HC: Onus on infiltrator to prove ‘religious persecution’

Kolkata: "The onus to prove religious persecution as reason for migrating from Bangladesh to India lies on the infiltrator and not state," Calcutta High Court on May 6 held, refusing to quash case against a 27-year-old Hindu woman from Bangladesh who entered on a tourist visa, got married to an Indian but after visa expiry claimed "religious persecution" as the reason.Justice Ajoy Kumar Mukherjee refused to quash the case, however, noted in the judgment that the judge has not commented on the merits of the case and the same needs to be argued in the trial.Justice Mukherjee observed: "It is the petitioner who under the law is required to prove that she is an exempted person and entitled to get protection under Order 3(e) of the Immigration and Foreigner (Exemption) Order, 2025, in view of the challenges made specifically by the State that the petitioner's plea of ‘fear of religious persecution' is an afterthought and has been cooked up when the present proceeding has been initiated against her for not having any valid visa and/or on the ground of illegal over-stay."To establish "fear of religious persecution" under Section 3(e) of the Exemption Order 2025, the woman will have to demonstrate a credible testimony answering "what, when, where and how" of the persecution; documentary evidence like police, medical, threatening letters or injury photographs; prove that she was forced to hide her religious belief to avoid persecution; legal discrimination or loss of employment due to religious identity.The 27-year-old from Bangladesh's Kulna entered India via Ghozadanga Land Border on Dec 7, 2024, on a tourist visa. She got married to an Indian and settled in Raipur. Her visa expired on Jan 6, 2025.In Dec 2025, she started having marital discord, and approached Bongaon police with a complaint of physical and mental harassment against her husband and his family. Her counsel submitted that no complaint was registered. Instead, on Dec 29, 2025, a complaint was filed against her under Section 21 of the Immigration and Foreigners Act, which penalises foreigners for entering India without a valid passport, visa or travel document.While it was her lawyer's argument that the woman, being a Hindu minority from Kulna, entered the country as a religiously persecuted victim, the state counsel claimed that her visa was as a tourist and in case of religious persecution one has to make the claim ideally at the time of entry or when the threat becomes known.
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