The Leaflet

| @theleaflet_in | May 31,2019

THE Delhi High Court has quashed a “Leave India” notice served by the Ministry of Home Affairs to a Pakistani woman, Nausheen Naz, who married an Indian man and is now a mother of their two minor children.

A single judge bench of the Delhi High Court, while upholding the Central Government’s decision, had ordered Nausheen, who had been living in India since her marriage in 2005, to leave the country within 15 days.

Chief Justice Rajendra Menon and Justice A J Bhambhani, while overturning the single judge’s order said the bench had omitted to note that being the wife of an Indian citizen and a mother of two minor children who were also Indian citizens, the government’s decision of directing Nausheen to leave the country would be a “travesty” to the family and would have serious repercussions on the fundamental rights of three Indian citizens.

 

Right to life includes the right of young children to live with their mother

 

“In our view, the right to life under Article 21 of the Constitution of India would include the right of young children to live with their mother and the right of a husband to consortium with his wife; and state entities cannot be permitted to deprive Nausheen’s sons and husband of these rights, merely by a stroke of the pen, in a manner that smacks of authoritarianism, without authority of law and without complying with basic tenets of natural justice and without affording her an opportunity of hearing to answer any matter alleged against her,” the two-judge bench said.

“The institution of marriage entails the right of spouses to live together and to raise a family, which right must receive the support of the community as also of the state since it is central to human life as we understand it,” the court said, while also drawing upon the  covenants contained in the  International Covenant on Civil and Political Rights (ICCPR) of 1966 to hold  the “family”, as a natural and fundamental unit of society, “entitled to the protection of its integrity against arbitrary interference by the state”.

 

Government decision not legitimate

 

The court also severely criticised the government’s the decision to force Nausheen to leave the country even though there was no discernible “act or omission … as would warrant unilateral, peremptory action by the Ministry”.

“The mandate of Articles 13, 17 and 23(of ICCPR) have been thrown to the winds. The record does not reveal that Nausheen has indulged in any unlawful conduct, unfriendly activity or offensive act. Even upon perusal of the “inputs” received from the Intelligence Bureau, as shared by the Ministry with the court,” the court said.

The court said that while the  grant of a visa in the first instance was a matter of pure discretion with the authorities, “curtailing the liberty of residing in the country during the validity of an LTV (Long Term Visa) cannot be permitted except by a reasoned decision.”

The bench also directed the concerned ministry and authorities “to consider and decide the application made by Nausheen Naz seeking citizenship, in accordance with law”.

 

Background of the case

 

Nausheen Naz had come to India in 2005 and subsequently married an Indian man. She had been living in Delhi with her spouse and two children, aged two and five years, on a long-term visa issued to her in 2015.

The government on the premise of unfavourable security reports wanted to Nausheen to leave the country. The Central Government standing counsel Anurag Ahluwalia had argued that once a “leave India” notice was issued by the government the visa was deemed to be cancelled.

On February 7, 2019, Nausheen’s husband filed a petition at the Delhi High Court. A single judge bench dismissed the plea and asked Nausheen to leave the country within 15 days.

Nausheen’s husband then filed an appeal against the single judge’s order before the division bench which upheld the fundamental right of spouses to live together and for children to live with their mother.

 

 

Read the Judgment

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