Fakrudeen V. Commissioner For Registration Of Indian And Pakistani Residents

1955 Present : Sansoni, J., and Fernando, J.

FAKRUDEEN, Appellant, and COMMISSIONER FOR REGISTRATION OF
INDIAN AND PAKISTANI RESIDENTS, Respondent

S. C, 858-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) as amended by Act No. 45 of 1952-Difference between " non-residence" and " occasional absence"-Residence of wife or child-Need not necessarily commence prior to the period exempted owing to war conditions.

The failure of a wife or child of an applicant for citizenship to commence residence in Ceylon within twelve months of marriage or birth, as required by section 6 (2) (ii) of the Indian and Pakistani Residents (Citizenship) Act, if shown to have been attributable to the war conditions mentioned in the clause added to that section by Act No. 45 of 1952, comes within the scope of the exception granted by that clause. In that clause the Legislature had in mind, not merely interruptions of residence, but non-residence, which includes a failure to commence residence within the stipulated time.

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

S. Sharvananda, for the applicant-appellant.

R. S. Wanasundera, Crown Counsel, for the respondent.

Cur. adv. vult.

112

September 8, 1955. FERNANDO, J.-

The appellant is an applicant for registration as a citizen under the Indian and Pakistani Residents (Citizenship) Act. His application has been refused on the ground that he failed to prove :-

(a) that his wife was resident in Ceylon, without absence exceeding 12 months on any single occasion, during the period January 1, 1939 to September 1950 ;

(b) that his child Luchmanjee was resident in Ceylon during the period November 1942 to September 1950; and

(c) that his child Esufally was resident in Ceylon during the period May 1946 to March 1950.

"The appellant married in 1927 ; according to him, his wife made a visit to Ceylon in 1929 returning to India in 1932 and again came to Ceylon in 1938 and returned to India in 1941. Thereafter the wife returned again to Ceylon in January 1946, having remained in India until then owing to difficulties arising from war conditions. The elder child was born in India on November 29, 1941, and the younger child on May 17, 1945, also in India : both children came to Ceylon in 1946 with their mother.

In regard to the residence of the wife the Deputy Commissioner did not believe " that the wife came to Ceylon on 1st January 1939 and left Ceylon for India in June or July 1941 ". Dr. Subramaniam, retired Provincial Surgeon, Jaffna, issued a certificate to the effect that the applicant's family were treated by him between 1938 and 1941, but, in giving evidence, he stated that he could not say that the family received treatment from him continuously during that period and could not be precise about their visits to his Dispensary. But he clearly remembered that the wife had been in Ceylon before 1941 and " went to India for her first confinement " a piece of evidence which entirely escaped the notice of the Deputy Commissioner. An Accountant and Auditor, Mr. Ram Moorthy, vouched for the presence of the applicant's wife in Jaffna during the years 1939 to 1941, but his evidence is not even referred to by the respondent. In the circumstances, Crown Counsel could make no attempt to support the finding that the wife was not resident during the qualifying period.

In so far as the children are concerned, there is nothing to contradict the applicant's evidence that they first came to Ceylon in January 1946 and that they have been in Ceylon " uninterruptedly " since then. But Crown Counsel has argued that, in the case of the elder child, the fact that he did not commence to reside in Ceylon on a date ear

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