Indian spouse, even if estranged, should be present to process foreigner's OCI application: Supreme Court

The Supreme Court recently ruled that physical or virtual presence of a foreigner's Indian spouse, even if the couple is estranged, is mandatory for the effective consideration of an application for an Overseas Citizen of India (OCI) Card by the foreign origin spouse [Union of India v. Bahareh Bakshi]..A three-judge bench of Justices Hrishikesh Roy, Sudhanshu Dhulia and SVN Bhatti explained that Para 21.25 (vi) of the Visa Manual, 2021 mandated the presence of the Indian spouse for interview by the authorities to ascertain that it was not a sham marriage or a marriage of convenience."During the personal interview of the applicant, the concerned Officer may put random questions to the foreign applicant and his/her spouse separately, to elicit information which may help in ascertaining the genuineness of the marital status of the applicant. This suggests that the presence of the spouse of the applicant either physically or through the virtual mode is mandatory for effective consideration of the application for an OCI Card," the Court observed in its August 22 judgment..The Court was dealing with a case concerning an Iranian national who married an Indian man in 2009. Relations between the couple eventually soured. In 2020, the woman sought an OCI card, but was told that her Indian husband's presence was required to register her request. She moved the Delhi High Court for relief. The High Court (a single judge as well as a Division Bench) ruled in her favour and said that it was arbitrary to insist on the estranged husband's presence for the consideration of the woman's OCI card application. The Central government challenged the Delhi High Court's rulings before the Supreme Court. .The Supreme Court held that the decision of the Delhi High Court was without any 'legal basis'."Section 7A(1) (of the Citizenship Act, 1955) specifically notes that the registration of OCI Card by the Central Government is ‘subject to such conditions, restrictions and manner as may be prescribed’. Therefore, the Act clearly allows for supplementary procedures, such as an interview as specified in the Visa Manual as well as the Checklist. In the absence of any challenge to the visa manual or the checklist, and ignoring the procedure in place, the High Court in the impugned judgment erred in granting the relief of dispensing with the requirement of physical/virtual presence of the spouse," the top court said..The Court also opined that the High Court 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, the top court said. "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," it added..The Court, however, clarified that the Central government still had the discretion to grant the woman an OCI card without insisting on her estranged husband's presence. It was noted that Section 7A(3) of the Citizenship Act provided that the Central Government may, if it is satisfied that special circumstances exist, register a person as an OCI holder. The Court made the observation after taking note of the woman's claim that he husband has abandoned her and may not agree to be present during the OCI application process. "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 (woman-applicant) application and it will then be open for the respondent to make good her case," the Court, therefore, ordered..Additional Solicitor General Aishawrya Bhati, advocates BK Satija, Merusagar Samantaray, Savita Singh, Ishaan Sharma, Parantap Singh, Mriyank Pathak, Arvind Kumar Sharma and Akshja Singh, appeared for the Union of India.Advocates Ankur Mahindro, Rohan Taneja, Mohit Dagar, Aditya Kapur, Soumil Gonsalves, Ankush Satija, Rohit Bishnoi, Vaishali S, Shubhangi Jain and Sugandha Anand, appeared for the respondent (woman-applicant)..[Read Judgment]