- (1.) THIS is a reference by a learned Additional Sessions Judge, Jhalawar, and arises in the following circumstances: - One girl Rihana Parveen is being persecuted in the Court of S. D. M. , Jhalawar, as being a foreigner, namely, a Pakistan national, who had contravened an order made under the Foreigners Act, 1946, (Act No. XXXI of 1946 ). It is not clear from the challan what order had been transgressed, but the facts stated are that the visa obtained was of category C, and the period of visit was restricted to 22nd December, 1955, which was later on extended by the District Magistrate, Jhalawar, to 20th January, 1956, but that nevertheless the said girl did not leave India after the extended period. That kind of order can amount to a restriction on the sojourn in India. The challan was presented on 16th of June, 1957. The learned Magistrate examined Mr. Jamil Ahmed, Advocate for the accused, as she had been exempted from appearance in court. After the examination of the accused under sec. 251 A, clause (2) Cr. P. C. the Magistrate framed a charge under sec. 14 of the Foreigners Act. The charge framed was that the said girl having entered India by Pakistan Passport, No. 359061 dated 30th August, 1955, with visa No. 58370 of 23rd September, 1955, remained in India even after the extended period ending 20th January, 1956, and did not leave India even when ordered to do so by the District Magistrate. The charge was framed on 29th July, 1957. A revision was filed on behalf of Rihana Parveen, and the learned Additional Sessions Judge, Jhalawar, has recommended that the charge should be quashed. The ground for his recommendation is that she is the daughter of Mr. Jamil Ahmed, who is an Indian national, and Rihana Parveen being a minor daughter of Jamil Ahmed had under the law the same nationality as her father, namely, Indian, and, therefore, she had committed no offence by continuing to stay in India.
(2.) IN my opinion the recommendation is not justified on the present material on record. While there is no doubt that a minor acquires the domicile of his father, there are various questions which arise in this case, and which can only be thrashed out after evidence. The fact that Mr. Jamil Ahmed Khan is practising at Jhalawar as a lawyer, and had been in INdia for a long time is not conclusive of the fact whether he is or is not an INdian national. The matter has to be decided by reference to the provisions of the Constitution of INdia a)nd the INdian Citizenship Act. Art. 5 of the Constitution says - "at the commencement of this Constitution, every person who has his domicile in the territory of India and - (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India. " The first condition is that the person should have his domicile in the territory of India, and coupled with that condition, any one of the three conditions must also exist, and then the said person can be said to be a citizen of India. The partition of the former Dominion of India into two countries India and Pakistan left a choice on the residents of the Indo-Pakistan Dominion to choose whichever of the two countries as their domicile. The fact that a person had been a resident of Indo-Pakistan Dominion did not make him automatically a person with domicile in one or the other Dominion. In the present case, therefore, mere residence or following a particular profession in India by the father of the girl is not conclusive for the purposes of determining his domicile. This is a question of fact, which has to be determined in accordance with the facts and circumstances that may be brought to light as the case proceeds. Again, under sec. 9 of the Foreigners Act it is provided that - "if in any case not falling under sec. 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall notwithstanding anything contained in the Indian Evidence Act, 1872, lie upon such person. " The burden of proof under sec. 9 of the Foreigners Act has been thrown on Rihana Par-veen that she is not a foreigner, namely, a Pakistani, as is alleged in the challan. It may be mentioned that the visa obtained by Rihana Parveen is of Class C. This visa was granted by the office of the Indian High Commissioner at Karachi According to the rules framed under the Indian Passport Act it is to be granted to Pakistani nationals who wish to visit India. The girl herself is described in the passport granted by the Government of Pakistan as being a citizen of Pakistan. While under the International Law it is true that a minor acquires the citizenship or nationality of her father, and continues to retain it until she becomes of age and renounces it, there is a provision in the Pakistan Citizenship Act (No. II of 1951), which permits a minor child to obtain citizenship of Pakistan by application in a prescribed manner by a parent or guardian of the minor child. It is said that while the father remained in India, the girl's mother, migrated to Pakistan. Since a parent includes not only father but also the mother, it is possible under the law in force in Pakistan for minors to acquire citizenship of Pakistan even if either the father or mother makes an application or complies with the requirements of sec. 11 of the Pakistan Act No. II of 1951. I do not propose to express any opinion on any of these questions, but the case is one which cannot be decided simply by the fact that her father lived in Indo-Pakistan Dominion prior to partition, and thereafter continued to reside in India. The reference of the lower court is based only on the above fact, and the assumption therefrom that Mr. Jamil Ahmed Khan was a citizen of India, and, therefore, Rihana Parveen, who is the minor daughter of Mr. Jamil Ahmed Khan was an Indian national, and therefore, not liable to be prosecuted under the Foreigners Act. I would, therefore, reject the recommendation, and remand the case for trial according to law. . ;