Research › Search › Judgment

Gauhati High Court · body

2025 DIGILAW 257 (GAU)

Jaynab Bibi D/o Late Kasem Ali v. Union of India

2025-02-17

KALYAN RAI SURANA, MALASRI NANDI

body2025
ORDER K.R. Surana, J Heard Mr. A.S. Tapadar, learned counsel for the petitioner. Also heard Mr. G. Sarma, learned standing counsel for the FT matters, Mr. H.K. Hazarika, learned Govt. Advocate for the State and Mr. A.I Ali, learned standing counsel for the ECI. 2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 20.05.2017, passed by the rd learned Member, Foreigners Tribunal No. 3 , Morigaon, by which the petitioner was declared to be a foreigner. 3) In brief, the case of the petitioner is that on receipt of the proceedings, the petition had appeared before the Foreigners Tribunal and had submitted a written statement of defence, inter alia, stating that the investigation and enquiry by the Superintendent of Police (Border), Morigaon is based on false information and allegation. It was stated that the petitioner was born and brought up in village Muamari under Mouza- Dhing in the district of Nagaon. She is the daughter of Late Kasom Ali and her grandfather is Pasan Ali, whose name is enlisted in NRC 1951. She was married to Asmot Ali at village- Dakhin Kalikajari, where she resides with her husband and she castes her vote regularly before this case and accordingly, she has prayed for dismissal of the case. 4) On 16.11.2016, her oral evidence was recorded as DW-1. She is the opposite party in the case and she was born in Muamari under Dhing Police Station in the district of Nagaon and her grandfather is Pasan Ali, who casted his vote in 1965/1970. She has stated that her grandfather and her other family members used to stay in Dhupguri in Dhing and thereafter, her father shifted to Muamari and her paternal uncles were (1) Asmot Ali, (2) Toyob Ali, (3) Abdul Mataleb. She has exhibited the voter list of 1965 of Pasan Ali (Ext.A); voter list of 1970 of Pasan Ali (Ext.B); voter list of 1997 of Abul Kasem along with her projected mother Mazeda Khatun (Ext.C); Gaonbura certificate for discrepancy for name of father of the petitioner as Kasom Ali and Abul Kasem (Ext.D); Gaonbura certificate for proof of marriage (Ext.E); Niz Dhing Gaonbura certificate regarding petitioners marriage with Asmot Ali (Ext.F); voter list of Asmot (Ext.G); voter list of Toyob (Ext.H); voter list of Abdul Motaleb (Ext.I). In her cross-examination, she has stated that she has four brothers, (1) Mirza Hussain, (2) Abu Sofia, (3) Obaidullah, and (4) Abdullah. Her sisters are (1) Taslima, (2) Joynab (Self), (3) Khaleda Zia, and (4) Hamida. 5) Mazeda Khatun the projected mother of the petitioner was examined as DW-2 on 16.12.2016. She had stated that she had come to adduce evidence on behalf of the petitioner her daughter. She has stated that her husband was originally from Muamari in Nagaon and after her husband’s death, she came to another town in original home in Goroimari. Her daughter was born at Muamari and got her married at Kalikajari to Asmot Ali. She has stated that she and her husband had casted vote together and the name of her father-in- law was Pasan Ali and mother-in-law was Moonzan. She has stated that her father-in -law has casted her vote in 1965/1970. She has exhibited the Voter ID of the petitioner (Ext.5- proved in original); and jamabandi copy in the name of family of Abul Kasem (Ext.12-proved in original). In her cross-examination, she has stated that she has four sons and four daughters and disclosed their respective names. She stated that her two sons are working in Kerala and other two sons were studying at Goroimari. Her husband expired 13/14 years back and that her husband’s brothers (1) Toyob Ali, (2) Asmot Ali, (3) Nayob Ali and Rahmat Ali, (4) Kapiluddin, and (5) Motaleb and they are still in Muamari. 6) The learned Tribunal, referring to contents of voters list of 1965 (Ext.A) took a view that Rahim Uddin, who is shown to be the son of Pasan Ali is the paternal uncle of the petitioner. However, the said document was doubted because neither the petitioner nor her mother (DW-2) had stated the name of Rahim Uddin and accordingly, it was held that the petitioner had exhibited the procured documents and the persons shown to be in the voters list of 1965 and 1970 are projected persons to make out her case. However, the said document was doubted because neither the petitioner nor her mother (DW-2) had stated the name of Rahim Uddin and accordingly, it was held that the petitioner had exhibited the procured documents and the persons shown to be in the voters list of 1965 and 1970 are projected persons to make out her case. It was further held that in her deposition, she has named her father as Abul Kasem but in the voters list of 1997 the name of her father was written as Kasom Ali and it was observed that there was no whisper in the entire evidence as well as in the written statement regarding name discrepancy in the voter list of the petitioners father, except the Gaonbura’s certificate (Ext.D) by the Gaonbura of Lat Sutargaon, Muamari, who certified that Late Kasom Ali and Late Abul Kasem are same and one person. Accordingly, it was held that the petitioner failed to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946. Accordingly, the petitioner was held to a foreigner under Section 2(a) of the Foreigners Act, 1946. Resultantly, although blood relatives of the petitioner were deemed to be foreigners and accordingly, the Superintendent of Police (Border), Morigaon was directed to initiate fresh reference against all the immediate family members of the petitioner. 7) Assailing the impugned opinion, the learned counsel of the petitioner has submitted that although the petitioner’s mother who was examined as DW-2, there is no finding as to why her evidence was disregarded. It is also submitted that as per the reference made by the Superintendent of Police (Border), the petitioner had allegedly entered into India between 01.01.1966 and 25.03.1971. However, the learned Tribunal had travelled beyond reference by declaring the petitioner to be a foreigner. It was further submitted that in paragraph no.8 of the written statement, the petitioner had stated that her father Kasom Ali was an Indian citizen because his name was enlisted in the voters list of 1989 of 83 no. Dhing LAC of village-Muamari vide serial no.68, House No.20, part no.7 and he casted his vote regularly until his death and similarly the petitioner’s mother (DW-2) had also stated that she and her husband had casted vote together and her father in law, i.e, petitioner’s grandfather had casted vote in 1965/1970. Dhing LAC of village-Muamari vide serial no.68, House No.20, part no.7 and he casted his vote regularly until his death and similarly the petitioner’s mother (DW-2) had also stated that she and her husband had casted vote together and her father in law, i.e, petitioner’s grandfather had casted vote in 1965/1970. Accordingly, by referring to the case of Dolgobinda Paricha v. Nimai Charan Misra & Ors. AIR 1959 SC 914 , it is submitted that under Section 50 of the Evidence Act, the petitioner’s mother would have special knowledge of the petitioner as a member of the family. It is also submitted that there is no discussing with regard to Ext.D, E and F. Accordingly, it is submitted that the impugned opinion is liable to interfered with and in the event the Court is not inclined to declare the petitioner as Indian citizen, the matter be remanded back to the learned Tribunal for fresh opinion. In support of his submission the learned counsel for the petitioner has placed reliance on the case of Sujab Ali (Md.) v. Union of Indian & Ors., 2021(4) GLT 664. 8) Per contra, the learned Standing Counsel for the F.T. matters has supported the impugned opinion and he has submitted that mere oral evidence would not be sufficient to create relationship of the petitioner with a person whose name is entered in a voter list. It is submitted that the petitioner has not pleaded about all her family members and regarding family tree of her parents and has not stated about her paternal uncles, paternal aunt’s and siblings etc. Moreover, it is submitted that the voters list, which were exhibited as Ext. A, B, G, H and I contain one or two entries only, which does not show the entire family to be residing in one house or one compound. It has been submitted that the Gaonbura certificate cannot be proved without examining their respective authors and moreover those certificates which were exhibited and marked as Ext nos. D, E and F were rendered inadmissible in evidence as they contain State Emblem of Lion Pillar of Asoka. Moreover, the petitioner has failed to link herself to Kasom Ali, his projected father and that she could not also link her projected Pasan Ali her projected grandfather. D, E and F were rendered inadmissible in evidence as they contain State Emblem of Lion Pillar of Asoka. Moreover, the petitioner has failed to link herself to Kasom Ali, his projected father and that she could not also link her projected Pasan Ali her projected grandfather. It is not stated as to what happened to petitioner’s grandfather after 1970 and other relevant dates as to when the petitioner was born; when she was married; date of her father’s date; date of her grandfather’s death; date when her father purportedly shifted to another village. Accordingly, it is submitted that the petitioner is picking up voters list from here and there by taking advantage of similarity of some names and by covering-up the different identities by falsely projecting that there is discrepancy in the name of her father. 9) It is submitted that may be because the Superintendent of Police had sent a reference by stating that the petitioner is a foreigner of 01.01.1966 to 25.03.1971 would not preclude the reference to be answered by holding the petitioner as foreigner. The learned standing counsel for the FT matters has cited the following cases, viz., (i) Aziz Miya @ Md. Aziz Mia v. Union of India & Ors., (2023) 0 Supreme (Gau) 637, (ii) Rukia Begum Barbhuyia v. Union of India & Ors., W.P.(C) 2279/2021, decided on 12.06.2023, (iii) Rashminara Begum v. Union of India, (2017) 4 GLR 282: 2017 (4) GLT 346: (2017) 4 NEJ 652 : (2017) 0 Supreme(Gau) 411, (iv) Musstt. Ayesha Khatun v. Aisha Khatun v. Union of India & Ors., (2017) 3 GLR 820, and (v) Nur Begum v. Union of India & Ors., 2020 (3) GLT 347. 10) The following issues arise for determination in this case: a. Whether the learned Foreigners Tribunal has committed any perversity in opining that the petitioner is a foreigner when the reference by the Superintendent of Police (Border) had sent the reference as to whether the petitioner is a foreigner who has entered into India (Assam) illegally between 01.01.1966 to 25.03.1971? b. Whether the oral evidence of DW-2, the projected mother of the petitioner was sufficient to prove that the petitioner was the daughter of DW-2 and Late Kasom Ali, son of Pasan Ali? c. Whether the petitioner was required to plead foundational facts in her written statement? b. Whether the oral evidence of DW-2, the projected mother of the petitioner was sufficient to prove that the petitioner was the daughter of DW-2 and Late Kasom Ali, son of Pasan Ali? c. Whether the petitioner was required to plead foundational facts in her written statement? Point of determination no.(a): 11) The learned counsel for the petitioner had referred to para-5 of the records received from the learned Tribunal and had submitted that the reference was that the petitioner has entered into India between 01.01.1966 and 25.03.1971 and accordingly, it was submitted that the learned Foreigners Tribunal could not have travelled beyond reference. 12) However, on a perusal of the record, it reveals to the contrary. Page-5 is a memo/letter dated 22.04.2008, by the Superintendent of Police (Border), Morigaon to S.I.(B) Muruli Mozumdar, MBT PS, thereby informing him that Mustt. Joynal Bibi, wife of Md. Asmot Ali, Vill. Dakshin Kalika Jari, P.S. Mikirbheta, Dist. Morigaon is suspected foreign national who entered in to India after 01.01.1966 to 25.03.1971. Thereupon, investigation was carried out and a report was prepared by the Investigating Officer on 28.04.2008, wherein he had recorded that the investigation reveals that petitioner was a post 25.03.1971 migrant who failed to produce any valid documents to prove her Indian nationality. Be it mentioned herein that the statement of 3 (three) witnesses examined by the I.O. on 28.04.2008 is also available in the record. The record further reveals that the Superintendent of Police (Border), Morigaon had thereafter passed an order dated 22.04.2008, thereby recording that the petitioner has entered into India after 25.03.1971 and the case was forwarded to the Foreigners Tribunal No.2, Morigaon as per the provisions of the Foreigners (Tribunals) Order, 1964 with reference to the triple criteria under Citizenship (Amendment) Act, 1985 and that (i) the person and her family members entered into India after 25.03.1971; (2) the person and her family members are ordinary residents of Assam since their entry; and (3) the person and her family members were detected to be foreigner. 13) Therefore, we do not find any substance in the submissions made by the learned counsel for the petitioner that the learned Tribunal had travelled beyond reference. 14) Thus, the point of determination no. (a) is answered by holding that the learned Foreigners Tribunal is not found to have travelled beyond reference. Point of determination no. 13) Therefore, we do not find any substance in the submissions made by the learned counsel for the petitioner that the learned Tribunal had travelled beyond reference. 14) Thus, the point of determination no. (a) is answered by holding that the learned Foreigners Tribunal is not found to have travelled beyond reference. Point of determination no. (b): 15) The following voter lists were exhibited by the petitioner has exhibited the voter lists of 1965 (Ext.A) and 1970 (Ext.B) in respect of grand- father of the petitioner; voter list of 1997 of one Kasom Ali along with her projected mother, Majed (Ext.C); voter list of Asmot Ali (Ext.G); voter list of Toyob Ali (Ext.H); and voter list of Abdul Mataleb (Ext.I). In her written statement, the petitioner has not pleaded that there was discrepancy in the name of her projected father or that her projected father had two names, Abul Kasem and Kasom Ali. Rather in paragraphs 5 and 8 of her written statement, the petitioner claims herself to be the daughter of Kasom Ali. In paragraph 4 and 8, she claims to be born in Village- Muamari and that the name of her father, Kasom Ali was entered in the voter list of 1989 of village- Muamari. However, the voter list of 1989 was not exhibited for reasons best known to the petitioner. The petitioner has not disclosed the name of her projected mother in her written statement. The DW-2 has projected in her oral evidence that she was the wife of Abul Kasem and she had categorically deposed that she and her husband had casted vote together. She has not made any statement that her husband had two names, viz., Abul Kasem and Kasom Ali. She has stated in her cross-examination that her husband had died 13/14 years back. However, except for the voter list of 1997 (Ext.C), no voter list of DW-3 with her projected husband has been exhibited. 16) Therefore, through the pleadings and oral evidence of DW-1 and DW-2, it could not be established from documentary evidence that the petitioner is the daughter of Abul Kasem and/or Kasom Ali and that the projected father of the petitioner i.e. Abul Kasem and/or Kasom Ali could not be linked to the petitioner’s projected grand-father, Pasan Ali. 16) Therefore, through the pleadings and oral evidence of DW-1 and DW-2, it could not be established from documentary evidence that the petitioner is the daughter of Abul Kasem and/or Kasom Ali and that the projected father of the petitioner i.e. Abul Kasem and/or Kasom Ali could not be linked to the petitioner’s projected grand-father, Pasan Ali. In the absence of any pleadings, and without examination of the concerned persons, the voter’s lists, being Ext.G, H and I also does not establish that the petitioner is the daughter of Abul Kasem and/or Kasom Ali. 17) The learned counsel for the petitioner had submitted that by exhibiting voter list, a proceedee can establish his/her relationship with his/her projected parent in the absence of any other supporting document. In this regard, by referring to the provisions of section 50 of the Evidence Act, 1872, the case of Dolgobinda Paricha (supra) was cited. 18) Let us test the said submissions. If the said submission is to be accepted, any person can file a paternity suit against any person, claiming that he/ she was illegitimate child of ‘X’. Under such circumstances, whether the plaintiff’s own oral evidence or evidence of few witnesses, expressing their view that the plaintiff was the son/daughter of ‘X’ and proving of a few stand-alone voter list of the projected father would be sufficient proof of such relationship. In order to examine it, it would be relevant to quote hereinbelow the provisions of section 50 of the Evidence Act, 1872: 50. Opinion on relationship, when relevant.- When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869), or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860). Illustrations: (a) The question is, whether A and B, were married. The fact that they were usually received and treated by their friends as husband and wife, is relevant. Illustrations: (a) The question is, whether A and B, were married. The fact that they were usually received and treated by their friends as husband and wife, is relevant. (b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant. 19) Thus, the said provision of section 50 of the Evidence Act, 1872, which is explained through illustrations provided under the said provision cannot be interpreted that the opinion of a person claiming that someone is his/her father and/or grandfather would be sufficient to prove such relationship. 20) The case of Dolgobinda Paricha (supra) was decided on distinguishable facts. Firstly, the issue that the person concerned was a foreigner and not a citizen of India was not in dispute. The suit was in respect of claim to certain properties, founded in claim of pedigree set up by claiming to be sons of the half-sister of one Satyanand. In the said factual matrix, it was held that the concerned witness, who was present in the marriage of first two daughters and in the upanayan ceremony plaintiff nos. 1 and 2, came within the meaning of section 50 of the Evidence Act. Thus, the said decision is not an authority on the point that the evidence of an interested witness is relevant under section 50 of the Evidence Act, 1872. 21) In this case, the petitioner has not proved any document linking Majeda Khatun (DW-2) with Kasom Ali, but in the voter list of 1997 (Ext.C), one Majeda is a voter with Kasom Ali at Village- Muamari, P.S. Dhing. 22) The description of the voters in the exhibited voter lists are as follows:- a. The certified copy of voter list of 1965 (Ext.A) contains two entries, being (i) “Pasan Ali”, father- “Afazdin”; and “Rohim Uddin”, father- “Pasan”. Village name is Dhupguri, P.S. Dhing. The entries are in Assamese and therefore, English spelling may vary. b. The certified copy of voter list of 1970 (Ext.B) contains the name of voter as “Pasanali”, father- “Afazdin”. Village name is Dhupguri, P.S. Dhing. The entry is in Assamese and therefore, spelling in English may vary. c. The certified copy of voter list of 1997 (Ext.C) contains the name of voter as “Kasom Ali”, father- “Pasan”. Village name is Muamari, P.S. Dhing. Village name is Dhupguri, P.S. Dhing. The entry is in Assamese and therefore, spelling in English may vary. c. The certified copy of voter list of 1997 (Ext.C) contains the name of voter as “Kasom Ali”, father- “Pasan”. Village name is Muamari, P.S. Dhing. The entry is in Assamese and therefore, the spelling in English may vary. d. The certified copy of voter list of 1997 (Ext.C) contains the name of two voters, being “Kasom Ali”, father- “Pasan”, and “Majed”, husband- “Kasom”. Village name is Muamari, P.S. Dhing. The entry is in Assamese and therefore, spelling in English may vary. e. The certified copy of voter list of 1997 (Ext.G) contains the name of two voters, being “Asmot Ali”, father- “Pasan”, and “Maleka”, husband- “Asmot”. Village name is Muamari, P.S. Dhing. The entry is in Assamese and therefore, spelling in English may vary. f. The certified copy of voter list of 1997 (Ext.H) contains the name of “Toyob Ali”, father- “Pasan”. Village name is Muamari, P.S. Dhing. The entry is in Assamese and therefore, spelling in English may vary. g. The certified copy of voter list of 1997 (Ext.I) contains the name of two voters, being “Abdul Motaleb”, father- “Pasan”, and “Jeleka”, husband- “Motaleb”. Village name is Muamari, P.S. Dhing. The entry is in Assamese and therefore, spelling in English may vary. 23) In this writ petition filed on 10.08.2018, the petitioner has projected her age to be 24 years. Therefore, she was born in the year 1994. Therefore, the petitioner’s projected mother should have been a voter in 1997 with the projected father of the petitioner in the voter list of 1997 (Ext.C), but she is not. 24) The entries in the exhibited voter lists do not establish any link of the petitioner with her projected mother and father in any manner whatsoever because the petitioner has not pleaded about her father having shifted from Village- Dhupguri to Village Muamari. The persons whose voter list are Ext.G, H and I have not been examined by the petitioner for reasons best known to them. Moreover, the exhibit nos. D, E and F have been rendered inadmissible in evidence because it contains State Emblem. The persons whose voter list are Ext.G, H and I have not been examined by the petitioner for reasons best known to them. Moreover, the exhibit nos. D, E and F have been rendered inadmissible in evidence because it contains State Emblem. If one requires any authority on the point, the case of Diluwara Khatun v. Union of India, 2019 (1) GLT 382, and Sufia Khatun v. Union of India & Ors., (2020) 0 Supreme (Gau) 177 may be referred to. 25) Therefore, the point of determination no. (b) is answered in the negative and against the petitioner by holding that the oral evidence of DW-2, the projected mother of the petitioner is not sufficient to prove that the petitioner is the daughter of DW-2 or that her father is Late Kasom Ali, son of Pasan Ali. Point of determination no. (c): 26) In order to determine whether the foundational facts are required to be pleaded by the petitioner in her written statement, it would be apposite to refer to the earlier decisions of this Court on the subject. 27) In the case of Rashminara Begum (supra), the Division Bench of this Court has held as follows:- 25 . Written statement is the basic statement of defence of a proceedee before the Foreigners Tribunal. Keeping in mind the mandate of Section 9 of the Foreigners Act,1946, it is incumbent upon the proceedee to disclose at the first instance itself i.e., in his written statement all relevant facts specially within his knowledge having a material bearing on his claim to citizenship of India. Material facts pleaded in the written statement are thereafter required to be proved by adducing cogent and reliable evidence. It is also trite that a party cannot traverse beyond the pleadings made in the written statement. 28) Similarly, in the case of Musstt. Ayesha Khatun (supra), the Division Bench of this Court has held as under:- 12 . Written statement submitted by a noticee facing a proceeding under the Foreigners Act, 1946 read with Foreigners (Tribunals) Order, 1964 is the foundation of his or her defence. Since citizenship of the noticee is questioned, the noticee should come out with all material facts within his or her exclusive knowledge in terms of Section 9 of the Foreigners Act, 1946 and disclose them in the written statement. Since citizenship of the noticee is questioned, the noticee should come out with all material facts within his or her exclusive knowledge in terms of Section 9 of the Foreigners Act, 1946 and disclose them in the written statement. The averments made in the written statement are thereafter required to be proved by adducing cogent and reliable evidence. Failure to disclose materials particulars in the written statement by itself will raise a serious question mark on the citizenship status of the noticee. 29) The petitioner has not pleaded foundational facts such as the relevant dates as to when the petitioner was born; when she was married; date when her father died; date when her grandfather died; date when her father had purportedly shifted to another village. The petitioner has also not mentioned in her written statement about her siblings; about her own children; about siblings of her father, etc. Thus, the written statement is as vague as it could be. Then at the time of evidence, the petitioner is attempting to built up her case brick by brick. 30) The Court is compelled to take note of the fact that while in the rest of India, except Assam, the foreigners are detected and deported by the police and the administration. Recently, a particular western Country has started deporting non-citizens, without any judicial intervention. Therefore, while in the State of Assam, foreigners are being determined by a quasi-judicial process, the decision of this Court in the case of Rashminara Begum (supra) and Musstt. Ayesha Khatun (supra) to the effect that foundational facts are required to be pleaded has to be followed as a binding precedent. 31) Accordingly, the point of determination no. (c) is answered by holding that foundational facts are required to be pleaded by the petitioner in her written statement, based on which evidence could be led. Thus, in this case, the petitioner, in spite of her failure to plead relevant facts and though the petitioner has given evidence by travelling beyond her pleadings, yet she has failed to establish that she is the daughter of Kasom Ali and that the father of Kasom Ali is Pasan Ali. Accordingly, she could not prove her lineage and/or pedigree through Kasom Ali and/or Abul Kasem, as the case may be. Accordingly, she could not prove her lineage and/or pedigree through Kasom Ali and/or Abul Kasem, as the case may be. 32) As a result of the discussions above, the Court is unable to find any fault and/or perversity with the impugned opinion dated 20.05.2017, passed rd by the learned Member, Foreigners Tribunal No. 3 , Morigaon, by which the petitioner was declared to be a foreigner. Thus, the said opinion does not warrant any interference. Resultantly, this writ petition is dismissed. 33) Interim order dated 20.08.2018, passed by this Court that till further orders, the petitioner shall not be arrested and shall not be deported from India stands recalled and revoked. Hence, needless to mention that the consequences arising out of the impugned opinion dated 20.05.2017, would follow. 34) The parties are left to bear their own cost.