Saleha Begum Vs the Union of India and 4 Ors.

For the Union of India : Mr. C.K.S. Baruah, CGC For ECI : Mr. M. Islam for Mr. A.I. Ali, standing counsel For FT and NRC : Mr. G. Sharma, standing counsel For the State : Mr. H.K. Hazarika, Junior Govt. Advocate

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Date on which judgment is reserved :N/A

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Date of pronouncement of judgment : 06.02.2026

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Whether the pronouncement is of the operative part of the judgment? : N/A

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Whether the full judgment has been Pronounced : YES

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JUDGMENT AND ORDER (ORAL)

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(K.R. Surana, J)

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Heard Mr. H.R. Choudhury, learned counsel for the petitioner. Also heard Mr. C.K.S. Baruah, learned CGC; Mr. M.Islam, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for the ECI; Mr. G. Sharma, learned standing counsel for the FT matters and NRC; and Mr. H.K. Hazarika, learned Junior Govt. Advocate for respondent.

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By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 15.10.2015,

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passed by the learned Member, Foreigners Tribunal-1, Karimganj, in F.T. Case No. 69/13, arising out of Police Enquiry No. D-343/98, thereby declaring the petitioner to be a foreigner on her failure to prove that she is a resident of India by birth and that she and her forefathers are citizens of India before 25.03.1971. Resultantly, the opinion was answered in the affirmative in favour of the State and disposed of.

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The learned counsel for the petitioner had, amongst others, submitted that the petitioner had exhibited the Moslem Marriage Registration Certificate as Ext.5 but the learned Tribunal disbelieved and discarded the said evidence as the said marriage was registered on 17.03.2015. In this regard, the learned counsel for the petitioner had submitted that the date of marriage was 05.07.1994 but was registered on 17.03.2015. Accordingly, it was submitted that once the marriage was registered, Ext.5 could not have been discarded.

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The records reveal that on service of notice, the petitioner had appeared before the learned Tribunal and she had filed her written statement. Thereafter, she had submitted her evidence-on-affidavit as PW-1 on 27.08.2015. In the said evidence-on-affidavit, the petitioner projected her age to be 38 (thirty eight) years and had stated that her name was Saleha Begum. Her father’s name was Nazim Uddin and her grandfather’s name was Makaddas Ali. The permanent address of her father was at Village-Dewakuri, P.O-Lalarchak, P.S & Dist-Karimganj under no. 7 South karimganj (SC) LAC and since 67 till the date of filing of the affidavit, her father has been residing in same village which was presently under no. 4 South Karimganj LAC. The name of her father appears in the voter’s list of 1966 (Ext.1), voter’s list of

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1970 (Ext.2), voter’s list of 1977 (Ext.3). The petitioner claims to have been born on 15.08.1976 at village-Dewakuri as stated above. She had studied upto class-VII in Baniargool M.E. School and on 05.07.1994, her marriage was held with Abdul Kadir of village-Bakarshal, under P.S & Dist-Karimganj within the same LAC and she has been residing in her matrimoninal home with her husband. She also exhibited the school certificate as Ext.4 and the marriage registration certificate as Ext.5. It is claimed that her name was entered in the voter’s list of 1997 and she was marked as a doubtful voter. Accordingly, the petitioner prays to declare her as a citizen of India.

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It has been submitted by the learned counsel for the petitioner that the petitioner was brought up at her maternal uncle’s home. However, the said statement was found to be contradictory to paragraph no. 6 e of the written statement, where the petitioner has specifically stated that she was an inhabitant of village-Dewakuri with her father till her marriage and studied upto class-VII at Baniargool M.E. School. The same statement is on oath by way of an affidavit. Therefore, as required assistance was not found from the learned counsel for the petitioner. One of the further submissions of the learned counsel for the petitioner to justify the admissibility of marriage certificate (Ext.5) was that notwithstanding the date on which the marriage was solemnized, once certificate is issued, it becomes a public documents and therefore, admissible in evidence. No other submission has been made.

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Before dealing with Ext.5, it would be deemed appropriate to mention that the learned standing counsel for the FT and Border matters submitted that if the said marriage registration certificate and the school transfer certificate are excluded from consideration as was done by the

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learned Tribunal, there is no document to link the petitioner with her projected father.

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It is in the said context that the Court had examined the exhibited documents. Ext.1 is the extract from the electoral roll of 1966, which contains a single name of Nazim Uddin, father’s name Makaddas Ali (male), aged 24 years. Ext.2 is the extract from the electoral roll of the year 1970, which also contains the name of Nazim Uddin, father’s name Makddas Ali (Male), aged 28 years. Ext.3 is the extract from the electoral roll from the year 1977 containing the single entry name of Nazim Uddin, father’s name Hazi Makaddas Ali (Male), aged 35 years. Therefore, Ext. 1, Ext.2 and Ext.3 could not connect the petitioner with her projected father.

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Ext.4 is the Transfer/ Leaving Certificate issued by the Head Master, Baniargool M.E. School. We find a discrepancy in the contents of the said certificate because in the handwritten portion, the said school fell within the P.O-Lalar Chak. However, in the rubber stamp affixed below the signature of the Head Master, the name of the post office is reflected as Rakeshnagar. However, it may be stated that the said name is spelt out in presumption because after ‘Rak’ the next letter is not fully legible, but the subsequent letters ‘shnagar’ are visible. Be that as it may in any way we read the same, it does not lead to the P.O being Lalarchak. We also notice from the crossexamination of DW-1 that she has stated that the said certificate was procured by her father and not by her. The Head Master of the said school, who was the author of the said Ext.4, was not examined to prove Ext.4 or its contents.

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Coming to the marriage certificate (Ext.5), at the outset it may be

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stated that in column no. 9 the date of solemnization of a marriage is mentioned as 05.07.1994 and the registration is shown to have been made on 17.03.2015, with the registration number being marriage no. 311/2015. We also take notice of the fact that this writ petition was filed on 08.09.2016 and the affidavit-in-support of this writ petition was also sworn on 08.09.2016. The age disclosed by the petitioner in the said affidavit is 38 years. Therefore, the year of the birth of the petitioner would be 1978. If that be so, then on 05.07.1994, when the marriage was solemnized the age of the petitioner was 16 years and therefore, a minor. The Kazi who has issued the registration certificate has mentioned in column no. 4 of the said certificate that the petitioner was an adult. No law has been shown to the Court to satisfy the Court that at 16 years of age, the petitioner would be a adult. Therefore, the certificate is found to be vitiated by a false statement recorded by the Kazi showing the petitioner to be a major.

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In this case the Kazi was not brought as witness and examined. Therefore, there is no material before the Court to ascertain whether the kazi who had issued Ext.5 was the person who had witnessed the marriage or who was present when the marriage was solemnized purportedly on 05.07.1994. There is no material to show that the people who have signed as witnesses in the said registration certificate had actually witnessed the marriage, because those signatures were affixed at the registration of marriage and not at the time when the marriage was solemnized. As per Rule 22 as per Assam Moslem Marriages and Divorces Registration Rules, 1935, the manner of attendance at marriages is laid down. The same is as follows.

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“22. Attendance at marriage -When the attendance of a Moslem Registrar is required at the celebration of a marriage or other ceremony, provided that it does not interfere with

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the proper discharge of his duties as Moslem Registrar.”

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The person who is registering the marriage is required to satisfy himself as to the voluntariness of the bride coming forward to accept the marriage and the Kazi is also required to satisfy himself with the identify with the persons appearing as witnesses as provided under Rule 29 of the said 1935 Rules. It would be relevant to quote the provision of Rule 25 of the said 1935 Rules, which is as follows:

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“25. Procedure on application to register in absence of any of the parties - If all the persons who, by Section 10 of the Act, are required to sign the entry of the marriage or divorce in the proper register, are not present, registration shall be deferred until they are all present; provided that no marriage or divorce for registration of which application has been made within one month, as required by Section 9, shall be registered after the expiration of six months from the date on which the marriage or divorce was effected.”

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Thus, no marriage registration could have been done in the year 2015 made for a marriage solemnized in the year 1994 because of the prescription of Rule 25 as quoted hereinbefore. It would also be relevant to quote the provision of Section 9 of the Assam Moslem Marriages and Divorces Registration Act, 1935 regarding duties of Moslem Registrar on application for registration of a marriage. Therefore, in the considered opinion of the Court, the prescription of Section 9 of the 1935 Act read with Rule 25 of the 1935 Rules would discredit the marriage certificate as an admissible evidence for the purpose of examination of the said certificate in proceedings under the Foreigners Act where the Citizenship of the petitioner is being questioned as doubtful.

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The records reveal that the enquiry with regard to the citizenship of the petitioner was initiated by the Superintendent of Police (Border), Karimganj on 14.04.1998. The reference was initiated by the Electoral

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Registration Officer (for short ERO), having doubt about the citizenship of the petitioner, preceded the initiation of enquiry by the Superintendent of Police (Border), Karimganj on 14.04.1998. The references initiated by the Electoral Registration Officer are not an enquiry initiated under Foreigners Act, 1946. However, intensive revision of electoral rolls in Assam with reference to 01.01.2005 as the qualifying date, the Election Commission of India has issued certain guidelines and in so far as the State of Assam is concerned, the competent authority to decide the question of citizenship is the Foreigners Tribunal set up under the Foreigners Act, 1946. We mention here that initially the said process was undertaken by the Illegal Migrants (Determination) Tribunals set up under Illegal Migrants (Determination by Tribunals) Act, 1983. However, the said Tribunals were disbanded pursuant to said IM(DT) Act, being declared as ultra vires by the Supreme Court of India in the case of Sarbananda Sonowal Vs. Union of India and Ors., (2005) 5 SCC 665. Thereafter, the Election Commission of India by communication no. 23/AS/2005/191, dated 25.07.2005 had provided for reference in doubtful voter cases to be decided by the learned Foreigners Tribunals. Thus, notwithstanding that the format for verification was not entirely filled up but, once a reference is made and the same is an exercise under the Representation of the People Act, 1950 and the Registration of Electors Rules, 1960, as per the guidelines framed by the Election Commission of India, some paragraphs of the format of the verification officer’s report left blank would not cause any prejudice to the petitioner, because it has been mentioned in the said verification officers report that no document was produced by the petitioner. Therefore, the Local Verification Officer (LVO for short), not carrying out an enquiry under the Criminal Procedure Code, would have no

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means to fill up all the paragraphs of the format if no assistance is given to the Local Verification Officer by the concerned person by producing documents. Therefore, in this case verification was not done under the Foreigners Act but in intensive revision of rolls carried out by the Election Commission of India by doubting the petitioner as a bonafide voter or a citizen of India.

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Thus, in view of the discussions above Ext.5, which is the marriage registration certificate fails to establish the link of the petitioner with her projected father as the concerned authority who registered the marriage was not examined. At this stage, it would also be appropriate to extract Rule 51 of the Assam Moslem Marriages and Divorces Registration Rules, 1935 which is as follows:

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“51. A call for information from any Court, shall, if it necessitates search in the registers, be accompanied by the necessary fee for search. Officers of Government shall be permitted to inspect the registers without fee; but if the production of a register in any Court is required, it shall be produced by the Moslem Register or other officer whom the District Registrar may depute for the purpose who will be entitled to claim payment of his expenses like any other witness.”

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In view of the Rule 51 therefore, as the manner of proving a certificate has been provided, the prescription of Rule 51 would be an exception to the rule of proving a certified copy of a public document as envisaged under Section 77 of the Evidence Act. Accordingly, the decision in the case of Madamanchi Ramappa and Anr Vs. Muthaluru Bojjappa, AIR 1963 SC 1633, cited by the learned counsel for the petitioner would not be applicable for the same reason would not come to the aid of the petitioner in any manner.

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Accordingly, as the original registrar was never brought before the learned Foreigners Tribunal to prove the contents of the certificate, the said certificate, having not been issued at the time of marriage and not within a reasonable time of solemnization of marriage but 21 years of the solemnization of marriage would not help the petitioner in any manner because of the provision of Rule 51, which requires the original register to be proved by the Moslem Registrar.

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Resultantly, the Court does not find any error in the impugned opinion. The said opinion cannot be said to be perverse for non-production of evidence-on-record or for consideration of extraneous materials on record to arrive at a decision. It is not a case where the material evidence has been left out by the learned Tribunal for consideration.

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Resultantly, this writ petition fails on all counts and the same is dismissed.

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The consequences of the opinion shall follow.

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The Registry shall send back the records to the concerned learned Tribunal along with a copy of the order to be made a part of record.

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JUDGE JUDGE

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Comparing Assistant

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PRATIK Digitally signed by PRATIK GUPTA GUPTA Date: 2026.02.10 16:13:13 +05'30'

Saleha Begum v. the Union of India and 4 Ors.

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Saleha Begum v. the Union of India and 4 Ors.

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