Bombay High Court Orders Issuance Of Passport To 7-Yr-Old After Authorities' Denial Citing Father's 'Illegal Migrant' Status

The Bombay High Court on Thursday (December 11) came to the aide of a seven-year-old girl and ordered the authorities to issue an Indian Passport and also to declare her an 'Indian Citizen' under the Citizenship Act of 1955.

A division bench of Justices Sarang Kotwal and Ashish Chavan was hearing a plea filed by one Xami Dha Tirakita Kaye, a seven year old girl, who petitioned the Goa bench for protecting her 'citizenship rights.'

The girl's mother is an Indian and father is a British National. The bench noted that the father entered India in 2006 on an employment visa, which was extended time-to-time till 2009. He married an Indian girl in New Delhi in December 2009 and was subsequently arrested in 2011 for 'overstaying' in the country without a valid visa. He was then convicted for breaching the provisions of the Foreigners Act, 1946 and sentenced to six months simple jail term. On an appeal, a sessions court upheld his conviction and recommended his deportation.

The Britisher then challenged the sessions court's order before the Delhi High Court, which in September 2017 stayed his deportation on the ground that his wife was pregnant. The Delhi High Court had thus ordered the Ministry of Home Affairs to 'sympathetically' consider the representation of the petitioner's father, who the judges in the instant petition, noted, is still fighting for an Overseas Citizen of India (OCI) card.

Subsequently, the father was given a 'stay visa' on November 3, 2017 which was extended up till March 31, 2018.

Amid all this, the petitioner Xami was born on January 24, 2018 in New Delhi. Thereafter, her parents shifted to Goa and applied for a Passport, the request of which was turned down.

The petitioner argued that since she took birth in India and her mother was an Indian citizen and her father stayed on a 'valid' document at the time of her birth, she was entitled to be a 'citizen' of India under the Citizenship Act. However, the authorities argued that though her mother was a Indian national, her father was an 'illegal migrant' at the time of her birth as he was not residing in India on the basis of any 'valid' document thus, as per section 3(1)(c)(ii) of the Citizenship Act, she was not entitled to get an Indian Passport or citizenship.

However, the judges noted that the relevant date in the instant case was January 24, 2018 when the petitioner was born and the status of her father on that very day. The judges considered the fact that the authorities had issued a 'stay visa' to the father after the order of the Delhi High Court and the same was extended up till March 31, 2018.

"Thus from November 3, 2017 to March 31, 2018, he was residing in India with a valid document. The respondent authorities have contended that the petitioner's father was permitted to stay till March 31, 2018 but his overstay period was not regularised and therefore, he has to be treated as an illegal migrant. We are unable to agree with this submission. He was permitted to stay in India based on a valid document issued by a competent authority. Therefore, there is no doubt in our mind that the petitioner's father on January 24, 2018 was not an illegal migrant," the bench held in the order.

The judges, therefore, held that the petitioner Xami satisfied the provisions of section 3(1)(c)(ii) of the Citizenship Act and thus was entitled to get citizenship of India.

With these observations, the judges ordered the authorities to issue a fresh Passport to the seven year old girl.

Appearance:

Advocate Ram Kakkar appeared for the Petitioner.

Central Government Standing Counsel Raviraj Chodankar represented the Union Government and the Passport Authorities.

Additional Government Advocate Ajay Borkar represented the State.

Case Title: Xami Dha Tirakita Kaye vs Union of India [Writ Petition 2901 of 2021 (Filing Number)]

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