RASHID HASAN ROOMI V. UNION OF INDIA AIR 1967 ALL 154

Facts of the Case

The petitioner, Rashid Hasan Roomi, challenged his detention under the Foreigners' Internment Order, 1962, claiming to be an Indian citizen.

• Birth and Residence: Roomi was born in India to Indian parents and continued to reside in India after his father migrated to Pakistan in 1948, leaving Roomi, who was then a minor, behind.

• Civic Life: Roomi engaged in agricultural activities, practiced as a registered Homoeopathic Doctor, and actively participated in Indian civic life, including holding the office of Chairman of the Town Area Committee of Kara Jahanabad.

• Passport: He obtained an India-Pakistan passport before 1961 but was denied a renewal in 1961.

• Detention: Roomi was arrested on October 13, 1965, and detained under the Foreigners' Internment Order, 1962, based on the assumption that he was a Pakistani national due to his father's nationality.

• Challenge: The validity of his detention was challenged via a petition under Section 491 of the Code of Criminal Procedure (akin to Habeas Corpus).

Issue

1. Whether Rashid Hasan Roomi is an Indian citizen.

2. Whether his detention under the Foreigners' Internment Order, 1962, based on the assumption of Pakistani nationality derived from his father, was lawful.

Rule

While the general principle is that the domicile of a minor follows that of their father (domicile of dependency), this rule does not automatically apply where a minor is deserted or left behind by the migrating parent. In such unique circumstances, the individual's continuous residence and circumstances must be considered in determining the retention of their domicile and citizenship.

Held

The Allahabad High Court:

• Distinction in Domicile: Distinguished Roomi's situation from cases where minors voluntarily migrated with their fathers. The Court held that since Roomi was left behind by his father when the latter migrated, Roomi retained his domicile of origin in India. [Image illustrating the legal concept of Domicile of Dependency vs. Domicile retained due to being left behind, showing two diverging paths for minors during migration]

• Cited Precedents: Relied on cases like Allah Bandi v. Govt. of Union of India (AIR 1954 All 456), where minor married girls who left with their parents were held not to have legally changed their domicile because their husbands, who were Indian citizens, remained in India.

  • Contrasted this with cases like Karimunnisa v. State of Madhya Pradesh and others where minors migrated with their fathers, resulting in a change of domicile.

• Citizenship Affirmed: Ruled that based on his birth in India, long-term residence, and active participation in Indian civic life (holding elective office), Rashid Hasan Roomi was a citizen of India.

• Detention Invalid: Concluded that the detention order was based on an erroneous assumption of Pakistani nationality (derived solely from his father’s nationality), rendering the detention invalid and unlawful.

The court directed Rashid Hasan Roomi to be set at liberty immediately.

Commentary

The Two Elements of Migration

This case provides a crucial exception to the rule of domicile of dependency, especially in the context of the Partition. It underscores that citizenship is determined by the individual's nexus with the country and cannot be lost simply because a parent migrates, particularly when the minor is abandoned or left behind.

The key to interpreting citizenship post-Partition hinges on the definition of "migration." As held in subsequent cases:

• Two elements are required to constitute migration: (a) a mental desire to go to another country, and (b) the physical departure for that country. A mere desire at one time to leave India is not sufficient to constitute migration if there is no physical departure from India (State v. Abdul Sattar, AIR 1978 Gau 48).

Roomi's actions—remaining in India, engaging in profession, and participating in politics—provided concrete evidence of the animus manendi (intention to reside permanently) required to retain his Indian domicile, negating any inference of migration or acquisition of foreign nationality.