Badurdeen V. Commissioner For The Registration Of Indian And Pakistani Residents

1951 Present: Basnayake J.

BADURDEEN, Appellant, and COMMISSIONER FOR THE

REGISTRATION OF INDIAN AND PAKISTANI

RESIDENTS, Respondent

S. C. Application 1,114-in the matter of an Appeal under Section 15 of the Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949.

Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949-Section 6 (2) (ii)- " Ordinarily resident "-" While being so dependent ".

The applicant, who was born in India, was resident in Ceylon since 1928. In February, 1938, he married in India, but his wife remained in India with her parents in accordance with their wishes. He had two children born in India in 1938 and 1945 respectively. It was not till March, 1948, that his wife and children came to reside in Ceylon. During their stay in India they visited the applicant occasionally. Since March, 1948, the applicant's wife had a settled abode in Ceylon with her children and had no residence in any other country.

In an application made by the applicant on November 19, 1949, for acquisition of citizenship under the Indian and Pakistani Residents (Citizenship) Act, it was established that the applicants wife had lived in Ceylon with her children for one year and eight months with the intention of remaining in Ceylon permanently. In regard to the applicant's children the evidence ' showed that they too were in Ceylon since March, 1948, and that the child of school going age was attending school in Ceylon since September, 1948. Both the children were minors dependent on the applicant.

Held, that the applicant's wife had been '.' ordinarily resident in Ceylon '' within the meaning of section 6 (2) (ii) of the Indian and Pakistani Residents (Citizenship) Act.

Held further, that the applicant's children had been " ordinarily resident in Ceylon while dependent on the applicant ", within the meaning of the same section,'

APPEAL under section 15 of the Indian and Pakistani Residents (Citizenship) Act.

N. K. Choksy, K.C., with C. Shanmuganayagam and M. A. M. Hussein for the appellant.

D. Jansze, Crown Counsel, for the Commissioner for the Registration of Indian and Pakistani Residents.

Cur. adv. vult.

May 18, 1951. BASNAYAKE J.-

This is an appeal under section 15 of the Indian and Pakistani Residents Citizenship) Act, No. 3 of .1949. The appellant-applicant (hereinafter referred to as the applicant), Mohideen Abdul Cader Badurdeen, is 34 years of age and was born in India. He has since 1928 resided in Ceylon. In February, 1938, he married in India. But his wife did not come to Ceylon. She remained in India with her parents in accordance with their wishes. The applicant has two children bon in India in 1938 and 1945 respectively. It was not till March, 1948, that his wife and children came to reside here. During their stay in India they visited the applicant occasionally.

The applicant has the residential qualification contemplated in section 3. The only question that arises on this appeal is whether the conditions of section 6 (2) (ii) are satisfied in the case of the applicant. That provision reads:

" Where the applicant is a male married person (not being a married person referred to in paragraph (a) of section 3 (2) ), that his wife has been ordinarily resident in Ceylon, and in addition, that each minor child dependent on him was ordinarily resident in Ceylon while being so dependent."

The Commissioner holds that the requirements of the above provision are not, satisfied unless-

(a) the wife of an applicant has been resident in this country from the date of her marriage or from January 1, 1939, whichever is later, and

(b) each minor child dependent on him has been resident from January 1, 1939, or the date of birth whichever is later.

The result of the Commissioner's interpretation is that a person married before January 1, 1939, cannot secure registration unle

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