Abdus Sabur Khan vs Union Of India & Ors.
2010 Latest Caselaw 5642 Del

*                  THE HIGH COURT OF DELHI AT NEW DELHI

%                          Judgment delivered on: 10th December, 2010

+        LPA No. 878/2010

         ABDUS SABUR KHAN                            ..... Appellant
                      Through:         Mr. Jayant Bhushan, Sr. Adv.
                                       with Mr.Amjad Ali, Mr.Anil
                                       Agarwalla, Mr. Jagdeep Anand,
                                       Advocates
                      versus

         UNION OF INDIA & ORS.              ..... Respondents

Through: Mr. Ruchir Mishra, Adv. for

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN

1. Whether reporters of the local papers be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

DIPAK MISRA, CJ

In this intra-Court appeal under Clause 10 of the Letters

Patent questioning the warrantableness of the order dated 25 th

November, 2010 passed by the learned Single Judge in WP(C) No.

7898/2010, though on the surface level, a question is raised as to the

locus standi of the appellant-petitioner (hereinafter referred to as „the

appellant‟) as a father to question the legal propriety of the order

passed by the Ministry of Home Affairs (MHA), Foreigners

Division, Government of India under Section 3A of the Foreigners

Act, 1946 (for brevity „the Act‟) whereby the competent authority

has passed an order that the respondent no.10, Ms. Shazia Zareen

Sathi, the daughter of the appellant, will remain exempted from

deportation proceedings, yet on a studied scrutiny and a keener

scan, it would be luminescent that the father has put his obstinacy

and honour in its degenerated sense at a higher pedestal in the

name of parental concern totally ostracising the idea and the value

that a major has the choice to get married and also a right to life and

not to live in constant fear psychosis. True it is, it has been said "the

family is the nucleus of civilisation", but the question that emerges

for consideration is whether a daughter, after getting protection

from the authority of MHA, would still remain subservient to the

loud and morbid honour of her father who is embedded with his

"coveted honour". Long back, Aristotle had pronounced, "Dignity

doesn‟t consist in possessing honour, but in deserving them". As

the factual matrix of the case would unfold, it would reveal that the

respondent no.10 has the intense desire to get rid of the „family

skeleton‟ and the "myth of honour" and lead a life of her own

choice.

2. The exposition of facts, as unfurled, are that the daughter of

the appellant, a major, came to India on her own on a Bangladeshi

passport and got married to one Zubair Khan on 13th February, 2009

and thereafter submitted a representation to the Central

Government on 28th May, 2010 wherein she expressed an

apprehension that if she went back to Bangladesh, her life would be

in danger. The learned Single Judge perused the impugned order

which showed acceptance of the apprehension expressed by

Ms.Shazia Zareen Sathi and the formation of an opinion that all the

provisions of the Act shall not apply to her as well as to her

daughter and she would remain exempted from deportation

proceedings. Upon perusal of the order the learned Single Judge

held that the writ petition was not filed in the best interest of the

respondent No.10 as she has a choice to marry and the plea of the

father that he is concerned with the safety and welfare of his

daughter is not convincing and, hence, the impugned order at the

instance of the appellant is not to be interfered with.

3. We have heard Mr. Jayant Bhushan, learned senior counsel

along with Mr. Amjad Ali, Mr.Anil Agarwalla and Mr.Jagdeep

Anand for the appellant and Mr. Ruchir Mishra, learned counsel for

the respondent Nos. 1, 2, 3 and 9.

4. Mr. Bhushan, learned senior counsel, questioning the

correctness of the order, submitted that the learned Single Judge

has, in a way, opined that the appellant has no locus standi to call in

question the order of the authority which is demonstrably

erroneous. It is his further submission that as a father, the appellant

has the concern and also the duty to see that his daughter, who is

married to the said Zubair Khan who has criminal antecedents, is

not involved in human trafficking and her life is not in total peril.

The learned senior counsel would submit that the daughter of the

appellant has not taken „talaq‟ from her first husband and, therefore,

the marriage with Zubair Khan is totally illegal and, hence, the

exemption is in total disregard of the law and deserves to be axed.

5. Mr. Ruchir Mishra, learned counsel for the Union of India,

submitted that the entire facts were considered by the competent

authority and an order has been passed and the said order, being on

the basis of the material available on record, cannot be found fault

with. The learned counsel also submitted that the risk to the life of

the respondent no.10 in Bangladesh is real and, therefore, the stand

of the appellant that he is interested in the safety of his daughter is

far from being convincing and the same having been noted by the

learned Single Judge, the order deserves to be given the stamp of

approval in this appeal.

6. To appreciate the submissions raised at the bar, we called for

the original file wherein the representation of the respondent no.10

was dealt with and the order was passed. On a perusal of the file,

we find that the respondent no.10 is a Bangladeshi national who had

arrived in India on 12th February, 2009 on „T‟ visa valid for 30 days

and after certain communication from the Bangladesh High

Commission, a report was called from FRRO, Delhi and Intelligence

Bureau which found nothing adverse against Ms. Shazia Zareen

Sathi. As she was staying on an invalid passport, the Ministry of

External Affairs was requested to contact the Bangladesh High

Commission to determine the modalities for her deportation.

Eventually, as is revealed, the appellant had filed WP(C)

No.12325/2009 praying for deportation of his daughter to

Bangladesh in accordance with law. Mr. Zubair Khan, husband of

Ms. Shazia Zareen Sathi, the respondent no.10 herein, had filed

WP(Crl.) No. 965/2009 for quashment of the FIR lodged by the

cousin of the respondent no.10 under Sections 366 and 342 of IPC.

At this juncture, a representation was received from Ms.Shazia

Zareen Sathi in November, 2009 requesting for facilitating her stay

in India with her husband Mr. Zubair Khan. The Joint Secretary (F)

spoke to FRRO, Delhi on 2nd February, 2010 and stated the position

that if Ms.Shazia Zareen Sathi is deported to Bangladesh, her

parents would cause harm to the child in her womb which raises

human rights issues. The Court recorded the stand of the

Government that Ms.Shazia Zareen Sathi has also submitted a

request to the Government of India for allowing her to stay in India

for a long period and this Court left it at the discretion of the

Government to consider her request. In WP(Crl.) 965/2009, this

Court directed the investigating officer to visit Ms.Shazia Zareen

Sathi on 4th February, 2010 and to file a status report. After the

queries were made, this Court eventually directed the State

Government to consider the request and take appropriate decision.

Thereafter, as the notings in the file would reveal, the matter was

considered at various levels and eventually, as is manifest,

Ms.Shazia Zareen Sathi met the Joint Secretary (F) on 20th May, 2010

and informed that she is living happily with her husband in India

and if she would go to Bangladesh, her life would be in jeopardy.

Considering the representation and the statement, on 22nd

September, 2010, the respondent no.10 has been allowed to stay in

India on humanitarian basis exempting deportation/ prosecution

against her and her daughter by invoking Section 3A of the

Foreigners Act, 1946.

7. In this context, we may refer with profit to Section 3A of the

Foreigners Act, 1946 which reads as follows:

"3A. Power to exempt citizens of Commonwealth countries and other persons from application of Act in certain cases. - (1) The Central Government may, by

order, declare that all or any of the provisions of this Act or of any order made thereunder shall not apply, or shall apply only in such circumstances or with such exceptions or modifications or subject to such conditions as may be specified in the order, to or in relation to -

(a) the citizens of any such Commonwealth country as may be so specified; or

(b) any other individual foreigner or class or description of foreigner.

(2) A copy of every order made under this section shall be placed on the table of both Houses of Parliament as soon as may be after it is made."

On a reading of the aforesaid provision, it is crystal clear that

the Central Government has the power to declare all or any of the

provisions of the Act or of any order made thereunder not

applicable to a citizen of specified commonwealth country. There

are certain riders apart from the stipulation that copy of every order

made under the said Section is required to be placed on the table of

both Houses of the Parliament. Thus, there are immense safeguards

and guidelines inbuilt in the said provision. This Court in its power

of judicial review is only required to see whether a decision taken by

the Central Government at this stage dealt with the case appositely

regard being had to the representation made by the daughter of the

appellant or passed an order in a routine or mechanical manner.

The reasons indicated therein clearly show that there has been

application of mind, survey of facts, analysis of the situation and

consideration of the factual score from human rights perspective.

Thus, it would be inapposite to accept the apprehension of the

appellant that his daughter might be involved in any kind of

trafficking. The daughter, as the facts exposit, is a major. She has a

choice to lead her individual life. There may be cases where a father

in certain circumstances may think of filing a habeas corpus petition

in case the daughter is detained in illegal custody. But when a

public authority has examined her and recorded the satisfaction that

she is married to Zubair Khan and has been blessed with a

daughter, the said ground also melts into insignificance. On the

contrary, the apprehension expressed by the daughter before the

competent authority of the department, we are disposed to think, is

absolutely sanguine. She has the fear not of her life in case she is

deported but also that of her daughter. When a statutory provision

empowers the Central Government to take a decision and when a

danger to life has been canvassed and the same has been accepted

by the authority on proper scrutiny of the material, it can be stated

with certitude that the decision rendered is in accord with the

constitutional philosophy of India, the statutory protection and

declaration of human rights. It is apt to note that a human right is a

basic right, a natural right. It cannot be crucified or brought to a

state of comatose because of maladroit design of a headstrong

father. It can only be said that the father has exhibited obstinacy

and stubbornness in a bad cause. The father may harbour a feeling

that it is the defeat of his family but a defeat of this nature is not to

be given any kind of acceptation.

8. In Sangita Rani (Smt) Alias Mehnaz Jahan v. State of Uttar

Pradesh and another, 1992 Supp (1) SCC 715 a three-Judge Bench of

the Apex Court while dealing with a petition preferred under

Article 32 of the Constitution of India had not only quashed the FIR

taking note of the fact that the boy and the girl had already been

married and the marriage had been registered in court but also

cautioned the parents to accept the situation and create no problem

for her daughter and her husband.

9. In this context, we may refer with profit to the decision in

Lata Singh v. State of U.P. & Anr., AIR 2006 SC 2522, wherein a

two-Judge Bench of the Apex Court has opined thus:

"18. We sometimes hear of „honour‟ killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out acts of barbarism."

10. We may hasten to add though the said decision was rendered

in a different context but we have referred to the same because their

Lordships have shown their concern with regard to „honour killing‟

and in the case at hand the apprehension expressed by the daughter

before the competent authority of the Central Government speaks

eloquently about the danger to life she would face if she goes back

to her father in Bangladesh because of the honour which the father

harbours in a different way.

11. The parental unwanted and unwarranted intervention in the

lives of major children is sometimes writ large. In the name of

honour-individual, family and community apart from torture

murder also takes place. Honour killing cannot be countenanced in

a civilized society and more so in a body polity governed by rule of

law, for right to life is sacred and sacrosanct. One may treat that it is

an affair of honour and he would go to any extent for the cause of

his honour but by such an idea he cannot have the feeling of a victor

and the sufferer at his hand a vanquished one. India, is governed by

the resplendent philosophy of the compassionate Constitution of

India which puts life at the greatest pedestal and in such a system

an arbitrary rule, the fashionable world of honour to commit

offences or to trespass into others‟ individual living is totally

impermissible. The concept of social expulsion or suspension or

even for that matter a perverse notion of self-respect cannot be

countenanced. True it is, Mr. Bhushan, learned senior counsel for

the appellant urged with immense vehemence about the locus standi

of the father and his concern but we are of the considered opinion in

the present case that both the concepts are bound to collapse like a

pack of cards as the facts are tell tale to fresco the picture that the

appellant as a father has an agenda of vendetta and not of real

concern.

12. Ex consequenti, we do not find any merit in this appeal and

dismiss the same. Ordinarily, we would have imposed exemplary

costs but we have refrained from doing so. We are disposed to

think, a misguided father requires more of therapeutic treatment

rather to face the burden of costs.

CHIEF JUSTICE

MANMOHAN, J December 10, 2010 pk