The Bombay High Court on Monday came down heavily on the Union government for trying to separate a Russian woman, married to an Indian, from their 6-month old infant, since her OCI card expired due to divorce with her first husband.
A division bench of Justices Gautam and Neela Gokhale said, “There is a woman with a child. Don’t let nationalities come into this.” Asking that authorisers to take a humane approach, the bench also said, “The idea of governance that all citizens are considered suspect is not palatable.”
The HC was hearing a petition filed by a Russian woman, 38, challenging the exit permit issued to her to leave the country after her divorce. The plea also raised an important question about Section 7A (3) of the Citizenship Act. Along with the woman, her current husband, their infant daughter and her son from previous marriage are also petitioners in the plea challenging the exit permit issued to her by the local deputy commissioner of police on instructions from the Union Ministry of Home Affairs.
During that last hearing, the HC had asked the woman to make a fresh application before the MHA. Her lawyer, senior advocate VK Rambhadran informed the court on Monday that they received a communication on July 15, at about 8pm, stating they’re her application has been rejected.
Rui Rodrigues, appearing for the Union government said that the order (exit permit) was as per statutory requirements and that the government should be granted time to file an additional affidavit to clear its position on the issue. He also said that there are no special circumstances for granting her an OCI status.
Irked, Justice Patel said, “You are wrong. There are indeed special circumstances. Are you saying to people who are previously married, you will remain in OCI? She is not asking for the continuation of OCI. She has remarried. Now you say this OCI was for another marriage. So now there is no OCI.”
Rodrigues contended that there had to be a subsistence of a marriage to continue OCI status.
“Why would any government decide to treat its own citizens and penalise them because they have married someone with foreign origin/foreigner? 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.”
When Rodrigues sought to file an additional affidavit to spell out its stand, Justice Patel said, “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”.
Justice Patel further said, “You are saying that her OCI was in her first marriage and therefore it cannot continue. You are punishing an Indian citizen (the man) and his daughter also. We are trying to say something in as much interest of the petitioner and the respondent to strike a balance.” He added, “ We find this action disproportionate. Your idea of governance that all citizens are suspect is not palatable to us.”
When the judge emphasised that a nursing mother cannot be separated from her infant, Rodrigues said it was just a “temporary separation”. “We won’t allow separation even for a minute. You can’t force a separation for one minute. You are not the authority to interfere in personal relations of parties,” quipped Justice Patel.
The Russian woman was married to an Indian citizen and had obtained an X1 visa and an OCI card. Later, they got divorced. She had a son before she came to India. After her divorce, she married the petitioner man and they have a minor daughter.
In January, She was asked to leave India by March 23. Meanwhile, she applied for OCI status based on her second marriage on March 5. Pending hearing her plea, the woman had sought direction to the police to extend the time period of the exit permit.
The HC, since March has granted extension to the woman to stay in India. It has noted earlier that the petition raised questions about spouses of foreign origin of citizens of India, the right to apply for X category visa and OCI cards, and specifically what is to be done regarding the OCI cards and visa when the marriage to the Indian citizen is dissolved or annulled.
The court extended her relief and meanwhile allowed the Union government to file an additional affidavit by August 6 and petitioner to file a rejoinder affidavit by August 11.
