Right Of Husband/Children To Live With Wife/Mother Is A Fundamental Right: Delhi HC Quashes 'Leave India Notice' Served On Pakistani Woman [Read Judgment]

The Division bench of Chief Justice Rajendra Menon and Justice Anup Jairam Bhambhani observed that the "family‟, being the natural and fundamental unit of society, is entitled to protection of its integrity against arbitrary interference by the State.

Background

Nausheen Naz, who is a citizen of Pakistan, is married to Mohd Javed, an Indian Citizen, and has two children studying in Delhi Schools. She has been residing in India on the basis of a long-term visa issued to her in the year 2015.

She was served with a Notice dated 07.02.2019 captioned "LEAVE INDIA NOTICE‟, in which the Ministry directed her to leave India within fifteen days of receipt of the Notice.

The single bench of the High Court had dismissed their plea challenging this notice, observing that Nausheen does not have any right to reside in India, since the matter of granting visa is at the discretion of the Government of India.

Her Right to life is impacted

In her appeal, the Division bench took a different view that, by being asked to leave India but what is impacted is Nausheen‟s 'right to life' in its expanded interpretation. The bench said that the single bench has omitted to note that being the mother of two children who are Indian citizens and the wife of an Indian citizen, directing Nausheen to leave the country would break-up the family and would thereby be a serious infraction of the rights of at least three Indian citizens.

"In our view, the right to life under Article 21 of the Constitution of India would include the right of young children to live with their mother and the right of a husband to consortium with his wife; and State entities cannot be permitted to deprive Nausheen‟s sons and husband of these rights, merely by a stroke of the pen, in a manner that smacks of authoritarianism, without authority of law and without complying with basic tenets of natural justice and without affording her an opportunity of hearing to answer any matter alleged against her;"

The court further observed:

"We are only too familiar with the vast scope and expanse of rights protected under the overarching principles of Article 21 of the Constitution as developed over the past decades by court pronouncements. How then can the rights of a family against arbitrary and capricious interference by the State not be protected as part of the ever-growing bundle of rights under Article 21? Drawing upon the covenants contained in the ICCPR, we hold that the "family‟, being the natural and fundamental unit of society, is entitled to protection of its integrity against arbitrary interference by the State."

The bench took note of the following facts:

• Nausheen's Long Term Visa is valid until 08.06.2020. As of date, she has also applied for citizenship in India, which application is pending with the authorities;
• No notice, order or communication has ever been issued to Nausheen by the Ministry or by any other authority calling upon her to show cause against any alleged breach or violation of any terms or conditions of her LTV;
• Nausheen's LTV has never been cancelled;

The court also said that the Ministry's decision, are based upon intelligence "inputs‟ which do not disclose matters that are egregious enough nor do they disclose a proximate or causal link between what is stated in the "inputs‟ and the issuance of the Notice.

The bench observed that while grant of a visa in the first instance may be a matter of pure discretion with the authorities, curtailing the liberty of residing in the country during the validity of an LTV cannot be permitted except by a reasoned decision. Quashing the Leave India Notice, the bench directed the ministry and authorities to take decision on the application made by Nausheen seeking citizenship, in accordance with law.

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