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MADHYA BHARAT HIGH COURT, INDORE BENCH
DIXIT, CHATURVEDI, JJ.
Naziranbai - Applicant
Versus
State - Opponent
C. Misc. C. No. 25 of 1956
Decided On : 07-05-1956
CONSTITUTION OF INDIA - CITIZENSHIP - MIGRATION TO PAKISTAN AFTER 1-3-1947 - EFFECT - LOSS OF INDIAN CITIZENSHIP - ACQUISITION OF PAKISTAN CITIZENSHIP - RETURN TO INDIA ON PAKISTAN PASSPORT - NO RIGHT TO STAY IN INDIA - INDIAN PASSPORT ACT, 1920 AND RULES, 1950 - APPLICABILITY.
Fact of the Case:
Naziran Bai, born and brought up in Indore, married Mohammad Ismail of Indore in 1946. In 1948, she went to Karachi on a temporary permit to deliver her first child and due to illness, could not return within the time allowed. She applied for a permanent return permit but was denied. She obtained a Pakistan passport and returned to India in 1954. She had another daughter in India in 1954. The Indore police threatened to arrest her and compel her and her minor daughters to leave India.
Finding of the Court:
The court held that Naziran Bai migrated to Pakistan after 1-3-1947 and acquired Pakistan citizenship. Her return to India on a Pakistan passport and extension of her stay indicated her intention to return to Pakistan. The court rejected her contention that she did not lose Indian citizenship because Pakistan was not a foreign state under the Declaration as to Foreign States Order, 1950, and that she had the right to move freely and reside in India as a Commonwealth citizen under the Citizenship Act, 1955. The court also held that the Indian Passport Act, 1920, and the rules thereunder governed her entry and stay in India, and she could not stay beyond the specified period.
Issues: 1. Whether Naziran Bai migrated to Pakistan after 1-3-1947 and acquired Pakistan citizenship? 2. Whether she lost Indian citizenship under Article 7 of the Constitution? 3. Whether the Declaration as to Foreign States Order, 1950, and the Citizenship Act, 1955, conferred on her the rights of an Indian citizen? 4. Whether the Indian Passport Act, 1920, and the rules thereunder governed her entry and stay in India?
Ratio Decidendi: 1. The court relied on the fact that Naziran Bai obtained a Pakistan passport describing her as a Pakistan national, came to India on that passport, and got her period of stay extended, as evidence of her Pakistan nationality and migration to Pakistan after 1-3-1947. 2. The court held that Naziran Bai lost Indian citizenship under Article 7 of the Constitution because she migrated to Pakistan after 1-3-1947 and did not fall under the proviso to Article 7. 3. The court held that the Declaration as to Foreign States Order, 1950, did not confer on Naziran Bai the rights of an Indian citizen because it only excluded countries within the Commonwealth from the definition of "foreign state" and did not apply to provisions of the Constitution that did not contain the words "foreign state". The court also held that the Citizenship Act, 1955, did not confer on her the fundamental rights under Article 19 because there was no order under Section 12 of the Act conferring those rights on citizens of Pakistan. 4. The court held that the Indian Passport Act, 1920, and the rules thereunder governed Naziran Bai's entry and stay in India, and she could not stay beyond the specified period.
Final Decision: The court dismissed Naziran Bai's petition, holding that she was not entitled to the relief she claimed with regard to herself. However, the court clarified that her minor daughters, born in Karachi in 1949 and Indore in 1954, were Indian citizens under Article 5 of the Constitution and Section 3 of the Citizenship Act, 1955, and could not be compelled to leave India with their mother.
DIXIT, J.
This is an application under Art. 226 of the Constitution of India for the issue of a direction to the State of Madhya Bharat, restraining the State from compelling the petitioners to leave India.
2. According to the petitioner Naziran Bai she, was born and brought up in Indore, and she married one Mohammad Ismail of Indore in 1946. In 1948 her father migrated to Pakistan. As she was expecting her first child, her father came from Pakistan and took her to Karachi on the authority of a temporary permit. The petitioner Naseem Bano was born to her on 22-8-1949 at Karachi. Thereafter she fell seriously ill and could not come to India within the time allowed by the permit. She, therefore, applied several times to the High Commissioner for India in Pakistan as well as to other authorities in India for a permit for her permanent return to India. But no permit was granted to her.
She was, therefore, compelled to apply to the Pakistan Government for a passport to visit India, which she obtained; and sometime in March, 1954 she returned to India on a Pakistan Passport No. 151313 dated 5-1-1954. The applicant Naziran Bai further states that on her return to India another daughter Perween Bano was born to her on 17-11-1954 and that as the time for which she was allowed to stay in India has expired, the opponent State through the Indore police are threatening to arrest her and compel her and her minor daughters to leave India.
3. We have heard Mr. Khan learned Counsel for the petitioners. In our opinion this petition must be rejected. The contention of Mr. Khan was that as the petitioner Naziran Bai was born in India and had her domicile in India at the commencement of the Constitution, she was a citizen of India by virtue of Art. 5; that her visit to Pakistan in 1948 and her stay there till March, 1954 was for a temporary purpose, for the delivery and medical treatment; that she never migrated to Pakistan; that she was and always continued to be a citizen of India and that as her husband Mohammad Ismail remained in India, she could never be said to have migrated to Pakistan because her domicile was that of her husband; and the fact that she returned to India on a Pakistan passport was, therefore, of no consequence.
I am unable to accept the contention that the petitioner Naziran Bai did not migrate to Pakistan after 1-3-1947. Even if it is assumed that Naziran Bai was born in India and had her domicile in India at the commencement of the Constitution and that Mohammad Ismail who remained in India is her husband, she cannot get the benefit of Art. 5 because the fact that after having gone to Pakistan she came to India on a Pakistan passport and had her period of stay in this country extended from time to time, shows that she migrated from the territory of India after 1-3-1947 and that her case falls under Art. 7.
The fact that her husband remained in India and her domicile is that of India cannot render Art. 7 inapplicable to her if she did in fact migrate to Pakistan after 1-3-1947. This has now been made very clear by the decision of the Supreme Court in State of Bihar v. Kumar Amar Singh, (S) AIR 1955 SC 282 (A), where a lady went to Karachi in July, 1948 leaving her husband in India and her story that she went there temporarily for medical treatment was found on the facts proved to be unfounded and it was held that "Art. 7 clearly overrides Art. 5. It is peremtory in its scope and makes no exception for such a case i.e., of the wife migrating to Pakistan leaving her husband in India, Even such a wife must be deemed not to be a citizen of India unless the particular facts bring her case within the proviso to Art. 7."
The Supreme Courts decision is an authority for the proposition that if a wife has migrated to Pakistan after 1-3-1947 leaving her husband in India, then she cannot be deemed to be a citizen of India under Art. 7 notwithstanding the proposition that the wifes domicile continues throughout to be that of her hus
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