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Naziranbai v. State

Madhya Pradesh High Court

May 7, 1956

Judgment

Subsequent
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Structured Summary of the Opinion (Dixit, J.; Chaturvedi, J. concurred)

Factual and Procedural Background

This is an application made under Article 226 of the Constitution of India seeking a direction to the State of Madhya Bharat restraining the State from compelling the petitioners to leave India.

The primary petitioner, Naziran Bai, stated that she was born and brought up in Indore and married Mohammad Ismail of Indore in 1946. In 1948, while expecting her first child, her father (who had migrated to Pakistan) came from Pakistan and took her to Karachi allegedly on the authority of a temporary permit. Her daughter Naseem Bano was born in Karachi on 22-8-1949. Naziran Bai says she became seriously ill and could not return to India within the time allowed by the permit. She says she applied several times to the High Commissioner for India in Pakistan and to other authorities in India for a permit for her permanent return, but no permit was granted. She then applied to the Pakistan Government for a passport, obtained one (Pakistan Passport No. 151313 dated 5-1-1954), and returned to India in March 1954 on that passport. A further daughter, Perween Bano, was born in India on 17-11-1954. The State, through Indore police, allegedly threatened to arrest her and compel her and her minor daughters to leave India when the permitted stay expired.

The High Court heard Mr. Khan, counsel for the petitioners, and dismissed the petition. Chaturvedi, J. agreed and the petition was dismissed.

Legal Issues Presented

Whether Naziran Bai is an Indian citizen by operation of Article 5 of the Constitution (being born and domiciled in India at the commencement of the Constitution) or whether she is excluded from Indian citizenship by Article 7 because she migrated to Pakistan after 1-3-1947.
Whether Naziran Bai's return to India on a Pakistan passport and her extensions of stay are evidence that she migrated to Pakistan after 1-3-1947 and acquired Pakistan nationality for purposes of Article 7.
Whether declarations or orders (such as the Declaration as to Foreign States Order, 1950) or provisions of the Citizenship Act (Sections 11 and 12) or Article 9/Article 19 of the Constitution entitle Naziran Bai to remain in India or invoke fundamental-right protections despite a finding of migration to Pakistan.
Whether Naziran Bai's minor daughters are Indian citizens and therefore can be compelled to remain in India irrespective of her status.

Arguments of the Parties

Petitioner's Arguments (as presented in the opinion)

The petitioner Naziran Bai was born in India and had her domicile in India at the commencement of the Constitution; hence she is an Indian citizen under Article 5.
Her 1948 trip to Pakistan was temporary (for delivery and medical treatment) and she never migrated to Pakistan; therefore Article 7 should not apply.
Her husband Mohammad Ismail remained in India; the wife's domicile follows the husband's, so she could not be said to have migrated to Pakistan.
The fact that she returned to India on a Pakistan passport is of no consequence to her citizenship claim.
It was argued that the Declaration as to Foreign States Order, 1950 (issued under Article 367(3)) and the status as a Commonwealth citizen (Section 11, Citizenship Act, 1955) mean Article 9 or Article 19 protections should apply or that Article 9 does not operate to deprive her of Indian citizenship in these circumstances.
It was contended that the Indian Passport Act and rules, to the extent they restrict entry/residence, are repugnant to Article 19 (freedom of movement and residence) and therefore void as applied.
Counsel relied on certain earlier decisions (Mt. Allah Bandi v. Government of Union of India; Mrs. Rosetta Evelyn Attaullah v. Justin Attaullah) as supportive authorities on factual or legal points relevant to the petitioner's case.

The opinion does not contain a detailed account of arguments advanced by the State or other opposing counsel; the court's reasoning sets out the State's position and legal conclusions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of Bihar v. Kumar Amar Singh, (S) AIR 1955 SC 282	That Article 7 "clearly overrides Article 5" and is peremptory; a wife who migrated to Pakistan after the relevant date cannot claim Indian citizenship under Article 5 unless within the proviso to Article 7.	The court relied on this Supreme Court decision to hold that Article 7 applies even where a wife left for Pakistan and her husband remained in India; therefore Article 7 can deprive such a person of Indian citizenship despite domicile considerations.
The King v. Brailsford, (1905) 2 KB 730	General proposition about the nature of a passport as a document of identity and nationality (illustrative authority).	Used to support the view that statements in a passport about nationality and domicile are material and arise from declarations made to the issuing authority; the court gave weight to passport statements describing Naziran Bai as a Pakistan national.
V.G. Row v. State of Madras, AIR 1954 Mad 240	Authority on passport as evidence of nationality/identity (cited alongside Brailsford).	Invoked to reinforce the court's conclusion that Naziran Bai's Pakistan passport is evidence relevant to nationality and migration.
Noor Mohammad v. The State of Madhya Bharat, Civil Misc. Case No. 17 of 1956: (S) AIR 1956 Madh-B 211	Considered the effect of the Declaration as to Foreign States Order, 1950 and held that it does not render Commonwealth nationals Indian citizens for the purposes of Articles that do not refer to "foreign State"; supports the non-application of Article 9 to override Article 7.	The court relied on this earlier decision of the same jurisdiction to reject the petitioner's contention that the Declaration as to Foreign States Order or Article 9 rendered Article 7 inapplicable to persons who migrated to Pakistan and acquired Pakistan nationality.
Hans Muller v. Superintendent, Presidency Jail, Calcutta, (S) AIR 1955 SC 367	Authority for the proposition that Article 19 does not apply to foreigners.	Used to support the court's conclusion that, even if Naziran Bai had Commonwealth status under Section 11, she could not claim Article 19 rights as a citizen unless the Central Government had conferred those rights under Section 12.
Mt. Allah Bandi v. Government of Union of India, AIR 1954 All 456	Fact-specific authority concerning minor married girls who left for Pakistan with parents and returned on permanent permits; relevant facts differ here.	The court considered this case and held it distinguishable on the facts (it involved minors and permanent permits), so its principles were not applied to Naziran Bai's case of a major married woman who left after 1-3-1947 and returned on a Pakistan passport.
Mrs. Rosetta Evelyn Attaullah v. Justin Attaullah, AIR 1953 Cal 530	Another factual precedent cited by petitioner but treated as not applicable on the facts of the present case.	The court noted that this Calcutta decision is different on the facts and its principles "have no applicability here."

Court's Reasoning and Analysis

The court proceeded through a step-by-step legal analysis strictly on the basis of the material in the petition and applicable constitutional and statutory provisions:

The court first considered the petitioner's core contention that she qualified as an Indian citizen under Article 5 because she was born in India and domiciled in India at the commencement of the Constitution. The petitioner's counsel argued the 1948 trip to Pakistan was temporary and that she never migrated.
The court found that the material placed before it did not corroborate the petitioner's claim of a merely temporary visit: no copy of the alleged temporary permit was produced; applications to the High Commissioner for permanent return were not filed; and importantly, the petitioner returned to India on a Pakistan passport (Passport No. 151313 dated 5-1-1954) and had her period of stay in India extended from time to time.
On the legal effect of these facts, the court relied on the Supreme Court's decision in State of Bihar v. Kumar Amar Singh, holding that Article 7 overrides Article 5 and applies to persons who migrated to Pakistan after 1-3-1947 even if they had been domiciled in India or had husbands who remained in India.
The court treated the Pakistan passport as evidence of nationality and domicile (observing that passport entries are likely based on declarations made to Pakistani authorities) and rejected the petitioner's submission that the passport statements should be disregarded. The court cited authorities on the nature of a passport as a document of identity and nationality.
Because the petitioner had come to India on a Pakistan passport and sought extensions of stay (which the court read as indicating an intention to return to Pakistan after expiry), the court concluded she had migrated to Pakistan after 1-3-1947 and therefore could not claim Indian citizenship under Article 7. The petitioner did not assert that her circumstances fell within the proviso to Article 7.
The court addressed subsidiary arguments: the Declaration as to Foreign States Order, 1950 (under Article 367(3)) does not negate the operation of Article 7; the distinction between 'foreign State' usage elsewhere in the Constitution and the wording of Article 7 means the Declaration cannot be used to read Article 7 out of operation for persons who migrated to Pakistan. The court relied on its earlier Noor Mohammad decision for this point.
On the contention that Section 11 of the Citizenship Act, 1955 confers Commonwealth citizenship and thereby Article 19 rights, the court observed that Section 11 confers Commonwealth citizen status but any rights of Indian citizens to such Commonwealth citizens are matters for the Central Government under Section 12 by notification. No Section 12 notification conferring Article 19 rights on Pakistan citizens was shown; hence Article 19(1)(d) and (e) could not be invoked by the petitioner.
The court held that the entry and stay of Naziran Bai in India were governed by the Indian Passport Act, 1920 and the Indian Passport Rules, 1950; under those provisions she could not remain beyond the visa/extended period. The court therefore rejected the submission that the Passport Act was repugnant to Article 19, on the ground that Article 19 did not apply to a person who, as the court held, was a foreigner for these purposes.
The court considered cited authorities relied on by the petitioner (Mt. Allah Bandi and Rosetta Attaullah) and found them distinguishable on their facts and not applicable to a case of a major married woman who left after 1-3-1947 and returned on a Pakistan passport.
As to the petitioner's minor daughters, the court held that the daughters—one born in Karachi in 1949 and the other born in Indore in 1954—are Indian citizens under Article 5 and Section 3 of the Citizenship Act, 1955. Being minors, they adopt the domicile of their father and are not regarded as having migrated under Article 7. Consequently, they cannot be compelled to leave India with their mother.
The court suggested a remedial administrative route for the petitioner: apply under Section 5 of the Citizenship Act, 1955 for registration as an Indian citizen, and expressed confidence that the State would allow sufficient time for such an application.

Holding and Implications

Holding: For the reasons stated, the petition was dismissed. The court held that Naziran Bai had migrated to Pakistan after 1-3-1947 and therefore could not be regarded as an Indian citizen under Article 7; she was not entitled to relief restraining the State from enforcing immigration/passport provisions. Chaturvedi, J. concurred and the petition was dismissed.

Implications:

Direct effect on the parties: Naziran Bai was not entitled to retain the protection of Indian citizenship; her entry and stay in India are governed by the Indian Passport Act and Rules and by her Pakistan passport/visa status. The State remained able to enforce the expiry of permitted stay.
Immediate protective outcome for children: The petitioner's two minor daughters were held to be Indian citizens (Article 5 and Section 3 of the Citizenship Act, 1955) and thus could not be compelled to leave India with their mother.
Administrative remedy suggested: The court recommended that Naziran Bai apply for registration under Section 5 of the Citizenship Act, 1955 and expressed confidence that the State would afford her sufficient time to do so.
No new constitutional principle was formulated by the court beyond applying existing provisions (Article 5, Article 7, Article 9, Article 19) and earlier authorities: the decision applies those provisions and precedents to the facts and does not purport to lay down a novel rule of law beyond the reasoning recorded.

Order: Petition dismissed. (Dixit, J.; Chaturvedi, J. concurred.)

Show all summary ...

Dixit, J.:— This is an application under Article 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 Article 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.

4. 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 Article 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 Article 7.

5. The fact that her husband remained in India and her domicile is that of India cannot render V Article 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 had that “Art 7 clearly overrides Article 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 Article 7.”

6. The Supreme Court's 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 Article 7 notwithstanding the proposition that the wife's domicile continues throughout to be that of her husband during the continuance of marriage. The sole question, therefore, is whether Naziran Bai migrated to Pakistan after 1-3-1947.

7. The petitioner says that she went to Pakistan in 1948 on a temporary permit. But the temporary permit or a copy of it has not been filed with the petition and one does not know as to what this permit was. She further says that she applied unsuccessfully to the High Commissioner for India in Pakistan and to other authorities for a permit for her permanent return to India. Copies of these applications have not been filed and there is no indication whatsoever as to what declarations Naziran Bai made when she applied to those authorities and the grounds on which a permit for her permanent return was refused to her.

8. She came to India admittedly on a Pakistan passport and had her period of stay in this country extended from time to time. That she applied for extension of the period of her stay is evident from her statement in para. 2 of this application that the Passport No. 151313 and the Visa granted thereon from time to time are a nullity.

9. Learned counsel for the petitioner produced in the Court that passport issued to Naziran Bai by Pakistan Government. It describes her as a Pakistan citizen and mentions her domicile as Pakistan. I think it is a fair assumption to make that these statements in the passport as to Naziran Bai's nationality and domicile were entered on the basis of the declarations made by her when she applied to the Pakistan authorities for the issue of a passport. The fact that on her return to India she applied for the extension of the period of her stay necessarily implies that on the expiry of that period, she wanted to return to Pakistan.

10. Learned counsel for the petitioner said that no weight should be attached to these statements in the passport. I do not agree with him. A passport is a document of identity and nationality issued to citizens or subjects of a State who intend to travel or visit foreign countries. It is a document which requests and requires in the name of the State or the Government issuing it, all those to whom it may concern to give to the bearer every Page: 3assistance and protection as a subject or the citizen of the State issuing the passport an foreign countries. (See ‘The King v. Brailsford’, (1905) 2 KB 730 at p. 745 (B) and ‘V.G Row v. State of Madras’, AIR 1954 Mad 240 (C)).

11. This being the nature of a passport, I am unable to view the fact that the petitioner Naziran Bai obtained a passport from the Pakistan State describing her as a Pakistan national and came to India on that passport and got her period of stay in this country extended from time to time as one other evidence of her Pakistan nationality and of her migration to Pakistan after 1-3-1947. If then as I think the petitioner Naziran Bai migrated to Pakistan after 1-3-1947, she cannot be regarded as an Indian citizen under Article 7. It is not her contention that her case falls under the proviso to Article 7.

12. Learned counsel for the petitioner then urged that even if Naziran Bai became a citizen of Pakistan, she did not cease to be an Indian citizen because by the Declaration as to Foreign States Order, 1950 issued under Article 367(3) every country within the Commonwealth was declared fact to be a foreign State for the purposes of the Constitution and Pakistan was a country within the Commonwealth; and that Article 9 had no applicability where Indian citizenship was lost by acquisition of the citizenship of a foreign State after the commencement of the Constitution. A similar contention was advanced in the case of ‘Noor Mohammad v. The State of Madhya Bharat’, Civil Misc. case No. 17 of 1956: ((S) AIR 1956 Madh-B 211) (D) and it was repelled by us observing that:

“the effect of the Declaration as to Foreign States Order 1950 is only this that wherever the words ‘foreign State’ appear in the Constitution they must be taken as not including countries within the Commonwealth. This is clear from the wording of Article 367(3) and of the Order referred to above. The Order does not mean that citizens of Commonwealth countries are Indian citizens even for the purposes of these Articles of the Constitution which do not contain the words ‘foreign State’ and where the question of the interpretation of the expression ‘foreign State’ does not arise. Article 7 does not use the words ‘foreign State’.

In Article 9 there is no reference whatsoever to Article 7. That Article like Article 7 is a disabling provision. The fact that Article 9 does not deal with acquisition of citizenship of a foreign State after the commencement of the Constitution cannot, however, lead to the conclusion that Article 7 is inapplicable to those persons who migrated to Pakistan after 26-1-1950 and acquired Pakistan nationality. Such a construction would render nugatory Article 7.”

13. It was then said that under Section 11 of the Citizenship Act, 1955, Naziran Bai has the status of a Commonwealth citizen and as such she has the fundamental right under Article 19 of the Constitution to move freely throughout the territory of India and to reside and settle in any part of India. No doubt under S. 11 Naziran Bai has the status of a Commonwealth citizen. But as a Commonwealth citizen she can have only those rights which the Central Government may under Section 12 of the Citizenship Act by order notified in the Grazette, confer all or any of the rights of the citizens of India on the citizens of Pakistan.

14. Learned counsel was unable to point out to is any order under S. 12 of the Act conferring on the citizens of Pakistan the fundamental rights guaranteed to the citizens of India under Article 19. In the absence of any such notification she cannot claim the rights under Article 19(1)(d) and (e). She cannot claim the fundamental rights under Article 19, as a citizen of Pakistan. That Article does not apply to foreigners. See ‘Hans Muller v. Superintendent, Presidency Jail, Calcutta’, ((S) AIR 1955 SC 367) (E).

15. The petitioner Naziran Bai's entry and stay in India is solely governed by the Indian Passport Act, 1920 and the Indian Passport Rules, 1950. Under those provisions she cannot stay in this country after the expiry of the period specified in the Visa and of the extended period thereafter. A similar view has been taken by us in ‘Noor Mohammad's case’ (D) referred to above.

16. The further contention of the learned counsel that the Indian Passport Act and the rules thereunder being repugnant to Article 19 are void must be rejected on the short ground that as the petitioner Naziran Bai has not the fundamental rights under Article 19 and as that Article does not apply to foreigners, the question of the Passport Act and the rules thereunder, in so far as they prohibit the entry into India of foreigners except under a valid passport, being repugnant to Article 19 cannot arise.

17. Learned counsel referred us to ‘Mt. Allah Bandi v. Government of Union of India’, AIR 1954 All 456 (F) and ‘Mrs. Rosetta Evelyn Attaullah v. Justin Attaullah’, AIR 1953 Cal 530 (G). Both these cases are distinguishable. The Allahabad case dealt with the question of two Mohammadan minor married girls who left for Pakistan along with their parents in 1947 and whose husbands who were citizens of India remained all along in the territory of India. The minor girls returned to India on a permanent permit issued by the High Commissioner for India in Pakistan which was, however, cancelled subsequently.

18. Here the petitioner Naziran Bai has not said that she is a minor or was one when she applied for a passport to the Pakistan authorities in 1944. The Allahabad case did not deal with the question of a major married girl, who left for Pakistan after 1-3-1947 and returned to India thereafter on a Pakistan passport. In the Calcutta case also this question did not arise for consideration. That case is altogether different on facts and deals with principles which have no applicability here.

19. The petitioner Naziran Bai is therefore, not entitled to the relief she claims with regard to herself. As to her minor daughters one born in Karachi in 1949 and the other in Indore in 1954, they are undoubtedly Indian citizens under Article 5 of the Constitution and Section 3 of the Citizenship Act, 1955. Being minors, they take the domicile of their father and in their case there is no question of migration under Article 7. They cannot, therefore, be compelled to leave India with their mother. The petitioner merely apprehends that her minor children may also be forced to leave with her. There is no basis for such an apprehension, and there need be none when I have made it clear that the minor daughters cannot be forced to leave India with their mother. It is unfortunate that the petitioner Naziran Bai, as it is, has to leave India leaving her husband and minor children here. But I think she can avoid this situation if she applies under Section 5 of the Citizenship Act, 1955 for registration as a citizen of India. I am confident that the opponent State will allow her to stay in India for sufficient time so as to enable her to apply under S. 5 for being registered as a citizen of india.

20. For the foregoing reasons this petition is dismissed.

Chaturvedi, J.:— I agree.

21. Petition dismissed.