Madhya Pradesh High Court Protects Zambian Woman From Deportation For 2 Months, In View Of 1-Year-Old Son's Pending Passport Plea

The Gwalior bench of the Madhya Pradesh High Court granted interim protection of two months to a Zambian national who was facing deportation after expiry of her visa, after noting that her marriage registration to an Indian citizen and son's passport application was pending. 

The high court passed the order after Loveness Chinyama (petitioner 2) wife of an Indian national Rahul Raj Pippal, moved the high court in a plea seeking (as an interim measure), that till the application for issuance of passport to the couple's one year old son (petitioner 1) is decided and granted, her deportation be kept in abeyance. 

A single judge bench of Justice Milind Ramesh Phadke in its September 13 order said that though "prima facie" that deportation is a natural step on the expiry of Loveness's visa, however  the couple's marriage registration plea was allegedly pending before the registrar of marriage in Gwalior, which is the minimum requirement for her to apply for an OCI card. 

It said, "After hearing the rival contentions and perusing the record, this Court prima facie finds that the order of deportation to the petitioner No.2 was a natural corollary of the expiry of the viza granted in favour of petitioner No.2 on 14.09.2024 and, therefore, it cannot be said that the issuance of such an order is bad in law but the fact remains that the application for registration of marriage of petitioner No.2 and the petitioner in writ petition No.27462/2024 (Rahul Raj Pippal) is allegedly pending before the Registrar of Marriage, Gwalior, though the date herein is disputed by the either side, which would be the bare minimum requirement for applying for the OCI Card by petitioner No.2 to be further eligible for staying in India". 

The court further said that it evidently, the minor boy's passport application was also pending before the competent authority and until his passport is not issued, he would not be able for accompany his mother in case she has to go back to Zambia, "as admittedly the boy is only aged 01 year and is an Indian citizen by birth". 

The court noted that it was not the respondents case that Loveness has a "criminal background"  or is from a "country, which may make her stay in India vulnerable". 

Taking note of the same, the high court "at this stage" and without going into the maintainability of the petition, "as an interim measure" directed the respondents–which includes the Union of India not to deport the Loveness for the "next two months".

In the meantime, the court directed the respondents to file their response in the matter and listed it for hearing on November 4.

Background

Loveness Chinyama entered India on a student visa in 2019, and married Pippal in February 2024. Their one year old son was born prior to their marriage. Her visa expired in June 2023 but was extended until September 14, 2024. She applied for a further extension citing her newborn son's Indian citizenship; however, authorities were yet to process the same. 

It was contended that out of the wedlock a son has been born though prior to contracting the marriage but the fact remained that the couple's son is an Indian citizen and would be left stranded without her mother for a long period, if the interim relief is not provided. It was argued that the deportation action would amount to disintegration of a family and would compel the minor child to live without his mother. 

Among various reliefs the plea sought an extension of Loveness's exit permit until her son's passport is received. 

Meanwhile the Union of India submitted that till date there is no information about Loveness's marriage, available with the Union of India. It was argued that she had entered the Indian boundaries on a student visa, was given a one year extension in 2023, but had waited till the "last moment" for the current extension. It was argued that to get this extension, the petitioner "by way of sympathy" had moved the application September 8 which does not reflect her bonafides and only goes to show that somehow she wants to stay in India. 

Questioning the maintainability of the plea, the Union of India said that since Loveness is not an Indian citizen she cannot take advantage of violation of any fundamental rights under the Constitution of India,  envisaged only for the purposes of safeguarding the fundamental rights of Indian citizens and as on date she is not an Indian citizen.

Case title: Master X S/O Smt. Loveness Chinyama W/O Shri Rahul Raj Pippal v/s Union Of India And Others

Case No: WP No. 27474 of 2024

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