Smt. Runu Barman V. The Union of India and The State of Assam and The Deputy Commissioner Dist-Bongaigaon Assam and The Superintendent of Police (B) Bongaigaon Assam and The Election Commission of India and National Registrar of Citizen State Coordinator Assam

WP(C)/4487/2022

AI Insights

The case involves Smt. Runu Barman, who was declared a foreigner by the Foreigners Tribunal, Bongaigaon No.2, Abhayapuri, in 2022. The Tribunal's decision was based on the claim that she entered India illegally after March 25, 1971. The petitioner challenged this decision in the Gauhati High Court, arguing that she is a citizen by birth, being the daughter of Prafulla Ch. Barman, a refugee from East Pakistan who was granted Indian citizenship. The High Court found that the Tribunal had not adequately considered the evidence presented, including the historical context of her father's migration and the legal provisions under which he was granted citizenship. The court noted the lack of documentary evidence linking the petitioner to her parents in the voters' lists due to cultural practices, which led to her not being listed with her parents. The court emphasized the need for a more thorough examination of the evidence and allowed the petitioner to present additional documents to substantiate her claim of citizenship.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 819985 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 30-06-2022
• Assessment Year: misc
• Other Referred Cases: Sarbananda Sonowal Vs. Union of India and another
• Laws Referred To: Foreigners Act, 1946, Foreigners Tribunal Order, 1964, Citizenship Act, 1955
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: L DEVI; A I ALI; U DAS
• Assessee Lawyers: R CHOUDHURY
• Keywords: Burden of Proof; Citizenship; Foreigner; Illegal migrant; Refugee
• Section: 9; 5(1)(a)

Judgement Text

"Page No.# 1/17 GAHC010132002022 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4487/2022 SMT. RUNU BARMAN W/O LATE DULAL BARMAN, D/O LATE PRAFULLA BARMAN @ PRAFULLA CH. BARMAN @ PRAFULLA KUMAR BARMAN ALIAS PRAFULYA BARMAN, VILL-GHILAGURI PT-1, P.S.-ABHAYAPURI, DIST-BONGAIGAON, ASSAM VERSUS THE UNION OF INDIA AND 5 ORS. REPRESENTED BY THE MINISTRY OF HOME DEPARTMENT, NEW DELHI-1 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6 3:THE DEPUTY COMMISSIONER DIST-BONGAIGAON ASSAM 4:THE SUPERINTENDENT OF POLICE (B) BONGAIGAON ASSAM 5:THE ELECTION COMMISSION OF INDIA NEW DELHI-01 6:NATIONAL REGISTRAR OF CITIZEN STATE CO-ORDINATOR ASSAM BHANGAGARH GUWAHATI-0 Page No.# 2/17 Advocate for the Petitioner : MS. R CHOUDHURY Advocate for the Respondent : ASSTT.S.G.I. BEFORE HONOURABLE MR. JUSTICE N. KOTISWAR SINGH HONOURABLE MR. JUSTICE LANUSUNGKUM JAMIR JUDGMENT Date : 30-06-2022 (N. Kotiswar Singh, J.) Heard Ms. R. Choudhury, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel, who appears on behalf of Mr. R.K.D. Choudhury, learned ASGI; Ms. A. Verma, learned Special Counsel, FT; Mr. A. I. Ali, learned Standing Counsel, ECI; Ms. L. Devi, learned Standing Counsel, NRC and Ms. U. Das, learned Additional Senior Government Advocate, Assam. 2. Considering the nature of the case, we are of the view that the matter requires to be remanded to the Tribunal for a fresh opinion. 3. In this writ petition, the petitioner has challenged the opinion dated 23.05.2022 passed by the Foreigners Tribunal, Bongaigaon No.2, Abhayapuri in BNGN/FT-2/APR/Case No.469/2017 by which the petitioner was declared to be a foreigner of post 1971 stream. 4. In order to appreciate the reason why we are remanding the matter, it may be necessary to reproduce the entire opinion of the Tribunal, which is as under:- “Originally, this case was forwarded by Superintendent of Police (B) (SP for short), Bongaigaon vide BNGN/FT-2/APR/CASE No.469/2017 expressing doubt about the nationality of the opposite party (OP for short) namely, Runu Barman, wife of Dulal Barman, D/o. late Profulla Barman, village Ghilaguri Part-I, PS. Abhayapuri, dist. Bongaigaon, Assam with a prayer to decide as to whether the OP is not an illegal migrant, subsequently, in view of Govt. WT Message this case was transferred to this Tribunal for decision as per provision of Foreigners Act, 1946 read with Foreigners Tribunal Order, 1964. Page No.# 3/17 According to Investigation Officer, the OP is a foreigner who had entered into India from Bangladesh after 25th March, 1971. Accordingly, the Superintendent of Police (B), Bongaigaon sent this case for opinion of this Tribunal. Notice was issued to OP to appear before this Tribunal and on receipt of notice OP has appeared before this Tribunal and filed her written statement and documents. In her written statement she has claimed to be an Indian by birth. At the relevant time OP has submitted her evidence on affidavit along with some documents, namely, i. Migration Certificate : Ext. 1, ii. Voter list of 1970 : Ext. 2, iii. Certificate of registration : Ext. 3., iv. Voter list of 1985 : Ext. 4, v. voter list of 1997 : Ext. 5, vi. Voter list of 2008 : Ext. 6, vii. Voter list of 2015 : Ext. 7, viii. Voter list of 2005 : Ext. 8, ix. PAN card : Ext. 9. For convenience the aforesaid 9 exhibits submitted by OP are marked Exhibit-1 to Exhibit-9 respectively. OP has examined Ajit Barman son of Prafulla Barman as DW2. DW2 submitted document, namely, Electoral Photo Identity Card : Ext. 10. I have heard the argument of learned Advocate appeared on behalf of the OP, perused also the evidence on record. Point for determination : Whether the OP had entered into India after 25th March, 1971? Decision & reason thereof: In this case, no prosecution witness has been examined. But to prove herself not to be a foreigner, OP has submitted her evidence on affidavit. In her affidavit, OP stated that she is Runu Barman wife of Lt. Dulal Barman, resident of village Ghilaguri Part-I, PS Abhayapuri, dist. Bongaigaon, Assam. OP stated that his father along with other family members migrated from East Pakistan to India in the year 1964 as refugee through NC Hills, accordingly, a certificate has been issued by the Assistant Commissioner, NC Hills (Ext.1). OP stated that her parents name have been recorded in the voter list of 1970, 1985, 1997 (Ext.3, 4 and Page No.# 4/17 5). OP stated that her mother’s name and two elder brothers name are recorded in the voter list of 2008, 2015 (Ext.6 and 7). OP stated that she got married with Dulal Barman son of late Dukhindra Barman of village Ghilaguri Part-I, PS Abhayapuri (Ext.8). OP stated that she obtained PAN card issued from Income Tax Deptt. (Ext.9). To come to a just conclusion, let me appreciate the evidence on record alongwith the aforesaid documents to determine the nationality of Opposite Party. From record it appears that OP tried to project Prafulla Ch. Barman as her father whose name recorded in (Exhibit 1). Exhibit 1 is the Migration certificate issued from Assistant Commissioner N.C. Hills in the name of Prafulla Barman son of Harendra and other person as per OP her father’s name is included in the certificate alongwith other family members. Exhibit 2 is the voter list in respect to the year 1970 where name of Prafulla Barman and Belifully Barman are recorded alongwith some voters. Exhibit-3 is certificate of registration in the name of Prafulla Chandra Barman son of Harendra Ch. Barman dtd 12.11.1975. Exhibit 4 and 5 are the voter list of the year 1985 and 197 where name of her projected father and mother are recorded as Prafulla Barman and Belfuli Barman along with two other voters, namely, Ajit Barman and Kinaram Barman. In Exhibit 6 and 7, name of OP’s mother is recorded with two other voters namely, Ajit Barman and Kinaram Barman as per OP these are name of her mother and brothers. Exhibit 8 is voter list of the year 2005 where OP’s name is recorded with her husband Dulal Barman, this voter list is not sufficient to establish linkage with her husband not with her father. Exhibit 9 is PAN Card in the name of OP where her relation name is shown as Prafulya Barman, this document is post of 25.03.1971, secondly, it is too well settled that PAN Card is no proof of citizenship, therefore not relied upon. OP examined Ajit Barman son of Late Prafulla Barman as DW2. DW 2 stated that OP is his younger sister. DW 2 also stated that he do not remember when he submitted his written evidence. DW 2 stated the same as OP has stated in her evidence. DW 2 stated that his sister got married with Dukhindra Barman at Ghilaguri Part I. DW 2 stated that he is son of Prafulla Barman and Belfuli Barman and also casted vote with his mother Belfully also stated that his father obtained migration and Page No.# 5/17 certificate of registration and his name is recorded in the voter list of 1970 with mother Belfully and name of DW 2 is recorded with Belfully. After considering an appreciating the facts and evidence brought on record I find nothing. DW 2 failed to ascertain the date of marriage of his projected sister, also failed to submit any documentary evidence to establish relationship between OP and her projected father Prafulla Barman. Although Ajit Barman deposed as DW 2, however in the absence of any documentary evidence it cannot be considered that said DW 2 is the brother of OP. Exhibit 10 produced by DW 2 is a voter identity card in the name of DW 2 and his relation is shown as Prafulla Barman same cannot be considered reliable cogent and admissible piece of evidence to support the claim of OP, as the same being the photocopy. DW 2 deposed that he has not stated anything regarding citizenship of OP in his evidence. For the reasons and discussions above, the evidence and the documentary submitted by the OP/DW 1 in support of her version are found to be not sufficient and trustworthy to prove that she is a citizen of India by birth and not a foreigner or illegal migrant. Considering the entire materials on record and the discussions made above, I am of the considered opinion that the evidence of O.P. is not trustworthy at all and that O.P. has miserably failed to discharge her burden u/s 9 of Foreigners’ Act, 1946 to prove that she was born through genuine Indian parents and as such acquired citizenship by birth. Rather it appears that OP, namely, Runu Barman, W/o-Dulal Barman, D/o- Late Profulla Barman, Village- Ghilaguri Part I, PS- Abhayapuri, District- Bongaigaon, Assam entered into India from Bangladesh illegally subsequent to 25-03- 1971 and hence she is termed to be a foreigner/illegal migrant of post 25-03-1971. The case is decided accordingly. Intimate the Deputy Commissioner, Bongaigaon and the Superintendent of Police (B), Bongaigaon along with copy of this order accordingly. Deputy Commissioner, Bongaigaon is to take necessary step.” Page No.# 6/17 5. From the opinion itself, it is clearly evident that the petitioner not only filed her written statement but also gave testimony on oath before the Tribunal stating as follows:- “I, Smt. Runu Barman, wife of Lt. Dulal Barman, aged about 31 years by religion Hindu by Nationality Indian, by profession-House Wife, a resident of village-Ghilaguri Pt-I, PS. Ahayapuri, Dist. Bongaigaon, Assam do hereby solemnly affirm and swear in the name of God what I state hereinbelow shall be the truth, the whole truth and nothing but the truth. 1. That I beg to say that I am the opp. Party of the above numbered case as such, I am well acquainted with the facts and circumstances of the case, as such, I am competent to swear this affidavit as DW1 in support of my defence in this instant case. 2. That I beg to say that all the statements made in the petition by the complainant are denied by me save and except those are specifically admitted by me in my written statement. 3. That I beg to say that the present case is not maintainable in law since the same is based upon total falsehood and there is not iota of truth in the various allegations made by the complainant in this instant case. 4. That I beg to say that I born and brought up at village Ghilaguri Pt-I, PS. Abhayapuri, dist. Bongaigaon, Assam. 5. That I beg to state that my father’s name is/was “Prafulla Ch. Barman” and my mother’s name is Belifuli Barman. 6. That I beg to say that my father’s along with other family member migrated from East Pakistan to India as refugee through NC Hills post vide dated 4.4.1964. Accordingly, a certificate has been issued by the Assistant Commissioner, NC Hills. 7. That I beg to say that my father’s and mother’s name has been recorded in the electoral rolls of 1970 as a regular voter of 43 Bongaigaon LAC vide Sl. No.33 and 34, House No.9, Vill. Ghilaguri Pt-I, dist. Goalpara. In the electoral rolls, the name of other relative also recorded. 8. That I beg to say that my father obtained certificate of Registration from the Page No.# 7/17 concerned authority under the provisions of Citizenship Act, 1955 vide dated 12.11.1975. 9. That I beg to say that my father’s and mother’s name has been recorded in the electoral rolls of 1985 as a regular voter of 35 Abhayapuri South (SC) LAC vide Sl No.9 and 10, House No.5, vill Ghilaguri Pt-I, dist. Bongaigaon, Assam. 10. That I beg to say that my father’s and mother’s name has been recorded in the electoral rolls of 1997 as a regular voter of 35 Abhayapuri South (SC) LAC vide Sl No.426 and 427, House No.160(A). In the said electoral rolls, my elder brothers, Ajit Barman and Kinaram Barman name also recorded in Sl No.428 and 429, House No.160(A), vill. Ghilaguri Pt-I, PS. Abhayapuri, dist. Bongaigaon, Assam. 11. That I beg to say that my mother’s and two elder brother’s name has been recorded in the electoral rolls of 2008 as a regular voter of 35 Abhayapuri South (SC) LAC vide Sl No.445, 446 and 447, House No.160A, vill. Ghilaguri Pt-I, PS. Abhayapuri, Dist. Bongaigaon, Assam. 12. That I beg to say that my mother and elder brother’s name has been recorded in the electoral rolls of 2015 as a regular voter of 35 Abhayapuri South (SC) LAC vide Sl No.503, 504 and 505, House No.160A, vill. Ghilaguri Pt-I, PS. Abhayapuri, Dist. Bongaigaon, Assam. 13. That I beg to say that I got married with Dulal Barman, son of late Dukhindra Barman of vill. Ghilaguri Pt-I, PS. Abhayapuri, dist. Bongaigaon, Assam. Accordingly, after my marriage my name has been recorded in the electoral rolls of 2005 as a regular voter of 35 Abhayapuri South (SC) LAC vide Sl No.596, House No.195. In this electoral roll the name of my father-in-law and my husband also recorded in Sl. No.594 and 595. 14. That I beg to say that I have obtained Pan Card from Income Tax Deptt. Vide Pan No.DDVPB5353N. 15. That the statements made in para 1 to 14 of this affidavit are true to the best of my knowledge and belief and rest are my humble submissions and prayers before this Hon’ble Tribunal. ” Page No.# 8/17 6. The statement of the petitioner was sought to be corroborated by her brother, Ajit Barman, who was examined as DW2. His statement is reproduced as under:- “I, Sri Ajit Barman, S/O. Lt. Prafulla Barman, aged about 43 years by Religion- Hindu, by Nationality – Indian, by Profession- Cultivation, a resident of village- GhilaguriPt-I, P.S. Abhayapuri, Dist.-Bongaigaon, Assam, do hereby solemnly affirm and swear in the name of God what I state herein below shall be the truth, the whole truth and nothing but the truth. 1. That, I beg to say that I am the elder brother of the opp. Party of the above numbered case as such, I am well acquainted with the facts and circumstances of the case, as such, I am competent to swear this affidavit as DW-2 in support of my sister defence in this instant case. 2. That, I beg to say that my father’s name is/was “Prafulla Ch. Barman” and my mother’s name is “Belfuli Barman”. 3. That, I beg to say that I born and brought up at Vill. GhilaguriPt-I, P.S. Abhayapuri, Dist. Bongaigaon, Assam. 4. That, I beg to say that my father along with other family member migrated from East Pakistan to India as refugee through N.C. Hills post vide dated 04/04/1964. Accordingly has been issued by the Assistant Commissioner, N.C. Hills. The document has already been submitted before the Hon’ble Tribunal as Exhibit-1. 5. That, I beg to say that my father’s & mother’s name has been recorded in the electoral rolls of 1970 as a regular voter of 43-Bongaigaon LAC vide Sl. No.33 & 34, House No.9, Vill. GhilaguriPt-I, Dist. Goalpara (Presently Bongaigaon), Assam. In this electoral rolls the name of other family member also recorded their name along with my father & mothers. This document has already been submitted before the Hon’ble Tribunal as Exhibit-2. 6. That, I beg to say that my father obtained certificate of Registration from concerned Authority under the provisionsof Citizenship Act.1955, vide dated 12/11/1975. The document has already been submitted before the Hon’ble Tribunal Page No.# 9/17 as Exhibit-3. 7. That, I beg to say that my father’s & mother’s name has been recorded in the electoral rolls of 1985 as a regular voter of 35-Abhayapuri South (SC) LAC vide Sl.No.9 & 10, House No.5, Vill. GhilaguriPt, Dist. Goalpara (PresentlyBongaigaon), Assam. In this electoral rolls the name of other family member also recorded their name along with my father & months. This document has already been submitted before the Hon’ble Tribunal as Exhibit-4. 8. That, I beg to say that my name has been recorded in the electoral rolls for the first time in the year 1997 as a regular voter of 35-Abhayapuri South (SC) LAC vide L.No.428, House No.160(A). The name of my father & mother also recorded there in at Sl.No.426 & 427. This document has already been submitted before the Hon’ble Tribunal as Ext.-5. 9. That, I beg to say that my mother’s name along with me and my younger brother has been recorded in the electoral rolls of 2008 as a regular voter of 35-Abhayapuri South (SC) LAC vide Sl. No.445, 446 & 447, House No.160 (A), Vill. GhilaguriPt-I, Dist. Goalpara (Presently Bongaigaon), Assam. This document has already been submitted before the Hon’ble Tribunal as Exhibit-6. 10. That, I beg to say that my mother’s name along with me and my younger brother has been recorded in the electoral rolls of 2015 as a regular voter of 35-Abhayapuri South (SC) LAC vide Sl.No.503, 504 & 505, House No.160(A), Vill. GhilaguriPt-I, Dist. Goalpara (Presently Bongaigaon), Assam. This document has already been submitted before the Hon’ble Tribunal as Exhibit-7. 11. That, I beg to say that the opp. party got married to Dulal Barman, S/O Lt. Dukhindra Barman of Vill. Ghilaguri-Pt-I and till date she has been residing thereat. 12. That, I beg to say that I have obtained Electoral Photo I.D. card from Election Commission of India as a regular voter of 35-Abhayapuri South (SC) LAC, Vide Sl. No.GNK673939. (Exhibit -10 Elector Photo ID Card). 13. That, the statements made in para 1 to 5 of this affidavit are true to the best of my knowledge & belief and rest are my humble submissions and prayer before this Page No.# 10/17 Hon’ble Tribunal. 14. That, the contents of affidavit are duly are duly read over and explained to me in vernacular and the same was drafted on the basis of my instruction and on being understood the contents of the affidavit by me I signed this Affidavit on this 24th day of January/2018 at Abhayapuri, Assam.” 7. DW2 has also adduced the following evidence before the Tribunal:- “Name :Ajit Barman Father Late Prafulla Barman Age : 44 years Occupation : cultivation Vill: Ghilaguri Part-I P.S. Abhayapuri Dist. :Bongaigaon On Oath Runu Barman is my younger sister. I do not remember when I submitted my written evidence. I have not stated anything regarding my sister’s citizenship in India in my evidence. It is not a fact that my sister is not Indian citizen. It is not a fact that my evidence is not reliable and acceptable as I have not submitted any document establishing linkage with the O.P.” 8. From the above, it is evident that the petitioner tried to show that she is the daughter of Profulla Barman, who, admittedly, had migrated from East Pakistan to India as refugee through NC Hills and later on was granted citizenship by way of registration under Section 5(1)(a) of the Citizenship Act, 1955 in the year 1975. The migration certificate issued in his favour reads as follows:- “Certified that the following ………refugee entered India on 04.04.64. As they are intending to proceed for the vill. Khaboridanga, Dist. Coochbihar (WB) for permanent settlement, they are allowed to go vide DSP Memo No.17563 on 16.11.63. Statement of breakup figures has been taken after interrogation under ……1403 to 1408. 1. Harendra Ch. Barman, aged 40 years Page No.# 11/17 Son of late Sudha Mohan Barman, 2. Barunibala Barman, 30 years, Wife of Harendra Barman, 3. Profulla Barman, 15 years, Son of Harendra Barman 4. Atul Ch. Barman, 12 years, Son of Harendra Barman.” 9. The registration certificate issued in the name of Prafulla Chandra Barman reads as follows: “FORM V (See rule 10) 87817 3403 Name of registering authority Place This is to certify that the person whose particulars are given below has been registered by me as a citizen of India under the provisions of Section 5(1)(e)(d) of the Citizenship Act, 1955. Name :: Shri Prafulla Chandra Barman Name of father :: Harendra Ch. Barman Place of birth :: Janparia, PS. Kaliakari, Dist. Dacca Age :: 31 years Present Address :: Ekrabari, PS. Abhayapuri, Dist. Goalpara Special peculiarities and identification marks :: Spot mark on the nose Occupation :: Cultivation Sd/ - Signature Registering Authority Page No.# 12/17 Designation Date and place of issue : Goalpara 12/11/1975 Sri Prafulla Chandra Barman” 10. What we have noted from the evidence so adduced is that the name of the projected father of the petitioner, Profulla Barman finds reference in the voters list of 1985 under village 32 Ghilaguri Part-I of the then Goalpara district in respect of 35 Abhayapuri South (SC) LAC. Similarly, the name of the petitioner’s projected father Profulla Barman also appears along with her projected brother Ajit Barman in the voters list of 1997 in respect of 35 Abhayapuri South (SC) LAC. Subsequently, the name of the petitioner’s brother again finds place along with the projected mother of the petitioner in the voters list of 2008 in respect of the same LAC. The petitioner got married to one Dulal Barman in the same village as can be seen from the voters list of 2005 where her name appears along with her husband in respect of village 32 Ghilaguri Part-I, Dist. Bongaigaon after it was separated from the earlier district Goalpara. 11. It appears that the petitioner’s brother, Ajit Barman, had categorically stated that his father along with the family members had migrated from East Pakistan to India as refugees through NC Hills in the year 1964 and thereafter his father, Prafulla Chandra Barman was granted citizenship in 1975. 12. From the migration certificate, it is quite evident that the petitioner’s father was about 15 years old when he along with his parents were allowed to enter India. The said certificate also shows that they were subjected to interrogation by the concerned authorities. The fact that the petitioner’s father, his parents and relatives had sought refuge in this country indicates that they had to flee from the then East Pakistan. The reason for seeking refuge in this country and fleeing the then Pakistan is not much difficult to fathom. It is a historical fact that many of the Hindu population in the East Pakistan were subjected to persecution because of the religion they professed. If the Government of India had agreed to take them as refugees and later Prafulla Chandra Barman was given citizenship by way of registration as can be seen from the Registration Certificate issued in 1975, we are of the view that the Government has not only the moral obligation but also the legal obligation to protect those refugees and their descendants and if any proceedee claims that he or she is a descendant of Page No.# 13/17 such refugee and citizen, the said aspect cannot be taken lightly by the authorities. The Hon’ble Supreme Court in Sarbananda Sonowal Vs. Union of India and another, (2005) 5 SCC 665, has clarified that after the proceedee has given evidence, if it is necessary to verify, the same can be verified by the authorities [vide para-26 of Sarbananda Sonowal (supra)]. 13. In our view, there is an obligation on the part of the State to verify such a claim if a person claims that he had fled his country of origin and sought refuge in this country. Of course, such a claim cannot be bogus and without any material. In the present case, it cannot be said by any stretch of imagination that, the claim made by the present petitioner that she is the daughter of a refugee who was later on granted citizenship based on certain documents, which have been exhibited and genuineness of which has not been doubted, to be bogus. 14. From the cross-examination, there is nothing to suggest that genuineness of the documents has been questioned. However, we do not see that the Tribunal had considered these aspects and merely because DW2, the projected brother of the petitioner, could not furnish any documentary proof that proceedee is his sister, the Tribunal brushed aside the evidence of DW2. There is no discussion about the evidence of the proceedee herself, who based on the aforesaid documents, claimed that she is the daughter of one Profulla Chandra Barman, who himself was a refugee. Merely because there is no documentary evidence like voters list showing the name of the proceedee with her parents may not be sufficient to throw out other evidences, which otherwise corroborate the plea of the petitioner that she is the daughter of a refugee, which has been corroborated by the evidence of her brother. 15. Normally, in this part of the country, women get married as soon as they attain puberty because of which their names do not generally find place in the voters lists along with their parents as they are yet to attain the age of casting vote. At that relevant point of time, the age of eligibility to cast vote was 21 years which has been subsequently reduced to 18 years with effect from 28.03.1989 vide Constitution (61st Amendment) Act, 1989. Therefore, unless a girl does not marry before attaining the age of 21 years, her name would not be recorded along with her parents. If that is the reality, the Tribunal could not have Page No.# 14/17 ignored this fact and proceed on a purely hyper-technical view that there is no document to show her linkage with her parents. 16. In fact, if there had been a documentary evidence like voters list showing the name of a woman proceedee with her parents, there would be no need for being referred the matter to the Tribunal because the enquiring authority would have itself closed the matter. 17. It may be noted that the standard of proof on the basis of which a proceedee is required to discharge her burden under Section 9 of the Foreigners Act, 1946 is preponderance of probability and not proof beyond reasonable doubt. The law nowhere requires that a person has to discharge her burden on the basis of proof beyond reasonable doubt. 18. The Full Bench of this Court, in State of Assam vs. Moslem Mondal, 2013 (1) GLT 809, while discussing the concept of burden of proof with reference to Section 9 of the Foreigners Act, proceeded to observe that burden of proof denotes the duty of establishing by a fair preponderance of the evidence the truth of the operative facts upon which the issue at hand is made to turn by substantive law in paragraph-76 as follows:- “76. The ‘burden of proof’ means a party’s duty to prove a disputed assertion or charge. The ‘burden of proof’ includes both ‘burden of persuasion’ and the ‘burden of production’. The ‘burden of persuasion’ means the duty imposed on a person to convince the fact finder to view the facts in a way that favours that person. The ‘burden of production’ is the duty imposed on the person to introduce enough evidence on a issue to have the issue decided by the fact finder, in that person’s favour. The party having the ‘burden of proof’ must introduce some evidence if he wishes to get a certain issue decided in his favour. The ‘burden of proof’, therefore, denotes the duty of establishing by a fair preponderance of the evidence the truth of the operative facts upon which the issue at hand is made to turn by substantive law (Black’s Law Dictionary, 7th Edition).” Page No.# 15/17 19. It is not the case of anybody including the State that the burden of proof is to be discharged by invoking the principle of proof beyond reasonable doubt. 20. Under the circumstances, if certain documents have been exhibited more particularly, refugee certificate issued on 04.04.1964 as well as the Registration Certificate of the year 1975 in favour of the projected father of the petitioner, these establish beyond any reasonable doubt that the said Profulla Chandra Barman was a refugee who entered India in 1984 and was granted citizenship by registration under Section 5(1)(a) of the Citizenship Act, 1955 as clearly evident from Ext.1 and Ext.3. The name of said Profulla Chandra Barman also appears in the voters lists of 1985, 1997 and the name of Ajit Barman, who the petitioner claims to be her brother, appears in the voters list of 1997. The petitioner also categorically stated in her written statement as well as in the evidence that she got married to Dulal Barman and her name appears in the voters list of 2005 in respect of village Ghilaguri Part-I. 21. Under the circumstances, we are of the view that the testimony of DW2 could not have been ignored by the Tribunal in the manner as has been done. In fact, the oral testimony of DW2 ought to have been considered with all seriousness it deserves as DW2 has clear linkage with the projected father of the petitioner, Prafulla Chandra Barman, who was an Indian citizen. 22. The Tribunal has given the opinion against the petitioner primarily on the ground that DW2 could not produce any documentary evidence to show that DW2 is the brother of the petitioner. In our opinion, lack of documentary evidence contemplated by the Tribunal is not sine qua non for proving relationship if there are other evidences on record. The documentary evidence showing the name of the claimant and that the projected parents or person may not necessary, if there are other corroborative evidences, both oral and documentary to substantiate such a claim. 23. Learned counsel for the petitioner submits that the petitioner can, if necessary, produce documentary evidence issued by the competent authority in this regard and has referred to a caste certificate issued by the competent authority of the Government of Assam in which it has been clearly mentioned that the petitioner is the daughter of Profulla Barman, resident of Ghilaguri Part-I village. It has been also submitted that the petitioner in her Page No.# 16/17 written statement mentioned in paragraph-16 that the petitioner had obtained a Gaon Panchayat Certificate from the Secretary, Ghilaguri Gaon Panchayat issued on 04.06.2015 which was annexed as Annexure-16, but the said certificate was not exhibited while adducing evidence because of improper legal advice. Accordingly, it is submitted that if the petitioner is allowed to exhibit and prove the same before the Tribunal, it would conclusively prove that she is the daughter of Profulla Barman and in the light of the other evidences, which have been brought on record, both oral and documentary, it can be proved that she is an Indian. 24. In our view, the said Gaon Panchayat certificate, which the petitioner is seeking to exhibit cannot be said to be a totally new evidence to be brought before the Tribunal inasmuch as existence of such document was already brought on record by way of affidavit but because of improper legal advice as submitted the same was not exhibited. As such, it cannot be said that the State will be totally taken by surprise by introducing the said certificate at a subsequent stage. No prejudice can be said to be caused to the State on this account. 25. Having gone through the evidences, as reproduced above, we are prima facie satisfied that the petitioner is able to show that she is an Indian and not a foreigner. However, we remand the matter to the Tribunal for arriving its own conclusion as in the absence of the original documents before us, it may not be appropriate for us to make any finding as regards the citizenship status of the petitioner. 26. Accordingly and for the reasons discussed above, we remand the matter to the Tribunal for a fresh opinion keeping in mind the observations made by us as above by allowing the petitioner to exhibit the Gaon Panchayat certificate issued on 04.06.2015 which was annexed as Annexure-16 in the written statement of the petitioner before the Tribunal. The petitioner may be also allowed to produce and prove the caste certificates. 27. Accordingly, the matter is remanded to the Tribunal for the purpose of allowing the petitioner to exhibit the said documents and, thereafter, the Tribunal will give its opinion after hearing the petitioner again on the basis of the existing evidences on record and after considering the admissibility, credibility and evidentiary value of the said Gaon Panchayat certificate, caste certificate and other evidences/documents, the Tribunal will pass a fresh Page No.# 17/17 opinion regarding the citizenship status of the petitioner. 28. Accordingly, we allow this petition by setting aside the impugned opinion dated 23.05.2022 passed by the Foreigners Tribunal, Bongaigaon No.2, Abhayapuri in BNGN/FT- 2/APR/Case No.469/2017. 29. The petitioner will appear before the Tribunal within a period of one month from the date of receipt of a certified copy of this order. 30. Since the citizenship of the petitioner has come under cloud, she will continue to remain on bail during the proceeding as directed earlier today by a separate order. 31. The writ petition is, accordingly, disposed of. JUDGE JUDGE Comparing Assistant "