Case: Kulathil Mammu Vs. The State Of Kerala

one and it was only in June 1947 that the final decision to divide India as it was before August 15, 1947 was taken. Even so, the exact boundary between the two countries which were to come into existence was not settled till the Radcliffe award just about August 15, 1947. In such a situation it would in our opinion be odd to introduce the concept of domicile either in Art. 6 or Art 7. All these considerations therefore lead us to the conclusion that when the Constitution makers used the work "migrated" in Art. 6 and Art. 7 they used it in the wider sense to which we have referred earlier and not in the narrower sense and this meaning is in our opinion in accord with the circumstances which prevailed at the time which resulted in large movement of population from one side to the other. 11. Even so we are of opinion that there is one qualification which must be attached to the word "migrated" as used in these two Articles, even though that word has the wider meaning of going from one place to another in the context of these Articles. That qualification is that the movement should have been voluntary and should not have been for a specific purpose and for a short and limited period. A case where a person went on what may be called a visit from the territory of India to the territory of Pakistan for a short and limited period with a specific purpose would not be covered by the word "migrated" as used in Art. 7. Similarly a case where a person was forced to go from the territory of India to the territory of Pakistan as, for example, where he might have been kidnapped or abducted would not be covered by the word "migrated" as used in Art. 7. Barring such cases the word "migrated" as used in Arts. 6 and 7 has to wider meaning, namely, movement from one territory to another territory whether or not with the intention of permanent residence in the latter place. We may in this connection refer to State of Bihar v. Kumar Amar Singh, (S) AIR 1955 SC 282 . In that case a lady went to Karachi in July 1948 leaving her husband in India. Her case was that she had gone there for medical treatment, but this was found to be false. It was held that she had migrated from India to Pakistan after March 1, 1947 and even if Art. 5 could be said to be applicable on the assumption that her domicile was that of her husband, the case was covered by Art. 7 which applied notwithstanding anything in Art. 5. Thus this case shows that if migration was voluntary and not with a specific purpose and for a short and limited period. Art. 7 would apply irrespective of the fact whether the migration was with the intention of residing permanently in the place to which the person migrated. 12. This brings us to Smt. Shanno Devis case, AIR 1961 SC 58 . We are of opinion that the narrower meaning given in that case to the word "migrated" as used in Art. 6 is with respect not correct, and that the word "migrated" used in Arts. 6 and 7 has the wider meaning namely, coming or going from one place to another, whether or not with the intention of residence in the latter place, subject to the qualification which we have already indicated. 13. We may incidentally refer to Art. 9 also thought it does not directly arise in so far as the question before us is concerned. That Article provides that no person shall be a citizen of India by virtue of Art. 5, or be deemed to be a citizen of India by virtue of Art. 6 or Art. 8 if he has voluntarily acquired the citizenship of any foreign State. That Article came up for consideration in State of Madhya Pradesh v. Peer Mohd. 1963 Supp (1) SCR 429: (AIR 1963 SC 645 ) and it was held that it did not apply to a case of acquisition of foreign citizenship after the Constitution came into force but only applied to such cases where foreign citizenship was acquired before the Constitution commenced. By oversight however in Abdul Sattar Haji Ibrahim Patel v. State of Gujarat, AIR 1965 SC 810 , it has been stated that cases in which migration had taken place after January 26, 1950 fall to be considered under Art. 9 of the Constitution. Article 9 does not use the word "migration" and deals only with voluntary acquisition of citizenship of a foreign State before the Constitution came into force as already decided in Peer Mohds case, 1963 Supp (1) SCR 429: (AIR 1963 SC 645 ).We have thought it fit to refer to Art. 9 to correct the slip which has occurred in Abdul Sattars case, Air 1965 SC 810 .Cases of voluntary acquisition of foreign citizenship after the commencement of the Constitution have to be dealt with by the Government of India under the Citizenship Act, 1955. 14. Coming now to the facts of the present case it is obvious that Aboobacker went voluntarily to the territory of Pakistan sometime after March 1, 1947. It is equally obvious that he did not go for any specific purpose and for a short and limited period. His case therefore clearly falls within the meaning which we have given to the word "migrated" in Art. 7 and therefore by virtue of that Article he will be deemed not to be a citizen of India on the date of the commencement of the Constitution. Thereafter he has not acquired the citizenship of India and he should therefore be held to be a foreigner; and if that is so, it is not disputed that the order passed by the State Government is legal and the view taken by the High Court thereof is correct.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The first Article in that Part is Art. 5 and it lays down the normal rule of citizenship. Under that Article every person who has his domicile in the territory of India at the commencement of the Constitution and satisfies one of the three conditions laid down therein is a citizen of India. But the Constitution also deals with the abnormal situation that prevailed in the country about the time of its partition between India and Pakistan and Arts. 6 and 7 deal with that abnormal situation. It is well known that there was large movement of population form what is now the territory of Pakistan to the territory of India and vice versa from about March, 1947 and this continued late into 1948. Article 6 deals with this movement of population form the territory now included in Pakistan to the territory of India while Article 7 deals with the movement from the territory of India to what is now the territory of Pakistan. Both these Articles begin with a non obstante clause. Article 6 begins with the words "notwithstanding anything in Art. 5" and Art. 7 begins with the words "notwithstanding anything in Arts. 5 and 6". The presence of the non obstante clause in both these Articles clearly indicates that they were meant to deal with the abnormal situation to which we have already referred and prescribe conditions as to who shall be deemed to be citizens of India on the date of the commencement of the Constitution (Art. 6) and who shall not be so deemed (Art.t is also remarkable that both these Articles are silent on the question of domicile and the presence of the non obstante clause in the beginning of these Articles clearly shows in our opinion that the concept of domicile was not to be brought into them when deciding who shall be deemed citizens of India (Art. 6) or who shall not be deemed to be citizens of India (Art. 7).These two Articles make special provision for dealing with the abnormal situation created by large movement of population from one side to the other and vice versa and lay down special criteria of their own, in one case for deciding who shall be deemed to be citizens of India (Art. 6 ) and in the other case who shall not be deemed to be such citizens (Art. 7). It seems to us therefore that the Constitution makers did not intend that the concept of domicile should be brought into Articles 6 and 7 notwithstanding that such concept was present in Art. 5, which provides for the normal case of citizenship of India. In this situation it seems to us clear that when Art. 6 as well as Art. 7 use the word "migrated", the intention must have been to give the wider meaning to that word, namely, going from one territory to the other14. Coming now to the facts of the present case it is obvious that Aboobacker went voluntarily to the territory of Pakistan sometime after March 1, 1947. It is equally obvious that he did not go for any specific purpose and for a short and limited period. His case therefore clearly falls within the meaning which we have given to the word "migrated" in Art. 7 and therefore by virtue of that Article he will be deemed not to be a citizen of India on the date of the commencement of the Constitution. Thereafter he has not acquired the citizenship of India and he should therefore be held to be a foreigner; and if that is so, it is not disputed that the order passed by the State Government is legal and the view taken by the High Court thereof is correct18. My learned brother Wanchoo has held that the word migrate means no more than to go from one place to another and that the element of an intention to acquire a domicile is not necessary. He has, however, given instances of some cases in which going form one place to another would not be sufficient because either the going was involuntary or there was no intention to stay in the new place but to return. These instances, which I also adopt, show that migration is not bare physical movement from India to the territory now included in Pakistan but in such movement accompanied by an intention of some sort. What that intention should be is the matter in dispute20. Before I attempt to answer this question I shall say is few words about Arts. 6 and 7 because that will show how I view the word migrate used in them. Article 6**begins with the words "Notwithstanding anything in Art. 5" and lays down that a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of the Constitution if he or either of his parents or any of hiss was born in India as defined in the Government of India Act, 1935 (as originally enacted) and (a) in case such person had so migrated before the nineteenth day of July 1948 he had been ordinarily resident in the territory of India since the date of his migration, or (b) in case such person had so migrated on or after the nineteenth day of July 1948, he had been registered as citizen of India. The non obstante clause has the effect of segregating Art. 6 from Art. 526. Aboobackar left India in circumstances to which Art. 7 must clearly apply. That he was a minor makes no difference. The Constitution does not make a distinction between an adult and a minor. The intention of changing his abode from India to the territory now in Pakistan (whether he had it at the time or not) must be attributed to him because he returned to India several times and went back again under a Pakistan passport which clearly showed that he was intending to change his abode form India to Pakistan. His subsequent action shows the intention and an election to change the abode which the word migrate in Art. 7 of the Constitution obviously indicates. This was the view taken by Das Gupta, J. in Shanno Devis case, AIR 1961 SC 58  , and I think that the decision was correctAnother matter which must also be kept in mind is that Arts. 6 and 7 deal with the status at the commencement of the Constitution. Therefore, migration into the territory of India which conferred the status of citizenship under Art. 6 and migration form India which disabled a person from claiming citizenship under Art. 7 must be complete before the date of the commencement of the Constitution. If, therefore, intention to settle permanently in the country in which a person has moved is a necessary component of migration, such intention must have been formed before the commencement of the Constitution, and many persons who were compelled to move from their hearths and homes on account of a sense of insecurity resulting from riots and civil commotion still hoping that they would be going back to the abodes of their ancestors when the situation returned to normal, may not be deemed to have migrated at all. This, in my judgment, would introduce an element of uncertainty in the determination of citizenship and involve great hardship to the migrantsTwo cases in which this Court was called upon to consider the meaning of "migrate" may be referred to. In1 SCR 576  : (AIR 1961 SC 58  ), it was held by this Court that the expression "migrated to the territory of India" in Art. 6 of the Constitution means "come to the territory of India with the intention of residing there permanently". The dispute in that case arose in an election case, Mangal Sain who was born in 1927 of Indian parents in the territory which since August 15, 1947 had become part of Pakistan, moved in 1944 to Jullunder, and thereafter lived in the territory which is part of India, except for a short period when he went to Burma. It was contended in an election dispute that Mangal Sain was not a citizen of India and, therefore, could not stand for election. That contention was rejected by this Court on the finding that the respondent Mangal Sain who had earlier moved from a place in Pakistan to Jullunder and definitely made up his mind to make India his permanent home and, therefore, he satisfied the first requirement of Art. 6 after migration to the territory of India from the territory now included in Pakistan and it being established that Mangal Sain was born in India as defined in the Government of India Act, 1935, he satisfied the requirement of Cl. (a) of Art. 6. The Court in that case regarded movement from one territory to another, with intention to reside permanently in the new territory as a necessary ingredient.But in an earlier judgment of this Court in1 SCR 1259  : (S) AIR 1955 SC 282  ), the question (was ?) whether one Kumar Rani Sayeeda Khatoon was, because of migration from the territory of India after March 1, 1947, not to be deemed a citizen of India. Kumar Rani who was born in territory of India and had married Captain Maharaj Kumar Gopal Saran Narayan Singh of Gaya in 1920 left for Karachi in July 1948 and returned to India in December 1948 on a temporary permit. She again left for Pakistan in April 1949 on the expiry of the permit. Her claim that she went to Pakistan temporarily for medical treatment was not accepted. After her property in India was taken over by the Custodian of Evacuee Property, she obtained a permit for permanent return and came to India in 1950. This permit was later cancelled, and she was directed to leave India. In a petition filed before the High Court of Patna it was declared that Kumar Rani was a citizen of India and the order directing her to leave India was set aside. This Court reversed the order of the High Court holding that since Kumar Rani had migrated form the territory of India to the territory of Pakistan, she had disqualified herself from claiming citizenship of India. The facts proved in Kumar Amar Singhs case,1 SCR 1259  : (S) AIR 1955 SC 282  ), disclose that there was no evidence tending to show that Kumar Rani had entertained at any time before the commencement of the Constitution an intention permanently to reside in Pakistan. Her husband was in India, her property was in India and she had gone to Pakistan for about eight months in the year 1948 and thereafter in April 1949. The Court in that case apparently did not accept the view that to attract Art. 7, migration from the territory of India must be with an intention permanently to reside in the territory now included in PakistanIn my view "migrated form the territory of India" within the meaning of Art. 7 means moving from one place to another but nor necessarily with the intention of permanently residing in the country in which the person has moved. I agree, however, that the movement should be voluntary and not purely temporary, such a movement for purposes of a business transaction or a professional or a social visit.