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In Re: Mrs. Aga Begum - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Reported in(1971)1MLJ18
AppellantIn Re: Mrs. Aga Begum
Cases ReferredKedar Pandav v. Marain Bikram
Excerpt:
.....to obtain iranian passport, but subject to good behaviour, she will be allowed to stay in india on the basis of her residential permit without declaring her as a stateless person. ultimately the government of india asked the government of madras to warn the petitioner of the consequences if she failed to get herself registered. ultimately she was prosecuted for failure to register herself as an iranian. propounded a definition that for facile comprehension and application it would be difficult to better. i find that the ingredient of 'domicile' under article 5 of the constitution is satisfied. 10. the other test under article 5(a) is satisfied in the case of the petitioner. i consider that the requirement embodied in article 5(b) appears to be satisfied. i further find on the..........the place where a man's home is established.'by domicile,' said lord granworth in 1858, 'we mean home, the permanent home, and if you do not understand your permanent home, i am afraid that no illustration drawn from foreign writers will very much help you to it.' indeed, it may be said that the earlier english judges were content to equate domicile with home in the sense in which the man in the street, untroubled by legal subtleties, would understand that word. just over a hundred years ago, kindersley, v.c. propounded a definition that for facile comprehension and application it would be difficult to better.that place is properly the domicile of a person in which he was voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with.....
Judgment:
ORDER

K.N. Mudaliyar, J.

1. The petitioner Mrs. Aga Begum seeks to revise the order of the VII-Presidency Magistrate, Egmore, Madras, convicting her for violation of Section 14 of the Foreigners Act, 1946 read with paragraph 7 (2) and 7 (3) of the Foreigners Order, 1948.

2. Briefly, the facts proved against her by P.Ws. 1, 2 and 3 are that the petitioner is the daughter of one Mr. Hidayatullah who was a registered Iranian National, his serial number being 1437. Her father was working in the Government Arts College and he died in the year 1962 as an Iranian. The petitioner is his eldest daughter. She was born to him in 1921 in India. She was called upon to get herself registered as a foreigner under Exhibit P-1 dated 29th September, 1961. The petitioner gave a reply Exhibit P-3 requesting her to be treated as of an Indian Origin. In Exhibit P-4 she was intimated that she was the daughter of an Iranian and, therefore, she should get herself registered before 31st October, 1961. The petitioner sent a letter Exhibit P-5 requesting ten days time which was duly granted under Exhibit P-6. On 24th October, ig6i she got herself registered as a foreigner. Exhibit P-7 is her application. Exhibit P-8 is the Part I of the certificate of registration retained in the office and Part III of the same was issued to her. She was permitted to stay in India till 23rd January, 1962, and was permitted to get a passport. Exhibit P-9 is the residential permit. She asked for further grant of extension of stay for six months and that was given. On 19th July, 1963 she was called upon to send an application form duly filled up and that she must equip herself with a valid national passport until she acquires Indian Citizenship. The petitioner received Exhibit P-13, but she did not comply with the instruction. After some correspondence, she ultimately maintained her stand in Exhibit P-17 dated 12th October, 1963, that she was an Indian and, therefore, there was no need for her getting registered as a foreigner. Ultimately, after some correspondence, the Government of India rejected the request of the petitioner saying that she need not be compelled to obtain Iranian passport, but subject to good behaviour, she will be allowed to stay in India on the basis of her residential permit without declaring her as a Stateless person. The petitioner was duly informed of the decision of the Government of India and she was permitted to apply for the grant of extension of the stay in India. The petitioner received the order on 17th May, 1965, but she did not take further action. On 7th November, 1966, Exhibit P-21 was sent to the petitioner from the Regional Registration Office, but it was received back as she left her old address. Another communication was sent by the Government on 2nd August, 1967. But the petitioner did not take any further action in the matter. Ultimately the Government of India asked the Government of Madras to warn the petitioner of the consequences if she failed to get herself registered. The Regional Registration Officer thereupon applied to the State Government for sanction to prosecute the accused-petitioner. Ultimately she was prosecuted for failure to register herself as an Iranian. The Commissioner of Police was authorised by the Government of Madras in Exhibit P-28 to prosecute the petitioner.

3. The petitioner stated during her examination under Section 251(A)(2) of the Code of Criminal Procedure that she was only an Indian National and pleaded 'not guilty' to the charge. She further stated in her examination under Section 342, Criminal Procedure Code, that she was born in India, studied in India, married in India and never went out of India. She examined herself as a witness D.W. 1 in this case. According to her, her father was a Persian and Arabic Lecturer in Government Arts College, Madras. Her father owned a house in No. 31, Mir Bhakshi Ali Street. Her father died in 1962. She received Demand Exhibit D-2 from the Estate Duty-cum-Income-tax Department regarding his assets. She had signed Exhibit P-8 filled up and brought to her for her signature by some officers. She claimed that she never applied for or obtained any foreign passport. She never wanted to go either to Pakistan or to Iran. Her mother is an Indian. The petitioner married an Indian, one Mohammad Hussain.

4. The argument advanced on behalf of the State is that the petitioner being the daughter of an Iranian father is an Iranian National, and, therefore, she should register herself as an Iranian National and that she would be permitted to stay in India by the issue of a residential permit. But the petitioner would contend that she was born in India and had never left India and that, therefore, she cannot be called a foreigner. On these facts, proved on behalf of the prosecution and the petitioner, I am inclined to scrutinise the question that arises for determination in the light of Article 5 of the Constitution of India and the provisions of the Citizenship Act of 1955.

Article 5 of the Constitution. - At the commencement of this Constitution, every person who has his domicile in the territory of India and-

(a) who was born in the territory of India; or

(b) either of whose parents was born in the territory of India; or

(c) who has been ordinarily resident in. the territory of India for not less than five years immediately preceding such commencement, shall be a Citizen of India.

5. Do the facts proved by the petitioner constitute her as a Citizen of India according to Article 5 of the Constitution of India? The petitioner claims that since her birth, she remained and resided in India. She never went out to any country. The question is : Has the petitioner got her domicile in the territory of India? Let us examine the meaning of 'domicile.' 'Domicile' means dwelling place, home; (Law) place of permanent residence, fact of residing; place at which bill of exchange is made payable, according to the Concise Oxford Dictionary of Current English.

6. According to the Shorter Oxford English Dictionary 'Permanent' is the opposite of temporary and means 'lasting or designed to last indefinitely without change; enduring; persistent.'

7. Cheshire observes in Private International Law, page 165 thus:

Since the most important matters that fall within its Province relate to the family, it would seem almost axiomatic that the crucial factor in determining its location should be the place where a man's home is established.

'By domicile,' said Lord Granworth in 1858, 'we mean home, the permanent home, and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers will very much help you to it.' Indeed, it may be said that the earlier English Judges were content to equate domicile with home in the sense in which the man in the street, untroubled by legal subtleties, would understand that word. Just over a hundred years ago, Kindersley, V.C. propounded a definition that for facile comprehension and application it would be difficult to better.

That place is properly the domicile of a person in which he was voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with a present intention of making it his permanent home, unless and until something (which is unexpected or the happening of which is uncertain) shall coccur to induce him to adopt some other permanent home.

This short statement stresses the familiar features of a man's permanent home, if that term is used in its popular sense. It must be the result of a voluntary choice, it must not be transcient, and the mere fact that the propositus is prepared to move to a different country on some future contingency, such as his succession to a family estate, does not render it impermanent. His conjectures as to what he will do if this or that happens are ruled out as irrelevant.

8. In my view, present intention to remain indefinitely in an existing home does not per se satisfy the test of permanence. What must be shown is an intention never to leave.

9. The heart and soul of the matter is whether the petitioner has a positive and absolute intention of making India her permanent home with the further intention of never to leave. I am inclined to hold that she has not merely made India her home and from the evidence on record. I find that she has had no intention to leave India. She was born at Madras. She studied in the Hobart School and the Church Park Convent. She passed Senior Cambridge Examination in this country. She never left India since her birth. She asserts that she is only an Indian citizen. Her father died in 1962. Even subsequent to his death she never went out of India. I find that the ingredient of 'domicile' under Article 5 of the Constitution is satisfied. The prosecution has not placed any material before the Court to support that her 'domicile' in the territory of India is at least doubtful.

10. The other test under Article 5(a) is satisfied in the case of the petitioner. She was born in the territory of India in 1921, and this has not been questioned by the prosecution. She further says that she was born in India (Madras) in 921, by an Indian mother. This averment in document marked as Exhibit P-3 is proved by the prosectuion. It is not suggested to D.W. 1 (the petitioner) in the course of her cross-examination that her mother was not born in the territory of India. I consider that the requirement embodied in Article 5(b) appears to be satisfied. I further find on the basis of the entire evidence on record that Article 5(c) also is satisfied by the petitioner. I have no hesitation in holding that at the commencement of the Constitution the petitioner was a Citizen of India.

11. It is true that under Exhibit P-8 she has been registered as an Iranian. But her case is that Exhibit P-8 was filled up and brought to her for her signatures by some officials. I do not consider that even assuming she signed Exhibit P-8 under the impression of her being an Iranian National, that would not certainly have the effect of obliterating her status as a Citizen of India under Article 5 of the Constitution of India. It is not the case of the prosecution that she ever renounced her Indian Citizenship.

12. The learned Public Prosecutor brought to my notice the true legal position enunciated by the Supreme Court in paragraph 5 of its judgment reported in Abdul Sattar v. State of Gujarat : AIR1965SC810 . Applying the principles of law enunciated in the abovesaid paragraph, I am inclined to hold that the petitioner is an Indian Citizen. The learned Public Prosecutor argued that the onus of proving 'domicile' is on the petitioner and in support of his argument he cited the authority of the judgment of the Supreme Court in Kedar Pandav v. Marain Bikram : [1965]3SCR793 . It may be noticed here that in the course of the cross-examination of P.W. 1, it was suggested that the father of the petitioner was living as an Indian citizen for thirty years. But P.W. 1 was not in a position to refute the suggestion. In the light of this material in the cross-examination of P.W. 1, the learned Public Prosecutor fairly conceded that the petitioner is entitled to the benefit of reasonable doubt. As observed by me earlier, the petitioner did really form a deliberate intention to live in the territory of India and never to leave India. She even asserts that she never wanted to go to Pakistan or Iran. She says that her monther's name is Rabath Sultan and she belongs to Madras. It is not suggested to D.W. 1 (petitioner) that her mother was not born in the territory of India. I am of the view that even the father of the petitioner acquired a domicile of a choice of India by the combination of residence and intention of permanent and indefinite residence in India; he died in India in the year 1962. Therefore, I find that the petitioner has been residing permanently and for an unlimited time in the territory of India with the intention of permanent residence directed exclusively towards India since her birth in 1921.

13. Dicey and Morris in The Conflict of Laws lay down Rule 3(1), Rule 7 and Rule 8:

Rule 3 (1) : A person is, in general domiciled in the country in which he is considered by English Law to have his permanent home;

Rule 7 : Every independent person can acquire a domicile of choice by the combination of residence and intention of permanent or indefinite residence, but not otherwise;

Rule 8 : Any circumstance which is evidence of a person's residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice in that country.

14. I hold the view that the petitioner satisfied these rules in considering the proof of requirements of domicile.

15. I find that there is no satisfactory proof of the contravention of Section 14 of the Foreigners Act, 1946, read with paragraph 7(2) and 7(3) of the Foreigners Order, 1948. The conviction and sentence of the petitioner are quashed. The petitioner is acquitted Fine, if paid, is directed to be refunded to the petitioner.


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