01. Through the medium of the instant petition, the petitioners seek
(ii) a writ, order or direction in the nature of mandamus
commanding upon the respondents not to deport the
petitioners from the territories of J &K (India)."
2016:JKLHC-SGR:76
02. Brief facts of the case are that petitioner No. 1 was born in
Srinagar on February 7, 1945, and belongs to a family of permanent
residents and landholders of J&K State. His grandfather was issued a
State subject certificate by His Highness Govt. of J&K vide order No. 111
of 1977. During the partition of India, petitioner's father was doing
business in Rawalpindi, Pakistan and due to the 1948 India-Pakistan war,
the petitioner, then a four-year-old child, was stranded in Pakistan.
Neither the petitioner nor his family could return to Srinagar, leading to
involuntary acquisition of Pakistani nationality due to compelling
circumstances beyond his control.
02. Similarly, Petitioner No. 2 was born in Srinagar on 23.04.1962 and
claims to be a permanent resident of the State of Jammu & Kashmir,
along with her parents. She also was having an Indian passport No. A
704381 issued on 30.05.1986. Being a cousin of Petitioner No. 1, she
married him in Rawalpindi in December 1986. Following the marriage,
Petitioner No. 2 alleges that she faced serious and cruel treatment from
her in-laws. Despite this, Petitioner No. 1 remained sympathetic toward
her. The in-laws also allegedly deprived petitioner No. 1 of his business,
making their life together highly insecure and marked by mental anguish
and anxiety.
03. It is stated that on the basis of their Pakistani passports, the
petitioners returned to Srinagar in the month of July, 1988 along with their
minor son. Upon arrival, they were issued Residential Permits Nos.
RP223/88 and RP224/88 dated 27.07.1988 by the Superintendent of
2016:JKLHC-SGR:76
Police, CID, Srinagar, signifying official acknowledgment of their
presence and temporary stay. It is stated that n view of their stated plight
in Pakistan and their pre-existing legal status as permanent residents, the
petitioners expressed a desire to continue residing in Srinagar. Their
applications for an extended stay were considered, and the competent
authority (Respondent) granted three successive extensions of thirty days
each, vide the following orders:
Home/156/88/visa dated 29.08.1988
Home/156/88/visa dated 15.09.1988
Home/156/88/visa dated 07.10.1988
04. These extensions collectively permitted their stay in Srinagar until
01.11.1988. Subsequent to the expiry of the initial extensions, the
petitioners applied for a further extension of stay and simultaneously
approached the authorities for resumption of Indian citizenship, relying on
their permanent resident status and other equitable considerations. A
detailed representation in this regard was submitted on 18.06.1989.
Thereafter, besides applying for extension for their stay, the petitioners
also approached the respondents for resumption of their Indian
Citizenship. On the basis of the representation dated 18.06.1989, the
respondent No.1 vide its communication dated 26.12.1989, referred the
matter for grant of Indian citizenship to respondent No. 2 and during the
pendency of the said communication, an order of deportation came to be
issued by the respondents against the petitioners.
05. Learned counsel for the petitioners submits that the respondents
have acted illegally, unlawfully, and in blatant disregard of the valuable
2016:JKLHC-SGR:76
legal rights of the petitioners to continue holding Indian citizenship, by
proceeding to forcibly deport the petitioners from India to Pakistan.
06. Counter affidavit has been filed by respondent No. 1, in which it
has been stated that the petitioners are neither permanent residents nor
citizens of India and they have admitted in their writ petition that they
have acquired citizenship of Pakistan. In terms of Section 9(1) of the
Citizenship Act of 1955, whoever acquires citizenship of another country
voluntarily ceases to be the citizen of India. It is stated that the petitioners
after acquiring the citizenship of Pakistan, have lost all the rights and
privileges applicable to the citizens of India including property rights.
07. In the counter affidavit it has been further stated that petitioner No.
2, actually a resident of Baba-ud-Din Sahib, Nowhatta Srinagar married
her maternal uncle's son, namely, petitioner No. 1 at Rawalpindi Pakistan
in December, 1986. The petitioners along with their minor son arrived in
India on 27.07.1988 on 14 days short period visa on Pakistani Passport
9D-496880 dated 26.03.1988 and Indian visa No. JK278/88 dated
14.07.1988 and C-056590 dated 07.07.1986 and Indian visa No. JK-
277/88 dated 14.07.1988 respectively. However, on their request, they
were granted three visa extensions of 30 days each up to 02.11.1988.
Thereafter, they requested for further extension of their stay in India,
which was rejected and the Home Department subsequently, issued their
Deportation Order No. Home/156/Visa/88 dated 13.09.1989.
08. Respondent No. 1 in the counter affidavit has further submitted
that the sequence of events along with the documentary proof placed on
record by the petitioners clearly establishes that the petitioners have
2016:JKLHC-SGR:76
voluntarily acquired the citizenship of another country, as such, they have
ceased to be citizens of India. Further, the petitioners submitted a
representation for granting Indian nationality/citizenship to the MHA,
Government of India, which clearly indicates that they themselves were
fully aware of their status as a non-citizen in India and knowingly entered
the country using LOC entry permit as a citizen of Pakistan. It is stated
that petitioners were staying illegally in India, as such, the act of
deportation ordered by the Home Department is not illegal.
09. Heard learned counsel for the parties and perused the material
placed on record.
10. The petitioner No. 1 claims to be born in Srinagar on February 7,
1945, but submit but that he had involuntary acquired Pakistani
nationality due to the fact that during partition, his father was doing
business in Rawalpindi, Pakistan. Petitioner No.2 claims to be a citizen of
India on the ground that she was born in Srinagar on 23rd April, 1962,
and holding an Indian passport number A704381 issued in her favour her
on 30th May, 1986. She had married to her cousin (petitioner No. 1) in
Rawalpindi in December 1986, and thereafter travelled to Srinagar along
with their son on Pakistani passports.
11. The contention of learned counsel for the petitioners is that the
petitioners have retained the status of Indian citizens and permanent
residents of the State of Jammu and Kashmir as they were compelled to
acquire Pakistani citizenship under circumstances beyond their control,
and should not be subjected to deportation. It is stated that the petitioners
now seek restoration of their Indian citizenship, particularly as they have
2016:JKLHC-SGR:76
remained permanent residents of the State throughout. It is further
contended that the action taken against the petitioners is arbitrary and
violation of Article 14 of the Constitution of India, as well as the
principles of natural justice, equity, and fair play. It is also submitted that
the respondents have acted without proper application of mind and in a
colourable exercise of power in attempting to deport the petitioners
ignoring the fact that they have retained the status of Indian citizens.
12. On the other hand, the case of the respondents is that the
petitioners have admitted that they have acquired the citizenship of
Pakistan voluntarily, as such, they ceased to be the citizens of India. They
have lost all their rights as citizens in this country. The petitioners having
voluntarily acquired citizenship of foreign state have lost all their rights
on citizens of this country.
13. The relevant constitutional and statutory provisions dealing with
citizenship are provided in Part II of the Constitution. Article 5 to 11
reads as under:-
Part II of the Constitution deals with „Citizenship‟. It
consists of Articles 5 to 11, which read thus:
"5. Citizenship at the commencement of the
Constitution:- 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.
6. Rights of citizenship of certain persons who have
migrated to India from Pakistan.--Notwithstanding anything
in Article 5, a person who has migrated to the territory of India
2016:JKLHC-SGR:76
from the territory now included in Pakistan shall be deemed to be a
citizen of India at the commencement of this Constitution if--
(a) he or either of his parents or any of his grand-parents
was born in India as defined in the Government of India
Act, 1935 (as originally enacted); and
(b) (i) in the case where such person has so migrated before
the nineteenth day of July, 1948, he has been ordinarily
resident in the territory of India since the date of his
migration, or
(ii) in the case where such person has so migrated on or
after the nineteenth day of July, 1948, he has been registered
as a citizen of India by an officer appointed in that behalf by
the Government of the Dominion of India on an application
made by him therefor to such officer before the
commencement of this Constitution in the form and manner
prescribed by that Government:
Provided that no person shall be so registered unless he has been
resident in the territory of India for at least six months immediately
preceding the date of his application.
7. Rights of citizenship of certain migrants to
Pakistan.-- Notwithstanding anything in Articles 5 and 6, a
person who has after the first day of March, 1947, migrated from
the territory of India to the territory now included in Pakistan shall
not be deemed to be a citizen of India:
Provided that nothing in this article shall apply to a person who,
after having so migrated to the territory now included in Pakistan,
has returned to the territory of India under a permit for
resettlement or permanent return issued by or under the authority
of any law and every such person shall for the purposes of clause
(b) of Article 6 be deemed to have migrated to the territory of India
after the nineteenth day of July, 1948.
8. Rights of citizenship of certain persons of Indian
origin residing outside India.--Notwithstanding anything
in Article 5, any person who or either of whose parents or any of
whose grand-parents was born in India as defined in
the Government of India Act, 1935 (as originally enacted), and who
is ordinarily residing in any country outside India as so defined
shall be deemed to be a citizen of India if he has been registered as
a citizen of India by the diplomatic or consular representative of
India in the country where he is for the time being residing on an
application made by him therefore to such diplomatic or consular
representative, whether before or after the commencement of this
Constitution, in the form and manner prescribed by the
Government of the Dominion of India or the Government of India.
2016:JKLHC-SGR:76
9. Persons voluntarily acquiring citizenship of a
foreign State not to be citizens.--No person shall be a citizen
of India by virtue of Article 5, or be deemed to be a citizen of India
by virtue of Article 6 or Article 8, if he has voluntarily acquired the
citizenship of any foreign State.
10. Continuance of the rights of citizenship.--Every
person who is or is deemed to be a citizen of India under any of the
foregoing provisions of this Part shall, subject to the provisions of
any law that may be made by Parliament, continue to be such
citizen.
11. Parliament to regulate the right of citizenship
by law.--Nothing in the foregoing provisions of this Part shall
derogate from the power of Parliament to make any provision with
respect to the acquisition and termination of citizenship and all
other matters relating to citizenship."
14. The Citizenship Act 1955, Act has been passed by the Parliament
and has come into force on December 30, 1955. It provides for acquisition
and determination of Indian citizenship. The acquisition of citizenship
under this Act is under citizenship by birth, by descent citizenship by
registration and citizenship by naturalization and with acquisition by
incorporation of territory. The termination of Citizenship is provided
under Sections 8 to 10 of the Citizenship Act, 1955. Section 8 deals with
Renunciation of citizenship; Section 9 with termination of citizenship and
Section 10 with deprivation of citizenship.
15. Section 9 of the Citizenship Act, 1955 deals with termination of
citizenship being relevant is reproduced as under:
"9. Termination of citizenship.
(1)Any citizen of India who by naturalisation,
registration or otherwise voluntarily acquires, or has at any
time between the 26th January, 1950 and the commencement
of this Act, voluntarily acquired, the citizenship of another
country shall, upon such acquisition or, as the case may be,
such commencement, cease to be a citizen of India:
2016:JKLHC-SGR:76
Provided that nothing in this sub-section shall apply to
a citizen of India who, during any war in which India may be
engaged, voluntarily acquires the citizenship of another
country, until the Central Government otherwise directs:
(2)If any question arises as to whether, when or how
any [citizen of India] has acquired the citizenship of another
country, it shall be determined by such authority, in such
manner, and having regard to such rules of evidence, as may
be prescribed in this behalf."
16. In view of Section 9(1), a citizen who voluntarily acquires
citizenship of another country after commencement of the 1955 Act or
between 26th January, 1950 and date of commencement of the 1955 Act,
upon such acquisition, such citizenship automatically cease to be citizen
of India. Petitioner No. 1 ceased to be a citizen of India as he migrated to
Pakistan and is a citizen of Pakistan. Petitioner No. 2 has voluntarily
acquired the citizenship of Pakistan after her marriage and their son is a
citizen of Pakistan by birth. Therefore, immediately upon acquiring the
citizenship of Pakistan, they cease to be citizens of India. Thus, voluntary
acquisition of citizenship of another country by an Indian citizen results in
the termination of his Indian citizenship.
17. Petitioner No. 1 is admittedly a citizen of Pakistan and chosen to
remain so till date after his marriage to petitioner No. 2, he visited India in
July 1988. Petitioner No. 2 voluntarily acquired the citizenship of
Pakistan after her marriage. Both the petitioners had travelled to India in
1988 along with their son on Pakistani Passport. They were issued
residential permits for temporary stay which were extended till
01.11.1988. Their request for further extension of visa was rejected by the
respondents and deportation order was issued.
2016:JKLHC-SGR:76
18. The petitioners submit that they have sought citizenship of India,
in support of their claim, have relied upon several communications. One
such communication, dated June 1989, was addressed by the petitioners to
the Hon'ble Chief Minister of the State of Jammu and Kashmir, seeking
the grant of Indian citizenship. Another communication, dated
26.12.1989, was addressed to the Secretary, Ministry of Home Affairs,
Government of India, wherein the petitioners claim to have sought the
grant of Indian citizenship in favour of petitioner No. 1. However, upon
perusal of the latter communication, it is observed that it bears no
signature from any competent authority.
19. The only challenge raised in this petition is against the
respondents' action of deporting the petitioners and further they seek a
direction restraining the respondents from deporting them from the
territory of Jammu and Kashmir/India.
20. Admittedly, the petitioners are staying in India, Srinagar on the
strength of the fact that the orders of deportation was stayed by this Court
vide order dated 25.04.1990. The petitioners having voluntarily acquired
the citizenship of another country in terms of Section 9 of the Citizenship
Act 1955 and being aware of their status had entered the State of Jammu
and Kashmir. In Izhar Ahmad Khan vs. Union of India, reported as
1962 (3) SCR 235, it has been as under:-
"17.There is no ambiguity about the effect of this section. It is
clear that the voluntary acquisition by an Indian citizen of the
citizenship of another country terminates his citizenship of
India, provided the said voluntary acquisition has taken place
between the 26th January, 1950 and the commencement of the
Act, or takes place thereafter."
2016:JKLHC-SGR:76
21. In Union of India vs. Pranav Srinivasan reported as 2024
Online Sc 2920, it has been held as under:-
In view of Section 9(1), those citizens of India who
voluntarily acquire citizenship of another Country after the
commencement of the 1955 Act, or between 26th January 1950
and the date of the commencement of the 1955 Act, upon
acquisition of such citizenship, automatically cease to be citizens
of India. It is not in dispute that Pranav's parents acquired
Singapore citizenship on 19th December 1998, before his birth
when he was in the womb. Therefore, immediately after the
voluntary acquisition of Singapore citizenship, Pranav‟s parents
ceased to be citizens of India by the operation of Section 9(1).
22. The petitioners have acted in their own volition acquired the
citizenship of a foreign Country. Their passports and the residential permit
issued in their favour are cogent, unequivocal evidence of the fact that the
petitioners are not citizens of India and, as such, orders to deport them
were valid.
23. The petitioners have not placed on record any documentary proof
of the fact that they had applied for the citizenship in terms of the
Citizenship Act or Rules. There is thus, clear evidence to explain the fact
that the petitioners on the strength of passport of Pakistan and Visa,
permission were granted to them to visit India. There is nothing on record
to suggest that their request for grant of citizenship of India has been
accepted. They are staying in India on the strength of Pakistani passports,
the period of which has expired and after expiry of the extension of their
stay they had to return to their country. The petitioners are residing in
Srinagar since 1988 and during this period they have not placed anything
on record to show that they are citizens of this Country.
2016:JKLHC-SGR:76
24. In view of the aforementioned discussion, the instant petition is
found to be without any merit and the same is, accordingly, dismissed.
(Sindhu Sharma)
Judge
JAMMU
09.05.2025
BIR
Whether the order is speaking : Yes/No
Whether the order is reportable : Yes/No
