‘Onus of proof on petitioner’: Calcutta High Court denies relief to Bangladeshi Hindu woman overstaying in India

Justice Ajoy Kumar Mukherjee refused to quash proceedings against a Bangladeshi Hindu woman, observing that the onus to prove her innocence lies on her.

Burden of proof on individuals: Court

The Calcutta High Court observed that persecuted minorities, including Hindus, from Afghanistan, Bangladesh, and Pakistan who entered India on or before December 31, 2024, can get an exemption under the Immigration and Foreigners (Exemption) Order, 2025, even if their travel documents have expired. 

However, the burden of proof lies on the individual to establish that they are not a foreigner.

The Calcutta High Court noted that the burden of proof provision was a cornerstone of the Act of 2025, designed to strengthen national security, streamline immigration and enable authorities to take action, such as deportation, if the individual fails to establish their non-foreign status. 

Therefore, the onus to provide documentation, confirming citizenship or right to stay/overstay in India, lies upon the petitioner, shifting the burden away from the state.

The Calcutta High Court opined that it would not amount to a grave miscarriage of justice if the hearing is allowed to continue in the instant case, and therefore, the prayer on quashment of the proceeding stands dismissed. 

Proceedings against woman

• Rajdeep Mazumder, the counsel representing the petitioner, argued that the investigating agency, despite possessing a Foreigner’s Regional Registration Officer’s (FRRO) verification report, which establishes the petitioner’s entry into India before the statutory cut-off date of December 31, 2024, had maliciously proceeded to file a chargesheet against the petitioner under Section 21 of the 2025 Act.
• It was submitted before the Calcutta High Court that by initiating the proceeding, the investigating agency had shown complete disregard for the mandatory exemption. 
• He argued that on September 1, 2025, the Ministry of Home Affairs issued a notification under Section 33 of the Act, granting exemption from passport and visa requirements to persons who are victims of religious persecution. 
• On behalf of his client, Mazumder contended before the Calcutta High Court that the instant case was bereft of the basic ingredients of an offence under Section 21, and the petitioner had been falsely implicated with an ulterior motive and therefore, it was liable to be set aside. 

Petitioner came to India as tourist: State

The counsel appearing on behalf of the state opposed the petitioner’s contentions, stating that the purpose of the petitioner’s entry into India was as a tourist. 

It was argued that the case of religious persecution must be claimed promptly and ideally at the time of entry or when the threat becomes known, and not after being charged under the Immigration and Foreigners Act, 2025.

Additionally, it was contended before the Calcutta High Court that the petitioner had failed to establish a fear of religious prosecution. A vague claim to save herself from the rigour of punishment was not sustainable; therefore, seeking to quash the proceedings without a trial was liable to be rejected. 

Entered with Bangladeshi passport

• The petitioner was a 27-year-old Hindu woman from Khulna District, Bangladesh.
• The petitioner belonged to a minority Hindu community that was allegedly compelled to flee from her homeland due to religious persecution of minorities in Bangladesh, and had sought shelter in India.
• On December 7, 2024, she entered India through the Ghozadanga Land Border, possessing a valid Bangladesh passport, which was valid up to January 6, 2025, which meant her entry in India was within the permissible period of her visa, and since then, she had remained in India. 
• In December 2024, after her entry into India, she got married to a citizen of India, according to Hindu rites and customs. 
• The petitioner, after her marriage, resided with her husband and his family members at her matrimonial home in Raipur. 
• However, it was alleged by the petitioner that soon after the marriage, she started facing severe matrimonial discord, cruelty at the hands of her husband and her in-laws, and was subjected to mental and physical harassment. 
• Unable to bear the continuous alleged cruelty by her husband and in-laws, the petitioner approached the Bongaon Police Station to file a complaint, but alleged that the police refused registration of her complaint or protection.
• According to the petitioner, on December 29, 2025, she was implicated in the instant case by the investigating officer, alleging that she was found loitering aimlessly and failed to produce a valid travel document.