1. Application for Overseas Citizen of India (OCI) card under Section 7A(1)(d), Citizenship Act, 1955 — Refusal by authorities due to absence of estranged Indian spouse. (Para 2 , 3 )
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2024 Supreme(SC) 732
SUPREME COURT OF INDIA
HRISHIKESH ROY, SUDHANSHU DHULIA, S.V.N. BHATTI, JJ.
UNION OF INDIA – Appellant
VERSUS
BAHAREH BAKSHI – Respondent
CIVIL APPEAL No(s). 4887-4888 of 2024
Decided On : 22-08-2024
Important Points
The court established that the requirement for spouse presence in OCI applications must consider special circumstances, and arbitrary insistence on presence without such consideration is not legally justified.
Subject
Citizenship - Overseas Citizenship
Act Referred
CITIZENSHIP ACT: S.7(a), S.7(1)(d), S.7(1)(f), S.7(a)(d)
CITIZENSHIP AMENDMENT ACT: S.7(a)
CRIMINAL PROCEDURE CODE: S.125
CITIZENSHIP AMENDMENT ACT: S.7(a)
CRIMINAL PROCEDURE CODE: S.125
Headnote
Mandatory - Overseas Citizen of India - Section 7A, 7B, 7C, 7D of the Citizenship Act, 1955 - The court interpreted the necessity of spouse presence for OCI applications, emphasizing that while the law allows for conditions, the insistence on presence without considering special circumstances was arbitrary.
Fact of the Case:
The respondent, an Iranian citizen married to an Indian citizen, sought an OCI card but was denied due to the absence of her estranged husband. The High Court allowed her petition to dispense with his presence, leading to an appeal by the Union of India.
Finding of the Court:
The court found that the insistence on the husband's presence was not legally mandated and that the High Court's decision to dispense with it was unsustainable, although it acknowledged the possibility of special circumstances.
Issues: Whether the physical or virtual presence of the estranged husband is mandatory for processing the respondent's OCI card application under the Citizenship Act.
Ratio Decidendi: The court held that while the law allows for conditions regarding OCI applications, the requirement for spouse presence must consider special circumstances, and the High Court's ruling was arbitrary.
Result: The appeals are allowed, and the High Court's judgments are set aside.
Legal Category Hierarchy
Advocates appeared:
For the Appellant : Mrs. Aishawrya Bhati, A.S.G. Mr. B K Satija, Adv. Mr. Merusagar Samantaray, Adv. Mrs. Savita Singh, Adv. Mr. Ishaan Sharma, Adv. Mr. Parantap Singh, Adv. Mr. Mriyank Pathak, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Akshja Singh, Adv.
For the Respondent: Mr. Ankur Mahindro, Adv. Mr. Rohan Taneja, Adv. Mr. Mohit Dagar, Adv. Mr. Aditya Kapur, Adv. Mr. Soumil Gonsalves, Adv. Mr. Ankush Satija, Adv. Mr. Rohit Bishnoi, Adv. Ms. Vaishali S, Adv. Ms. Shubhangi Jain, Adv. Ms. Sugandha Anand, AOR
For the Appellant : Mrs. Aishawrya Bhati, A.S.G. Mr. B K Satija, Adv. Mr. Merusagar Samantaray, Adv. Mrs. Savita Singh, Adv. Mr. Ishaan Sharma, Adv. Mr. Parantap Singh, Adv. Mr. Mriyank Pathak, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Akshja Singh, Adv.
For the Respondent: Mr. Ankur Mahindro, Adv. Mr. Rohan Taneja, Adv. Mr. Mohit Dagar, Adv. Mr. Aditya Kapur, Adv. Mr. Soumil Gonsalves, Adv. Mr. Ankush Satija, Adv. Mr. Rohit Bishnoi, Adv. Ms. Vaishali S, Adv. Ms. Shubhangi Jain, Adv. Ms. Sugandha Anand, AOR
Table of Contents
2. Whether physical/virtual presence of the spouse is mandatory for verifying marriage genuineness under the Visa Manual versus the impossibility of production due to marital estrangement. (Para 6 , 7 )
3. Section 7A(1) empowers the Central Government to prescribe conditions for OCI registration; the Visa Manual and checklist are valid supplementary procedures for verifying marital genuineness. (Para 13 , 14 , 15 , 16 )
4. Prescribed procedures in the Visa Manual and checklists for OCI registration are binding under the enabling provisions of Section 7A(1) of the Citizenship Act, 1955. (Para 15 , 16 )
5. Appeals allowed — High Court orders dispensing with the spouse's presence set aside — Central Government may consider application under special circumstances per Section 7A(3). (Para 18 , 20 , 21 )
6. Is the presence of the spouse mandatory for an OCI card application based on marriage?
Yes, the Visa Manual and checklist require a personal interview of both spouses, either physically or via video conference, to ascertain the genuineness of the marital status and curb marriages of convenience. (Para 13 , 14 )
7. Can the Visa Manual or checklists impose conditions not explicitly detailed in the Citizenship Act?
Yes, Section 7A(1) of the Citizenship Act, 1955, allows registration subject to conditions, restrictions, and manners as may be prescribed, which validates supplementary procedures such as interviews specified in the Visa Manual. (Para 15 )
8. Can an OCI card be granted if the spouse is unavailable due to estrangement or other reasons?
While the general procedure requires the spouse's presence, Section 7A(3) of the Citizenship Act, 1955, allows the Central Government to register a person as an OCI cardholder if it is satisfied that special circumstances exist. (Para 19 , 20 )
JUDGMENT :
1. Heard Ms. Aishwarya Bhati, learned Additional Solicitor General appearing for the appellant – Union of India. Also heard Mr. Ankur Mahindro, learned counsel appearing for the respondent.
2. The consideration to be made in this matter is whether the presence of the estranged husband is mandatory to process an application for Overseas Citizen of India (OCI) Card, under Section 7-A of the CITIZENSHIP ACT , 1955. The respondent had filed the WP(C) No.10807/2020 in the High Court of Delhi for dispensing with the presence of the husband of the respondent. The learned Single Judge dispensed with the presence of the husband of respondent and this view was affirmed by the learned Division Bench under the impugned order dated 25.03.2022. Hence the Civil Appeal at the instance of Union of India.
3. In the Writ Petition, the respondent claimed that she is an Iranian citizen and is married to Mr. Paul Fel-El-Dingo D’Silva, an Indian citizen. He had converted to Islam, on 30.11.2008 and thereafter the marriage was solemnized in Dubai, UAE on 13.05.2009. The marriage certificate issued to the couple was translated by an Authorised Translator and certified by the Consulate General of India at Dubai, UAE. However, the respondent claims that disputes arose between Mr. Paul and her, shortly after they consummated the marriage, which led to her initial return to Iran and her subsequent relocation to Bengaluru at his insistence. It is the respondent’s case that Mr. Paul claimed to have financial difficulties which motivated her to pursue her Postgraduate degree in Biotechnology in Bengaluru and her Doctorate from Mysore University to contribute to the family income. However, in the meanwhile, the relationship soured between the respondent and Mr. Paul and he left her in Bengaluru, to reside with his family in Goa. Consequently, the respondent instituted a maintenance petition under Section 125 of the Criminal Procedure Code, 1973, against her estranged spouse, before the learned Family Court in Bengaluru and was awarded a monthly maintenance amount of Rs.15,000/-. Mr. Paul appealed against this order before the High Court of Karnataka, but was unsuccessful. On 17.11.2020, the respondent applied on the website for Overseas Citizen of India(OCI) Card under Section 7(1)(d) of the CITIZENSHIP ACT ,1955 and generated her application for an OCI card on the basis of her marriage to Mr. Paul, and went to submit it to the local FRRO in Bengaluru on 4.12.2020. However, the officials refused to accept the form stating that the presence of Mr. Paul was necessary for processing her application for registration. It is in this context that the petition before the Delhi High Court came to be filed. The Respondent is aggrieved by the Appellant’s insistence on the physical/virtual presence of her estranged spouse, who is admittedly an Indian citizen, for the purpose of processing her OCI card application.
4. The Single Judge of the Delhi High Court allowed the writ petition of the Respondent and directed the Union of India to accept her Overseas Citizen of India(OCI) Card without the presence of her spouse. It was held that it is not mandatory u/Clause 21.2.5(vi) of Chapter 21 of the Visa Manual for personal interview to be conducted for the spouse by the Indian Mission/Post/FRRO. In the absence of any rule or guideline mandating the presence of both spouses, the checklist should not have been formulated in such a manner so as to impose the condition.
5. On 25.3.2022, the Division Bench of the Delhi High Court upheld the order of the Single Bench with a clarification that there would be no bar on the Union of India from carrying out investigation on the claim of the respondent in her application for the Overseas Citizen of India(OCI) Card. It was noted that the object of the enquiry is to be satisfied that the application is genuine and not founded upon a false claim for marriage. There could be cases where the Indian spouse may die or go missing. In suc
