1. Foreign national ordered to leave India under Foreigners Act, 1946 — Suit for declaration of Indian citizenship under Article 5 of the Constitution. (Para 1 , 2 )
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1966 Supreme(SC) 38
SUPREME COURT OF INDIA
A.K.Sarkar : J.R.Mudholkar
Mohamed Reza Debstani
Versus
State Of Bombay
Case No. : 289 of 1964
Date of Decision : 1/28/66
Advocates Appeared: Achar B.R.G.K. : Aggarwal B.R. : Daphtary C.K. : Dapthary C.K. : Dhebar R.H. : Iyengar B.R.L. : Patel M.S. : Puri H.K. : Sanghi C.L. : Sorabjee S.J. : Sanghi G.L.
Advocates:
B.R.AGRAWAL, B.R.G.K.Achar, B.R.L.Iyengar, C.K.DAFTARY, C.L.SANGHVI, H.K.PURI, M.S.PATEL, R.H.Dhebar, SOLI J.SORABJI
B.R.AGRAWAL, B.R.G.K.Achar, B.R.L.Iyengar, C.K.DAFTARY, C.L.SANGHVI, H.K.PURI, M.S.PATEL, R.H.Dhebar, SOLI J.SORABJI
To acquire citizenship under Article 5 of the Constitution, a person must prove both ordinary residence and a domicile of choice, which requires a clear, settled intention to reside in the country permanently, a fact that cannot be inferred from residence alone.
Headnote:(A) Constitution - Article 5 - Citizenship - Domicile and ordinary residence - To acquire citizenship under Article 5, a person must have had their domicile in the territory of the country and been ordinarily resident for not less than five years immediately preceding the commencement of the Constitution. (Para 2)
(B) Domicile - Acquisition of new domicile - Residence alone is insufficient evidence to establish acquisition of a new domicile; there must be proof that the residence was with the intention of making the country a permanent home. (Para 3)
(C) Domicile of Minor - A minor's domicile is that of the father. To change this after attaining majority, the person must establish a clear intention to make the country their home. (Para 3, 4)
(D) Citizenship and Nationality - A citizen of the country cannot be a national of another state. Describing oneself as a national of another state in official applications for residential permits is evidence against the claim of having a domicile in the country. (Para 5)
Facts of the case:
A foreign national arrived in the country as a minor and resided there for several years. After attaining majority, the individual continued to reside in the country, obtained residential permits, and conducted business. The individual was eventually ordered to leave the country under the Foreigners Act. A suit for declaration of citizenship was filed, which was dismissed by the lower courts. The individual claimed citizenship based on Article 5 of the Constitution, asserting that they had acquired a domicile in the country.
Findings of Court:
The appellant failed to provide sufficient evidence of an intention to make the country a permanent home. The use of a foreign passport, registration as a foreign national, and repeated descriptions of themselves as a national of another state in official applications for residential permits and naturalization militated against the claim of domicile.
Issues: Whether the appellant had acquired a domicile in the territory of the country prior to the commencement of the Constitution.
Ratio Decidendi: The court held that for a person born with a foreign domicile, the burden of proving a change to a domicile of the country lies with the claimant. Such change requires not just residence, but a settled intention to reside permanently. The appellant's conduct—including identifying as a foreign national in official documents and applying for naturalization—demonstrated a lack of such intention.
Result: Appeal dismissed with costs.
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2. Whether the appellant acquired Indian domicile by intention to reside permanently in India prior to the commencement of the Constitution. (Para 2 , 3 )
3. Residence alone is insufficient for domicile; intention to make the country a permanent home must be proven, which the appellant's conduct as a foreign national contradicted. (Para 3 , 4 , 5 , 6 )
4. Acquisition of a new domicile requires proof of intention to reside permanently; a person cannot simultaneously be a citizen of India and a national of another state. (Para 3 , 5 )
5. Appeal dismissed with costs. (Para 7 )
6. What is required to establish a change of domicile?
To change domicile, the person must prove they have formed a firm intention to make the new country their permanent home. Mere residence in a country is insufficient evidence to establish the acquisition of a new domicile. (Para 3 )
7. Can a person be a citizen of India and a national of another country simultaneously?
No. An Indian citizen cannot be a national of another state. Therefore, describing oneself as a national of another country is evidence that the person is not an Indian citizen and does not possess an Indian domicile. (Para 5 )
8. Does starting a business in India suffice to prove the intention to acquire Indian domicile?
No. The commencement of a business or economic activity in India is not sufficient evidence to establish the necessary intention to make India a permanent home or to acquire Indian domicile. (Para 4 , 6 )
A.K.SARKAB, J.
(1) THE appellant,.an Iranian national by birth, came to India from Yezd in Iran with his maternal uncle, an Iranian national, in 1938 when he was about thirteen years old. The record does not show on what passport he entered India. In January 1945 he obtained an Iranian passport and went to Iraq on pilgrimage This passport showed that he held an identity card ,of the Iranian government. On return from the pilgrimage he was on 22/03/1946 registered under the Registration of Foreigners Rules, 1939 as an Iranian national. On 25/05/1951, he obtained a residential permit under the Foreigners Order, 1938 permitting him to reside in India upto a certain date. This permission was extended from time to time at his request. On 2/12/1957 his last request was refused and he was ordered under the Foreigners Act, 1946 to leave India. On 14/12/1957, he filed a suit in the City Civil court at Bombay for a ,declaration that he was a citizen of India and for an injunction restraining the State of Bombay,: the Police of Bombay and the Union of India from taking action against him on the footing that he was a foreigner and not a citizen of India. This suit was dismissed by the City Civil court and an appeal by the appellant to the High court at Bombay also failed. He has now appealed to this court with special leave.
(2) THE appellant bases his claim to citizenship of India on Art. 5 of the Constitution. Under that article every person who had his domicile in the territory of India and had been ordinarily resident there for not less than five years immediately preceding the commencement of the Constitution was declared to be a citizen of India. Article 5 of the Constitution came into force on 21/11/1949. It is not in dispute that the appellant had been ordinarily resident in the territory of India for over five years before 21/11/1949. The only question in this appeal is whether he had his domicile in the territory of India on- that date.
(3) WHEN the appellant arrived in India he was a minor. His domicile was, therefore, that of his father which was Iranian. This is not disputed. The appellant contends that he had changed his Iranian domicile into an Indian domicile prior to 21/11/1949. The onus of proving the change of domicile is, of course entirely on the appellant. Such change can be proved if it is established that the appellant had made up his mind to make India his home, that is to say, remain in India permanently. The facts established are that since 1938 excepting for a visit to Iraq lasting about a year he has all along been a resident of Bombay. It is well established that residence alone is insufficient evidence to establish acquisition of a new domicile; there has also to be. proof that the residence in a country was with the intention of making it the persons home.
(4) NOW on the question of intention of the appellant to make India his home, there is very little evidence. The evidence shows that after his arrival in India the appellant was put in a school but before he attained majority he took up the job of a cashier in a restaurant in Bombay. He attained majority sometime in 1943. Prior to that he was not entitled under the law to change his domicile. He has to establish the change in domicile by proving that after 1943 and before 21/11/1949 he had formed the intention of making India his home. There is very little during this short period from which one can draw an inference that he had intended to change his domicile. He was then quite young. During, this period he left India on an Iranian passport declaring himself to be an Iranian national. On his return he was registered as an Iranian national on 23/03/1946. These facts do not support the appellant. It is said that he had done all these because under the law then obtaining he had no option. It has however to be pointed out that it was open to him then, if he wished to change his Nationality, to get himself naturalised as a British Ind
