Title:
UNION OF INDIA VERSUS BAHAREH BAKSHI
Date of Order:
22nd August 2024
Bench:
Justice Hrishikesh Roy, Justice Sudhanshu Dhulia, Justice S.V.N. Bhatti
Parties:
Appellant- Union of India
Respondents: Bahareh Bakshi
Subject:
The fundamental question in this case was whether the incorporation of a divorced spouse is mandatory for the verification of an application for an Overseas Citizen of India Card in accordance with Section 7-A of the Citizenship Act, 1955. The respondent submitted an application to the High Court of Delhi, WP(C) No. 10807/2020, to request an exemption from the requirement for her husband's attendance. The opinion expressed by the learned Single Judge was upheld by the learned Division Bench in the challenged ruling dated 25.03.2022. Consequently, the Union of India initiated this Civil Appeal.
Facts
The respondent, who is an Iranian citizen, claimed in the Writ Petition that she was now married to Mr. Paul Fel-El-Dingo D’Silva, another Indian citizen who had converted to Islam on November 30, 2008. Their marriage was then formally conducted in Dubai, United Arab Emirates, on May 13, 2009.
The couple's marriage certificate was translated by an Authorized Translator and subsequently validated by the Consulate General of India in Dubai, United Arab Emirates. Nevertheless, the respondent said that conflicts emerged between her and Mr. Paul soon after the marriage was finalized, resulting in her first return to Iran and then move to Bengaluru at his insistence.
The respondent said that Mr. Paul had financial difficulties, which inspired her to pursue a Postgraduate degree in Biotechnology at Bengaluru and a Doctorate from Mysore University with the aim of providing financial support to the family. Nevertheless, their romance unraveled, and Mr. Paul ultimately abandoned her in Bengaluru to live with his family in Goa. Consequently, the respondent filed a maintenance suit against her estranged husband in the Family Court in Bengaluru, using Section 125 of the Criminal Procedure Code, 1973.
She was granted a monthly support sum of Rs. 15,000/-. Although Mr. Paul filed an appeal with the High Court of Karnataka, his case was not successful.
The respondent submitted an online application on November 17, 2020, for an Overseas Citizen of India (OCI) Card in accordance with Section 7(1)(d) of the Citizenship Act, 1955, citing her marriage to Mr. Paul. Formally, she submitted her application to the applicable FRRO in Bengaluru on December 4, 2020.
However, the authorities refused to accept the form, arguing that Mr. Paul's presence was a prerequisite for the successful completion of her registration application. Following the refusal, the respondent filed a suit with the Delhi High Court, challenging the appellant's stipulation that her estranged husband, who is an Indian citizen, must be physically or virtually present to proceed with her OCI card application.
The respondent's writ petition was granted by the Single Judge of the Delhi High Court, who instructed the Union of India to approve her OCI Card application without the need for her spouse's presence. In the absence of any law or policy mandating the participation of both spouses, the court also noted that the criteria should not have been established in a manner that imposed such a requirement.
On March 25, 2022, the Delhi High Court's Division Bench affirmed the decision of the Single Bench, specifying that the Union of India would not be prohibited from probing the respondent's allegation in her OCI Card application.
The Division Bench underscored that the objective of the investigation was to verify the authenticity of the application and prevent it from being founded on a fraudulent assertion of marriage.
The court acknowledged that in situations when the Indian spouse remains deceased or is unaccounted for, it may be unfeasible to present the spouse. Hence, the need of the husband's attendance during the personal interview was considered capricious and no more than one of the means to authenticate the claim.
Arguments of the appellant
The appellant's attorney contended that the protocol for evaluating an OCI card explicitly mandated the presence of both spouses during an interview with the authorities. Throughout the processes, they consulted the Visa Manual, emphasizing the importance of the presence of both applicants, whether in person or virtually, in order to verify the legitimacy of the marriage.
Additionally, the appellant's attorney argued that the relevant clauses of the Citizenship Act, 1955, specifically Section 7A(1)(d) and Section 7A(1)(f), as well as paragraphs 21.1.4 and 21.2.5(vi) of the Visa Manual, required the verification of events such as the death of a spouse or remarriage in addition to the authenticity of the marriage.
The Visa Manual, 2021, was implemented to substantiate the necessity of undertaking individual interviews with the spouses to verify the validity of the conjugal union. The appellant's attorney contended that the High Court did not sufficiently consider these legal obligations when it granted relief to the respondent by excluding her from the requirement of her spouse's attendance.
Respondent's Arguments
The respondent's counsel had contended that her husband, who is a citizen of India, was unable to physically or virtually attend the hearings before the authorities to support her application for an OCI card because of their strained relationship.
It was also argued that because of the already ongoing legal proceedings between the two, the respondent's husband was unlikely to cooperate with the authorities or appear before them. The respondent's legal representative firmly advised that her application be processed without necessitating her husband's physical or virtual presence during the personal interview, as the task of guaranteeing his attendance was exceedingly challenging.
Additionally, the respondent's attorneys argued that in certain situations, it may not be necessary to exhibit the spouse. They stated that the purpose of such a presence was to confirm the legitimacy of the marriage, which could be verified through alternative methods.
Court’s Analysis
The court had gone through the arguments of both the side and upon its analysis of the process for verifying the genuineness of the application, it was determined that the directive provided in the contested ruling to exclude the applicant's spouse lacked legal justification.
Furthermore, it was emphasized that in addition to the spouse's physical or virtual presence, the applicant must satisfy additional criteria outlined in the Citizenship Act of 1955, the checklist, and the Visa Manual, which may also include a witness statement from the husband.
Moreover, it was determined that the judgments rendered by the Single Judge and the Division Bench of the High Court , which did not necessitate the respondent's spouse's physical presence during the interview process for her OCI Card application, were deemed unsustainable and, as a result, unenforceable.
The court had also taken into account the contention that was made by the respondent side that this specific instance was extraordinary due to the circumstance of a continuing marriage in which the lady had been abandoned. Their argument was that in cases of estrangement, the applicant may be categorized as belonging to a ‘special circumstance' designation, which the existing rules did not specifically address. Moreover, the assertion was supported by citing Section 7A(3) of the Citizenship Act, 1955, which clearly and specifically states:
"Regardless of any conditions stated in subsection (1), the Central Government has the power to officially designate an individual as an Overseas Citizen of India Cardholder if it is sufficiently convinced that certain conditions are present, and after providing written documentation of these conditions."
In recognition of this distinctive clause, it was observed that the present decision would not prevent the Central Government from evaluating the presence of any extraordinary circumstances that may support the respondent's assertion. The respondent would next be had the opportunity to provide substantiating evidence for her point. Nevertheless, it was clearly indicated that the Central Government alone has the right to make such judgments, and no opinion was expressed on whether the reply met the criteria for such assessment.
Having arrived at these conclusions, the appeals were approved, therefore overturning the contested verdicts. Consequently, all outstanding applications were also closed.
