Rashid Hasan Roomi v. Union of India

Case Summary

Full Case Details

Tripathi, J.

1. Bythispetitionunder Section 491 of the Codeof CriminalProcedurea challengeis raisedto
   the validity of the petitioners’ detention in the district jail, Fatehpur, in pursuance to an order
   purportingto beunder ForeignersInternment Order,1962, and it is prayedthat he be set at liberty.
2. Having heard learned counsel for the parties at some length, we directed yesterday that the
   petitionerbeset at libertyforthwith.Wenowproposetogiveour reasonsfortheorder.
3. The undisputed facts which are relevant to the questions in controversy are of somewhat
   unusual nature and raiseinterestingquestionsof law.
4. The petitionerwas born of Indianparentsin the districtof Fatehpurandhas been livingsince
   his birth in this country. He was here on 26th January, 1950, when the Constitution of India came
   into force. The petitioner’s father Syed Siddiq Hasan migrated to Pakistan in 1948 leaving behind
   the petitionerwho was then a minor and his youngerbrothers and sisters in India. It is admittedthat
   the petitionerhas been living in Kasba Kara Jahanabad District Fatehpursinceafterthe migrationof
   hisfatherto Pakistanandhasbeencarryingon cultivation.
   Accordingto the petitionerhis permanenthomeis at Jahanabadwhere he owns considerable
   cultivableland and practises as a registered HomoeopathicDoctor. The petitionerhas filed certified
   copiesof the extracts from the final Assemblyelectoralrollsfor 1957 and 1962 for Kara Jahanabad
   Town Area which indicatethat he is entered as a voter at serial Nos. 667 and 36 respectivelyof the
   aforesaidelectoral rolls. The petitioner’sallegation that he contested the electionof the Town Area
   for the officeof Chairman in 1958 has not beendenied. His furtherallegationthat he contested for
   the aforesaidofficeagainin the year1964 and was elected as the Chairmanof the Town Area
   Committeeand has been continuingin that officetoo hasnot beendeniedin the counteraffidavit.
   The petitionerhas annexedcertifiedcopiesof the resultsheetsof the aforesaidtwo electionswhich
   indicatethat in the electionwhich was heldin 1957 the votespolledby him were 1011 as against
   1131 of the successfulcandidatewhilein the electionwhich was heldin 1964 he polled the highest
   numberof votesand was declaredelected as Chairmanof the Town Area Committee. It is admitted
   that he at the timeof his arrest alsowas occupyingthe officeof the Chairmanof the Town Area
   Committeeof Kara Tahanabad. The petitionerhas alsoobtained an India-Pakistanpassport before
5. It appearshoweverthat his applicationfor obtaininganother India-Pakistanpassport in 1961
   has not been grantedby the State Government as is evidentfrom annexure I to the counteraffidavit.
   The petitionerwas arrestedon 13thof October, 1965, in pursuanceto an order of the civil
   authority, Fatehpur, purportingto be underpara 5/8 of the Foreigners’ Internment Order, 1962, and
   since then he is confined in the district jail, Fatehpur.
6. It is urged on behalf of the petitioner that he is an Indian citizen and his detention as a
   Pakistaninationalis not sustainablein law.
7. Mr. H. N. Seth, learnedcounsel for the opposite party has contended that as the petitioner’s
   fatherhad migratedto Pakistanin the year 1948 whenthe petitionerwas still a minorhis domicileis
   linked with that of his fatherand thereforehe cannot be held to havedomiciled in India on the 26th
   January, 1950, when the Constitution came into force and as such cannot be held to be a citizen of
   India. Reliance was placed by the learned counsel on the decisions reported in 1954 All LJ 156:
   AIR 1954 All 456): AIR 1955 Nag 6, AIR 1957 Punj 86 and AIR 1961 Orissa 150. Learned
   counselalso citeda passagefrom G. C. Cheshire’Private International Law’ in supportof his
   contentionthat the domicileof an infantautomaticallychangeswith any changethat occursin the
   domicile of thefather.
8. The argument raised by the learned counsel though ingenious is based on a fallacy and the
   casescitedbyhimdo not applyto thefactsof thepresentcase.
9. In thecaseof Smt. Allah Bandi v. Govt. of Unionof India,1954 All LJ 156: AIR 1954 All
   456) the two minor married girls who happened to be with their parents at the time of the
   disturbances of 1947 also went to Pakistan when their parents left for that country while their
   husbands who were citizens of India continued to reside in India. It was held that the girls being
   minors could not legally change their domicile of origin and shift to Pakistan with the intention of
   settlingthere in the absenceof their husbandsand therefore it could not be said that theymigratedto
   Pakistanwhentheyleft Indiawiththeirparents.
10. In the caseof Karimunnisa v. Stateof Madhya Pradesh, AIR 1955 Nag 6 it was held that
    in the case of a dependenthis domicileis the same and changeswith the domicileof the person on
    whom he is, as regards his domicile, legallydependant and the domicileof an infant is determined
    bythatofhis father.In thiscasethe infanthad migratedto Pakistanalongwithhis father.
11. In State v. Abdul Hamid, AIR 1957 Punj 86 also their Lordshipsweredealingwitha case
    where a minor had migratedto Pakistanalongwith his father and in that settingof facts it was held
    thattheminoralsomustbe takento haveacquiredthenationalityofhisfather.
12. In the case of Mohammad Umar v. State, AIR 1961 Orissa 150 the court was concerned
    witha casewheretheminorhadmigratedto Pakistanalongwithhisfatherinthe year1949.
13. Thus it will be noticed that none of the aforesaid cases cited by the learned counsel deal
    witha casewherethe infantor the minorhad been left at the placeof his birthbyhis fatherwho had
    deserted him and then had migratedto a foreigncountry. Here we are concernedwith a case where
    the petitionerwas deserted by his father who migrated to Pakistan leavinghim to stand on his own
    in the landof hisbirth.
14. G. C. Cheshireinhis’PrivateInternationalLaw’says:–
    “The primaryrule is that the domicileof an infantautomaticallychanges with any change that
    occurs in the domicile of the father. As between a living father and his infant child there is a
    necessary unity of domicile, even though they may reside in different countries. This unity is not
    destructible at the will of the father. It is not terminated if he purports to create a separate domicile
    for his son, for instance, by entrusting his future care and maintenance to a relative domiciled in
    anothercountryor by setting him up in business abroad. This doctrine, that a changein the father’s
    domicileis necessarilycommunicatedto the child, is generallylaid down in absolute terms, but it is
    to be hopedthatshouldthe occasionarise it willnot be pressedto its logicalconclusion.
    Suppose, for instance, that, if father deserts his son, leaves him in his domicile of origin and
    himself acquires a fresh domicile elsewhere. Or suppose that he is divorced for adultery and the
    custodyof the children is given to his wife. In such cases as these it is scarcelycrediblethat a court
    wouldaffirmthe inevitabilityof a commondomicile.”
15. We are, therefore,of opinionthat on the factsof the present case it will not be reasonableto
    hold that although the petitioner was domiciled in India on the date when Constitution came into
    forcebecausehe happenedto be a minorof about 13 or 14 yearson that date his domicilemustbe
    linked with that of his father who had migrated to Pakistan in the year 1948 after deserting him in
    India.
16. The petitionerwas born of Indianparentsin the territoryof India. He had his domicile here
    and at the commencementof the Constitutionhad been ordinarilya resident in the territoryof India
    for more than five years immediately preceding such commencement. He has been enrolled as a
    voter in his country. He contested the election for the office of the Chairman of the Town Area
    Committee twice once in the year 1957 and then again in the year 1964. He has been occupying
    that officesince November 1964. For instanceof this applicationtherefore it must be held that he is
    a citizen of India.
17. Mr. Seth contends that even if the applicant is held to be a citizen of India, as his father is
    admittedly a national of Pakistan the petitioner comes under the wide sweep of Section 3 of the
    Foreigner’s Internment Order which provides that any person who, or either of whose parents, or
    any of whose grand parents was at any time a citizen or subject of any country at war with, or
    committingexternalaggressionagainst India,can be arrestedunderparagraph5 of thesaidorder.
18. Para3 of theorder as it: originallystoodreadsas follows:
    “3. Application of chapter–This chapter shall apply to and in relation to any foreigner who is,
    and anypersonnot of Indianoriginwho was at birth, a citizenor subjectof anycountryat war with,
    or committingexternalaggressionagainst India.
19. It was amended by Foreigners (Internment) Amendment Order dated 26th November
    1962 andtheaforesaidparagraphwassubstitutedbythefollowingparagraph:–
    “3. Application of chapter–This chapter shall apply to and in relation to any foreigner who is,
    and any person who, or eitherof whose parents, or any of whose grand parents was at any time a
    citizen or subject of any country at war with, or committing external aggression against India, …
    Then there was another amendment being Foreigners’ Internment Amendment Order 1965 which
    came into force on the 6th of September, 1965, which provided inter alia that “in the Foreigners
    Internment Order, 1962, in paragraph 3, for the words” in relation to any foreigner “the words” in
    relationto anynationalof Pakistanand to anyotherforeignershallbe substituted.
20. It will be observedthat originallyparagraph 3 pf the Order appliedto any foreigner but by
    the amendment of 1965 the nationals of Pakistan were placed in a separate category for the
    applicationof chapter2 ofthe Order,thanotherforeigners.
21. It is true that in view of the provisions of paragraph 3 of the Order as it stands today any
    person who, or either of whose parents, or anyof whose grand parents was at any time a citizen or
    subject of any country at war with India can also be arrested and detained under the Foreigners’
    Internment Order, 1962. If is also true that as the petitioner’s father is admittedlyin Pakistan he falls
    in one of the categoriesmentionedin paragraph 3 of the Order. But the impugnedorder passed by
    the civil authoritymakes it clear that the petitioner has been detainedon the suppositionthat he was
    a Pakistan nationaland not because his father happenedto be in Pakistan. In order to appreciatethe
    point it is necessaryto quotetheorder:
    “In exercise of the power conferred upon me as Civil Authority of district Fatehpur, I Sheo
    Pujan Singh do herebyorder that Sri Rashid Hasan Roomi a Pakistan Nationalson of Syed Siddiq
    Hasan Roomi r/o vill. Kora Tahanabad P. O. Jahanabaddistrict Fatehpurholding Pakistani Passport
    No. Nil dated Nil and India Visa No. Nil dated Nil be arrested under para 5/8 of the Foreigners’
    (Internment) Order, 1962, as applicable to Pakistani Nationals in India vide Government of India
    Notification No. 1/ 61/65-F. III dated September 7, 1965 and further that he be confined in District
    Jail.Fatehpuras providedin para6 of thesaidorder.
    Sd/- S. P.Singh .
    Civil Authority
    Foreigners’ RegistrationOfficer.
    Dated October, 12, 1965.
    
22. It will be noticed that the impugned order describes the petitioner as a Pakistani national
    and says that he be arrested underpara 5/8 of the Foreigners’ Internment Order, 1962, as applicable
    to Pakistani nationals in India. It is, therefore, obvious that the impugned order was passed by the
    civil authority on the supposition that the petitioner was a national of Pakistan and not becausehe
    fell under the third category i.e. one of his parents was residing in Pakistani territory. As the
    suppositionon whichthe orderis basedhas provedto be illusoryin lawthe order mustbe heldto be
    invalid.
23. It wasforthesereasonsthat we haddirectedyesterdaythatthepetitionerbeset at liberty