1. Minor child born abroad to Indian citizens seeks visa extension and OCI card; mother refuses No Objection Certificate. (Para 1 , 2 , 11 , 12 )
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Anoop Kumar Dhand, J
Seher Gogia – Appellant
Versus
Foreigners Regional Registration Officer – Respondent
S.B. Civil Writ Petition No.14338/2024
1. Minor child born abroad to Indian citizens seeks visa extension and OCI card; mother refuses No Objection Certificate. (Para 1 , 2 , 11 , 12 )
2. Petitioner argues visa extension denied due to mother's NOC refusal; respondent argues child is foreign national not entitled to reside. (Para 4 , 5 , 6 , 7 , 8 , 9 )
3. Court directs visa extension without mother's NOC and orders sympathetic consideration of OCI application. (Para 20 , 21 , 22 )
No, the best interest of the child is paramount; the child cannot be left to the sole mercy of the mother, so visa extension must be granted without NOC. (Para 13 , 14 , 15 , 20 )
Yes, deportation would violate the child's best interest and right to life under Article 21, especially given the child's residence with Indian parents. (Para 15 , 16 , 17 )
The minor's father may submit an application; the authority must consider it sympathetically and expeditiously in accordance with law. (Para 18 , 21 )
1. Traveling and going abroad for employment or studies has become increasingly common and for some have it has even become a hobby. Many people have lofty goal to travel and explore all parts of the world. However, pregnant women face greater challenges when traveling to foreign countries. There are cases of babies being born during a temporary stay abroad. This raises an important question regarding nationality of children
born, while their mothers are temporarily residing in a foreign country.
2. Children born to Indian citizens outside India often face great challenges relating to citizenship. Such children automatically acquire the citizenship of the country where they are born, however, they encounter difficulties when their Indian parents return and decide to reside in India. Under these circumstances, these children are classified as “Non-Resident Indian” (NRIs). This raise important questions viz., Whether children born abroad to Indian citizens can acquire Indian citizenship or not; and Whether they need to extend their Visas to stay in India; and Whether they are entitled to get Overseas Citizenship of India Card or not. All these issues form the core of the instant writ petition submitted on behalf of a five-year old minor, an Australian Citizen by birth, whose parents are Indian Citizens.
3. The instant writ petition has been filed by the petitioner with the following prayer:-
a) By an appropriate order and direction the respondents may kindly be directed to issue extension of Visa to the petitioner and looking to the all circumstances of the parents issue Overseas Citizenship of India Card to the petitioner as per the law.
b) By an appropriate writ order and directions the respondent No.2 may be directed to provide NOC immediately for Visa Extension of the petitioner.
c) Any other order or direction which this Hon’ble Court may deem fit and proper, be also passed in favour of the petitioner.”
4. By way of filing this writ petition, the petitioner seeks directions against the respondent No.1 for extension of the petitioner’s Visa, who is a minor girl aged five years. Additionally, the petitioner also seeks directions against the respondent No.1 for issuance of an Overseas Citizenship of India Card to the petitioner in accordance with law.
5. Learned counsel for the petitioner submits that the petitioner’s parents are Indian citizens, who solemnized their marriage on 19.03.2018. Learned counsel submits that after their marriage they visited Australia, where the petitioner was born on 01.06.2020 out from their wedlock. Learned counsel submits that the Commonwealth of Australia has issued Australian Citizenship to the petitioner on 22.11.2021. Learned counsel submits that subsequently, the petitioner along-with her parents arrived in India on the Visa issued by the Union of India. Learned counsel submits that initial Visa was valid from 19.08.2022 to 18.08.2023 and was subsequently extended till 24.01.2024. Learned counsel further submits that in the meantime, matrimonial dispute arose between the petitioner’s parents and the petitioner’s mother has filed several cases, including criminal cases, against the petitioner’s father.
6. Learned counsel for the petitioner submits that the petitioner’s father submitted an application before the respondent No.1 seeking extension of term of petitioner’s Visa, however, the said application came to be rejected on the ground that the petitioner’s mother has not provided No Objection Certificate (NOC) for the extension of petitioner’s Visa. Learned counsel further submits that, under these circumstances, the petitioner
apprehends that she would be treated & classified as an illegal migrant and may be denied the right to reside within the territory of India without a valid Visa. Hence, under these circumstances, interference of this Court is warranted.
7. In support of his submissions, learned counsel for the petitioner has placed reliance upon the judgment passed by the Madras High Court in
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