Gauhati High Court
Jamila Khatun @ Hamila Khatun vs The Union Of India And 3 Ors on 28 May, 2019
Equivalent citations: AIRONLINE 2019 GAU 377
Author: Prasanta Kumar Deka
Bench: Manojit Bhuyan, Prasanta Kumar Deka
Page No.# 1/6
GAHC010133002017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 3807/2017
1:JAMILA KHATUN @ HAMILA KHATUN
W/O AKBAR ALI R/O VILL- LERUWAMUKH, P.S. MOIRABARI DIST.
MORIGAON, ASSAM
VERSUS
1:THE UNION OF INDIA and 3 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, SHASTRI BHAWAN, TILOK MARG, NEW DELHI-1.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI-6
3:THE SUPERINTENDENT OF POLICE B
MORIGAON
P.O
P.S AND DIST- MORIGAON
ASSAM
4:THE DEPUTY COMMISSIONER
MORIGAON
P.O AND DIST- MORIGAON
ASSA
Advocate for the Petitioner : MR.M H TALUKDAR
Advocate for the Respondent : ADDL. AG, ASSAM
Page No.# 2/6
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA
ORDER
28.05.2019 (Prasanta Kumar Deka, J) Heard Mr. A.R. Sikdar, learned counsel for the petitioner as well as Mr. J. Payeng, learned counsel representing the respondent nos. 2 to 4. None appears for respondent no. 1.
Opinion dated 28.03.2017 of the Foreigner Tribunal 5 th, Morigaon is assailed in this writ petition. The S.P. (Border) Morigaon suspected the present petitioner to be a foreigner who entered India after 25th March, 1971 as she could not produce any documents to prove her Indian nationality and reference was made seeking for an opinion to that effect from the Tribunal.
Case No. FT(D)-295/2015 (New No.)/ FT(D)-1274/2012 (Old No.) was initiated and notice was issued to the petitioner. She appeared and filed her written statement stating that she was born and brought up at village Bheloguri P.S. Laharighat in the undivided district of Nagaon. She was married to Akbar Ali son of Late Hussain Ali of village Leruwamukh under P.S. Moirabari in the district of Morigaon. She read up to class IV. She projected Safaruddin, son of Late Jameruddin as her father whose name is recorded in the voter list of 1965 and 1970 of 84 No. Laharighat LAC. Amongst other defence the petitioner also pleaded that the Electoral Verification Officer did not visit the house of the petitioner nor any opportunity to produce the relevant documents in support of her citizenship was given.
The petitioner deposed herself as the D.W. 1 and relied the following documents:
1. Exhibit(A) the voter list of 1965 showing the name of Safaruddin, the projected father.
2. Exhibit(B) certified copy of voter list of 1970 showing the name of Safaruddin.
3. Exhibit (C) sale deed showing the name of projected father as Safaruddin in the year 1969.
4. Exhibit (D) certified copy of voter list of 1977 showing the name of A.Zalil, the projected first husband of the petitioner along with her name.
5. Exhibit (E) certificate issued by the Gaonbura of village Bheloguri. The said Exhibit(E) was not proved by the concerned Gaonbura and the Tribunal discarded the same.
Page No.# 3/6
6. Exhibit (F)police report informing that the first husband of the petitioner died.
7. Exhibit (G) Certificate issued by the Secretary, Tatikata Gaon Panchayat in the name of the petitioner. This certificate was also not proved by its author. The Tribunal discarded the same.
8. Exhibit(H) "Kabin Nama" issued on 26.01.2017 in support of her second marriage with Akbar Ali.
9. Exhibit (I) marriage certificate issued on 26.01.2017 in support of the marriage with Akbar Ali. It would be pertinent to mention here that both Exhibit (H) and (I) were issued after the initiation of the proceeding.
The said D.W. 1 in her evidence for the first time deposed that she was married to Abdul Jalil of village Tatikata and she casted her vote. After the death of her first husband she married her second husband Akbar Ali. In her cross examination dated 13.07.2016, she deposed that at the time of her first marriage she was about 18 years old. After 20-22 years of marriage her first husband Abdul Jalil died. She has 8 children out of the wedlock with Abdul Jalil. After 1 year from the death of Abdul Jalil she married Akbar Ali. The name of the mother was Khudeja Khatun. Ibrahim Ali was the only brother alive who resides at Bheloguri. On 30.01.2017, she again deposed as D.W. 1 exhibiting Exhibit (D) the voter list of 1977 showing her name in the voter list. She also exhibited Exhibit (F), Exhibit (G) and Exhibit (H) on 30.01.2017.
Akbar Ali, the second husband of the petitioner deposed as D.W. 2. He deposed that after the marriage of the petitioner in the year 1993 she could not vote as her name was marked as 'D' voter.
The learned Member after appreciation of the evidence and the exhibits opined the reference against the petitioner. It was held that the petitioner failed to substantiate her claim in respect of her birth at village Bheloguri by producing any cogent evidence. Relying the voter list of 1977, Exhibit (D) the Tribunal took note of the fact that the first husband died in an around the year 1991 after considering the deposition of the D.W. 2, the second husband that after the death of the first husband he married the petitioner in the year 1993. The learned Member appreciating the said voter list of 1977 came to the finding that the name of the petitioner ought to have been recorded in the subsequent voter list of the year 1983, 1985 and 1991, but as she failed to produce the voter list so the Member did not consider the voter list of 1977. The Exhibit (H) Kabin Nama and the marriage certificate, Exhibit(I) were issued on Page No.# 4/6 26.01.2017 and the said documents were not considered by the Tribunal on the ground that the same were not certified and in order to prove the same the respective issuing officers did not grace the witnesses box as required under Section 76 of the Evidence Act. The Tribunal further held that the existence of the said two documents did not find any place in the written statement also. Accordingly, it was opined that the petitioner failed to prove her as an Indian citizen.
Mr. Sikdar submits that the Tribunal below was wrong while appreciating the documents on record. It is further submitted that the enquiry before sending the reference was not proper inasmuch as most of the forms are blank and as such the reference itself is bad in law. It is further submitted that the marriage certificate even if it was issued subsequent to the proceeding the same is a public document and the Tribunal wrongly discarded the same inasmuch as the said certificate supports the fact of marriage with the petitioner Akbar Ali and the said certificate itself shows that the petitioner is the daughter of Safaruddin. The said link itself is sufficient in order to establish that parents more specifically the father was an Indian citizen having his name recorded in the voter list of 1966 and 1970, Exhibits (A) and (B).
Mr. Sikdar in support of his submission that the petitioner ought to have been heard before the reference relies Lal Babu Hussein and Others-Vs-Electoral Registration Officer And Others reported in (1995) 3SCC 100. It is submitted that as against the name of the petitioner in the voter list of 1995, she was suspected to be a doubtful voter and in order to delete any name from the voter list an enquiry is required to be made by the Electoral Registration Officer and for that purpose the concerned elector must be given an opportunity to be heard. The said process was not followed before the reference.
Mr. Payeng vehemently object to the submission of Mr. Sikdar and submits that the submission that the reference is bad cannot be accepted inasmuch as annexure A of the format for verification officers report and annexure B clearly shows that necessary enquiry was made by the local verification officer and on the basis of annexure A and the contents therein, the reference was made suspecting the petitioner to enter on or after 25.03.1971 as she could not produce any documents to prove her nationality. Further it is submitted that the said plea was not taken in the written statement and as such the same cannot be raised at this stage. Regarding the rest of the findings of the Tribunal it is submitted by Mr. Payeng that the fact of first marriage cannot be accepted as the same was not pleaded in the written statement nor Page No.# 5/6 the voter list of 1977 with the projected first husband of the petitioner.
We have given due consideration to the submission made by the learned counsel. The reference is in respect of the nationality of the petitioner and as such a doubt was recorded against the petitioner resulting marking the name of the petitioner in the voter list of 1995 as doubtful voter. In order to remove the said doubt the reference was made to the said Tribunal. The contention of Mr. Sikdar that the petitioner was never given a chance to rebut the allegations at the enquiry stage in our opinion, cannot be accepted at this stage inasmuch as on the basis of the reference a proceeding was initiated and on the basis of the materials placed before the Tribunal, it has given its finding which is under challenged in this writ petition. The said plea was not raised in the written statement and as such in our considered opinion the satisfaction drawn before the reference is sufficient enough inasmuch as there is no specific procedure as to how the enquiry is to be conducted at that relevant stage.
From the evidence on record it is found that the petitioner in order to link her with Safaruddin, the projected father relied Exhibit (E) and Exhibit (F) respectively. The certificates issued by the Gaonbura of village Bheloguri is from the purported birth place of the petitioner and by the Secretary of Tatikata Gaon Panchayat in order to prove the marriage of the petitioner with the first husband. Both these two exhibits are not proved by the respective authors. The Tribunal rightly discarded the said certificates. Exhibit (I), the marriage certificate was issued on 26.01.2017 and on perusal of the same we found that the same was issued by the Government Muslim Marriage and Divorce, Registrar and Kazi, Dhing.
The said Registrar is the custodian of the record of any marriage. The said record is in respect of a private transaction inasmuch as the marriage under the Mohammedan Law is a contract and is not a religious ritual. The contract of the marriage certified by the Registrar as a certificate cannot be termed to be a public document. Under such circumstances the basis of information on which the Registrar issued the said certificate must be divulged in order to prove the contents of the certificate. The rejection of the said Exhibit (I) is proper.
In our opinion the fact of first marriage is totally missing in the written statement and behind such back drop the voter list of 1977 showing the name of the petitioner with her projected first husband cannot at all be considered. It is the duty of the petitioner to prove each and every relevant facts in the written statement in order to let the Tribunal, know the extent of the relevant facts the petitioner wants to prove. Otherwise, in our opinion if facts which are not pleaded are allowed to be introduced as evidence the same would be an endless Page No.# 6/6 process. The submission of Mr. Sikdar that the proceeding being a summary procedure the importance on the written statement cannot be given. We disagree to the said submission. Even if for the sake of argument the proceeding of Tribunal is taken to be a summary one, the stage of adducing evidence by the petitioner cannot be an endless process inasmuch as Section 9 of the Foreigner Act stipulates that the onus in order to prove that the petitioner is an Indian citizen always lies upon the petitioner notwithstanding anything in the Evidence Act in that regard.
Accordingly, we do not find any merit in this writ petition and the same stands dismissed. Following the dismissal of the writ petition the directions made by the Tribunal shall come into force as the interim order passed by this Court vide order dated 22.06.2017 stands vacated. No costs.
JUDGE JUDGE Comparing Assistant