Physical/Virtual Presence Of Indian Spouse Mandatory To Process Foreign National's OCI Card Application Based On Marriage: Supreme Court

The Supreme Court has held that the physical or virtual presence of the Indian spouse is mandatory to process the application of a foreign national for an Overseas Citizen of India (OCI) card as per Section 7-A(d) of the Citizenship Act 1955.

A bench comprising Justices Hrishikesh Roy, Sudhanshu Dhuli and SVN Bhatti set aside the judgment of the Delhi High Court which dispensed with the presence of the husband of an Iranian national to process her application for OCI status on the basis of her marriage to an Indian national.

Before the High Court, the woman had submitted that her marriage, though subsisting, was estranged and sought dispensation of the presence of her Indian husband on that ground. Both the single bench and the division bench of the High Court accepted her plea, challenging which the Union Government appealed to the Supreme Court.

The Supreme Court noted that the statute itself prescribed that the OCI registration of a foreign spouse of an Indian national is “subject to such conditions,restrictions and manner as may be prescribed”.

Para 21.25(vi) of the Visa Manual mandated the presence of the Indian spouse for interview by the authorities. The purpose behind the rule was for the authorities to ensure 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.

The Court observed that these provisions suggested that the presence of the spouse of the applicant either physically or through the virtual mode is mandatory.

"If the above procedure, which dispenses with the presence of the spouse while considering the respondent's application, is permitted to be adopted, it will, first of all, constitute a departure from the notified procedure. Moreover, the entire burden of verification would completely shift to the authorities. For the OCI card, it is the applicant's responsibility to satisfy the authorities in the prescribed manner regarding the genuineness of their application," the Supreme Court observed.

The Supreme Court criticised the High Court for describing this requirement as "arbitrary", especially in the absence of any challenge to the regulations.

"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. Moreover, 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.”

Considering the respondent's submission that it was a special case as she was an abandoned wife despite the subsistence of the marriage, the Supreme Court referred to Section 7A(3) of the Act which says that the Central Government may, in special circumstances, grant OCI registration notwithstanding the procedure specified.

"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," the Court said.

Case : Union Of India v. Bahareh Bakshi

Citation : 2024 LiveLaw (SC) 638

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

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