MICHAEL ANTHONY RODRIGUES Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THIS is a petition impugning a certain Order passed by the Under-Secretary to Government under the Foreigners Act (31 of 1946) calling upon the Petitioner to leave India within 24 hours of the service of that order upon him. The Order is made under the Foreigners Act, and 'foreigner" is defined by Section 2, which says that a "foreigner" means a person who is not a natural-born subject of India and has not been granted a certificate of naturalization as a subject of India under any law for the time being in force. It is not denied that the Petitioner was born in Goa.

(2.) IN his petition, however, he says that he came from Goa as far as 1927 with the intention of settling down in India permanently. If that were right he was rather a precautious child having decided to change his domicile at the age of ten. But Mr. Madon concedes that this sentence is unhappily drafted and it does not mean what" it says. According to the Petitioner he started his schooling here and he has produced a school-leaving certificate from the St. Xavier's High School. He says that thereafter he started the business of tailoring with his father Peter Rodrigues. He did this business for some time and from 1942 to 1946 he was a wireless operator with the Royal Indian Air Force. He has produced a certificate showing his discharge from that force. Thereafter he says that ho was employed in Bombay by Messrs. Turner Morison and Co. Ltd. up to September 1948 and thereafter he again resumed his father's business.

(3.) 10 is stated that without any reason and without, his having given any cause on 29th November last he was served with this Order and taken to the Railway Station. He says that he has a wife and children in Bombay, he has lived with his family in Bombay and is a citizen of India. Now it is one thing for a person to say, after the service of such an order, that his domicile is India and that it is his intention to make India his domicile. One must, however, look to the facts of each case and find out whether there was a definite intention to abandon one domicile and acquire another. It is a cardinal principle of private international law as laid down in the leading case of 'winans V. Attorney-General', (1904) A. C. 287 (A), that a party is really anchored to his domicile of birth, if he has a domicile of birth; and a very clear intention must be apparent from his conduct to show that he wrenched himself free from that domicile of birth and deliberately by a due process of intention and condyct acquired another domicile. As pointed out in that case by Lord Macnaghten who quoted from the words of Lord Cottenham "the domicile of origin must prevail until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicile and acquiring another as his sole domicile. Residence alone has no effect per se, though it may be most important as a ground from which to infer intention," lord Cairne in 'bell v. Kennedy'. (1868) L. R. 1 H. L. Sc. 307 (310) (B), observed that "the Law is beyond all doubt clear with regard to the domicile of birth that the personal status indicated by that) term clings and adheres to the subject of it until an actual change is made by which a personal status of another domicile is acquired. " it is clear that the onus of proving that a domicile has been chosen in substitution for the domicile of origin lies upon those who assert that the domicile of origin has been lost. In the light of this I might as well refer to the definition in the authority cited by Mr. Madon. That was from the observations made by Chitty J. in 'craignish v. Hewitt', (1892) 3 Ch. 180 (192) (c), as follows: "that place is properly the domicile of a person in which his habitation is fixed without any present intention of removing therefrom". Mr. Madon relied upon Article 5 of the Constitution which says that at the commencement of this Constitution every person who has his domicile in the territory of India 'and' 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. The most important part of this article is that he should have been domiciled in India; residence is purely an incidental factor which goes up to build domicile,