JUDGMENT HEGDE, J. After obtaining special leave from this Court the Union of India has come up in appeal against the order of the Allahabad High Court directing the release of the respondent. The undisputed facts of the case are these : The respondent, his parents and his ancestors were citizens of India. The respondent was born in Fatehpur, district in U P. He had his schooling in India. His father went away to Pakistan with a woman of District Fatehpur leaving behind the respondent, his brothers, sisters and mother in their native place Jahanabad in District Fatehpur. The respondent has been permanently residing at Jahanabad. He is a registered Homeopath Medical Practioner practicing in his native place. He owns and cultivates lands. He is enrolled as an elector in his home town. He was elected as the Chairman of the Town Area Committee in 1964. He was arrested and detained on October 13, 1965 under the foreigners Internment order as a Pakistani national staying in India without necessary permission. He challenged his detention before the High Court under s. 491, Criminal Procedure Code. His contention is that he was never a Pakistani national; he was an Indian citizen by birth and he continues to be an Indian citizen even now. The only ground put forward on behalf of the Union of India in justification of the arrest and detention of the respondent is that his father migrated to Pakistan in 1948; at that time the respondent was a minor and hence in accordance with private international law the respondent must be deemed to have migrated to Pakistan along with his father as his nationality depends on the nationality of his father; hence he must be deemed to be a foreigner in this country staying without the required permission of the Government. On the material on record two questions arise for decision viz. (1) Is it established that the father of the respondent had migrated to Pakistan in 1948 when the respondent was a minor and (2) Assuming that he had migrated to Pakistan in 1948 did the respondent cease to be a citizen of Indian because of that fact ? The High Court has not answered the first question. (1) Is it established that the father of the respondent had migrated to Pakistan in 1948 when the respondent was a minor and (2) Assuming that he had migrated to Pakistan in 1948 did the respondent cease to be a citizen of Indian because of that fact ? The High Court has not answered the first question. It came to the conclusion that on the facts and circumstances of this case it is not possible to hold that merely because the father of the respondent migrated to Pakistan in 1948 the respondent cannot be held to have ceased to be a citizen of India. In support of the conclusion the High Court relied on a passage Private International Law by Cheshire. We have not thought it necessary to pronounce on the second of the two questions formulated above as in our opinion there is no satisfactory proof to show that the father of the respondent had lost his domicile of origin during the minority of the respondent. The only fact admitted by the respondent in his petition is that his father went to Pakistan.From his petition we do ot get the year in which he went to Pakistan: but in the affidavit filed by Syed Sabbir Hussain, the pairokar of the respondent on November 12, 1965, it is stated that the respondent s father went away to Pakistan in 1952. According to the documents produced in the case by 1952 the respondent had become a major. In response to the Rule Nisi issued by the High Court one Bishan Swaroop Saxena, Upper Division. Assistant, Home (Police-D-III) Department U. P. Civil Secretariat, Lucknow filed a counter-affidavit on behalf of the appellant. In paragraph 5 of his affidavit he stated that the father of the respondent Syed Siddiq Hasan migrated to Pakistan in 1948 leaving behind the respondent who was a minor at that time. In the verification subscribed to that affidavit he stated that the facts contained in paragraph 5 were stated by him on the basis of information gathered by him from the records of the case. He does not claim to have been personally aware of the fact that the respondent s father had migrated to Pakistan in 1948. No records were produced nor any evidence adduced before the High Court in support of the assertion. He does not claim to have been personally aware of the fact that the respondent s father had migrated to Pakistan in 1948. No records were produced nor any evidence adduced before the High Court in support of the assertion. The burden of proving that fact was on the State as it asserted that fact. Mr. B. Sen, learned Counsel for the Union of India wanted this Court to receive additional evidence on that aspect of the case. No satisfactory explanation was given for not producing the records in question before the High Court. We are not satisfied that a case is made out for receiving additional evidence. On the material on record it is not possible for us to come to the conclusion that the father of the respondent lost his Indian citizenship during the minority of the respondent. Law relating to domicile is now well settled by the decisions of this Court. In Kedar Pandey vs. Narain Bikram Sah (l) this Court accepted the rule laid down by the House of Lords in Udny v. Udny (2). Therein Lord Festbury explained the legal position thus : "Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with the intention of continuing to reside there for an unlimited time. This is description of the circumstances which create or constitute a domicile and not a definition of the term. There must be residence freely chosen and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness, and it must be a residence fixed, not for a limited period or particular purpose, but general and indefinite in its future contemplation. There must be residence freely chosen and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness, and it must be a residence fixed, not for a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that residence, originally temporary or intended for a limited period, may, afterwards become general and unlimited and in such a case, as soon as the change of purpose, or animus menandi can be inferred, the fact of domicil is established." This Court observed in Kedar Pandey s case that; "the domicile of origin is received by operation of law at birth; the domicile of choice is acquired later by the actual removal of an individual to another country accompanied by his animus manendi." All that is proved in this case is that the father of the respondent went away to Pakistan. There is no evidence to show when he did so, if whether the respondent was a minor. From the circumstances established in this case, it is not possible to hold that the appellant has established that the respondent lost domicile of origin. As seen earlier the respondent was born in India and he continued to reside in India both on November 26, 1949 as well as on January 26, 1950. Therefore he must be held to have acquired the citizenship of this country by virtue of Art. 5 of the Constitution. Our above finding is sufficient to reject this appeal. It is accordingly dismissed. Appeal dismissed. For Citation : 1968 Cri App R (SC) 256