028-NLR-NLR-V-57-FAKRUDEEN-Appellant-and-COMMISSIONER-FOR-REGISTRTION-OF-INDIAN-AND-PAKISTANI-.pdf
1955Present : Sansoni, J., and Fernando, J.
FAKRUDEEN, Appellant, and COMMISSIONER FORREGISTRATION OF INDIAN AND PAKISTANI RESIDENTS,RespondentS. C. 858—In the Matter of an Appeal under Section 15 of the Indian,and Pakistani ^Residents (Citizenship) Act, No. 3 of 1940
Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949—Section 6 (2) (ii)as amended by Act No. 45 of 1952—Difference bctu-een “ non-residence ” and'“ occasional absence ”—Residence of wife or child—Need not necessarilycommence prior to the period exempted owing to war conditions.
Tho failure of a wife or child of an applicant for citizenship to commenceresidence in Ceylon within twelve months of marriage or birth, as required by-section C (2) (ii) of tho Indian and Pakistani Residonts (Citizonship) Act, ifshown to have beon attributablo to tho war conditions montionod in tho clauseadded to that soction by Act No. 45 of 1952, comes within tlio scope of theexception granted by that clause. In that clauso tho Legislature had in mind,,not merely interruptions of residence, but non-residence, which includes a failureto commence residence within tho stipulated time.'
A
XjLPPEAL under Section 15 of tho Indian and Pakistani Residents(Citizenship) Act.S. Sharvananda, for the applicant-appellant.B. S. Wanasundera, Crown Counsol, for the respondent.Cur. adv. vull.
(1925) 69 S. J. 311 K. B.
September 8, 1955. Fernando, J.—• •
The appellant is an applicant for registration as a citizen under theIndian and Pakistani Residents (Citizenship) Act. . His applicationhas been refused on the ground that ho failed to prove :—..
(а)that his -wife was resident in Ceylon, without absence exceeding
months on any single occasion, during the period January 1,.1939 to September 1950 ;
(б)that his child Luchmanjee was resident in Ceylon during the
period November 1942 to September 1950 ; and
that his child Esufally was resident in Ceylon during the period
May 1946 to March 1950….
The appellant married in 1927 ; according to him, his wife made a visitto Ceylon in 1929 returning to India in 1932 and again camo to Ceylonin 1938 and returned to India in 1941. Thereafter the wife returnedagain to Ceylon in January 1946, having remained in India until thenowing to difficulties arising from war conditions. The elder child wasborn in India on November 29, 1941, and the younger child on May 17,1945, also in India : both children came to Ceylon in 1946 with theirmother.
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In regard tcTthe residence of the wife the Deputy Commissioner did notbelievethat the wife came to Ceylon on 1st January 1939 and left■Ceylon for India in June or July 1941 ”. Dr. Subramaniam, retiredProvincial Surgeon, Jaffna, issued a certificate to the effect that theapplicant’s family wero treated by him between 193S and 1941, but,in giving evidence, he stated that he could not say that the family receivedtreatment from him continuously during that period and could not beprecise about their visits to his Dispensary. But he clearly remembered•that the wife had been in Ceylon before 1941 and “ went to India for herfirst confinement ”—a piece of evidence which entirely escaped the noticeof the Deputy Commissioner. An Accountant and Auditor, Mr. BamJMoorthy, vouched for the presence of the applicant’s wife in Jaffna duringtho years 1939 to 1941, but his evidence is not even referred to by therespondent. In the circumstances, Crown Counsel could mako noattempt to support the finding that tho wife was not resident duringthe qualifying period.
In so far as the children are concerned, there is nothing to contradictthe applicant’s evidenco that they first came to Ceylon in January 1946and that they have been in Ceylon “ uninterruptedly ” since then.But Crown Counsel has argued that, in the case of the elder child, tho factthat he did not commence to reside in Ceylon on a date earlier thanNovember 29, 1942, is fatal to the application. The point thus raisedis apparently of first instance, and requires considered examination.
Paragraph (ii) of sub-section 2 of Section 6 of the Act (as amended in1952) requires the .applicant to prove that “ each minor child was un-interruptedly resident in Ceylon from a date not later than the firstanniversary .of his birth ”, and the requirement was clearly not satisfiedin the case of tho elder child of the – applicant. But this paragraph
has to Lc read together with tho relevant inteiprotation clauses inthe same section :—
“ For the purposes of the preceding paragraph (2) (ii), the continuityof residence of the wife or a minor child of an applicant shall notwith-standing her or his occasional absence from Ceylon be deemed to havebeen uninterrupted if such absence did not on any ono occasion exceocLtwelve months in duration.
For the purposes of the preceding paragraph (2) (ii), tho continuityof residence of tho wife or a minor child of an applicant shall not bodeemed to have been interrupted by reason that she or he was notresident in Ceylon during tho period commencing on December 1, 1941,and ending on December 31, 1945, or during any i^art of that poriod,if the Commissioner is satisfied that she or he did not reside in Coylonduring that period or part thereof owing to apprehension of enemyaction in or against Ceylon or owing to special difficulties causedby the existence of a state of war.”
The contention of Crown Counsel is that these two clauses are intondedonly to excuse interruptions of a period of residence which has alreadycommenced and provide no excuse for any delay in commencing residenceat or before the beginning of the qualifying period : hence, in the case ofthe elder child, there is no excuse under sub-section (3) for the failure tocommence a residence on or beforo November 29, 1942. Crown Counsel’scontention is clearly correct in regard to the availability of the ‘firstof these clauses. Section 6 (2) (ii) postulates commencement of residencewithin twelve months of marriage (in tho case of a wife) and 'withintwelve months of birth (in the case of a child). Since an interval oftwelve months is already allowed in that section during which th-s wifeor child should have arrived in Ceylon, it woidd bo unreasonable for thoLegislature to permit further delay in arrival without there being somespecial reason for the further delay. The first of the “ interpretation ”clauses which I have set out above contains a concession forwhich no reason is assigned, and does not afford an oxcuse fordelay additional to the delay permitted in the substantive require-ment. The language of the first provision makes the matter clear :the continuity of residence shall be deemed to bo uninterrupted notwith-standing occasional absence “ if such absence did I’ot on any occasionexceed twelve months in duration ”. While an interruption of residenceby a visit to India would clearly be “ occasional absence ” from Ceylon,tho circumstance that a wife or child did not arrive in Ceylon and com-mence residence before the stipulated date cannot properly be referred toas absence, and still less as occasional absence.-
To turn now to the second “ interpretation ” clause :—“ Thecontinuity of residence …. of a minor child shall not bedeemed to have been interrupted by reason tliat he was not residentin Ceylon during ….. (the war period) if the Commissioner issatisfied that lie did not reside in Ceylon during that poriod owing'to(war. conditions) ”. The legislature here has in mind not occasiona1absence or mere interruptions of a period of residence, but non-residenre
■during the war period, an expression which can fairly include any failureto reside attributable to war conditions, whether or not the period ofnon-residence constituted an interruption of a period of residence. ■
The matter can in my opinion bo expressed in another way. In orderthat the requirement in Section 6 (2) (ii) can operate against the presentApplicant, the Commissioner has to say to him “ your child was notuninterruptedly resident during tho period November 1942 to September1950, for the reason that the child did not reside in Ceylon from November19i2 until January 19J6 ”. But the second interpretation clauseprevents the Commissioner from assigning such a reason, because itexpressly provides that for the purposes of Section 6 (2) (ii) that is not areason on account of which the continuity of residence can bo treated asinterrupted. I am therefor© of opinion that the concession grantedby tho second interpretation clause set out above is available in the caseof a wife or child where the failuro to commence residcnco before thefirst anniversary of marriage or birth is to bo excused on the groundsset out in that clause.
The appeal has therefore to bo allowed, and the case remitted to theCommissioner solely for the purpose of satisfying himself whether thenon -residence of the wife and minor child of the applicant between 1941and 1946 was due to circumstances spjcified in the second interpretationclause. If he is so satisfied, the Commissioner w ill make the necessaryorder under Section 10 of the Act.
The applicant is entitled to costs fixed at Bs. 105.
Sansoni, J.—I agree.
Appeal allowed.