Physical Or Virtual Presence Of Spouse Mandatory To Process Application For OCI Card On The Basis Of Marriage: Supreme Court
The Supreme Court has held that the physical or virtual presence of spouse is mandatory to process an application for OCI Card on the basis of marriage under Section 7A of the Citizenship Act.
The Court set aside the impugned judgment of the Delhi High Court wherein it was held that a personal interview of the spouse by the Indian Mission/Post/FRRO was not mandatory under Clause 21.2.5(vi) of Chapter 21 of the Visa Manual. The Court held that dispensing with the physical presence of the spouse during the process of interview for the Overseas Citizen of India (OCI) application was “unsustainable” and was therefore, set aside.
A Bench of Justice Hrishikesh Roy, Justice Sudhanshu Dhulia, and Justice S.V.N. Bhatti observed, “We are of the view that the direction issued in the impugned judgment to dispense with the presence of the applicant’s spouse, has no legal basis…apart from the physical/virtual presence of the spouse other conditions are also to be satisfied by an applicant as is provided under the Citizenship Act 1955, the checklist and the Visa Manual for which even a declaration by the husband may be necessary.”
ASG Aishwarya Bhati represented the appellant, while Advocate Ankur Mahindro appeared for the respondent.
The respondent, an Iranian citizen, had applied for an OCI card based on her marriage to an Indian citizen. The respondent had relocated to Bengaluru for her studies. Following a claim for maintenance after the parties separated, the respondent applied for an OCI card, which was initially refused by the authorities due to the absence of her estranged husband, who had ceased communication and resided separately in Goa.
The High Court had clarified that there could be cases where the Indian spouse may die or go missing. Therefore, in such situations, it may not be possible to produce an Indian spouse for the process. The High Court clarified that the Government would not be barred from investigating claims in an application for the OCI Card.
The Supreme Court had to determine whether the presence of the estranged husband was mandatory to process an application for an OCI Card under Section 7-A of the Citizenship Act, 1955 (the Act).
The Court explained that the Central Government is empowered to register a foreign spouse of an Indian citizen as an OCI holder subject to “conditions, restrictions and manner” prescribed for a prior security clearance by the competent authority.
The Court rejected the Delhi High Court’s view that mandating the presence of the estranged husband was arbitrary and instead stated that if the procedure dispensing with the presence of the spouse for considering the application is permitted to be adopted, it would be a departure from the notified procedure. “Moreover, the entire burden of verification would completely shift to the authorities,” the Court explained.
Consequently, the Court held that “the Division Bench was unjustified in holding that mandating the physical presence of the husband is arbitrary. In the absence of any challenge to the provisions of the Citizenship Act 1955, the Visa Manual, administrative instructions, or the checklist, such observations of the High Court were unmerited.”
Regarding the contention of the respondent that this is a peculiar case where the marriage is subsisting and the wife has been abandoned, the court said: "The present order will not come in the way of the Central Government to consider if any special circumstances exists for consideration of the respondent’s application and it will then be open for the respondent to make good her case. However, such discretion is entirely left to the Central Government and we are not expressing any opinion on whether the respondent deserves such consideration or not."
Accordingly, the Supreme Court allowed the appeal.
Cause Title: Union Of India v. Bahareh Bakshi (Neutral Citation: 2024 INSC 646)
Appearance:
Appellant: ASG Aishwarya Bhati; Advocates B K Satija, Merusagar Samantaray, Savita Singh, Ishaan Sharma, Parantap Singh, Mriyank Pathak, Rituraj Satapathy and Akshja Singh; AOR Arvind Kumar Sharma
Respondent: Advocates Ankur Mahindro, Rohan Taneja, Mohit Dagar, Aditya Kapur, Soumil Gonsalves, Ankush Satija, Rohit Bishnoi, Vaishali S and Shubhangi Jain; AOR Sugandha Anand