Can Seek Indian Citizenship Only After Renouncing Pak Citizenship: Karnataka High Court Rejects Woman’s Plea For Issuance Of Passport To Children

The Karnataka High Court has refused to issue a direction to the Union of India to consider the representation of two minor Pakistani Nationals, for issuance of Indian passport and grant of Indian citizenship to them

A single judge bench of Justice M Nagaprasanna dismissed the petition filed by Aisha and Ahmed Mailk and said,

“If the law elsewhere i.e., Pakistan does not permit renunciation of citizenship by minors up to a certain age, the law of this nation would not permit grant of citizenship to such persons.”

However, the court clarified that rejection of the writ petition will not come in the way of the authorities in considering the case of the petitioners, in the event, they fulfil all the necessary requirements.

Case Details

The mother of the petitioners is an Indian citizen while the father is a Pakistan national. The couple married in 2002 at Dubai, United Arab Emirates (UAE). The petitioners were born from wedlock in UAE.

Later, a court in Dubai dissolved the marriage of the couple on 07-09-2014. The mother of the petitioners was conferred with permanent and sole custody of the minor children. Following which the children approached the Indian Consulate at Dubai and submitted a representation in the prescribed form for conferring Indian citizenship and the Consulate directed them to surrender the Pakistan passport, with the Indian Consulate in Dubai.

The Islamic Republic of Pakistan Consulate also issued a no objection to correspond with the Indian Consulate at UAE and completion of formalities. In 2021, the petitioners wanted to come to India, they had no Indian passport. At that point in time, the Indian Consulate at Dubai on a representation made by them had given them a temporary Indian passport, with an endorsement that citizenship status of the petitioners is pending with the Ministry of Home Affairs and passport is issued on humanitarian grounds.

The petitioners travelled to India and since then are staying with their mother. That passport having expired, they submitted representations to the concerned for the last one year. Those representations having gone unheeded, they approached the court seeking a direction for conferment of Citizenship right as sought in the representations.

The Central Government counsel opposed the plea saying,

“The Constitution of India does not permit dual citizenship. The Citizenship Act, 1955 mandates that one has to surrender citizenship of another country to become a citizen of India. The Pakistan Citizenship Act, 1951 does not permit surrender of citizenship of any person unless he/she crosses 21 years age. Therefore, unless the petitioners surrender their citizenship, they cannot be conferred citizenship by this country.”

The court was told the petitioners will have to wait till completion of 21 years for grant of any citizenship, as it can only be considered after surrender of their existing citizenship of the other country. "Mere surrender of passports before the Pakistan Consulate would not mean that they have renounced their existing citizenship,” the union government said.

Findings

The bench noted that Section 4 of the Citizenship Act, prohibits dual citizenship, as, if a citizen who is beyond 18 years or a minor cannot be a citizen of this Country, as well as of any other country.

"Section 5(1)(d) permits citizenship to those children whose parents are citizens by India origin, notwithstanding the fact that they are residing outside India. Therefore, to claim citizenship under Section 5(1)(d) of the Act, both parents of those children who seek to claim, must be Indian citizens".

The bench on going through the records said:

“The submission of the learned counsel for the petitioners that the children are entitled to the Indian citizenship cannot at this juncture be accepted as the father of the children was a citizen of Pakistan, a Pakistani national and the mother, an Indian citizen an Indian national both of whom did not reside in India but were residing in Dubai.”

It added that after the divorce was granted by the Dubai Court, custody of the petitioners was handed over to the mother. By then, the children had been declared to be citizens of Pakistan by virtue of the father being a Pakistani national, it observed

Referring to Section 14-A of the Pakistan Citizenship Act, 1951, which deals with renouncement of citizenship of Pakistan, the bench said, “A child can renounce the citizenship of Pakistan or regain it within one year after completion of 21 years of age.”

The bench observed:

“Admittedly, both the children who have now knocked at the doors of this Court, even as on date, are citizens of Pakistan, as their citizenship has not been renounced in terms of law of the Islamic Republic of Pakistan. Unless they renounce the citizenship of Pakistan, they cannot become citizens of this Country.”

The court said it is not a case where these children are without citizenship or landless or Stateless.

"Even as on date they are citizens of the Islamic Republic of Pakistan. It is the laws of Pakistan that do not permit them to renounce citizenship of Pakistan.” 

Then it held:

“Unless, they renounce the citizenship of Pakistan, the Citizenship Act, 1955 does not grant citizenship to those persons who are already citizens of another country and who also hold passports of any other country, be it a major or a minor.”

Further it said:

“If laws of Pakistan are inflexible to a situation of this kind; so are the laws of this nation, which cannot be made flexible in the peculiar facts of this case.”

The bench opined:

“The mother may be an Indian citizen, unless violence is done to the language of the Citizenship Act, 1955, the children cannot be granted citizenship as they are already citizens of Pakistan and this Court by its order would not indulge in any such violence to the language of the mandate of the statute.”

Finally it said:

“The children as on today are not Stateless. They are citizens of Pakistan. They have only surrendered the passport but they have not renounced citizenship of Pakistan, mere surrender of the passport does not amount to renunciation of citizenship.”

The court said such renunciation comes about, no directions could be issued to the Ministry of External Affairs, to consider the case of the mother for grant of citizenship to the children.

"Therefore, it is for the mother, to place all those materials that are sought for by the Authorities, to consider grant of such citizenship in favour of the petitioners,” said the court.

Case Title: Aisha Mallik & Others And Union of India & Others

Case NO: WRIT PETITION No.14333 OF 2022

Citation: 2023 LiveLaw (Kar) 143

Date of Order: 28-03-2023

Appearance: Advocate S Sudarshan & Advocate Anirudh A Kulkarni for petitioners.

CGC Aditya Singh for R1 And R2.

AGA B V Krishna for R2