Delhi High Court

Nuzhat Jahan vs Govt. Of Nct Of Delhi & Anr. on 7 August, 2013

Author: Kailash Gambhir

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(CRL) 1256/2013
       NUZHAT JAHAN
                                                       ..... Petitioner
                       Through: Mr. N.D. Pancholi, Mr. Kahorngam
                                Zimik, Advocates


                            versus

       GOVT. OF NCT OF DELHI & ANR.
                                                               ..... Respondent
                            Through:     Mr. Rajesh Mahajan, Additional
                                         Standing Counsel for the State
                                         Mr. Jatan Singh, CGSC and
                                         Mr.Malaya Chand, Advocates for
                                         respondent No. 2/UOI


       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MS. JUSTICE INDERMEET KAUR
                         ORDER

% 07.08.2013

Mr. Rajesh Mahajan, Additional Standing Counsel appearing for the

state has filed a status report verifying the fact that the present petitioner was

married to Mohd. Gulfam, son of Mohd. Usman resident of 2914, Kala

Masjid, Turkman Gate, Delhi and her husband is not involved in any

criminal case, as per the Police Station Chandani Mahal, Delhi. Learned

Additional Standing Counsel for State has further confirmed that the

petitioner is the only legally wedded wife of Mohd. Gulfam and out of the

wedlock, three children (two boys and a girl) were born. The address of the

petitioner is also indicated in the status report and the fact that the petitioner

also has a grandson is clarified therein. The status report also indicates that

the petitioner had applied for Indian Citizenship before SDM/Darya Ganj,

through an application dated 13th June 1996, but the said application is

pending consideration. In the status report, the State has also verified the

antecedents of the petitioner as well as her husband and it is stated to be

clean.

Mr. Jatan Singh, Central Government Standing Counsel appearing for

the Union of India states that he has received written instructions from the

Ministry of Home Affairs, Government of India through Under Secretary

(Foreigners) vide letter dated 6th August 2013 and the same has been placed

on record. Based on the said communication, Mr. Jatan Singh, CGSC

submits that the Pakistani passport of the petitioner was valid till the year

1993 and thereafter, she had not renewed the same from the Government of

Pakistan. It is further submitted that the petitioner has applied for Indian

Citizenship on 24th June 1998 through DCP, Special Branch, Delhi, but the

said application of the petitioner is still pending consideration and could not

be acceded to, on account of the fact that her stay since 1994 in India has not

yet been regularised and even her Long Term Visa was not extended. Mr.

Jatan Singh, CGSC also submits that for seeking regularisation of her stay

and for further stay on the Long Term Visa on account of her marriage with

an Indian Citizen, the petitioner has to take steps to file an application before

the DCP, Special Branch, Delhi. Mr. Jatan Singh, CGSC also submits that

after the final decision is taken by the Home Department, Government of

NCT of Delhi on regularisation of her stay and grant of further extension of

her Long Term Visa, the Ministry of Home Affairs shall consider the said

application filed by the Petitioner for the grant of her Indian Citizenship.

Mr. N.D. Pancholi, learned counsel for the petitioner submits that the

petitioner shall take immediate steps as suggested by the Ministry of Home

Affairs in their communication dated 6th August 2013, without any delay.

Learned counsel for the petitioner further submits that this court may give

the direction for release of the petitioner from Beggar's Home, Nirmal

Chhaya Parisar, Delhi, where she is presently lodged, until any final call is

taken on her application for grant of Indian citizenship. Learned counsel for

the petitioner further submits that the petitioner has already completed her

sentence under Section 5(1)(c) of Citizenship Act, 1955 therefore, a writ of

habeas corpus or any other writ or order be issued in the facts and

circumstances of this case.

As per the case set out by the petitioner in the present petition,

petitioner is a Pakistani citizen who got married to an Indian citizen Mohd.

Gulfam on 2nd August 1983 in Pakistan. After her marriage, she came to

India alongwith her husband in 1983 on a Pakistani Passport and on valid

Indian visa. She started residing at the matrimonial home in Turkman Gate,

Delhi. Visa of the petitioner was being extended on long term basis time to

time and finally, it was extended up to the year 1994. In the meanwhile,

three children were born out of the said wedlock of petitioner with Mohd.

Gulfam. The Pakistani passport got expired in the year 1993. The petitioner

thereafter, had applied for grant of Indian Citizenship under Section 5(1)(c)

of Citizenship Act in October 1996, at the office of the Deputy

Commissioner, Delhi and the said request of the petitioner was transferred

by the office of Deputy Commissioner of Delhi to the Ministry of Home

Affairs, New Delhi and since then, as per the petitioner, her application is

pending consideration.

During the pendency of the said application for grant of Indian

citizenship, a case under Section 14 of the Foreigners Act, 1946 was

registered against the petitioner in the year 2002 vide FIR No. 84/2002,

Police Station Chandni Mahal, Delhi and in the said case, petitioner

remained throughout on bail. The petitioner was convicted and sentenced

under Section 14 of the Foreigners Act by the court of Mr. R.K. Pandey,

Metropolitan Magistrate, Tis Hazari Courts, Delhi vide judgment dated 13th

November 2012 and order on sentence dated 4th December 2012. The said

judgment was challenged by the petitioner in Criminal Appeal No.51/13 and

vide order dated 2nd May 2013, the learned appellate court had upheld the

order of conviction as passed by the learned Metropolitan Magistrate but

reduced the sentence from six months to one week and also reduced the fine

from `7,000/- to `2,000/-. Thereafter, the petitioner was taken into custody

and after completing her sentence was released on 7th May 2013. It is then,

that the petitioner was sent to Beggar's Home, Nirmal Chhaya Parisar, Delhi

by the Delhi Police and till date she is confined at the same place.

The petitioner had also filed a criminal revision petition No.293/2013

challenging the order of the appellate court, but since the petitioner had

already completed her sentence, she did not press her petition.

The main grievance of the petitioner in the present petition is that

Government has not yet taken any decision on her application moved by her

for grant of Indian Citizenship. The other grievance raised by the petitioner

is that her detention in the Beggar's Home, Nirmal Chhaya Parisar, Delhi is

illegal and is in violation of her fundamental rights.

Undeniably, we do not find any justification in detention of the

petitioner in a solitary confinement in the Beggar's Home, Nirmal Chhaya

Parisar, Delhi as persuasive when, undisputably, the petitioner had lawfully

married Mohd. Gulfam, and was holding a valid passport and valid Long

Term Visa. No doubt, the Pakistan authorities did not renew the passport of

the petitioner and there is a possibility that on that account, the visa of the

petitioner was also not renewed by the Indian Government, however the

petitioner did take necessary steps to seek renewal of her passport and

extension of her Long Term Visa.

For better understanding of the process to be followed by the

petitioner, para 3 and 4 of the communication of Ministry of Home Affairs,

Government of India, dated 6th August 2013 is reproduced as under:-

"3. The request of the petitioner Mrs. Nuzhat Jahan as per her prayer in the above mentioned writ petition have been considered carefully by the Government. As regards her request for expeditious consideration of her citizenship application, it may be submitted that her request for Indian citizenship can be considered only

after her stay since 1994 and for further extension of her Long Term Visa on the grounds of marriage to an Indian national, she may have to submit an application to the DCP, Special Branch, Delhi Police. Office of DCP, Special Branch will thereafter refer the proposal to the Home Department of Government of NCT of Delhi, who will in turn refer the proposal to the Ministry of Home Affairs (Foreigners Division) with their recommendations. After a final decision is taken on the regularisation of her stay from 1994 and further extension of her Long Term Visa, she will have to submit a fresh application for grant of Indian citizenship.

4. As regards her request for release from the detention centre Nirmal Chaya Parisar, the Ministry of Home Affairs has no objection for her release from the detention centre with permission to stay with her Indian husband and family in Delhi on humanitarian consideration, subject to the following conditions:-

a) She has to submit an application to the DCP, Special Branch, Delhi Police for regularisation of her stay since 1994 and for extension of her Long Term Visa for a further period of one/two years.

b) She should report to the DCP, Special branch, Delhi Police every month till a final decision is taken on her application for regularisation of her stay and extension of her LTV.

              c)     If she has to go out of Delhi, she should get prior
                     permission from the office of DCP, Special
                     Branch, Delhi Police.

              d)     Any other conditions that this Hon'ble Delhi High
                     Court may impose."

Now, since in the communication of Ministry of Home Affairs, dated

6th August 2013, as has been placed on record by Mr. Jatan Singh, Standing

Counsel for Central Government, the petitioner has been advised to take

immediate steps to move to the concerned office of DCP, Special Branch,

Delhi, to seek regularisation of her stay and for extension of her Long Term

Visa, therefore, we direct the petitioner to take these necessary steps within

a period of one week from the date of this order.

We also direct the concerned authority that upon receiving any such

application, the concerned authorities shall take a decision on the request of

the petitioner within a period of three months from the date of receipt of the

application. We further direct that depending upon the said decision of the

concerned authorities on the said application of the petitioner for

regularisation of her stay and further grant of Long Term Visa, the Ministry

of Home Affairs shall also take a decision thereon, for the grant of Indian

citizenship in terms of the Citizenship Act, 1985 and other guidelines, as are

applicable.

In the light of the aforesaid view taken by us, we direct the release of

the petitioner from the Beggar's Home, Nirmal Chhaya Parisar, Delhi,

forthwith, considering the fact that the important Muslim festival 'Eid' is