Shamim Bano v. Union of India — 1979 DIGILAW 243 (RAJ)

P.D. KUDAL, J.—This writ petition is directed against the order of deportation of the four minor children of Mst. Shamim Bano, the petitioner. 2. The brief facts of the case which are relevant for the disposal of this writ petition are that the petitioner is a citizen of India. Her father resides at Macca. The petitioner went to Macca on an Indian Pass-port which is valid upto 1983. 3. On 28-2-1975, the petitioner married one Mirza Aziz Beg, a Pakistani national. Out of this marriage four children were born. The youngest son is said to be about 6 months old, while the oldest daughter is said to be 3 years and 9 months old. The petitioner came to India along with four children and her husband on 21st March, 1979. The petitioner was travelling on an Indian pass-port, while her husband and four children came to India on a pass-port issued by the Pakistan Government. The visa which was issued by the Indian authorities permitted their stay in this country upto 20th May, 1979. 4. It has been alleged by the petitioner that on 11-5-1979, her husband divorced her and, as such, she was left with no option but to go on residing with her relations along with the four children. It has been further contended by the petitioner that on 28th May, 1979, she moved an application for obtaining a certificate of registration under sec. 5(l)(d) and 5(4) of the Indian Citizenship Act, 1955. It appears that an order of deportation of these minor children was issued by the Government of Rajasthan on 21st May, 1979. The contention of the petitioner is that under the Private International Law, the children have become state-less as they were born at Macca in Saudi Arabia, the father being a Pak National and the mother being an Indian citizen. It has also been very vehemently contended on behalf of the petitioner that if the deportation order is not stayed, then the petition for securing the Indian citizenship of these minor children would become infructuous, and the petitioner would be put to a great and irreparable loss, and the minor children shall be deported out of this country. 5. The husband of the petitioner Mirza Aziz Beg filed a petition for impleading him as a party to this writ petition. 5. The husband of the petitioner Mirza Aziz Beg filed a petition for impleading him as a party to this writ petition. Vide proceedings dated 11-7-1979, Mirza Aziz Beg was permitted to intervene in the case, but was not impleaded as a party, 6. On behalf of Mirza Aziz Beg, it has been contended that he has not divorced his wife, the petitioner, and that he is willing to take away the children and his wife to Saudi Arabia. It has been contended by him that Shamim Bano, the petitioner, wanted him to stay in India, and obtain the citizenship of this country. As he was unable to accord to her request, the whole trouble had started. It was also contended that he has got a large family at Macca, and it is not possible for him to come to India, remain with her and obtain the citizenship of this country. The learned counsel for Mr. Beg also contended that he is prepared to take her wife back to Pakistan and keep her well. 7. Mr. Mathur, learned counsel appearing on behalf of the State of Rajasthan has contended that there is no merit in this writ petition, and that the order of deportation which has been passed, should be allowed to be executed. It was further contended that the children acquire the nationality of the father. 8. Mr. Dave, learned counsel for the Union of India, has stated that the order dated 21-5-1979, has not been produced and it has not been assailed in the writ petition. It has been further contended that whether Shamim Bano has been divorced or not, is a question of fact, which has to be determined by the process of inquiry. The viza was valid only upto 20th May, 1979; but it was contended that an application had been submitted only on 22-5-1979, i.e. after the order of deportation had been issued on 21-5-1979. 9. The learned counsel has contended that under the Mohammadan Law the mother has a right of preferential custody of the minor children over that of the father. The youngest child being only six monthsold and the oldest being 3 years and 9 months, the mother has right of preferential custody as against the father. 10. 9. The learned counsel has contended that under the Mohammadan Law the mother has a right of preferential custody of the minor children over that of the father. The youngest child being only six monthsold and the oldest being 3 years and 9 months, the mother has right of preferential custody as against the father. 10. The learned counsel for the petitioner has placed reliance on Husan Khan vs. State(l), wherein it has been held that the Central Government is the special tribunal created under the Act and rules to determine whether, when or how any person has acquired the citizenship of another country. Where the person claim to be the citizen of India but the State Government alleges that he has acquired or that he had acquired at one time the citizenship of another country, it is for the State Government and not for the citizen to approach the Central Government and obtain a decision whether the person has really acquired the citizenship of another country, before taking proceedings against the person with regard to his deportation from India. Any such, action by the State Government without obtaining the decision of the Central Government would be unauthorised and unjustified. 11. He has further relied on Nasir Ahmed vs. Chief Commissioner(2), wherein it has been held that migration or adoption of nationality of another country are question of fact which to a certain extent also relate to the intention of the party concerned. These matters must be determined by the Central Government under the Citizenship Act and the Rules made thereunder and not by any other authority. It is, therefore, impossible for the High Court in a writ petition to express views on these matters or to lay down whether prima facie the facts established migration of the petitioner to Pakistan or whether these facts prima facie shot that the petitioner and his family members had acquired the nationality of Pakistan or not. Moreover in these summary proceedings it is impossible to give adequate opportunity to the parties to bring the entire material relevant for the purposes of determining the present dispute. 12. Reliance was also placed on Mohd. Khan vs. Government of Andhra Pradesh (3), wherein it has been held that citizen-ship may be obtained by birth, descant, naturalisation, registration etc. Moreover in these summary proceedings it is impossible to give adequate opportunity to the parties to bring the entire material relevant for the purposes of determining the present dispute. 12. Reliance was also placed on Mohd. Khan vs. Government of Andhra Pradesh (3), wherein it has been held that citizen-ship may be obtained by birth, descant, naturalisation, registration etc. The acquiring of citizenship by birth or by descant cannot be voluntary acquisition of citizenship and, therefore, that fact will not deprive an Indian Citizen of his citizenship. It has been further held that a passport is not the basis of legal evidence to establish the fact of citizenship but it only embodies a request to a foreign department to allow the bearer free passage and to afford his every assistance and protection. It has been further held that where the State Government passed the order empaling the appellants for acquiring the citizenship of Pakistan before raising the question before the Central Government and obtaining its decision, the orders are not valid. 13. The learned counsel also placed reliance on Govt. of Andhra Pradesh vs. Mohd. Khan (4), wherein it has been held that the question as to whether a person has lost his citizenship of this country and has acquired the citizenship of a foreign country has to be tried by the Central Government and it is only after the Central Government has decided the point that the State Government can deal with the person as a foreigner. The decision of the Central Government about the status of the person is the basis on which any further action can be taken against him. 14 Mr. Mathur appearing on behalf of the State of Rajasthan has placed reliance on Ismail vs. State of Rajasthan (5), wherein it has been held that minors domicile is that of father. 15. Mr. Singhvi, learned counsel for the respondent Mirza Aziz Beg has placed reliance on Mst. Rihena Maryam vs. The State (6), wherein it has been held that mere residence of following a particular profession in India by the father of the girl is not conclusive for the purposes of determining his domicile. This is a question of fact, which has to be determined in accordance with the facts and circumstances of the case that may be brought to light as the case proceed. 16. Reliance was also placed on Deen Mohd. This is a question of fact, which has to be determined in accordance with the facts and circumstances of the case that may be brought to light as the case proceed. 16. Reliance was also placed on Deen Mohd. vs. State (7), wherein it was held that where a Mohanmadan, who had come to India on a Pakistani passport and stayed for five years was not entitled to enforce the extraordinary jurisdiction of this Court under Art. 226 of the Constitution of India for the first time after the lapse of five years. 17. Reliance was placed on State vs. Abdul Hamid (8), wherein it has been held that according to International Law, a child acquires the nationality of a parent. Where a minor migrates to Pakistan along with his father, the father does not have Indian nationality under Art. 7 of the Constitution and the minor also must be taken to have acquired the nationality of the father. Apparently he cannot retain Indian nationality unless according to the permit system rules he comes to this country with a permit for permanent settlement or residence. 18. Relience was also placed on Mohd. Umar vs. State (9), wherein it has been held that where the father migrates to Pakistan his minor son loses his Indian Citizenship along with his father. 19. Reliance was also placed on Bhaktiarkhan vs. Union of India (10), wherein it has been held that a passport of Pakistan, on the strength of which a person enters India, raises a presumption against him that he has acquired the citizenship of that country. Such a presumption is rebuttable. The burden of proof in that event shifts on that person to explain that the declaration contained therein that he is a national of Pakistan is not true. 20. Reliance was also placed on the following passage of Private International Law by G.C. Cheshire (IV Edn), at page 174:— "A child acquires at birth a domicil of origin by operation law, namely, if legitimate and born in his fathers lifetime, the domicil of father; if illegitimate or born after his fathers death, the domicil of his mother. A foundli-ing is domiciled in the country where he is found. A foundli-ing is domiciled in the country where he is found. If a child is born illegitimate, but is later legitimated, his fathers domicil will be communicated to him from the date of legitimation, but it is probable that his domicil of origin remains that of his mother, presuming that at his birth his parents were domiciled in different countries." 21. In this writ petition the basic question for determination is, whether preferential right of custody of the minor children under the Mohamadan Law shall prevail against the provisions of Citizenship Act, and the nationality acquired by the children during the life-time of the father. Admittedly, the father is a Pak national and mother is an Indian citizen. The marriage took place at Macca in Soudi Arabia and children were born there. According to the Private International Law the minor children shall acquire the nationality of the father. 22. These! four children have come to India on the passport of their father wherein they have been shown to be Pak national. In spite of the fact that the mother is an Indian citizen and has a right of preferential custody over the minor children under the Mohamadan Law still the provisions of the Indian Citizenship Act shall prevail and children shall acquire the nationality of their father. Father being admittedly a Pak national will communicate Pak nationality to the children, though they are born at Macca in Soudi Arabia, and their mother is an Indian citizen. 23. Surprisingly enough, the order of deportation dated 21-5-1979 has not been challenged in this writ petition. Taking an overall view of the entire facts and circumstances of the case, this Court in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India cannot enter into the disputed area of facts whether the petitioner has been divorced or not. Moreover, it is the function of the Central Government to decide whether the Indian Citizenship should be conferred on the minor children or not. Human factor that the minor children who are of the age of 6 months to 4 years, are being taken away from the mother, is a matter of consideration for the Central Government. 24. Moreover, it is the function of the Central Government to decide whether the Indian Citizenship should be conferred on the minor children or not. Human factor that the minor children who are of the age of 6 months to 4 years, are being taken away from the mother, is a matter of consideration for the Central Government. 24. This Court in exercise of the powers under Art. 226 of the Constitution of India would exceed in its jurisdiction if it tries to enter into the question whether citizen-ship should be conferred on these children or not. As stated earlier, this is the exclusive domain of the Government of India, and there is no reason to believe that the Union of India will not consider all these facts. 25. For the reasons stated above, there is no force in this writ petition which is hereby dismissed. The interim order issued by this Court on 21st June, 1979, is hereby vacated. 26. Looking to the facts and circumstances of the case, the parties are left to bear their own costs.