036-NLR-NLR-V-56-M.-P.-S.-SHAHUL-HAMEED-Appellant-and-COMMISSIONER-FOR-REGISTRATION-OF-INDIAN.pdf
152
Shahul Hameed v. Commissioner for Registration of Indian and
Pakistani Residents
1954Present : Nagallngam S.F.J.M.P. S. SHAHUL. HAMEED, Appellant, and COMMISSIONER FORREGISTRATION OF INDIAN AND PAKISTANI RESIDENTS,
Respondent
S. C. 988—Application No. D765
Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949—Section 6, as amended, by Act No. 45 of 1952, s. 2 (2) and (3)—Acquisition of citizenship—Applicant’swife—Proof of her uninterrupted residence in Ceylon.
In an application made by a person, under tbe Indian and Pakistani Residents(Citizenship) Act, for the registration of himself and his family as citizensof Ceylon, the applicant, who had married in India on February 24, 1941, showedthat his wife did not join him in Ceylon earlier than June 3, 1942, owing toapprehension of enemy action and by reason of the special difficulties created bythe existence of a state of war. ,
Held, that the applicant was entitled to claim the benefit of the provision con-tained in the last paragraph of section 6, as amended by Act No. 45 of 1962.
■AlPPEAL from an order of the Deputy Commissioner for theRegistration of Indian and Pakistani *R,esidants.
N.K. Choksy, Q.C., with C. Shanmuganayagam, for the applicant-appellant.
M. Tiruchelvam, Crown Counsel, for the respondent.
Cur. adv. wit.
November 29, 1954. Nagaungam S.P.J.—
This is an appeal under the provision of the Indian and PakistaniResidents (Citizenship) Act No._ 3 of 1949 from an order of the learnedDeputy Commissioner rejecting the application of the Applicant forregistration of himself and of his family as citizens of Ceylon. There are afew salient facts which are undisputed. Admittedly, the plaintiff’sfather was resident in Ceylon for several years and had been contractor tothe Dehiwela-Mt. Lavinia Urban Council for the supply of meat. TheApplicant has since his father’s death in 1937 been and is contractor tothe Council and has resided within its area.# •
Mr. L. V. Gooneratne, a prominent citizen of that area, states that hehas known the applicant for the last thirteen years and in his own mindhas looked upon him as part and parcel of Geylon.
The Applicant lives in his own house in Dehiwela and is possessed ofimmovable property to the value of Rs. 25,000 besides owning the meatbusiness. It is true he is also possessed of property of about the samevalue in India, but has no business interests there. On the 24th February
NAGA LIN QAM S.P. j.—Shahid Hameed v. Commissioner for153
Registration of Indian and Pakistani Residents
1941, he got married in India. ; the wife continued to remain in Indiawhile he returned to Ceylon within five months of the date of his marriage.His first child was bom in India on the 19th January 1942, and on the 3rdJune 1942 the wife and child joined him in Ceylon. The second ohildwtfs bora on 1st January 1943, while the third in India and the subsequentchildren have all been born in Ceylon. The present Chairman of theUrban Council who is the M. P. for the area states that the Applicant ispersonally known to him since 1942 and that he has been residing withhis family continuously since 1942.
On the 12th June 1951, the Appellant made his application for regis-tration. On the 6th August 1953, that is to say-, more than two yearsafter the application, the learned Deputy Commissioner notified theApplicant in terms of section 9 of the Act that unless he shewed cause to thecontrary, he had decided to refuse his application on the ground that theApplicant had failed to prove that his wife had been resident in Ceylonfrom the 4th June 1942 to January 1947, and from 9th November 1947,to 11th August 1950 without absence exceeding 12 months on any singleoccasion. The ground specified by the learned Commissioner is one that isreferable not to any express provision of the Act as it stood at the date ofthe application but to the Amending Act No. 45 of 1952, whioh had be-come law in the meantime and under which it was provided that a malemarried applicant had to satisfy the Commissioner, in addition to theother requirements prescribed by the main Act, that his wife had beenuninterruptedly a resident in Ceylon from a date not later than the firstanniversary of the date of her marriage and until the date of the appli-cation. The term uninterruptedly was assigned an artificial meaning by adeclaration that the continuity of the residence of the wife should not-withstanding her occasional absence from Ceylon be deemed to have beenuninterrupted if such an absence did not on any one occasion exceed 12months in duration. The Applicant shewed cause by adducing furtherevidence but the Commissioner informed him that the evidence adducedby him was not conclusive and that he proposed to hold an inquiry interms of section 9 (3) (a) of the Act.
At the inquiry, the Applicant himself gave evidence and called witnessesbut at the conclusion thereof the learned Commissioner refused the appli-cation on the ground “ that the Applicant had failed to satisfy him thathis wife had been resident in Ceylon from the date of the first anniversaryof marriage ”. It is conceded on behalf of the appellant that as the wifehad not joined him in Ceylon till the 3rd June 1942, it could not be saidthat she had had uninterrupted residence in Ceylon from a date not later thanthe first anniversary of her marriage and up to the date of her application,but it is urged on his behalf that he is entitled to claim the benefit of thelast paragraph of the provision amending section. 6 of the Act, whichomitting words that have no bearing on the present discussion, runs asfollows : “ For the purposes of the preceding paragraph 2 (ii) the conti-nuity of residence of the wife shall not be deemed to have beeninterrupted by reason that she was not resident in Ceylon during theperiod commencing on 1st December 1941 and ending on 31st December1945 or during any part of that period if the Commissioner is satisfied
154NAGALINGAM 8.P.J.—Shahul Hanteed v. Commissioner fnr
Registration oj Indian and Pakistani Residents
that she did not reside in Ceylon during that period or any part thereofowing to apprehension of enemy action in or against Ceylon or owing tospecial difficulties caused by the war. ”
^ 0
The Applicant stated on oath that the reason why he did not bring hiswife earlier was because of his apprehension of enemy action and was alsoduo to special difficulties caused by the existence of a state of war. Inorder to support his evidence as regards the fiast reason given by him, hocalled the Village Headman of the area who stated explicitly that towardsthe end of January or February, 1942, he brought to the notico of theresidents of the area both personally and by beat of tom-tom that thosewho wished to evacuate to the interior might do so in view of the existingstate of war. The applicant and the Headman both resided at WaidyaJtoad at that time, close to each other. In regard to the second reasonthat there were special difficulties caused by war, he called a witness,Mrs. Martenesz, who testified to her assistance being sought by theappellant to secure the services of a servant woman as he had failed inthe attempt, and that she too failed to secure a servant and that whentheiyife returned, a relative of the applicant as well as her own servantgave the wife some assistance. This witness further stated that whenthe wjfe arrived in Ceylon in June 1942, she was in a delicate state ofhealth, a fact uncontrovertably established by the child being bom inJanuary 1943.■
The learned Commissioner has taken the view that the fact that, asearly as 3rd June, 1942, the applicant was able to bring his wife to Ceylon,led to the irresistible conclusion that the reasons forhishaving not broughthis wife earlier was not that he had apprehensions in regard to enemyactions nor due to any special difficulties caused by the war but that it wasdue, as he had affirmed to in his affidavit of 1951, that she w*as in delicatehealth. Such an inference is undoubtedly possible but the question iswhether that is the proper inference to be drawn from all the facts deposedto by the applicant taken in 'conjunction writh evidence of the otherwitnesses as well.
At the date the affidavit was sworn to in 1951, the amending Ordinanceof 1952 had not been enacted and any apprehension of enemy action whichmay have been one mental element inducing a husband not to bring hiswife to Ceylon would have had no bearing at all on an application madeunder the Act and hence one can quite appreciate why one, especiallya skilled draughtsman, drafting an affidavit in those circumstances, wouldhave omitted to refer to any such fear in the mind of the applicant, asbeing irrelevant. But at the date of the inquiry which was subsequent tothe legislature giving legal recognition to the existence of anxious feelingsin the mind of the husband for the safety of his wifemnd children by pro-viding that a husband should be entitled to satisfy the Commissioner thatthe absence of the wife was due to an apprehension of enemy actionor to special difficulties caused by a state of war, the question whether theapplicant had such an apprehension-or not became relevant and he gaveevidence of the fact and called the Headman to establish that his appre-hension was real in that it was moulded and based upon official pro-
NAG AUNG AM S.P.J.—Shahul Hameed, v. Commissioner for
Registration of Indian and Pakistani Residents
165
nouncements, which not only could not be lightly'rejected but which onthe other hand brought home to him most forcibly the grave risks to whichhe would be exposing his wife and child if he were to bring them into anarea which was without doubt regarded as a danger zone. Can it be saidthat the applicant was devoid of all tender feelings towards his wife andchild, that he remained unaffected by the announcement of the Headmanthat those who wished to evacuate to the interior may do so, and that hewas so callous as not to care for the welfare, not to speak of the lives, of hiswife and child ? These questions admit only of one answer and thatanswer has been anticipated by the Legislature when it enacted the lastparagraph of the amending provisions to section 0 of the Aot. In parti-cular, the period December 1941 to about April 1942 was one of very greatanxiety and mental strain for all the peoples of the Island and especiallyfor those living in Colombo and the neighbouring coastal areas. Singaporehad fallen ; the enemy had announced over the radio that Ceylon was tobe the next target of attack and that Colombo and Trincomalee had beensingled out for air-raids. The atmosphere was charged with these storiesof impending enemy attack and when the applicant says that he wasinfluenced by apprehension of enemy attack in not bringing his wife earlierthan he did, is it possible in those circumstances to reject his statement?The facts that his wife was also in a delicate state of health and that he wasunable to secure the services of a servant woman were also factors whichoperated on his mind are in no way in conflict and are in fact quite com-patible with his attitude that he did fear enemy action. That servants werenot willing to be employed either in Colombo or the coastal area about thisperiod owing to apprehension of enemy action is also a matter of commonknowledge. It is not difficult to appreciate therefore that the avermentsin his affidavit of 1951 far from throwing doubt on his case only affirmsthe well known general proposition that human conduct is governed notby a single but by various emotions and that each emotion may bo theresultant product of several factual elements, of which some may indeedbe in conflict with one another. It is however said by the learned CrownCounsel that the fact that the wife and child were brought by the applicantin June, 1942, must be regarded as destroying completely any inferencethat the apprehension of enemy action was in fact an element that inany way controlled the conduct of the applicant. This argument howeverloses sight of two important considerations ; firstly that after the raidsover Colombo and Trincomalee had become realities by April 1942, furtherraids were regarded as remote in view of the enemy having had the worstof the encounters; secondly the mental anguish of the wife duringthe periodof the raids when the husband was in Ceylon and in. a target area cannotbe disregarded as a determining factor which made husband and wifedecide to brave together the dangers if any of enemy action at that time,each being prepared to perish or survive with the other. Besides, theargument of learned Crown Counsel leads to this unsatisfactory result thathad the applicant not brought his wife in June 1942, but brought her inDecember 1945, then his statement that due to apprehension of enemyaction he had not brought his rtfe would have been entitled to prevail andhis application would then have had a plain sailing. But because he orrather the wife braved the perils of enemy action, because the wife was
ISO Biliimoria v. Commissioner for Registration of Indian and Pakistani Residents
herself prepared to stand by the husband and share the hazards of war, hisconduct is penalised, but to my mind such conduct is worthy of commen-dation ; in fact I find that the applicant has had certificates granted to himby more than one Chairman of the Urban Council lauding him forremaining behind when a number of shopkeepers had left the area.
I am satisfied on a review of all the facts that the proper and reasonableinference to be drawn is that the wife did not join the husband earlierthan 3rd June 1942 because of the latter’s apprehension of enemy actionand also by reason of the special difficulties created by the war in thatservants had been scared away from Colombo and coastal areas as a resultof the state of war, and that he is entitled to claim the benefit of the pro-vision contained in the last paragraph amending section 6 of the Act.
For these reasons, I set aside the order of the learned Commissioner andhold that there is a prima facie case made out for allowing the Applicant’sapplication- and direct the Commissioner to take further action as re-quired by law. The Appellant will be entitled to the costs of the appeal.
Order set aside.