DIVORCE BY MUTUAL CONSENT - PROCEDURES IN COURT

 Mutual Consent Divorce is a simple way of coming out of the marriage and dissolves it legally. Important requirement is the mutual consent of the husband & wife. There are two aspects on which Husband & Wife have to reach to consensus. 

Mutual Consent Divorce between Hindu Couple is governed by The Hindu Marriage Act, 1955, under Section l3B.Mutual Consent Divorce in case of Court marriage is governed by The Special Marriage Act, 1954 under Section 28.Mutual Consent Divorce in case of Christian Couple is governed by The Divorce Act, 1869, under Section 10 A. 

When can the divorce by mutual consent be filed?

The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage.They have to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce and that during this period of separation they have not been able to live together as husband and wife.

 Divorce by Mutual Consent. 13 B Procedures in court

The Conditions required under section 13B of the Hindu Marriage Act are as follows:

(i) Husband and wife have been living separately for a period of one year or more,

(ii) That they are unable to live together,

(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed, hence marriage should be dissolved.

Under the above circumstances a Divorce by Mutual consent can be filed.

 Steps in Court Procedure (13 B)

In all there are two court appearances in a mutual divorce

1.                    First A joint petition signed by both parties is filed in court. Secondly In the first motion statement of both parties are recorded and then signed on paper before the Honourable Court.

2.                    Thirdly The 6 month period is given for reconciliation, (the honourable court gives a chance to the couple to change their mind)

3.                    Fourthly 6 months after the first motion or at the end of the reconcile period if both parties still don't agree to come together. Then the parties may appear for the second motion for the final hearing.

4.                    Divorce decree will be granted as the Honourable Court may deem fit.

 Under sec. 28 of the Act, which primarily deals with the provisions relating to obtaining a divorce by mutual consent in respect of a marriage solemnized and/or registered under the Act, a petition for divorce by mutual consent may be presented to the District Court. A few key points to be considered while seeking a divorce by mutual consent are as follows:

1. A petition for divorce must be presented to the District Court by both parties together.

2. The petition must be on the grounds,

·        that they have been living separately for a period of one year or more,

·        that they have not been able to live together, and

·        that they have mutually agreed that the marriage should be dissolved.

3. The petition may be presented only after one year from the date of entering the certificate of marriage in the Marriage Certificate Book. However, relaxation may be provided in cases where exceptional hardship is suffered by the petitioner or in cases of exceptional depravity on the part of the respondent.

4. The petition seeking divorce by mutual consent could be presented to a District Court / Family Court , within whose jurisdiction, either,

·        the marriage was solemnized,

·        the respondent resides, or in case the wife is the petitioner, where she is residing,

·        the parties to the marriage last resided together, or

·        the petitioner resides, in cases where the respondent is residing outside the territories to which the Act extends.

5. Between 6 months after, and within 18 months of, the date of presentation of the petition seeking divorce by mutual consent, both parties must make a motion together seeking grant of a decree of divorce.

6. Before passing a decree of divorce, the District Court considers the following, among other aspects:

·        that the petition has not been withdrawn yet,

·        that a marriage has been solemnized under the Act,

·        that the averments in the petition are true,

·        that consent for divorce has not been obtained by force, fraud or undue influence

·        that there has not been any unnecessary or improper delay in instituting the proceedings.

Thus, the provisions and the procedure for obtaining divorce by mutual consent under the Special Marriage Act are fairly simple and straight forward.

 Can any one party withdraw the mutual consent petition after filing in the court? What will happen by that?

During this period of 6 months when the petition is pending in the court, any of the partner is fully entitled to withdraw the mutual consent by filing an application before the court stating that he/she does not wish to seek divorce by mutual consent. In such circumstances, the court grants no divorce decree.

Where to file a divorce petition:

 1. The court can be one where couple seeking divorce last lived.

2. The court can be one where the marriage was solemnized.

3. The court can be one where the wife is residing as of present.

 The Supreme Court held that the minimum cooling period of six months for granting the decree of divorce under the Hindu law can be waived by a trial court if there was no possibility of cohabitation between an estranged couple.

Important Issues to be Settled before Proceeding:

Child Custody: Which partner will get the child custody after divorce

Alimony/Maintenance: If one of the partner is unable to meet his daily expenses then other needs to pay him a certain sum of amount as alimony (one time settlement or monthly payment). It is subject to mutual understanding between the partners (husband and wife).

Settlement of Property and Assets: Settling the ownership rights of property and asset like dwelling house, bank accounts, movable assets between the parties (Husband and wife)

LIVE IN RELATIONSHIP IN INDIA - A LEGAL STUDY

 

Marriage is a sacred or contractual relationship in India. It is a union of two individuals as spouses and is recognized by livable continuity. More particularly says that marriage, as its legal consequences, entitles both the persons to cohabit; the children born out of a legal wedlock have legitimacy as legal heir; the wife is entitled to maintenance during and after the dissolution of marriage. It is a living arrangement. It is “an arrangement of living under which the couples which are unmarried live together to conduct a long-going relationship similarly as in marriage"

 

WHAT IS LIVE IN RELATIONSHIP

In Indian society, marriage is still considered as sacramental and eternal union and is a legally recognized union of a man and a woman, which thereto raises rights and obligations between them. The ritual of marriage is not merely a social contract but also establishes a bond of fate which binds a family together and lays down grounds for the future generation. The marriage aims at is that of spiritual union through the physical.

But with changing times, young generations in Indian society is slowly materialised for western concern and life styles and one of the most crucial episodes amongst it is the concept of live in relationship. Live in relationship form a characteristics feature and style of living of couples, especially those in metropolitan areas. With each passing day number of unmarried couples living together is scaling high. Co habitation or live in relationship in India is though not illegal but it is considered as socially or morally improper.

A living arrangement in which an unmarried couple lives together under the same roof in a long term relationship that resembles a marriage is known as a live- in-relationship. Live in relation which can also be referred to as cohabitation, in essence, is an arrangement whereby two people agree to live together on a permanent or long term basis in a sexually and/or emotionally intimate relationship. The Court said that a man and a woman can live together as per their wish even without getting married. It further said that it may be immoral for the society but is not illegal.

 There is no specific law on the subject of live in relationships in India. There is no legislation to define the rights and obligations of the parties to a live in relationships, the status of children born to such couples. In India, live in relationships have been a taboo right since the British raj. However, this is no longer entirely true amongst young couples in big cities like Bangalore, Mumbai, Delhi, etc. However, one can not deny that maintaining such relationships in most of the country’s rural areas would be nothing but to invite loads of unwanted attention, or may be even trouble.

 Supreme Court of India observed that, if a man and a woman in love decide to live together as a couple, it is well within their right to life and by no means can be deemed a “criminal offence”. Supreme Court ruled that if an unmarried couple of opposite sexes live together for a prolonged period of time, they can be considered as man and wife. Also, their child, if any, would be legitimate. Supreme Court has held that long and continuous cohabitation of man and woman as a husband and wife may raise a rebuttable presumption of marriage. Facts can be used to rebut or weaken this presumption. The Courts have taken the view that where a man and a woman live together as husband and wife for a long term, the law will presume that they were legally married unless proved contrary. The concept of live in relationship was again recognized in the case of Tulsa v. Durghatiya. The Supreme court in the  D. Velusamy v. D. Patchaiammal case made it clear that if the man has a live-in arrangement with a woman only for sexual reasons, neither partner can claim benefits of a legal marriage. In order to be eligible for palimony, a relationship must comply with certain conditions.

The conditions laid down are that the couple must hold themselves out to society as being akin to spouses; they must be of legal age to marry; they must be otherwise qualified to enter into a legal marriage, including being unmarried; they must have voluntarily cohabited for a significant period of time.

The Supreme Court, in Indra Sarma case delivered on 26th November 2013 says: “Live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country.

 The five kinds of live-in relationships the apex court identified in Indra Sarma case are as follows:

The first one is a domestic relationship between an adult male and an adult female, both unmarried. This is the most uncomplicated sort of relationship. 

The second one is a domestic relationship between a married man and an adult unmarried woman, entered knowingly. This is a problematic grey area. This one can lead to a conviction under Indian Penal Code for the crime of adultery.

The third one is a domestic relationship between an adult unmarried man and a married woman, entered knowingly. This is also a problematic grey area.

The fourth one is a domestic relationship between an unmarried adult female and a married male, entered unknowingly.

The fifth one is a domestic relationship between two gay or lesbian partners.

Legitimacy and inheritance rights of child

Legitimacy of children born out of wedlock presents a dilemma to the Indian Courts. Courts have been divided in this endeavor. Child out of a prolonged relationship is deemed legitimate.

Thus inheritance rights have been granted to children out of a live-in relationship, with respect to both ancestral and self-acquired property. [Parayankandiyal Eravath Kanapravan Kalliani Amma vs K.Devi 1996 SCC (4)76] Deeming a child legitimate for certain purposes and illegitimate for other has raised questions of equality in the Courts. Courts, in recent decisions have held that children out of wedlock will be legitimate (for example, Uday Gupta vs Aysha and Anr).

Maintenance and custodial rights of children

As there are no specific laws with respect to live-in relationships, Courts may decide these cases like marriage cases, if they are brought before them. Under personal laws, father is given the first right in case of a legitimate child, whereas mother is given the first preference in case of illegitimate child. However, this position has been overruled by the Supreme Court, and both, mother and father have been accorded equal rights over the child. Custody will be decided on the basis of facts and circumstances of each case. [Ms. Githa Hariharan & Anr vs Reserve Bank Of India & Anr on 17 February, 1999]

Maintenance of woman

Abhijit Bhikaseth Auti v. State Of Maharashtra and Others

In Varsha Kapoor vs UOI & Ors., the Delhi High Court has held that female living in a relationship in the nature of marriage has right to file complaint not only against husband or male partner, but also against his relatives. In the case of Koppisetti Subbharao Subramaniam vs. State of Andhra Pradesh, the defendant used to harass his live in partner for dowry. In this case the Supreme Court held that the nomenclature ‘dowry’ does not have any magical charm written over it. It is just a label given to demand of money in relation to a marital relationship. The Court rejected the contention of the defendant that since he was not married to the complainant, Section 498A did not apply to him. Thus, the Supreme Court took one more step ahead and protected the woman in a live in relationship from harassment for dowry.

Bharata Matha & Ors. vs. R. Vijaya Renganathan & Ors., the Supreme Court of India has held that child born out of a live-in relationship may be allowed to succeed inheritance in the property of the parents, if any, but doesn't have any claim as against Hindu ancestral coparcenary property.

Though the live in relations provide the individuals individual freedom but due to the insecurity it carries it with, there needs to be a law to curtail its disadvantages.

Official documents

In having joint accounts, insurance and visas, and possibly in visitation rights to a hospital, it could be tough if the couple is not legally married. International chess player Anuradha Beniwal was peacefully living in with her partner with no objections from family. (She did face veiled disapproval from some mothers who stopped sending their daughters to her for chess tuitions.) But when her partner decided to take up a job offer in London and she too was willing to move, they got married in a rush to avoid visa troubles.

In a landmark judgment on 13 April 2015 by the bench consisting of Justice MY Eqbal and Justice Amitava Roy, the Supreme Court ruled out that couples living in live-in-relationships will be presumed legally married.

The apex court also said that in case the man dies, then his partner would inherit his property. Since 2010, the Supreme Court has ruled in favour of women declaring that women should get the rights as that of a wife, in case of live-in couples.

Courts and grant of validity to the live-in-relationships

In a petition between Payal Katara and Superintendent of Nari Niketan, Agra, the Allahabad High Court on 4th March 2002 came up with a bold judgment by stating that anyone, man or woman, could live together even without getting married if they wished. A similar step was taken by the Apex Court on 15th January, 2008 when a Bench comprising Justices Arijit Pasayat and P.Sathasivam leaned in favour of legitimising a live-in couple as they had lived together for 30 years.

 

INDIAN CITIZENSHIP AND RELATED MATTER

Author: N S Ajay, Advocate, High Court of Kerala.

Though India is a Federation having two levels of government, Centre and the States – there is only a single citizenship, viz., the Indian citizenship, and so no separate state citizenship. Arts. 5 to 11 in the Constitution lay down as to who are the citizens of India at the commencement of the constitution i.e. on January 26, 1950. As regards the citizenship of India subsequent to the commencement of the Constitution, the provisions are contained in the Citizenship Act. 1955 enacted by the Union Parliament under Article 11.

 CITIZEN, CITIZENSHIP

A citizen is a person who enjoys full civil and political rights in that State. Citizenship simply means the membership of the political community or the State. Citizenship is a legal status determined by the specific rights and duties. It carries with it certain advantages. There are certain Fundamental Rights which are available only to the citizens of India. There are four categories of persons, identified between Articles 5 and 8 of the constitution, who were deemed eligible to become citizens of India when the constitution came into effect.Citizenship carries with it certain obligations as well. For example, the Fundamental Duties contained in Article 51-A are addressed to the citizens of India only. The concept of Indian citizenship did not exist prior to November 26, 1949, when the constituent Assembly adopted the Constitution, bringing into force, at once, the provisions related to citizenship.

 ALIEN AND FOREIGNER

Broadly speaking, a person is an alien if he is not the citizen of that State. The Foreigner Act 1946 did not use the term alien. Section 2(a) of the Act defined the term ‘foreigner’. The Act was amended in 1957. Under the amendment Act, the term foreigner is defined to mean the same thing as alien i.e., a person who is not a citizen of India. 

        Aliens are either resident aliens or non-resident aliens. Resident aliens are those persons, who for the time being reside within the territory of the State, and so possess a temporary and territorial title to State- membership. They stand on a lower level, as compared to citizens in the scale of legal rights, though they have claim to the protection of the laws and government of the State. The non-resident aliens, possess no title of membership and stand altogether outside the body politic.

Friendly aliens are those persons who are not enemy aliens. An enemy alien is a person who is a subject of a State at war with India. It also includes Indian subjects voluntarily residing in or trading with, an enemy country. While, a friendly alien residing in India may be conferred with full civil rights as opposed to political rights, an enemy alien is not held entitled to such rights.

 CITIZENSHIP OF INDIA AT THE COMMENCEMENT OF THE CONSTITUTION

The problem related to Citizenship of India, at the time of independence was tackled by the three-fold provisions made in the Constitution. A person, at the commencement of the Constitution, could be a citizen of India in the following ways-

·         By domicile

·         By migration

·         By registration

1.      Citizenship by domicile (Article 5) - At the commencement of this Constitution, every person who has his domicile in the territory of India and

• ·        who was born in the territory of India; or 
• ·        either of whose parents was born in the territory of India; or 
• ·        who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India. 

     Conditions specified are alternative and any one of them needs to be fulfilled by a person having domicile in India, to be a citizen of India. The expression territory of India meant the territory of India as is defined under Article 1(3), at the commencement of the Constitution.

 Domicile

The term ‘domicile’ is not defined in the Constitution. Ordinarily, it means the home or the place where a person resides with the intention to retain himself there permanently and without any present intention to remove himself there from.

Two elements are necessary for constituting the domicile of a person-

1.      actual residence at that place, and

2.      the present intention to retain there permanently

Thus, there must be both factum and animus, to constitute the existence of domicile, for neither mere residence nor mere intention to reside at the place is sufficient to constitute the domicile of the person. The burden to prove intention lay on the petitioner. In Mohd. Raza v. State of Bombay, the appellant came to India in 1938 and stayed here till 1945. He went for a pilgrimage to Iraq and on his return he registered himself as a foreigner. He worked as a cashier in India. In 1957, his request for extension of his stay was rejected as his intention was not to make India his permanent residence.

 Types of Domicile

Domicile of origin – Every person has a domicile at his birth called domicile of origin. The domicile of origin of every person of legitimate birth is the place where, at the time of birth his father is domiciled. The domicile of origin of an illegitimate child is the place where, at the time of birth his mother in domiciled. This continues until he acquires a new domicile. A married woman takes the domicile of her husband on her marriage.  A widow retains the domicile of her deceased husband till she changes it.

Domicile of choice - Every person of full age and capacity can acquire a domicile of choice by abandoning his domicile of origin. He can acquire the domicile of choice by moving away from the place of his residence to another place and settling there with a definite intension to stay there permanently. The onus to prove that a person has changed his domicile of origin lies upon him.

 Single Domicile in India

India has one citizenship only and no separate State citizenship. A question has, however arisen whether the same is true for domicile or not. In D.P Joshi v. State of Madhya Bharat, the majority of the Supreme Court held the view, that, it was theoretically possible to have a separate State domicile in India because domicile has the reference to the system of law by which the person is governed. In Pradeep Jain v. Union of India, the Supreme Court has repudiated the notion of State Domicile. The Court has asserted that there is only one domicile, namely domicile in India. India has one single indivisible system with a single unified justicing system having the Supreme Court at the apex of the hierarchy.

 2.      Citizenship by Migration (Article 6)

The independence of India was accompanied by a large scale migration of people from Pakistan. As there people belonged to the territory which ceased to be a part of India after the Independence, they could not be regarded as Indian citizens under Art. 5 and, therefore, special provisions had to be made for them in the Constitution.

Article 6 is applicable to persons of Indian origin, i.e. those who themselves were born in the territory of India as defined in the Government of India Act, 1935, or either of their parents or any of their grandparents were born in India and, in addition, fulfilled either of the following conditions:

      i.   In case they migrated to India before July 19, 1948, they had been ordinarily resident in India since the date of their migration; or

      ii.    In case they migrated on or after July 19. 1948, they had been registered as a citizen of India.

A person could so be registered only if he had been resident in India for at least six months preceding the date of his application for registration. He can be registered as the citizen of India by an Officer appointed in that behalf by the Government of the Dominion of India.

Article 6 specifies July 19, 1948 for determining the acquisition of citizenship by immigrants from Pakistan. It was on this date that the Influx from Pakistan (Control) Ordinance, 1948. Promulgated by the Governor-General of India, came into force.

 Citizenship of migrants to Pakistan (Article 7)

Article 7 gives even more specification to article 5 and 6 i.e. a person who might be called citizens as per these articles may be disqualified by article 7, It states that:-Notwithstanding anything in articles 5 and 6, a person who has after the first day of March,1947,migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India: Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of clause (b) of article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948

 Migrants returning back to India

Proviso to Article 7 contains an exception in favor of persons who having migrated to Pakistan, returned back to India. It provided that a person, who after having migrated to Pakistan after March 1, 1947 returns to India under a permit of resettlement or for permanent return, Indian citizenship would be vested in him under Art. 6(b), as if he had migrated to India after July 19, 1948. The ‘migration’ referred to in this article refers to the migration between March 1,1947 and January 26, 1950 and does not extend to migration after that date, which will be governed by the Citizenship Act,1955.

 Migration

The concept of ‘domicile’ or permanent residence does not enter into the word ‘migration’, and a movement from India to Pakistan,  if it was not fir a specific period of purpose and not for a short and limited period, would constitute migration under Art. 7. It follows that even a minor or married woman may be held to have migrated, even though they may not acquire domicile of choice.

Departure from India to Pakistan for the purpose of employment or labor for an indefinite period constitutes migration. Movement to Pakistan by a Government servant who opted for Pakistan is ‘migration’ within the meaning of Art. 7. The fact that the person acquired no property there while he possessed considerable property in India, or that he did not remove his parents, are not relevant considerations for determining the question of migration.

 3.      Citizenship by Registration (Article 8)

         Notwithstanding anything in article 5, any person who or either of whose parents or any of whose grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted), and who is ordinarily residing in any country outside India as so defined shall be deemed to be a citizen of India if he has been registered as a citizen of India by the diplomatic or consular representative of India in the country where he is for the time being residing on an application made by him therefore to such diplomatic or consular representative, whether before or after the commencement of this Constitution, in the form and manner  prescribed by the Government of the Dominion of India or the Government of India.

      Article 8 is to cover overseas Indians having no domicile in the territory of India. Under article 8, unlike Articles 5 and 6, a person could become a citizen of India, not only at the commencement of the Constitution but also subsequent to such commencement.

 No Dual Citizenship (Article 9)

    Under Art.9, no person can be a citizen of India under Articles 5, 6 and 8, if he has voluntarily acquired the citizenship of a foreign country. This provision thus recognizes the principle that no Indian citizen can claim a dual or plural citizenship. Cases of loss of Indian citizenship by reason of acquisition of the citizenship of a foreign State since January 26, 1950 are governed by section 9 of the Citizenship Act, 1955.

    The question whether an Indian Citizen has acquires the citizenship of a foreign country, is one for the determination by the Central Government and not by the Court. Mere proof of the fact that a person has obtained a passport from a foreign country, is not sufficient, to order his deportation from India or prosecute him, unless there has been a decision of the Central Government in this respect. The enquiry by the Central Government in such a matter is quasi-judicial.

 Continuance of the right of citizenship (Article 10)

    Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.

In Ebrahim Wazir v. State of Bombay, the appellant, a citizen of India, having entered India from Pakistan without a permit, was ordered to be removed to Pakistan, under Section 7 of the Influx from Pakistan(Control) Act, 1949. The Supreme Court held Section 7 ultra vires the Parliament because it allowed the forcible removal of an Indian citizen from India, destroying his right of Citizenship.

 Parliament to regulate the right of citizenship by law (Article 11)

   Though there are certain provisions relating to citizenship but the parliament along with the Citizenship Act, 1955 shall have effect on the citizenship regulations:-Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. In absence of a law expressly made under Article 11,the right of citizenship which a person had acquired under Part II, could not be destroyed by an Act made for a different purpose.

 Acquisition of Citizenship of India after the Commencement of the Constitution (i.e. after 26th January, 1950)

     The Citizenship Act, 1955 provides the following modes of acquiring Indian citizenship after the commencement of the Constitution –

 1.      Citizenship by Birth (Section 3)

Section 3 of the Citizenship Act, 1955 provides that every person born in India on or after 26th January, 1950, shall be a citizen of India by birth. However, no such person as above said shall be a citizen of India, if at the time of his birth –

(a)    His father (or mother) possesses such immunity from suits and legal processes as is accorded to an envoy of a foreign sovereign power and (he or she, as the case may be) is not an Indian citizen; or

(b)   His father (or mother) is an enemy alien and his birth takes place in a territory then under enemy occupation.

The Citizenship Act, 1955 has been amended by the Citizenship (Amendment) Act 1986 with the object of making the acquisition of citizenship of India somewhat difficult. The object is to prevent persons coming to India from Bangladesh, Sri Lanka and other African countries from becoming citizens of India. The Citizenship (Amendment) Act, 2003 has amended Section 3 to the effect that a person born in India on or after the commencement of this Amendment Act (i.e. 3-12-2004) shall be a citizen of India by birth if at the time of birth

v Both of his parents are citizens of India; or

v One of whose parents is a citizen of India and the other is not an illegal migrant

 2.      Citizenship by Descent (Section 4)

Section 4 of the Citizenship Act, 1955 provides that a person born outside India on or after 26th January, 1950, shall be a citizen of India by descent, if , at the time of his birth, his father (either of his parents) is a citizen of India. However, if the father (parent) of such a person is himself a citizen of India by descent, then, such a person shall not be a citizen of India unless-

(a)    His birth is registered at the Indian Consulate, or

(b)   His father is, at the time of his birth, in the service under a Government of India,

The birth of such a person can be registered, with the Indian Consulate, within one year of its occurrence or within one year of the commencement of the Citizenship Act, 1955, or within such period as extended by the Government of India. The Citizenship (Amendment) Act, 2003 has amended Section 4 to the effect that the birth of such a person as aforesaid shall not be registered on or after the commencement of this Amendment Act, unless the parents of such person declare, in such form and in such manner as may be prescribed, that the minor does not hold the passport of another country.

A minor, who is a citizen of India by virtue of this Section and is also a citizen of any other country, shall cease to be a citizen of India if he does not renounce the citizenship or nationality of another country, within six months of attaining full age.

 Citizenship by Registration (Section 5)

Section 5 of the Citizenship Act, 1955 provides for the registration of certain categories of persons as citizens of India. This Section lays down that the prescribed authority may, on application made in this behalf, register as citizen of India, any person, who is not a citizen by virtue of any provision of the Constitution or by virtue of any other provisions of the Citizenship Act, 1955 and belongs to the following categories:

a.         Persons of Indian origin who are ordinarily resident in India for six months (five years) (seven years) immediately before making application for registration

b.        Persons of Indian origin who are ordinarily resident in any country or place outside undivided India

c.         Women, who are or have been married to citizens of India, after the passing of the Citizenship (Amendment) Act, 1986, this provision reads as “persons who are, or have been so resident for five years (seven years) immediately before making as application for registration

d.        Minor children whose both parents are Indian citizens.

e.         Persons of full age who’s both parents are registered as citizens of India mentioned in the First Schedule to the Citizenship Act, 1955.

Category (e) is substituted by the Citizenship (Amendment) Act, 2003 by the following categories:

(e) a person of full age and capacity whose parents are registered as citizens of India under clause (a) of this sub-section or sub-section (1) of Section 6;

 [(f) a person of full age and capacity, who or either of his parents were either citizen of Independent India and has been residing in India for one year immediately before making an application for registration;

(g) a person of full age and capacity who has been registered as an overseas citizen  of India for 5 years and residing in India for two year before making application for registration.

For the purpose of clauses (a) and (c) above, an applicant shall be deemed to be ordinarily resident in India if,-

1.  If he has resided in India throughout the period of twelve months immediately before making an application for registration; and

2. He has resided in India during the eight years immediately preceding the said period of twelve months for not less than six years.

For the purpose of this Section, a person shall be deemed to be Indian origin if he or either of his parents was born in undivided India or such other territory which became part of India after 15thday of August, 1947. The Central Government, for reasons recorded in writing, may grant exemption from the residential requirement under clause (c) of sub-section (1) to any person or a class of persons, if it is satisfied that circumstances exist which render it necessary to do so.

         Section 5 of the Citizenship (Amendment) Act, 1955, further provides that the Central Government may lay down conditions and restrictions subject to which the above categories of persons may be registered. The Government has framed the rules for this purpose. A certificate of registration is conclusive evidence of acquiring Indian Citizenship except when it is proved otherwise.

 Citizenship by Naturalisation (Section 6)

         Naturalisation means to adopt to introduce to any other country to admit to citizenship or to naturalise as a citizen of a State. In the context of citizenship, naturalisation is “the act by which rights of citizenship are conferred by a State upon a person who was before, an alien to that State”. Section 6 of the Citizenship Act, 1955, provides for the acquisition of citizenship of India by naturalisation. It is applicable to persons of full age and capacity.

         The Government of India may, if satisfied that the applicant is qualified for naturalisation, grant him a certificate of naturalisation. The qualifications for naturalisation of a person are as follows-

(a)    That he must not be a citizen of a country where Indian citizens are prevented from becoming citizens of that country by naturalisation;

(b)   That he  [has renounced the citizenship of his own country according to the law of that country and has notified such renunciation to the Central Government];

(c)    That he has either resided in India or has been in service of Government of India for 12 months immediately preceding the date of making the application of naturalisation;

(d)   That during 7 years immediately preceding the above period of 12 months, he has either resided in India or has been in the service of Government or partly the one and partly the other, for period amounting in aggregate to not less than 4 years.

(e)    That he is of good character

(f)    That he has adequate knowledge of at least one language recognized by the constitution of India

(g)   That in the event of a certificate of naturalisation being granted to him, he intends to reside in India or to serve under a Government in India or under an International Organization or under a society, company or body of persons established in India.

The Government of India may waive all or any of the above conditions for naturalisation, in the case of a person who, in its opinion has rendered distinguished service for the cause of science, philosophy, art, literature, world peace or human progress generally.

 Citizenship by Incorporation of Territory (Section 7)

    Section 7of the Citizenship Act, 1955 provides that if any territory becomes a part of India, the Central Government, may by orders notified in the Official Gazette, specify the persons who shall be citizens of India by reasons of their connection with that territory, and those persons shall be citizens of India as from the date to be specified in the order.

 Citizenship of Persons covered by Assam Accord 1985

    The Citizenship (Amendment) Act, 1985 inserted Section 6-A in the Citizenship Act, 1955, to give effect to the Memorandum of Settlement relating to the foreigners’ issue in Assam. This Section provides citizenship of India for persons of Indian origin who had come to Assam before 1st January 1966.

Those who came to Assam after 1st January 1966 but before 25th March, 1971 and have been detected to be foreigners would have to register themselves. Such persons shall have the same rights and obligations as citizens of India. But, such persons shall be deemed to be citizens of India for all purposes as from the date of expiry of a period of ten years from the date on which they have been detected to be foreigners.

 Overseas citizenship for persons of indian origin

   The Citizenship (Amendment) Act 2003 provides for dual citizenship to Persons of Indian Origin (PIOs) residing in 16 countries. As per the Act, the PIOs who seek dual citizenship, would be allowed free movement without visas and be able to own properties, build or invest directly in projects in the country.

 Overseas Citizenship of India

   “Overseas Citizen of India” means “a person who- (i) is of Indian origin being a citizen of a specified country or (ii) was a citizen of India immediately before becoming a citizen of a specified country and is registered as an Overseas Citizen of India by the Central Government under Sub-Section (i) of Section 7-A.”

Section 7-A of the Citizenship (Amendment) Act 2003 provides for registration of the following persons as overseas citizens of India:

a. Any person of Indian origin of full age and capacity who is a citizen of any country specified in the Fourth Schedule, to the Act;

b.Any person of full age and capacity who has obtained the citizenship of a specified country on or after the commencement of the Amendment Act 2003 and who was a citizen of India immediately before such commencement;

c. Any minor children of a person mentioned in the above mentioned categories (a) and (b).

      The registration as an overseas citizen of India may be done by the Central Government, subject to such conditions and restrictions including the condition of reciprocity, as may be prescribed by the said Government. The person so registered shall be an overseas citizen of India, as from the date on which he is so registered. No person who has been deprived of his Indian Citizenship under the Citizenship (Amendment) Act, 2003 shall be so registered except by an order of the Central Government.

 Rights of Overseas Citizens of India

    Section 7-B of the Citizenship (Amendment) Act 2003 provides that the Central Government may by Notification in the Official Gazette specify the rights to which an overseas citizen of India would be entitled, except the rights conferred on Citizen of India under Article 16, 58, 66, 124, 217, Sections 3, 4, 5, 5-A, 6, 16 of the Representation of People Act 1951.

    An overseas citizen of India shall not be appointed to public services and posts in connection with the affairs of the Union or any State except for appointment in such services as the Central Government in that behalf, specify by special order. 

   After the amendment of  CITIZENSHIP (AMENDMENT) ACT, 2019 a provision is inserted that "Provided that no order under this section shall be passed unless the Overseas Citizen of India Cardholder has been given a reasonable opportunity of being heard”.

 Termination of Citizenship

    Article 9 of the Constitution as already discussed above lays down that a citizen of India, shall cease to be a citizen of India, if he had voluntarily acquired the citizenship of a foreign State prior to or at the commencement of the Constitution.

As regards the termination of citizenship of India subsequent to the commencement of the Constitution the Citizenship Act 1955 provides the following ways:

v By renunciation  or

v By termination or

v By deprivation

 (a)     Renunciation (Section 8)

    Renunciation is covered in Section 8 of the Citizenship Act 1955. If any citizen of India of full age and capacity, who is also a citizen or national of another country, makes in the prescribed manner a declaration renouncing his Indian citizenship; the declaration shall be registered by the prescribed authority, and upon such registration, that person shall cease to be a citizen of Indian. Provided that if any such declaration is made during any war in which India may be engaged, registration thereof shall be withheld until the Central government otherwise directs.

     Clause (2) of Section 8 provides that where a male person renounces his citizenship every minor of that person shall also cease to be a citizen of India. However such a child may resume Indian citizenship by making a declaration to that effect within one year of his attaining majority.

    The Citizenship (Amendment) Act 1992 has amended sub-section (2) of Section 8 to the effect that in place of the words “a male person” the words “a person” shall be substituted. Thus the minor children of a person, whether male or female who renounces his/her Indian citizenship shall also cease to be citizen of India.

Section 7-C of the Citizenship (Amendment) Act 2003 enables an overseas citizen of India of full age and capacity to renounce his overseas citizenship of India by making a declaration and getting it registered with the Central Government. Upon such registration he shall cease to be an overseas citizen of India. Every minor child of such a person shall also cease to be an overseas citizen of India.

 (b)     Termination of Citizenship (Section 9)

   Section 9 of the Citizenship Act 1955 provides that if a citizen of India voluntarily acquires the citizenship of any other country, subsequent to the commencement of the Constitution he shall cease to be a citizen of India. But, it will not apply to a citizen of India who during any war in which India may be engaged, voluntarily acquires the citizenship of another country.

     The question falling within section 9 has to be determined to the extent indicated therein, by the Central Government and not by the courts. The question is a question of fact which would require careful scrutiny of evidence.

 (c)      Deprivation of Citizenship (Section 10)

     The Central government under section 10 of the Indian citizenship Act, 1955 deprives any citizen of Indian Citizenship if it is satisfied that-

1. The registration or certificate of naturalization was obtained by means of fraud, false representation or concealment of any material fact; or
2. That citizen has shown himself by act or speech to be disloyal or disaffected towards the Constitution of India as by law established; or
3.  That citizen has, during the war in which India may be engaged, unlawfully traded or communicated with an enemy or been engaged in or associated with, any business that was to his knowledge carried on in such manner as to assist any enemy in that war; or
4. That citizen has, within five years after registration or naturalization, been sentenced in any country to imprisonment for a term of not less than two years; or
5. That citizen has been ordinarily resident out of India for a continuous period of seven years, and during that period, has neither been at any time a student of any educational institution in a country outside India or in the service of a Government of India or of an International organization of which India is a member, nor registered annually in the prescribed manner at an Indian consulate his intention to retain his citizenship of India.
6.  The Central Government shall not deprive a person of citizenship unless it is satisfied that it is not conducive to the public good that person should continue to be a citizen of India.

        Before making an order depriving a person of his Indian citizenship the Central Government is to give to him a written notice containing the grounds on which the order is proposed to be made. If the order is made on any of the above mentioned grounds specified in clauses (i) to (iv), that person might his case referred to a Committee of Inquiry.

       As regards the Overseas Citizens of India Section 7-D of the Citizenship (Amendment) Act 2003 provides that the Central Government may by order cancel the registration of such a person on any of the grounds mentioned in clauses (i) to (iv) above as also if it’s necessary to do so in the interest of the Sovereignty and Integrity of India, friendly relations with any foreign country or in the interests of the general public.

  In Satish Nambiar v. Union of India overseas citizenship granted to the appellant on 18th May 2006, was cancelled on 14th February 2007, in the interest of security of India and the relationship with foreign countries. The order was based on the adverse report of the Special Security Agency. Holding that the order of cancellation of OCI was primarily an administrative decision taken with reference to the peculiar facts and circumstances of the case, the Bombay High Court said the order could not be examined by the Court.

 Issue of National Identity Cards

   Section 14-A inserted in the Citizenship Act 1955 as amended by the Citizenship (Amendment) Act 2003 empowers the Central Government to provide for compulsory registration of every citizen of India and issue him a national identity card. For that purpose the Government may establish a National Registration Authority who shall maintain a National Register of Indian Citizens. The details for that purpose are to be prescribed by the Central Government.

 Company or Corporation whether a Citizen of India

   Though a company is a legal person, it is not a citizen under the constitutional law of India or the Citizenship Act, 1955. The reason as to why a company cannot be treated as a citizen is that citizenship is available to individuals or natural persons only and not to juristic persons.

    The question whether a corporation is a citizen was decided by the Supreme Court in State Trading Corporation of India v. Commercial Tax Officer, wherein it was contended on behalf of the petitioners that the corporation was incorporated under the Companies Act and all shares were held by the President of India and two Secretaries in their official capacities and since all these three persons were citizens of India, the corporation should also be treated as a citizen. Rejecting the plea putforth by the petitioners the Supreme Court refused to recognize the corporation as a citizen. The court observed: “.......if all of them (i.e. members) are citizens of India, the company does not become a citizen of India any more than, if all are married, the company would be a married person.”

  In Chiranjilal Chaudhari v. Union of India [1951] 21 Comp. CAS. 33(SC),the Supreme Court held that the fundamental rights guaranteed by the Constitution are available not merely to individual citizens but to corporate bodies as well except where the language of the provision or the nature of the right compels the interference that they are applicable only to natural persons. 

  Similarly in Bennet Coleman Comp. v. Union of India[1972] S.C.C. 788,806, the Supreme Court extended the rule by stating “it is now clear that the fundamental rights of shareholders as citizens are not lost when they associate to form the company. When their fundamental rights as shareholders are impaired by State action, their rights as shareholders are protected the reason is that the shareholders’ rights are equally and necessarily affected if the rights of the company are affected.

 THE CITIZENSHIP (AMENDMENT) ACT, 2019 (47 of 2019) come into force on   10th day of January, 2020. Some of the provisions are inserted in old act and give more clarification on migrant from Afghanistan, Bangladesh or Pakistan. It says that “ Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act.

     Special provisions as to citizenship of person covered by proviso to clause (b) of sub-section (1) of section 2 is inserted after section 6A. On and from the date of commencement of the Citizenship (Amendment) Act, 2019, any proceeding pending against a person in respect of illegal migration or citizenship shall stand abated on conferment of citizenship to him. Provided that such person shall not be disqualified for making application for citizenship under this section on the ground that the proceeding is pending against him and the Central Government or authority specified by it in this behalf shall not reject his application on that ground if he is otherwise found qualified for grant of citizenship. Provided further that the person who makes the application for citizenship under this section shall not be deprived of his rights and privileges to which he was entitled on the date of receipt of his application on the ground of making such application. Prior to 2019, the amendments in the Citizenship Act, 1955 never explicitly restricted grant to citizenship to certain religious communities. The previous governments had a holistic approach – either they never provided for citizenship to illegal migrants or provided citizenship to illegal migrants belonging to all the communities.

 

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