Nur Nehar Khatun v. Union of India & Ors., W.P.(C)/3250/2019

 

Read the judgment here.

Date of decision: 28.06.2022

Court: Gauhati High Court

Judges: Justice N. Kotiswar Singh (authoring) and Justice Lanusungkum Jamir

Summary: The Gauhati High Court emphasised the intrinsic and corroborative value of evidence of close relatives and affirmed that evidence should be considered together, rather than in isolation. Accordingly, the High Court set aside the opinion of the Foreigners Tribunal for not considering evidence of relatives of the petitioner.

Facts: The case arose out of a petition filed by Nur Nehar Khatun challenging the opinion of the Foreigners Tribunal declaring the petitioner to be a foreigner.

The Petitioner contended that the evidence which was given by her close relatives, i.e., her father and paternal uncle was not considered at the time of pronouncing the final opinion and that, therefore, the opinion must be vitiated on the ground of non-application of mind in critical and crucial evidence.

Holding: The High Court iterated that any decision taken by judicial or quasi-judicial authorities must take into account all the relevant factors. In a scenario where a material factor has not been considered, the decision given by the authority shall be vitiated on the ground of non-application of mind. 

With respect to the value of evidence given by close relatives, the Court said, “We are of the view that evidence of close relatives like father or uncle can shed valuable light on the other evidences, apart from their intrinsic value as evidences. Their personal knowledge on matters relating to a proceedee cannot be lightly taken, and in fact, should be taken with all seriousness it deserves.” (paragraph 7) In other words, the Court recognised the importance of evidence given by close relatives of the proceedees in cases before the Foreigners Tribunal.

Further, the High Court observed that all evidence needs to be considered together and cannot be viewed in isolation. The Court  reasoned“...a piece of evidence can throw various shades of light on the other remaining evidences…any opinion rendered by the Tribunal ought to be made after a holistic consideration and appreciation of all the evidences taken together” (paragraph 11)

The Court held that the opinion rendered by the Tribunal could not be sustained in law and directed the Petitioner to re-appear before the Foreigners Tribunal and file the necessary supporting documents in support of her claim that she is not a foreigner but a citizen of India. The Tribunal was directed to pass a fresh opinion after appreciating all the evidence.

Significance: The Foreigners Tribunal frequently disregards evidence presented before it, and even in cases where documentary evidence is available it is difficult for proceedees to secure a favourable outcome. Section 50 of the Indian Evidence Act, 1872 allows for close relatives to give oral testimonies to prove relations; however, most FTs do not appreciate it from the right perspective. In such cases, the courts are generally overcautious about oral evidence presented by relatives. In the case of Khudeja Begum v. The Union Of India And 5 Ors, the Court said that it must be kept in mind that in a proceeding where the proceedee brings a witness to support his/her claim of citizenship as a close relative like a sister, it cannot be said that such a witness is an independent witness and, therefore, the Court or the Tribunal is to be cautious and circumspect in accepting the veracity of oral testimony so adduced unless it is corroborated by other reliable, acceptable and dependable material.

Women find it especially difficult to prove citizenship because of the Tribunal’s disregard for evidence by close relatives. On this, Gayatri Gupta of Parichay found several cases where close relatives came forward to orally testify to prove the fact of linkage, but the court disregarded their testimony in the absence of any documentary evidence about the relationship.

However, in the case of Haider Ali v. Union of India and Ors, the Court recognised the importance of oral evidence for people from socio-economically adverse backgrounds. It observed, “it is nowhere mandated that he must prove all these facts by documentary evidence only. Section 59 of the Evidence Act, 1872 says that all facts, except the contents of document or electronic records, may be proved by oral evidence. There may be cases, where the proceedee is an illiterate, and the birth is not registered with any authority, in which event, it would be impossible to produce any documentary evidence to prove his date of birth and place and other facts accurately and one may rely on oral evidence only. In such case, can a claim be thrown out merely because only oral evidence has been led?” (paragraph 42) Further in relation to the assessment of evidence, in the case of Aziran Bibi v. Union of India, the Court had laid emphasis on the importance of proper appreciation of oral testimony given during Foreigners Tribunal proceedings, and the necessity of assessing it in a holistic manner along with the other evidence on record, to decide the petitioner’s citizenship.

Previously, in the case of Sujab Ali v. Union of India as well, it was argued that section 50 of the Evidence Act clearly provided that when the court has to form an opinion on the relationship between two or more persons, then the opinion, expressed by conduct, of any person who would have special knowledge about the (impugned) relationship, either as a member of the family or otherwise, is a relevant fact. The Court at the time had recognised the importance of oral testimony. The present case reinforces and consolidates the position of oral evidence by relatives.  The Court recognised the intrinsic value of evidence provided by close relatives due to the insight they have into the proceedee's life and stated that it should be treated with seriousness. This comes as a respite for people who might not have sufficient documents to prove their citizenship as the Tribunal will have to give adequate importance to evidence from close relatives along with other evidence presented before it.

Table of Authorities

  1. Nur Nehar Khatun v. Union of India & Ors., W.P.(C)/3250/2019

  2. Aziran Bibi v. Union of India, WP(C)/5070/2019

  3. Khudeja Begum v. The Union Of India And 5 Ors, WP(C) 2889/2019

  4. Haider Ali v. Union of India and Ors, WP(C)/1818/2019

  5. Sujab Ali v. Union of India, WP(C)/2221/2020

Resources

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and the latest developments in citizenship law and adjudication in India. This note was prepared by Srishti Srivastava.


 
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