IMPORTANT POINT
The court established that credible evidence of familial relationships is essential for determining citizenship status under the Foreigners Act, and such evidence must meet the standards set forth in the Evidence Act, particularly regarding the special means of knowledge.

JUDGMENT :

ACHINTYA MALLA BUJOR BARUA, J.

1. Heard Mr. A.S. Choudhury, learned counsel for the petitioner. Also heard Mr. J. Payeng learned counsel for the respondents in the Home Department of Government of Assam as well as the Superintendent of Police (B), Nagaon, Ms. L. Devi, learned CGC appearing for the respondents in the Union of India, Mr. N.K. Das learned counsel appearing for the Deputy Commissioner, Nagaon and heard Mr. G. Sarma, learned counsel for the respondents in the Home Department of Government of Assam as well as the Superintendent of Police (B) Barpeta, P.O & District Barpeta, Assam, Ms. L Devi, learned CGC appearing for the respondents in the Union of India, Mr. AI Ali, learned counsel for the respondents in the Election Commission of India.

2. The petitioner Abdul Rahim had been referred to the Foreigners’ Tribunal No. 4th, Nagaon for rendering an opinion as to whether he is a foreigner within a meaning of Foreigners’ Act, 1946, resulting in the registration of FT Case No. 246/2016, wherein the Tribunal rendered an opinion dated 24.04.2019 declaring the petitioner to be a foreigner. Being aggrieved this writ petition is instituted.

3. In the writ proceeding, the petitioner relies upon the voters list of 1970 of village Bagariguri P.S Rupahihat in the district Nagaon, which contains the name of Hussain son of Sabed at Sl. No. 53 as well as that of Kandar Ali son of Sabed at Sl. No. 55 where both were shown to be residing in the same house no. 11. The petitioner claims that Hussain son of Sabed of the 1970 voters’ list of village Bagariguri is his grandfather and Kandar Ali brother of Hussain is the younger brother of his grandfather. The petitioner thereupon relies upon the voters’ list of 1997 of village Bagariguri which contains the name of Abdul Ali son of Hussain Ali at Sl. No. 8 and claims that Abdul Ali is the father of the petitioner. To establish that Abdul Ali is his father and Hussain of the 1970 voters’ list is the grandfather, the petitioner relies upon the evidence of Ranjit Bhuyan as OPW-4 who claims to be the Gaonburah of village Bagariguri. The petitioner also relies upon the evidence rendered by Kandar Ali son of Late Sabed Ali of village Bagariguri as OPW-3. By relying upon the evidences of OPW-3 and OPW-4, the petitioner claims that he had discharged the burden that Hussain of the 1970 voters’ list is the grandfather and Abdul Ali of the 1997 voters’ list, both from village Bagariguri, is the father.

4. It is taken note of that the petitioner seeks to establish a relevant fact through the existence of a relationship i.e., Hussain of the 1970 voters’ list is the grandfather and Abdul Ali of the 1997 voters’ list is the father. The procedure to be followed in establishing the relationship of one person to another is provided under Section 50 of the Evidence Act, 1872 which is extracted as below:

“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, or 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.

(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. Comments Contradiction in evidence of relationship of witness of triffle nature, not material in a partition suit. [Gowhari Das v. Santilata Singh, AIR 1999 Ori 61].”

5. A reading of Section 50 of the Evidence Act, 1872 makes it discernible that where t