“Just be right, sensible and have a humane approach to the woman and her child. Don’t let nationalities come in the way of this,” the Court remarked.
The Bombay High Court Monday took exception to the Central government ordering a Russian woman, married to an Indian man, to leave India after divorce from her previous husband (also an Indian).
The woman was married to an Indian citizen and had an X1 visa with an Overseas Citizens India (OCI) status. Later she obtained divorce from the first husband and married another Indian citizen with whom she has a daughter who is presently 6 months old.
The woman surrendered her OCI card and applied for X visa. In response, she was served an exit notice from the Ministry of Home Affairs through local police asking her to leave the country by March 24, 2023 as she lost her OCI status from earlier marriage after divorce.
The woman applied for the OCI card in March 2023 and moved the High Court seeking for a stay on the notice.
When the Union government counsel justified that the notice was only for temporary separation, a division bench of Justices GS Patel and Neela Gokhale asked the Central government to have a humane approach towards the woman and her child.
“Your order says the mother of a six-month-old child must leave the country and be separated from her husband and a minor daughter. You can’t do the temporary separation. You are not the authority to interfere in the personal relations of parties. Just be right, sensible, and have a humane approach to the woman and her child. Don’t let nationalities come in the way of this. We won’t allow separation even for a minute,” Justice Patel said.
Advocate Rui Rodrigues, appearing for the Home Ministry, filed an affidavit justifying the order claiming it was as per statutory requirements.
He argued that there had to be subsistence of marriage to continue her OCI status. He added that there was sufficient grounds to show the special circumstances by which the woman could apply for citizenship.
The bench quipped that the present case had special circumstances which it could not ignore. It also pointed out that in the present case her exit from the country would affect the husband and the child who are both Indians.
“Why would any government decide to treat its own citizens and penalise them because they have married someone of foreign origin? It is as if the government is saying you dare not marry a foreigner! We will not blind ourselves from the fact that we have a mother with a six-month-old child before us. We are not letting you sunder this family,” the judge said.
The Central government counsel sought time to file an additional affidavit to place on record its stand; however, the Court asked him to find a solution to the issue.
“Do not spin this. Find a solution. There are indeed special circumstances. She is not asking for the continuation of OCI after the divorce. She has married another Indian citizen. Your rules are difficult for us to understand. You are punishing an Indian citizen (the man) and his daughter also. We are trying to say something to strike a balance. We find this action disproportionate. Your idea of governance that all citizens are suspect is not palatable to us,” Justice Patel added.
On March 21, the same division bench had said that there was no emergent need to have the woman leave the country. The bench had then extended the date for exiting the country. This was extended from time to time and today it was extended till next date of hearing i.e. August 21.
The bench noted that the petition also raised questions concerning spouses of foreign OCIs, the right to apply for X category visa and OCI cards, and what is to be done regarding the OCI cards and visa when a marriage to Indian citizen is dissolved or annulled.
