that at the time of the birth of a person, if his/her
father or mother is a Nepalese citizen, such person
shall be qualified to obtain citizenship. In Article
11 (2) (B) of the present Constitution of Nepal also,
the provision as per the same is found to have been
retained. In Sub-article (5) of the same Article,
by making provision that “The person, who was
born and is residing in Nepal from a Nepali citizen
mother and whose father cannot be identified,
shall be conferred with the citizenship of Nepal
by descent;” in the proviso clause, the provision is
found to have been retained stating that “provided
that, if father is decided to have been a foreign
citizen, the citizenship of such person’s citizenship
shall be changed into naturalized citizen as per
the federal law.” Though the present writ petition
was filed under the then prevailing Constitution
of Nepal, 2063, after repealing the aforementioned
Constitution, in the context of the promulgation of
the present Constitution of Nepal, there is no doubt
that now the issue of acquisition of the citizenship
also shall be as per this Constitution. In Clause
3 of Nepal Citizenship Act, 2063, it is found that
although a person, whose father or mother was a
citizen of Nepal at the time of his/her birth, shall
become a citizen of Nepal by descent, in Clause
5 (2), in connection to the child born to a Nepali
Citizen woman who is married to a foreign citizen,
if he/she is residing permanently in Nepal upon
being born in Nepal and if he/she has not obtained
the citizenship of foreign country on the ground of
the father’s citizenship, he can be conferred with
naturalized citizenship as per prescribed.
these is vested in the person who is allowed to use
such right. In the context of the present writ petition,
although there is no doubt that the writ petitioners
are allowed to use the constitutional and legal right
to obtain citizenship by mother’s name, the liability
lies on the petitioners themselves to fulfill the
aforementioned constitutional and legal standards
and processes needed to use the aforementioned
right. If the writ petitioners go to the authorized
body to obtain citizenship by fulfilling the process,
such body shall have to come to a conclusion upon
conducting necessary investigation regarding
obtaining or not obtaining the citizenship as per
claim.
Hence, it is seen that decision is supposed to be
made after conducting investigation regarding
whether the petitioners are the person who
obtain citizenship as per Clause 3 (1) of the Nepal
Citizenship Act, 2063 or are the persons who can
obtain citizenship as per Clause 3 (2) and Clause 5
(2) of the same Act or not; hence, it is decided that
mandamus order shall be issued on the names
of the opponents District Administration Office,
Lalitpur and previous Kitani presently Godawari
Village Development Committee, Lalitpur to decide
by conducting necessary investigation and provide
its information to the petitioners as well. Provide the
information of the order to the Office of the Attorney
General and the opponents. Striking off the record
of the case file, submit the document file by doing
as per rule.
Justice
Even if the petitioners have claimed that their father
was a Nepalese citizen, there is the condition that
the writ petitioners have admitted themselves that
they were unable to submit evidence of their father
being a Nepalese citizen. If law has made available
more than one option to use any constitutional and
legal right, the right to choose any option out of
I am with the said opinion.
Justice
Bench Officer: Aatmadev Joshi
Computer Setting: Chandra Timalsena
2073/01/30/05 (Thursday, 12th May, 2016)
118
Compilation of Selected Decisions of Supreme Court on
CITIZENSHIP and BIRTH REGISTRATION
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