Point of Law: Grant of Overseas Citizenship of India - No rule or guideline which mandates presence of both spouses at time of making application for an OCI card, it is surprising that Checklist was formulated in a manner to impose such a condition.

JUDGMENT :

REKHA PALLI, J.

1. The present writ petition has been filed by an Iranian citizen, who is married to an Indian citizen and is aggrieved by the respondent’s refusal to consider her application for grant of Overseas Citizenship of India (OCI) card.

2. The petitioner’s marriage to one Mr. Paul Fel-El-Dingo D’Silva, an Indian citizen, was solemnised in Dubai, UAE on 13.05.2009, after he had converted to Islam on 30.11.2008. 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 petitioner 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 petitioner’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 petitioner and Mr. Paul and he left her in Bengaluru, to reside with his family in Goa. Consequently, the petitioner 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 14.11.2020, the petitioner 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 04.12.2020 - however, the officials refused to accept the form stating that the presence of Mr. Paul was requisite for processing her application. It is in this context that the present petition has come to be filed, the petitioner is aggrieved by the respondent’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.

3. In support of the petition, learned counsel for the petitioner submits that once the petitioner’s marriage with an Indian citizen since the year 2009 has been proved and is an undisputed fact, the same should be enough to merit grant of an OCI card in her name. He submits that since the petitioner’s estrangement from Mr. Paul, her Indian husband, forms the basis of matrimonial litigation, it should come as no surprise that there is some acrimony between them and that the said Mr. Paul would not be inclined to cooperate with the petitioner for helping her OCI card application. He contends that thus, in these circumstances, the mere absence of the petitioner’s spouse, who is refusing to come to India on account of the inter se litigation between the parties in various Indian Courts, cannot be a ground for the respondent to insist that the petitioner’s application will not be considered without the physical/virtual presence of her estranged spouse. In support of his contention he seeks to place reliance on a decision of a Coordinate Bench of this Court in Natalya Mamrenko vs. Union of India and Others, W.P. (C) No. 10015/2018. He submits that once the respondent do not dispute that the petitioner was indeed married to an Indian citizen, there is absolutely no reason as to why it can refuse to consider the petitioner’s application strictly as per Section 7A of the Citizenship Act, 1955. He, thus, prays for a direction to the respondents to process the petitioner’s application for an OCI card without insisting on her husband’s interview therefor.

4. On the other hand, learned counsel for the respondent, Ms. Nidhi Banga, while not disputing the fact that the petitioner is seeking issuance of an OCI card on the strength of her marriage with an Indian citizen and therefore satisfies the condition laid down in Section 7A(id), c