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Saiyad MahiyuddIn @ LyakathussaIn SaiyedhusaeIn Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Judge
Reported in(1976)17GLR1177
AppellantSaiyad MahiyuddIn @ LyakathussaIn Saiyedhusaein
RespondentState of Gujarat and anr.
Cases ReferredKulathil Mammu v. State of Kerala and Ors.
Excerpt:
.....which now from part of pakistan before the enforcement of the constitution of india and thereby migrated from india to territories now forming a part of pakistan. therefore, both the conditions of article 5 of the constitution of india are satisfied. this must be so because a minor is not attributed the capacity to know what is good for him and to make up a mental decision in a rational manner on account of his incapacity arising out of hi immaturity and minority. in fact for children below 12, criminal law recognises the fact that the child cannot have any intention to commit an offence if he has not attained sufficient maturity to judge the nature and consequences of his act inasmuch as he cannot possess the requisite mens rea (see section 83 of the indian penal code). an extension..........case the appellant-plaintiff was only about 12 years old at the material time when he moved from india to a territory now forming a part of pakistan along with his employer. it might have been a different matter if he had moved with his parents. so far as the present case is concerned, it is specious to argue that the appellant had migrated from india to a territory now in pakistan within the meaning of article 7 of the constitution of india. under the circumstances, the appeal must be allowed. the order passed by the learned trial judge holding that the appellant-plaintiff was not a citizen of india on the date of commencement of constitution i.e. on january 26, 1950 must be set aside. a decree must be passed in favour of the appellant-plaintiff holding that the appellant-plaintiff.....
Judgment:

M.P. Thakkar, J.

1. A very interesting question which appears to be res integra has been raised in this First Appeal by the unsuccessful plaintiff whose suit claiming a declaration that he was a Citizen of India and a consequential injunction restraining the respondents (State of Gujarat and Union of India) from deporting him out of the Territories of India has been dismissed by the learned Trial Judge on the ground that during his minority he went to territories which now from part of Pakistan before the enforcement of the Constitution of India and thereby migrated from India to territories now forming a part of Pakistan.

2. The facts are not in dispute. The appellant-plaintiff was born in Gulbarg situated in Hyderabad Deccan in the year 1936. Now, having regard to the provision embodied in Clause (a) of Article 5 of the Constitution of India, a person who is domiciled in the Territory of India and who was born in the Territory of India is a Citizen of India. In the present case the parents of the appellant-plaintiff were domiciled within the territory of India inasmuch as they were the residents of Gulbarg. That fact is not in dispute. Since the pareats were domiciled in India, the appellant-plaintiff being a minor acquired the domicile of birth from his parents and became a Citizen of India. He was admittedly Born in India. Therefore, both the conditions of Article 5 of the Constitution of India are satisfied. The question, however, is whether his claim to citizenship of India is jeopardized by reason of the fact that in 1948 one Abdul Gafur with whom the appellant was working as a domestic servant migrated to a place presently situated within the territories of Pakistan admittedly the appellant-plaintiff was about 12 years old. He did not proceed from India to a place which is now situated in Pakistan along with his parents or near relatives. He proceeded there along with Abdul Gafur with whom he was employed as a domestic servant. On these facts, the question arises whether it could be said that the appellant-plaintiff has migrated within the meaning of Article 7 of the constitution of India. The expression 'migrated' has to be understood in the wider connotation as laid down in Kulathil Mammu v. State of Kerala and Ors. . The Supreme Court has taken the view : 1966CriLJ1217 tint the intention of tin legislature in using the expression 'migrated' in Articles 6 and 7 was to give the wider meaning in the sense of going from one territory to another subject to the qualification that the movement should have been voluntary and should not have been for a specific purpose and for a limited period. Now, in order to fall within the mischief of the expression 'migrated' it will have to be shown that it was a voluntary movement. To say that a person Acted voluntarily is to say that a person had two choices before him and that he intelligently decided to opt for one of the two alternative courses open to him. In other words, it must be the decision of a mind capable of performing the decision-making function. Can a minor who has gone from one place to another be said to have done so voluntarily? Under the Civil Law a minor has no contracting capacity for law does not attribute to him the capacity of making a voluntary decision after considering the pros and cons of the matter. So also under the law of domicile a minor is attributed the domicile of his parents and the domicile of birth of a minor can be altered by the charge of domicile on the part of the parents. A minor, however, cannot himself acquire a domicile of his choice. This must be so because a minor is not attributed the capacity to know what is good for him and to make up a mental decision in a rational manner on account of his incapacity arising out of hi immaturity and minority. The same reasoning will apply when interpreting the expression 'migrated' under Article 7 of the Constitution of India. Can it be said that the minor had the capacity to understand what was good or bad for him and to make a willing, voluntary, choice with the free exercise of his mental faculties when he decided to move from the territory of India to the territory now forming a part of Pakistan? A man cannot be said to have a free choice unless he is in a position to choose between the two courses open to him and to take a correct mental decision with his faculties. For instance a lunatic cannot be said to have any intention to do an Act during the period of his lunacy. In fact for children below 12, Criminal Law recognises the fact that the child cannot have any intention to commit an offence if he has not attained sufficient maturity to Judge the nature and consequences of his Act inasmuch as he cannot possess the requisite mens rea (see Section 83 of the Indian Penal Code). An extension of the same reasoning leaves no room for doubt that a decision to migrate or to move from one place to another cannot be said to be an intelligent decision taken by the free exercise of one's options or with the choice of two courses open before one when the decision is made by a minor to whom the law does not attribute the capacity to make up his mind and to exercise his mental faculties on account of want of maturity. If a child of three years cannot be said to have voluntarily migrated, by the same process of reasoning a child of 12 or so cannot be said to have voluntarily moved from one place to another. In the present case the appellant-plaintiff was only about 12 years old at the material time when he moved from India to a territory now forming a part of Pakistan along with his employer. It might have been a different matter if he had moved with his parents. So far as the present case is concerned, it is specious to argue that the appellant had migrated from India to a territory now in Pakistan within the meaning of Article 7 of the Constitution of India. Under the circumstances, the appeal must be allowed. The order passed by the learned trial judge holding that the appellant-plaintiff was not a citizen of India on the date of commencement of Constitution i.e. On January 26, 1950 must be set aside. A decree must be passed in favour of the appellant-plaintiff holding that the appellant-plaintiff was a citizen of India at the commencement of the Constitution of India on January 26, 1950. It is not the case of the defendant-State in the written statement that the plaintiff had acquired the citizenship of Pakistan after the commencement of the Constitution of India though an issue on this point has been raised. In the present state of pleadings it is not necessary to remand the matter to the trial Court and to stay the suit awaiting the decision of the Central Government which is the exclusive forum for determining such a question under Section 9(2) of the Citizenship Act, 1955. Instead of that it is hereby clarified that if it is the case of the defendant-state that after the commencement of the Constitution of India on January 26, 1950, the appellant-plaintiff has abandoned the Citizenship of India or has acquired the Citizenship of Pakistan or any other country, it will be open to the state to obtain an adjudication on this question from the Central Government under Section 9(2) of the Citizenship Act.

The appeal is, therefore, allowed. It is declared that the appellant-plaintiff was a Citizen of India on the date of the commencement of the Constitution on 26th January 1950. The respondents are restrained from deporting the appellant-plaintiff from out of the territories of India without obtaining a prior adjudication from the Central Government to the effect that the appellant-plaintiff has acquired the citizenship of any other country. Under the circumstances of the case, there will be no order regarding costs.


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