Supreme Court of India
Union Of India vs Bahareh Bakshi on 22 August, 2024
Author: Hrishikesh Roy
Bench: Hrishikesh Roy, Sudhanshu Dhulia
2024 INSC 646 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S).4887-4888/2024
UNION OF INDIA Appellant
VERSUS
BAHAREH BAKSHI Respondent
JUDGMENT
1. Heard Ms. Aishwarya Bhati, learned Additional Solicitor
General appearing for the appellant – Union of India. Also
heard Mr. Ankur Mahindro, learned counsel appearing for
the respondent.
2. The consideration to be made in this matter is whether
the presence of the estranged husband is mandatory to
process an application for Overseas Citizen of India (OCI)
Card, under Section 7-A of the Citizenship Act, 1955. The
respondent had filed the WP(C) No.10807/2020 in the High
Signature Not Verified
Digitally signed by
Court of Delhi for dispensing with the presence of the
Deepak Joshi
Date: 2024.08.31
15:01:21 IST
Reason:
husband of the respondent. The learned Single Judge
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dispensed with the presence of the husband of respondentand this view was affirmed by the learned Division Bench
under the impugned order dated 25.03.2022. Hence the
Civil Appeal at the instance of Union of India.
3. In the Writ Petition, the respondent claimed that she is
an Iranian citizen and is married to Mr. Paul Fel-El-Dingo
D’Silva, an Indian citizen. He had converted to Islam, on
30.11.2008 and thereafter the marriage was solemnized in
Dubai, UAE on 13.05.2009. The marriage certificate issued
to the couple was translated by an Authorised Translator
and certified by the Consulate General of India at Dubai,
UAE. However, the respondent claims that disputes arose
between Mr. Paul and her, shortly after they consummated
the marriage, which led to her initial return to Iran and her
subsequent relocation to Bengaluru at his insistence. It is
the respondent’s case that Mr. Paul claimed to have
financial difficulties which motivated her to pursue her
Postgraduate degree in Biotechnology in Bengaluru and her
Doctorate from Mysore University to contribute to the family
income. However, in the meanwhile, the relationship soured
between the respondent and Mr. Paul and he left her in
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Bengaluru, to reside with his family in Goa. Consequently,
the respondent instituted a maintenance petition under
Section 125 of the Criminal Procedure Code, 1973, against
her estranged spouse, before the learned Family Court in
Bengaluru and was awarded a monthly maintenance
amount of Rs.15,000/-. Mr. Paul appealed against this
order before the High Court of Karnataka, but was
unsuccessful. On 17.11.2020, the respondent applied on
the website for Overseas Citizen of India(OCI) Card under
Section 7(1)(d) of the Citizenship Act,1955 and generated her
application for an OCI card on the basis of her marriage to
Mr. Paul, and went to submit it to the local FRRO in
Bengaluru on 4.12.2020. However, the officials refused to
accept the form stating that the presence of Mr. Paul was
necessary for processing her application for registration. It
is in this context that the petition before the Delhi High
Court came to be filed. The Respondent is aggrieved by the
Appellant’s insistence on the physical/virtual presence of
her estranged spouse, who is admittedly an Indian citizen,
for the purpose of processing her OCI card application.
4. The Single Judge of the Delhi High Court allowed the writ
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petition of the Respondent and directed the Union of India to
accept her Overseas Citizen of India(OCI) Card without the
presence of her spouse. It was held that it is not mandatory
u/Clause 21.2.5(vi) of Chapter 21 of the Visa Manual for
personal interview to be conducted for the spouse by the
Indian Mission/Post/FRRO. In the absence of any rule or
guideline mandating the presence of both spouses, the
checklist should not have been formulated in such a manner
so as to impose the condition.
5. On 25.3.2022, the Division Bench of the Delhi High
Court upheld the order of the Single Bench with a
clarification that there would be no bar on the Union of
India from carrying out investigation on the claim of the
respondent in her application for the Overseas Citizen of
India(OCI) Card. It was noted that the object of the enquiry
is to be satisfied that the application is genuine and not
founded upon a false claim for marriage. There could be
cases where the Indian spouse may die or go missing. In
such situations, it may not be possible to produce the
Indian spouse. The Division Bench was of the view that
insisting on producing the husband at the time of personal
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interview was clearly arbitrary and is only one of the modes
by which genuineness of the claim can be satisfied.
6. Before this Court, it was projected from the side of the
appellant that the checklist for considering an OCI card
requires both the spouses to be present for an interview
with the authorities. The Visa Manual was also referred to
in the course of the proceeding to argue that the presence
(physical or virtual) of both the applicants is essential. The
Counsel for the respondent however contended that on
account of the estranged relationship with her husband,
the Indian citizen spouse is not available to appear before
the authorities either physically or by virtual mode in
support of her application for OCI card. It was further
contended that since various legal proceedings are pending
with the Indian husband, he is unlikely to appear before the
authorities and because of the impossibility, the application
be processed without insisting for the presence of the
applicant’s spouse at the time of the personal interview.
7. In support of their respective contentions, both sides
have relied on sub-Clause (d) Section 7A of the Citizenship
Act, 1955, which requires that the applicant for OCI card
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must have solemnized a registered marriage with the Indian
citizen and the marriage ought to have subsisted for not less
than two years immediately preceding the presentation of
the application. It was argued that the High Court failed to
note that Section 7(1)(d) and Section 7(1)(f) of the Citizenship
Act,1955 and para 21.1.4 and 21.2.5(vi) of the Visa Manual
read together, not only require the genuineness of marriage
but also whether there is a re-marriage or death of spouse
etc. The Visa Manual, 2021 prescribes that it is important to
cross-question the spouses separately to ascertain the
genuineness of marriage. On the other hand, the Learned
Counsel for the Respondent would argue that under certain
conditions, it may not be necessary to produce the spouse.
It is argued that it is only to ascertain the genuineness of
marriage that physical/virtual present may be needed.
8. The statutory provisions concerning Overseas Citizen of
India(OCI) Card are contained in Section 7A, 7B,7C and 7D
of the Citizenship Amendment Act,1955(as amended in
2015). Though OCI Card holders remain citizens of their
country, they enjoy certain privileges such as multiple-entry
lifelong visa for visiting India for any purpose, exemption
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from registrations with the FRRO and FRO, parity with Non-
Residential Indians(NRIs) in some aspects etc. Section 7A
pertains to the ‘Registration of Overseas Citizen of India
Cardholder’ whereas Section 7B covers the conferment of
certain limited rights on OCI Card Holders. Section 7C deals
with ‘Renunciation’ whereas Section 7D contains provisions
regarding the ‘Cancellation of Registration’ as OCI
Cardholder. Section 7A(1)(d) which is relevant for our
purpose, reads as under:
“7A. Registration of Overseas Citizen of India
Cardholder-
(1) The Central Government may, subject to such
conditions, restrictions and manner as may be
prescribed, on an application made in this behalf,
register as an Overseas Citizen of India Cardholder—
(a) ….. …..
(b) ….. …..
(c) ….. …..
(d) spouse of foreign origin of a citizen of India or
spouse of foreign origin of an Overseas Citizen of
India Cardholder registered under section 7A and
whose marriage has been registered and subsisted
for a continuous period of not less than two years
immediately preceding the presentation of the
application under this section:
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Provided that for the eligibility for registration as
an Overseas Citizen of India Cardholder, such
spouse shall be subjected to prior security
clearance by a competent authority in India”
9. It is essential to note that the Central Government is
empowered to register the foreign spouse of a citizen of India
as an OCI holder “subject to such conditions, restrictions
and manner as may be prescribed, on an application made
in this behalf”. The proviso to Clause 7A(1)(d) also provides
for ‘a prior security clearance’ by the competent authority
for eligibility.
10. Such special privilege of an OCI Card may be withdrawn
under Section 7D(f) which reads thus:
“7D. The Central Government may, by order, cancel
the registration granted under sub-section (1) of
section 7A, if it is satisfied that:
….. ….. ….. ….. …..
(f) the marriage of an Overseas Citizen of India
Cardholder, who has obtained such Card under
clause (d) of sub-section (1) of section 7A,—
(i) has been dissolved by a competent court of law or
otherwise; or
(ii) has not been dissolved but, during the subsistence
of such marriage, he has solemnized marriage withPage 8 of 17
any other person.”
11. The relevant clause of the checklist issued for
verification of applications seeking OCI category card which
was part of the record before the High Court reads thus:-
“In case of marriage to Indian national, registered
marriage certificate and Spouse valid Indian
Passport photo page and Address page (holding
Indian citizenship. (Marriage certificates issued
Outside India is to be affixed with Apostille or
endorsed by the concerned Indian Mission abroad).
On the day of submission of application the couple
must present. (only those whose marriage is
registered and has subsisted for a continuous
period of not lessen two years are eligible for OCI on
the basis of marriage to Indian).”
12. The above would indicate that on the day of submission
of application, the couple must be present. For appreciating
the requirement of physical/virtual presence projected by
the learned ASG, we have also perused the Visa Manual
issued by the Ministry of Home Affairs and the relevant
Clauses in Chapter 21 of the Visa Manual have been
considered.
13. Para 21.25(vi) of the Visa Manual provides thus:
“With a view to curb practice of entering into
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marriage of convenience just to obtain OCI cards by
foreign nationals, a mandatory verification step of
personal interview (either physical or through video
conference) of all OCI applicants who apply for
registration as OCI cardholder under section 7A(1)(d)
of Citizenship Act, 1955 (i.e. spouse basis) has been
introduced. This personal interview shall be
conducted by the Indian Mission/Post/FRRO
concerned at the time of document verification stage
itself and the OCI application on spouse basis shall
be acknowledged on the online system only after the
personal interview has been held and the Indian
Mission/Post/FRRO concerned have satisfied
themselves about the suitability of the applicant for
the registration as OCI cardholder. A report on the
personal interview along with recommendation of the
Indian Mission/Post/FRRO concerned shall also be
uploaded on the online system. During such personal
interview, the Indian Mission/ Post/ FRRO 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 information provided during the
personal interview maybe tallied with the information,
if any, provided in the application form with reference
to similar questions”.
[emphasis supplied]
14. Other provisions of the Visa Manual were also brought
to our notice which, inter alia, provided that as a further
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step, a declaration should be given by the husband that in
case of death or divorce, he would surrender the OCI Card
to the authorities. As noted above, 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.
15. The Learned Counsel for the Respondent argued that
the Visa Manual or even the checklist is only a delegated
legislation and there is no such condition in Section 7A(d) of
the Citizenship Act,1955 mandating an interview. We are
disinclined to accept this submission as Section 7A(1)
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
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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. This was done on
the basis that there are other modes by which the
concerned authority can satisfy themselves on the
genuineness of the application.
16. If the above procedure dispensing with the presence of
the spouse for considering the respondent’s application is
permitted to be adopted, it will firstly be a departure from
the notified procedure. Moreover, the entire burden of
verification would completely shift to the authorities. For the
OCI card, it is for the applicant to satisfy the authorities in
the manner prescribed, on the genuineness of her
application. In any case, the Division Bench 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. In this
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regard, the prayer in the writ petition may be noted as
under:
“a. issue, a Writ of Mandamus or any other
appropriate Writ directing the Respondent not to
insist for the presence of husband of the Petitioner,
for granting Overseas Citizen of India and/or
b. Issue a Writ of Mandamus or any other
appropriate Writ directing the Respondent to issue
the Overseas Citizenship’. of India card to the
Petitioner: and/or
Any other relief that the Hon’ble Court may deem fit
in the facts and circumstances of the instant case.”
17. Having considered the process for verifying the
genuineness, 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.
18. In consequence of our above discussion, the impugned
judgments dated 22.07.2021 and 25.03.2022 of the learned
Single Judge and the learned Division Bench of the High
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Court dispensing with the physical presence of the
respondent’s spouse during the process of interview for
consideration of her application for OCI Card are found to
be unsustainable and are set aside.
19. The Counsel for the Respondent attempted to make the
submission that this is a peculiar case where the marriage
is subsisting and the wife has been abandoned. In a case of
estrangement, the applicant would fall under the category of
a ‘special circumstance’ as the rules are silent for such a
category. In this regard, Section 7A(3) of the Citizenship
Act,1955 was brought to our notice:
“(3) Notwithstanding anything contained in sub-
section (1), the Central Government may, if it is
satisfied that special circumstances exist, after
recording the circumstances in writing, register a
person as an Overseas Citizen of India
Cardholder.”
20. Noticing this special provision, we may observe that
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
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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.
21. With the above, the appeals are allowed by interfering
with the impugned judgments. Pending application(s), if
any, stand closed.
……………………………… J.
[HRISHIKESH ROY ]
……………………………… J.
[ SUDHANSHU DHULIA ]
……………………………….. J.
[ S.V.N. BHATTI ]
NEW DELHI;
AUGUST 22, 2024.
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ITEM NO.101 COURT NO.5 SECTION XIV-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).4887-4888/2024
UNION OF INDIA Appellant(s)
VERSUS
BAHAREH BAKSHI Respondent(s)
([ PART HEARD BY : HON’BLE HRISHIKESH ROY, HON’BLE SUDHANSHU
DHULIA AND HON’BLE S.V.N. BHATTI, JJ. ]
IA No. 200527/2022 – EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT
IA No. 236342/2023 – PERMISSION TO FILE ADDITIONAL
DOCUMENTS/FACTS/ANNEXURES)
Date : 22-08-2024 These matters were called on for hearing
today.
CORAM :
HON’BLE MR. JUSTICE HRISHIKESH ROY
HON’BLE MR. JUSTICE SUDHANSHU DHULIA
HON’BLE MR. JUSTICE S.V.N. BHATTIFor Appellant(s)
Mrs. Aishawrya Bhati, A.S.G.
Mr. B K Satija, Adv.
Mr. Merusagar Samantaray, Adv.
Mrs. Savita Singh, Adv.
Mr. Ishaan Sharma, Adv.
Mr. Parantap Singh, Adv.
Mr. Mriyank Pathak, Adv.
Mr. Arvind Kumar Sharma, AOR
Mr. Akshja Singh, Adv.
For Respondent(s)
Mr. Ankur Mahindro, Adv.
Mr. Rohan Taneja, Adv.
Mr. Mohit Dagar, Adv.
Mr. Aditya Kapur, Adv.
Mr. Soumil Gonsalves, Adv.
Mr. Ankush Satija, Adv.
Mr. Rohit Bishnoi, Adv.
Ms. Vaishali S, Adv.
Ms. Shubhangi Jain, Adv.
Ms. Sugandha Anand, AOR
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UPON hearing the counsel the Court made the following
O R D E RThe appeals are allowed in terms of reportable judgment.
Pending application(s), if any, stand closed.
(DEEPAK JOSHI) (KAMLESH RAWAT) ASST. REGISTRAR-cum-PS ASSISTANT REGISTRAR
(Signed Reportable Judgment is placed on the File)
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