was no condition of the refusal made not to provide
citizenship as per pleading held by the petitioners;
hence, writ petition should be revoked.
citizenship certificate by descent by the name of
mother, Sarita Khadgi, showing the reason that the
petitioners’ father, husband has been disappeared,
and condition appears that he is yet to obtain the
citizenship. Upon the pleading held by the writ
petitioner that the opponent District Administration
Office has refused to be provided with citizenship by
giving oral reply that citizenship by descent could
not be provided by mother’s name without father,
opponent District Administration Office is seen
to have mentioned the description in its affidavit
up to that if citizenship certificate is demanded by
fulfilling the rule of the law, citizenship certificate
is being provided. No pleading is seen to have been
held stating that citizenship as per the demand
made by the petitioner cannot or shall not be
obtained.
Upon hearing the pleading made by the learned
advocate and learned joint attorney as per above,
by studying the document file and documents, it
appears that decision is supposed to be made on
the issue whether order as per petition claim is to
be made or not.
Upon considering towards the decision, petition
claim seems to have been that an unidentified
person, whose name, surname, address not known,
married her, the petitioner, Sarita Khadgi, on date
2047/7/10 (October 27, 1990 A.D.), by deceiving,
and the petitioner, Kiran Khadgi, was born on date
2051/12/30 (April 13, 1995 A.D.). Father disappeared
after the birth of the son; hence, they were living at
parental and maternal uncle’s home. Presently, the
age of the petitioner, Kiran Khadgi, was complete
for the sake of obtaining citizenship; hence, when
they went to the opponent District Administration
Office on date 2070/4/28 (August 12, 2013 A.D.)
to furnish application for the sake of citizenship
certificate by filling up the Schedule form and
attaching to it including the recommendation of the
Ward Office, they were refused to be provided with
citizenship by descent by mother’s name, giving oral
reply that citizenship could not provided to the son
without father and that descent meant the father;
hence, the petitioner became deprived of different
opportunities, and the right conferred to them by
the Constitution and law to obtain citizenship by
mother’s name was breached; hence, mandamus
should be issued on the names of the opponents
to provide Nepalese citizenship certificate to the
petitioner, Kiran Khadgi, by descent by mother’s
name. In the affidavits of the opponents, the Office
of the Prime Minister and the Council of Ministers
and the Ministry of Home Affairs, description is seen
to have been mentioned stating that circulation
had already been made on date 2068/5/5 (August
22, 2011 A.D) for all the District Administration
Offices to provide citizenship certificate by mother’s
name easily by fulfilling the procedure of the
Citizenship Act and Rule if the person, who was
born to a Nepalese citizen mother came to ask for
the citizenship by mother’s name; whereas, in the
affidavit of the opponent, District Administration
Office, description is seen to have been mentioned
that citizenship certificate is being provided if
application is furnished upon attaching to it the
evidence documents as per prescribed by law, and
that reply that it could not be provided to the son
without father was not given.
In Article 8 (2) (B) of the Interim Constitution of
Nepal, 2063, there is provision that if the father or
mother was a citizen of Nepal at the time of his/
her birth, such person shall be a citizen of Nepal
by descent and this provision is seen to have
been continued in the Article 11 (2) of the present
Constitution of Nepal. Similarly, legal provision is
seen to have existed in Clause 3 (1) of the Nepal
Citizenship Act, 2063, stating, “If the father or
mother was a citizen of Nepal at the time of the
birth of a person, such person shall be a citizen
of Nepal by descent.” As per the aforementioned
constitutional and legal provisions, it is seen that
for the sake of the Nepalese citizenship by descent
to be obtained by any person, his/her father of
mother must be a Nepalese citizen at the time of
his/her birth.
Writ petitioner, Sarita Khadgi, is seen to have held
the pleading that husband disappeared after the
birth of the petitioner son, Kiran Khadgi, that she
did not know even his name, surname, address and
that she wanted to provided citizenship certificate
by her name, and the petitioner, Kiran Khadgi, is
seen to have held the pleading that he has been
raised by mother upon nurturing and that he
has not even seen his father; hence, citizenship
certificate shall be obtained by mother’s name. As
per the aforementioned constitutional and legal
provisions, no obstruction is seen to have existed
to obtain citizenship certificate by a person having
any one of his/her father or mother a Nepalese
citizen. The matter that the petitioner, Sarita Khadgi,
is a Nepalese citizen is seen from her citizenship
certificate issued by District Administration Office
on date 2044/12/18 (March 31, 1988 A.D.) attached
to the document file. Regarding this, in the writ of
mandamus having including Sabina Damai versus
including the Government of Nepal, Office of the
Prime Minister and the Council of Ministers (N.L.M.
2068 Number 2, Page 247 D.No. 8557), mandamus
As per mentioned above, it is seen from the writ
petition and the description of the affidavits that the
petitioner, Kiran Khadgi, wants to obtain Nepalese
95
Compilation of Selected Decisions of Supreme Court on
CITIZENSHIP and BIRTH REGISTRATION
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