A foreign national with custody of an Indian minor may seek visa extension; however, prior legal compliance is essential for consideration.

JUDGMENT

Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.

2. A peculiar situation arises in the present case. The Petitioner, who is a citizen of Russia, seeks cancellation of her exit permit and also seeks issuing of an entry (X-2) visa in accordance with notification no. 25022/62/2020-F-I dated 13th August, 2020.

3. The brief facts of the matter are that the Petitioner was born in Kiev, Ukraine in 1970 when it was part of the erstwhile Union of Soviet Socialist Republics (USSR). Later, she was issued a passport under Russian Federation nationality. She arrived in India in December, 2007 on the basis of the Russian passport and a tourist visa bearing no.AC776259 (DOI: 11th December, 2007, DOE: 10the June 2008).

4. It is her case that she got married to an Indian citizen under the Special Marriage Act, 1954. She had a child born out of the wedlock by the name Lucky Lyan who was born in Rohini, Delhi on 31st October, 2008. Later, she divorced her husband by mutual consent under the Special Marriage Act, 1954 and the sole custody of the child was given to the Petitioner. The final decree of dissolution of marriage was also passed on 8th October, 2010.

"4. It is the grievance of the Petitioner that though her son was born in India, however, he was not issued an Indian passport which led to filing of W.P.(C) 6945/2019 in which, vide order dated dated 28th January, 2021, the Court had directed as under:

"4. Notice was issued in this petition on 2nd July, 2019. Mr. Rahul Sharma, ld. counsel has filed two affidavits - one on behalf of the RPO and another on behalf of the Foreigners Regional Registration Officer (hereinafter, `FRRO'). In the affidavit filed on behalf of the RPO, the stand taken is that a police enquiry report was received that the mother of the Petitioner is a foreigner. Her passport had not been produced along with the visa and since she was considered to be an illegal migrant, the passport of the Petitioner i.e., her son, was not issued. However, thereafter, on 8th January, 2021, the FRRO concluded that the mother was not an illegal migrant on the date when the Petitioner was born i.e., on 31st October, 2008. In view thereof, the RPO now states that if the Petitioner makes a fresh application, the same shall be proceeded with in accordance with law and the Petitioner would be issued the passport. The said stand has also been reiterated by the FRRO.

5. In view of the stand taken by the RPO and the FRRO, the relief sought by the Petitioner stands answered and satisfied. The Petitioner may accordingly make an application to the RPO, in terms of the extant rules and guidelines, within two weeks. If the application is made in accordance with the prescribed procedure along with the necessary documents, the same shall be processed and the passport of the Petitioner shall be issued expeditiously and in any case within 30 days from the submission of the complete application by the Petitioner."

5. The Court has been informed that pursuant to this order, the Petitioner's son has now been given an Indian passport. In the meantime, the Petitioner's visa expired in 2012 itself. However, she never applied for an extension of the visa during that period and application for visa extension was made only in March, 2021. On the contrary, while living in India, she transmitted her Russian passport to Russia and obtained an Indian business visa twice from the Indian Embassy in Russia. It is the submission of the ld. Counsel for the Respondents that whenever such a visa is issued from the embassy, then a corresponding arrival/ departure within the validity of such a visa is also mandatory. The conduct of the Petitioner is completely contrary to the Order 3B Foreigners Order 1948 which reads as under:

"Order 3B. Requirement of holding a valid passport or other valid travel document while living in India. - Save as otherwise provided in terms of this Order or Rule 4 of the Passport (Entry into India)