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The Bombay High Court on Monday expressed indifference to the center’s approach in handling an appeal by a Russian woman, who was formerly married to an Indian man and has a daughter by an existing daughter, against an exit permit issued to her to leave the country following her divorce.
While hearing a plea from a Russian woman, 38, who asked an important question about section 7a(3) of the Citizenship Act, Justice Gautam S Patel and Justice Nila K Kokhali said a nursing mother should not be separated from her infant because of his nationality.
The petition was filed by the woman, her current husband, also from India, their infant daughter, and a minor son born from her previous marriage to the Indian national, to challenge the exit permit issued to her by the police on the instructions of the Union Home Ministry.
Seeking a humane approach from the authorities referring to the particular circumstances, the court also said: “The idea of a ruling that all citizens consider suspect is not palatable.”
The Russian woman was married to an Indian citizen and had an X1 visa and an OCI card. Later, the couple separated and the woman agreed to divorce proceedings. She had a son from this marriage.
After her divorce, she married the petitioner and they have a minor daughter who is now over six months old. In January, the woman was told to leave the country by March 23 in a contested order. Meanwhile, she applied for OCI status based on her second marriage on March 5. Pending her plea being heard, the woman asked for a directive to the police to extend the time period for the exit permit.
While the court expressed that there was no urgent need to force the woman out of the country, it granted the extension and has continued to do so until now. It noted that the petition raised questions about foreign-origin spouses of Indian nationals, the right to apply for a Category X visa and OCI cards, and specifically what to do with respect to OCI cards and visa when the marriage to the Indian national is dissolved or annulled.
On Monday, central government representative Roy Rodriguez filed an affidavit in response stating that the contested order was in accordance with legal requirements and that the government should be given time to file an additional affidavit to clarify its position on the issue. Rodrigues said there are not enough reasons to show the special circumstances under which women can apply for citizenship.
“Just be right, rational, and have a humane approach to the woman and her child. Don’t let nationalities get in the way of this. We won’t allow separation even for a minute. If this isn’t a special circumstance of the mother, then there is nothing (in your argument)” .
After Rodriguez argued that there must be a subsistence for marriage to continue her status in OCI, the court said: “Why would any government decide to treat and punish its own citizens because they married an alien/alien? It’s as if the government says you don’t dare marry a foreigner.” … We are not going to blind ourselves to the fact that we have before us a mother and a six-month-old baby. We are not letting you pop this family.”
When Rodrigues sought to file an additional affidavit to clarify her position, Judge Patel said, “Don’t spin this. Find a solution. We can’t accept your answer. We’re telling you you’re wrong. There really are special circumstances. She’s not asking for OCI to continue after the divorce. She was married to Another Indian citizen.
“You say OCI was in her first marriage..and therefore it cannot continue. Your rules are difficult for us to understand. You are penalizing an Indian citizen (the man) and his daughter too. We are trying to say something in the interest of the petitioner and the defendant to strike a balance. We find this action inconsistent “Your idea of a verdict in which all citizens are suspected is not palatable to us,” Justice Patel added.
Rodriguez then argued that there would be a temporary separation between the woman and her family. To which the council said, “Your order provides that the mother of a six-month-old child shall leave the country and be separated from her husband and her minor daughter. You cannot do temporary separation. You have no authority to interfere in the personal relations of the parties.”
The panel earlier continued its temporary relief granted to the petitioner and requested an additional affidavit by the Center by August 6 and a rejoinder by the petitioner by August 11.
It will finally be considered for disposal on August 21, she said.
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