proof, nor any material on the basis of which the 2nd respondent could have held petitioner to be a national of Pakistan. Now, it is true that the 2nd respondent can make the impugned order only if petitioner is a national of Pakistan and if he is not, then, the order cannot be made. But, whether a foreigner is or is not a national of a particular country would, prima-facie, depend upon the description of his nationality in the travel documents on the basis of which he was allowed to enter this country. Petitioner entered this country with a passport obtained from Pakistan and visa granted to him by the High Commissioner for India in Pakistan. In both these documents, petitioner has been described as a national of Pakistan. This description was incorporated in these documents on the basis of certain averments made by petitioner himself. Under the circumstances, in our judgment, the contention of the petitioner that the 2nd respondent could not have treated petitioner as a national of Pakistan cannot be upheld.

21. For the aforesaid reasons, in our judgment, the petition must fail and must be dismissed.Rule discharged. Under the circumstances of thecase, we order that each party shall bear its owncosts.


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